Privilege and work product

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 113-158

HANDLING FEDERAL DISCOVERY

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

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); 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 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.

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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 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 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); see also, Abu Dhabi Commer.

Bank v. Morgan Stanley & Co., 2011 U.S. Dist. LEXIS 116850 (S.D.N.Y. Sept. 30, 2011), adopted

2011 U.S. Dist. LEXIS 116430 (S.D.N.Y. Oct. 7, 2011)), or having a third party present during the

conversation (see Giraldo v. Drummond Co., 2012 U.S. Dist. LEXIS 53759 (N.D. Ala. Apr. 17, 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).

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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); 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 in secret.” (In re Fischel, 557 F.2d 209 (9th Cir. 1977)).

E. Typical privileged communications include: