The Legal Department

Crumbs, Silver Bullets & Google Docs: How To Protect The Attorney-Client Privilege In The Legal Department With Diana Feinstein Of Gibson Dunn & Crutcher

LEGD 3 | Attorney-Client Privilege

As digital communications become more advanced and complicated, protecting confidential information and documents also becomes a more complex process to accomplish. In this in-house fundamentals episode, litigation partner Diana Feinstein of Gibson Dunn & Crutcher breaks down what you need to know to protect the attorney-client privilege in your in-house Legal Department. She shares concrete tips on setting up the stage for confidential communications, especially when outside counsel is not directly involved.

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Crumbs, Silver Bullets & Google Docs: How To Protect The Attorney-Client Privilege In The Legal Department With Diana Feinstein Of Gibson Dunn & Crutcher

I’m excited to speak with Diana Feinstein, a litigation partner at Gibson, Dunn & Crutcher in Los Angeles. She gives us some concrete tips to protect the attorney-client privilege as an in-house attorney. We talk about email etiquette, hygiene for maintaining documents, conducting investigations, and what to do if you have a combined legal and business role. This is a meaty episode, so break out your legal pad.

LEGD 3 | Attorney-Client Privilege

Welcome to the show. I’m excited to have my guest, Diana Feinstein, who is a Litigation and White-Collar Partner at Gibson, Dunn & Crutcher. Diana and I are going to have a great, interesting conversation about what I call in-house fundamentals on the topic of in-house privilege. Diana, thanks for joining me.

Thank you for having me talk about this extremely important and sometimes boring but hope to make it a super interesting topic.

It’s boring until it’s not, right?

Yes. That is exactly true.

That’s where I’d like to kick off. You’re maybe one of the few people who has litigated a lot of issues around in-house privilege. I’m out and about in the world with in-house counsel quite a bit. There’s a varying degree of appreciation among my colleagues about the privilege and the special situation that we’re in as in-house attorneys. I’m wondering. Can you set the table on some fundamental basics of how the privilege works for in-house lawyers?

Sure. One of the most fundamental things to remember when you’re an in-house lawyer, which is also an ethical issue, is that the client is the company. Your client is the company. Your client is not the individual employees that make up the company. Your provision of legal advice intended to be confidential qualifies as a privilege in a nutshell.

There’s the fun corollary, which is the work product. It reflects the attorney’s mental impression strategy typically in anticipation of litigation. There’s a little caveat there. If you are in a California state law case, it doesn’t need to be an anticipation of litigation. You never know where you’re going to be, so you should not assume that’s the case. That would apply to cover not just an attorney’s mental impressions directly from the attorney but also people working at the direction of an attorney in furtherance of a legal goal. That is an area that gets interesting for in-house lawyers who are working with all types of people.

On all types of things, right?

Yes. Legal and non-legal. That’s going to be a big theme we’re going to keep coming back to. I wear a legal hat, but I also may wear a business hat. Ultimately, it is the fundamentals. You learned it on the bar but it’s always important to remember the provision or solicitation of legal advice to or from a client.

As lawyers, in-house or outside, we all can agree that email is maybe the worst thing that was ever invented in a litigation context, but it is the currency in much of Corporate America and elsewhere for getting things done. Those emails start off as maybe an inquiry. You don’t know necessarily that it is legal advice that’s being solicited. Somebody might have a quick business question. How can in-house counsel set up or set the stage for those communications to ensure that you get maximum privilege protection?

One thing I’ll keep saying and I say every time I talk on this topic is there are ways to increase the likelihood that you’ll have privileged protection, but there is no silver bullet. There is no guarantee. With that caveat, the best advice I can give in-house counsel and then for them to carry on to their teams, because the lawyers tend to be better at this than the business folks, is to take little steps that might seem frustrating and annoying at first, but if they become part of the habit, they will pay dividends later in case there are a lawsuit and privilege issues.

