Privilege and work product

AuthorWilliam M. Audet/Kimberly A. Fanady
assert attorney-client PrivileGe task 12
Assert Attorney-Client Privilege
A. Evidence protected by the attorney-client privilege
is generally not discoverable. See FRCP 26(b)(1).
B. For every discovery request and disclosure
requirement addressed to your client, determine
whether the requested information is protected by
the attorney-client privilege. No bright-line rule
governs the application of the privilege; rather,
the courts apply the privilege on a case-by-case
basis. In re Syncor ERISA Litigation, 229 F.R.D.
636 (C.D. Cal. 2005) (listing elements of privi-
lege); Martin Marietta Materials, Inc. v. Bedford
Reinforced Plastics, Inc., 227 F.R.D. 382 (W.D.
Pa. 2005) (listing elements of privilege) Morisky
v. Public Serv. Elec. & Gas Co., 191 F.R.D. 419
(D.N.J. 2000) (construing federal common law
privilege); Waugh v. Pathmark Stores, Inc., 191
F.R.D. 427 (D.N.J. 2000).
C. The privilege consists of the following elements:
1. The party for whom the privilege is invoked is
a client or seeks to become a client. See United
States v. Nicholas, 606 F. Supp. 2d 1109
(C.D. Cal. 2009) (corporate executive believed
attorneys were representing him personally
in civil securities litigation and did not know
that attorneys also represented corporation, but
not him, in separate securities fraud investiga-
tion); Dombrowski v. Bell Atlantic Corp., 128
F. Supp. 2d 216 (E.D. Pa. 2000) (communica-
tions between in-house counsel conducting
due diligence investigation of merger target
corporation and target’s employees not privi-
leged because conversations were not between
attorney and client; merger completion did
not retroactively make communications privi-
leged). The client, not the attorney, holds the
2. The person with whom the client communi-
cates is an attorney or attorney representative
and is acting as such in the communications.
See Rehling v. City of Chicago, 207 F.3d
1009 (7th Cir. 2000); In re Tri-State Outdoor
Media Group, Inc., 283 B.R. 358 (Bankr.
M.D. Ga. 2002) (where law firm representing
creditors’ committee retained financial advi-
sor after attorney-client relationship already
established, advisor was law firm’s agent
and advisor’s recommendations to commit-
tee privileged);Gorman v. Polar Electro,
Inc., 137 F. Supp. 2d 223 (E.D.N.Y. 2001)
(privilege would apply to communications
between client and patent agent when agent
acting under control and authority of counsel
and communications related to prosecution of
patent application); Financial Technologies
International v. Smith, 49 Fed. R. Serv. 3d
961 (S.D.N.Y. 2000) (recognizing “putative
attorney” privilege under New York law but
declining to apply it on particular facts); com-
pare Cavallaro v. United States, 284 F.3d 236
(1st Cir. 2002) (where accounting firm was
party’s agent hired to provide financial advice,
not law firm’s agent hired to assist law firm,
documents in accounting firm’s possession
not privileged even though accounting firm
and law firm worked together on corporate
Task 12 Assert Attorney-Client Privilege
Task 13 Assert Work Product Immunity
Task 14 Assert Other Privileges
Task 15 Demand a Privilege Log
Task 16 Compile a Privilege Log
Task 17 Challenge a Privilege Log
Task 18 Oppose Challenge to a Privilege Log
Form 5 Privilege Log
task 12 PrivileGe anD work ProDuct
merger); Nemecek v. Board of Governors of
Univ. of N.C., 48 Fed. Rules Serv. 3d 254
(E.D.N.C. 2000) (privilege did not apply to
communications between plaintiff and non-
attorney who represented plaintiff at employee
grievance hearing). However, not every person
hired by an attorney to assist in the rendition
of legal services is necessarily within the scope
of the privilege. See Ruran v. Beth El Temple
of West Hartford, Inc., 226 F.R.D. 165 (D.
Conn. 2005) (attorney’s comments on temple
employee made as congregation member not
privileged); Calvin Klein Trademark Trust v.
