ACC Amicus Helps Win Third Circuit Privilege Case

A unanimous Third Circuit panel vacated the district court's production order in the BCE/Teleglobe case in a precedential opinion. ACC filed an amicus brief with the Third Circuit in this case involving BCE, Inc., who were being sued by a number of its former subsidiaries now in bankruptcy, primarily Teleglobe Communications. Teleglobe demanded access to attorney-client privileged communications between BCE and its in-house and outside counsel on the grounds that BCE's in-house counsel previously represented both the parents and subs on a variety of issues.

The Third Circuit held that BCE could not be compelled to produce documents on the ground that BCE and Teleglobe were jointly represented. The Court reasoned that Teleglobe cannot unilaterally waive a joint privilege with BCE. BCE's consent would also be required to waive the joint privilege.

The Third Circuit further held that that documents prepared by outside counsel did not lose their privileged status merely because they were funneled through in-house counsel for BCE and Teleglobe.

Relevant Documents:

• BCE v. Teleglobe Opinion

• ACC Teleglobe Amicus

• Amicus Brief of 5 Leading Canadian Public Companies

• 3d Circuit Clarifies Attorney-Client Priviege Rules for Jointly-Represented Corporate Entities, Analysis of the decision by Mitchell A. Lowenthal of Cleary Gottlieb Steen & Hamilton, LLP