Privilege and work product

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 83-130

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ASSERT ATTORNEY-CLIENT PRIVILEGE TASK 12

TASK 12

Assert Attorney-Client Privilege

I. WHAT AND WHY

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

CHAPTER 3: PRIVILEGE AND WORK PRODUCT

TASKS

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

FORMS

Form 5 Privilege Log

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TASK 12 PRIVILEGE AND WORK PRODUCT

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

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ASSERT ATTORNEY- CLIENT PRIVILEGE TASK 12

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

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