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Pens in the Board Room

By Sean T. Prosser and Amy M. Roebuck

“But these are my personal notes ….” Virtually every litigator has heard this plea from an executive responding to discovery. It is an almost reflexive reaction stemming from the popular myth that “personal” somehow equals “protected,” and often comes from the most sophisticated of corporate directors and high-level management. Too often lawyers hear executives boast about their note-taking prowess while pointing to rows and rows of historical notebooks that they assembled over the years. Many executives learn too late that very little of their “personal” board meeting notes are privileged, and the privilege that might attach to some portions does not even belong to them. More and more frequently in this post-Enron environment, privileged materials are being disclosed by the owner of the privilege ' the corporation ' due to stricter standards for company cooperation in government investigations, particularly in civil investigations by the U.S. Securities and Exchange Commission (SEC) and criminal inquiries by the U.S. Department of Justice (DOJ).

The likely discoverability of personal meeting notes can create serious and unexpected litigation exposure. In response to this risk, directors are becoming increasingly reluctant to take any notes at all during meetings. This zero-sum response, however, may not be the best response for directors who want to personally document their diligence or who simply take notes out of personal preference and habit. Counsel can help satisfy these goals while also minimizing unnecessary litigation risks by creating and enforcing a controlled note-taking and Board minute policy for Board meetings.

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