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Nonprofit managers often come together to evaluate what happened and how response went after a major incident or crisis. Though the information sharing is important for the organization to improve, it might not be information that leadership would want disseminated outside of themselves and counsel. During their presentation, “Everyone’s a Critic: Conducting an After Action Review without Alienating the Artists” at Risk Summit 2017 in Philadelphia, Pa., Ashden Fein, associate, and Marialuisa Gallozzi, partner, at Covington & Burlington LLP discussed how to go about protecting information shared during After Action Reviews (AARs).
AARs should be kept strictly confidential unless management decides to share recommendations. The speakers noted the difference between confidentiality and the more protective legal privilege. Legal privilege can refer to attorney client privilege, which only applies to legal assistance and does not apply for communications with individual organizational employees, or work product doctrine, which refers to materials prepared by an attorney in the course of legal representation. Work product doctrine is procedural and can be overcome by the opposing party showing “substantial need” for the material.
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