Wachner, 198 F.R.D. 53 (S.D.N.Y. 2000) (dis-
closure of attorney-client communications to
public relations firm hired by attorney waived
privilege where PR firm was providing ordi-
nary PR advice and services; privilege did not
apply to communications between attorney and
PR firm regardless of fact that communications
might help counsel formulate legal advice);
a. Where an insurer has agreed that it has a
duty to defend and indemnify its insured in
litigation, both the insured and the insurer
are considered clients of the insured’s
lawyer, and the privilege covers com-
munications between the insurer and the
insured’s counsel. In addition, the insurer
may be considered a representative of
the insured in obtaining counsel for the
insured, communicating with that counsel,
and participating in the settlement of the
action. Lamar Advertising of S.D., Inc. v.
Kay, 267 F.R.D. 568 (D.S.D. 2010); see
also Maharaj v. GEICO Casualty Co.,
289 F.R.D. 666 (S.D. Fla. 2013) (insurer’s
communications with outside counsel in
dual representation privileged in third
party bad faith case where insured neither
assigned claims to third party nor waived
privilege).Where an insurance adjuster acts
with the purpose of obtaining and facili-
tating the insured’s legal representation,
the privilege applies to communications
between the insurer and counsel for the
insured. Lamar Advertising, supra; see
also Jones v. Tauber & Balser, P.C., 503
Bankr. 152 (Bankr. N.D. Ga. 2013 (where
accounting firm’s professional liability
carrier hired counsel to advise accounting
firm, communications between carrier and
counsel privileged).
3. The client makes the communication in confi-
dence and does not intend that the information
will be disclosed to third parties. See United
States v. Nicholas, 606 F. Supp. 2d 1109 (C.D.
Cal. 2009) (corporate executive communicated
with attorneys representing him in civil securi-
ties litigation with expectation of confidential-
ity; communications suppressed from evidence
in executive’s criminal prosecution); SEC v.
Brady, 238 F.R.D. 429 (N.D. Tex. 2006) (law
firm’s report on internal investigation of client,
which was product of many confidential com-
munications, was privileged). The client may
destroy the privilege by disclosing a conversation
with her attorney to a third party (see Samuels
v. Mitchell, 155 F.R.D. 195, 197-99 (N.D. Cal.
1994)), or having a third party present dur-
ing the conversation (see FTC v. Boehringer
Ingelheim Pharmaceuticals, 286 F.R.D. 101
(D.D.C. 2012).
a. The presence of a third party does not
destroy the privilege when the third
party is present to facilitate communica-
tions between attorney and client. Smith
v. Trans Am Trucking, Inc., 70 Fed. R.
Serv. 3d 323 (W.D.N.C. 2008) (presence
of court reporter to record party’s state-
ment to party’s attorney does not destroy
privilege); Oxyn Telecommunications, Inc.
v. Onse Telecom, 55 Fed. Rules Serv. 3d
1263 (S.D.N.Y. 2003) (interpreters’ atten-
dance at meetings between representa-
tives of defendant Korean corporation and
corporation’s U.S. counsel did not destroy
4. The purpose of the communication is to give
or receive legal advice, legal services, or
assistance in a legal proceeding. See Phillips
v. C.R. Bard, Inc., 290 F.R.D. 615 (D. Nev.
2013) (email sending communications plan
to company vice president rather than attor-
ney not sent for purpose of soliciting legal
advice); Koumoulis v. Independent Financial
Marketing Group, Inc., 295 F.R.D. 28
(E.D.N.Y. 2013) (outside counsel participated
in internal investigation for business purposes
as adjunct of human resources department; no
privilege attached to communications); Chen-
Oster v. Goldman, Sachs & Co., 293 F.R.D.
557 (S.D.N.Y. 2013) (database prepared for
counsel’s review for purposes of seeking legal
advice was privileged although database was
assert attorney- client PrivileGe task 12
not immediately transmitted to counsel); FTC
v. BoehringerIngelheim Pharmaceuticals, 286
F.R.D. 101 (D.D.C. 2012); Sterne Kessler
Goldstein & Fox, PLLC v. Eastman Kodak
Co., 276 F.R.D. 376 (D.D.C. 2011) (deposi-
tion subpoena to law firm which represented
defendant in patent reexamination proceed-
ing before PTO quashed where risk of
encountering attorney-client privileged com-
munications and information and exposing
defendant’s strategy in patent infringement
litigation outweighed any benefit); Fuller v.
Interview, Inc., 74 Fed. Rules Serv. 3d 1007
(S.D.N.Y. 2009) (emails between manage-
ment level employees of defendant and outside
employment law counsel seeking and giving
advice concerning plaintiff’s employment
privileged); S.E.C. v. Microtune, Inc. 73 Fed.
