Chapter 12 Managing for Litigation Both Before and After It Begins—An In-House Counsel Perspective

• Jurisdiction: United States

Chapter 12 Managing for Litigation Both Before and After It Begins—An In-House Counsel Perspective
Korey Christensen AngloGold Ashanti North America Inc. Denver, CO
Jacy Rock Suncor Energy Services Inc. Denver, CO^*

KOREY CHRISTENSEN currently serves as Senior Counsel for AngloGold Ashanti North America Inc., where he manages legal and compliance matters for AngloGold's North American operations. Prior to joining AngloGold, Korey spent eight years as an associate at Hogan Lovells US LLP, where he was a member of the firm's Energy and Natural Resources Group and specialized in handling oil and gas and mining transactions for a diverse range of clients. While at Hogan, Korey co-authored several publications regarding the law applicable to mining outer space resources from the Moon and asteroids. Korey holds a B.S.B.A. from Creighton University and a J.D. from Duke University School of Law. He lives in the Denver area with his wife, Allie, and their one-year-old daughter, Charlie.

JACY ROCK is a lawyer, entrepreneur, and mom based out of Steamboat Springs, CO. She is the founder of Friday15 and legal advisor to small and mid-size businesses in the mountain west. Jacy graduated Summa Cum Laude, Phi Beta Kappa from the University of North Dakota and Magna Cum Laude, Order of the Coif from the University of Minnesota Law School. She began her legal career as an environmental and natural resources litigator at Faegre Drinker Biddle & Reath and served as Senior Legal Counsel for Suncor Energy Services Inc. until early 2022. Jacy obtained her Certificate in Corporate Social Responsibility from the CU Leeds School of Business in 2019 and has served on several non-profit boards/committees, including the governor-appointed Great Outdoors Colorado Board of Trustees, and the Jefferson County Open Space Advisory Committee. In 2019, the Denver Business Journal named Jacy one of the Top Women in Energy. She is a triathlete, runner, skier, reader, and traveler who loves a good podcast and vizsla snuggle.

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I. Background black-letter law

a. Attorney-client privilege protects communications between attorneys and their clients, which are intended to be, and in fact were, kept confidential, and made for the purpose of seeking, obtaining, or providing legal advice. (See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981); In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757, 410 U.S. App. D.C. 382 (D.C. Cir. 2014); In re Teleglobe Commc'ns Corp., 493 F.3d 345, 359 (3d Cir. 2007); United States v. Lopez, 777 F.2d 543, 552 (10th Cir. 1985); Restatement (Third) of the Law Governing Lawyers § 68 (2000); Edna Selan Epstein, The ATTORNEY-CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE 35 (6th ed. 2017).

i. Attorney-client privilege is often referred to as the oldest and most-important legal privilege.
ii. Note that the scope of the attorney-client privilege is much narrower than the scope of an attorney's ethical obligation to maintain the confidentiality of client information. For example, Rule 1.6 of the Colorado Rules of Professional Conduct prohibits a lawyer from "reveal[ing] information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation," or certain limited exceptions apply.
iii. Comment 3 to Rule 1.6 makes this point more explicit: "The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law."

b. Attorney work product doctrine protects tangible materials prepared in anticipation of litigation, prepared by or

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