The digital age has rendered formal memoranda explicitly requesting or reflecting legal advice nearly obsolete. Instead, employees and counsel send and receive hundreds or thousands of informal e-mails that implicitly request or reflect legal advice. The result is a corresponding increase in the volume of documents withheld based on the attorney-client privilege during litigation. Unfortunately, courts have reacted to the increase in privilege claims by increasingly raising the bar required to establish the privilege.

Drug and medical device companies, as well as their litigation counsel, are wellpositioned to shape the changing landscape of the attorney-client privilege. With minor adjustments to how employees communicate with counsel, to how privileged communications are presented during litigation, and to how arguments about privilege are made to the court, companies can protect the privilege and help to reverse its recent erosion.

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