Every day companies deal with an ongoing safety analysis of their own products. These Safety Teams are routinely interdepartmental. The Safety Teams must consider design changes, manufacturing issues, potential recalls, potential claims or lawsuits and overall consumer safety. Sensitive information is always shared by the Safety Team. Companies believe (or hope) that the process, including any documents and information, is all confidential until a lawsuit ensues and much of the Safety Team’s work is revealed. What can you do to preserve the privilege? How do you safeguard this information? This is not an unusual scenario. However, it is one that companies routinely fail to protect themselves from.Useful privileges for Safety Teams are attorney-client privilege, work product doctrine, and self-critical analysis or self-evaluation privilege. Attorney-client privilege and work product doctrine protect communications with attorneys and work done in anticipation of litigation, while the latter privilege is one that protects self-assessments to encourage candid, thorough safety risk examinations without fear of them negatively impacting subsequent litigation.

Regardless of the privilege used or the differing jurisdictional standards employed, the following steps will help manufacturers preserve privilege through proactive means before a claim arises.

  1. Counsel Leading the Team: In-house counsel should lead the teams, guiding the investigation. Teams undoubtedly serve practical and legal purposes; however, privilege is more likely to apply where there is a specific legal purpose. If challenged, the privileged items may undergo in-camera review by the Court; thus, the face of these documents should clearly indicate the legal purpose or legal advice sought. Something as simple as “I am seeking legal advice for…” can make a difference.
  2. Restricting Information to Necessary Individuals: The more the information is shared, the more non-lawyers on the “To” line of an email, the less likely that privilege will be found. Courts are leery of in-house counsel being added to emails in attempts to cloak non-privileged information in the appearance of privilege.
  3. Providing Substantive Legal Comments: Privilege is most likely to apply where in-house counsel provides substantive legal comments/advice.  comments of a non-legal nature will not cloak documents in privilege. Advice relayed in person or over the phone is fine, but if not reflected in privileged materials, courts may view the counsel’s advice as stylistic edits or practical advice any executive can perform. To the extent possible, business advice should be segregated from legal counseling or the legal connection should be obvious. To paraphrase one judge’s question when making a privilege determination, “would an executive with no legal training just as easily come to this conclusion?”
  4. Engaging Outside Counsel: Engaging outside counsel can change the dynamic of the privilege analysis quickly. Just as courts can be suspicious of in-house counsel’s multiple internal roles and the practice of copying them to “create privilege,” courts are just as deferential to finding privilege when outside counsel is involved. An outside perspective can be seen as more objective; furthermore, outside counsel tend to specialize in areas of the law and can better identify the various legal considerations at play.

Nothing guarantees the application of a privilege, but these prophylactic steps increase a company’s odds to protect its internal deliberations. Doing so will help to alleviate the threat and magnitude of possible product liability claims. For more strategies to proactively protect your company from product liability claims, read Preempting and Mitigating Product Liability Claims, a Practical Law Practice Note.