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

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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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2 responses to “During discovery, inside counsel might encounter limited access to adversary’s confidential information”

  1. KY Lawyer says:
    August 21, 2009 at 11:43 am

    I’d like to know the recent decisions that precluded in-house counsel from viewing discovery.
    I can vouch for being treated as “less than a lawyer” during a lender liability case against my bank/employer as in-house counsel. The judge allowed the other side to take my deposition & I was forced to reveal my legal advice to them. This was back in the ’80’s when absolutely no one had any respect for in-house attorneys (which I found out when looking for a job).
    I think things have changed drastically since then.

  2. Rees Morrison says:
    August 21, 2009 at 11:51 am

    One case was Intel Corp. v. VIA Technologies, Inc., 198 F.R.D. 525 (ND Cal. 2000). A second citation was to Protective Order — Confidential Information — Access by In-House Counsel, 16 No. 5 Federal Litigator 122 (May 2001). The third case was U.S. v. Sungard Data Systems, Inc., 173 F. Supp.2nd 20 (2001).