Attorney-client privilege

The elements are narrower than the reputation: a communication, made in confidence, between privilege-holder and counsel, for the purpose of legal advice. The privilege belongs to the client, survives the representation (and, famously, the client’s death), and protects the communication — not the underlying facts, which remain discoverable.

Why it matters in practice

Most privilege fights are about the edges. Copying a lawyer on a business email does not privilege it; advice that is primarily commercial rather than legal is not covered; and the presence of third parties can defeat confidentiality. In corporate practice the question of who is the client — and which employees’ communications qualify — runs through Upjohn v. United States. Waiver is the other battlefield: voluntary disclosure to outsiders, putting the advice “at issue,” or the crime-fraud exception can all strip protection, and inadvertent production in discovery triggers the clawback machinery of FRE 502.

Operationally, privilege is a discovery-review problem: every production requires identifying privileged material, logging it, and defending the log’s entries.

In the fact record

Privilege review runs alongside fact work, not after it. A record that tracks each document’s authors, recipients, and lineage supplies the metadata a defensible privilege log is built from — and flags the forwarded “privileged” thread whose confidentiality quietly died.