During discovery, inside counsel might encounter limited access to adversary’s confidential information

In-house attorneys face occasional challenges to their professional status, notably as to the attorney-client privilege when they give business advice, the degree of their objectivity as employees of their client, and whether they are admitted to practice in a given state or court. A further limitation I had not known about came to my attention in Robert Haig, Ed., Successful Partnering Between Inside and Outside Counsel (Thomson Reuters/West 2009 Supp.), Vol. 2, Chapter 27 at §27:38.

“A number of recent decisions have explored the question whether in-house counsel can be precluded from having access to the adversary’s confidential information in litigation even when the information is protected by a confidentiality order.” The paragraph cites three decisions in District Courts and comes to no conclusion and makes no predictions. I would hope that courts do not make in-house lawyers litigate with one hand tied behind their back, having access to highly relevant information found during discovery barred from their view.

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