Lawyers know how to take little steps that might seem frustrating and annoying at first, but if they become part of the habit, they will pay dividends later in case if there's a lawsuit. Click To Tweet

The best advice I can give is to drop in certain things in those communications that would signal to somebody who picked up the paper, for example, if shown to a judge on camera if there’s a privilege dispute or that indicates, “There’s a lawyer on this. The lawyer is on this to provide or confirm a particular legal issue.” Also, things as simple as make sure in your signature line that it references that you are in the legal department. I have some clients where it’s even in the email that shows up at the top. It’s not just their signature, but it’ll say, “Stacy Bratcher,” where you are, and then parenthesis, “Legal Department.”

That’s why you see that sometimes. Is that deliberate?

Yes. A lot of my banking clients will have that. It’s like where they are in the org. It helps also outside counsel to know who is here, importantly legal but also other people. That will help you for things like paralegals, people who are the assistant to the general counsel. Maybe we’ll get into this. Those people can’t create privileged communication, but they certainly shouldn’t break it. They can also be doing stuff at the direction of counsel that would involve work product.

When you have those little cues or crumbs for the judge, they’re more likely if it’s obvious. Is that what you’re saying? A paralegal that says, “In General Counsel’s Office,” or, “Legal Department,” and then the email at the top indicating that is a good hallmark for a judge?

Yes. That’s a perfect way to say it. Crumbs. I love that. Those are easy. You don’t even have to think. They’re signature lines, or if your IT department is able to build that into your email address, that’s great. The other and even more important step is dropping legal cue words. I’m not suggesting this to do it in a disingenuous way. When you’re providing legal advice, make it clear if it’s not obvious.

“From a legal perspective”, go on. You can be like, “I’m glad you brought in legal.” For your business teams, when you are emailing me and maybe several other business team members but you are including me because you need my legal advice that’s why you’ve included me, specifically calling out legal on that email. It could be, “Making sure we get legal involved and their opinions as well as blah, blah, blah.”

I know that it will not always happen in practice, but it is those little things that make all the difference. Those rarely, if ever get challenged, they make it easy for your outside counsel to know where to mark things. I should have said the obvious, which are privileged and confidential. Those kinds of disclaimers are other crumbs you should put in there. There’s the other side of that, which is you don’t want to overdo that. You don’t want people to get a false sense of security and think, “As long as I copy a lawyer or I put Privilege and Confidential on, I can say whatever I want. It’s covered.” We have seen overuse.

Not without revealing client confidences or anything, but I’d like to hear from your real experience how judges reasoned this. What have been factors in cases that have made the judges go either way on privilege?

First and foremost is the face of a document. That is the easiest way.

Make it an easy button for the judge.

Make it easy for them. You could serve it up. When I’m overseeing more junior lawyers doing privilege reviews and logs, I always say to them, “If you are turning yourself into a pretzel to make this argument about its privilege,” and we certainly have clients that ask us to do that and lawyer told me a long time ago, “Ask yourself if you’d be willing to stand up in court and make an argument about that document with a straight face. If it’s requiring all these contortions, it’s not worth it.”

This should be at anything you do but particularly with privilege, if you make a couple of bad calls and the other side sees that or the judge sees that, your credibility is shot. I have seen that happen. I’ve personally never done it, but I’ve taken over matters for other people sometimes. We’ve seen calls made on the other side.

You got to dig out of the hole.

Ideally, it’s all right there in the document and you can argue from that. The other thing that often will happen if there’s motion practice related to privilege disputes is there need to be declarations. If you are the attorney on the email or the individual soliciting the legal advice, often, to bolster your motion, the judge is going to expect a declaration. It can’t be boilerplate.

How do they do that without intruding into the privilege? What did that look like?

I’ll give you a publicly available example because it’s on the docket. We had a client where one of the challenges on the other side was related to the client’s communications with an outside PR firm that was brought in for crisis management issues. That is an area ripe for whether or not it’s legal or business. The law there is mixed.

We were successful in having the judge find that the communications with that PR firm and the in-house and outside legal firms working with that PR firm were privileged because we had the general counsel of a client put in a declaration explaining that she had retained that PR firm to assist in a provision of legal advice. That was a practice of that client. In certain circumstances, they would bring on PR firms to assist the legal team in the provision of legal advice. There is never a silver bullet. There’s law that goes both ways on this. That was convincing to the judge. She noted it in her decision. The other is having a business person say, “These are areas that are not within my expertise. It is our policy here to solicit in-house legal counsel on these things,” to wrap it and give it a little bit more context.

