Privilege and work product

AuthorWilliam M. Audet/Kimberly A. Fanady
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 privilege);
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 investigation); Dombrowski
v. Bell Atlantic Corp., 128 F. Supp. 2d 216
(E.D. Pa. 2000) (communications between
in-house counsel conducting due diligence
investigation of merger target corporation and
target’s employees not privileged because
conversations were not between attorney and
client; merger completion did not retroactively
make communications privileged). The client,
not the attorney, holds the privilege.
2. The person with whom the client
communicates 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); U.S.
v. Davita, Inc., 301 F.R.D. 676 (N.D. Ga.
2014)(context of communications important to
establishing privilege); 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 advisor
after attorney-client relationship already
established, advisor was law firm’s agent
and advisor’s recommendations to committee
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);
compare 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
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
to assist law firm, documents in accounting
firm’s possession not privileged even though
accounting firm and law firm worked together
on corporate merger); Veolia Water Solutions
& Technologies Support v. Siemens Industry,
Inc., 2014 WL 6679107 (E.D.N.C. 2014)
(emails including discussions of patent
unprivileged when not copied to attorney or
patent agent); 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)
(disclosure of attorney-client communications
to public relations firm hired by attorney
waived privilege where PR firm was providing
ordinary 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
communications 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 facilitating 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
confidence 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 securities litigation with
expectation of confidentiality; 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 communications,
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 during
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 communications
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 statement
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’
attendance at meetings between
representatives of defendant Korean
corporation and corporation’s U.S. counsel
did not destroy privilege).
4. The purpose of the communication is to
give or receive legal advice, legal services,
or assistance in a legal proceeding. See
Veolia Water Solutions & Technologies
Support v. Siemens Industry, Inc., 2014 WL
6679107 (E.D.N.C. 2014) (emails including
discussions of patent which allegedly were
sent for purpose of obtaining legal advice
held unprivileged because not copied to
attorney or patent agent); Phillips v. C.R. Bard,
Inc., 290 F.R.D. 615 (D. Nev. 2013) (email
sending communications plan to company
vice president rather than attorney 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 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)
(deposition subpoena to law firm which
represented defendant in patent reexamination
proceeding before PTO quashed where risk
of encountering attorney-client privileged
communications 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 management
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
investigation 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) (construing
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
purpose, documents related to committee
meetings were not privileged);
5. The communication is not for the purpose of
committing a crime. See JTR Enterprises, LLC
v. Unknown Quantity of Colombian Emeralds,
297 F.R.D. 522 (S.D. Fla. 2013) (plaintiff
made out prima facie case for applying
exception by showing attorney’s services
may have been obtained to further fraudulent
conduct; court ordered in camera review of
attorney’s documents).
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
constitute 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
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

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