McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 296 of 296 results

Chapter: 17.1
Case Name: Sheeks v. El Paso County Sch. Dist. No. 11, Civ. A. No. 04-cv-1946-ZLW-CBS, 2006 U.S. Dist. LEXIS 27579, at *3 (D. Colo. Apr. 12, 2006)
("Defendant has cited no authority, and the Court has found none, indicating that internal law firm communications which are not conveyed to the client are covered by the attorney client privilege.")

Case Date Jurisdiction State Cite Checked
2006-04-12 Federal CO
Comment:

key case


Chapter: 17.5
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("With regard to those instances where a specific name is not identified, this is not fatal to the assertion of privilege so long as it is evident that the information being compiled or discussed by corporate employees was information requested by or generated by an attorney. Indeed, it is not uncommon within a complex organization that when a request for information is made by outside counsel communications among corporate employees transmitting the request for information frequently will simply refer to the request as coming from outside counsel as opposed to a specific attorney or law firm. The important inquiry from a privilege perspective is the nature of the communication and the context in which it is made and not necessarily the precise identification of the source of the request for information. In any event, because the Court has conducted an in camera inspection of each of the documents, the Court has been able to examine the context of those documents where the source of the legal request or legal advice is identified as legal department or outside counsel and make a determination as to whether the document is privileged under the attorney client privilege because the document transmits or requests legal advice or the document contains a request by an attorney for information to be used in threatened litigation or ongoing litigation.")

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal FL
Comment:

key case


Chapter: 17.5
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("[E]ntry 4606 consists of a string of emails in which Killion [then General Counsel] requests input from a Barr executive on a legal agreement, and the executive forwards the agreement to another executive to request additional feedback. The Court concludes that these emails, in which Barr executives gave 'information to the lawyer to enable him to give sound and informed advice.)

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 17.5
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("AbbVie privilege log entries 434, 595, 596, 624, and 4398 were properly withheld under the attorney-client privilege because those entries consist of communications in which attorneys request or are provided with information for the purpose of providing legal advice. Entry number 434 is an email chain between Kos's outside counsel, Kos's in-house counsel, and Kos executives, in which the lawyers request input and specific information from the executives to assist them in drafting a declaration to attach to a legal filing. Entry number 595 consists of a string of emails: first, Kos's outside counsel sent a draft settlement agreement to Kos's then-general counsel Andrew Koven; second, Koven forwarded the draft to three Kos executives and requested their input; and finally, the three executives responded with their comments. Similarly, entry number 596 consists of an email from Kos's Chief Financial Officer Chris Kiritsy to Koven providing comments on a draft settlement agreement. Entry number 624 is an email string between Kos's Vice President for Marketing Aaron Berg, Kos's outside counsel, and Kos's general counsel, in which Berg provided detailed statistics and information regarding the potential of marketing Niaspan to women's health professionals. Koven asserted that the information was shared so that outside counsel, White & Case, could provide legal advice with respect to a co-promotion agreement relating to that marketing that was part of the ongoing settlement negotiations. . . . And entry number 4398 is an email chain between Kos's outside counsel and Kiritsy, in which outside counsel requests information from Kiritsy to assist in writing a declaration to attach to a motion. The Court concludes that these emails, in which Kos executives gave 'information to the lawyer to enable him to give sound and informed advice,'. . . would 'not have been made absent the privilege,'. . . The communications were properly withheld under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 17.5
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("[E]ntry 541 is an email string consisting of the following: (1) outside counsel Malik sent an email to Kos's then-general counsel Koven, attaching a draft of a term sheet, (2) Koven forwarded the email and attachment to two Kos executives, and (3) one of those executives, Kiritsy, forwarded the email and attachment to another executive, and asked '[a]ny visibility on accounting treatment or pruit?' The first two emails in this chain are plainly covered by the attorney-client privilege -- they are emails from lawyers to their clients, and although they do not expressly request feedback, such a request is implicit when a draft legal document is attached. AbbVie asserts that the final email in the chain is privileged because in it, Kiritsy requested information that he would later relay to Koven for the purpose of obtaining legal advice. It is true that 'privileged communications may be shared by non-attorney employees in order to relay information requested by attorneys.'")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.5
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("[E]ntry 5647 is an email from Killion [then General Counsel] to two Barr executives, in which Killion attached a draft of a legal agreement and asked one recipient 'did I fix your problem?' That communication makes clear that the email is intended to provide legal advice in response to that problem, solicit feedback for the purpose of providing legal advice, or both. The Court concludes that both of these communications were made 'for the purpose of obtaining . . . legal assistance to the client.'")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.5
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("In entry 2561, a Barr executive sent Killion [then General Counsel] an email and attached a redline of a document including the executive's comments, which Killion had requested and which were provided for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.5
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Entry 2580 is a longer email string, including four emails between Killion [then General Counsel] and various Barr executives, but each communication in the string either requests that the Barr executives send feedback on a legal agreement to Killion, or provides such feedback.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.5
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("[E]ntry 4606 consists of a string of emails in which Killion [then General Counsel] requests input from a Barr executive on a legal agreement, and the executive forwards the agreement to another executive to request additional feedback. The Court concludes that these emails, in which Barr executives gave 'information to the lawyer to enable him to give sound and informed advice.)

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 17.5
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "The document is privileged."; "The email is a response to a question originally posed by Nuns Moodliar (counsel) to Mr. Bendle, who advised that he needed to obtain the information from Ms. Clearambourg. Therefore, an attorney (Moodliar) requested of an intermediary (Bendle) information related to a legal issue, which then had to be requested of the person who had the necessary information.")

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal NJ

Chapter: 17.5
Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *82 84 (S.D. W. Va. Mar. 28, 2016)
("Under both West Virginia law and federal law, the withheld ASO documents are protected from disclosure under attorney-client privilege. First, Ford's OGC, specifically Mr. Logel, and Ford's ASO contemplated that an attorney-client relationship existed at the time that the OGC engaged the ASO to analyze the VOQs and TREAD Act data. Mr. Logel's affidavit, Mr. Love's affidavit, and Mr. Nevi's deposition testimony all support this conclusion. Second, as explained above, the ASO prepared and submitted the logged documents at the request of the OGC for the purpose of rendering legal advice to Ford. Although Ford's OGC may have been the initiating party by requesting that the ASO conduct an analysis of the pertinent data, that fact alone does not render the attorney-client privilege inapplicable. As explained above, communications during fact-finding investigations conducted by an attorney in his or her legal capacity are protected. . . . Indeed, even with the understanding that the privilege should be construed narrowly . . . it would be an unreasonable interpretation of the privilege to hold that a proactive, fastidious in-house attorney who seeks information from his client for the purpose of rendering legal advice cannot claim privilege over the information that he receives in response to his request simply because he was the first to act. . . . Third, and finally, the communication of the information (i.e. the sending of the documents) from Ford's ASO to the OGC was intended to be confidential. As Mr. Logel's affidavit explains, '[t]he documents identified on Ford's ASO Privilege Log have not been disseminated beyond those Ford employees and consultants working directly with Ford's counsel in this regard.' . . . There is no evidence that Mr. Logel's assertion is false or that it was 'the intention or understanding of [Ford] that the communication [was] to be made known to others.'" (citation and footnote omitted))

Case Date Jurisdiction State Cite Checked
2016-03-28 Federal WV B 8/16
Comment:

key case


Chapter: 17.5
Case Name: EEOC v. Texas Roadhouse, Inc., Civ. A. No. 11-cv-11732-DJC, 2015 U.S. Dist. LEXIS 161929 (D. Mass. Dec. 2, 2015)
("This is an email where counsel is asking for certain documents that counsel wants to review in preparation for litigation. The documents were produced to the EEOC in discovery. The fact that counsel is asking for these particular documents at this certain time is privileged, so the attachment is privileged and need not be reproduced to the EEOC at this time.")

Case Date Jurisdiction State Cite Checked
2015-12-02 Federal MA

Chapter: 17.5
Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "In this instance, it is readily apparent that the purpose of counsel's solicitation of facts and provision of legal advice was to address the journalist's expected premise that the selection of assets for Citigroup's 401(k) Plan potentially implicated ERISA 's prohibition on self-dealing. Given that this exchange plainly contemplated the legal ramifications of Citigroup's response and was conducted by and at the direction of counsel, in their capacity as attorneys, the communications must be considered privileged."; "As for the applicability of the fiduciary exception, that exception does not apply where a plan administrator seeks legal advice for its own benefit or protection, rather than for the benefit of the plan and its beneficiaries. . . . Here, by contrast, the purpose of the legal advice contained in the News Inquiry Documents was to manage the public relations impact and potential litigation risk occasioned by what was expected to be a negative news article about the inclusion of proprietary funds in 401(k) plans. While the subject of the News Inquiry Documents was therefore related to plan administration, in that the content of the documents discussed the way in which fiduciary duties were carried out, Defendants' purpose in seeking out legal advice was not to obtain advice regarding the administration or investment of plan assets, and the implementation of that advice had no effect on the plan or its beneficiaries. Under these circumstances, it cannot be said that advice was provided to aid the beneficiaries, such that Defendants were not the true clients.")

Case Date Jurisdiction State Cite Checked
2015-10-16 Federal NY
Comment:

key case


Chapter: 17.5
Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 85234 (N.D. Ill. July 1, 2015)
("Plaintiff argues that because documents 4, 9-10, 12, and 15-16 are communications between Carnival employees who are neither attorneys nor paralegals, they are not protected by attorney-client privilege. . . . After carefully reviewing these communications, however, the Court finds that they are all directly related to gathering the information sought by outside counsel or reflect upon counsel's legal advice.")

Case Date Jurisdiction State Cite Checked
2015-07-01 Federal IL
Comment:

key case


Chapter: 17.5
Case Name: Hudson v. Preckwinkle, No. 13 CV 8752, 2014 U.S. Dist. LEXIS 78995, *8-10 (N.D. Ill. June 10, 2014)
(holding that the privilege did not protect questionnaires that plaintiff's lawyer sent to Cook County Jail inmates, because the questionnaire was not specific enough; "This court finds that attorney-client privilege does not protect the questionnaire responses from disclosure. Although the form gave detainees the opportunity to request a 'legal visit,' courts in this district have required that offers to provide legal assistance be more explicit before privilege will attach. . . . [T]he questionnaire here only offered an opportunity for detainees to discuss 'issues' relating to jail conditions with an attorney or law student. Such a vague invitation is a far cry from the express language other courts have relied upon to find that privilege applies. Also, unlike in the cases discussed above, the detainees had the option of completing and returning the form regardless of whether they wanted to have a follow-up discussion with an attorney or law student. Furthermore, rather than conveying that the information collected would be used to evaluate potential claims on behalf of the detainee, the questionnaire's stated purpose was 'to find out more information about conditions in Cook County.'")

Case Date Jurisdiction State Cite Checked
2014-06-10 Federal IL

Chapter: 17.5
Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 901 n.4 (N.D. Ill. 2013)
("[T]he attorney-client privilege applies with equal force to inquiries from an attorney to a client.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 3/14

Chapter: 17.6
Case Name: Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) Partnership Ltd., Civ. No. 3:16-CV-621, 2018 (M.D. Pa. April 5, 2018)
("The privilege applies both to information that the client provides to the lawyer for purposes of obtaining legal advice, as well as to the advice the attorney furnishes to the client.")

Case Date Jurisdiction State Cite Checked
2018-04-05 Federal PA

Chapter: 17.6
Case Name: Donlin v. Petco Animal Supplies Stores, Inc., Civ. 17-0395 JCH/JHR, 2017 U.S. Dist. LEXIS 168280 (D.N.M. Oct. 10, 2017)
("In assessing internal and external complaints, Petco's legal counsel are acting for the purpose of Petco's business, not as a legal advisor nor in anticipation of litigation. Even if the privilege applies, the privilege does not protect the underlying facts within them. . . . As such, Petco must at least disclose the underlying facts in the documents it claims to be privileged."; "Petco merely argues that legal counsel assesses the ADA and FMLA claim, not that an attorney has created the relevant documents in anticipation of litigation or as a privileged communication with a client. Instead, because the documents would have been created regardless of whether Petco anticipated the cases would be litigated, neither the work product doctrine nor attorney-client privilege applies to this classification of documents. . . . However, upon supplementing its responses, Petco may find that some of the responsive documents qualify as attorney-client privileged. The Court will not preclude Petco from asserting a valid attorney-client privilege objection in its supplemental responses, but Petco must produce a privilege log pursuant to Fed. R. Civ. P. 26(b)(5), providing its reasoning for asserting the privilege.")

Case Date Jurisdiction State Cite Checked
2017-10-10 Federal NM

Chapter: 17.6
Case Name: Nalco Co., Inc. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127 (S.D. Tex. July 18, 2017)
(holding that the attorney-client privilege can protect employee-to-employee communications under certain circumstances; "The privilege does not protect a client's knowledge of relevant facts, regardless of whether he learned the facts from counsel.")

Case Date Jurisdiction State Cite Checked
2017-07-18 Federal TX

Chapter: 17.6
Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "Federal Rule of Evidence 501 governs privilege issues in federal courts. In this case the Court's jurisdiction is based upon diversity. Although applying choice of law principles to this case results in Kansas law defining the scope of the attorney-client privilege, this Court agrees with other cases from this District that there is no conflict between federal and Kansas law regarding the attorney-client privilege and it generally makes no difference which law is applied."; "Plaintiff is entitled to know the factual basis for Defendants' affirmative defenses. Plaintiff's question was a proper inquiry into the facts that support the affirmative defense asserted in paragraph 13 of Defendants' answer. Plaintiff did not ask Naccarato to disclose the substance of any communications he may have had with Defendants' counsel. Following defense counsel's initial objection, Plaintiff's counsel reiterated that she was asking only for the facts upon which Defendant Screenworks relied. Yet, Defendants' counsel persisted in asserting the same objections."; "Defendants' objections were improper for a number of reasons. Because the primary thrust of the objections and the basis upon which Naccarato was instructed not to answer was the attorney-client privilege, the Court will address that issue first. Even presuming Naccarato's answer would have revealed facts from conversations he had with Defendants' counsel, that would not render the 'facts' protected from discovery by the attorney-client privilege. 'A fact is discoverable regardless of how a deponent came to possess it. This is true even if Defendants' attorney informed the deponent of the facts. The instruction by Defendants' counsel to Naccarato not to answer to the extent the question sought 'information gained through conversations with counsel' was an improper and inaccurate assertion of the attorney-client privilege."; "'Defendants' argument that Plaintiff's questions improperly sought the 'theories' upon which Defendants' affirmative defenses are based is simply unsupported by the record. In the line of questioning at issue, Plaintiff expressly asked the 'facts' that support the affirmative defenses and never mentioned or inquired about Defendants' theories.'")

Case Date Jurisdiction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 17.6
Case Name: Toyo Tire & Rubber Co. v. Atturo Tire Corp., Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756, at *7 (N.D. Ill. June 3, 2016)
August 10, 2016 (PRIVILEGE POINT)

"Court Explains What "Facts Are Never Privileged" Means"

Historical facts never deserve privilege protection. Something either happened or it didn't happen. But some litigants erroneously point to this axiom in seeking to discover factual portions of clients' privileged communications to their lawyers, and vice versa.

In Toyo Tire & Rubber Co. v. Atturo Tire Corp., defendant sought emails between Toyo and its lawyers, arguing "that the emails it seeks concerned underlying facts, which are not protected by the attorney-client privilege." Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756, at *7 (N.D. Ill. June 3, 2016). The court correctly explained that "[t]he vast majority of communications between attorneys and clients contain some mixture of fact and legal opinion" — noting that "the relevant inquiry is whether the documents or communications sought were transmitted for the purpose of obtaining legal advice." Id. at *8-9. The court rejected defendant's argument, and found the withheld documents privileged after reviewing them in camera. The court concluded by explaining the practical consequences of this universally accepted principle: "the underlying facts communicated between an attorney and a client can be discovered through depositions or other discovery techniques." Id. at *6.

It is ironic that some lawyers and even courts think that clients' recitations of historical facts to their lawyers do not deserve privilege protection. The privilege exists to assure absolute privacy for such communications, so such recitations actually represent the most protected of all communications.

Case Date Jurisdiction State Cite Checked
2016-06-03 Federal IL B 8/16
Comment:

key case


Chapter: 17.6
Case Name: Toyo Tire & Rubber Co., Ltd. v. Atturo Tire Corp., Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756 (N.D. Ill. June 3, 2016)
(holding that the attorney-client privilege protected the factual portion of an otherwise privileged communication, and that the adversary must obtain the historical facts through other discovery means; "Many cases note that facts are not protected by attorney-client privilege; in other words, the underlying facts communicated between an attorney and a client can be discovered through depositions or other discovery techniques."; "In the instant motion, Atturo argues that the emails it seeks concern underlying facts, which are not protected by the attorney-client privilege. However, the emails themselves are communications, not facts, and these communications were sent for the purpose of obtaining or conveying legal advice. Atturo does not dispute that the emails were sent by Toyo's outside counsel, Adduci, to Toyo regarding the settlement negotiations held between Toyo's outside counsel and the respondents to the ITC action (or the respondents' attorneys). The Court has reviewed the descriptions of the relevant emails, as well as the senders and recipients, and believes that Toyo has carried its burden of showing those communications are covered by the attorney-client privilege."; "If Toyo were correct that such communications were discoverable, the exception for underlying facts would swallow the rule protecting attorney-client communications. The vast majority of communications between attorneys and clients contain some mixture of fact and legal opinion. If every litigant were required to comb through every communication with its attorneys, determine which portions of those communications contained facts and which contained legal opinion, redact the portions that consisted of legal opinion, and then produce the redacted communications, civil litigation would be ground to halt. This would be the likely result if Atturo's position were an accurate assessment of the law in this area; it is not. Instead, the relevant inquiry is whether the documents or communications sought were transmitted for the purpose of obtaining legal advice. This Court believes that the communications Atturo seeks were transmitted for the purpose of obtaining legal advice related to the settlement of the ITC Action, and, therefore, are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-06-03 Federal IL
Comment:

key case


Chapter: 17.8
Case Name: Burns v. Georgetown University Medical Center, Civ. A. No. 13-898 (CKK), 2015 U.S. Dist. LEXIS 68864 (D.D.C. May 28, 2015)
(inexplicably holding the attorney-client privilege protected statements to a third party that reflected privileged communications; "[T]he Court first notes that the email exchange is not privileged simply because the email was sent from Plaintiff's attorney to Plaintiff. Just because Plaintiff's attorney forwarded the email to her does not make the communication, which originated from a third-party, privileged.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal DC

Chapter: 17.8
Case Name: United States v. Nunez, No. 12 Cr. 778-2, 2013 U.S. Dist. LEXIS 116145, at *15 (S.D.N.Y. Aug. 16, 2013)
(holding that the attorney-client privilege could protect a lawyer's email with a list of controlled substances and a newspaper article; "[T]he March 29, 2012 emails were sent by the client to his attorney, seeking legal advice based on a news story that related directly to his former field of employment. . . . In this context, Smith's [lawyer] emails, consisting of a schedule of controlled substances from which synthetic marijuana is absent and a news article discussing the state's efforts to force 'storeowners to stop selling the products because they violate consumer protection laws for labeling', . . . are best understood as an indirect form of legal advice to Nunez. They are definitively not a 'transmission of a message' from any third-party source for which Smith 'merely served as a conduit,'. . . nor has the Government cited any cases applying Hall [United States v. Hall, 346 F.2d 875 (2d Cir. 1965)] to a communication relaying the result of an attorney's research to a client. The Court takes no position on the quality of Smith's legal representation of Nunez, but notes that there is no requirement that legal advice be concise, well-targeted or correct in order to be protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal NY B 4/14

Chapter: 17.9
Case Name: Finjan, Inc. v. SonicWall, Inc., Case No. 17-cv-04467-BLF (VKD), 2018 U.S. Dist. LEXIS 177061 (N.D. Cal. Oct. 15, 2018)
December 19, 2018 (PRIVILEGE POINT)

Privilege and Work Protection for Lawyers' Communications With Third Parties and Reports of Those Communications: Part II

Last week's Privilege Point described a court's recognition that the work product doctrine can protect lawyers' communications with third party witnesses. Five days later, another court dealt with lawyers' reports to their clients about such third party communications.

In Finjan, Inc. v. SonicWall, Inc., Case No. 17-cv-04467-BLF (VKD), 2018 U.S. Dist. LEXIS 177061 (N.D. Cal. Oct. 15, 2018), defendant sought discovery of what apparently were plaintiff's lawyer's reports to his client about the lawyer's communications with third parties. Although its opinion contained several redactions, the court held that some of the emails deserved privilege protection because they were "not merely a neutral recording" of the lawyer's communications with those third parties. Id. at *8. The court also noted that even defendant acknowledged that such reports deserved privilege protection if they were "so interwoven with legal advice [they] may be considered privileged as a whole." Id. The court also found work product protection, because the reports "reflect counsel's mental processes and reveal the information he considered significant" – rather than "merely verbatim summaries." Id. at *9.

Lawyers' reports of their communications with third parties can deserve privilege protection if: (1) they infuse their summaries with their legal advice or opinion; or (2) their recitation of certain portions of those communications reflects their legal advice or opinion. Some courts' statements that "verbatim reports" cannot deserve privilege or work product protection seems incorrect – if those verbatim reports memorialize legal opinions, or reflect lawyers' series of opinion-revealing specific questions to the third parties, and the third parties' responses.

Case Date Jurisdiction State Cite Checked
2018-10-15 Federal

Chapter: 17.9
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
("Thus, the status of the drafter (or the recipient) of the supposedly privileged document is not decisive on the question of whether the document is protected. It is for that reason that progress or status reports, investigation summaries, and general updates are generally not privileged merely because they were written by a lawyer to the client.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL
Comment:

key case


Chapter: 17.9
Case Name: Meade v. General Motors, LLC, Civ. A. No. 1:16-cv-00991-AT, 2017 U.S. Dist. LEXIS 61455 (N.D. Ga. April 21, 2017)
("It is generally recognized that the communication of factual information is not protected by the attorney-client privilege. For example, reports reflecting the status of litigation and containing purely factual information are not privileged.")

Case Date Jurisdiction State Cite Checked
2017-04-21 Federal GA

Chapter: 17.9
Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("[W]hen an attorney is merely communicating information, the communications between the attorney and the client are not privileged.")

Case Date Jurisdiction State Cite Checked
2017-02-13 Federal NV

Chapter: 17.9
Case Name: Huntington Chase Condominium Assoc. v. Mid-Century Ins. Co., No. 16 C 4877, 2017 U.S. Dist. LEXIS 14082 (N.D. Ill. Feb. 1, 2017)
("The attorney-client privilege is inapplicable because the emails do not provide legal advice with respect to, or discuss the legal consequences of the factual material within the emails. The transfer of insurance claim information between plaintiff and its insurer through an attorney does not transform otherwise purely factual data into legal analysis warranting privilege protections.")

Case Date Jurisdiction State Cite Checked
2017-02-01 Federal IL

Chapter: 17.9
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("The Court's in camera review finds that Document 197 is also privileged and need not be produced. Numerous sections of the document constitute communications made for the purpose of providing legal advice. While other sections of Document 197 are predominantly factual meeting minutes, the facts that Attorney Wolf chose to note serve as a necessary background to the legal advice provided and indicate which facts he viewed as potentially legally significant.")

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY

Chapter: 17.9
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
(concluding that the attorney-client privilege did not protect a memorandum from an outside lawyer to a client relaying information that the lawyer obtained during a communication with a USPTO examiner; "The only redacted sentence in this document relayed a statement made by a United States Patent and Trademark Office examiner to Mahoney [outside counsel] concerning the patent application. It contained an unprivileged 'fact[ ] provided by an attorney that do[es] not reflect client confidences.'. . . There are no accompanying legal conclusions or perceptions, and the redacted sentence does not include qualifying language such as 'I believe' or 'my opinion is.' The attorney-client privilege does not protect communications in which 'the attorney merely conveys facts acquired from persons or sources other than a client."; "Although Besins claims that the redacted statement succinctly incorporated Mahoney's mental impressions, the court cannot plausibly read the sentence in this way. Besins argues that the redacted statement contains a mental impression because it is not a direct quote from the publically available interview summary and because the patent was not yet finalized. This misconstrues the nature of the privilege. A discoverable fact can emerge from a meeting with the patent examiner regardless of whether that fact is reflected in the interview summary notes or whether the patent application has been finally approved. Further, the court has examined the interview summary notes and does not find those notes inconsistent with Mahoney's factual statement.")

Case Date Jurisdiction State Cite Checked
2015-12-14 Federal PA
Comment:

key case


Chapter: 17.9
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
March 2, 2016 (PRIVILEGE POINT)

"How Do Courts Apply the "Primary Purpose" Privilege Standard?: Part II"

Last week's Privilege Point described a court's rejection of an in-house lawyer's affidavit swearing that a client's employees' communications to him sought legal advice. FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015). The obvious lesson is that corporate employees should explicitly seek legal advice in their communications. A similar principle applies when lawyers communicate to their corporate clients.

Also in FTC v. AbbVie, Inc., the court assessed a company's privilege claim for its outside lawyer's report about his meeting with a patent examiner. The court correctly noted that the privilege does not protect lawyers' communications to their clients simply reciting government officials' statements. The company argued that the redacted portion of its lawyer's report was "not a direct quote" from the patent examiner, and that the redacted portion "succinctly incorporated [the lawyer's] mental impressions." Id. At *13. But the court concluded that it "cannot plausibly read the [redacted portion] in this way." Id. The court then noted that "[t]here are no accompanying legal conclusions or perceptions, and the redacted [portion] does not include qualifying language such as 'I believe' or 'my opinion is.'" Id. At *12-13.

Corporations' lawyers should discipline themselves to explicitly state whether their communications to their client's employees contain their legal advice or reflect their legal judgment through their selection of excerpts from conversations with government officials, and leave no room for conjecture.

Case Date Jurisdiction State Cite Checked
2015-12-14 Federal PA
Comment:

key case


Chapter: 17.9
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2015 U.S. Dist. LEXIS 159601 (N.D. Cal. Nov. 25, 2015)
("Plaintiffs contend that the Shimoda email is not protected by the attorney-client privilege because Shimoda was not conveying legal advice but merely transmitting non-confidential information from Endo about the Watson settlement negotiations. If portions of the email are viewed alone, without context, plaintiffs' argument that the email is simply a factual report has some surface appeal. But when considered as a whole and in context, I find the contents of the email are completely -- except for the article attached -- protected by the attorney-client privilege."; "The email does not indicate -- and the circumstances do not support -- plaintiffs' argument that Shimoda was acting as a mere conduit in an attempt to cloak otherwise non-confidential information with the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-11-25 Federal CA

Chapter: 17.9
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("Privilege Log No. 201, an email from outside counsel concerning an upcoming meeting, contains information necessary for Taxpayer to obtain legal advice relating to tax and business transactions in the form of agenda topics for a future meeting. These documents were properly withheld as privileged.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 17.9
Case Name: Sprint Comm. Co. L.P. v. Comcast Cable Comm. LLC, Case No. 11-2684-JWL, 2014 U.S. Dist. LEXIS 154346 (D. Kansas Oct. 31, 2014)
("[I]n essence, defendants contend that any communication made by the attorney to the client during the course of the client's engagement of the attorney for legal advice is privileged, whatever the content. The Court concludes, however, that the Magistrate Judge did not err in refusing to apply such a standard, as the law is clear that the privilege does not protect all attorney-client communications during the course of such an engagement."; "It is black-letter law -- and defendants have not disputed -- that not every communication between attorney and client is privileged, and attorneys have always had to bear that fact in mind in communicating with their clients. Defendants make the puzzling argument that, even if particular communications do not reveal legal advice or strategies or confidences, their disclosure 'in the aggregate' could reveal confidences that the privilege is intended to protect. As the Tenth Circuit has noted, however, if a communication tends to reveal confidential information, it is protected. If it does not, then it should not be protected, regardless of how many such innocuous communications there are. Indeed, in the most absurd example, under defendants' standard, communications stating no more than 'yes' or 'let's talk about that at the golf course' would be privileged if they were made in the course of a legal engagement; such communications are clearly not privileged, however, as the privilege does not protect the mere fact of a communication or of the relationship between the attorney and client, or the general description of the attorney's work."; "The communication does not reveal any legal analysis performed by the attorney, who merely listed all references to cable companies in the transcript (and who thus did not, as defendants argue, make some analytical decision about what to list). The document reveals that the attorney was merely acting as a conduit for information from another source (a public transcript). Moreover, the e-mail does not tend to reveal any client confidences or legal advice or strategy; the most it reveals is that the clients asked the attorney to review the transcript for references to cable companies, and such a general description of work performed or requested is not privileged.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal KS

Chapter: 17.9
Case Name: In re McDonald, Case No. 13-10663C-7G, Case No. 13-10664C-7G, Jointly Administered in Case No. 13-10661, 2014 Bankr. LEXIS 3780, at *11 (M.D.N.C. Sept. 3, 2014)
("[T]here are various types of communications between attorney and client that are not privileged, as for example: communications made to an attorney seeking business judgment or advice, . . . Communications in which an attorney conveys to the client facts acquired from other persons or sources, . . . ; and pre-existing documents furnished by the client to the attorney that could have been obtained by court process while they were in the possession of the client")

Case Date Jurisdiction State Cite Checked
2014-09-03 Federal NC

Chapter: 17.9
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "Emails from Ms. Caporusso [Attorney] that merely transmit court orders or information received from the FOP or a court or agency: These are not privileged and must be produced")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal IL

Chapter: 17.9
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *20 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "Document 33 is a cover letter from Barnett [lawyer for the railroad] to Estreicher [consultant, who was a lawyer, but not acting in the legal capacity] enclosing their draft responses, including those of Mr. Bernard, Vice President and General Counsel, but noting that Mr. Bradley, head of Human Resources, has not yet reviewed it. The letter should be produced. Additionally, the response to Estreicher's report should be produced as it does not contain legal advice or a legal evaluation but, instead, sets forth facts and reflects in-house counsel and other responders' knowledge and expertise in personnel matters.")

Case Date Jurisdiction State Cite Checked
2014-02-04 Federal CT B 6/14

Chapter: 17.9
Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *12, *13-14, *14 n.1 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding attorney-client privilege protection inapplicable; "The court's in camera examination reveals that nearly all of Chamberlain's file materials could not be classified as privileged attorney-client communications because they are public records or Telamon's business records. The gathering of public and business records by an investigator, or the funneling of business documents through one's attorney's office (or through one's fraud investigator), does not make those documents privileged."; "[S]ome of the communications obviously were not made to obtain legal advice, were not maintained in confidence, or were not even intended as a confidential communication in the first place. For example, the communications include (a) an email chain sent by the lawyers to Chamberlain lauding its reputation as a fraud investigator; (b) emails to set up meetings; and (c) emails that do not involve counsel at all or any bona fide connection to legal advice. . . . [D]documents within Chamberlain's file reveal that Chamberlain's investigatory work was not inextricable from Barnes & Thornburg's provision of legal advice and that its work was conducted because Telamon had a pressing business reason to uncover what it believed was large-scale inventory fraud by one of its workers. Documents indicate that the use of Barnes & Thornburg as the nominee client to Chamberlain was for the purpose of attempting to shield Chamberlain's work as privileged. It is apparent, however, that Barnes & Thornburg did not in fact direct this investigation, but that Chamberlain designed the investigation and determined the records to gather and review, the persons to interview, the questions to be asked, and the manner of interrogation."; "Moreover, waiver principles would prevent the assertion of the privilege as to the majority of the Chamberlain investigative file. Telamon provided to the insurers a preliminary investigative report prepared by Chamberlain that it otherwise asserts was a privileged communication. That report summarizes 'key' interviews and documents. When the privilege is waived as to an attorney-client communication, the waiver extends to all communications on the same subject matter. . . . The subject matter of the preliminary report is the investigative work conducted by Chamberlain. By producing the preliminary report (apparently for the purpose of proving its insurance claim and the losses suffered), Telamon waived the privilege with respect to the documents in the investigative file that are the 'nuts and bolts' source documents of Chamberlain's work, including the interview summaries, document analyses, and investigative background summaries.")

