Attorney-Client Privilege and Work Product Immunity

Pages125-163
125
CHAPTER VII
ATTORNEY-CLIENT PRIVILEGE AND
WORK PRODUCT IMMUNITY
The attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law.1 It “serves the
function of promoting full and frank communications between attorneys
and their clients. It thereby encourages observance of the law and aids in
the administration of justice.”2 By contrast, the work-product doctrine, a
direct descendant of the privilege, shields an attorney’s work prepared in
connection with pending or anticipated litigation. Both the attorney-client
privilege and the work-product doctrine have the primary effect of
protecting the privacy of an attorney’s dealings with and on behalf of a
client. This chapter reviews the protections the attorney-client privilege
and work-product doctrine accord to various types of information
common to antitrust litigation.3
A. The Attorney-Client Privilege in Antitrust Litigation
1. Which Law Governs?
Federal Rule of Evidence 501 provides that “principles of the
common law as they may be interpreted by the courts of the United States
in light of reason and experience” govern questions of privilege in the
federal courts. The Rule further provides that when state law provides the
rule of decision in a civil case brought in federal court, questions of
privilege are to be determined in accordance with state law.4
1. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
2. CFTC v. Weintraub, 471 U.S. 343, 348 (1985).
3. For more detailed treatments of the attorney-client and work product
privileges, see generally ABA SECTION OF LITIGATION, THE
ATTORNEY-CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE (5th
ed. 2007); ABA TORT TRIAL & INSURANCE PRACTICE SECTION, THE
ATTORNEY-CLIENT PRIVILEGE IN CIVIL LITIGATION (4th ed. 2008).
4. FED. R. EVID. 501.
126 Antitrust Discovery Handbook
a. Federal Law Questions
In civil suits where federal subject matter jurisdiction is based on a
cause of action arising under the Constitution, laws, or treaties of the
United States, courts have consistently held that Rule 501 requires the
application of federal law on attorney-client privilege.5 Thus, the federal
law of privilege applies to suits in which the rule of decision is based on
federal antitrust law.6
b. State Law Questions
State privilege law generally controls when state law (e.g., state
antitrust statutes) provides the rule of decision. In the event that state
antitrust causes of action are intermingled with federal causes in one suit,
federal law usually controls.7
c. Foreign Interpretations of the Attorney-Client Privilege
Under certain circumstances, federal courts will apply principles of
comity and defer to a foreign nation’s attorney-client privilege rules, so
long as those rules do not violate the public policy of the forum. Such
recognition will occur only in extremely narrow circumstances, however,
given the disfavored status of evidentiary privileges, and has not occurred
in antitrust settings.8
5. See, e.g., United States v. Hodgson, 492 F.2d 1175, 1177 (10th Cir. 1974);
United States v. Finley, 434 F.2d 596, 597 (5th Cir. 1970); Garner v.
Wolfinbarger, 430 F.2d 1093, 1098-1100 (5th Cir. 1970); Colton v. United
States, 306 F.2d 633, 636 (2d Cir. 1962); United States v. Schmidt, 343 F.
Supp. 444, 446 (M.D. Pa. 1972), opinion supplemented, 360 F. Supp. 339
(M.D. Pa. 1973); United States v. Threlkeld, 241 F. Supp. 324, 326 (W.D.
Tenn. 1965); Valente v. Pepsico, 68 F.R.D. 361, 366 (D. Del. 1975); J.P.
Foley & Co. v. Vanderbilt, 65 F.R.D. 523, 526 (S.D.N.Y. 1974).
6. Suburban Sew ‘N Sweep v. Swiss-Bernina, 91 F.R.D. 254, 257 (N.D. Ill.
1981).
7. See, e.g., Hancock v. Hobbs, 967 F.2d 462, 46667 (11th Cir. 1992); von
Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); Wm.
T. Thompson Co. v. Gen. Nutrition Corp., 671 F.2d 100, 104 (3d Cir.
1982).
8. Courts regularly consult foreign law for purposes of applying the
attorney-client privilege to communications with foreign patent agents.
The majority view is that federal courts will give comity to foreign statutes
Attorney-Client Privilege and Work Product Immunity 127
2. Basics of the Privilege
a. The Privilege in Federal Court
In most jurisdictions, the attorney-client privilege is absolute and,
unlike the protection afforded by the work-product doctrine, cannot be
avoided merely by showing that the party seeking the materials claimed to
be protected has a “substantial need” for them. Like all privileges,
however, the attorney-client privilege interferes with the truth-seeking
mission of the legal process, and is strictly construed.9 Thus, the party
invoking the privilege bears the burden of establishing the essential
elements of the privilege.10
To invoke the attorney-client privilege, a party must demonstrate:
(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made (a) is a member of
the bar of a court or his subordinate and (b) is acting as a lawyer in
connection with the communication; (3) the communication relates to a
fact of which the lawyer was informed (a) by his client (b) without the
presence of strangers (c) for the purpose of securing primarily either (i) an
governing the availability of privilege for communications with patent
agents, so long as the communications relate solely to activities outside the
United States. However, when the patent agent’s communications involve
persons and activities related to the United States—those that “touch base”
with the United States—the courts will apply the applicable domestic law.
See, e.g., Chubb Integrated Sys. Ltd. v. Nat’l Bank of Wash., 103 F.R.D.
52 (D.D.C. 1984); see also Golden Trade, S.r.L. v. Lee Apparel Co., 143
F.R.D. 514 (S.D.N.Y. 1992).
9. See In re Allen, 106 F.3d 582, 600 (4th Cir. 1997); Westinghouse Elec.
Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991)
(citing cases); Weil v. Inv./Indicators, Research & Mgmt., 647 F.2d 18, 24
(9th Cir. 1981); Diversified Indus. v. Meredith, 572 F.2d 596, 602 (8th Cir.
1977) (citing cases), disapproved of by United States v. Mass. Inst. of
Tech., 957 F. Supp. 301 (D. Mass. 1997); Radiant Burners v. American
Gas Ass’n, 320 F.2d 314, 323 (7th Cir. 1963).
10. See United States v. Construction Prods. Research, 73 F.3d 464, 473 (2d
Cir. 1996); von Bulow, 811 F.2d at 146; In re Grand Jury Empanelled Feb.
14, 1978, 603 F.2d 469, 474 (3d Cir. 1979); United States v. Landof, 591
F.2d 36, 38 (9th Cir. 1978); Peat, Marwick, Mitchell & Co. v. West, 748
F.2d 540, 542 (10th Cir. 1984); In re Grand Jury Subpoena Duces Tecum,
697 F.2d 277 (10th Cir. 1983).

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