Evolution and the Discoverability of In-House Counsel Communications

Abstract

This article tracks a keynote speech the author gave at the 2017 conference of the Italian Arbitration Association, which was co-organized by the Italian Forum for Arbitration and ADR. Privilege rules evolve as a function of the threat parties face from discovery. In common law jurisdictions where the threat is high, in-house counsel communications are generally privileged. In civil law jurisdictions where the threat is low, they generally are not. In determining whether in-house communications are discoverable in international arbitration, arbitrators should avoid getting bogged down in questions of applicable law and instead figure out what makes sense – what’s fair. Provided the arbitrator has not lost his fairness instinct, he should manage to get to the right result. Still, there are some basic steps a company can take to protect in-house counsel communications from discovery, just in case.