Case Date Jurisdiction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 17.9
Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162330, at *15 (D. Conn. Nov. 14, 2013)
("[T]hese documents generally do not provide analysis or interpretation of legislation, and are more in the nature of general lobbying updates, progress reports, and summaries of legislative meetings. . . . To the extent the communications reflect conversations with public officials and offer no analysis, these are likewise unprotected. Accordingly, the Court finds that the following documents cannot validly claim attorney-client privilege or work-product protection.")

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal CT B 5/14

Chapter: 17.9
Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *17 (E.D. Va. Apr. 22, 2013)
("This email chain discusses the status of Plaintiff's preparation for oral argument before the Federal Circuit. These communications are simply status updates and no legal advice is given by counsel. Therefore, these communications are not privileged.")

Case Date Jurisdiction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 17.9
Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *18-19 (E.D. Va. Apr. 22, 2013)
("This email chain includes a discussion about the result of the Federal Circuit's opinion, but the only communication from DVSI counsel is one that informs DVSI that it had prevailed on part of its appeal. This alert does not amount to confidential communications and is not privileged.")

Case Date Jurisdiction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 17.9
Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *17 (E.D. Va. Apr. 22, 2013)
("This email chain is not protected because it deals with rescheduling oral argument before the Federal Circuit. Scheduling matters do not amount to legal advice and do not deal with strategy or motives. Therefore, the content of this chain is not protected by attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 17.9
Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *21 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "The vast majority of documents for which defendants claim attorney-client privilege are emails wherein Attorney Moore [Outside lawyer] and/or Howe [court Human Resource Manager] are summarizing the testimony of various witnesses and keeping AOC [defendant] employees updated on the progress of the AOC investigation. Defendants' blanket assertion of attorney-client privilege does not suffice to demonstrate that these emails constitute communications made for the purpose of seeking or transmitting legal advice.")

Case Date Jurisdiction State Cite Checked
2013-02-22 Federal NH B 3/14

Chapter: 17.9
Case Name: McCombs v. Paulsen, No. 3-12-0366, 2013 IL App (3d) 120366-U, ¶30
(in a medical malpractice case, holding that a lawyer's deposition summaries deserved privilege and work product protection, which was not waived when the lawyer shared the summaries with a testifying expert; "The next morning, after reviewing the summaries, the court found that the documents were prepared by Dr. Paulsen's attorneys and the facts detailed in the documents summarized what defense counsel felt were the most important parts of the other doctors' testimony. As such, the summaries represented defense counsels' mental impressions of the testimony and, consequently, were protected by both the attorney-client privilege and the work product privilege. The trial court denied plaintiffs' motion to compel.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 3/14

Chapter: 17.9
Case Name: McCombs v. Paulsen, No. 3-12-0366, 2013 IL App (3d) 120366-U, ¶50
(in a medical malpractice case, holding that a lawyer's deposition summaries deserved privilege and work product protection, which was not waived when the lawyer shared the summaries with a testifying expert; "As to privileged attorney-client communications, these summaries of the depositions, by their nature, reveal the attorney's mental processes in evaluating the communications and determining the important aspects of the depositions. These documents were shared only with Dr. Paulsen and his defense counsel in preparation for trial. As such, this is a communication that falls under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 3/14

Chapter: 17.14
Case Name: In re Syngenta AG Mir 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 11749 (D. Kansas Jan. 27, 2017)
("Caselaw in this district provides a wealth of guidance as to what is -- and is not -- protected by the attorney-client privilege. First, it is important to note that 'personal, confidential, [or] private information' is not necessarily privileged. 'As this Court has held repeatedly, 'confidential' does not equate to 'nondiscoverable' or privileged.' Second, it is clear that '[u]nderlying facts are not protected by the privilege.' 'Similarly, neither the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not 'communications.' Nor are 'general topics of attorney-client discussions' or ultimate 'legal conclusions' of counsel protected. Thus, for example, this court has held that the subject matters of an in-house attorney's discussions with company executives are not privileged.")

Case Date Jurisdiction State Cite Checked
2017-01-27 Federal KS
Comment:

key case


Chapter: 17.15
Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "In this instance, it is readily apparent that the purpose of counsel's solicitation of facts and provision of legal advice was to address the journalist's expected premise that the selection of assets for Citigroup's 401(k) Plan potentially implicated ERISA 's prohibition on self-dealing. Given that this exchange plainly contemplated the legal ramifications of Citigroup's response and was conducted by and at the direction of counsel, in their capacity as attorneys, the communications must be considered privileged."; "As for the applicability of the fiduciary exception, that exception does not apply where a plan administrator seeks legal advice for its own benefit or protection, rather than for the benefit of the plan and its beneficiaries. . . . Here, by contrast, the purpose of the legal advice contained in the News Inquiry Documents was to manage the public relations impact and potential litigation risk occasioned by what was expected to be a negative news article about the inclusion of proprietary funds in 401(k) plans. While the subject of the News Inquiry Documents was therefore related to plan administration, in that the content of the documents discussed the way in which fiduciary duties were carried out, Defendants' purpose in seeking out legal advice was not to obtain advice regarding the administration or investment of plan assets, and the implementation of that advice had no effect on the plan or its beneficiaries. Under these circumstances, it cannot be said that advice was provided to aid the beneficiaries, such that Defendants were not the true clients.")

Case Date Jurisdiction State Cite Checked
2015-10-16 Federal NY
Comment:

key case


Chapter: 17.15
Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "In the allegedly privileged communications, which the Court has reviewed in camera, counsel proceeded to discuss aspects of the administration of the 401(k) Plan with various Citigroup employees, for the evident purpose of formulating responses to these media inquiries."; "Courts have recognized that attorneys who have advised their clients on public relations matters continued to render legal advice where '[t]he legal ramifications and potential adverse use of such communications were material factors in the development of the communications.'")

Case Date Jurisdiction State Cite Checked
2015-10-16 Federal NY

Chapter: 17.201
Case Name: DeAngelis v. Corzine; In re MF Global Holdings Ltd. Investment Litig., 11 Civ. 7866 (VM) (JCF), 12 MD 2338, 2015 U.S. Dist. LEXIS 18207 (S.D.N.Y. Feb. 9, 2015)
("The privilege protects both the advice of the attorney to the client and the information communicated by the client that provides a basis for giving advice.")

Case Date Jurisdiction State Cite Checked
2015-02-09 Federal NY

Chapter: 17.201
Case Name: Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 U.S. Dist. LEXIS 159498, at *10-11 (N.D. Ill. Nov. 7, 2013)
("The protection extends to communications flowing from the client to the attorney, as well as to advice flowing from the attorney to the client.")

Case Date Jurisdiction State Cite Checked
2013-11-07 Federal IL B 5/14

Chapter: 17.201
Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *13 (D. Nev. June 18, 2013)
("The attorney-client privilege protects confidential disclosures made by a client to an attorney to obtain legal advice and an attorney's advice in response to such disclosures.")

Case Date Jurisdiction State Cite Checked
2013-06-18 Federal NV B 4/14

Chapter: 17.201
Case Name: Hedden v. Kean Univ., 82 A.3d 238, 245 (N.J. Super. Ct. App. Div. 2013)
(analyzing a situation in which a university coach disclosed a privileged draft letter to the NCAA during an investigation; "[W]e agree with the motion judge that as an employee of the University and acting within the scope of her employment, Sharp's [Coach] purpose in sending the e-mail to Tripodi [University lawyer] was to solicit his legal advice as University general counsel and, thus, an attorney-client relationship was formed. It is undisputed that in the e-mail Sharp asks Tripodi to review a draft of a fundraising letter and there would be no plausible reason for the request other than to solicit legal advice from counsel since Tripodi had no other involvement in University fundraising activities. . . . Tripodi well understood the nature of the inquiry because he reviewed the letter and later 'conveyed [his] legal opinion regarding the letter.'")

Case Date Jurisdiction State Cite Checked
2013-01-01 State NJ B 5/14

Chapter: 17.201
Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 377 (4th Cir. 2009)
("[T]he attorney-client privilege extends beyond communications in contemplation of particular litigation to communications regarding 'an opinion on the law,' e.g., United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 17.201
Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 375-76 (4th Cir. 2009)
("[T]he privilege 'protects "not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice."' Hanson v. U.S. Agency for Int'l Dev., 372 F.3d 286, 291 (4th Cir. 2004) (quoting Upjohn, 449 U.S. at 390)).")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 17.202
Case Name: Polk v. Sherwin-Williams Co., Case No. 3:16cv1491 (MPS), 2018 U.S. Dist. LEXIS 93201 (D. Conn. June 4, 2018)
(holding that plaintiff's argument that his former lawyer lacked authority to settle a case triggered an implied waiver; "These privileges, however, cannot be used both as a shield and as a sword. Here, plaintiff maintains that he did not agree to settle his claims with Sherwin-Williams . . . yet he refuses to produce communications with the attorneys whom he retained to negotiate a settlement with Sherwin-Williams. By asserting that Fortgang did not have authority to settle with defendant on his behalf, he has waived his attorney-client privilege with respect to communications about settlement.")

Case Date Jurisdiction State Cite Checked
2018-06-04 Federal CT

Chapter: 17.202
Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "In this instance, it is readily apparent that the purpose of counsel's solicitation of facts and provision of legal advice was to address the journalist's expected premise that the selection of assets for Citigroup's 401(k) Plan potentially implicated ERISA 's prohibition on self-dealing. Given that this exchange plainly contemplated the legal ramifications of Citigroup's response and was conducted by and at the direction of counsel, in their capacity as attorneys, the communications must be considered privileged."; "As for the applicability of the fiduciary exception, that exception does not apply where a plan administrator seeks legal advice for its own benefit or protection, rather than for the benefit of the plan and its beneficiaries. . . . Here, by contrast, the purpose of the legal advice contained in the News Inquiry Documents was to manage the public relations impact and potential litigation risk occasioned by what was expected to be a negative news article about the inclusion of proprietary funds in 401(k) plans. While the subject of the News Inquiry Documents was therefore related to plan administration, in that the content of the documents discussed the way in which fiduciary duties were carried out, Defendants' purpose in seeking out legal advice was not to obtain advice regarding the administration or investment of plan assets, and the implementation of that advice had no effect on the plan or its beneficiaries. Under these circumstances, it cannot be said that advice was provided to aid the beneficiaries, such that Defendants were not the true clients.")

Case Date Jurisdiction State Cite Checked
2015-10-16 Federal NY
Comment:

key case


Chapter: 17.202
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("[A]s memoranda analyzing legal implications of certain corporate transactions, these documents were made for the purpose of dispensing legal advice and were kept in confidence.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 17.202
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *9 (W.D. Wash. Sept. 19, 2014)
("[T]he documents are not privileged should they evidence Mr. Fearn's mental impressions regarding administrative decisions that he made with respect to Mr. Chandola, regardless of his status as an attorney, though they may be privileged to the extent that they primarily contain his mental impressions regarding the legality of such a decision. Further, the facts underlying any such legal advice are not privileged. Inspection of the documents themselves would be necessary in order to make these fine-grained distinctions.")

Case Date Jurisdiction State Cite Checked
2014-09-19 Federal WA

Chapter: 17.202
Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *11-12 (E.D.N.Y. Jan. 21, 2014)
(not for publication) (upholding a Magistrate Judge's opinion that neither the attorney-client privilege nor the work product doctrine protected communications between a Duane Morris lawyer and a corporate client's human resource executive; finding the attorney-client privilege inapplicable because the advice was primarily business-related and not legal; "This document contains an e-mail from Defendants' outside counsel, Ann Bradley, Esq. [Duane Morris lawyer], setting forth more than a full page of detailed, multi-part instructions on how to deal with Mr. Komoulis's personnel issues, including a recommendation that Defendants call Mr. Komoulis 'to express concern and disappointment, identify the fundamental problem and find out who he trusts to advise him,' and goes so far as to prescribe detailed instructions to be given to Plaintiff on how he should conduct himself with Defendants' customers. . . . This advice plainly is not legal advice, but rather human resources advice on personnel management and customer relations.")

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal NY B

Chapter: 17.202
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *7, *7-8, *8-9, *9-10 (N.D. Cal. Dec. 17, 2013)
(holding that documents prepared by Ben & Jerry's parent Unilever did not deserve privilege or work product protection, because they were prepared in the ordinary course of business, and there was no "actual litigation" anticipated; "Defendant has attached a declaration from Nancy Schnell, then an in-house counsel, which states that the document relates 'to the efforts by the company's U.S. and Global Regulatory and Legal Departments to create guidelines relating to 'natural' and 'all natural' claims.' . . . Defendant also points out that the document notes that formal approval by Legal and Regulatory is required before making any 'natural' claims and that 'Legal' is listed as the owner of the Global Policy on Guidance on the use of Natural Claims on Foods."; "The Court has reviewed the Framework Document in detail, and finds that while it is a sensitive, internal business document issued jointly by Unilever's Regulatory Affairs and Legal departments, it is protected by neither the attorney-client privilege nor the work-product doctrine. The Framework Document does not contain legal advice, and there is no indication that it was prepared in anticipation of litigation. The document touches briefly on the legislative and regulatory environment for natural claims, including two European court cases. . . . The document mentions, very generally, that legal considerations are involved in making natural claims, but nothing more specific."; "The document was issued by Regulatory Affairs and Legal, but the mere mention of the Legal department in the chain of events of approval of a natural claim is too general and non-specific to be covered by the attorney-client privilege. Unilever treated making a natural claim as a complex decision involving multiple departments, but the mere fact of some Legal Department involvement at various points does not rise to the level of legal advice or a request for legal advice.")

Case Date Jurisdiction State Cite Checked
2013-12-17 Federal CA B 5/14

Chapter: 17.202
Case Name: Koumoulis v. Independent Financial Marketing Group, Inc., No. 10-CV-0887 (PKC) (VMS), 2013 U.S. Dist. LEXIS 157299 (E.D.N.Y. Nov. 1, 2013)
January 8, 2014 (PRIVILEGE POINT)

"Court Takes a Very Narrow View of Legal Advice in a Corporate Setting"

Attorney-client privilege protection depends on content, and the key issue normally involves distinguishing between primarily legal and primarily business advice. Courts disagree about where to draw that line.

In Koumoulis v. Independent Financial Marketing Group, Inc., No. 10-CV-0887 (PKC) (VMS), 2013 U.S. Dist. LEXIS 157299 (E.D.N.Y. Nov. 1, 2013), the court examined communications between a Duane Morris lawyer and her corporate client's human resources employees. The court rejected privilege claims for most of the lawyer's communications. For instance, the court noted that the Duane Morris lawyer "sometimes told Human Resources employees exactly what questions to ask during interviews and what statements to make during meetings," and that "her advice would advance business goals, such as improving business relationships." Id. At *45. The court also noted that Duane Morris' "advice rarely involved 'the interpretation and application of legal principles to guide future conduct or to assess past conduct,'. . . And rarely explicitly considered future litigation." Id. At *45-46.

Not all courts would take this narrow view, but the decision provides a good lesson. Wise lawyers train their clients to explicitly explain in the four corners of their communications that they are seeking legal advice, that they are worried about litigation, etc. However, it is also important for lawyers to explicitly explain in their responses that they are providing legal advice (by mentioning legal principles, citing statutes or case law, etc.) and to mention litigation if the client reasonably anticipates it.

Case Date Jurisdiction State Cite Checked
2013-11-01 Federal NY
Comment:

key case


Chapter: 17.202
Case Name: In re McDowell, 483 B.R. 472, 487 (Bankr. S.D. Tex. 2012)
("An attorney is therefore not required to merely transpose the debtor's words onto the Schedules and SOFA, and the debtor's communications may well include more in his/her responses than is required for assembly. Thus, even under the White [United States v. White, 950 F.2d 426 (7th Cir. 1991)] bright-line dicta rule, communications from debtor to counsel may--at least in certain circumstances--be protected by the attorney client privilege.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal TX B 7/13

Chapter: 17.202
Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *47 (N.D.N.Y. Dec. 13, 2006)
("[I]f the attorney-client privilege extends to employees' statements surely it extends to the attorneys' notes, memoranda, and files pertaining to those statements.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16
Comment:

key case


Chapter: 17.202
Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *18 (E.D. Va. June 10, 2004)
("Item 7 is a Capital One Diversity Recruiting presentation, created by in-house counsel, and marked confidential and attorney-client privileged. The presentation was designed to provide legal advice and apprise senior management about legal risks associated with diversity issues. The presentation was treated confidentially, and in fact, copies of the presentation were collected after the presentation was made. Item 7 was clearly a communication falling within the attorney-client privilege, and contrary to Plaintiff's arguments, the style of the item in no way detracts from its privileged nature.")

Case Date Jurisdiction State Cite Checked
2004-06-10 Federal VA

Chapter: 17.203
Case Name: Nadeau v. Wealth Counsel LLC, No. 2:17-cv-00561-MCE-AC, 2018 U.S. Dist. LEXIS 100125 (E.D. Cal. June 14, 2018)
(holding that an employment discrimination investigation was not primarily motivated by legal concerns; "Investigation notes are not themselves communications with counsel. Any transmission of the notes to counsel would constitute a privileged communication.")

Case Date Jurisdiction State Cite Checked
2018-06-14 Federal CA

Chapter: 17.203
Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)
("Viad asserts that attorney authorship of the notations is established by the fact that the documents were found in the law department's files. . . . It explains that it cannot identify specific authors because Viad employed up to 35 attorneys at one time. . . . But even if these facts could be used to show that lawyers made the notations, Viad has failed to provide any evidence that the notations were ever communicated to anyone. Arizona's corporate attorney-client privilege protects 'communication[s].' A.R.S. § 12-2234(B). Viad has made no effort to show that the notations were prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal AZ

Chapter: 17.203
Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("[T]he privilege does not protect 'the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case; and it is equally unrelated to writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories.' See Hickman v. Taylor, 329 U.S. 495, 508, 67 S. Ct. 385, 91 L. Ed. 451 (1947). The 'attorney's notes and personal musings [which] do not constitute 'communications,' are not privileged, and must be produced.' In re Gabapentin Patent Litig., 214 F.R.D. at 187."; "At most Mahoney, by declaration, claims that because Knedlik relied on information received from her clients in performing her duties as their attorney, some client information might be contained in her notes. Mahoney does not contend that Knedlik's notes are comprised solely of information obtained from clients and nothing else. Our in camera review of these documents indicates that at least some portions of the notes contain attorney musings rather than client information.")

Case Date Jurisdiction State Cite Checked
2016-08-25 Federal PA
Comment:

key case


Chapter: 17.203
Case Name: Broadrock Gas Services, LLC v. AIG Specialty Insurance Co., No. 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. Mar. 2, 2015)
May 6, 2015 (PRIVILEGE POINT)

“Do Lawyers' Memos to the File Deserve Privilege Protection?”

Not surprisingly, many lawyers think the attorney-client privilege (if not the whole world) revolves around them. Actually, the privilege primarily protects clients' communications to lawyers, not vice versa. And because the privilege normally protects only client-lawyer communications, lawyers face an uphill climb when seeking privilege protection for documents they have not sent to their clients.

In Broadrock Gas Services, LLC v. AIG Specialty Insurance Co., No. 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. Mar. 2, 2015), defendant claimed privilege protection for a K&L Gates lawyer's memorandum to the file analyzing insurance coverage issues. In an opinion by Judge Dolinger, the court first noted that there was "no evidence in our record" that (1) K&L Gates sent the memo to the client; (2) K&L "used [it] to advise the client"; or (3) the memo "described or embodied the substance of any communication between the client and the attorney." Id. at *7. The court rejected defendant's privilege claim — emphasizing that the privilege "is limited to communications between client and attorney" or others facilitating the attorney-client relationship. Id. The court also quoted an earlier Southern District of New York decision holding that the privilege did not protect "'documents embodying uncommunicated thoughts of counsel, as in the form of notes or memoranda to the file.'" Id. at *7-8 (quoting Bodega Invs., LLC v. United States, No. 08 Civ. 4065 (RMB)(MHD), 2009 U.S. Dist. LEXIS 48513, at *27 n.5 (S.D.N.Y. May 14, 2009)).

In assessing privilege protection, lawyers should recognize their secondary role — and not assume that their uncommunicated documents automatically deserve privilege protection.

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY
Comment:

key case


Chapter: 17.203
Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; finding that a K&L Gates's memorandum to the file did not deserve privilege protection; "[T]he document was apparently a memorandum prepared by a Gates attorney for insertion in the file, and there is no evidence in our record that it was provided to RIRRC or used to advise the client, or that it described or embodied the substance of any communication between the client and the attorney. In the absence of such a showing by defendant, the privilege would not apply, since it is limited to communications between client and attorney or between their respective representatives or with others 'who are facilitating the rendition of legal services by the lawyer.'. . . It follows that the privilege does not protect 'documents embodying uncommunicated thoughts of counsel, as in the form of notes or memoranda to the file.'")

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY
Comment:

key case


Chapter: 17.203
Case Name: Dempsey v. Bucknell University, Civ. A. No. 4:11-CV-1679, 2013 U.S. Dist. LEXIS 144636, at *27-28 (M.D. Pa. Oct. 7, 2013)
December 11, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part III"

The last two Privilege Points described ways in which the work product doctrine provides less protection than the attorney-client privilege. However, in some situations the work product doctrine can apply when the privilege cannot.

In U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811 & 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *28 (S.D.N.Y. Oct. 3, 2013), the court confirmed that the work product doctrine can protect "the identities of people interviewed as part of counsel's investigation" – if disclosing those identities has "the potential to reveal counsel's opinion, thought processes, or strategies." The privilege cannot protect such information, because it covers only client-lawyer communications. Also, work product protection does not depend on a communication, in contrast to the attorney-client privilege. In Dempsey v. Bucknell University, Civ. A. No. 4:11-CV-1679, 2013 U.S. Dist. LEXIS 144636, at *27-28 (M.D. Pa. Oct. 7, 2013), the court found the privilege inapplicable to a lawyer's agents' "strategy notes" – because "there is nothing to suggest that these documents themselves were communicated to … counsel, nor that they contain references to any privileged communications within them." However, the court extended work product protection to the notes.

Lawyers should remember that the work product doctrine can protect documents that would not deserve privilege protection, and vice versa. The differing strengths and weaknesses of the two protections should prompt lawyers to consider both.

Case Date Jurisdiction State Cite Checked
2013-10-07 Federal PA
Comment:

key case


Chapter: 17.203
Case Name: U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811 & 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *28 (S.D.N.Y. Oct. 3, 2013)
December 11, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part III"

The last two Privilege Points described ways in which the work product doctrine provides less protection than the attorney-client privilege. However, in some situations the work product doctrine can apply when the privilege cannot.

In U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811 & 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *28 (S.D.N.Y. Oct. 3, 2013), the court confirmed that the work product doctrine can protect "the identities of people interviewed as part of counsel's investigation" – if disclosing those identities has "the potential to reveal counsel's opinion, thought processes, or strategies." The privilege cannot protect such information, because it covers only client-lawyer communications. Also, work product protection does not depend on a communication, in contrast to the attorney-client privilege. In Dempsey v. Bucknell University, Civ. A. No. 4:11-CV-1679, 2013 U.S. Dist. LEXIS 144636, at *27-28 (M.D. Pa. Oct. 7, 2013), the court found the privilege inapplicable to a lawyer's agents' "strategy notes" – because "there is nothing to suggest that these documents themselves were communicated to … counsel, nor that they contain references to any privileged communications within them." However, the court extended work product protection to the notes.

Lawyers should remember that the work product doctrine can protect documents that would not deserve privilege protection, and vice versa. The differing strengths and weaknesses of the two protections should prompt lawyers to consider both.

Case Date Jurisdiction State Cite Checked
2013-10-03 Federal NY
Comment:

key case


Chapter: 17.203
Case Name: Harrier Techs., Inc. v. CPA Global Ltd., Civ. No. 3:12CV167 (WWE), 2012 U.S. Dist. LEXIS 177119, at *6-7 (D. Conn. Dec. 14, 2012)
(holding that the privilege did not protect internal law firm communications; "Kenyon asserts an attorney-client and work product privilege for an internal memorandum circulated among Kenyon employees, dated September 25, 2010. By and large, this internal memorandum does not satisfy the first requirement of the attorney-client privilege test that the communication be between client and attorney.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal CT B 9/13

Chapter: 17.203
Case Name: Peterson v. Commonwealth of Va., 82 Va. Cir. 497, 498 (Va. Cir. Ct. 2011)
("From a review of Heidbreder's [Virginia Tech in house lawyer, who was a member of the Virginia Tech Emergency Policy Group] notes, it is apparent that she is chronicling information and events as they are being revealed to the Emergency Policy Group. She, as any other member of the group, was free to take notes during the course of the meetings. With one exception, her notes are not confidential communications nor is there any indication that her notes were intended to be confidential. There is nothing to indicate that she was making notes in order to give legal advice. Her notes are nothing more than a recording of the facts she learned during the course of the day as a member of the Group. I find the notes are not confidential communications and not privileged with the exception of those made at 6:00 p.m. in regard to points Ms. Heidbreder intended to make at a briefing. Plaintiffs' motion to overrule the Commonwealth's claim of attorney-client privilege is granted. The notes will be turned over to plaintiffs' counsel with the exception of Heidbreder's briefing notes, which have been redacted.")

Case Date Jurisdiction State Cite Checked
2011-01-01 State VA

Chapter: 17.203
Case Name: Bodega Invs., LLC v. United States, No. 08 Civ. 4065 (RMB)(MHD), 2009 U.S. Dist. LEXIS 48513, at *27 n.5 (S.D.N.Y. May 14, 2009)
May 6, 2015 (PRIVILEGE POINT)

“Do Lawyers' Memos to the File Deserve Privilege Protection?”

Not surprisingly, many lawyers think the attorney-client privilege (if not the whole world) revolves around them. Actually, the privilege primarily protects clients' communications to lawyers, not vice versa. And because the privilege normally protects only client-lawyer communications, lawyers face an uphill climb when seeking privilege protection for documents they have not sent to their clients.

In Broadrock Gas Services, LLC v. AIG Specialty Insurance Co., No. 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. Mar. 2, 2015), defendant claimed privilege protection for a K&L Gates lawyer's memorandum to the file analyzing insurance coverage issues. In an opinion by Judge Dolinger, the court first noted that there was "no evidence in our record" that (1) K&L Gates sent the memo to the client; (2) K&L "used [it] to advise the client"; or (3) the memo "described or embodied the substance of any communication between the client and the attorney." Id. at *7. The court rejected defendant's privilege claim — emphasizing that the privilege "is limited to communications between client and attorney" or others facilitating the attorney-client relationship. Id. The court also quoted an earlier Southern District of New York decision holding that the privilege did not protect "'documents embodying uncommunicated thoughts of counsel, as in the form of notes or memoranda to the file.'" Id. at *7-8 (quoting Bodega Invs., LLC v. United States, No. 08 Civ. 4065 (RMB)(MHD), 2009 U.S. Dist. LEXIS 48513, at *27 n.5 (S.D.N.Y. May 14, 2009)).

In assessing privilege protection, lawyers should recognize their secondary role — and not assume that their uncommunicated documents automatically deserve privilege protection.

Case Date Jurisdiction State Cite Checked
2009-05-14 Federal NY
Comment:

key case


Chapter: 17.203
Case Name: Sheeks v. El Paso County Sch. Dist. No. 11, Civ. A. No. 04-cv-1946-ZLW-CBS, 2006 U.S. Dist. LEXIS 27579, at *3 (D. Colo. Apr. 12, 2006)
("Defendant has cited no authority, and the Court has found none, indicating that internal law firm communications which are not conveyed to the client are covered by the attorney client privilege.")

Case Date Jurisdiction State Cite Checked
2006-04-12 Federal CO
Comment:

key case


Chapter: 17.203
Case Name: Patel v. Allison, 54 Va. Cir. 155, 158-59 (Va. Cir. Ct. 2000)
(holding that a number of documents in a lawyer's files did not reflect privileged communications with a client, and therefore were not protected by the attorney-client privilege)

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA

Chapter: 17.203
Case Name: Ziemack v. Centel Corporation, No. 92 C 3551, 1995 U.S. Dist. LEXIS 6942 (N.D. Ill. May 19, 1995)
(holding that the privilege did not protect plaintiff's notes and did not contain privileged communications; "The following documents are not privileged: 66, 101, 102, 162, 192, 193, 254, 256, 257, 263, 585, 677, 779, 803, 807, 812, and 984. The attorney-client privilege applies only to documents which contain confidential information from the client. Although these documents are alleged to contain legal advice, there is no indication in the privilege-log that this advice relates to any confidential client communication. Documents in this category include attorneys' notes, which are discoverable unless they pertain to confidential client communication (or have work-product immunity).")

Case Date Jurisdiction State Cite Checked
1995-05-19 Federal IL
Comment:

key case


Chapter: 17.302
Case Name: Greater New York Taxi Assoc. v. The City of New York, 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017)
(in an opinion by Magistrate Judge Francis, finding that some employee-to-employee communications deserved privilege protection as an implicit request for legal advice, but some do not; also holding that a lawyer's notes of a meeting can deserve opinion work product protection; "The plaintiffs argue that the attorney-client privilege cannot apply to these documents because they are communications between two attorneys. . . . However, '[i]n the governmental context, the 'client' may be the agency and the attorney may be an agency lawyer.'. . . a communication between two government attorneys may be protected by the attorney-client privilege where one attorney 'play[s] the role as the requester of legal advice on behalf of the [agency].'"; "Thus, Ms. Cohen was effectively the 'requester of legal advice' on behalf of the TLC -- advice that she used to decide what enforcement actions the agency (the client) would take.")