I’ve spoken to some other GC colleagues. In my career, I have had other functions outside of legal. They’re usually legal adjacent such as risk management, compliance, that sort of thing. I even have a colleague at another big company who has Business Development in their title, which I thought was cutting-edge. In those circumstances, one outside lawyer gave me advice, “You should have separate emails for when you’re doing.” That’d be great, but how am I going to check five different email accounts? How does the potpourri of functions under a GC factor into this?

It’s difficult. Bless the outside counsel whoever told you that. It’s a good idea.

It’s great advice, but it’s not practical.

The other thing I sometimes will tell people to do, which is a little bit more practical than that one, but I appreciate not that practical, is to use the same email account but try not to mix them if it’s at all possible. Send one email on that issue and one email on the other. I appreciate that’s not probably practical in real life. The reality is that more and more, we’re seeing people wearing multiple hats. It’s very difficult. The law is mixed. This went to the Supreme Court in 2022 and they decided, “We’re not going to weigh in and decide what the test should be between business and legal advice.” That was helpful, but not really.

The best advice I can give to that is you should not take steps to try and put a gloss on something that is not legal in nature. If you can, dropping in more of those cues, it’s more likely the whole communication can get covered. We’ve had to parse sometimes of lines. There are two email accounts. There’s no way to do it other than try to lead the crumbs even within the same communication when you’re talking paralegal. The other stuff people will need to appreciate is likely going to be produced.

It’s hard. The message to in-house lawyers is to be thoughtful when you’re responding to somebody or putting advice in writing to be clear when you’re giving that legal advice.

Earlier in the conversation, you said emails are the worst thing. There may be two things that are worse. Chats. Text messages, instant messages, or Bloomberg chats are even worse than email because people talk. At least with an email, you may have a moment to think before you hit send. That is fundamental. This is what can be conveyed for in-house counsel to the business teams they’re working for.

In every litigation I’ve done over the years, there was always a handful of 3 or 4 chats, emails, or texts that make the whole case go round. They keep the case going until we can finally get it kicked, hopefully, on summary judgment or go to trial. It could come down to that. It often takes some of the business folks to have been involved sometimes in litigation to understand, “I never want to deal with this ever again.” They should share that information with their peers. It’s a lesson for all of us in general. Stop before you hit send on anything.

You gave me an idea about thinking about how to train business folks about email hygiene or chat hygiene. Fast isn’t always better because it can slow you down.

That’s a great way to put it. People think, “Anything I text is safe.” You can even have your personal text subpoenaed even if they’re not on a work phone.

Do you feel like the courts are catching up on texts? I feel like I had a case several years ago where texts were a big feature and there were challenges getting them. The carriers weren’t cooperative. I would think that technology and attitudes at the bench have changed and maybe evolved.

I came up at an interesting time when eDiscovery was becoming a thing. People weren’t texting as much. It was a huge deal to get those text messages. It was maybe a snapshot or in Bloomberg. It is not like that anymore. Companies have made tons of money inventing a technology that can quickly take out those messages and put them into a spreadsheet. There’s no way to avoid it.

The next big thing was Slack. Slack was a big thing. There are vendors that can easily extract that. We’re in the world of these Google Docs. I’ve legitimately thought about trying to invest in this all the time. From the litigation side, it’s very hard to pull them, but what’s amazing about them is you’re having those chats live in these documents. They’re amazing. You’ve got the business team, marketing team, sales team, and legal team. Everyone’s talking about them and making edits to them. It is more efficient and great.

The plaintiff’s lawyers get this, too. Clearly, I’m more of a defensive. If they can’t get every draft of that Google Doc, then what would be happening over email, they’re missing it. They’re making huge demands. They’re like, “We want every draft.” I’m working with a client. We’ve gone through 300 drafts of a single document.

In the Google Doc?

Yeah.

I know Google Docs because I have kids that have to do Google Docs. I’m a little slow in the technology. How are drafts archived, or how are they retained in a Google Doc?

The way it is is pretty much anytime somebody makes a track change for a comment or an edit, and instead of 2 people doing that, you could have 10 people at the same time doing that, that’s a new version.

