Recently, we presented a program at a well-known analytics conference and set up an informational booth to meet attendees. Several attendees, most of whom were data scientists, approached our booth with inquisitive looks on their faces and asked, “Why is a law firm at an analytics conference?” Good question.
We explained that Jackson Lewis, as a leading workplace law firm, started a data analytics group dedicated to helping employers manage their workplaces using data–driven solutions. Our team is made up of a multidisciplinary team of lawyers who have long advocated on behalf of our clients using data analytics as well as data scientists and statisticians who help our clients manage their workplaces by leveraging the data they already maintain. Combining our data analytics capabilities with our collective knowledge of workplace law, we are well-equipped to provide clients with industry leading representation. These services include advice and counsel around the proper design and implementation of workplace analytics platforms. Oh, and we possess the ability to cloak analyses in privilege and mitigate the risk of disclosure. The inquisitive look then turns to interest – tell me more.
Attorney-client privilege generally applies to communications between an attorney and a client concerning legal advice. The privilege generally does not apply to underlying facts or data. So, while the privilege may apply to the analyses, it would not apply to the underlying data. Without an attorney present, the communications are not subject to privilege. While the privilege is maximized using outside counsel, there are intermediate levels of possible protection when in-house attorneys are involved. So, why does it matter?
It matters because modern database systems allow employers to maintain a treasure trove of data that may be retrieved through a few simple keystrokes. While this information can prove incredibly valuable to employers trying to optimize operations, streamline hiring, and assess employee engagement, etc., these data can be fodder for a discrimination claim. Plaintiffs and enforcement agencies increasingly are asking for copies of analyses as part of suits and investigations. Additionally, shareholders and “activist investors” may demand publication of different data points about a company – e.g., diversity and inclusion statistics. Especially in the time leading up to litigation, possessing the ability to perform analyses while maximizing the protections against disclosure is incredibly powerful.
Yes, that was a good question.