Case Date Jurisdiction State Cite Checked
2017-09-11 Federal NY
Comment:

key case


Chapter: 17.302
Case Name: Supreme Forest Prods., Inc. v. Kennedy, No. 3:16-cv-0054 (JAM), 2017 U.S. Dist. LEXIS 4421 (D. Conn. Jan. 12, 2017)
(holding that the privilege protected communications between two former company employees who had filed separate lawsuits against the same employer, using the same lawyer; finding it unnecessary for them to do an identical interest because they were jointly represented by the same lawyer rather than creating a common interest agreement; finding that the privilege did not protect the two clients' employee without the lawyer present; "[T]he attorney-client privilege may properly extend to communications that occur between an attorney in the presence of two or more clients that the attorney jointly represents."; "Here, it is clear to me that Kennedy and Welch share a common interest based on their highly similar employment claims brought against the same employer. They are for all practical purposes jointly represented by one attorney, and the fact that their attorney filed separate lawsuits rather than joining his two clients together in a single lawsuit does not dispel the application of the co-client privilege. If the clients share a common interest, the co-client rule requires joint representation, not necessarily joint litigation."; "This 'community of interest' privilege, however, differs from the co-client privilege. . . . For the co-client privilege, it suffices for the clients to have a common interest, not necessarily interests that are identical in all respects. So long as their interests are common, co-clients who consult the same lawyer would reasonably expect that their communications with the lawyer to which they are mutually privy would be protected from disclosure to third parties by the attorney-client privilege. The legitimate expectation of privilege is unmistakably higher in the co-client context than the broader community-of-interest context involving parties who are not represented by the same counsel."; "In any event, Kennedy and Welch had nearly identical legal interests. They both sought legal representation to pursue what was essentially the same major claim -- that Supreme Forest Products had violated federal law by retaliating against them when they resisted driving overweight vehicles. There were, of course, minor factual differences between their claims, but the gravamen of their complaint --Supreme Forest's alleged insistence on driving illegally loaded vehicles, and its alleged willingness to retaliate against drivers who didn't toe the line -- was the same. Although Welch had an additional claim related to his post-termination health benefits, the fact that Welch had an additional interest in his suit does not vitiate his common interest with Kennedy. I therefore find that defendants' interests were sufficiently common for them to properly invoke the co-client attorney-client privilege."; "Plaintiffs further contend that there is no evidence that Kennedy and Welch had a joint representation agreement with their counsel prior to when they were sued by plaintiffs in January 2016. But this argument ignores the course of dealing between defendants prior to January 2016 when they had both retained counsel within days of each other in May 2014 to represent them for purposes of the claims they eventually filed against Supreme Forest Products, Inc. Even if prior to January 2016 Kennedy and Welch did not have a formal written agreement of joint representation, it is clear to me that they would have justifiably expected their co-client communications with counsel to be protected by the privilege.")

Case Date Jurisdiction State Cite Checked
2017-01-12 Federal CT
Comment:

key case


Chapter: 17.302
Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
("JWRW 012463 is an email communication from Mary Russell, a Jones Waldo [Law firm] staff member, transmitting a confidential client communication to Mr. Wilson [Jones Waldo lawyer]. The email is protected attorney-client communication. See Himmelfarb v. U.S. 175 F.2d 924, 939 (9th Cir. 1949) (where presence of third party, such as attorney's secretary, is indispensable to delivery of legal advice, privilege is not waived).")

Case Date Jurisdiction State Cite Checked
2015-03-17 Federal ID

Chapter: 17.302
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 104 (Fed. Cl. 2013)
("Just as an attorney's interpretation of a statute, regulation, or contract may be privileged, even though the information underlying the attorney's interpretation is in the public domain, the privilege may apply to defendant's internal requests for legal advice regardless of whether the information that serves as the basis for those requests is confidential.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal Other B 3/14

Chapter: 17.302
Case Name: Bozella v. Cnty. of Dutchess, No. 10 Civ. 4917 (CS) (GAY), 2012 U.S. Dist. LEXIS 149586, at *4 (S.D.N.Y. Oct. 17, 2012)
("[C]ommunications between counsel who share the same client would be covered by the attorney client privilege.")

Case Date Jurisdiction State Cite Checked
2012-10-17 Federal NY B 12/13

Chapter: 17.302
Case Name: Fed. Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 66 (E.D. Va. 1998)
("The attorney client privilege applies not only to communications from the lawyer to the client, but also extends 'to protect communications by the lawyer to his client, agents, or superiors, or to other lawyers in the case of joint representation, if those communications reveal confidential client communications."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 17.303
Case Name: Sheeks v. El Paso County Sch. Dist. No. 11, Civ. A. No. 04-cv-1946-ZLW-CBS, 2006 U.S. Dist. LEXIS 27579, at *3 (D. Colo. Apr. 12, 2006)
("Defendant has cited no authority, and the Court has found none, indicating that internal law firm communications which are not conveyed to the client are covered by the attorney client privilege.")

Case Date Jurisdiction State Cite Checked
2006-04-12 Federal CO
Comment:

key case


Chapter: 17.304
Case Name: Valassis Communications, Inc. v. News Corporation, 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
(after reviewing documents in camera; "Both parties agree that training materials and policy documents can amount to legal advice protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2018-09-19 Federal NY

Chapter: 17.304
Case Name: In re Domestic Drywall Antitrust Litig., MDL No. 2437, 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014)
(concluding that a company's antitrust compliance policy did not deserve privilege protection; "Construing the attorney-client privilege narrowly, application of the privilege should ordinarily be limited to legal advice leading to a decision by the client. CertainTeed's policy, by contrast, is general and does not contain any specific advice. Its purpose is to help insure that its employees do not violate the antitrust laws. No court has yet held that a corporate policy of lawfulness is protected from discovery as privileged. Moreover, there is no evidence CertainTeed's parent company would have refrained from creating the policy absent the privilege."; "CertainTeed's antitrust compliance policy is more akin to a reference or instructional guide. Although it is based on legal advice, the policy is primarily a business policy.")

Case Date Jurisdiction State Cite Checked
2014-10-09 Federal PA

Chapter: 17.305
Case Name: In re Domestic Drywall Antitrust Litig., MDL No. 2437, 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014)
(concluding that a company's antitrust compliance policy did not deserve privilege protection; "Construing the attorney-client privilege narrowly, application of the privilege should ordinarily be limited to legal advice leading to a decision by the client. CertainTeed's policy, by contrast, is general and does not contain any specific advice. Its purpose is to help insure that its employees do not violate the antitrust laws. No court has yet held that a corporate policy of lawfulness is protected from discovery as privileged. Moreover, there is no evidence CertainTeed's parent company would have refrained from creating the policy absent the privilege."; "CertainTeed's antitrust compliance policy is more akin to a reference or instructional guide. Although it is based on legal advice, the policy is primarily a business policy.")

Case Date Jurisdiction State Cite Checked
2014-10-09 Federal PA

Chapter: 17.305
Case Name: West Virginia v. Honorable Louis H. Bloom, No. 13-1172, 2014 W. Va. LEXIS 345 (W. Va. App. April 10, 2014)
(holding that the insurance company's national coverage counsel's training materials deserved privileged protection; "The circuit court ordered CRW to disclose all seminar or training materials it prepared for any insurer or industry group involving coverage interpretation or extra-contractual liability. The Petitioners argue that these documents were prepared for nonparties and are protected by the attorney-client privilege."; "The decision in Santer [Santer v. Teachers Insurance and Annuity Association, No. 06-CV-1863, 2008 U.S. Dist. LEXIS 23364, 2008 WL 821060 (E.D. Pa. Mar. 25, 2008)] is instructive on the resolution of the seminar/training materials sought in this case. We have reviewed all of the documents submitted under this discovery request. All of the documents reflect CRW's legal opinion on specific topics. The documents explain legal concepts and procedures and specific policy issues. As recognizes in Santer, these documents clearly demonstrate specific requests by CRW's clients for legal opinions on specific subjects. Further, as in Santer, we find these documents are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-04-10 State WV

Chapter: 17.305
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 104 (Fed. Cl. 2013)
("The passage is an endorsement at the bottom of the Memorandum, which reveals only that an attorney reviewed the Memorandum, stating: 'This memo was endorsed by: Major Michael S. Martin, USAF Deputy Command Judge Advocate Joint Contracting Command -- Iraq/Afghanistan See next page.' (emphasis in original). As plaintiff notes, defendant has not explained how an attorney's endorsement of the Memorandum reveals the substance of a request for legal advice, particularly given that Maj. Martin's name and information is not redacted on the 'next page' of available copies of the Memorandum. The 'next page' immediately following the attorney's endorsement, which like the previous page is numbered '12 of 12,' reveals that the endorsement signifies only that the attorney 'concur[red] with the foregoing summary of JA involvement with restructuring contract W27P4A-05-C-0002.'")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal Other B 3/14

Chapter: 17.401
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *11 (D. Del. Oct. 25, 2013)
("The privilege applies to communications from an attorney to a client as well as from a client to its attorney.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 17.402
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
("Similarly, communications from the attorney to the client may be privileged if they constitute legal advice or would reveal the substance of a client confidence -- directly or indirectly.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL

Chapter: 17.402
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
("The court finds that Sutter has not met its burden of establishing that this document is privileged. The court notes as an initial matter that Sutter's original privilege log stated that this document 'reflect[ed] legal advice' from an in-house attorney, but Sutter's revised submission to the court now states that this document was forwarded to the in-house attorney for her legal advice on the contents of the document. Either way, this document relates to business strategies and is not a communication seeking legal advice, and as discussed above, neither vaguely stating that a business document somehow 'reflects' legal advice nor forwarding a preexisting business document to an attorney for her review renders the document a privileged communication.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA
Comment:

key case


Chapter: 17.402
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("Document 424 consists of PowerPoint slides showing photographs of jackets along with the names and prices of those jackets. The Fifth Log states that this was an internal document sent from a member of YKK's legal department to YKK. But the document does not discuss or refer to any legal principles. The presentation is simply a compilation of factual information, seemingly collected from the internet, and it could have easily been prepared by a non-lawyer. Thus, the presentation does not involve legal advice and is not covered by attorney-client privilege. Defendants must produce Document 424.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY

Chapter: 17.402
Case Name: Albritton v. CVS Caremark Corp., Case No. 5:13-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 157730 (W.D. Ky. Nov. 23, 2015)
("Some courts require that the communications reveal or implicate a prior, privileged communication from a client. . . . Other Courts allow for a broader protection of communications from an attorney to a client when the communication is made to render legal advice, regardless of if the communication reveals the prior confidences of the client.")

Case Date Jurisdiction State Cite Checked
2015-11-23 Federal KY

Chapter: 17.402
Case Name: Albritton v. CVS Caremark Corp., Case No. 5:130-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 152236 (W.D. Ky. Nov. 10, 2015)
("The remaining two documents were authored by Defendant's outside counsel, Meredith Young. The elements of attorney client privilege establish that the privilege protects communications from clients to attorneys. . . . The privilege may or may not apply when the attorney initiates the communication. . . . The privilege provides derivative protection when an attorney's communication to his or her client contains or would reveal a confidential communication previously made by the client."; "While other courts have recognized the proposition that generally an attorney's advice to his or her clients rests upon the prior privileged communications made to the attorney, the burden of establishing the privilege remains with its claimant. . . . On the record before it, the Court cannot determine that the attorney-client privilege extends to the two e-mails sent by Ms. Young.")

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal KY

Chapter: 17.402
Case Name: Beverly v. Watson, No. 14 C 4970, 2015 U.S. Dist. LEXIS 114146 (N.D. Ill. Aug. 28, 2015)
("Though the privilege generally applies only to communications made by the client, 'statements made by the lawyer to the client will be protected where those communications rest on confidential information obtained from the client, or where those communications would reveal the substance of a confidential communication by the client.'")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal IL

Chapter: 17.402
Case Name: United States v. Sanmina Corp., Case No.: 5-15-cv-00092-PSG, 2015 U.S. Dist. LEXIS 66123 (N.D. Cal. May 20, 2015)
(rejecting the IRS's discovery of two documents mentioned in a report that DLA Piper sent to the IRS on behalf of its client; "Sanmina sufficiently shows the memoranda constituted tax advice from lawyers to Sanmina -- not merely preparation of tax returns or number crunching -- such that the attorney client privilege attaches. The attorney client privilege protects communications between a client and its attorney related to the purpose of securing legal advice, as well as legal advice provided by the attorney that would reveal the content of the confidential communications. The privilege applies equally to communications from the client to its attorney and from the attorney to its client. It also applies in proceedings to enforce IRS summonses, and specifically to legal advice relating to a tax claim. Sanmina has shown that both memos contain legal analysis, were prepared by Sanmina's tax department lawyers, and were provided confidentially to company personnel who had a need for legal advice.")

Case Date Jurisdiction State Cite Checked
2015-05-20 Federal CA

Chapter: 17.402
Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924 (S.D. Fla. April 8, 2015)
("Under Florida Statute § 90.502(2), a client possesses the privilege to refuse disclosure of confidential communications made during the rendition of legal services to the client. That statute applies to both communications from the client to the attorney and from the attorney to the client. A communication is confidential if it is not intended to be disclosed to third persons.")

Case Date Jurisdiction State Cite Checked
2015-04-08 Federal FL

Chapter: 17.402
Case Name: Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197, 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015)
("Notable in the present matter, '[t]he attorney-client privilege protects two related, but different, communications: (1) confidential communications made by a client to his lawyer for the purpose of obtaining legal advice; and (2) any communication from an attorney to his client when made in the course of giving legal advice, whether or not that advice is based on privileged communications from the client.'")

Case Date Jurisdiction State Cite Checked
2015-01-05 Federal LA
Comment:

key case


Chapter: 17.402
Case Name: North Dakota v. United States, Case No. 1:12-CV-125 (Lead Case), Case No. 1:12-CV-102 (Consolidated Case), 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
(analyzing privilege protection for a government entity; "If the only justification for the attorney-client privilege is to encourage full disclosure of information by the client to the attorney as some have suggested, an argument could be made that only what is communicated by the client in confidence to the attorney should be treated as privileged and not vice-versa. . . . However, today most courts would consider privileged at least some communications from an attorney to a client with the principal disagreement being over to what extent."; "'The most narrow approach is that communications from the attorney to the client are privileged only if they reveal a confidential communication from the client to the attorney or, slightly more broadly, do so circumstantially.'"; "Another approach, which is deemed by some to be an 'intermediate' one, is that attorney communications are privileged if they are based on confidential information provided by the client. A case often cited for this approach.'"; "'The broadest approach is that attorney opinions and communications are privileged if made or rendered during the course of giving legal advice, irrespective of any relationship to a confidential communication by the client or the client having provided confidential information.'"; "The parties have not cited to an Eighth Circuit case expressly adopting one of the three approaches. However, as discussed later, it appears the Eighth Circuit has at least implicitly adopted the broadest approach.")

Case Date Jurisdiction State Cite Checked
2014-11-25 Federal ND
Comment:

key case


Chapter: 17.402
Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("[I]t would be a stretch to describe as a request for 'legal review' a June 24, 2010 e-mail addressed to Mr. Klinger, copying Mr. Hunt [Lawyer] and several others, stating only that '[a]ttached is the latest version of the [bankruptcy] emergence [presentation to potential investors], reflecting all comments & changes to date.'. . . There is no indication that Mr. Hunt ever even responded to this message and, in any event, the attached PowerPoint slides clearly contain no legal advice.")

Case Date Jurisdiction State Cite Checked
2014-11-12 Federal IL

Chapter: 17.402
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("The privilege applies to communications from an attorney to a client as well as from a client to its attorney.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 17.402
Case Name: In re Domestic Drywall Antitrust Litig., MDL No. 2437, 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014)
(concluding that a company's antitrust compliance policy did not deserve privilege protection; "There is a split between courts as to whether communications from attorney to client are privileged only to the extent confidential client information is revealed or more broadly to the extent they contain privileged legal advice. Compare In re Six Grand Jury Witnesses, 979 F.2d 939, 943-44 (2d Cir. 1992) (privilege applies only to the extent attorney communication reveals client confidences) with United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980) (privilege applies to attorney communication regardless of whether it reveals client confidences).")

Case Date Jurisdiction State Cite Checked
2014-10-09 Federal PA
Comment:

key case


Chapter: 17.402
Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *9-10 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "Although the privilege is deemed generally to apply only to communications by the client, statements made by the lawyer to the client will be protected where those communications rest on confidential information obtained from the client, or where those communications would reveal the substance of a confidential communication by the client.")

Case Date Jurisdiction State Cite Checked
2014-06-10 Federal IL

Chapter: 17.402
Case Name: Transcontinental Refrigerated Lines, Inc. v. New Prime, Inc., Civ. No. 1:13-CV-2163, 2014 U.S. Dist. LEXIS 75320, at *26 n.10 (M.D. Pa. June 3, 2014)
(addressing a situation in which a liquidation trustee sought documents from a law firm, which argued that it had represented the CEO personally rather than a company; concluding that the required analysis involved a document-by-document analysis; ultimately concluding that the representation had started as a personal representation but then became a representation of the company -- which had the only interest in asset transaction the law firm handled; "HTD 1372 is a stock, out-of-office email response from Attorney Kalnis to Hrobuchak and does not contain confidential material.")

Case Date Jurisdiction State Cite Checked
2014-06-03 Federal PA

Chapter: 17.402
Case Name: MediaTek Inc. v. Freescale Semiconductor, Inc., Case No. 4:11-cv-05341 YGR (JSC), 2013 U.S. Dist. LEXIS 147032, at *5 (N.D. Cal. Oct. 10, 2013)
("The attorney-client privilege protects confidential disclosures made by a client to an attorney to obtain legal advice, as well as an attorney's advice in response to such disclosures.")

Case Date Jurisdiction State Cite Checked
2013-10-10 Federal CA B 5/14

Chapter: 17.402
Case Name: Earthworks v. U.S. Dept. of the Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *2-3 (D.D.C. Apr. 2, 2013)
("Review of privilege logs often discloses that the person doing the log may not understand the intricacies of the privileges being claimed. Perhaps the greatest deficiency is the failure to appreciate that the attorney-client privilege does not operate to insulate from disclosure every possible communication between an attorney and client. It should be obvious that communications from the attorney to client are not ipso facto protected. To the contrary, the privilege operates to shield communications from an attorney to a client 'only if that communication is based on confidential information provided by the client.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-04-02 Federal DC B 3/14

Chapter: 17.402
Case Name: Earthworks v. United States Dep’t of Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013)
June 26, 2013 (PRIVILEGE POINT)

"Does the Privilege Protect a Lawyer's Draft Document?"

Most courts recognize the abstract principle that lawyers' communications to their clients deserve privilege protection only if the communication contains or otherwise reflects client confidences. For example, the privilege normally does not protect a lawyer's verbatim transmittal to a client of what the lawyer learned from some government official or other third party.

How does this basic principle apply to draft documents a lawyer prepares? Most courts protect such draft documents, explaining, for example, that "[d]rafting legal documents is a core activity of lawyers, and obtaining information and feedback from clients is a necessary party of the process." Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994). However, some courts take a narrower approach. In Earthworks v. United States Dep’t of Interior, the court held that "the lawyer's draft, transmitted to [clients], does not yield any confidential communication from them." Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013). Fortunately, the court acknowledged that this approach would apply "particularly . . . In a governmental situation," in which "the lawyer may be the chief draftsperson of the particular document which she then sends to her co-workers for their views and thoughts." Id.

Most lawyers would be surprised to hear that the privilege does not protect all draft documents they prepare for their client's review. While most courts do apply the privilege that broadly, lawyers should remember that the privilege exists primarily to protect what their clients tell them.

Case Date Jurisdiction State Cite Checked
2013-04-02 Federal DC
Comment:

key case


Chapter: 17.402
Case Name: Cnty. of San Mateo v. v. CSL Ltd. (In re Plasma-Derivative Protein Therapies Antitrust Litig.), No. 09 C 7666, No. 11 C 1468, 2013 U.S. Dist. LEXIS 29624, at *12 (N.D. Ill. Mar. 4, 2013)
(holding that the presence of a third party during otherwise privileged communications destroyed privilege protection; "Communications from an attorney to the client are privileged only to the extent that they reveal confidential information from the client. . . . Legal advice or communications are not protected unless the proponent of the privilege demonstrates that such advice or communications relate to prior, confidential client communications.")

Case Date Jurisdiction State Cite Checked
2013-03-04 Federal IL B 3/14

Chapter: 17.402
Case Name: Judicial Watch, Inc. United States Dep't of Homeland Sec., 926 F. Supp. 2d 121, 146 (D.D.C. 2013)
("[E]ven putting aside the evident purpose of the communications, the DHS has failed to demonstrate that the communications themselves rest on confidential information obtained from the client. As this Court stated in its prior Memorandum Opinion, 'where, as here, an agency cites the attorney-client privilege as a basis for withholding communications running from the attorney to the client,' such communications are 'eligible for protection only if they rest on confidential information obtained from the client.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal DC B 3/14

Chapter: 17.402
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1221 (Ill. 2013)
("The purpose of the privilege, which belongs to the client . . ., is to encourage and promote full and frank communication between the client and his or her attorney, without the fear that confidential information will be disseminated to others. . . . The privilege embodies the principle that sound legal advice and advocacy are dependent upon such full and frank communication."; "Although this formulation of the privilege suggests that only communications 'by the client' are protected from disclosure, the modern view is that the privilege is a two-way street, protecting both the client's communications to the attorney and the attorney's advice to the client.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State IL B 5/14

Chapter: 17.402
Case Name: Am. Immigration Council v. United States Dep't of Homeland Sec., 905 F Supp. 2d 206, 223 (D.D.C. 2012)
("USCIS [United States Citizen & Immigration Services] offers no explanation of what confidential client communications might underlie these slides, and the slides themselves do not hint at underpinning confidentialities. Nor should they. The slides were used for general trainings by USCIS lawyers, and such generally applicable legal advice will rest on none of the factual particularities conveyed in a typical confidential communication by a client. Because USCIS has not shown that the slides rest on its own confidential communications in the role of a client asking for legal advice, attorney-client privilege does not apply here.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 17.402
Case Name: Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376 (Pa. Super. Ct. 2012)
("In Pennsylvania, the attorney client privilege operates in a two way fashion to protect confidential client to attorney or attorney to client communications made for the purpose of obtaining or providing professional legal advice.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State PA B 1/13

Chapter: 17.402
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605 n.2 (E.D. Va. 2010)
("This includes, of course, 'communications between attorneys which reflect client-supplied information.' Hunt v. U.S. Marine Corps, 935 F. Supp. 46, 53 (D.D.C. 1996).")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 17.402
Case Name: Clarke v. J.P. Morgan Chase & Co., No. 08 Civ. 02400 (CM) (DF), 2009 U.S. Dist. LEXIS 30719, at *6 (S.D.N.Y. Apr. 10, 2009)
(denying privilege protection for documents that J.P. Morgan Chase's in-house lawyer helped draft, because "when distributed to management employees, the e-mail in question did not state that it was prepared by or was being sent from [the in-house lawyer]; rather, the 'sender' of the e-mail was identified only as the GTI Management Team," explaining that "those who receive the communication must still reasonably understand that they are receiving the advice of counsel.")

Case Date Jurisdiction State Cite Checked
2009-04-10 Federal NY
Comment:

key case


Chapter: 17.402
Case Name: Ziemack v. Centel Corporation, No. 92 C 3551, 1995 U.S. Dist. LEXIS 6942 (N.D. Ill. May 19, 1995)
(holding that the privilege did not protect plaintiff's notes and did not contain privileged communications; "The following documents are not privileged: 66, 101, 102, 162, 192, 193, 254, 256, 257, 263, 585, 677, 779, 803, 807, 812, and 984. The attorney-client privilege applies only to documents which contain confidential information from the client. Although these documents are alleged to contain legal advice, there is no indication in the privilege-log that this advice relates to any confidential client communication. Documents in this category include attorneys' notes, which are discoverable unless they pertain to confidential client communication (or have work-product immunity).")

Case Date Jurisdiction State Cite Checked
1995-05-19 Federal IL
Comment:

key case


Chapter: 17.402
Case Name: Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994)
June 26, 2013 (PRIVILEGE POINT)

"Does the Privilege Protect a Lawyer's Draft Document?"

Most courts recognize the abstract principle that lawyers' communications to their clients deserve privilege protection only if the communication contains or otherwise reflects client confidences. For example, the privilege normally does not protect a lawyer's verbatim transmittal to a client of what the lawyer learned from some government official or other third party.

How does this basic principle apply to draft documents a lawyer prepares? Most courts protect such draft documents, explaining, for example, that "[d]rafting legal documents is a core activity of lawyers, and obtaining information and feedback from clients is a necessary party of the process." Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994). However, some courts take a narrower approach. In Earthworks v. United States Dep’t of Interior, the court held that "the lawyer's draft, transmitted to [clients], does not yield any confidential communication from them." Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013). Fortunately, the court acknowledged that this approach would apply "particularly . . . In a governmental situation," in which "the lawyer may be the chief draftsperson of the particular document which she then sends to her co-workers for their views and thoughts." Id.

Most lawyers would be surprised to hear that the privilege does not protect all draft documents they prepare for their client's review. While most courts do apply the privilege that broadly, lawyers should remember that the privilege exists primarily to protect what their clients tell them.

Case Date Jurisdiction State Cite Checked
1994-03-03 Federal IL
Comment:

key case


Chapter: 17.402
Case Name: Henson v. Wyeth Labs., Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987)
("[A]ccording to the better rule, [the privilege protects the substance of confidential communications] from the attorney to the client if such would reveal the confidential client communication.")

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 17.403
Case Name: Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017)
(holding that employee-to-employee communication can be privileged under the circumstance; "The BOP has failed, however, to establish the asserted privilege as to EMAIL00032796 and EMAIL00032836. This is because 'the Court cannot assume that simply adding an attorney to an email via CC creates an expectation that legal services will be rendered.'. . . While Attorney Oben is 'CC'ed' on these emails, neither the documents themselves nor the privilege log provides a basis for the asserted privilege. An attorney did not solicit the information in these emails and, while the emails may have sought legal advice, they also clearly sought nonlegal advice from nonlawyers. At no point did Attorney Oben actually respond to the inquiries with legal advice. Thus, the Court finds that these emails are not privileged and must be produced.")

Case Date Jurisdiction State Cite Checked
2017-07-10 Federal IN

Chapter: 17.403
Case Name: Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017)
October 11, 2017 (PRIVILEGE POINT)

"Courts Look for Lawyers' Responses to Clients' Requests for Legal Advice"

The privilege can protect clients' requests for legal advice, and lawyers' responses. But employees simply cc'ing a lawyer on an email to another employee cannot guarantee privilege protection – because the email might be (1) a protected implicit request for legal advice; (2) an unprotected but good faith effort to keep the lawyer "in the loop"; or (3) an improper attempt to gin up a privilege claim.

In Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017), the court acknowledged that some employee-to-employee emails deserved privilege protection -- because they conveyed legal advice to those who needed it. But the court rejected privilege protection for one email which cc'd a lawyer. Among other things, the court noted that "[a]t no point did [the lawyer who was cc'd] actually respond to the inquiries with legal advice." Id. at *11.

Other courts focus on the same thing – looking for a dialogue in which clients ask for legal advice and lawyers provide it. Lawyers may find themselves far too busy to respond to every email, but they should remember that their silence could doom a privilege claim. Such lawyers should consider responding to any emails that could be misinterpreted or damaging if a court short circuits its privilege review and rejects a valid privilege claim simply because there has been no dialogue.

Case Date Jurisdiction State Cite Checked
2017-07-10 Federal IN
Comment:

key case


Chapter: 17.403
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("[T]hese emails do not fall within the ambit of the attorney-client privilege. The only attorney recipient of these emails, in-house counsel Walt Linscott, is merely copied on the email thread and does not contribute to the discussion.")

Case Date Jurisdiction State Cite Checked
2015-12-14 Federal PA
Comment:

key case


Chapter: 17.403
Case Name: Kleen Products LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
December 24, 2014 (PRIVILEGE POINT)

“It Can be Nearly Impossible to Satisfy Some Courts' Privilege Protection Standards: Part II”

Last week's Privilege Point described a federal court's unforgiving approach to a company's effort to retrieve one purportedly privileged document out of 30,000 produced.

One week later, another court took a similarly narrow view of a defendant's privilege claim in Kleen Products LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014). Among other things, the court applied the following principles to communications to and from co-defendant RockTenn's General Counsel (who also served as that company's Chief Administrative Officer and Senior Vice President and Secretary): (1) "'[w]here a document is prepared for simultaneous review by legal and non-legal personnel and legal and business advice is requested, it is not primarily legal in nature and is therefore not privileged,'" id. at *12 (quoting a 2013 Northern District of Illinois decision); (2) "although [the General Counsel] is copied on three out of the four emails contained within [one email] chain, he offered no legal advice in response," id. at *14; (3) "[i]t is improper to infer as a blanket matter that any email asking for 'comments' that copies in-house counsel along with several other high level managers automatically is a request for 'legal review.'" Id. at *18-19.

Companies' lawyers should train their clients' employees to articulate the basis for privilege in the body of their communications to and from the lawyers. The lawyers should also familiarize themselves with the privilege standards applied by the court in which they find themselves litigating.

Case Date Jurisdiction State Cite Checked
2014-11-12 Federal IL
Comment:

key case


Chapter: 17.403
Case Name: Spread Enters., Inc. v. First Data Merch. Servs. Corp., No. CV 11 4743 (ADS) (ETB), 2013 U.S. Dist. LEXIS 22307, at *6-7, *7-8 (E.D.N.Y. Feb. 19, 2013)
("Nor is there any response from Cohen [in-house lawyer] at issue that could be construed as providing legal advice. In fact, Cohen's only response throughout the entire series of emails came almost one month after MacNaughton [executive for defendant] sent his original email and merely suggests that the parties involved 'recap the initial issue' and where First Data was in its response to it. . . . Again, however, nothing about this email appears to be of a legal nature."; ignoring the in-house lawyer's declaration; "Cohen asserts in his declaration that he was 'acting in his capacity as an attorney in the virtual discussion, as well as any other discussions (whether virtual, by telephone or in person) in which [he] participated' with respect to the MacNaughton email." (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal NY

Chapter: 17.701
Case Name: Hopkins v. Board of County Commissioners of Wilson County, Kansas, Case No. 15-cv-2072-CM-TJJ, 2018 U.S. Dist. LEXIS 122356 (D. Kansas July 23, 2018)
(inexplicably requiring a litigant to provide evidence that withheld documents did not include "underlying facts"; "The purpose of preparing the document, including an evidentiary showing, based on competent evidence, 'supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent'; a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, 'that the documents do not contain or incorporate non-privileged underlying facts.'")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal KS
Comment:

key case


Chapter: 17.701
Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "Federal Rule of Evidence 501 governs privilege issues in federal courts. In this case the Court's jurisdiction is based upon diversity. Although applying choice of law principles to this case results in Kansas law defining the scope of the attorney-client privilege, this Court agrees with other cases from this District that there is no conflict between federal and Kansas law regarding the attorney-client privilege and it generally makes no difference which law is applied."; "Plaintiff is entitled to know the factual basis for Defendants' affirmative defenses. Plaintiff's question was a proper inquiry into the facts that support the affirmative defense asserted in paragraph 13 of Defendants' answer. Plaintiff did not ask Naccarato to disclose the substance of any communications he may have had with Defendants' counsel. Following defense counsel's initial objection, Plaintiff's counsel reiterated that she was asking only for the facts upon which Defendant Screenworks relied. Yet, Defendants' counsel persisted in asserting the same objections."; "Defendants' objections were improper for a number of reasons. Because the primary thrust of the objections and the basis upon which Naccarato was instructed not to answer was the attorney-client privilege, the Court will address that issue first. Even presuming Naccarato's answer would have revealed facts from conversations he had with Defendants' counsel, that would not render the 'facts' protected from discovery by the attorney-client privilege. 'A fact is discoverable regardless of how a deponent came to possess it. This is true even if Defendants' attorney informed the deponent of the facts. The instruction by Defendants' counsel to Naccarato not to answer to the extent the question sought 'information gained through conversations with counsel' was an improper and inaccurate assertion of the attorney-client privilege."; "'Defendants' argument that Plaintiff's questions improperly sought the 'theories' upon which Defendants' affirmative defenses are based is simply unsupported by the record. In the line of questioning at issue, Plaintiff expressly asked the 'facts' that support the affirmative defenses and never mentioned or inquired about Defendants' theories.'")

