CHAPTER § 12.06 New Technology and Privilege

• Jurisdiction: United States

§ 12.06 New Technology and Privilege

New technology may create additional challenges, and pharmaceutical companies may need to address how best to protect the attorney-client privilege in connection with new workplace communication tools.

Pharmaceutical companies today may utilize collaborative applications that may be potentially accessible by employees in different departments within the company. In Garvey v. Hulu, a recent case from the Northern District of California, the court upheld the company's privilege claims for information stored in such a collaborative application.²⁷¹ The court found that the documents remained privileged because the attorney-client communications were maintained as confidential within the company, even though there was a theoretical possibility that the information could be accessed by an employee who was not an intended recipient of the communication.²⁷²

This decision is instructive for pharmaceutical companies grappling with protecting attorney-client privilege in the digital age. As pharmaceutical companies continue to employ new technologies, cases like Hulu are important for helping companies protect their attorney-client privilege.

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Notes:

^[271] No. 11-CV-03764-LB, 2015 WL 294850 (N.D. Cal. Jan. 21, 2015)

^[272] In this case, the plaintiff challenged Hulu's attorney-client privilege claims over electronic documents generated using project-tracking software. The documents, called...