Is it saved automatically?

Yes. The beauty of Google Docs, and I’m not technical in this but I’ve had enough experience trying to pull them on the backend, is you could go into GDrive, which is where your Google docs are saved, and you can go in and go to a button that says Versions. It will pop them up. It’s different when you think about how you may have an internal system and you’re working on a draft letter. When you hit Save, that’s version one. This is constant as soon as somebody does it.

The beauty of Google Docs lies in its feature that allows users to revisit and review past document versions. Click To Tweet

It’s cool though. In real-time, it will put a red box around Stacy’s comments in the new version and a blue one around Diana’s. It’s amazing to see live. It does not translate at all because of the technology to litigation. If you had tried to pull that because you want to make a good argument and use the facts or you want to avoid one, it’s a manual process.

That sounds expensive. That’s the other thing. As you’re talking, this wasn’t on the menu for this episode, but I do think email document retention is an overlay with privilege.

It is.

Is there a way to shut off the retention aversions like that?

I’m not aware of that because part of the feature is that it keeps history.

The bug is that it screws you in litigation.

Google is amazing, but these things live on forever in a way. There are all kinds of archiving systems. That’s a time for another discussion. I would love to do that, but we’d want the tech side to be on it because I don’t speak as much the tech language. The bottom line is these things are rife with issues. My advice on these Google docs or similar types of things is that if legal is being asked to weigh in on them from any kind of legal perspective, you want to be ensuring that you are dropping those crumbs again, legal perspective type stuff in your own comments. It’s helpful.

I don’t know technically, but there is a way similar to the email address where you could have it be your name and the parenthesis “legal”. Some of these docs will end up having so many people’s comments that it’s hard to find. Ultimately, it will be very difficult. I’m sure people can try this, but to withhold the whole thing because 2 lawyers weigh in with 10 other business people, we can redact.

It’s still messy. As an in-house person, I would maybe talk to the team about, “How important is that kind of collaboration? Could we get on a Zoom call and talk about it?”

For our tech clients, that is non-negotiable.

It’s a non-start.

Law firms are sometimes dinosaurs in terms of tech following the clients. Clients were starting to want us to use the documents and our systems wouldn’t allow it. There are still certain clients that won’t allow it at all, but then there are others that insist on it.

It’s all over the place.

There will be something new in a few years, but that’s the latest thing. The law is evolving and the technology is evolving.

Let’s go back to one of the core issues because regardless of the functions that general counsels have under them, typically, they’re also directing litigation, directing the investigation, and directing a team under them inside to help support that. They are even engaging outside consultants. If I give a compliance officer an instruction to go investigate something, my training was to do an investigation letter that was clear that I’m asking that person to do it at my direction as we evaluate legal risks in potential litigation, etc. Is that enough? Are there other things? Are there more modern ways to do that? What else do we need to do to make sure that the folks working under the GC are blessed with the privilege?

They’re not blessed with the privilege. We use privilege broadly for work product and privilege. That’s important to remember. Exactly what you said is still the best way to set this up. The ultimate protection is if you bring an outside counsel to help. This isn’t a plug because I’m outside counsel, but if you do, that sends the message that this clearly is happening for a legal function. Particularly in employment or compliance, that’s not always feasible.

Setting up the letter is an absolutely amazing first step. It’s similar for the consultants. You mentioned involving. It’s the same thing for them. Although they may have formal retention letters, it’s making clear that they are working at the direction of the counsel and that they are being retained or being asked to do this if it was somebody already in your org to further a legal goal to assist the general counsel or the general counsel’s office. To the extent possible, to make sure that they are copying in. I always say, “Stay close to your consultants”. Stay close to your team members that you’ve sent out to do these investigations.

When working with legal consultants, there must be a retention letter making clear that they are working at the direction of counsel. Click To Tweet

Do you have to get copied on everything?

Not as the GC.

I couldn’t separate the wheat from the chaff if that was the case.

At one extreme, yes, but I wouldn’t say at the general counsel level.

A lawyer needs to be copied on all communications that the investigator is making.