Case Date Jurisdiction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 17.702
Case Name: Hamdan v. Indiana Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *17-18 (S.D. Ind. June 24, 2014)
(emphasizing the four corners of documents prepared during an investigation of a discrimination claim; "The final chain of email correspondence that contains messages redacted by Defendants, dated March 28-29, 2011, begins with the Hospital's custodian of personnel records asking the chief medical officer how to proceed when the Plaintiff requested his file. The chief medical officer defers to in-house counsel and explicitly asks in-house counsel for advice. The emails that follow clarify the issue and further ask for explicit instructions from the attorney, who responds with her advice. The nature of the correspondence makes it clear that legal advice was sought from the attorney included in the chain of correspondence and the entire line of communications was related to that purpose and made in confidence by the client.")

Case Date Jurisdiction State Cite Checked
2014-06-24 Federal IN

Chapter: 17.703
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("Document 424 consists of PowerPoint slides showing photographs of jackets along with the names and prices of those jackets. The Fifth Log states that this was an internal document sent from a member of YKK's legal department to YKK. But the document does not discuss or refer to any legal principles. The presentation is simply a compilation of factual information, seemingly collected from the internet, and it could have easily been prepared by a non-lawyer. Thus, the presentation does not involve legal advice and is not covered by attorney-client privilege. Defendants must produce Document 424.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY

Chapter: 17.703
Case Name: Nalco Co., Inc. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127 (S.D. Tex. July 18, 2017)
(holding that the attorney-client privilege can protect employee-to-employee communications under certain circumstances; "The privilege does not protect a client's knowledge of relevant facts, regardless of whether he learned the facts from counsel.")

Case Date Jurisdiction State Cite Checked
2017-07-18 Federal TX
Comment:

key case


Chapter: 17.703
Case Name: Father Doe v. Phillips Exeter Academy, Civ. No. 16-cv-396-JL, 2016 U.S. Dist. LEXIS 141877 (D.N.H. Oct. 13, 2016)
(finding that defendant Phillips Exeter Academy could not successfully claim privilege protection for a lawyer's investigation into possible sexual misconduct by a student; noting that defendant called the lawyer an "independent investigator," which meant that the lawyer was not assisting the defendant's lawyer in providing legal advice; also finding an implied waiver because the defendant relied on the investigation report in disciplining a student; also finding that defendant waived any possible privilege protection by disclosing portions of the investigation report to parents; inexplicably failing to deal with the work product doctrine; "As PEA has described the reports, they consist of Attorney McGintee's 'factual findings,' as to what occurred between John and Jane, 'including credibility determinations in instances where there were disputes of fact.'. . . This suggests that the reports consist largely of facts acquired from the three minor witnesses. Facts and statements by third parties do not enjoy the protection of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-10-13 Federal NH

Chapter: 17.703
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)
(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; denying General Motors' motion to impose a presumption that a witness's reference to privileged documents did not trigger a waiver, noting that the court would also have denied General Motors' argument that witnesses trial testimony should be assumed to be based on their personal knowledge rather than what they learned during privileged communications; "'[A] footnote in New GM's memorandum notes, '[a]s an example,' that 'the Court could order that any witness shall not disclose privileged information, and that any witness' answer should be assumed to be based only on personal knowledge unrelated to and not including knowledge of otherwise privileged information.'. . . New GM does not include any such provision in its proposed order but, even if it had, the Court would not have adopted it, substantially for the reasons stated by Plaintiff. . . . Put simply, it is New GM's -- not the Court's -- obligation to take steps to protect its privilege (and to decide if or when to waive the privilege), and the Court will take appropriate steps to ensure that testimony at trial is based on witnesses' personal knowledge. See Fed. R. Evid. 602.'")

Case Date Jurisdiction State Cite Checked
2015-12-03 Federal NY
Comment:

key case


Chapter: 17.703
Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
(analyzing defendant's duty to designate and educate a Rule 30(b)(6) deposition witness; rejecting plaintiffs' motion to compel defendant's Rule 30(b)(6) witness to review witness interview memoranda created during an internal corporate investigation -- because the facts contained in such memoranda inevitably intertwined with the defendant's lawyer's opinion; "Citing a number of cases, the DAPs [Direct Action Plaintiffs] argue that a company cannot shield from discovery facts learned by its attorney's investigation because the attorney-client privilege does not protect underlying facts. . . . While the DAPs' statement of black letter law is accurate, the DAPs' cases are distinguishable because none of them involve compelling a Rule 30(b)(6) witness to review privileged or work product protected memoranda from an internal investigation and testifying as to the contents of such memoranda. Nor do they involve internal investigation materials in which attorney mental impressions are inextricably intertwined with alleged facts.")

Case Date Jurisdiction State Cite Checked
2015-10-05 Federal CA
Comment:

key case


Chapter: 17.703
Case Name: Sprint Comm. Co. L.P. v. Comcast Cable Comm. LLC, Case No. 11-2684-JWL, 2014 U.S. Dist. LEXIS 154346 (D. Kansas Oct. 31, 2014)
("[I]n essence, defendants contend that any communication made by the attorney to the client during the course of the client's engagement of the attorney for legal advice is privileged, whatever the content. The Court concludes, however, that the Magistrate Judge did not err in refusing to apply such a standard, as the law is clear that the privilege does not protect all attorney-client communications during the course of such an engagement."; "It is black-letter law -- and defendants have not disputed -- that not every communication between attorney and client is privileged, and attorneys have always had to bear that fact in mind in communicating with their clients. Defendants make the puzzling argument that, even if particular communications do not reveal legal advice or strategies or confidences, their disclosure 'in the aggregate' could reveal confidences that the privilege is intended to protect. As the Tenth Circuit has noted, however, if a communication tends to reveal confidential information, it is protected. If it does not, then it should not be protected, regardless of how many such innocuous communications there are. Indeed, in the most absurd example, under defendants' standard, communications stating no more than 'yes' or 'let's talk about that at the golf course' would be privileged if they were made in the course of a legal engagement; such communications are clearly not privileged, however, as the privilege does not protect the mere fact of a communication or of the relationship between the attorney and client, or the general description of the attorney's work."; "The communication does not reveal any legal analysis performed by the attorney, who merely listed all references to cable companies in the transcript (and who thus did not, as defendants argue, make some analytical decision about what to list). The document reveals that the attorney was merely acting as a conduit for information from another source (a public transcript). Moreover, the e-mail does not tend to reveal any client confidences or legal advice or strategy; the most it reveals is that the clients asked the attorney to review the transcript for references to cable companies, and such a general description of work performed or requested is not privileged.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal KS

Chapter: 17.703
Case Name: In re McDonald, Case No. 13-10663C-7G, Case No. 13-10664C-7G, Jointly Administered in Case No. 13-10661, 2014 Bankr. LEXIS 3780, at *11 (M.D.N.C. Sept. 3, 2014)
("[T]here are various types of communications between attorney and client that are not privileged, as for example: communications made to an attorney seeking business judgment or advice, . . . Communications in which an attorney conveys to the client facts acquired from other persons or sources, . . . ; and pre-existing documents furnished by the client to the attorney that could have been obtained by court process while they were in the possession of the client")

Case Date Jurisdiction State Cite Checked
2014-09-03 Federal NC

Chapter: 17.703
Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *12, *13-14, *14 n.1 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding attorney-client privilege protection inapplicable; "The court's in camera examination reveals that nearly all of Chamberlain's file materials could not be classified as privileged attorney-client communications because they are public records or Telamon's business records. The gathering of public and business records by an investigator, or the funneling of business documents through one's attorney's office (or through one's fraud investigator), does not make those documents privileged."; "[S]ome of the communications obviously were not made to obtain legal advice, were not maintained in confidence, or were not even intended as a confidential communication in the first place. For example, the communications include (a) an email chain sent by the lawyers to Chamberlain lauding its reputation as a fraud investigator; (b) emails to set up meetings; and (c) emails that do not involve counsel at all or any bona fide connection to legal advice. . . . [D]documents within Chamberlain's file reveal that Chamberlain's investigatory work was not inextricable from Barnes & Thornburg's provision of legal advice and that its work was conducted because Telamon had a pressing business reason to uncover what it believed was large-scale inventory fraud by one of its workers. Documents indicate that the use of Barnes & Thornburg as the nominee client to Chamberlain was for the purpose of attempting to shield Chamberlain's work as privileged. It is apparent, however, that Barnes & Thornburg did not in fact direct this investigation, but that Chamberlain designed the investigation and determined the records to gather and review, the persons to interview, the questions to be asked, and the manner of interrogation."; "Moreover, waiver principles would prevent the assertion of the privilege as to the majority of the Chamberlain investigative file. Telamon provided to the insurers a preliminary investigative report prepared by Chamberlain that it otherwise asserts was a privileged communication. That report summarizes 'key' interviews and documents. When the privilege is waived as to an attorney-client communication, the waiver extends to all communications on the same subject matter. . . . The subject matter of the preliminary report is the investigative work conducted by Chamberlain. By producing the preliminary report (apparently for the purpose of proving its insurance claim and the losses suffered), Telamon waived the privilege with respect to the documents in the investigative file that are the 'nuts and bolts' source documents of Chamberlain's work, including the interview summaries, document analyses, and investigative background summaries.")

Case Date Jurisdiction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 17.703
Case Name: Vector Capital Corp. v. Ness Techs., Inc., No. 11 Civ. 6259 (PKC), 2014 U.S. Dist. LEXIS 7694, at *5-6, *6, *6-7, *7 (S.D.N.Y. Jan. 8, 2014)
(analyzing privilege issues in a lawsuit brought by a potential acquiring company which alleged that the potential target did not adequately disclose documents during a due diligence process; noting that the potential target sought discovery of the potential acquiring company's lawyer's notes prepared during the due diligence process; concluding that purely factual portions of the notes could be separated from the acquiring company's lawyer's opinions, and should be produced; "Here, the documents at issue are communications between Vector and Vector's outside counsel in the course of a due diligence investigation of Ness. They contain factual information acquired from Ness and from third parties by Vector's counsel and updates regarding the status of receipt of factual information from Ness and third parties, hi [sic] obtaining information from the acquisition target, Ness, Vector's counsel was acting as agent and principally for the business purpose of determining whether the acquisition was a sound investment."; "This fact-acquisition process in the course of a business transaction is no more protected by privilege when conducted by an attorney than if conducted by an accountant, engineer or head of a business unit. The factual information presented is not privileged merely by the use of an attorney as a conduit for the information."; "The documents also contain analysis of that factual information and legal advice based upon the information. This analysis and advice by an attorney qualifies for protection under the attorney-client privilege. But unlike in Spectrum [Spectrum Sys. Int'l Corp. v. Chem. Bank, 581 N.E.2d 1055 (N.Y. 1991)], the factual information can be severed from the analysis and legal advice."; "References in the documents such as the following reflect factual information, not legal advice, and must be produced: 'The due diligence material in the Data Room includes a list . . . .' 'S&S has requested the Company to provide the following . . . .' (BER-E-00003352), 'I spoke with [Ness employee] . . . .' (AME-E-00004231), and 'The Company further provided . . . .' (BER-E-00008490).")

Case Date Jurisdiction State Cite Checked
2014-01-08 Federal NY B 6/14

Chapter: 17.703
Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162330, at *15 (D. Conn. Nov. 14, 2013)
("[T]hese documents generally do not provide analysis or interpretation of legislation, and are more in the nature of general lobbying updates, progress reports, and summaries of legislative meetings. . . . To the extent the communications reflect conversations with public officials and offer no analysis, these are likewise unprotected. Accordingly, the Court finds that the following documents cannot validly claim attorney-client privilege or work-product protection.")

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal CT B 5/14

Chapter: 17.703
Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *15-16 (E.D. Va. Apr. 22, 2013)
("This chain starts with an email from counsel with a link to a story on the Federal Circuit's opinion in this case. Although the email was sent from counsel, nothing in counsel's communication deals with motives, strategy or the nature of services provided. Therefore, this communication is not protected by attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 17.703
Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *18-19 (E.D. Va. Apr. 22, 2013)
("This email chain includes a discussion about the result of the Federal Circuit's opinion, but the only communication from DVSI counsel is one that informs DVSI that it had prevailed on part of its appeal. This alert does not amount to confidential communications and is not privileged.")

Case Date Jurisdiction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 17.704
Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "'[Defendants' Counsel]: No, that is not counsel's objection. The objection as it was on the record . . . the objection was to the extent he is able to testify absent information gained through counsel, then he can; however, to the extent he has to rely on conversations with counsel and information gained through counsel, then I am, instructing him not to answer since those would clearly be privileged and attorney-client communications. That was the objection.'"; "'Instructions like these have been found to be inappropriate witness coaching. See Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 U.S. Dist. LEXIS 1363, 2012 WL 28071, at *5 (D. Kan. Jan. 5, 2012) ('Instructions to a witness that they may answer a question 'if they know' or 'if they understand the question' are raw, unmitigated coaching, and are never appropriate. This conduct, if it persists after the deposing attorney requests that it stop, is misconduct and sanctionable.'")

Case Date Jurisdiction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 17.704
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)
(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; denying General Motors' motion to impose a presumption that a witness's reference to privileged documents did not trigger a waiver, noting that the court would also have denied General Motors' argument that witnesses trial testimony should be assumed to be based on their personal knowledge rather than what they learned during privileged communications; "'[A] footnote in New GM's memorandum notes, '[a]s an example,' that 'the Court could order that any witness shall not disclose privileged information, and that any witness' answer should be assumed to be based only on personal knowledge unrelated to and not including knowledge of otherwise privileged information.'. . . New GM does not include any such provision in its proposed order but, even if it had, the Court would not have adopted it, substantially for the reasons stated by Plaintiff. . . . Put simply, it is New GM's -- not the Court's -- obligation to take steps to protect its privilege (and to decide if or when to waive the privilege), and the Court will take appropriate steps to ensure that testimony at trial is based on witnesses' personal knowledge. See Fed. R. Evid. 602.'")

Case Date Jurisdiction State Cite Checked
2015-12-03 Federal NY
Comment:

key case


Chapter: 17.704
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("Privilege Log No. 201, an email from outside counsel concerning an upcoming meeting, contains information necessary for Taxpayer to obtain legal advice relating to tax and business transactions in the form of agenda topics for a future meeting. These documents were properly withheld as privileged.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 17.704
Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *6-7 (D. Ore. June 20, 2014)
(analyzing a situation in which plaintiff was interviewed by a bank's in house lawyer when her superior sued the bank, after which the bank fired her for helping the superior; holding that the plaintiff owned any privilege protection that covered her interview; "Prior to the depositions of certain Bank employees, defense counsel gave the following instructions: 'This witness has been instructed, as well as the other witnesses or witness appearing today, that if they are asked a question about their knowledge of somebody who told them something, whether they have learned something or plainly about information that may have been communicated to them, that if their only source is an attorney/client privileged communication, the witness is to answer no to that question.' . . . The instruction is improper in that it seeks to elicit false testimony from witnesses. Whatever the scope of the attorney-client privilege may be, it does not authorize untrue statements as a mechanism for preserving confidentiality. If a witness, for example, had knowledge that Ms. Becker provided information that was supportive of Connolly in her lawsuit against the Bank, and if that knowledge was derived from confidential communications with the Bank's counsel, the witnesses should be instructed to assert the privilege, not falsely deny having such knowledge.")

Case Date Jurisdiction State Cite Checked
2014-06-20 Federal OR

Chapter: 17.704
Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *12-13 (D.S.C. May 1, 2013)
(holding that a paralegal's list of earlier cases involving the company was work product, and that the lawyer's list of important earlier cases deserved opinion work product protection; "This is an email from Chris Risberg to Bill Bezubic sending attached information that is not itself privileged. While the underlying information is not privileged, the fact of the transmission is itself a communication about an identifiable subject matter. And that communication was a confidential one between a lawyer (specifically a paralegal who is within the attorney-client unit) and the client (specifically the point person for the company on legal matters) on a legal matter. Accordingly, the email is protected under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-05-01 Federal SC B 3/14

Chapter: 17.704
Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159 KS MTP, 2012 U.S. Dist. LEXIS 165558, at *11 (S.D. Miss. Nov. 20, 2012)
("[T]he underlying facts are not privileged strictly because they were provided to the deponent by counsel.")

Case Date Jurisdiction State Cite Checked
2012-11-20 Federal MS B 7/13

Chapter: 17.705
Case Name: Nalco Co., Inc. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127 (S.D. Tex. July 18, 2017)
(holding that the attorney-client privilege can protect employee-to-employee communications under certain circumstances; "The privilege does not protect a client's knowledge of relevant facts, regardless of whether he learned the facts from counsel.")

Case Date Jurisdiction State Cite Checked
2017-07-18 Federal TX
Comment:

key case


Chapter: 17.705
Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "Federal Rule of Evidence 501 governs privilege issues in federal courts. In this case the Court's jurisdiction is based upon diversity. Although applying choice of law principles to this case results in Kansas law defining the scope of the attorney-client privilege, this Court agrees with other cases from this District that there is no conflict between federal and Kansas law regarding the attorney-client privilege and it generally makes no difference which law is applied."; "Plaintiff is entitled to know the factual basis for Defendants' affirmative defenses. Plaintiff's question was a proper inquiry into the facts that support the affirmative defense asserted in paragraph 13 of Defendants' answer. Plaintiff did not ask Naccarato to disclose the substance of any communications he may have had with Defendants' counsel. Following defense counsel's initial objection, Plaintiff's counsel reiterated that she was asking only for the facts upon which Defendant Screenworks relied. Yet, Defendants' counsel persisted in asserting the same objections."; "Defendants' objections were improper for a number of reasons. Because the primary thrust of the objections and the basis upon which Naccarato was instructed not to answer was the attorney-client privilege, the Court will address that issue first. Even presuming Naccarato's answer would have revealed facts from conversations he had with Defendants' counsel, that would not render the 'facts' protected from discovery by the attorney-client privilege. 'A fact is discoverable regardless of how a deponent came to possess it. This is true even if Defendants' attorney informed the deponent of the facts. The instruction by Defendants' counsel to Naccarato not to answer to the extent the question sought 'information gained through conversations with counsel' was an improper and inaccurate assertion of the attorney-client privilege."; "'Defendants' argument that Plaintiff's questions improperly sought the 'theories' upon which Defendants' affirmative defenses are based is simply unsupported by the record. In the line of questioning at issue, Plaintiff expressly asked the 'facts' that support the affirmative defenses and never mentioned or inquired about Defendants' theories.'")

Case Date Jurisdiction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he recalled any discussions about the performance of the adjustors in the presence of counsel, if he had an opinion about the performance of the adjustors, if anyone had ever told him that the adjustors' performance was unsatisfactory, if he ever expressed the opinion that the adjustors' performance was unsatisfactory, and if he had an opinion about whether the claims handling team's performance was satisfactory. First Mercury objected to the first two questions and instructed Eisenmann not to answer, purportedly based on privilege, and instructed Eisenmann to answer the remaining questions only to the extent that such discussions occurred outside the presence of counsel."; "First Mercury's objection to the first question is well-founded: the question clearly addresses conversations in the presence of counsel, presumably for the purpose of receiving legal advice. Accordingly, Eisenmann need not answer this question.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if, after reviewing deposition excerpts provided to him in advance of his own deposition, he viewed any of the prior testimony as being inaccurate. Eisenmann answered that everything he learned about the handling of the underlying claims was after the verdict and through discussions with counsel. Thus, his opinion on the accuracy of the prior deposition testimony was entirely a result of his communications with counsel. Eisenmann need not answer this question.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he knew whether anyone at Crum & Forster assessed whether the claims handling process of the underlying claim complied with Crum & Forster's expectations. First Mercury instructed Eisenmann to exclude conversations with general counsel, but to answer. Eisenmann then said that there were no discussions outside the presence of counsel. While the content of those discussions may be privileged, whether Eisenmann knew if someone made such an assessment is not. Eisenmann will answer the question. I again note that questions flowing from this answer may be subject to a valid assertion of privilege.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Sutton what the large loss committee did in connection with the underlying claim, post-verdict, and whether Crum & Forster took any action at the direction of the committee. Sutton again was instructed not to answer on the basis of privilege. First Mercury contends that what Crum & Forster did as a result of obtaining legal advice is protected by privilege. . . . First Mercury cites no authority for the proposition that an entity's actions after obtaining legal advice are protected by privilege. Indeed, such a result would be nonsensical: every person or company could protect its actions by talking with a lawyer about it beforehand. First Mercury improperly instructed Sutton not to answer these questions. I again note that privilege may apply to other questions resulting from these answers."; "First Mercury also argues that the information sought by these questions is protected by the attorney work product doctrine. . . . These questions, however, do not seek the opinions or mental impressions of counsel. They only ask what actions the large loss committee and the company took. Accordingly, the work product doctrine does not apply. Sutton must answer these questions.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("I agree with AAIC that whether Sluga developed some writing as a result of her work at Crum & Forster, and whether Sutton knew about it, is not a 'communication' subject to the attorney-client privilege. Additionally, whether Sutton reviewed any writings or reports written by Sluga is an action, not a 'communication.' Accordingly, First Mercury's claims of privilege are unsubstantiated and overruled."; "First Mercury also contends that counsel's questions as to whether Sluga developed some writing as a result of her work for Crum & Forster and whether Sutton reviewed that writing invades the work product protections. I disagree. The existence of writings and whether Sutton reviewed them are not protected by the work product doctrine, even if First Mercury would not be required to disclose the writings themselves or their content. Sutton is directed to answer these questions."; "Counsel asked Sutton about the business purpose of her meeting with Sluga, and Sutton was directed not to answer. First Mercury argues that AAIC knows Sluga was hired as outside counsel to Crum & Forster to perform an after-verdict review of the underlying claim, and that any additional inquiry about the purpose of the meeting invades the attorney-client privilege. I agree. AAIC is entitled to know the general purpose -- to facilitate Sluga's after-verdict review, but any further information would veer into protected communication. Sutton need not answer this question."; "Counsel asked Sutton whether the pre-verdict standard operating procedure of Crum & Forster's 'large loss committee' also applied to the committee's post-verdict work. First Mercury instructed Sutton not to answer on the basis of attorney-client privilege because Kraus was present at the large loss committee meetings and provided legal advice. But whether the committee continued to follow the standard operating procedure is an action, not a communication with counsel for the purpose of receiving legal advice. Accordingly, the attorney-client privilege does not apply. Sutton is directed to answer the question."; "Counsel asked Sutton if she knew whether the large loss committee reviewed any writings or written materials during its post-verdict work. Sutton was instructed not to answer on the basis of privilege. This appears to be a yes or no question asking about what the large loss committee did, not the content of the communications. Again, what the committee did is not protected by privilege. Sutton is directed to answer. I note that privilege may apply to the materials themselves and/or their contents."; "First Mercury also argues that this information is protected by the work product doctrine. I disagree. While the content of the documents may be protected by the work product doctrine, the fact of their existence is not. Sutton is directed to answer this question."; "Counsel asked Sutton a series of questions about the large loss committee's post-verdict meeting, beginning with who made presentations, if Sutton spoke, and if others spoke during the meeting. She was instructed not to answer on the basis of attorney-client privilege. First Mercury maintains that the committee's post-verdict meeting 'was held for the purpose of obtaining legal advice from Mr. Kraus,' rendering its activities protected by privilege and the work product doctrine. . . . The identity of who made presentations and who spoke, however, is not a communication, and therefore is not protected by the attorney-client privilege. Sutton is instructed to answer all three questions. I note, however, that privilege may apply to the substance of these presentations or remarks.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Sutton what the large loss committee did in connection with the underlying claim, post-verdict, and whether Crum & Forster took any action at the direction of the committee. Sutton again was instructed not to answer on the basis of privilege. First Mercury contends that what Crum & Forster did as a result of obtaining legal advice is protected by privilege. . . . First Mercury cites no authority for the proposition that an entity's actions after obtaining legal advice are protected by privilege. Indeed, such a result would be nonsensical: every person or company could protect its actions by talking with a lawyer about it beforehand. First Mercury improperly instructed Sutton not to answer these questions. I again note that privilege may apply to other questions resulting from these answers."; "First Mercury also argues that the information sought by these questions is protected by the attorney work product doctrine. . . . These questions, however, do not seek the opinions or mental impressions of counsel. They only ask what actions the large loss committee and the company took. Accordingly, the work product doctrine does not apply. Sutton must answer these questions.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he recalled any discussions about the performance of the adjustors in the presence of counsel, if he had an opinion about the performance of the adjustors, if anyone had ever told him that the adjustors' performance was unsatisfactory, if he ever expressed the opinion that the adjustors' performance was unsatisfactory, and if he had an opinion about whether the claims handling team's performance was satisfactory. First Mercury objected to the first two questions and instructed Eisenmann not to answer, purportedly based on privilege, and instructed Eisenmann to answer the remaining questions only to the extent that such discussions occurred outside the presence of counsel."; "First Mercury's objection to the first question is well-founded: the question clearly addresses conversations in the presence of counsel, presumably for the purpose of receiving legal advice. Accordingly, Eisenmann need not answer this question.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("[A]s to whether anyone ever told Eisenmann that the adjustor's performance was unsatisfactory and whether he ever expressed that opinion, Eisenmann stated that he could not answer the question because any such conversations occurred in the presence of counsel. Given the nature of these conversations, it is likely that they occurred for the purpose of receiving legal advice. The privilege therefore applies, and Eisenmann need not answer these questions.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he knew whether anyone at Crum & Forster assessed whether the claims handling process of the underlying claim complied with Crum & Forster's expectations. First Mercury instructed Eisenmann to exclude conversations with general counsel, but to answer. Eisenmann then said that there were no discussions outside the presence of counsel. While the content of those discussions may be privileged, whether Eisenmann knew if someone made such an assessment is not. Eisenmann will answer the question. I again note that questions flowing from this answer may be subject to a valid assertion of privilege.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("I agree with AAIC that whether Sluga developed some writing as a result of her work at Crum & Forster, and whether Sutton knew about it, is not a 'communication' subject to the attorney-client privilege. Additionally, whether Sutton reviewed any writings or reports written by Sluga is an action, not a 'communication.' Accordingly, First Mercury's claims of privilege are unsubstantiated and overruled."; "First Mercury also contends that counsel's questions as to whether Sluga developed some writing as a result of her work for Crum & Forster and whether Sutton reviewed that writing invades the work product protections. I disagree. The existence of writings and whether Sutton reviewed them are not protected by the work product doctrine, even if First Mercury would not be required to disclose the writings themselves or their content. Sutton is directed to answer these questions."; "Counsel asked Sutton about the business purpose of her meeting with Sluga, and Sutton was directed not to answer. First Mercury argues that AAIC knows Sluga was hired as outside counsel to Crum & Forster to perform an after-verdict review of the underlying claim, and that any additional inquiry about the purpose of the meeting invades the attorney-client privilege. I agree. AAIC is entitled to know the general purpose -- to facilitate Sluga's after-verdict review, but any further information would veer into protected communication. Sutton need not answer this question."; "Counsel asked Sutton whether the pre-verdict standard operating procedure of Crum & Forster's 'large loss committee' also applied to the committee's post-verdict work. First Mercury instructed Sutton not to answer on the basis of attorney-client privilege because Kraus was present at the large loss committee meetings and provided legal advice. But whether the committee continued to follow the standard operating procedure is an action, not a communication with counsel for the purpose of receiving legal advice. Accordingly, the attorney-client privilege does not apply. Sutton is directed to answer the question."; "Counsel asked Sutton if she knew whether the large loss committee reviewed any writings or written materials during its post-verdict work. Sutton was instructed not to answer on the basis of privilege. This appears to be a yes or no question asking about what the large loss committee did, not the content of the communications. Again, what the committee did is not protected by privilege. Sutton is directed to answer. I note that privilege may apply to the materials themselves and/or their contents."; "First Mercury also argues that this information is protected by the work product doctrine. I disagree. While the content of the documents may be protected by the work product doctrine, the fact of their existence is not. Sutton is directed to answer this question."; "Counsel asked Sutton a series of questions about the large loss committee's post-verdict meeting, beginning with who made presentations, if Sutton spoke, and if others spoke during the meeting. She was instructed not to answer on the basis of attorney-client privilege. First Mercury maintains that the committee's post-verdict meeting 'was held for the purpose of obtaining legal advice from Mr. Kraus,' rendering its activities protected by privilege and the work product doctrine. . . . The identity of who made presentations and who spoke, however, is not a communication, and therefore is not protected by the attorney-client privilege. Sutton is instructed to answer all three questions. I note, however, that privilege may apply to the substance of these presentations or remarks.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if, after reviewing deposition excerpts provided to him in advance of his own deposition, he viewed any of the prior testimony as being inaccurate. Eisenmann answered that everything he learned about the handling of the underlying claims was after the verdict and through discussions with counsel. Thus, his opinion on the accuracy of the prior deposition testimony was entirely a result of his communications with counsel. Eisenmann need not answer this question.")

Case Date Jurisdiction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705
Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)
("The bulk of the questions Plum was asked during her deposition sought the source of her knowledge on topics related to this litigation. . . . These questions largely focused on how Plum acquired the information in her affidavit, her understanding of McDevitt's actions, and her understanding of Keith's estate plan more generally. . . . Wendy and McDevitt argue that these questions seek nothing more than underlying factual information, and are therefore discoverable under Upjohn. . . . After examining Plum's deposition transcript, the court is convinced that the answers to these questions would necessarily reveal the content of Plum's privileged communications with her attorneys. As the R&R noted, Plum's affidavit essentially outlines her 'understanding' of how the Irrevocable Trust works, what actions the Wellin Children took with respect to the trust, and her views on the propriety of those actions and the actions of McDevitt's predecessor, Lester Schwartz. R&R at 17. Such 'understandings' necessarily incorporate facts, but also apply legal interpretation. By attempting to locate the source of Plum's knowledge, Wendy and McDevitt are effectively asking, 'Did your attorney say X?' For Plum to reveal the 'source' of the information in her affidavit, she would have to reveal the source of her 'understanding' of these legal matters. To the extent these opinions come from her attorneys, her response would reveal the contents of confidential communications and her attorney's legal opinions. The same reasoning applies to questions related to her more general understanding of the legal rights created by the Irrevocable Trust, the related promissory note, and the obligations of the trust protector.")

Case Date Jurisdiction State Cite Checked
2016-09-30 Federal SC
Comment:

key case


Chapter: 17.705
Case Name: Regions Bank v. Kaplan, Case No. 8:12-CV-1837-T-17MAP, 2016 U.S. Dist. LEXIS 65650 (M.D. Fla. May 18, 2016)
(analyzing the following deposition questions and answers: "(Q) In speaking with Mr. Parrish, were you seeking legal advice? Again, not telling me what was talked about, but in speaking with him, were you seeking legal advice?"; "(A) No."; "(Q) Okay. What did Mr. Parrish tell you?"; "(A) He said -- I was telling him about the deal, and he said it sounded too good to be true."; finding that plaintiff sought protected legal advice; "Defendant Kaplan's brief testimony reveals the mental impression of the attorney Defendant Kaplan was consulting. In light of the overall purpose of the meeting, Defendant Kaplan's knowledge that Mr. Parrish was a lawyer, the fact that Defendant Kaplan was charged a fee for the meeting, what Mr. Parrish said in that meeting arguably constitutes legal advice rather than business advice."; "In the context of an attorney-client privilege issue arising at deposition, it is not unusual for an individual client to have an opinion different from his counsel as to the same communication. Given the context, with Defendant's counsel immediately interposing a privilege objection that overrides an individual's testimony, the Court views the objection as providing appropriate guidance on an arguable issue.")

