Admissibility of Personal Director Notes in Governance Disputes
Personal director notes are discoverable out-of-court statements admitted under hearsay exceptions like past recollection recorded to rebut official board minutes.
legal professional privilege
Meaning
Legal protection that keeps communications between a lawyer and their client confidential and shielded from disclosure in a tribunal. For legal professional privilege to apply, the communication must be for the purpose of seeking or giving legal advice and must be kept confidential. This protection allows a person to speak honestly with their counsel without fear that those words will be used against them in proceedings.
Waiver Risk
Sharing a privileged email or memo with a third party can result in the loss of protection for that entire subject. The waiver risk of legal professional privilege is a constant concern for founders who might accidentally forward legal advice to an investor or a consultant. Once the secrecy is broken, the opposing side in a lawsuit can demand access to all related documents.
Purpose Test
Not every email to a lawyer is protected, as the primary goal of the exchange must be legal guidance rather than business strategy.
Log Maintenance
Keeping a clear list of all documents withheld from discovery is a requirement in modern litigation. The log maintenance of legal professional privilege involves describing each record enough to show the protection applies without revealing the secret content. This record must include the date, the sender, the recipient and the specific legal purpose of the communication.
Maintaining this log correctly prevents the arbiter from ordering the production of the documents due to a lack of detail.