Privilege in IP Litigation: Overcoming Challenges in Review, Applicability to Foreign Attorneys, Disclosure

IP litigation relies heavily on documentation related to a company's proprietary information. As a result, large volumes of documents and electronically stored information (ESI) must be reviewed and produced. Asserting protection of such documents and information as privileged in litigation presents unique challenges given the volume of such documents/information, particularly when non-U.S. jurisdictions and multiple defendants are involved.

Clients have a reasonable expectation that their communications with counsel, including non-U.S. counsel, will be protected. However, questions about the application of the privilege to communications by foreign counsel and whether U.S. courts will recognize such communications as privileged remain. What steps should counsel take to ensure communications with foreign counsel are privileged?

Listen as our authoritative panel examines the unique challenges that counsel and parties face when large volumes of information and multiple jurisdictions and parties are involved in litigation. The panel will discuss how the courts have treated the issue of privilege in IP litigation, the challenges in protecting privilege, and the applicability to documents involving non-U.S. counsel. The panel will offer best practices for overcoming these challenges and protecting the privilege.

1. Privilege review
   1. What is the privilege
   2. Multiple defendants and common interest doctrine
   3. Communications involving non-U.S. counsel
2. Document and information review
   1. Procedures
   2. Inadvertent disclosure
   3. Clawback provisions
3. Practical strategies for reviewing documents and protecting privilege during IP litigation (and prior to litigation)

The panel will review these and other high priority issues:

• What challenges do counsel face when dealing with multiple defendants and non-U.S. counsel?
• What steps should counsel take to increase the likelihood that communications among defendants or involving foreign counsel are protected?
• What processes should counsel have in place during privilege review to minimize disclosure of protected information?