Case Date Jurisdiction State Cite Checked
2016-05-18 Federal FL

Chapter: 17.705
Case Name: Regions Bank v. Kaplan, Case No. 8:12-CV-1837-T-17MAP, 2016 U.S. Dist. LEXIS 65650 (M.D. Fla. May 18, 2016)
(analyzing the following deposition questions and answers: "(Q) In speaking with Mr. Parrish, were you seeking legal advice? Again, not telling me what was talked about, but in speaking with him, were you seeking legal advice?"; "(A) No."; "(Q) Okay. What did Mr. Parrish tell you?"; "(A) He said -- I was telling him about the deal, and he said it sounded too good to be true."; finding that plaintiff sought protected legal advice; "Defendant Kaplan's brief testimony reveals the mental impression of the attorney Defendant Kaplan was consulting. In light of the overall purpose of the meeting, Defendant Kaplan's knowledge that Mr. Parrish was a lawyer, the fact that Defendant Kaplan was charged a fee for the meeting, what Mr. Parrish said in that meeting arguably constitutes legal advice rather than business advice."; "In the context of an attorney-client privilege issue arising at deposition, it is not unusual for an individual client to have an opinion different from his counsel as to the same communication. Given the context, with Defendant's counsel immediately interposing a privilege objection that overrides an individual's testimony, the Court views the objection as providing appropriate guidance on an arguable issue.")

Case Date Jurisdiction State Cite Checked
2016-05-18 Federal FL

Chapter: 17.705
Case Name: Regions Bank v. Kaplan, Case No. 8:12-CV-1837-T-17MAP, 2016 U.S. Dist. LEXIS 65650 (M.D. Fla. May 18, 2016)
(analyzing the following deposition questions and answers: "(Q) In speaking with Mr. Parrish, were you seeking legal advice? Again, not telling me what was talked about, but in speaking with him, were you seeking legal advice?"; "(A) No."; "(Q) Okay. What did Mr. Parrish tell you?"; "(A) He said -- I was telling him about the deal, and he said it sounded too good to be true."; finding that plaintiff sought protected legal advice; "Defendant Kaplan's brief testimony reveals the mental impression of the attorney Defendant Kaplan was consulting. In light of the overall purpose of the meeting, Defendant Kaplan's knowledge that Mr. Parrish was a lawyer, the fact that Defendant Kaplan was charged a fee for the meeting, what Mr. Parrish said in that meeting arguably constitutes legal advice rather than business advice."; "In the context of an attorney-client privilege issue arising at deposition, it is not unusual for an individual client to have an opinion different from his counsel as to the same communication. Given the context, with Defendant's counsel immediately interposing a privilege objection that overrides an individual's testimony, the Court views the objection as providing appropriate guidance on an arguable issue.")

Case Date Jurisdiction State Cite Checked
2016-05-18 Federal FL

Chapter: 17.705
Case Name: Johnston v. Dow Employees' Pension Plan, Case No. 14-cv-10427, 2016 U.S. Dist. LEXIS 36825 (E.D. Mich. March 22, 2016)
(agreeing that a class representative must explain its understanding about the meaning of the document he signed, even though that would necessarily reflect legal advice he received about the document; "Defendants seek to compel testimony from Johnston concerning a release of claims provision he agreed to when signing a severance package with Dow Chemical. Johnston refused to answer questions about the release in his deposition, citing attorney-client privilege."; "In Defendants' motion to compel, they seek certain testimony and documents from Johnston. First, Defendants seek testimony from Johnston on his understanding of the claims waiver he signed when he agreed to a severance package with Dow. Second, they seek emails sent by Johnston to putative class members and the responses from class members. Johnston has attempted to shield these areas of discovery behind the attorney-client privilege and the work-product doctrine, respectively."; "Here, the testimony sought by Defendants falls perilously close to eliciting the communications between Johnston and his then attorney concerning the meaning and effect of the release Johnston signed. As articulated in their motion to compel, however, Defendants do not seek these communications or the advice conveyed. They seek Johnston's understanding of the effect of the release, admittedly gained after consulting with counsel."; "Normally, attempts at eliciting such testimony should be cautiously received in light of the privilege, but the facts of this case overcome the privilege. The relevant dispute focuses on the effect of a contractual provision agreed to by both parties. Defendants argue that '[i]t strains credulity to argue Johnston's subjective understanding is not relevant to understanding his intent.'; "Here, Johnston's understanding of the waiver he entered into may be relevant to resolving a potential dispute over the meaning of the waiver. It also may not be. But that is not a reason for restricting discovery. The possibility that his testimony may be relevant is sufficient to render it discoverable. The fact that it may reveal an understanding formed only as a result of confidential client communications does not bar disclosure. The privilege does not shield a contracting party from testifying to his or her understanding of the effect of a contractual term, even if the contract was entered into with and through the advice of counsel.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal MI
Comment:

key case


Chapter: 17.705
Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
(analyzing defendant's instructions to various witnesses not to answer deposition questions; "During Chris Bennett's September 2, 2015 deposition, Plaintiffs asked the witness, "As you sit here today as General Manager of Real Estate Solutions for CoreLogic, does CoreLogic have a position with respect to whether or not metadata for photographs uploaded through its software should be preserved?'. . . 'I want to caution the witness with respect to the disclosure of attorney-client communications, but the witness can answer the question with that in mind.'. . . Mr. Bennett then responded, 'Other than what I've been told by legal counsel, I have no knowledge.'"; "Plaintiffs' Motion is denied on the basis it would be improper for Mr. Bennett, who was noticed for deposition in his individual capacity and not as a Rule 30(b)(6) representative of CoreLogic."; "It may have been proper for Mr. Bennett to answer the questions, 'Do you believe CoreLogic has a position with respect to whether or not metadata for photographs uploaded through its software should be preserved?'")

Case Date Jurisdiction State Cite Checked
2016-02-02 Federal CA
Comment:

key case


Chapter: 17.705
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)
(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; denying General Motors' motion to impose a presumption that a witness's reference to privileged documents did not trigger a waiver, noting that the court would also have denied General Motors' argument that witnesses trial testimony should be assumed to be based on their personal knowledge rather than what they learned during privileged communications; "'[A] footnote in New GM's memorandum notes, '[a]s an example,' that 'the Court could order that any witness shall not disclose privileged information, and that any witness' answer should be assumed to be based only on personal knowledge unrelated to and not including knowledge of otherwise privileged information.'. . . New GM does not include any such provision in its proposed order but, even if it had, the Court would not have adopted it, substantially for the reasons stated by Plaintiff. . . . Put simply, it is New GM's -- not the Court's -- obligation to take steps to protect its privilege (and to decide if or when to waive the privilege), and the Court will take appropriate steps to ensure that testimony at trial is based on witnesses' personal knowledge. See Fed. R. Evid. 602.'")

Case Date Jurisdiction State Cite Checked
2015-12-03 Federal NY
Comment:

key case


Chapter: 17.705
Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *6-7 (D. Ore. June 20, 2014)
(analyzing a situation in which plaintiff was interviewed by a bank's in house lawyer when her superior sued the bank, after which the bank fired her for helping the superior; holding that the plaintiff owned any privilege protection that covered her interview; "Prior to the depositions of certain Bank employees, defense counsel gave the following instructions: 'This witness has been instructed, as well as the other witnesses or witness appearing today, that if they are asked a question about their knowledge of somebody who told them something, whether they have learned something or plainly about information that may have been communicated to them, that if their only source is an attorney/client privileged communication, the witness is to answer no to that question.' . . . The instruction is improper in that it seeks to elicit false testimony from witnesses. Whatever the scope of the attorney-client privilege may be, it does not authorize untrue statements as a mechanism for preserving confidentiality. If a witness, for example, had knowledge that Ms. Becker provided information that was supportive of Connolly in her lawsuit against the Bank, and if that knowledge was derived from confidential communications with the Bank's counsel, the witnesses should be instructed to assert the privilege, not falsely deny having such knowledge.")

Case Date Jurisdiction State Cite Checked
2014-06-20 Federal OR

Chapter: 17.705
Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159 KS MTP, 2012 U.S. Dist. LEXIS 165558, at *11 (S.D. Miss. Nov. 20, 2012)
("[T]he underlying facts are not privileged strictly because they were provided to the deponent by counsel.")

Case Date Jurisdiction State Cite Checked
2012-11-20 Federal MS B 7/13

Chapter: 17.705
Case Name: Montauk U.S.A., LLC v. 148 South Emerson Associates, LLC, No. CV 17-4747 (SJF) (AKT), 2019 U.S. Dist. LEXIS 9339, at *8 (E.D.N.Y. Jan. 17, 2019)
April 10, 2019 (PRIVILEGE POINTS)

"Deponents Usually May Not Rely On Privilege Protection In Refusing To Answer "Yes" or "No" Questions"

The attorney-client privilege protects communications -- rather than historical facts, the circumstances of attorney-client relationships or communications, etc. This basic principle often precludes deponents from citing the privilege in refusing to answer "yes" or "no" questions.

In Montauk U.S.A., LLC v. 148 South Emerson Associates, LLC, the court explained that "questions pertaining to the existence of [privileged] communications generally are not covered by the privilege." No. CV 17-4747 (SJF) (AKT), 2019 U.S. Dist. LEXIS 9339, at *8 (E.D.N.Y. Jan. 17, 2019). The court specifically dealt with questions plaintiffs' lawyer posed to third party witnesses, such as asking a deponent "Did you sign a retainer agreement . . . ?"; "Have you paid fees for this case?"; "Have you seen a bill in this case?" Id. at *10. The court held that defendants' lawyer had improperly directed the witness "not to answer the questions regarding whether he had signed a retainer agreement and whether he had paid fees for this case." Id. at *10-11. As the court noted, "[t]he questions called for a simple 'yes' or 'no' answer and the responses would have revealed only facts." Id. at *11.

The court's holding might have been different if the deposition questions had implicitly sought disclosure of privileged communications – such as asking "yes" or "no" questions about protected communications on some very specific topics. But lawyers should always remember that the privilege protects communications rather than historical facts or events.

Case Date Jurisdiction State Cite Checked
Federal NY
Comment:

key case


Chapter: 17.1001
Case Name: Slaven v. Great American Ins. Co., No. 13 C 1370, 2015 U.S. Dist. LEXIS 33591 (N.D. Ill. March 18, 2015)
("Centrum has also provided at my request for in camera review, drafts of the letter that was ultimately sent from the Boundas Skarzynski firm to Mr. Slaven. They were prepared by the lawyers for their client in pursuit of their providing legal services and are thus protected from disclosure by the attorney/client privilege."; "The drafts in this case are also protected by the work-product doctrine since each confidential draft letter represents a step in the lawyers' evaluation of the legal problem under consideration and how best to handle it. It thus constitutes opinion work-product, 'meaning 'the mental impressions, conclusions, opinions, or legal theories of an attorney. . . .'")

Case Date Jurisdiction State Cite Checked
2015-03-18 Federal IL

Chapter: 17.1001
Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; "[T]here appears to a basis for inferring from some snippets of deposition testimony that counsel did make or suggest changes to, at least, the October and November draft letters, in which case the drafts would be protected by the privilege.")

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY

Chapter: 17.1001
Case Name: In re ISN Software Corp. Appraisal Litigation, Civ. A. No. 8388-VCG, 2014 Del. Ch. LEXIS 52 (Del. Ch. Apr. 7, 2014)
June 11, 2014 (PRIVILEGE POINT)

"Does the Attorney-Client Privilege Protect Documents that Corporate Employees Send to the Corporation's Lawyer?"

The attorney-client privilege rarely, if ever, protects pre-existing business documents that corporate employees send to their corporate employer's lawyer. However, the privilege can clearly protect draft business documents that such employees and their lawyers jointly prepare (as long as the drafts reflect lawyers' legal advice rather than business, stylistic, or grammatical advice, etc.). Surprisingly, some decisions have trouble distinguishing between these two scenarios.

In Federal Housing Finance Agency v. HSBC North America Holdings Inc., the court recognized "[t]o the extent that the request for advice [from a company's lawyer] attaches business records created in the ordinary course of business, those business records do not become privileged." No. 11 Civ. 6189 (DLC), 2014 U.S. Dist. LEXIS 46519, at *24 (S.D.N.Y. Apr. 3, 2014). However, the court also indicated that "[t]o the extent business records have been altered to assist counsel in providing advice, those altered business records are privileged." Id. at *25. The word "altered" seems awkward — presumably, the court was referring to draft documents. Four days later, the Delaware Court of Chancery issued a troubling opinion that cast doubt on a long-standing Delaware legal principle. In In re ISN Software Corp. Appraisal Litigation, Civ. A. No. 8388-VCG, 2014 Del. Ch. LEXIS 52 (Del. Ch. Apr. 7, 2014), the court cited a well-known 1986 Delaware case protecting as privileged draft SEC disclosure documents. Jedwab v. MGM Grand Hotels, Inc., No. 8077, 1986 Del Ch. LEXIS 383 (Del. Ch. Mar. 19, 1986). However, the court seemed to limit Jedwab's holding to lawyer-created documents — rejecting a privilege assertion for draft board minutes the company claimed were "created by management but sent to attorneys 'for review.'" Id. at *3.

These and other ambigious or confusing decisions highlight the wisdom of corporate employees seeking legal advice about their draft documents articulating this context in their transmittal communications — confirming that the attached documents do not constitute pre-existing ordinary business documents, but are instead newly-created draft documents about which the employees require legal advice.

Case Date Jurisdiction State Cite Checked
2014-04-07 State DE
Comment:

key case


Chapter: 17.1001
Case Name: Federal Housing Finance Agency v. HSBC North America Holdings Inc., No. 11 Civ. 6189 (DLC), 2014 U.S. Dist. LEXIS 46519, at *24 (S.D.N.Y. Apr. 3, 2014)
June 11, 2014 (PRIVILEGE POINT)

"Does the Attorney-Client Privilege Protect Documents that Corporate Employees Send to the Corporation's Lawyer?"

The attorney-client privilege rarely, if ever, protects pre-existing business documents that corporate employees send to their corporate employer's lawyer. However, the privilege can clearly protect draft business documents that such employees and their lawyers jointly prepare (as long as the drafts reflect lawyers' legal advice rather than business, stylistic, or grammatical advice, etc.). Surprisingly, some decisions have trouble distinguishing between these two scenarios.

In Federal Housing Finance Agency v. HSBC North America Holdings Inc., the court recognized "[t]o the extent that the request for advice [from a company's lawyer] attaches business records created in the ordinary course of business, those business records do not become privileged." No. 11 Civ. 6189 (DLC), 2014 U.S. Dist. LEXIS 46519, at *24 (S.D.N.Y. Apr. 3, 2014). However, the court also indicated that "[t]o the extent business records have been altered to assist counsel in providing advice, those altered business records are privileged." Id. at *25. The word "altered" seems awkward — presumably, the court was referring to draft documents. Four days later, the Delaware Court of Chancery issued a troubling opinion that cast doubt on a long-standing Delaware legal principle. In In re ISN Software Corp. Appraisal Litigation, Civ. A. No. 8388-VCG, 2014 Del. Ch. LEXIS 52 (Del. Ch. Apr. 7, 2014), the court cited a well-known 1986 Delaware case protecting as privileged draft SEC disclosure documents. Jedwab v. MGM Grand Hotels, Inc., No. 8077, 1986 Del Ch. LEXIS 383 (Del. Ch. Mar. 19, 1986). However, the court seemed to limit Jedwab's holding to lawyer-created documents — rejecting a privilege assertion for draft board minutes the company claimed were "created by management but sent to attorneys 'for review.'" Id. at *3.

These and other ambigious or confusing decisions highlight the wisdom of corporate employees seeking legal advice about their draft documents articulating this context in their transmittal communications — confirming that the attached documents do not constitute pre-existing ordinary business documents, but are instead newly-created draft documents about which the employees require legal advice.

Case Date Jurisdiction State Cite Checked
2014-04-03 Federal NY
Comment:

key case


Chapter: 17.1001
Case Name: Earthworks v. United States Dep’t of Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013)
June 26, 2013 (PRIVILEGE POINT)

"Does the Privilege Protect a Lawyer's Draft Document?"

Most courts recognize the abstract principle that lawyers' communications to their clients deserve privilege protection only if the communication contains or otherwise reflects client confidences. For example, the privilege normally does not protect a lawyer's verbatim transmittal to a client of what the lawyer learned from some government official or other third party.

How does this basic principle apply to draft documents a lawyer prepares? Most courts protect such draft documents, explaining, for example, that "[d]rafting legal documents is a core activity of lawyers, and obtaining information and feedback from clients is a necessary party of the process." Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994). However, some courts take a narrower approach. In Earthworks v. United States Dep’t of Interior, the court held that "the lawyer's draft, transmitted to [clients], does not yield any confidential communication from them." Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013). Fortunately, the court acknowledged that this approach would apply "particularly . . . In a governmental situation," in which "the lawyer may be the chief draftsperson of the particular document which she then sends to her co-workers for their views and thoughts." Id.

Most lawyers would be surprised to hear that the privilege does not protect all draft documents they prepare for their client's review. While most courts do apply the privilege that broadly, lawyers should remember that the privilege exists primarily to protect what their clients tell them.

Case Date Jurisdiction State Cite Checked
2013-04-02 Federal DC
Comment:

key case


Chapter: 17.1001
Case Name: Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994)
June 26, 2013 (PRIVILEGE POINT)

"Does the Privilege Protect a Lawyer's Draft Document?"

Most courts recognize the abstract principle that lawyers' communications to their clients deserve privilege protection only if the communication contains or otherwise reflects client confidences. For example, the privilege normally does not protect a lawyer's verbatim transmittal to a client of what the lawyer learned from some government official or other third party.

How does this basic principle apply to draft documents a lawyer prepares? Most courts protect such draft documents, explaining, for example, that "[d]rafting legal documents is a core activity of lawyers, and obtaining information and feedback from clients is a necessary party of the process." Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994). However, some courts take a narrower approach. In Earthworks v. United States Dep’t of Interior, the court held that "the lawyer's draft, transmitted to [clients], does not yield any confidential communication from them." Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013). Fortunately, the court acknowledged that this approach would apply "particularly . . . In a governmental situation," in which "the lawyer may be the chief draftsperson of the particular document which she then sends to her co-workers for their views and thoughts." Id.

Most lawyers would be surprised to hear that the privilege does not protect all draft documents they prepare for their client's review. While most courts do apply the privilege that broadly, lawyers should remember that the privilege exists primarily to protect what their clients tell them.

Case Date Jurisdiction State Cite Checked
1994-03-03 Federal IL
Comment:

key case


Chapter: 17.1001
Case Name: Jedwab v. MGM Grand Hotels, Inc., No. 8077, 1986 Del Ch. LEXIS 383 (Del. Ch. Mar. 19, 1986)
June 11, 2014 (PRIVILEGE POINT)

"Does the Attorney-Client Privilege Protect Documents that Corporate Employees Send to the Corporation's Lawyer?"

The attorney-client privilege rarely, if ever, protects pre-existing business documents that corporate employees send to their corporate employer's lawyer. However, the privilege can clearly protect draft business documents that such employees and their lawyers jointly prepare (as long as the drafts reflect lawyers' legal advice rather than business, stylistic, or grammatical advice, etc.). Surprisingly, some decisions have trouble distinguishing between these two scenarios.

In Federal Housing Finance Agency v. HSBC North America Holdings Inc., the court recognized "[t]o the extent that the request for advice [from a company's lawyer] attaches business records created in the ordinary course of business, those business records do not become privileged." No. 11 Civ. 6189 (DLC), 2014 U.S. Dist. LEXIS 46519, at *24 (S.D.N.Y. Apr. 3, 2014). However, the court also indicated that "[t]o the extent business records have been altered to assist counsel in providing advice, those altered business records are privileged." Id. at *25. The word "altered" seems awkward — presumably, the court was referring to draft documents. Four days later, the Delaware Court of Chancery issued a troubling opinion that cast doubt on a long-standing Delaware legal principle. In In re ISN Software Corp. Appraisal Litigation, Civ. A. No. 8388-VCG, 2014 Del. Ch. LEXIS 52 (Del. Ch. Apr. 7, 2014), the court cited a well-known 1986 Delaware case protecting as privileged draft SEC disclosure documents. Jedwab v. MGM Grand Hotels, Inc., No. 8077, 1986 Del Ch. LEXIS 383 (Del. Ch. Mar. 19, 1986). However, the court seemed to limit Jedwab's holding to lawyer-created documents — rejecting a privilege assertion for draft board minutes the company claimed were "created by management but sent to attorneys 'for review.'" Id. at *3.

These and other ambigious or confusing decisions highlight the wisdom of corporate employees seeking legal advice about their draft documents articulating this context in their transmittal communications — confirming that the attached documents do not constitute pre-existing ordinary business documents, but are instead newly-created draft documents about which the employees require legal advice.

Case Date Jurisdiction State Cite Checked
1986-03-19 State DE
Comment:

key case


Chapter: 17.1002
Case Name: Shenwick v. Twitter, Inc., Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018)
December 26, 2018 (PRIVILEGE POINT)

Court Needs More Information to Assess Draft Documents' Privilege Protection

The attorney-client privilege can protect lawyers' input into draft documents created by the lawyer or by the client – which of course evaporates when the client approves the finished document for disclosure outside the relationship. Not surprisingly, courts examine such lawyers' revisions to assess whether those lawyers were providing legal input rather than business, grammatical, stylistic suggestions, etc.

In Shenwick v. Twitter, Inc., the court noted that defendants withheld "several drafts of documents with comments provided with the redlined version." Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018). But because the court could not "determine the identity of the author of comments [in] these draft documents," it ordered defendants "to provide the Court with the identity of the individuals who provided the comments and link them to the comments in the draft documents submitted to the Court.'" Id.

The lesson from such decisions is self-evident. Lawyers should always memorialize their role in any drafting process, and stand ready to identify their suggested changes – including the nature of their legally-driven revisions.

Case Date Jurisdiction State Cite Checked
2018-10-30 Federal

Chapter: 17.1002
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(holding that draft memoranda deserved work product protection; "ESU has already produced to Plaintiff the final version of the August 20, 2015 Memorandum that summarizes the investigation of racial allegations. ESU maintains it should not be compelled to produce the draft versions of this report prepared by Lauber [University assistant HR director] under the work-product doctrine, as the drafts contain the mental impressions of ESU's general counsel. The Court agrees that drafts of the Memorandum, which contain findings and conclusions regarding Plaintiff and ESU's decision not to reappoint Plaintiff, would likely contain notations or revisions that would disclose the mental impressions of ESU's general counsel or other representative. Therefore, pursuant to Rule 26(b)(3)(B), which requires the Court to 'protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation,' the Court must protect Lauber's drafts of the investigation report from discovery.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS
Comment:

key case


Chapter: 17.1002
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("AbbVie privilege log entries 434, 595, 596, 624, and 4398 were properly withheld under the attorney-client privilege because those entries consist of communications in which attorneys request or are provided with information for the purpose of providing legal advice. Entry number 434 is an email chain between Kos's outside counsel, Kos's in-house counsel, and Kos executives, in which the lawyers request input and specific information from the executives to assist them in drafting a declaration to attach to a legal filing. Entry number 595 consists of a string of emails: first, Kos's outside counsel sent a draft settlement agreement to Kos's then-general counsel Andrew Koven; second, Koven forwarded the draft to three Kos executives and requested their input; and finally, the three executives responded with their comments. Similarly, entry number 596 consists of an email from Kos's Chief Financial Officer Chris Kiritsy to Koven providing comments on a draft settlement agreement. Entry number 624 is an email string between Kos's Vice President for Marketing Aaron Berg, Kos's outside counsel, and Kos's general counsel, in which Berg provided detailed statistics and information regarding the potential of marketing Niaspan to women's health professionals. Koven asserted that the information was shared so that outside counsel, White & Case, could provide legal advice with respect to a co-promotion agreement relating to that marketing that was part of the ongoing settlement negotiations. . . . And entry number 4398 is an email chain between Kos's outside counsel and Kiritsy, in which outside counsel requests information from Kiritsy to assist in writing a declaration to attach to a motion. The Court concludes that these emails, in which Kos executives gave 'information to the lawyer to enable him to give sound and informed advice,'. . . would 'not have been made absent the privilege,'. . . The communications were properly withheld under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 17.1002
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("[E]ntry 541 is an email string consisting of the following: (1) outside counsel Malik sent an email to Kos's then-general counsel Koven, attaching a draft of a term sheet, (2) Koven forwarded the email and attachment to two Kos executives, and (3) one of those executives, Kiritsy, forwarded the email and attachment to another executive, and asked '[a]ny visibility on accounting treatment or pruit?' The first two emails in this chain are plainly covered by the attorney-client privilege -- they are emails from lawyers to their clients, and although they do not expressly request feedback, such a request is implicit when a draft legal document is attached. AbbVie asserts that the final email in the chain is privileged because in it, Kiritsy requested information that he would later relay to Koven for the purpose of obtaining legal advice. It is true that 'privileged communications may be shared by non-attorney employees in order to relay information requested by attorneys.'")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.1002
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Entry 635 is a PowerPoint presentation assessing the terms of the Kos-Barr settlement. AbbVie's privilege log identifies the author of entry 635 as Joseph Suarez, a Kos executive. But the PowerPoint was initially prepared by Kos's outside counsel, White & Case attorney Rajeev Malik. . . . Because the presentation was drafted by an attorney and provided a legal analysis of the Kos-Barr settlement, it was properly withheld under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 17.1002
Case Name: Paramount Financial Communications, Inc. v. Broadridge Investor Communication Solutions, Inc., Civ. A. No. 15-405, 2016 U.S. Dist. LEXIS 133105 (E.D. Pa. Sept. 28, 2016)
(holding that drafts containing a lawyer's input deserved privilege protection; "Preliminary or red-lined drafts of contracts are generally protected by attorney-client privilege since they reflect not only client confidences, but also legal advice and opinions of attorneys, all of which is protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-09-28 Federal PA

Chapter: 17.1002
Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("Georgia document 968 is a draft citizen petition that was prepared by in-house counsel Steven Gersten in March 2010, one month before Abbott submitted its final citizen petition to the FDA. Preliminary '[d]rafts of documents prepared by counsel . . . are considered privileged if they were prepared or circulated for the purpose of giving or obtaining legal advice and contain information or comments not included in the final version.". . . This document is protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-08-25 Federal PA

Chapter: 17.1002
Case Name: Slaven v. Great American Ins. Co., No. 13 C 1370, 2015 U.S. Dist. LEXIS 33591 (N.D. Ill. March 18, 2015)
("Centrum has also provided at my request for in camera review, drafts of the letter that was ultimately sent from the Boundas Skarzynski firm to Mr. Slaven. They were prepared by the lawyers for their client in pursuit of their providing legal services and are thus protected from disclosure by the attorney/client privilege."; "The drafts in this case are also protected by the work-product doctrine since each confidential draft letter represents a step in the lawyers' evaluation of the legal problem under consideration and how best to handle it. It thus constitutes opinion work-product, 'meaning 'the mental impressions, conclusions, opinions, or legal theories of an attorney. . . .'")

Case Date Jurisdiction State Cite Checked
2015-03-18 Federal IL

Chapter: 17.1002
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("These documents all consist of draft materials prepared by or with Taxpayer's outside counsel. Privilege Log Nos. 220, 254, and 256 are drafts of agreements or contracts prepared by outside counsel and sent to Taxpayer, and are protected under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 17.1002
Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2014 U.S. Dist. LEXIS 31330, at *8-9 (S.D. Ohio Mar. 11, 2014)
("In addition, the Binders contain draft documents (mostly draft letters) prepared or analyzed by Defendant's outside legal counsel as an integral part of their give-and-take communications with Defendant. As noted above, Defendant and its outside counsel engaged in such communications for the purposes of obtaining and providing confidential professional legal advice with the goal of FMLA compliance. As a result, the attorney-client privilege protects the draft documents related to those communications.")

Case Date Jurisdiction State Cite Checked
2014-03-11 Federal OH B 8/14

Chapter: 17.1002
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *17 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "Other cases have considered whether draft documents in an attorney's file are protected by the attorney-client privilege. The initial consideration is whether the document contains largely factual information or whether it provides or seeks legal advice of a confidential nature. Assuming the latter, draft documents have been held to retain their privilege it they contain information a client considered but decided not to include in the final version. . . . However, if the changes reflected on the draft documents appear to be stylistic and structural changes only, and do not provide or request legal advice, the documents are not privileged.")

Case Date Jurisdiction State Cite Checked
2014-02-04 Federal CT B 6/14

Chapter: 17.1002
Case Name: Earthworks v. United States Dep’t of Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013)
June 26, 2013 (PRIVILEGE POINT)

"Does the Privilege Protect a Lawyer's Draft Document?"

Most courts recognize the abstract principle that lawyers' communications to their clients deserve privilege protection only if the communication contains or otherwise reflects client confidences. For example, the privilege normally does not protect a lawyer's verbatim transmittal to a client of what the lawyer learned from some government official or other third party.

How does this basic principle apply to draft documents a lawyer prepares? Most courts protect such draft documents, explaining, for example, that "[d]rafting legal documents is a core activity of lawyers, and obtaining information and feedback from clients is a necessary party of the process." Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994). However, some courts take a narrower approach. In Earthworks v. United States Dep’t of Interior, the court held that "the lawyer's draft, transmitted to [clients], does not yield any confidential communication from them." Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013). Fortunately, the court acknowledged that this approach would apply "particularly . . . In a governmental situation," in which "the lawyer may be the chief draftsperson of the particular document which she then sends to her co-workers for their views and thoughts." Id.

Most lawyers would be surprised to hear that the privilege does not protect all draft documents they prepare for their client's review. While most courts do apply the privilege that broadly, lawyers should remember that the privilege exists primarily to protect what their clients tell them.

Case Date Jurisdiction State Cite Checked
2013-04-02 Federal DC
Comment:

key case


Chapter: 17.1002
Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 331 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Documents No. 7, 8, 10, 13, and 26 are draft letters from John and Shelley Dempsey, addressed to officials at Bucknell University, which were apparently never sent. The privilege log describes these documents as having been ghostwritten or co-authored by Attorney Becker. Dempsey claims attorney-client privilege. With respect to these documents, Dempsey's objections to production are SUSTAINED. Based on the document descriptions in the privilege log and the Court's review of the documents in camera, these drafts are privileged because they were 'prepared or circulated for the purpose of giving or obtaining legal advice and contain information or comments not included in the final version.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 17.1002
Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 331 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Document No. 9 includes a partial draft letter from John Dempsey to the president of Bucknell University and notes for an anticipated meeting between the two. The document is undated but, based on its content, it was prepared in the period after Reed Dempsey's student conduct hearing, while his internal appeals remained pending at the University. The privilege log describes this document as having been ghostwritten or co-authored by Attorney Becker. . . . Based on the document description in the privilege log and the Court's review of the document in camera, the preparation of this document involved confidential communication between John Dempsey, acting as an agent of his son's attorney, and Attorney Becker for the purpose of providing legal assistance to Dempsey.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 17.1002
Case Name: Clarke v. J.P. Morgan Chase & Co., No. 08 Civ. 02400 (CM) (DF), 2009 U.S. Dist. LEXIS 30719, at *6 (S.D.N.Y. Apr. 10, 2009)
(denying privilege protection for documents that J.P. Morgan Chase's in-house lawyer helped draft, because "when distributed to management employees, the e-mail in question did not state that it was prepared by or was being sent from [the in-house lawyer]; rather, the 'sender' of the e-mail was identified only as the GTI Management Team," explaining that "those who receive the communication must still reasonably understand that they are receiving the advice of counsel.")

