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>The communication must actually be relevant to the legal representative, in their position as a legal representative. The only way for an outside party to det

• olliej 5y ago
  If they can provide evidence of systematic abuse, and per the article there is apparently even documentation telling employees to misuse privilege to shield communication that is not legally protected. The party claiming malfeasance does not need to show actual invalid content, it is enough to show a systemic behavior or pattern of misuse. The inability to see the content in that misuse is why, in general, abuse of privilege doesn’t void AC privilege on a few documents, but can completely negate all of it. Competent businesses do not try to be clever, and include training that says not to try simply cc’ing counsel on everything. Because if you are cc’ing counsel on everything you are very clearly making a case that the content of the communication isn’t relevant to whether or not you are including counsel, and so you can lose privilege. As I said elsewhere, this isn’t new or novel, and is a very well understood limit on AC privilege.