I wouldn’t say needs, but if you’re asking me what would increase the chances of coverage having litigated this very issue, yes. I want to be clear. Only lawyers can create privilege or clients speaking to lawyers asking for advice. That’s where the privilege gets created. Work product is when other people are working at your direction. That can be more.

I always thought work product was a little stronger than privilege. Am I wrong?

It’s broader. It can cover non-lawyers. The idea is supposed to be that they’re working at the direction of counsel. What they’re doing would reveal the strategies of the lawyer who’s directing them behind the scenes.

For their subject line, let’s say, should their subject line say, “Privileged, Confidential, and Work Product?”

Yes. It’s easier to throw privilege. That’s fine. Since we’re talking to lawyers, I want to be technical here. That’s fine. The best is at the direction of counsel. You are prepared at the direction of counsel. Those are things that when you go out to business folks, you need to gather information. You mentioned investigation.

Discovery responses, for example.

Exactly. You often need to go to all your business colleagues to get the information. All of that is information that you’re taking in order to do your job. You can put it on a log, give it to outside counsel, or make a legal determination. All of that work is at a minimum work product. If the lawyer is engaging in it, there could be privilege as well.

You mentioned engaging consultants through outside counsel, which I have done from time to time. You do worry about expenses. GCs with budget pressures, etc., have to be strategic about that and thoughtful about, “Is this something that we’re super worried about? Is this something that we want to lock down?” If we could have separate email accounts and outside counsel direct every investigation, we’d be in privileged land forever.

Without outside counsel, you can retain a consultant. Make sure you have an engagement letter with those magic lines of, “So-and-so, you’re being retained to assist the general counsel’s office in connection with the provision of legal advice on X matter or Y matter.” What is also important is often, you’ll have some go-to consultants who you go to that you like. You can start a new retention agreement.

Every time. That’s a good tip.

Otherwise, it starts to look like you have them on retainer. It’s different. PR firms are an area of crisis management firms that I know a lot about.

Let’s get in that, too, in a second.

That’s because the matters that we tend to work on are crisis management-type matters. People have to remember, and this isn’t all the time, if you are having or think you’re going to have that kind of matter and you need the expertise of not maybe your in-house comms department or you don’t have one and you need an outside source, those crisis moments are when people are working very quickly and urgently. Sometimes, they aren’t working with all the facts. Sometimes, put things in writing that are not fully baked. Those kinds of communications, the sausage making, if you will, are always what the plaintiffs are going to want. You want to take a lot of steps to protect them. That is something to weigh, like, “Is it worth paying the money now? We know we’re going to be fighting about this later. This is a crisis.”

It’s a vulnerability. On the topic of comms, having been through a couple of crisis situations myself, there is a legal component to that. I wonder. Since you’ve litigated this, how do judges look at attorney review of statements, etc., if it’s not the final? If they involve counsel throughout the process, is there anything else about how lawyers are involved aside from the kind of magic words and all that on the comms front?

It’s tricky because you want to try and get those under work product. That’s what you want to do. You can argue that you’re giving legal advice, but if you’re in a crisis, you’re likely anticipating litigation. You want to think about it as a work product and reflect your mental impressions. The reality is in these situations, the law is completely split but more on the side of open. They’re open to redacting, the legal. The entire draft, no.

There is one thing I should say also, we were talking about crumbs. I want to make sure I don’t miss this. This has happened in multiple cases. It makes a difference to some judges whether you put your lawyers on the to-line or the CC line. In addition to calling out words like, “Can we get legal advice on this?” or whatever, it is even as simple as addressing it to Stacy rather than addressing it to whoever. That makes a difference.

It makes a huge difference to some judges whether you put your lawyers on the email to line or the CC line. Click To Tweet

We had a judge once who made us go back and re-review. This has happened in another case as well, a US v. Google case, which is pretty well known, to rer-review what they call silent attorney emails. Attorneys are CC’d, but they don’t respond. We had to go back and look at every one of those emails and decide, “Is it truly privilege or work product? If so, how can you support that?” We then had to go look for other emails outside of that chain to say, “This was a legal function”. It was a lot of work and a lot of money.

