Todd Presnell employs his significant experience in studying, analyzing, and applying evidentiary privileges for clients and as a court-appointed Special Master to decide privilege-related disputes. He counsels and advises in-house legal departments on establishing and protecting the corporate attorney-client privilege, consults with trial teams on discovery issues and motion practice regarding privilege-related objections, and leads and advises internal investigations.
Todd is the lead author of the new legal treatise Privileges and Protections: Tennessee and Sixth Circuit Law (Matthew Bender & Co. 2024), a 700+ page examination of each evidentiary privilege recognized under Tennessee law and federal law with a focus on Sixth Circuit decisions. The treatise explores all privilege topics, ranging from the attorney-client privilege to the political-vote privilege to the peer-review privilege to the clergy-communicant privilege. A former Tennessee Supreme Court justice noted that, “With the publication of Privileges and Protections: Tennessee and Sixth Circuit Law, the bench and bar now have a single, authoritative point of entry into the workings of evidentiary privileges.”
Todd is the sole creator and author of the popular legal blog Presnell on Privileges, which the ABA Journal previously named to its Top 100 Blawg list. He also publishes a regular column, Privilege Place, in Today’s General Counsel magazine and has otherwise published over 40 articles on privilege-related issues, most recently as a co-author of the peer-reviewed article The Sedona Conference Commentary on Cross-Border Privilege Issues, 23 Sedona Conf. J. 475 (2022). Courts have cited to his publications in opinions, and legal commentators have cited him in several bar journals and law reviews, including an opinion in the U.S. District Court for the Northern District of Illinois, the ABA’s Business Law Today, American Criminal Law Review, Florida State University Law Review, Georgetown Journal of Legal Ethics, George Washington Law Review, Massachusetts Law Review, Memphis Law Review, Miami Law Review, Richmond Journal of Law & Technology, South Carolina Journal of International Law and Business, Tennessee Law Review, Texas Journal of Business Law, and the UC Davis Law Review.
Todd is a frequent speaker, lecturer, and trainer on privilege issues and has given over 100 legal-education presentations or client-focused privilege training sessions, including major conferences of the Association of Corporate Counsel, the American Health Lawyers Association, the Sedona Conference, and the Federation of Defense and Corporate Counsel. He has been interviewed and quoted on privilege issues by The Wall Street Journal, Politico, Bloomberg news, MSNBC’s The Katie Phang Show, and various legal-news outlets.
Todd served as lead appellate counsel in an interlocutory appeal that resulted in the Tennessee Court of Appeals issuing an influential opinion that amplified the common-interest privilege and detailed the scope and contours of the attorney-client privilege (Boyd v. Comdata Network Systems, Inc., 88 S.W.3d 203 (Tenn. Ct. App. 2002)).
He served as lead appellate counsel for the International Association of Defense Counsel and the Association of Corporate Counsel, as amicus parties, in a case where the Texas Supreme Court refenced Todd’s brief in upholding the attorney-client privilege for communications between a corporate entity’s lawyer and its employee–expert (In re City of Dickinson, 568 S.W.3d 642 (Tex. 2019)). And he was lead appellate counsel for DRI’s Center for Law and Public Policy, as amicus party, before the United States Supreme Court in a case presenting the question of the corporate attorney-client privilege’s scope for dual-purpose communications (In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021), cert. granted, 143 S. Ct. 80 (2022), cert. dismissed, 143 S. Ct. 543 (2023)).
Federal courts have appointed Todd to serve as a Special Master to consider and decide privilege-related discovery disputes. And several legal departments of corporate entities, ranging from Fortune 100 companies to major hospital systems to large privately held companies to universities have retained Todd to provide counseling on discrete privilege issues, establish privilege-related protocols, and conduct general privilege training for their lawyers and non-lawyer managerial employees.
Sample privilege-related consulting engagements include advising a corporate entity on privilege issues arising in a Department of Justice investigation; providing key privilege consulting and briefing with criminal trial counsel to obtain dismissal of an indictment for irregularities by the government’s filter team; establishing privilege protocols and standards for a large publicly traded company’s internal audit preparation; working with a Fortune 100 company’s legal department to create standards and protocols for internal investigations; training the legal department of a large hospital system on privilege protections for communicating across related entities; and conducting privileged internal investigations.