Case Date Jurisdiction State Cite Checked
2009-04-10 Federal NY
Comment:

key case


Chapter: 17.1002
Case Name: Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994)
June 26, 2013 (PRIVILEGE POINT)

"Does the Privilege Protect a Lawyer's Draft Document?"

Most courts recognize the abstract principle that lawyers' communications to their clients deserve privilege protection only if the communication contains or otherwise reflects client confidences. For example, the privilege normally does not protect a lawyer's verbatim transmittal to a client of what the lawyer learned from some government official or other third party.

How does this basic principle apply to draft documents a lawyer prepares? Most courts protect such draft documents, explaining, for example, that "[d]rafting legal documents is a core activity of lawyers, and obtaining information and feedback from clients is a necessary party of the process." Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994). However, some courts take a narrower approach. In Earthworks v. United States Dep’t of Interior, the court held that "the lawyer's draft, transmitted to [clients], does not yield any confidential communication from them." Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013). Fortunately, the court acknowledged that this approach would apply "particularly . . . In a governmental situation," in which "the lawyer may be the chief draftsperson of the particular document which she then sends to her co-workers for their views and thoughts." Id.

Most lawyers would be surprised to hear that the privilege does not protect all draft documents they prepare for their client's review. While most courts do apply the privilege that broadly, lawyers should remember that the privilege exists primarily to protect what their clients tell them.

Case Date Jurisdiction State Cite Checked
1994-03-03 Federal IL
Comment:

key case


Chapter: 17.1004
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 648 (D. Nev. 2013)
("Joint Selection 12 is a document located in a file folder for a product liability meeting on August 26, 2004, and contains a draft chart related to proposed Recovery Filter labeling changes which Bard asserts includes comments by attorneys Joe Hollingsworth and Howard Holstein. Bard asserts the attorney-client privilege with respect to this document."; "The notes do appear to reflect legal advice given with respect to proposed Recovery Filter labeling changes; therefore, the court finds it comes within the attorney-client privilege and Bard is not required to produce Joint Selection 13.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 17.1101
Case Name: Shenwick v. Twitter, Inc., Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018)
December 26, 2018 (PRIVILEGE POINT)

Court Needs More Information to Assess Draft Documents' Privilege Protection

The attorney-client privilege can protect lawyers' input into draft documents created by the lawyer or by the client – which of course evaporates when the client approves the finished document for disclosure outside the relationship. Not surprisingly, courts examine such lawyers' revisions to assess whether those lawyers were providing legal input rather than business, grammatical, stylistic suggestions, etc.

In Shenwick v. Twitter, Inc., the court noted that defendants withheld "several drafts of documents with comments provided with the redlined version." Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018). But because the court could not "determine the identity of the author of comments [in] these draft documents," it ordered defendants "to provide the Court with the identity of the individuals who provided the comments and link them to the comments in the draft documents submitted to the Court.'" Id.

The lesson from such decisions is self-evident. Lawyers should always memorialize their role in any drafting process, and stand ready to identify their suggested changes – including the nature of their legally-driven revisions.

Case Date Jurisdiction State Cite Checked
2018-10-30 Federal

Chapter: 17.1101
Case Name: Entrata, Inc. v. Yardi Systems, Inc., Case No. 2:15-cv-00102-CW-PMW, 2018 U.S. Dist. LEXIS 104171, at *9 (D. Utah June 20, 2018)
August 29, 2018 (PRIVILEGE POINT)

"The Attorney-Client Privilege Does Not Protect All Lawyer Changes to Draft Documents"

Some courts erroneously fail to extend privilege protection to draft documents prepared by or revised by a lawyer before their final disclosure beyond the attorney-client relationship. Even courts that properly acknowledge the availability of privilege protection for such documents must examine the revisions' primary purpose.

In Entrata, Inc. v. Yardi Systems, Inc., the court rejected defendant's privilege claim for "a draft letter showing edits made by … Yardi's Vice President and General Counsel." Case No. 2:15-cv-00102-CW-PMW, 2018 U.S. Dist. LEXIS 104171, at *9 (D. Utah June 20, 2018). The court: (1) correctly noted that "[t]he mere fact that [defendant's General Counsel] was involved with [the draft letter] does not automatically render it subject to attorney-client privilege protection"; (2) erroneously stated that "documents prepared to be sent to third parties, like [the letter], even when prepared by counsel, are generally not attorney-client privileged"; (3) correctly rejected privilege protection after "conclud[ing] that the types of edits made by [defendant's General Counsel] constitute nothing more than simple editorial changes, which do not qualify for attorney-client privilege protection." Id.

Some lawyers mistakenly assume that the privilege protects all of their changes to clients' draft documents. However, every withheld change in such draft documents must meet the "primary purpose" test to deserve privilege protection. Typographical and stylistic revisions generally do not deserve privilege protection.

Case Date Jurisdiction State Cite Checked
2018-06-20 Federal UT
Comment:

key case


Chapter: 17.1101
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("In entry 2561, a Barr executive sent Killion [then General Counsel] an email and attached a redline of a document including the executive's comments, which Killion had requested and which were provided for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.1101
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Entry 2580 is a longer email string, including four emails between Killion [then General Counsel] and various Barr executives, but each communication in the string either requests that the Barr executives send feedback on a legal agreement to Killion, or provides such feedback.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.1101
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Teva entry 3115 was also properly withheld under the attorney-client privilege. It is an email chain consisting of (1) an email from an outside auditor, Jeffrey Mraz, to Barr's then-General Counsel Killion, and (2) a response from Killion to Mraz, which copies two Barr executives. Both emails attach a draft of a letter titled 'Legal Matters' which outlines the status of all of Barr's ongoing litigation, and which was later distributed internally to Barr employees. In the first email, Mraz provided his advice regarding the language of one section of the letter; in the second email, Killion attached an updated version of the letter and requested feedback from Mraz. The communications are plainly privileged because they conveyed and requested information for the purpose of providing legal advice. The fact that Mraz is an outside consultant does not impact this analysis, because consultants are treated similarly to employees for purposes of a privilege analysis.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.1101
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Entries 427, 581, 635, 2145, 2155, and 612 were properly withheld under the attorney-client privilege because those communications clearly convey legal advice. Entry 427 is a portion of a draft legal agreement on which Kos general counsel Koven made handwritten comments and edits. 'Preliminary drafts of contracts are generally protected by attorney client privilege, since '[they] may reflect not only client confidences, but also legal advice and opinions of attorneys, all of which is protected by the attorney client privilege.'". . . The Court concludes that entry 427 is precisely such a document, and is protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 17.1101
Case Name: Johnson v. J. Walter Thompson U.S. A., LLC, 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
(in an opinion by Magistrate Judge Francis, holding that drafts of and communications relating to an investigation conducted by the Proskauer Rose law firm into client's alleged Title VII violation deserved both privilege and work product protection; also noting that the defendant had abandoned a Faragher-Ellerth defense, but that the court would have to review the withheld documents in camera to determine if defendant waived either protection by using the report for "context" in connection with its "good faith" defense; "Proskauer has declined to disclose (1) electronic and handwritten notes taken by Proskauer attorneys during the investigation interviews; (2) earlier drafts of the Proskauer Report containing attorney comments; (3) invoices submitted to the Corporate Defendants; (4) documents provided to Proskauer by JWT and the interviewees in the course of the investigation; and (5) emails among Proskauer attorneys and between Proskauer attorneys and JWT witnesses or outside counsel regarding the investigation and the lawsuit (collectively, the 'Proskauer Documents')."; "[I]t is not the Report itself that is at issue, but rather the documents generated during the investigation."; "With respect to many of the Proskauer Documents, I disagree. 'Rare is the case that a troubled corporation will initiate an internal investigation solely for legal, rather than business, purposes; indeed, the very prospect of legal action against a company necessarily implicates larger concerns about a company's internal procedures and controls, not to mention its bottom line.'. . . Yet the purpose of a communication need not be exclusively legal in order for the privilege to attach. . . . Rather, the legal purpose need only be predominant, and identification of such a purpose 'may [] be informed by the overall needs and objectives that animate the client's request for advice.'. . . Here, there were no doubt multiple motivations for commencing an internal investigation and engaging in the subject communications: to gather information to defend this lawsuit; to determine whether systemic changes were necessary; to decide on a course of action specifically with respect to Mr. Martinez; and to ameliorate a public relations problem. Yet all of these purposes were suffused with the need for legal advice triggered by a lawsuit that had already been filed. This is confirmed by the fact that the Proskauer report contains multiple references to the allegations contained in the lawsuit . . . as well as the fact that its recommendations reflect the application of legal expertise . . . . The plaintiff complains that any claim that the Proskauer investigation had a primarily legal purpose is undermined by the fact that the Corporate Defendants' outside counsel, Davis & Gilbert, had already conducted one . . . . But, surely, the fact that a client chooses to seek legal advice from multiple attorneys does not cast doubt on the privileged nature of communications with any one of them."; "This is true even where the document in its final form is intended to be disseminated publicly. . . . As discussed above, the Proskauer Report reflects the provision of legal advice so the drafts of that report are similarly privileged. Moreover, even if the drafts are not privileged in their entirety, they are also subject to work product protection, as will be discussed below."; "In this case, the Corporate Defendants raised a Faragher/Ellerth defense in their Answer. . . . However, they have since disavowed use of the Proskauer Report in connection with any Farragher/Ellerth defense. They first made this clear at a court conference. . . and they state unequivocally in their reply memorandum that 'Defendants will not be using the legal conclusions in the Proskauer Report . . . to support their position that there has been no violation of the law . . . . ' (Reply Memorandum of Law in further Support of Defendants' Motion for Protective Order)."; "This does not, however, end the inquiry. The Corporate Defendants have indicated that they do not intend to rely on the Proskauer Report 'to provide context for the actions they took as a result of the business recommendations in the Report.'. . . Reliance by the Corporate Defendants on the conclusions of the report does not open up to discovery the details of the investigation that led to the report. . . . Therefore, there is no waiver with respect to the categories of the Proskauer Documents that could be relevant, if at all, only to the accuracy of the findings in the report, specifically, notes of interviews of JWT employees, drafts of the report, and invoices."; "However, when a party asserts a good faith defense, as the Corporate Defendants appear to do here, it may not selectively proffer the information upon which it relied. . . . Here, the extent to which the Corporate Defendants acted in good faith on the basis of the Proskauer Report is dependent upon the totality of the legal advice they received. Thus, the communications related to Proskauer's conclusions, but not the reliabililty of the investigation lending to those conclusions, are discoverable. Accordingly, if they intend to introduce the Proskauer Report in evidence, the Corporate Defendants shall produce for my in camera review any documents withheld on grounds of privilege that reflect communications between themselves and Proskauer or between Proskauer and David & Gilbert concerning the subject matter of the Proskauer Report. In that way, I can determine whether fairness necessitates the disclosure of these documents to the plaintiff.")

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 17.1101
Case Name: Johnson v. J. Walter Thompson U.S. A., LLC, 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
(in an opinion by Magistrate Judge Francis, holding that drafts of and communications relating to an investigation conducted by the Proskauer Rose law firm into client's alleged Title VII violation deserved both privilege and work product protection; also noting that the defendant had abandoned a Faragher-Ellerth defense, but that the court would have to review the withheld documents in camera to determine if defendant waived either protection by using the report for "context" in connection with its "good faith" defense; "In this case, the Corporate Defendants raised a Faragher/Ellerth defense in their Answer. . . . However, they have since disavowed use of the Proskauer Report in connection with any Farragher/Ellerth defense. They first made this clear at a court conference. . . and they state unequivocally in their reply memorandum that 'Defendants will not be using the legal conclusions in the Proskauer Report . . . to support their position that there has been no violation of the law . . . . ' (Reply Memorandum of Law in further Support of Defendants' Motion for Protective Order)."; "This does not, however, end the inquiry. The Corporate Defendants have indicated that they do not intend to rely on the Proskauer Report 'to provide context for the actions they took as a result of the business recommendations in the Report.'. . . Reliance by the Corporate Defendants on the conclusions of the report does not open up to discovery the details of the investigation that led to the report. . . . Therefore, there is no waiver with respect to the categories of the Proskauer Documents that could be relevant, if at all, only to the accuracy of the findings in the report, specifically, notes of interviews of JWT employees, drafts of the report, and invoices."; "However, when a party asserts a good faith defense, as the Corporate Defendants appear to do here, it may not selectively proffer the information upon which it relied. . . . Here, the extent to which the Corporate Defendants acted in good faith on the basis of the Proskauer Report is dependent upon the totality of the legal advice they received. Thus, the communications related to Proskauer's conclusions, but not the reliabililty of the investigation lending to those conclusions, are discoverable. Accordingly, if they intend to introduce the Proskauer Report in evidence, the Corporate Defendants shall produce for my in camera review any documents withheld on grounds of privilege that reflect communications between themselves and Proskauer or between Proskauer and David & Gilbert concerning the subject matter of the Proskauer Report. In that way, I can determine whether fairness necessitates the disclosure of these documents to the plaintiff.")

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 17.1101
Case Name: In re Syngenta AG MIR 162 Corn Litigation, MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017)
August 30, 2017 (PRIVILEGE PONT)

"The Trouble with Drafts: Part I"

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final version of a client-approved pleading loses its privilege protection even before the lawyer files it. Some courts inexplicably misapply this basic principle to strip privilege protection from preliminary privileged drafts reflecting clients' and lawyers' input.

In In re Syngenta AG MIR 162 Corn Litigation, MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017), the court provided an otherwise very helpful list of non-privileged information and communications. After correctly explaining that "drafts of memoranda prepared for a client are protected," the court also indicated that "[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged. Submission of the document to the third party removes any cloak of privilege." Id. at *286 (alteration in original; citation omitted). The court quoted another District of Kansas case, which was even more blunt. Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997) ("When documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity." (emphasis added)). Another court even held that "handwritten communications between [a corporate client's employees] and its attorneys" on draft offering documents did not deserve privilege protection, because the client intended to publicly disseminate the final version. In re Micropro Sec. Litig., No. C-85-7428-ECF (JSB), 1988 U.S. Dist. LEXIS 19375, at *7 (N.D. Cal. Feb. 26, 1988).

This approach does not make much sense. For instance, judges themselves prepare draft opinions, but their disclosure of an opinion's final version does not strip away confidentiality from their in-progress drafts. Next week's Privilege Point will discuss a decision decided the same day as Syngenta – but which took what seems to be the proper approach.

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS
Comment:

key case


Chapter: 17.1101
Case Name: SCF Waxler Marine LLC v. M/V Aris T, C. A. No. 16-902C/W16-959,16-1022,16-1060,16-1134,16-1614 Sec. "A"(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017)
(holding that a draft incident report deserved privilege protection, although the final version was intended to be disclosed; "[J]ust because a factual statement is ultimately disclosed to the public, this does not mean that all drafts of the factual statement automatically lose any privilege that is attached to them. Natta v. Hogan, 392 F.2d 686, 692 (10th Cir. 1968) ('The situation is like that where a client gives general information to his lawyer so that the lawyer may prepare a complaint in any ordinary civil action. The fact that some of the information is thus publicly disclosed does not waive the privilege.'); Buford v. Holladay, 133 F.R.D. 487, 492 (S.D. Miss. 1990) (holding that the ultimate publication of Attorney General Opinions did not waive the privilege as to the communications leading up to the creation of the Opinions). Often, drafts of a document exchanged between an attorney and client will reflect the client's request for advice regarding how to present the facts and the attorney's advice in response. Ideal Electric Company v. Flowserve Corporation, 230 F.R.D. 603, 605 (D. Nev. 2005) ('Drafts often contain attorney's and client's mental impressions, strategies, and either solicit or provide legal advice.'). Such drafts are protected by the attorney client privilege. Total E & P USA Inc. v. Kerr-McGee Oil & Gas Corp., No. CIV.A. 09-6644, 2014 U.S. Dist. LEXIS 93881, 2014 WL 3385130, at *4 (E.D. La. July 10, 2014) (holding that redacted draft affidavits were protected by the attorney client privilege); United States v. N.Y. Metro. Transp. Auth., No. 03CV02139-SLT-MDG, 2006 U.S. Dist. LEXIS 93920, 2006 WL 3833120, at *2 (E.D.N.Y. Dec. 29, 2006) (holding that draft uniform policy bulletins 'need not be produced since they are draft documents that were submitted to attorneys for the purpose of obtaining legal advice'); Ideal Electric Company, 230 F.R.D. at 605 (holding that draft affidavits were protected from disclosure by the attorney-client privilege); Long v. Anderson Univ., 204 F.R.D. 129, 135 (S.D. Ind. 2001) (holding draft answer to a complaint was privileged); Apex Mun. Fund v. N-Grp. Sec., 841 F. Supp. 1423, 1428 (S.D. Tex. 1993) ('[P]reliminary drafts of documents and communications made between attorney and client during the drafting process are privileged.'); Allegheny Ludlum Corp. v. Nippon Steel Corp., No. CIV. A. 89-5940, 1991 U.S. Dist. LEXIS 5173, 1991 WL 61144, at *5 (E.D. Pa. Apr. 15, 1991) (holding that a draft patent application was privileged because the draft was not intended to be publicly transmitted and contained a communication within the attorney-client relationship for the purposes of rendering a confidential opinion)."; "Genesis now knows that contrary to what he suggested in his deposition, Leone [Ship Pilot] did not appear at his counsel's office with a contemporaneous written statement of events. Rather, it has been firmly established through in camera review and oral argument, that the first narrative of the accident was prepared by the attorney based on an interview of the client, Leone. Leone then handwrote in some changes to that draft prior to it becoming a final document, which was produced to NOBRA and others. Nonetheless, Genesis continues to insist that the drafts be discoverable so it can see any changes made. As reiterated in Ideal Electric Company and as discussed further below, however, it is 'these differences [that] are protected by the attorney client privilege and the work product privilege.'"; "[T]he Court finds that the ultimate disclosure of the final draft of the NOBRA Pilot Incident Report does not result in a waiver of the privilege. Just as in Ideal Electric Company, the Court finds that the drafts and notes were never intended to be made public. They were conveyed in confidence in the course of obtaining and giving legal advice. While Leone and his counsel were obviously working towards a document that would be made public, they did not intend that their drafts and analysis would be subject to disclosure. As the Court in Buford observed, the argument raised by Genesis here would result in disclosure of every draft of a pleading, brief, or affidavit that is exchanged between counsel and client merely because such drafts concern facts and the final draft is made public. At oral argument, counsel for Genesis seemed willing to live with this extraordinary result, but the Court finds that such a holding goes too far.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal LA
Comment:

key case


Chapter: 17.1101
Case Name: Endeavor Energy Resources, L.P. v. Gatto & Reitz, LLC, 2:13cv542, 2017 U.S. Dist. LEXIS 48715 (W.D. Pa. March 31, 2017)
("The attorney-client privilege also applies to documents containing draft leases and communications between Endeavor-affiliated individuals (including Estill) and outside counsel as well as notes memorializing conversations about preferred and negotiable lease provisions. All of the documents in this category are confidential and either sought, provided, or facilitated legal advice.")

Case Date Jurisdiction State Cite Checked
2017-03-31 Federal PA

Chapter: 17.1101
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 44192 (D. Kansas March 24, 2017)
(in an opinion by Special Master, finding that a former Monsanto lawyer and business person did not resist discovery after being designated by defendant as a testifying expert; "Doc. No. 18: Monsanto claims that this document is a draft document regarding Identity Preserved Production and Pollen Movement that contains legal comments and revisions by Mr. Carrato regarding status of approvals and how to deal with identity preserved crop. With the exception of pages 1-6, which shall be redacted, the balance of the document (pages 7-9) shall be produced on the basis that it predominantly concerns non-privileged business information concerning cross-pollination, along with Mr. Carrato's editorial redlines. The attorney-client privilege does not attach to simple editing or 'word-smithing' by counsel.")

Case Date Jurisdiction State Cite Checked
2017-03-24 Federal KS

Chapter: 17.1101
Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("Two sets of documents are at issue. The first involve contract negotiations with a fighter. The fighter's counsel provided a marked up version of the fighter's existing contract with the fighter's proposed changes, to Zuffa's COO, Frank Fertitta, who was responsible for negotiations with the fighter. Mr. Fertitta forwarded the marked up contract to in house paralegal Tracy Long and requested a summary of the proposed changes. Ms. Long indicated she would get the input of in house counsel Michael Mersch, and would respond by memo the following day. Zuffa claims a summary of the fighter's proposed changes, a memo from Mr. Mersch to Mr. Fertitta, and related emails are protected by the attorney client privilege. Zuffa's opposition was supported by several declarations which outline the titles various individuals held within the organization during various time periods. Noticeably absent were declarations from the in house counsel involved in the communications, Mr. Mersch, or Mr. Fertitta, the negotiator and executive requesting the summary of proposed changes."; "The court carefully reviewed the documents, considered the context of the communications in which various individuals who sent or received the documents was involved, and found Zuffa simply had not met its burden of showing the documents were privileged. The summary merely recites what the fighter, through counsel, was requesting in contract negotiations. The summary contains no legal analysis or advice, nor do the emails which forward information about what the fighter was requesting, and comment on whether Zuffa should agree or disagree."; "Most of the Mersch memo contains comments about whether Zuffa could or should agree or 'push back' on proposed changes requested by the fighter rather than legal analysis or discussion of the legal ramifications of the fighter's proposals. However, portions of Mr. Mersch's memo to Mr. Fertitta, read in context, contain his legal analysis of existing contract terms and the legal consequences of agreeing or disagreeing with what the fighter's counsel was proposing. Although the memo does not specifically use terms or phrases such as 'this is my legal advice' or 'this is the legal effect' of what the fighter's counsel is requesting, legal analysis of the proposed terms is evident. The court will therefore require that the document be produced to Plaintiffs as redacted below.")

Case Date Jurisdiction State Cite Checked
2017-02-13 Federal NV

Chapter: 17.1101
Case Name: Medline Indus., Inc. v. C.R. Bard, Inc., No. 14 CV 3618, 2016 U.S. Dist. LEXIS 9767, at *8-9, *11-12, *12 (N.D. Ill. Jan. 26, 2016)
(holding that the privilege protected an employee inventor's draft affidavit even though the final version was filed; also holding that a non-employee's draft affidavit was not protected by the privilege despite that person's claim that the lawyer also represented him; "In Spalding [In re Spalding Sports Worldwide, Inc., 203 F.3d 800 (Fed. Cir. 2000)], the Federal Circuit found that 'invention records' -- documents including information such as the names of inventors, descriptions of the invention, closest prior art, and dates of publication -- constitute privileged communications as long as they are provided to an attorney for purposes of securing legal services or assisting in a legal proceeding."; "[P]rivilege analysis in the context of patent suits no longer turns on whether a document is technical in nature or whether it was submitted, in its final form, to the USPTO. . . . Rather, privilege depends on whether 'the overall tenor of the document indicates that it is a request for legal advice or services.'" (citation omitted); "Based on the descriptions in Medline's privilege log and this court's in camera review, the court finds that drafts of the Tomes declarations are privileged. Medline asserts that Tomes, an inventor of record and a Medline employee at the time the documents were created, worked closely with Burrus [lawyer] to write the drafts for ultimate submission to the USPTO. . . . And the draft documents appear to reflect 'communications involved in the strategizing process' during which the attorney 'attempts to shape the [patent] application for presentation to the patent office.'. . . In crafting the final declarations, Burrus and Tomes likely had to make judgment calls, both technical and legal, to persuade the USPTO to issue the patent.")

Case Date Jurisdiction State Cite Checked
2016-01-26 Federal IL B 7/16

Chapter: 17.1101
Case Name: Medline Indus., Inc. v. C.R. Bard, Inc., No. 14 CV 3618, 2016 U.S. Dist. LEXIS 9767, at *22 (N.D. Ill. Jan. 26, 2016)
(holding that the privilege protected an employee inventor's draft affidavit even though the final version was filed; also holding that a non-employee's draft affidavit was not protected by the privilege despite that person's claim that the lawyer also represented him; "As for the Tomes Agreement, however, this court agrees with Medline that the motion should be denied. Based on this court's in camera review of the agreement, the redacted portions either convey legal advice, and are therefore privileged . . . or relate to the terms of Cooley's [plaintiff's lawyer] representation of Tomes [plaintiff's employee/inventor], and are therefore not relevant to any claim or defense in this case.")

Case Date Jurisdiction State Cite Checked
2016-01-26 Federal IL B 7/16

Chapter: 17.1101
Case Name: Wit v. United Behavioral Health, Case Nos. 14-cv-02346- & -05337-JCS, 2016 U.S. Dist. LEXIS 7242, at *25, *26-27 (N.D. Cal. Jan. 21, 2016)
("UBH's Deputy General Counsel, Adam Easterday, states that he reviewed and revised a draft version of the memorandum in his capacity as UBH in-house counsel and that his comments and revisions were incorporated into the Triana Memo."; "In United States v. ChevronTexaco Corp., Judge Chesney observed that there are two types of communications between non-attorneys that might be protected by attorney-client privilege: those in which 'the employees discuss or transmit legal advice given by counsel,' and those in which an employee communicates with another employee about an intent to seek legal advice. United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1077 (N.D. Cal. 2002)."; "UBH relies on both theories in invoking attorney-client privilege, citing the fact that Dr. Triana provided a draft of the memorandum to counsel in order to receive legal advice and that the memorandum that was circulated contained the legal advice he received from counsel. The Court concludes that UBH has sufficiently demonstrated that the Triana Memorandum transmits legal advice (and not business advice, as Plaintiffs contend) that was sought and obtained from in-house counsel and therefore, under the authority cited above, that the document falls within the ambit of attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-01-21 Federal CA B 7/16

Chapter: 17.1101
Case Name: Guyton v. Exact Software North America, Case No. 2:14-cv-502, 2015 U.S. Dist. LEXIS 170241 (S.D. Ohio Dec. 21, 2015)
(finding that a litigant's search for documents deserved privileged protection; "This Court . . . Finds that Ms. Pannkuk's [Defendant's human resources manager] counsel properly objected to the questions and instructed Ms. Pannkuk not to answer. As an initial matter, the questions concerning who provided the information in Ms. Pannkuk's affidavit are improper. In United States v. University Hospital, Inc., 2007 U.S. Dist. LEXIS 41189, 2007 WL 1665748 (S.D. Ohio June 6, 2007)(Black, M.J.), the Court considered whether the plaintiff should be permitted to ask a witness about 'the evolution of his affidavit,' which included 'specific questioning as to: who prepared the affidavit, what the proposed changes were, any communications between [the witness] and whomever helped prepare the affidavit, and the contents of all drafts of the affidavit.' 2007 U.S. Dist. LEXIS 41189, [WL] at *1. . . . Here, the questions about 'the evolution of [the] affidavit' are just the type which the Court found to be improper in University Hospital, Inc., 2007 U.S. Dist. LEXIS 41189, 2007 WL 1665748. This Court agrees with reasoning in University Hospital, and it is unaware of any decision in which the Court determined the discovery of that information to be proper. Thus, Ms. Pannkuk's counsel properly objected and instructed her not to answer the questions on the basis of attorney-client privilege. In addition, the questions about the attorneys' knowledge call for speculation and, to the extent that an answer would reveal communications between Ms. Pannkuk and her attorneys, they seek information protected by the attorney-client privilege. Similarly, the questions directly inquiring about communications between Ms. Pannkuk and her attorneys are clearly subject to protection under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-12-21 Federal OH

Chapter: 17.1101
Case Name: EEOC v. Texas Roadhouse, Inc., Civ. A. No. 11-cv-11732-DJC, 2015 U.S. Dist. LEXIS 161929 (D. Mass. Dec. 2, 2015)
("This email concerning changes that counsel was making to a document. The document has already been provided to the EEOC in discovery. The email and the document attached to the email, as it was undergoing review and was being edited by counsel, are privileged.")

Case Date Jurisdiction State Cite Checked
2015-12-02 Federal MA
Comment:

key case


Chapter: 17.1101
Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)
(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "[I]t is clear to the Court after conducting an in camera review of Ford's Exhibit D that the communications contained in the Logel document constitute legal advice. At the time Mr. Logel was asked to review the Q&A sheet, Ford was already involved in litigation related to unintended accelerations. In addition, the massive Toyota recall had the real potential of expanding litigation exposure to Ford, while creating an industry-wide liability issue. Exhibit D corroborates Ford's assertion that Mr. Logel was consulted in his role as an attorney because of ongoing and potential litigation, and his comments were intended to convey the legal perils and liabilities to Ford associated with making certain statements in light of the litigation.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal WV
Comment:

key case


Chapter: 17.1101
Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; "[T]here appears to a basis for inferring from some snippets of deposition testimony that counsel did make or suggest changes to, at least, the October and November draft letters, in which case the drafts would be protected by the privilege.")

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY

Chapter: 17.1101
Case Name: Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015)
April 29, 2015 (PRIVILEGE POINT)

“Court Offers Good Privilege News for Draft Form 10-K Filings”

Courts disagree about the attorney-client privilege protection's applicability to draft documents whose final version will be publicly disclosed. Public companies naturally worry about this issue's impact on their draft securities filings.

In Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015), a whistleblower plaintiff alleged that Unilife's 2011 Form 10-K report contained false and misleading statements. He sought discovery of Unilife's draft 10-Ks and company lawyers' communications to and from nonlawyer consultants "concerning the [drafts'] contents, style and 'wordsmithing.'" Id. at *5. The court first found that the consultants were the "functional equivalent" of employees — refreshingly acknowledging that "[a] trial judge is not in a good position to second-guess a corporate decision to rely on an independent consultant or an employee to accomplish a specific task." Id. at *7-8. The court then held that the draft 10-Ks deserved privilege protection — citing an earlier decision protecting 10-Ks that contained "legal advice and communications between a law firm and its client . . . even though the final version of the Form 10-K was publicly filed, because the drafts contained information not included in the final version." Id. at *9-10 (citing In re U.S. Healthcare, Inc. Sec. Litig., Master File No. 88-0559, 1989 U.S. Dist. LEXIS 1043, at *12 (E.D. Pa. Feb. 8, 1989)).

Although many decisions seem hostile to corporations' privilege claims, some courts' analyses provide good news.

Case Date Jurisdiction State Cite Checked
2015-02-13 Federal PA
Comment:

key case


Chapter: 17.1101
Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2014 U.S. Dist. LEXIS 31330, at *8-9 (S.D. Ohio Mar. 11, 2014)
("In addition, the Binders contain draft documents (mostly draft letters) prepared or analyzed by Defendant's outside legal counsel as an integral part of their give-and-take communications with Defendant. As noted above, Defendant and its outside counsel engaged in such communications for the purposes of obtaining and providing confidential professional legal advice with the goal of FMLA compliance. As a result, the attorney-client privilege protects the draft documents related to those communications.")

