Special steps taken to protect attorney-client privilege for in-house litigators

The general counsel of Affymetrix, Barbara Caulfield, decided that she could increase efficiencies and save money if her law department handled IP litigation internally (See my post of Feb. 9, 2008: don’t “manage” litigation, handle it.).

An article in IP Law & Bus., Vol. 6, Feb. 2008 at 9, describes how she staffed the group, how it works closely with lawyers from two law firms, and some protective steps she took. So that the work of the in-house trial lawyers would not be open to discovery, she houses them away from the rest of the legal department and any business functions. Second, she separated their computer systems from the company’s computer system. For having taken measures such as these, “this arrangement has survived court challenges claiming waiver of attorney-client privilege.”

One of the efficiencies of having in-house litigation lawyers is that they can schedule depositions and interview witnesses much more flexibly than can outside counsel. The in-house lawyers can also comprehend their company’s technology as well as the patents involved, which reduces their preparation time. Caulfield estimates the direct costs for depositions or 20 percent less than when the law department had no specialized litigation group. The article points out that the internal group works on cases when Affymetrix sues another company, not when it is the defendant.

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