Reviewing Document Production for Privilege-part I
| Publication year | 2013 |
| Pages | 115 |
Young Lawyers Division
Reviewing Document Production for Privilege-Part I
BY Robyn L. Wille.
The CBA Young Lawyers Division Department comprises practical articles and essays of interest especially to novice attorneys. Suggestions for article topics or final draft manuscripts may be sent to Coordinating Editor Christopher D. Bryan-(970) 947-1936, cbryan@garfieldhecht.com.
Almost every litigation attorney, in the course of his or her career, will need to review a client's documents before producing them to another party, and will need to remove privileged documents from that production. This is known as conducting a privilege review. This practice has changed greatly in recent years due to the onset of technological advances in document retention, review, and production.
This two-part article discusses different types of privileges and provides young attorneys a guide to conducting a privilege review. Part I focuses on the mechanics of reviewing documents for potential privileges and preparing a privilege log. Part II, which will print in the September issue of The Colorado Lawyer, explores what happens when a privileged document is inadvertently produced by the reviewing attorney and how to address the inadvertent production.
First Steps
When a client has been sued, or when a client has a dispute with another person or entity that may lead to litigation, two of the first steps attorneys should take are:
1. Send the client a litigation hold letter, instructing the client to retain all documentation relating to the dispute.
2. Collect copies of all of the client's documentation and communications regarding the issues relevant to the dispute.
There are numerous methods by which the attorney can collect copies of the client's documentation. Given the trend toward electronic discovery, however, the attorney should inform the client that he or she will need both hard copies of documents in the client's file and native-format copies of all the documentation stored by the client in programs such as Microsoft Word, Outlook, and Excel.[1]
Privilege Review
Privileged information is protected from disclosure and discovery.[2] Under Colorado's civil procedure rules, "parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party."[3] If a party withholds information during discovery, that party must expressly make a claim of privilege for each document withheld and must describe the nature of the document withheld to enable the other parties to evaluate the claim of privilege.[4] It is important to identify the applicable privileges because disclosure of privileged material can, under certain circumstances, constitute a waiver of the privilege. Sometimes, it is difficult to determine what information is privileged and how to identify that information in a privilege log. Therefore, it is important that attorneys fully understand various privileges and the scope of their applicability.
How to Know Whether it is Privileged
When conducting a privilege review, attorneys should be aware of the types of privileges applicable in their state.[5] In Colorado, most privileges are statutory. CRS § 13-90-107 identifies the majority of the state-law privileges and the exceptions thereto. However, some privileges are found in Colorado common law. Following is a brief discussion of a number of the privileges most frequently applied in civil cases. This certainly is no substitute for reviewing and analyzing the relevant statutory privileges, including those found in CRS § 13-90-107 and Colorado case law.
Attorney-Client Privilege
The attorney-client privilege, which is complicated, is arguably the most important privilege to apply. CRS § 13-90-107(l)(b) provides as follows:
An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.
A primary purpose of the attorney-client privilege is to foster open and honest communications between clients and their attorneys, which furthers the attorney's ability to serve the client's best interests.[6] Colorado state courts have consistently held that the attorney-client privilege must be strictly construed, "because it obstructs the rightful search for truth."[7] It is well settled in Colorado that the attorney-client privilege is
established by the act of a client seeking professional advice from a lawyer and extends only to confidential matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations.[8]
At first glance, this seems straightforward: simply exclude from production the correspondence between the client and the attorney and all documents prepared by the attorney that are not sent to third parties. However, just because an attorney is included in a communication does not necessarily mean that the communication is automatically privileged; rather, the communication must have been made for the purpose of securing legal advice.[9] The underlying facts in any privileged communication-as well as the form, title, and subject matter-are not privileged.[10] Further, an attorney's billing records are not automatically privileged and are discoverable unless specific entries contain privileged communications, in which case the privileged information should be redacted.[11]
The communication also must have been made with the intent that it would remain confidential. Information conveyed to or from an attorney with the understanding that it is to be conveyed to a third party is not privileged.[12] Also, a communication is not subject to the attorney-client privilege if it is made in the presence of a third person to whom the privilege does not extend.[13] For example, the presence of a third person during a conference between the attorney and a client "ordinarily destroys the confidentiality required to assert the attorney-client privilege."[14]
Some third parties, such as independent contractors, can be included within the scope of the privilege.[15] The factors for determining when the attorney-client privilege will protect communications with independent contractors are set forth in the Colorado Supreme Court's decision in Alliance Construction Solutions, Inc. v. Dep't of Corrections.[16] The court in Alliance ruled that to receive the protection of the attorney-client privilege for communications with the independent contractor:
1. "[T]he information-giver [or receiver] must be an employee, agent, or independent contractor with a significant relationship not only to the [employer] but also to the transaction that is the subject of the [employer's] need for legal services."
2. "[T]he communication was made for the purpose of seeking or providing legal assistance."
3. "[T]he subject matter of the communication was within the scope of the duties provided to the entity by its employee, agent, or independent contractor."
4. "[T]he communication was treated as confidential and only disseminated to those persons with a specific need to know its contents."[17]
The party asserting the privilege will bear the burden of demonstrating the application of all four elements of the Alliance test.[18]
It can be even more difficult to apply the attorney-client privilege in the corporate setting. Although the corporation is the client, corporations can act only through agents and employees.[19] When conducting a privilege review, attorneys should be mindful that not all communications between the attorney and corporate employees are privileged; generally, the attorney-client privilege in the corporate setting is held only by "the corporation's officers and agents who play a substantial role in directing actions in response to legal advice."[20]
The attorney-client privilege also will protect
communications with lower-level employees when: (1) the communications are made by corporate employees, (2) to counsel for the corporation acting as such, (3) at the direction of corporate superiors, and (4) for the purpose of seeking or obtaining legal advice from counsel.[21]
Attorneys should be sure to inform lower-level employees that the attorney represents the corporation, not the employees, and that the attorney-client privilege will not necessarily protect their communications.
The attorney-client privilege will apply on a document-by-document basis, so each document should be reviewed to ensure that it relates to a confidential communication between the attorney and the client, made for the purpose of securing legal advice. The inclination to err on the side of caution to avoid inadvertently producing privileged documents should be balanced with the ethical obligations to ensure the attorney has a sound basis for a claim of privilege and is not improperly withholding documents.
Common Interest Privilege
A client may be involved in negotiations with another person or entity about a potential business deal, such as a joint venture or merger. A client also may plan to engage in a joint defense of a matter with a co-defendant. The question arises as to whether attorneys can disclose information to another party to the deal or the case without waiving the attorney-client privilege. The answer, as it so commonly is in this profession, is: "It depends."
The common interest privilege is not an independent basis for privilege; it is an exception to the general rule that the attorney-client privilege is waived when...
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