Disclosure of Protected Information to Advisory Board Waives Privilege

The court denied plaintiff's motion for a determination that it did not waive privilege by disclosing protected material to its advisory board which was not a formal board of directors and was not paid or employed by plaintiff. "This at bottom is an argument that, for purposes of the attorney-client privilege, the advisory board should be treated as the functional equivalent of a formal board of directors. However, [plaintiff] ignores that this 'functional equivalent' test has never been adopted by the Seventh Circuit, and has been treated skeptically by trial courts in this district. . . . [E]ven if we were to apply the functional equivalent test . . . we would find that [plaintiff] waived the privilege when it disclosed privileged information to its 'advisory board.'. . . [Plaintiff's] submissions fail to show that that [its] working relationship [with the advisors] was on matters 'critical to the company's position in litigation.'”

BSP Software LLC v. Motio, Inc., 1-12-cv-02100 (ILND July 9, 2013, Order) (Schenkier, J.).