I was going to say all this is expensive

Privilege review logs are expensive. There are ways we all try to do it efficiently, but it is expensive. Busting the privilege against somebody one way or the other can make or break a case.

I wanted to ask you. We’re talking about the defense side, but I have to imagine in your career that you’ve also tried to peers.

I was successful. It’s always a little tricky because most of what I do is on the defense side. I had a big trade secret matter recently and it was two large companies against each other. It was a free-for-all. In those circumstances, the best advice I can give to you is to make sure your house is clean because if you start throwing things over, it will come back.

Luckily, I like to think my house is always clean. Even when they make those arguments, there are important distinctions. If you were the judge, they tend to not have as much patience for that. In my experience, if you’re with a discovery referee, a special master, or something, they will sometimes be more engaged in that. They’re always trying to make it collaborative. They will be like, “What did you do there then?” You need to make it clean.

The arguments that we’ve used, it pained my soul recently because I am usually on the defense side. We’re dealing with some piercing of some internal communications that the PR firm for the plaintiff had withheld and claimed work product over internal. There’s no lawyer from the client on there. It’s just their internal communications. They also failed to log them.

That was a helpful fact.

That was the number one argument. We went after that. Unless there is evidence that the internal communications of the consultant are reflecting the legal advice or work product, truly of the lawyers who are directing their work, just their back and forth on the matter doesn’t count. We’ve done that.

I want to ask one bonus question before we get to the end. It’s about email retention. I feel like the more material there is, the more that you’re going to have on your privilege log, potentially. I feel like companies are all over the map on how long they retain email. What do you see? I’m sure you’ve got some thoughts about what’s the best practice. Let’s say legal emails or the emails in the legal department.

Even in the legal department, first and foremost, you have to determine if your client is a regulated entity because there are all kinds of data retention requirements outside of any kind of litigation or anything like that. That’s a tricky one. There is no standard. I certainly is no benchmark standard. In my experience though, the legal department’s emails could be in a company that may have everyone automatically delete it. Unless you’re on hold within a year or something, the legal departments tend to go on longer. The matters they’re on go on longer.

There’s a need to get back to that record because sometimes, litigations morph into other things. There’s a need to keep it longer. That can also be a problem. There is no one-size-fits-all. It depends on how big the organization is and how active its litigation docket is. I’m sorry. I don’t have a one-size-fits-all for people.

I know. That was a curve ball. As I’m thinking about privilege logs I’ve seen, the expense in going through eDiscovery, and then the stuff that you’ll find or not find, keeping emails for long periods of time doesn’t always seem like the best strategy.

There are some circumstances where the legal department has conducted an investigation, and then that becomes part of litigation later on. For example, it matters if that stuff is producible. That’s part of your defense if you’re going to say you did an appropriate investigation. We are talking about investigations. If you end up needing to defend what you did, like firing somebody, making a decision, or changing a policy and that becomes part of a lawsuit later, the legal emails, even the internal ones, may be put at issue. They’re coming out. Don’t think even emails from your legal colleagues on investigation issues are safe because you may need that to defend your client later on. That’s why you’d want to keep them. It’s so hard. There are these very unique circumstances. Often, legal doesn’t hold all the information. It’s the business people who have the facts.

What about a waiver? You were alluding to that. There might be situations where you do want to get it out that, “We did an investigation,” or, “We did take this seriously.” What about waiving the privilege?

It’s an extremely difficult decision. People are so scared because of the idea that it is a subject matter waiver and everything comes out. It’s a strategic decision. In some matters, it’s necessary. In employment matters, it is written pretty much in the law that if you fire somebody, you have to show you did an investigation.

Rarely have I ever had a client even with our advice agree to do it because people are so scared. Sometimes, in government investigations, they are willing to do it because it seems like the stakes are even that much higher. My practice area is split between white-collar and commercial litigation. My sweet spot is right where they intersect. Often, people will make decisions to give information to the government in an interview or in a presentation that they thought was necessary. It probably was at that time. That decision will live with that topic for any civil litigation that happens later on. You can’t pick and choose what you disclose to the government and you won’t disclose to the civil litigants.

The sentencing guidelines have language in there about waiving to privilege. A lot of government agencies force that as part of resolving matters.

