Are Communications With Contractors Privileged?

Burns & Levinson attorney Shep Davidson considers the question of what happens when an in-house attorney communicates with an independent contractor or some other non-employee who is working closely with the company. An important case addressing this scenario comes from the 8th Circuit. In re Bieter Company essentially establishes a “functional equivalent” standard: If the communication is with someone who is the functional equivalent of an employee, it’s privileged. But as a recent Massachusetts case demonstrates, there may be a high bar to establishing functional equivalency.