Case Date Jurisdiction State Cite Checked
2014-03-11 Federal OH B 8/14

Chapter: 17.1101
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *17 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "Other cases have considered whether draft documents in an attorney's file are protected by the attorney-client privilege. The initial consideration is whether the document contains largely factual information or whether it provides or seeks legal advice of a confidential nature. Assuming the latter, draft documents have been held to retain their privilege it they contain information a client considered but decided not to include in the final version. . . . However, if the changes reflected on the draft documents appear to be stylistic and structural changes only, and do not provide or request legal advice, the documents are not privileged.")

Case Date Jurisdiction State Cite Checked
2014-02-04 Federal CT B 6/14

Chapter: 17.1101
Case Name: High Point Sarl v. Sprint Nextel Corp., Civ. A. Case No. 09-2269-CM-DJM, 2012 U.S. Dist. LEXIS 154585, at *26 (D. Kan. Oct. 29, 2012)
(analyzing privilege issues in a patent case; "The Court has reviewed the document identified as entry 1091 and finds that it is a draft contract with some handwritten questions in the margins. Although Avaya [interested party] cannot identify the author of the draft agreement or handwritten questions in the margins, the nature and content of the questions written on the contract are such that they appear to be written as communications to or from an attorney reviewing the draft document.")

Case Date Jurisdiction State Cite Checked
2012-10-29 Federal KS B 1/14

Chapter: 17.1101
Case Name: Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997)
August 30, 2017 (PRIVILEGE POINT)

"The Trouble with Drafts: Part I"

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final version of a client-approved pleading loses its privilege protection even before the lawyer files it. Some courts inexplicably misapply this basic principle to strip privilege protection from preliminary privileged drafts reflecting clients' and lawyers' input.

In In re Syngenta AG MIR 162 Corn Litigation, MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017), the court provided an otherwise very helpful list of non-privileged information and communications. After correctly explaining that "drafts of memoranda prepared for a client are protected," the court also indicated that "[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged. Submission of the document to the third party removes any cloak of privilege." Id. at *286 (alteration in original; citation omitted). The court quoted another District of Kansas case, which was even more blunt. Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997) ("When documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity." (emphasis added)). Another court even held that "handwritten communications between [a corporate client's employees] and its attorneys" on draft offering documents did not deserve privilege protection, because the client intended to publicly disseminate the final version. In re Micropro Sec. Litig., No. C-85-7428-ECF (JSB), 1988 U.S. Dist. LEXIS 19375, at *7 (N.D. Cal. Feb. 26, 1988).

This approach does not make much sense. For instance, judges themselves prepare draft opinions, but their disclosure of an opinion's final version does not strip away confidentiality from their in-progress drafts. Next week's Privilege Point will discuss a decision decided the same day as Syngenta – but which took what seems to be the proper approach.

Case Date Jurisdiction State Cite Checked
1997-01-01 Federal KS
Comment:

key case


Chapter: 17.1101
Case Name: In re U.S. Healthcare, Inc. Sec. Litig., Master File No. 88-0559, 1989 U.S. Dist. LEXIS 1043, at *12 (E.D. Pa. Feb. 8, 1989)
April 29, 2015 (PRIVILEGE POINT)

“Court Offers Good Privilege News for Draft Form 10-K Filings”

Courts disagree about the attorney-client privilege protection's applicability to draft documents whose final version will be publicly disclosed. Public companies naturally worry about this issue's impact on their draft securities filings.

In Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015), a whistleblower plaintiff alleged that Unilife's 2011 Form 10-K report contained false and misleading statements. He sought discovery of Unilife's draft 10-Ks and company lawyers' communications to and from nonlawyer consultants "concerning the [drafts'] contents, style and 'wordsmithing.'" Id. at *5. The court first found that the consultants were the "functional equivalent" of employees — refreshingly acknowledging that "[a] trial judge is not in a good position to second-guess a corporate decision to rely on an independent consultant or an employee to accomplish a specific task." Id. at *7-8. The court then held that the draft 10-Ks deserved privilege protection — citing an earlier decision protecting 10-Ks that contained "legal advice and communications between a law firm and its client . . . even though the final version of the Form 10-K was publicly filed, because the drafts contained information not included in the final version." Id. at *9-10 (citing In re U.S. Healthcare, Inc. Sec. Litig., Master File No. 88-0559, 1989 U.S. Dist. LEXIS 1043, at *12 (E.D. Pa. Feb. 8, 1989)).

Although many decisions seem hostile to corporations' privilege claims, some courts' analyses provide good news.

Case Date Jurisdiction State Cite Checked
1989-02-08 Federal PA
Comment:

key case


Chapter: 17.1101
Case Name: In re Micropro Sec. Litig., No. C-85-7428-ECF (JSB), 1988 U.S. Dist. LEXIS 19375, at *7 (N.D. Cal. Feb. 26, 1988)
August 30, 2017 (PRIVILEGE POINT)

"The Trouble with Drafts: Part I"

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final version of a client-approved pleading loses its privilege protection even before the lawyer files it. Some courts inexplicably misapply this basic principle to strip privilege protection from preliminary privileged drafts reflecting clients' and lawyers' input.

In In re Syngenta AG MIR 162 Corn Litigation, MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017), the court provided an otherwise very helpful list of non-privileged information and communications. After correctly explaining that "drafts of memoranda prepared for a client are protected," the court also indicated that "[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged. Submission of the document to the third party removes any cloak of privilege." Id. at *286 (alteration in original; citation omitted). The court quoted another District of Kansas case, which was even more blunt. Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997) ("When documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity." (emphasis added)). Another court even held that "handwritten communications between [a corporate client's employees] and its attorneys" on draft offering documents did not deserve privilege protection, because the client intended to publicly disseminate the final version. In re Micropro Sec. Litig., No. C-85-7428-ECF (JSB), 1988 U.S. Dist. LEXIS 19375, at *7 (N.D. Cal. Feb. 26, 1988).

This approach does not make much sense. For instance, judges themselves prepare draft opinions, but their disclosure of an opinion's final version does not strip away confidentiality from their in-progress drafts. Next week's Privilege Point will discuss a decision decided the same day as Syngenta – but which took what seems to be the proper approach.

Case Date Jurisdiction State Cite Checked
1988-02-26 Federal CA
Comment:

key case


Chapter: 17.1102
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Entry 2580 is a longer email string, including four emails between Killion [then General Counsel] and various Barr executives, but each communication in the string either requests that the Barr executives send feedback on a legal agreement to Killion, or provides such feedback.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.1102
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("In entry 2561, a Barr executive sent Killion [then General Counsel] an email and attached a redline of a document including the executive's comments, which Killion had requested and which were provided for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.1102
Case Name: In re Syngenta AG MIR 162 Corn Litigation, MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017)
August 30, 2017 (PRIVILEGE POINT)

"The Trouble with Drafts: Part I"

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final version of a client-approved pleading loses its privilege protection even before the lawyer files it. Some courts inexplicably misapply this basic principle to strip privilege protection from preliminary privileged drafts reflecting clients' and lawyers' input.

In In re Syngenta AG MIR 162 Corn Litigation, MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017), the court provided an otherwise very helpful list of non-privileged information and communications. After correctly explaining that "drafts of memoranda prepared for a client are protected," the court also indicated that "[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged. Submission of the document to the third party removes any cloak of privilege." Id. at *286 (alteration in original; citation omitted). The court quoted another District of Kansas case, which was even more blunt. Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997) ("When documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity." (emphasis added)). Another court even held that "handwritten communications between [a corporate client's employees] and its attorneys" on draft offering documents did not deserve privilege protection, because the client intended to publicly disseminate the final version. In re Micropro Sec. Litig., No. C-85-7428-ECF (JSB), 1988 U.S. Dist. LEXIS 19375, at *7 (N.D. Cal. Feb. 26, 1988).

This approach does not make much sense. For instance, judges themselves prepare draft opinions, but their disclosure of an opinion's final version does not strip away confidentiality from their in-progress drafts. Next week's Privilege Point will discuss a decision decided the same day as Syngenta – but which took what seems to be the proper approach.

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS
Comment:

key case


Chapter: 17.1102
Case Name: ePlus Inc. v. Lawson Software, Inc., 2012 U.S. Dist. LEXIS 177616, 2012 WL 6562735, Civ. A. No. 3:09cv620 (E.D. Va. Dec. 14, 2012)
("While there does not appear to be any controlling precedent of the Fourth Circuit, courts that have considered the question have recognized that draft documents, although prepared for public consumption, can constitute work product. See, e.g., Bush Dev. Corp. v. Harbour Place Assoc., 632 F. Supp. 1359, 1363 (E.D. Va. 1986) (holding that a 'draft complaint' was 'certainly prepared in anticipation of litigation and is thus entitled to at least the qualified immunity of Rule 26(b)(3)'); see also McKinley v. FDIC, 744 F. Supp. 2d 128, 141-42 (D.D.C. 2010) (finding that a draft affidavit was subject to work product protection); In re New York Renu with Moisturelock Product Liability Litigation, No. 2:06-MN-77777-DC, 2009 U.S. Dist. LEXIS 80446, 2009 WL 2842745 at *13 (D.S.C. July 6, 2009) (same); A.F.L. Falck, S.p.A. v. E.A. Karay Co., 131 F.R.D. 46, 49 (S.D.N.Y. 1990) (same). The leading case on the question appears to be Randleman v. Fidelity Nat. Title Ins. Co., 251 F.R.D. 281 (N.D. Ohio 2008), which dealt with drafts of affidavits that were subsequently filed with the court. There, the court found that '[T]he work product doctrine does protect information relevant to the evolution of an affidavit, including but not limited to communications with the counsel relating to the affidavit, prior drafts of the affidavit, and any notes made by counsel while engaging in the process of drafting the affidavit.'"; "Id. at 285 (quoting Tuttle v. Tyco Electronics Installations Services, 2007 U.S. Dist. LEXIS 95527, 2007 WL 4561530 at *2 (S.D. Ohio Dec. 21, 2007). The court further found that the public filing of the final draft of the affidavit did not waive the work product protection as to the drafts. Randleman, 251 F.R.D. at 286. Indeed, the court found that the drafts constituted opinion work product and not simply factual work product, which is afforded a lower degree of protection. Id. at 287. The court observed that 'disclosure of the drafts could reveal the attorneys' thought processes about the case. Whatever an attorney writes at the outset will reflect his approach to whatever issues that affidavit is to speak to.' Id. Although not binding, these decisions are persuasive and persuading. The Court, therefore, concludes that certain draft documents, although prepared for public consumption, nevertheless are protected by the work product doctrine, presuming that they are claimed as such and are, in fact, prepared in anticipation of litigation."; "Of course, the production of the final draft of a document waives work product protection as to that draft. Nevertheless, this does not lead to the waiver of work product protection for the earlier drafts of the document. This position is in line with the general view that the waiver of the work product protection as to the final draft of a document does not constitute a waiver of the earlier versions of the draft. See In re New York Renu, 2009 WL 2842745 at *12 (noting that the 'better view, and modern trend, is to hold that waiver by disclosure of a final document does not operate as a waiver of the drafts that are work product')."; "This rule serves to protect from disclosure earlier drafts of the declarations and affidavits that were ultimately filed with the Court. For example, Lawson's privilege log is replete with earlier drafts of the declarations that were submitted as exhibits to its OPPOSITION TO EPLUS' MOTION TO SHOW CAUSE (Docket No. 804). The factual communications underlying those drafts are not privileged as attorney-client communications since they are prepared with the intention of being disclosed to third parties. However, the earlier drafts retain work product protection, presuming that the log claims them as such. The logic underlying this principle applies with the equal force to the inadvertent disclosure of an earlier draft of the Declaration of Todd Dooner, the final draft of which was Exhibit 1 to Lawson's Opposition and the disclosure of which was discussed at the hearing. . . . Accordingly, while Lawson has certainly waived privilege to that particular draft by producing it and failing to follow the procedures to attempt a 'clawback,' there is no broader subject-matter waiver of the work product doctrine that would require it to produce the other drafts of the document. Therefore, the Court finds that the drafts of the Dooner Declaration are properly withheld, notwithstanding Lawson's production of one of those drafts.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal VA
Comment:

key case


Chapter: 17.1102
Case Name: Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997)
August 30, 2017 (PRIVILEGE POINT)

"The Trouble with Drafts: Part I"

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final version of a client-approved pleading loses its privilege protection even before the lawyer files it. Some courts inexplicably misapply this basic principle to strip privilege protection from preliminary privileged drafts reflecting clients' and lawyers' input.

In In re Syngenta AG MIR 162 Corn Litigation, MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017), the court provided an otherwise very helpful list of non-privileged information and communications. After correctly explaining that "drafts of memoranda prepared for a client are protected," the court also indicated that "[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged. Submission of the document to the third party removes any cloak of privilege." Id. at *286 (alteration in original; citation omitted). The court quoted another District of Kansas case, which was even more blunt. Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997) ("When documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity." (emphasis added)). Another court even held that "handwritten communications between [a corporate client's employees] and its attorneys" on draft offering documents did not deserve privilege protection, because the client intended to publicly disseminate the final version. In re Micropro Sec. Litig., No. C-85-7428-ECF (JSB), 1988 U.S. Dist. LEXIS 19375, at *7 (N.D. Cal. Feb. 26, 1988).

This approach does not make much sense. For instance, judges themselves prepare draft opinions, but their disclosure of an opinion's final version does not strip away confidentiality from their in-progress drafts. Next week's Privilege Point will discuss a decision decided the same day as Syngenta – but which took what seems to be the proper approach.

Case Date Jurisdiction State Cite Checked
1997-01-01 Federal KS
Comment:

key case


Chapter: 17.1102
Case Name: In re Micropro Sec. Litig., No. C-85-7428-ECF (JSB), 1988 U.S. Dist. LEXIS 19375, at *7 (N.D. Cal. Feb. 26, 1988)
August 30, 2017 (PRIVILEGE POINT)

"The Trouble with Drafts: Part I"

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final version of a client-approved pleading loses its privilege protection even before the lawyer files it. Some courts inexplicably misapply this basic principle to strip privilege protection from preliminary privileged drafts reflecting clients' and lawyers' input.

In In re Syngenta AG MIR 162 Corn Litigation, MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017), the court provided an otherwise very helpful list of non-privileged information and communications. After correctly explaining that "drafts of memoranda prepared for a client are protected," the court also indicated that "[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged. Submission of the document to the third party removes any cloak of privilege." Id. at *286 (alteration in original; citation omitted). The court quoted another District of Kansas case, which was even more blunt. Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997) ("When documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity." (emphasis added)). Another court even held that "handwritten communications between [a corporate client's employees] and its attorneys" on draft offering documents did not deserve privilege protection, because the client intended to publicly disseminate the final version. In re Micropro Sec. Litig., No. C-85-7428-ECF (JSB), 1988 U.S. Dist. LEXIS 19375, at *7 (N.D. Cal. Feb. 26, 1988).

This approach does not make much sense. For instance, judges themselves prepare draft opinions, but their disclosure of an opinion's final version does not strip away confidentiality from their in-progress drafts. Next week's Privilege Point will discuss a decision decided the same day as Syngenta – but which took what seems to be the proper approach.

Case Date Jurisdiction State Cite Checked
1988-02-26 Federal CA
Comment:

key case


Chapter: 17.1201
Case Name: Winfield v. City of New York, 15-cv-05236 (LTS) (KHP), 2018 U.S. Dist. LEXIS 16807 (S.D.N.Y. Feb. 1, 2018)
("This draft memorandum regarding the creation of a mandatory inclusionary housing program is protected under the attorney-client and deliberative process privileges. With respect to attorney-client privilege, the document reflects questions directed to counsel in which the City sought legal advice. It also recites the substance of legal advice rendered by counsel.")

Case Date Jurisdiction State Cite Checked
2018-02-01 Federal NY

Chapter: 17.1201
Case Name: Mun. Auth. of Westmoreland Cnty. v. CNX Gas Co., LLC, Civ. A. No. 2:16-CV-422, 2017 U.S. Dist. LEXIS 209659 (W.D. Pa. Dec. 21, 2017)
("Several of the documents are clearly not privileged. . . . The third is a communication between CONSOL employees in which one or more attorney is listed as a recipient, but no attorney is contributing to the exchange, much less providing legal advice.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal PA

Chapter: 17.1201
Case Name: Greater New York Taxi Assoc. v. The City of New York, 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017)
(in an opinion by Magistrate Judge Francis, finding that some employee-to-employee communications deserved privilege protection as an implicit request for legal advice, but some do not; also holding that a lawyer's notes of a meeting can deserve opinion work product protection; "The privilege protects both the advice of the attorney to the client and the information communicated by the client that provides a basis for giving advice.")

Case Date Jurisdiction State Cite Checked
2017-09-11 Federal NY

Chapter: 17.1201
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Entry 635 is a PowerPoint presentation assessing the terms of the Kos-Barr settlement. AbbVie's privilege log identifies the author of entry 635 as Joseph Suarez, a Kos executive. But the PowerPoint was initially prepared by Kos's outside counsel, White & Case attorney Rajeev Malik. . . . Because the presentation was drafted by an attorney and provided a legal analysis of the Kos-Barr settlement, it was properly withheld under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 17.1201
Case Name: Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017)
October 11, 2017 (PRIVILEGE POINT)

"Courts Look for Lawyers' Responses to Clients' Requests for Legal Advice"

The privilege can protect clients' requests for legal advice, and lawyers' responses. But employees simply cc'ing a lawyer on an email to another employee cannot guarantee privilege protection – because the email might be (1) a protected implicit request for legal advice; (2) an unprotected but good faith effort to keep the lawyer "in the loop"; or (3) an improper attempt to gin up a privilege claim.

In Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017), the court acknowledged that some employee-to-employee emails deserved privilege protection -- because they conveyed legal advice to those who needed it. But the court rejected privilege protection for one email which cc'd a lawyer. Among other things, the court noted that "[a]t no point did [the lawyer who was cc'd] actually respond to the inquiries with legal advice." Id. at *11.

Other courts focus on the same thing – looking for a dialogue in which clients ask for legal advice and lawyers provide it. Lawyers may find themselves far too busy to respond to every email, but they should remember that their silence could doom a privilege claim. Such lawyers should consider responding to any emails that could be misinterpreted or damaging if a court short circuits its privilege review and rejects a valid privilege claim simply because there has been no dialogue.

Case Date Jurisdiction State Cite Checked
2017-07-10 Federal IN
Comment:

key case


Chapter: 17.1201
Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)
("The privilege applies both to information that the client provides to the lawyer for purposes of obtaining legal advice, as well as to the advice the attorney furnishes to the client.")

Case Date Jurisdiction State Cite Checked
2017-06-08 Federal PA

Chapter: 17.1201
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "It involves the revenue associated with CYC. It is a business document."; "Again, while Mr. Moodliar [Lawyer] is copied on the email, he is neither the author nor recipient and no legal advice is given, asked for, or received in the communication. Nor does the communication reflect any legal advice that was given.")

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 17.1201
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "The document does not include or reference an attorney or any legal advice."; "It is a 'business' rather than 'legal document, as no attorney or legal advice is involved.")

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 17.1201
Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("The attorney-client privilege protects confidential disclosures made by a client to an attorney to obtain legal advice and an attorney's advice in response to such disclosures.")

Case Date Jurisdiction State Cite Checked
2017-02-13 Federal NV

Chapter: 17.1201
Case Name: Loguidice v. McTiernan, 1:14-CV-1323 (TJM/CFH), 2016 U.S. Dist. LEXIS 113745 (N.D.N.Y. Aug. 25, 2016)
(in an employment case, analyzing plaintiff's effort to obtain internal government communications about her firing; analyzing the communications topic by topic, finding that some of the topics would involve legal advice, while others did not; "The privilege protects the attorney's advice to the client and the information communicated by the client that provides a basis for giving advice.")

Case Date Jurisdiction State Cite Checked
2016-08-25 Federal NY

Chapter: 17.1201
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723, at *38-39 (E.D. Pa. Dec. 14, 2015)
("These emails do not fall within the ambit of the attorney-client privilege. The only attorney recipient of these emails, in-house counsel Walt Linscott, is merely copied on the email thread and does not contribute to the discussion.").

Case Date Jurisdiction State Cite Checked
2015-12-14 Federal PA

Chapter: 17.1201
Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("Upon review, the Court concludes that the redacted communication involving in-house counsel reflects the opinions and analysis of counsel (as well as the question of a non-attorney seeking advice of counsel), not merely the status of negotiations.")

Case Date Jurisdiction State Cite Checked
2015-05-20 Federal FL

Chapter: 17.1201
Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("[A]lthough Mr. Hunt [Lawyer] is copied on three out of the four e-mails contained within the chain, he offered no legal advice in response.")

Case Date Jurisdiction State Cite Checked
2014-11-12 Federal IL

Chapter: 17.1201
Case Name: TP Orthodontics, Inc. v. Kesling, No. 46S03-1405-MI-337, 2014 Ind. LEXIS 715, at *22-23 (Ind. Sept. 3, 2014)
(analyzing privilege protection for a report prepared by a special committee in a derivative case; holding that any opinion work product deserved absolute protection, and that a company did not trigger an "at issue" waiver by relying on the report; remanding for an in camera review to assess privilege claims; "The SLC report attached to TPO's motion to dismiss satisfies both requirements. First, the report states that the SLC retained the attorneys of the law firm of Wooden & McLaughlin for assistance in conducting the underlying investigation. Thus, an attorney-client relationship existed between the attorneys at Wooden & McLaughlin and the SLC. Second, as discussed above, the report contained recommendations from the SLC's counsel -- communications in response to the SLC's efforts to obtain legal advice regarding the validity of the derivative claims from attorneys acting in their professional capacity. Given that TPO has met its burden of establishing the presence of confidential attorney-client communications within the SLC report, we find the sibling shareholders' contrary assertion without merit.")

Case Date Jurisdiction State Cite Checked
2014-09-03 State IN

Chapter: 17.1201
Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 6 (W.D. Va. May 31, 2013)
("I find that the redacted language of the IAS document is legal advice provided by legal counsel to the client, K-C. The redactions quote or summarize legal opinions with regard to trademark and patent issues relating to a product. These communications set forth the legal opinion of counsel, and the direction of counsel with regard to a course of action. As such, they are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-05-31 Federal VA B 9/13

Chapter: 17.1201
Case Name: Spread Enters., Inc. v. First Data Merch. Servs. Corp., No. CV 11 4743 (ADS) (ETB), 2013 U.S. Dist. LEXIS 22307, at *6-7, *7-8 (E.D.N.Y. Feb. 19, 2013)
("Nor is there any response from Cohen [in-house lawyer] at issue that could be construed as providing legal advice. In fact, Cohen's only response throughout the entire series of emails came almost one month after MacNaughton [executive for defendant] sent his original email and merely suggests that the parties involved 'recap the initial issue' and where First Data was in its response to it. . . . Again, however, nothing about this email appears to be of a legal nature."; ignoring the in-house lawyer's declaration; "Cohen asserts in his declaration that he was 'acting in his capacity as an attorney in the virtual discussion, as well as any other discussions (whether virtual, by telephone or in person) in which [he] participated' with respect to the MacNaughton email." (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal NY

Chapter: 17.1201
Case Name: Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 554 (S.D.N.Y. 2013)
(in an opinion by Magistrate Judge James Francis, holding that an employment database deserved privilege but not work product protection; "The privilege protects not only the advice of the attorney to the client, but also the information communicated by the client that provides a basis for giving advice.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 4/14

Chapter: 17.1201
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 220 (N.D. Ill. 2013)
("Documents that are written by or for attorneys or that include an attorney's legal advice are covered by the attorney-client privilege, and documents that are not prepared by or for attorneys but are created because of litigation fall into the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 17.1201
Case Name: Roberts v. Corwin, No. 175370/2009, 2012 NY Slip Op 51876U, at 4 (N.Y. Sup. Ct. Sept. 10, 2012)
("In contrast, if the document conveys legal advice rendered in co-counseling on the arbitration, as well as legal advice regarding the malpractice action, then the document may be redacted.")

Case Date Jurisdiction State Cite Checked
2012-09-10 State NY B 12/13

Chapter: 17.1201
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859, 872 (E.D. Va. 2012)
(explaining the attorney client privilege; "It encompasses both the giving of professional advice by a lawyer and the giving of information to the lawyer for the purposes of obtaining such advice.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 17.1202
Case Name: McKnight v. Honeywell Safety Products USA, Inc., Civ. A. No. 16-132WES, 2019 U.S. Dist. LEXIS 18076, at *3 (D.R.I. Feb. 5, 2019)
May 1, 2019 (PRIVILEGE POINTS)

"Does The Privilege Protect Internal Corporate Training Manuals?"

Because the attorney-client privilege ultimately rests on clients' request for legal advice about facts they give their lawyers, most courts extend privilege protection to those communications and to lawyers' specific legal advice in return. Several courts have rejected privilege protection for corporations' generic internal training manuals. Many courts take the same attitude toward procedural instructions for claims handling, general deposition preparation videos, basic antitrust educational materials, etc.

But some courts take a broader view. In McKnight v. Honeywell Safety Products USA, Inc., the court generously extended privilege protection to Honeywell's "annual on-line training on U.S. wage-hour compliance conducted by in-house counsel." Civ. A. No. 16-132WES, 2019 U.S. Dist. LEXIS 18076, at *3 (D.R.I. Feb. 5, 2019). The court noted that the withheld document contained "sixty-three slides consisting of essentially pure legal advice regarding federal and state wage-hour laws, followed by three slides about how to exit the training and verify that it was viewed." Id. at *4. The court concluded that "[t]here is no business advice or recommendation regarding the classification of a specific Honeywell position," but did not address the specificity requirement that many other courts assess. Id.

Corporations should not expect all courts to take this helpful approach, but may find it helpful to cite this decision in asserting privilege protection for internal training materials.

Case Date Jurisdiction State Cite Checked
2019-02-05 Federal
Comment:

key case


Chapter: 17.1202
Case Name: Sweeney v. Montana Third Judicial Dist. Court, OP 17-0677, 2018 Mont. LEXIS 126 (Mont. Sup. April 24, 2018)
(analyzing an implied waiver issue when a criminal defendant did not attend a hearing, and his lawyer argued that the client was not aware of the hearing date; concluding over a dissent that the lawyer's communication about a hearing date to a client deserved privilege protection, which meant that the government could not discover the substance of such a communication; "Given that advising a client of a hearing date in a criminal case is inseparably intertwined with the concept of legal advice and that compelled inquiry of counsel to distinguish between advice and non-advice would vitiate counsel's duty of undivided loyalty to the client, we hold that the District Court erred when it denied the motion to quash the subpoena compelling Sweeney to submit to examination on whether she advised her client of the fate of his final pretrial conference. Furthermore, § 26-1-803(1), MCA, prohibits the District Court from compelling Sweeney to testify about communications made with McClanahan without his consent when her testimony would prove the elements of a new charge against McClanahan. We expressly limit this holding to the unique facts and circumstances of this case.")

Case Date Jurisdiction State Cite Checked
2018-04-24 State MO
Comment:

key case


Chapter: 17.1202
Case Name: Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) Partnership Ltd., Civ. No. 3:16-CV-621, 2018 (M.D. Pa. April 5, 2018)
("The privilege applies both to information that the client provides to the lawyer for purposes of obtaining legal advice, as well as to the advice the attorney furnishes to the client.")

Case Date Jurisdiction State Cite Checked
2018-04-05 Federal PA

Chapter: 17.1202
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("Turning to attorney-client privilege, the Court notes that all of these documents contain communications from in-house counsel. Nevertheless, Attorney Moeller does not provide legal advice of any kind -- she simply transmits markups to company employees. As previously discussed, in-house counsel's communications regarding the negotiation of a contract generally constitute business advice, rather than legal advice. . . . Accordingly, Documents 4039, 4139, 4146, and 4193 are not privileged and must be produced.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY

Chapter: 17.1202
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("[E]ntry 5647 is an email from Killion [then General Counsel] to two Barr executives, in which Killion attached a draft of a legal agreement and asked one recipient 'did I fix your problem?' That communication makes clear that the email is intended to provide legal advice in response to that problem, solicit feedback for the purpose of providing legal advice, or both. The Court concludes that both of these communications were made 'for the purpose of obtaining . . . legal assistance to the client.'")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA
Comment:

key case


Chapter: 17.1202
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("The first redaction, on an e-mail dated February 16, 2015, is improper. The redacted sentence simply asks two non-attorney employees to examine and correct data slides before they are sent to an attorney for approval. This redaction does not 'contain legal advice from a Syngenta attorney' as stated in Nadel's declaration.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS

Chapter: 17.1202
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("PRIV000400. Syngenta has not met its burden of demonstrating the attorney-client privilege attaches to the redacted information in this e-mail. The redacted information itself does not reflect attorney advice. Its indication that an attorney asked the author of the e-mail to distribute attached material simply relays an unprotected act. Moreover, the redaction of a sentence directing to whom documents could be shared was improper, as neither the sentence itself nor Nadel's declaration in support of the redaction indicates the directive came from an attorney, or, even if it did, that it was a legal, rather than a business, directive. Syngenta's assertion of privilege over the redacted material is overruled, and Syngenta shall produce the document in its entirety.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS

Chapter: 17.1202
Case Name: Nalco Company LLC v. Pall Corporation, 16-cv-6755 (PKC), 2017 U.S. Dist. LEXIS 63122 (S.D.N.Y. April 13, 2017)
(holding that the work product doctrine did not protect documents required by a contract; "The claim of privilege fails because Nalco has not sustained its burden of showing that the elements of the attorney-client privilege are met. Nalco elected to meet its burden solely by reference to the Silberberg [a Dorsey & Whitney partner] declaration and exhibits thereto. In that declaration, Nalco has disclosed the only piece of legal advice it claims: that Silberberg and an in-house lawyer told Anderson to check the accuracy of the July 2016 Spreadsheet before he and others testified at their depositions. . . . There is no claim in the declaration that any lawyer told Anderson how to go about checking the accuracy of the figures. Nor is there a claim that Anderson had questions of a lawyer about whether certain sales or other data should be included in the Year Two calculation. There is no claim that any lawyer provided legal advice about the revised spreadsheet after being shown a draft thereof. The claim of attorney-client privilege fails because there was no confidential communication for the purpose of obtaining or giving legal advice other than arguably the one disclosed in the declaration.")

Case Date Jurisdiction State Cite Checked
2017-04-13 Federal NY

Chapter: 17.1202
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "First, the document includes as a carbon copy a Xerox employee, Ms. Weston. Ms. Weston is not an attorney or client in any way relating to Hertz, nor has Defendant established that she is an 'agent' for purposes of expanding the attorney-client privilege."; "Second, the document itself is a training document that is not 'legal' but part of the Hertz 'business.' Thus, any attorney included in the email is acting in a business capacity, not in the capacity of an attorney providing legal advice. Thus, there is no privilege that applies."; "Third, apart from Ms. Weston, there are numerous recipients of the email (direct and cc'd) that Defendant has not established are necessary intermediaries for Hertz's counsel to provide legal advice. Only those employees that 'need to know' are permitted to be included in privileged communications and Defendant has failed to establish that each and every recipient involved 'needed to know' attorney-client privileged communications.")

