Attorney-Client Privilege and Work Product-Immunity

• Pages: 97-133

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CHAPTER VII

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

(1985).

3.For more detailed treatments of the attorney-client and work-product

privileges, see genera lly ABA LITIGAT ION SECTION, THE ATTORNEY-

CLIENT PRIVILEGE AND THE WORK-PRODUCT DOCTRINE (3d ed. 1997).

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, 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, 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, 466−67 (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.

1992).

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)).