IP due diligence presents challenging privilege and confidentiality questions arising from the communications between buyer and seller, mainly before the deal is signed but also in the transition period after the deal is signed.

The fast-paced speed with which deals are often concluded also complicates the issue, but parties who inadvertently or erroneously waive privilege or share confidential information for the sake of enticing a buyer may face significant consequences in the future, especially if the deal ultimately falls through and non-protected communications later become discoverable. In this case study, the speakers will take you through the privilege and confidentiality perils in both pre- and post-acquisition.

• Defining attorney-client privilege, confidential information, trade secrets, the work-product doctrine, and the exception: the common interest doctrine
• Contrasting cases where the common interest doctrine was or was not upheld by the court
• Reviewing all types of communications (emails, memos, powerpoint slides, counsel opinions, etc) and analyzing how and when transmission of same can be considered a waiver of privilege or confidentiality
• The importance of discussing and establishing clear procedures at the outset
• How will confidential information be used, who will have access to it, and what will be done with the information upon completion of the due diligence?
• Considering confidentiality and non-disclosure agreements
• Advising business partners regarding what they can/cannot do with the confidential information obtained.
• Unpacking the possibility of breaches in the transition period after the deal is signed
• To whom is the duty of confidentiality owed in the transition period?
• How to maintain confidentiality with respect to Know-How
• Considerations when drafting confidentiality agreements and obligations regarding term and disclosure