Technically, the US Attorney’s Office has admonished in their manual not to require or suggest that you have to waive. I am looking at that issue for a client. It’s tough. People have an absolute visceral reaction because it can have effects for a long time.

It’s a decision that lives forever. Thank you so much. This was so interesting. I end all the conversations with more of a fun question. This GC role is fun, but it’s also tough. Throughout my career, I’ve leaned on music to get my spirits up and keep me going or before a big meeting. I have a playlist of pump-up songs. Yours, I almost feel like, would be Eye of the Tiger or something. You’ve got all these fights on your desk. Is there any music that you use to get pumped up?

This was a hard question. To be fair to all of you out there, I did get it in advance. I vetted it with many people in my life. The problem was that in some of my songs, I looked at the lyrics and said, “That’s not appropriate to say.” I don’t even realize the lyrics. It’s more of the feel of it. There’s a song called Dance Yourself Clean by LCD Sound System. I don’t know if it’s a pump-up, but it puts me in the best mood. I’m a fan of songs that start out slow, build, and then drop. That’s one of my favorites. I listened to it before our recording.

I’ll have to get the dark side from you after we’re done.

I’ll throw it out. I’ll say it. AC/DC Thunderstruck.

What’s wrong with that? That’s a pump-up song.

I thought so. When I went and looked at the lyrics, and maybe I misunderstood them, there’s a sexual tone of I’m-out-on-the-town kind of thing.

No one’s judging you. You’re good. You’re going mano a mano on the privilege.

Thank you.

Whatever it takes to win. Thank you so much. This has been great. I look forward to seeing you win all kinds of privilege motions and other things. Thanks so much.

Thanks so much.

I am Diana Feinstein. I’m a Litigation and White-Collar partner at Gibson, Dunn & Crutcher in Los Angeles. My practice is a mix of white-collar and litigation. My sweet spot is where those two things intersect in some of the biggest companies’ blowups. I like to think of myself as a cleaner-upper. A fun fact about me is as a middle schooler, I was on a game show hosted by Ryan Seacrest before he was ever anybody. It was about this new thing out there called the internet. The set was you were inside a computer and all the questions were internet framed. It was beyond cheesy. You can find it on YouTube. It’s a show called Click. That’s my fun fact.

That is amazing. Did you grow up in Los Angeles?

Yeah. I wish I had a better story.

Being on a show with Ryan Seacrest isn’t a good enough story?

The best part was this was way before he was on anything. I was 14 or 15.

This is his big break.

It was hilarious. It was about this thing called the internet that people didn’t know. There were key questions. I really wanted to be on Double Dare.

Who didn’t?

I showed that show to my kids. Recently they were not into it. My sister and I were like, “This is amazing,” and they were like, “Eh.”

They’re not so into it. It’s awesome.

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About Diana Feinstein

LEGD 3 | Attorney-Client PrivilegeDiana M. Feinstein is a partner in the Los Angeles office of Gibson, Dunn & Crutcher. She is a member of the firm’s Litigation, Class Actions, and White Collar Defense and Investigations Practice Groups. Ms. Feinstein’s practice focuses on complex litigation, including consumer class actions, securities litigation and high-value commercial litigation. She also focuses on white collar defense and investigations, including matters initiated by the Department of Justice, Securities and Exchange Commission, and Internal Revenue Service.

She has handled matters across a variety of industries, including financial services, technology, entertainment, insurance, healthcare, transportation, real estate, manufacturing, and consumer products. In light of her dual practice, Ms. Feinstein has extensive expertise in parallel proceedings, encompassing criminal, civil, and regulatory components, with an emphasis on cases in the crises arena. She also has extensive expertise in electronic discovery and forensics, which typically accompany these multifaceted, complex disputes.

Ms. Feinstein is a frequent speaker on topics such as attorney-client privilege, parallel proceedings, and electronic discovery. She received her Juris Doctor from Georgetown University Law Center in 2007. She graduated summa cum laude from the University of Pennsylvania in 2004, where she received a Bachelor of Arts in History. She is a member of the Board of the Western Center on Law & Poverty, California’s oldest and largest legal services support center.

Ms. Feinstein is admitted to practice in California and New York.

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