Rules Serv. 3d 1034 (N.D. Tex. 2009) (no
privilege attached where neither documents
themselves nor other evidence indicated that
documents were communicated to or from
counsel for purposes of securing legal advice);
SEC v. Brady, 238 F.R.D. 429 (N.D. Tex.
2006) (law firm’s report on internal investiga-
tion of client prepared for purpose of giving
legal advice was privileged); Securities &
Exchange Commission v. Credit Bancorp,
Ltd., 51 Fed. Rules Serv. 3d 1429 (S.D.N.Y.
2002) (communications with attorneys not
privileged where attorneys acting as insurance
investigators); EEOC v. International Profit
Associates, Inc., 206 F.R.D. 215 (N.D. Ill.
2002) (notes of interviews of class plaintiffs
and prospective witnesses conducted by EEOC
legal staff after class action filed privileged);
Dombrowski v. Bell Atlantic Corp., 128 F.
Supp. 2d 216 (E.D. Pa 2000) (communications
between in-house counsel and employees not
privileged when discussions were not held to
obtain legal advice or facilitate rendering legal
services); Morisky v. Public Serv. Elec. & Gas
Co., 191 F.R.D. 419 (D.N.J. 2000) (constru-
ing federal common law privilege); Neuder v.
Battelle Pac. Northwest Nat’l Lab., 194 F.R.D.
289 (D.D.C. 2000) (when attorney acted in
non-legal capacity as member of employer’s
personnel review committee, and committee
meetings served predominantly business pur-
pose, documents related to committee meetings
were not privileged);
5. The communication is not for the purpose of
committing a crime. See Chesher v. Neyer,
220 F.R.D. 523 (S.D. Ohio 2004) (plaintiffs
permitted to depose county prosecutors pursu-
ant to crime-fraud exception where evidence
showed prosecutors were involved in cover-
up of county official’s crime);Chaudhry v.
Gallerizzo, 174 F.3d 394, 403-04 (4th Cir.
1999) (denying motion to compel); Motley v.
Marathon Oil Co., 71 F.3d 1547, 1551 (10th
Cir. 1995).
6. The client did not waive the privilege. See
Glenmede Trust Co. v. Thompson, 56 F.3d
476, 486-87 (3d Cir. 1995). However, a mere
promise to waive the privilege does not consti-
tute a waiver; privileged communications must
actually be divulged. Tennenbaum v. Deloitte
& Touche, 77 F.3d 337 (9th Cir. 1996); Wessel
v. City of Albuquerque, 48 Fed. Rules Serv. 3d
349, (D.D.C. 2000) (crime-fraud exception to
privilege applies where client committed crime
or fraud and sought legal advice with the intent
to further its illegal conduct).
D. The purpose of the privilege is to encourage full
and frank communication between attorney and
client so the attorney can provide sound legal
advice. See Upjohn Co. v. United States, 449 U.S.
383, 389, 101 S. Ct. 677, 682 (1981); Texaco
P.R. v. Department of Consumer Affairs, 60 F.3d
867, 883 (1st Cir. 1995); Rhone-Poulenc Rorer
v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir.
1994). An attorney’s investigation related to the
rendition of legal services is privileged (see Better
Gov’t Bureau v. McGraw (In re Allen), 106 F.3d
582, 601-03 (4th Cir. 1997), cert. denied, 118 S.
Ct. 689 (1998)) but the privilege does not “permit
an attorney to conduct his client’s business affairs
in secret.” (In re Fischel, 557 F.2d 209 (9th Cir.
1977)); see also Sackman v. Liggett Group, 920
F. Supp. 357, 365-66 (E.D.N.Y. 1996) (privilege
not applicable where defendants used attorneys for
non-legal purposes).
E. Typical privileged communications include:
1. Communications and correspondence between
counsel and client. O’Brien v. Board of
Education, 86 F.R.D. 548 (S.D.N.Y. 1980).
But see Rehling v. City of Chicago, 207 F.3d
1009 (7th Cir. 2000) (privilege generally
attaches only to client’s statements, but state-
ments by lawyer to client privileged where
they reflect or would reveal client’s confi-
dential communications); State Farm Mut.
Auto Ins. Co. v. Hawkins, 72 Fed. Rules Serv.
3d 563 (E.D. Mich. 2008) (factual questions

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