TheCorporateCounsel.net

For me, the one unbending rule of corporate board and committee meetings has always been that the minutes should be the definitive record of the actions taken at them, so I have been dismayed to learn that some companies have opted to record video board meetings held during the pandemic. This Bryan Cave blog discusses the privilege, consent and privacy issues involved in recording board and other corporate meetings.  This excerpt reviews the privilege issues that can arise when a company records its board meetings:

Recorded video conferences could be subject to discovery in the litigation context. Board discussions are not inherently privileged, and thus board members who become witnesses may, under some circumstances, be asked about what they discussed at a meeting. But a recording of the meeting is likely to provide a fuller account than participants’ memories or written minutes, and so may yield more powerful evidence. Further, to the extent all or part of a meeting is subject to the attorney-client privilege or other confidentiality provision, the existence of a recording that can be distributed raises the risk of waiver through sharing of the document with parties outside the scope of the privilege.

I don’t care how well-functioning your board is – I guarantee you that a plaintiff’s lawyer would consider an unedited recording of an entire board meeting to be an absolute gold mine. So, if you’re recording these meetings, expect those recordings to be included in a books & records request from a plaintiff’s lawyer on a fishing expedition for derivative claims.

– John Jenkins