Attorney-Client Privilege and Work Product-Immunity

A. Introduction
The law of privilege protects certain kinds of information from
compelled disclosure. The attorney-client privilege is the oldest of the
privileges for confidential communications known to the common law.1
The attorney-client privilege “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.”2The work-product doctrine, which is closely associated with
the attorney-client privilege, generally protects from an adversary’s
discovery requests an attorney’s work prepared in anticipation of
litigation. Both the work-product doctrine and the attorney-client
privilege 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 and work-product privileges afford
various types of information in antitrust litigation.3
B. The Attorney-Client Privilege in Antitrust Litigation Contexts
1. Which Law Governs?
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 Federal Rule of
Evidence 501 requires the application of federal law on attorney-client
1.See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citing 8
WIGMORE ON EVIDENCE §2290 (1961)).
2.Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348
3.For more detailed treatments of the attorney-client and work-product
privileges, see genera lly ABA LITIGAT ION SECTION, THE ATTORNEY-
98 Antitrust Discovery Handbook
privilege.4Thus, the federal law of privilege applies to suits in which the
rule of decision is based on federal antitrust law.5
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.6
c. Foreign-Law Constructions of the Attorney-Client Privilege
Under certain circumstances, federal courts will apply principles of
comity and give deference to a foreign nation’s constructions of attorney-
client privilege, so long as that construction does 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.7
4.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, 10981100 (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, Inc., 68 F.R.D.
361, 366 (D. Del. 1975); J.P. Foley & Co., Inc. v. Vanderbilt, 65 F.R.D.
523, 526 (S.D.N.Y. 1974); Humphries v. Pennsylvania Ry. Co., 14
F.R.D. 177, 181 (N.D. Ohio 1953).
5.Suburban Sew N Sweep, Inc. v. Swiss-Bernina, Inc., 91 F.R.D. 254, 257
(N.D. Ill. 1981).
6.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. General Nutrition Corp., Inc., 671 F.2d 100,
104 (3d Cir. 1982).
7.Courts regularly cons ult foreign law for purp oses 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 governing the availability of privilege for communic ations with
patent agents, so long as the communications relate so lely to activities
outside the United S tates. However, whe n the patent agent’s
communications involve persons and activities related to the United
States—those that “touch base” with the United States—the co urts will
apply the applicable domestic law. See, e.g., Chubb Integrated Sys. Ltd.
v. National Bank of Washington, 103 F.R.D. 52, (D.D.C. 1984); see also
Attorney-Client Privilege and Work-Product Immunity 99
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 by a showing of substantial need. Like all privileges, however,
the attorney-client privilege interferes with the truth-seeking mission of
the legal process, and is not judicially favored, but instead strictly
construed.8Thus, the party claiming the protection of attorney-client
communication bears the burden of asserting and establishing its claim of
privilege.9The privilege must be claimed properly or the asserting party
risks a waiver.
Federal Rule of Evidence 501 delimits the factors federal courts
will consider when determining the applicability of the attorney-client
privilege. Federal Rule of Evidence 501 provides that “principles of
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,
Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514 (S.D.N.Y.
8.See In re Allen, 106 F.3d 582, 600 (4th Cir. 1997) (quoting United States
v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996)); Westinghouse Elec.
Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991)
(citing cases); Weil v. Investment/Indic ators, Research & M anagement,
647 F.2d 18, 24 (9th Cir. 1981); Diversified Indus., Inc. v. Meredith, 572
F.2d 596, 602 (8th Cir. 1977) (citing cases); Radiant Burners, Inc. v.
American Gas Ass’n, 320 F.2d 314, 323 (1963) (quoting 8 WIGMORE ON
EVIDENCE §2291 (1961)).
9.See United States v. Construction Prods. Research, Inc., 73 F.3d. 464,
473 (2d Cir. 1996); von Bulow,811 F.2d at 146 (2d Cir. 1987) (quoting In
re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965)); In re Grand Jury
Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224 (2d Cir. 1984); 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) (citing
Barclay’s Amer. Corp. v. Kane, 746 F.2d 653, 656 (10th Cir. 1984)); In
re Grand Jury Subpoena Duces Tecum, 697 F.2d 277 (10th Cir. 1983)
(citing United States v. Bump, 665 F.2d 548, 551 (10th Cir. 1979)).

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