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal NJ

Chapter: 17.1202
Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)
("Greyhound challenges Viad's privilege assertion for memoranda prepared by Daryl Hagg. . . . Hagg was an assistant to Viad's general counsel and others in Viad's law department, and prepared memoranda addressing reimbursement figures from various sites."; "The Court has reviewed these documents, and no legal advice is communicated in them. Nor has Viad provided any evidence that the information contained in them was obtained for purposes of providing legal advice. Viad has failed to meet its burden.")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal AZ

Chapter: 17.1202
Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)
("Greyhound argues that Dr. Ries's [a non-lawyer member of Viad's legal department from 1987 to 2001] testimony that he sometimes prepared a 'memorandum to file' for the sole purpose of documenting information proves that these documents are not privileged. . . . The Court does not agree. One of the three documents reviewed by the Court was addressed to 'Files: TLC -- General.' The other two were labeled 'Estimated Future Environmental Liabilities.' All three are labeled as privileged. Dr. Ries's testimony about his practice of writing unrelated memoranda to file does not refute his sworn declaration about the documents submitted for in camera review. Dr. Ries stated that these documents were prepared at the direction of lawyers in Viad's law department, and Massimino stated that Viad lawyers rely on these materials to advise the company. These facts support application of the privilege."; "Greyhound also asserts that Viad has not provided proof that these documents were ever communicated. The Court does not agree. The declarations of Dr. Ries and Mr. Massimino, and the location of the documents in the law department's files, provides sufficient circumstantial evidence that the memoranda were communications of information needed to render legal advice.")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal AZ

Chapter: 17.1202
Case Name: U.S. Bank National Association v. PHL Variable Insurance Company, Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670 (D. Minn. March 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; including after an in camera review the risk assessment involved business rather than legal concern; "PHL argues generally that portions of the Report that make specific recommendations should be protected as legal advice. However, as discussed above, aside from the additional portions of this Court finds protected, the rest of the recommendations are improvements to PHL's business practices in order to minimize the economic risk of STOLI transactions and not legal recommendations.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN

Chapter: 17.1202
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding that the attorney-client privilege did not protect documents about how a company could prevent generic pharmaceutical companies from entering a market; "In general, it appears that defendants have taken an overly expansive view of which documents are privileged simply because Ms. Manogue and other attorneys (either at PWR, whose role is discussed more in-depth below, or at Teikoku) drafted them or were copied on them. Some of the documents submitted for in camera review are devoid of legal advice, but concern business matters. For example, Exhibit 3 is a chain of emails attaching a draft of the Citizen Petition amendment. The emails concern the purpose of a Citizen Petition and the timing for filing, which read in context are business matters not legal advice or communications seeking legal advice. Exhibits 5, 6 & 7 consist of a cover email and identical 'Citizen Petition Timeline' slides. There is no legal advice contained or sought in the email or slides, and the slides themselves appear to be based on publicly available information, plus what may be an internal plan or suggestion on timing for an additional Citizen Petition amendment. These documents are devoid of legal advice. While they may have been prepared for a discussion between Endo, Teikoku, and PWR as to the timing of a Citizen Petition amendment or whether to file a new Citizen Petition, that does not make the contents of the emails and identical slides protectable as attorney-client information. Exhibit 8 . . . Is a cover email from Caroline Manogue to board members and others at Endo attaching the response from the FDA denying the Citizen Petition. That email was forwarded by Endo's former CFO Levin to additional people at Endo seeking input on various business matters, and an email response to Levin from one of the subsequent recipients about expected financial reporting in response to the FDA's action. These documents are concerned with the business implications of the FDA's actions. Other than the first sentence at the top of the email chain (regarding a conversation with Manogue), there is no legal advice provided or sought. Other than that one sentence, this communication is not protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-07 Federal CA

Chapter: 17.1202
Case Name: Bowman v. Washington County Kennel Club, Inc., Case No. 5:15cv257-RH/GRJ, 2016 U.S. Dist. LEXIS 18948 (N.D. Fla. Feb. 17, 2016)
(noting that the defendant had abandoned a Faragher-Ellerth defense, and therefore did not trigger a waiver; "In its answer to the complaint in this action, the Club apparently invokes Faragher and Ellerth as the ninth defense."; "Ms. Bowman says Ms. Faragasso's March 5 letter and related communications are relevant to the ninth defense and that a party who asserts such a defense waives the attorney-client privilege for communications like these. In response, the Club has explicitly abandoned the ninth defense. The defense apparently would fail anyway, because Ms. Bowman asserts discrimination only in tangible employment actions -- actions to which the Faragher and Ellerth defense does not apply."; "Ms. Faragasso's letter fits squarely within the attorney-client privilege. The letter sets out the attorney's opinion responding to the client's request for advice on a legal matter, and the letter almost certainly includes factual information provided by the client. The advice was provided in confidence and has not been disclosed to others."; "In addition, these circumstances illustrate the utility of the attorney-client privilege when functioning as intended. One of the most important tools for bringing about corporate compliance with governing laws is free communication between a corporate decision maker and an attorney who will speak truth to power. The privilege exists to promote free communication of that kind. This record includes only allegations; nothing has been proved. But one assertion is that after this investigation, Ms. Bowman's hours were restored. It is at least possible that Ms. Faragasso's report caused the restoration of hours that had been discriminatorily reduced. If that is what happened, it is also possible that without an effective attorney-client privilege, the Club would not have consulted Ms. Faragasso, and the discriminatory reduction of hours would not have ended. Bringing about compliance with governing laws is one goal of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-02-17 Federal FL
Comment:

key case


Chapter: 17.1202
Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
(analyzing defendant's instructions to various witnesses not to answer deposition questions; "During his September 4, 2015 deposition, Defendant instructed Ethan Bailey not to answer five of Plaintiffs' questions based on the attorney-client privilege. The questions included: (1) "With respect to the compliance aspect of CoreLogic's written policies, are you aware of any compliance with respect to the law, other than Dodd-Frank?"; (2) 'Do you know if the written policies of CoreLogic with respect to compliance specifically refer to specific laws?'; (3) 'Do you know whether or not there is content in those CoreLogic corporate policies with respect to compliance with the law?'; (4) 'What is the content?'; and (5) 'What is the content of that corporate policy with respect to compliance with the law?'"; "[T]he Court is not persuaded the content of Defendant's written legal compliance policies, which CoreLogic asserts were drafted by its in-house counsel . . . Constitutes 'legal advice' such that it satisfies the first element of the Ninth Circuit's eight-factor test for determining whether the attorney-client privilege applies.")

Case Date Jurisdiction State Cite Checked
2016-02-02 Federal CA

Chapter: 17.1202
Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
(analyzing defendant's instructions to various witnesses not to answer deposition questions; concluding that a defendant's written legal compliance policies did not constitute "legal advice" and therefore could be examined at deposition; also concluding that the legal compliance policies were not kept confidential because they were widely circulated; "[T]he Court is not persuaded Defendant's written legal compliance policies are 'confidential' because they are 'shared only within the company.'. . . At least some of CoreLogic's legal compliance policies are written for, and made available to, all CoreLogic employees. Thus, under In re Domestic Drywall Antitrust Litigation [In re Domestic Drywall Antitrust Litig., 2014 U.S. Dist. LEXIS 144263, 2014 WL 5090032], the Court finds Defendant's argument that its written policies are protected by the attorney-client privilege because they are 'shared only within the company' unavailing."; "And because the Court has not reviewed any of Defendant's written legal compliance policies, it cannot say with certainty that, as in In re Domestic Drywall Antitrust Litigation, all of the policies are 'general' and 'more akin to a reference or instructional guide' than 'specific advice.'. . . Therefore, the Court finds it can neither grant nor deny Plaintiffs' Motion with respect to this claim based on the information presently before it.")

Case Date Jurisdiction State Cite Checked
2016-02-02 Federal CA

Chapter: 17.1202
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
March 2, 2016 (PRIVILEGE POINT)

"How Do Courts Apply the "Primary Purpose" Privilege Standard?: Part II"

Last week's Privilege Point described a court's rejection of an in-house lawyer's affidavit swearing that a client's employees' communications to him sought legal advice. FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015). The obvious lesson is that corporate employees should explicitly seek legal advice in their communications. A similar principle applies when lawyers communicate to their corporate clients.

Also in FTC v. AbbVie, Inc., the court assessed a company's privilege claim for its outside lawyer's report about his meeting with a patent examiner. The court correctly noted that the privilege does not protect lawyers' communications to their clients simply reciting government officials' statements. The company argued that the redacted portion of its lawyer's report was "not a direct quote" from the patent examiner, and that the redacted portion "succinctly incorporated [the lawyer's] mental impressions." Id. at *13. But the court concluded that it "cannot plausibly read the [redacted portion] in this way." Id. The court then noted that "[t]here are no accompanying legal conclusions or perceptions, and the redacted [portion] does not include qualifying language such as 'I believe' or 'my opinion is.'" Id. at *12-13.

Corporations' lawyers should discipline themselves to explicitly state whether their communications to their client's employees contain their legal advice or reflect their legal judgment through their selection of excerpts from conversations with government officials, and leave no room for conjecture.

Case Date Jurisdiction State Cite Checked
2015-12-14 Federal PA
Comment:

key case


Chapter: 17.1202
Case Name: Epic Systems Corp. v. Tata Consultancy Services Ltd., 14-cv-748-wmc, 2015 U.S. Dist. LEXIS 166438 (W.D. Wis. Dec. 10, 2015)
(analyzing privilege and work product issues in connection with internal corporate investigations conducted by Loeb & Loeb; finding the privilege inapplicable and concluding that the plaintiff could overcome any possible work product protection; finding that the privilege did not apply because (among other things) "the report contains no legal advice.")

Case Date Jurisdiction State Cite Checked
2015-12-10 Federal WI
Comment:

key case


Chapter: 17.1202
Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "In the allegedly privileged communications, which the Court has reviewed in camera, counsel proceeded to discuss aspects of the administration of the 401(k) Plan with various Citigroup employees, for the evident purpose of formulating responses to these media inquiries."; "Courts have recognized that attorneys who have advised their clients on public relations matters continued to render legal advice where '[t]he legal ramifications and potential adverse use of such communications were material factors in the development of the communications.'")

Case Date Jurisdiction State Cite Checked
2015-10-16 Federal NY

Chapter: 17.1202
Case Name: Alomari v. Ohio Dept. of Public Safety, 15a0630n.06, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
("Advising a client on how to respond to media inquiries has important legal implications when that client will issue a public statement about an employee. . . . Given the potential for legal liability, Reed-Frient's input on how to draft a media response was essential.").

Case Date Jurisdiction State Cite Checked
2015-09-09 Federal OH

Chapter: 17.1202
Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
(holding that the attorney-client privilege protected communications in which a corporate employee sought an in-house lawyer's advice about how to respond to public inquiries; finding that the privilege protected a draft report involving a lawyer's legal advice; "Although Mr. Szuszman does not explicitly request an evaluation of the potential liability that may arise from the report, the declarations provided by Ford support the conclusion that Mr. Logel is the attorney in Ford's Office of the General Counsel who is regularly consulted when employees are concerned that a document they intend to publish or disclose will have unintended ramifications in litigation, or may otherwise expose the corporation to liability.").

Case Date Jurisdiction State Cite Checked
2015-09-03 Federal WV
Comment:

key case


Chapter: 17.1202
Case Name: Scott v. Chipotle Mexican Grill, Inc., 12-CV-08333 (ALC) (SN), 2015 U.S. Dist. LEXIS 40176 (S.D.N.Y. March 27, 2015)
(finding that defendant's FLSA consultant was not within the privilege; "An in camera review of the documents, however, satisfies the Court that Parcheta's [Lawyer] advice is legal in nature. Briefly stated, Parcheta writes as a lawyer and discusses and analyzes the law, beyond bare recitation of regulations or the giving of non-legal business advice. It is not merely his degree which renders his advice legal, but rather the focus of his attention and the nature of his communication with Chipotle; his correspondence with Moore would not be out of place in the outbox of a major law firm. It would be disingenuous to discount Parcheta's legal advice merely because he or his employer also provides other types of advice. Accordingly, the privilege applies, regardless of MSEC's nontraditional structure.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal NY

Chapter: 17.1202
Case Name: United States v. Bey, No. 13-2810, 2014 U.S. App. LEXIS 22665 (7th Cir. Dec. 2, 2014)
(holding that a defendant's lawyer could testify that he told his client about the date the client was supposed to surrender to prison; "Bey contends, though, that the second sentence of the letter did more than just transmit an order. It admonished her that she was 'now supposed to report' to prison or the Marshals office on December 8, so she contends it gave her legal advice about the order's meaning. . . . The argument attributes too much depth to the letter. The order itself directed Bey to 'surrender' to prison, and the letter just repeated that direction by reciting that she was 'supposed to report.' That is not confidential legal advice.")

Case Date Jurisdiction State Cite Checked
2014-12-02 Federal

Chapter: 17.1202
Case Name: United States v. Bey, No. 13-2810, 2014 U.S. App. LEXIS 22665 (7th Cir. Dec. 2, 2014)
(holding that a defendant's lawyer could testify that he told his client about the date the client was supposed to surrender to prison; "[O]ther circuits have held consistently that the attorney-client privilege does not apply to communications of the date that a defendant is required to appear in court or to serve a sentence. These courts reason that a lawyer's communication to a client of the terms of a public court order is simply not con-fidential [sic] advice.; "We agree with the reasoning of our colleagues in these circuits and conclude that admitting the portion of Anderson's letter and his testimony authenticating it did not invade the attorney-client privilege. Anderson merely forwarded from the court to his client the public information in a court order. The fact that Anderson was Bey's lawyer did not transform the transmission of this information into confidential legal advice.")

Case Date Jurisdiction State Cite Checked
2014-12-02 Federal

Chapter: 17.1202
Case Name: Transcontinental Refrigerated Lines, Inc. v. New Prime, Inc., Civ. No. 1:13-CV-2163, 2014 U.S. Dist. LEXIS 75320, at *26 n.10 (M.D. Pa. June 3, 2014)
(addressing a situation in which a liquidation trustee sought documents from a law firm, which argued that it had represented the CEO personally rather than a company; concluding that the required analysis involved a document-by-document analysis; ultimately concluding that the representation had started as a personal representation but then became a representation of the company -- which had the only interest in asset transaction the law firm handled; "HTD 1372 is a stock, out-of-office email response from Attorney Kalnis to Hrobuchak and does not contain confidential material.")

Case Date Jurisdiction State Cite Checked
2014-06-03 Federal MD

Chapter: 17.1202
Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *15-16, *17, *17 n.4, *18, *19-20 (E.D.N.Y. Jan. 21, 2014)
(not for publication) (upholding a Magistrate Judge's opinion that neither the attorney-client privilege nor the work product doctrine protected communications between a Duane Morris lawyer and a corporate client's human resource executive; finding the attorney-client privilege inapplicable because the advice was primarily business-related and not legal; finding the work product doctrine inapplicable for a number of reasons; "Based on its review of the Submitted Documents, the Court concurs with Judge Scanlon's assessment that the communications between Defendants and outside counsel related to human resources issues, e.g., the internal investigation related to Mr. Komoulis and responding to his complaints. Such advice would have been provided even absent the specter of litigation, and therefore do [sic] not constitute litigation-related work product."; "Defendants concede that 'LPL [defendant] ha[d] an obligation to investigate' Koumoulis's complaints about alleged discrimination and retaliation,' regardless of the potential for litigation. . . . The alleged motivation for which these documents were sought is not enough to overcome what appears on the face of the documents themselves."; "[E]ven assuming the internal investigation was conducted in anticipation of litigation, otherwise work-product privileged communications relating to the investigation would still be discoverable once Defendants assert a Faragher/Ellerth [Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998)] defense. Indeed, Defendants acknowledged as much when they disclosed their in-house attorneys' notes and correspondence regarding the investigation. Defendants offer no justification for treating their outside counsel's communications regarding the investigation differently than their in-house counsel's communications on that topic."; "Defendants acknowledge that this advice was intended, in part, to prevent Plaintiff from bringing claims of retaliation. . . . Legal advice given for the purpose of preventing litigation is different than advice given in an anticipation of litigation."; "[S]imply declaring that something is prepared in 'anticipation of litigation' does not necessarily make it so. . . . [T]he contents of the communications directly contradict Defendants' privilege claim. These communications, on their face, relate to advice given by Ms. Bradley on how to prevent a lawsuit, not on how to defend one.")

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal NY B 6/14

Chapter: 17.1202
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2:08-cv-2141, 2013 U.S. Dist. LEXIS 129472, at *40 (E.D. Pa. Sept. 11, 2013)
(holding that internal corporate communications deserve privilege protection, relying both on the documents and on supporting affidavits; "[T]he remaining documents in this category directly reflect legal advice rendered by Cephalon's attorneys. Certain documents contain handwritten notes regarding the terms of a draft agreement with a generic pharmaceutical company. . . . Another document is a database of certain intellectual property owned by Cephalon, which was prepared at the request of in-house counsel and contains comments by Cephalon's patent attorneys. . . . These documents all contain notes created by Cephalon's attorneys and constitute legal advice from counsel to Cephalon's non-attorney employees.")

Case Date Jurisdiction State Cite Checked
2013-09-11 Federal PA B 4/14

Chapter: 17.1202
Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *15-16 (E.D. Va. Apr. 22, 2013)
("This chain starts with an email from counsel with a link to a story on the Federal Circuit's opinion in this case. Although the email was sent from counsel, nothing in counsel's communication deals with motives, strategy or the nature of services provided. Therefore, this communication is not protected by attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 17.1202
Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *18-19 (E.D. Va. Apr. 22, 2013)
("This email chain includes a discussion about the result of the Federal Circuit's opinion, but the only communication from DVSI counsel is one that informs DVSI that it had prevailed on part of its appeal. This alert does not amount to confidential communications and is not privileged.")

Case Date Jurisdiction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 17.1202
Case Name: Spread Enters., Inc. v. First Data Merch. Servs. Corp., No. CV 11 4743 (ADS) (ETB), 2013 U.S. Dist. LEXIS 22307, at *6-7, *7-8 (E.D.N.Y. Feb. 19, 2013)
("Nor is there any response from Cohen [in-house lawyer] at issue that could be construed as providing legal advice. In fact, Cohen's only response throughout the entire series of emails came almost one month after MacNaughton [executive for defendant] sent his original email and merely suggests that the parties involved 'recap the initial issue' and where First Data was in its response to it. . . . Again, however, nothing about this email appears to be of a legal nature."; ignoring the in-house lawyer's declaration; "Cohen asserts in his declaration that he was 'acting in his capacity as an attorney in the virtual discussion, as well as any other discussions (whether virtual, by telephone or in person) in which [he] participated' with respect to the MacNaughton email." (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal NY B 2/14

Chapter: 17.1202
Case Name: DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1199 (Colo. 2013)
(finding that a title opinion can deserve privilege protection; "From the general information provided to us, attorney-authored title opinions, insofar as they contain legal advice based on a confidential client communication, appear to fall within that doctrine's ambit. According to one commentator, 'title opinions are much more than just a recitation of that which appears in the public records. They constitute the attorney's opinion concerning title to the property.' . . . [A] particular title opinion, like any document sought in discovery, may contain privileged attorney-client communications if the parameters of that doctrine are met. To make this determination, the particular title opinions must be examined." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 State CO B 4/14

Chapter: 17.1202
Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *18 (E.D. Va. June 10, 2004)
("Item 7 is a Capital One Diversity Recruiting presentation, created by in-house counsel, and marked confidential and attorney-client privileged. The presentation was designed to provide legal advice and apprise senior management about legal risks associated with diversity issues. The presentation was treated confidentially, and in fact, copies of the presentation were collected after the presentation was made. Item 7 was clearly a communication falling within the attorney-client privilege, and contrary to Plaintiff's arguments, the style of the item in no way detracts from its privileged nature.")

Case Date Jurisdiction State Cite Checked
2004-06-10 Federal VA

Chapter: 17.1203
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
("Thus, the status of the drafter (or the recipient) of the supposedly privileged document is not decisive on the question of whether the document is protected. It is for that reason that progress or status reports, investigation summaries, and general updates are generally not privileged merely because they were written by a lawyer to the client.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL
Comment:

key case


Chapter: 17.1203
Case Name: Cnty. of San Mateo v. v. CSL Ltd. (In re Plasma-Derivative Protein Therapies Antitrust Litig.), No. 09 C 7666, No. 11 C 1468, 2013 U.S. Dist. LEXIS 29624, at *12 (N.D. Ill. Mar. 4, 2013)
(holding that the presence of a third party during otherwise privileged communications destroyed privilege protection; "Communications from an attorney to the client are privileged only to the extent that they reveal confidential information from the client. . . . Legal advice or communications are not protected unless the proponent of the privilege demonstrates that such advice or communications relate to prior, confidential client communications.")

Case Date Jurisdiction State Cite Checked
2013-03-04 Federal IL B 3/14

Chapter: 17.1203
Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *21 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "The vast majority of documents for which defendants claim attorney-client privilege are emails wherein Attorney Moore [Outside lawyer] and/or Howe [court Human Resource Manager] are summarizing the testimony of various witnesses and keeping AOC [defendant] employees updated on the progress of the AOC investigation. Defendants' blanket assertion of attorney-client privilege does not suffice to demonstrate that these emails constitute communications made for the purpose of seeking or transmitting legal advice.")

Case Date Jurisdiction State Cite Checked
2013-02-22 Federal NH B 3/14

Chapter: 17.1203
Case Name: DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1199 (Colo. 2013)
(finding that a title opinion can deserve privilege protection; "To conclude that legal advice loses its privileged character when based on public information, as the court here appears to reason, would render the attorney-client privilege meaningless in many circumstances. Attorneys regularly base legal advice on public information. Indeed, the statutes and caselaw [sic] that inform most legal advice are publicly available at law libraries and on the Internet. What matters is that the legal advice is given in response to a confidential client communication, irrespective of whether that advice is informed by publicly available information. Accordingly, because the trial court's reasoning is without legal support, we hold that the court abused its discretion by compelling production of title opinions.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State CO B 4/14

Chapter: 17.1301
Case Name: Shenwick v. Twitter, Inc., Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018)
December 26, 2018 (PRIVILEGE POINT)

Court Needs More Information to Assess Draft Documents' Privilege Protection

The attorney-client privilege can protect lawyers' input into draft documents created by the lawyer or by the client – which of course evaporates when the client approves the finished document for disclosure outside the relationship. Not surprisingly, courts examine such lawyers' revisions to assess whether those lawyers were providing legal input rather than business, grammatical, stylistic suggestions, etc.

In Shenwick v. Twitter, Inc., the court noted that defendants withheld "several drafts of documents with comments provided with the redlined version." Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018). But because the court could not "determine the identity of the author of comments [in] these draft documents," it ordered defendants "to provide the Court with the identity of the individuals who provided the comments and link them to the comments in the draft documents submitted to the Court.'" Id.

The lesson from such decisions is self-evident. Lawyers should always memorialize their role in any drafting process, and stand ready to identify their suggested changes – including the nature of their legally-driven revisions.

Case Date Jurisdiction State Cite Checked
2018-10-30 Federal

Chapter: 17.1301
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
("Entries 427, 581, 635, 2145, 2155, and 612 were properly withheld under the attorney-client privilege because those communications clearly convey legal advice. Entry 427 is a portion of a draft legal agreement on which Kos general counsel Koven made handwritten comments and edits. 'Preliminary drafts of contracts are generally protected by attorney client privilege, since '[they] may reflect not only client confidences, but also legal advice and opinions of attorneys, all of which is protected by the attorney client privilege.'". . . The Court concludes that entry 427 is precisely such a document, and is protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 17.1301
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("Document 15 is a redlined draft of proposed amendments to an agreement with Uretek that were made by a non-attorney member of the legal department, under the direction of Attorney Castellano. While there is no indication that it was prepared in anticipation of litigation so as to qualify it for protection under the work product doctrine, it was legal advice 'communicated' to the client when it was turned over to YKK Corporation's document custodian Yoshimine Kobayashi. As such, it is subject to attorney-client privilege and need not be produced.")

Case Date Jurisdiction State Cite Checked
2016-11-18 Federal NY

Chapter: 17.1301
Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
(holding that the attorney-client privilege protected communications in which a corporate employee sought an in-house lawyer's advice about how to respond to public inquiries; "Mr. Engle's purpose in communicating with Mr. Logel was to obtain legal advice about the wording of an investigation report Mr. Engle intended to supply to the Chicago Transit Authority. . . . Mr. Engle did not provide data to Mr. Logel for the purpose of drafting the investigation report; instead, he submitted the completed report to Mr. Logel to review with an eye toward 'possible legal and/or litigation ramifications of the statements made in [the] draft report and as to the general wording of the document, including whether any information should be omitted or included to comply with legal requirements or principles.'. . . In other words, Mr. Engle's communication with Mr. Logel was not a request for assistance in generating a public report; rather, it was a request to insure that the wording of a report that detailed a completed investigation did not expose the corporation to liability, or negatively affect its position in potential litigation. Being retained to provide legal guidance on how to reduce a client's risk of liability is different than being retained for the specific purpose of preparing a report intended for public dissemination. Certainly, Mr. Engle had reason to obtain legal advice on the wording of the report given his concern that the underlying incidents would lead to litigation. Contrary to Plaintiffs' contention, there is nothing about this request for advice that suggests Mr. Engle's intention to have any of his communications with Mr. Logel published. . . . Accordingly, the Court finds that the e-mail exchange between Mr. Engle and Mr. Logel, and the draft showing the edits of Mr. Logel").

Case Date Jurisdiction State Cite Checked
2015-09-03 Federal WV
Comment:

key case


Chapter: 17.1301
Case Name: Beverly v. Watson, No. 14 C 4970, 2015 U.S. Dist. LEXIS 114146 (N.D. Ill. Aug. 28, 2015)
(holding that the privilege protected drafts of client documents revised by a lawyer; "The remaining withheld documents are drafts of letters and memos prepared for CSU administrators. All of these drafts were either written or reviewed by in-house counsel to assess legal issues. For example, IRE000805 is a March 3, 2014 email from in-house counsel Patrick Cage to President Watson's Executive Assistant Binta Chauncey attaching a draft letter with Cage's proposed edits. This is an attorney-client communication and need not be produced.")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal IL

Chapter: 17.1301
Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("The facsimile cover sheet that accompanied Document No. 2 included a request by Tamblyn [School district superintendent] for legal advice from Gerner [School district's outside counsel] in his capacity as an attorney. . . . The typed portion of Document No. 2 drafted by Tamblyn was expressly designated as a 'Confidential Draft.'. . . Gerner in turn designated his marked-up version of the draft Letter as both 'Privileged and Confidential.'. . . And there is no evidence of waiver. Accordingly, Tamblyn's confidential statements sent to Gerner for the purpose of seeking legal advice and Gerner's confidential handwritten comments made in response qualify for protection under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-08-07 Federal IL

Chapter: 17.1301
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2:08-cv-2141, 2013 U.S. Dist. LEXIS 129472, at *40 (E.D. Pa. Sept. 11, 2013)
(holding that internal corporate communications deserve privilege protection, relying both on the documents and on supporting affidavits; "[T]he remaining documents in this category directly reflect legal advice rendered by Cephalon's attorneys. Certain documents contain handwritten notes regarding the terms of a draft agreement with a generic pharmaceutical company. . . . Another document is a database of certain intellectual property owned by Cephalon, which was prepared at the request of in-house counsel and contains comments by Cephalon's patent attorneys. . . . These documents all contain notes created by Cephalon's attorneys and constitute legal advice from counsel to Cephalon's non-attorney employees.")

Case Date Jurisdiction State Cite Checked
2013-09-11 Federal PA B 4/14

Chapter: 17.1301
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *9 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Drafts of the citizen petition shared between counsel and Astellas [defendant] employees that were prepared by, or at the direction, request, or advice of Wertjes [in-house lawyer] or outside counsel are privileged. . . . However, to the extent that any drafts of the petition were shared with outside parties, such as public relations firms, the privilege is deemed waived with respect to those particular drafts.")

Case Date Jurisdiction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 17.1301
Case Name: High Point Sarl v. Sprint Nextel Corp., Civ. A. Case No. 09-2269-CM-DJM, 2012 U.S. Dist. LEXIS 154585, at *26 (D. Kan. Oct. 29, 2012)
(analyzing privilege issues in a patent case; "The Court has reviewed the document identified as entry 1091 and finds that it is a draft contract with some handwritten questions in the margins. Although Avaya [interested party] cannot identify the author of the draft agreement or handwritten questions in the margins, the nature and content of the questions written on the contract are such that they appear to be written as communications to or from an attorney reviewing the draft document.")

Case Date Jurisdiction State Cite Checked
2012-10-29 Federal KS B 1/14

Chapter: 17.1302
Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
(holding that the attorney-client privilege protected communications in which a corporate employee sought an in-house lawyer's advice about how to respond to public inquiries; finding that the privilege protected a draft report involving a lawyer's legal advice; "Although Mr. Szuszman does not explicitly request an evaluation of the potential liability that may arise from the report, the declarations provided by Ford support the conclusion that Mr. Logel is the attorney in Ford's Office of the General Counsel who is regularly consulted when employees are concerned that a document they intend to publish or disclose will have unintended ramifications in litigation, or may otherwise expose the corporation to liability.").

Case Date Jurisdiction State Cite Checked
2015-09-03 Federal WV
Comment:

key case


Chapter: 17.1302
Case Name: Elan Microelectronics Corp. v. Pixcir Microelectronics Co., Case No. 2:10-cv-00014-GMN-PAL, 2013 U.S. Dist. LEXIS 114788, at *12 (D. Nev. Aug. 14, 2013)
("[W]hen an attorney is merely communicating information, such as an order to appear in court, the communications between the attorney and the client are not privileged.")

Case Date Jurisdiction State Cite Checked
2013-08-14 Federal NV B 4/14

Chapter: 17.1302
Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *16 (D. Nev. June 18, 2013)
("[W]hen an attorney is merely communicating information, such as an order to appear in court, the communications between the attorney and the client are not privileged.")

Case Date Jurisdiction State Cite Checked
2013-06-18 Federal NV B 4/14

Chapter: 17.1302
Case Name: DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1199 (Colo. 2013)
(finding that a title opinion can deserve privilege protection; "To conclude that legal advice loses its privileged character when based on public information, as the court here appears to reason, would render the attorney-client privilege meaningless in many circumstances. Attorneys regularly base legal advice on public information. Indeed, the statutes and caselaw [sic] that inform most legal advice are publicly available at law libraries and on the Internet. What matters is that the legal advice is given in response to a confidential client communication, irrespective of whether that advice is informed by publicly available information. Accordingly, because the trial court's reasoning is without legal support, we hold that the court abused its discretion by compelling production of title opinions.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State CO B 4/14

Chapter: 17.1305
Case Name: Valassis Communications, Inc. v. News Corporation, 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
(after reviewing documents in camera; "Both parties agree that training materials and policy documents can amount to legal advice protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2018-09-19 Federal NY

Chapter: 17.1306
Case Name: DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1199 (Colo. 2013)
(finding that a title opinion can deserve privilege protection; "To conclude that legal advice loses its privileged character when based on public information, as the court here appears to reason, would render the attorney-client privilege meaningless in many circumstances. Attorneys regularly base legal advice on public information. Indeed, the statutes and caselaw [sic] that inform most legal advice are publicly available at law libraries and on the Internet. What matters is that the legal advice is given in response to a confidential client communication, irrespective of whether that advice is informed by publicly available information. Accordingly, because the trial court's reasoning is without legal support, we hold that the court abused its discretion by compelling production of title opinions.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State CO B 4/14