McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 638 of 638 results

Chapter: 16.7
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *15 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "The mere mention of the legal department and that certain statements are subject to its approval does not give rise to privilege in the absence of a request for or provision of legal advice.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 8/14

Chapter: 16.7
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *18-19 (E.D. Va. Dec. 3, 2012)
("[H]e has provided a privilege log that includes only a general description of each document, but little if any explanation as to why each document is privileged. This places the burden on the Court to surmise the basis for privilege as best as it can glean from its in camera review. On their face, a number of these documents appear to contain no privileged material. These include communications between counsel and third parties, emails scheduling appointments or discussing administrative matters, and communications regarding the scope of representation. Without further explanation, evidence, or authority, the Court concludes that none of these documents are privileged." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 16.7
Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *9-10 (E.D. Va. May 12, 2011)
("Document 1 involves an email chain of communications between various AIG employees and general counsel. The subject of the communications concerns a business meeting. The document makes no reference to any particular legal issue. While general counsel is a recipient of the email chain, the communications do not explicitly ask for legal advice, opinions, or oversight. Furthermore, the attorney's response is limited to clarifying a business issue and scheduling a meeting. Consequently, though the communication is between a client and attorney, Document 1 is not subject to the attorney client privilege because the purpose of the document is not to provide an opinion on law, legal services, or to provide assistance in some legal context.")

Case Date Jurisdiction State Cite Checked
2011-05-12 Federal VA B 4/13

Chapter: 16.7
Case Name: Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987)
("In fact for the privilege to apply, the client's confidential communication 'must be for the primary purpose of soliciting legal, rather than business, advice.'" (quoting North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M.D.N.C. 1986); finding it "remarkable" that the documents claimed to be privileged "do not contain specific requests for legal advice or services"))

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal VA

Chapter: 16.7
Case Name: Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587-588 (W.D. Va. 1987)
(holding that the lawyer "must be acting as an attorney and not simply as a business advisor" for communications to be privileged; finding that memoranda claimed to be privileged by Wyeth instead related to a business transaction and primarily contained business advice; "Remarkably, [the memoranda] do not contain specific requests for legal advice of services, and Wyeth has done little to show this court how these documents primarily could be tied to legal advice as opposed to business advice. . . . The court finds the documents to have been prepared primarily in a business capacity and not primarily in a legal capacity. Business advice is not privileged.")

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal VA

Chapter: 16.10
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: 16.10
Case Name: SCF Waxler Marine LLC v. Aris T, Civ. A. Nos. 16-902, -959, -1022, -1134, & -1614 SECTION: “A”(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017)
September 6, 2017 (PRIVILEGE POINT)

"The Trouble with Drafts: Part II"

Last week's Privilege Point discussed a decision holding that the privilege did not protect in-progress drafts of documents whose final version will be disclosed to third parties. In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017).

On the same day, the Eastern District of Louisiana dealt with this issue. In SCF Waxler Marine LLC v. Aris T, Civ. A. Nos. 16-902, -959, -1022, -1134, & -1614 SECTION: “A”(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017), the court rejected a party's effort to discover preliminary drafts of an incident report whose final version was ultimately made public. The court noted that the client and his lawyer "did not intend that their drafts and analysis would be subject to disclosure." Id. at *25. The court then emphasized an obvious point some courts seemingly overlook – "the argument raised by [the party seeking discovery] 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." Id.

The SCF Waxler Marine court's refreshingly logical approach should carry the day in every court. But to be safe, clients and their lawyers should carefully document (1) both of their roles in drafting documents for ultimate disclosure; (2) the lawyer's legal input as reflecting legal advice, rather than business, stylistic, or grammatical advice; and (3) their intent to maintain their drafting process's confidentiality until they agree on a final version to be disclosed.

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

key case


Chapter: 16.10
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: 16.10
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: 16.11
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; "Defendants seek to compel Plaintiff's testimony regarding an email that she sent to another medical professional, in which she wrote, '[t]here may be some things to clean up with MedStar, as they own Georgetown.' Relying on attorney-client privilege, Plaintiff's counsel instructed Plaintiff not to answer Defendants' questions about the reasons she made that written statement. Plaintiff now argues that the answers to Defendants' questions regarding this statement were derived from advice from her attorney and are, therefore, privileged."; "[T]he Court agrees with Plaintiff that the response to Defendants' question was subject to attorney-client privilege and that Plaintiff was entitled to refuse to answer the question on that basis. During a break in the deposition -- off the record -- Plaintiff's counsel consulted with his client about what her answer to Defendants' question would be, if it were not privileged. He determined that the content of that answer is privileged because it pertained to advice received from counsel, and he instructed Plaintiff not to answer the question."; "It is a reasonable inference from the colloquy at the deposition, together with counsel's express representation that Plaintiff's response to the question would entail revealing communications between Plaintiff and her attorney, that the underlying communications are privileged. Therefore, the Court concludes that Plaintiff was within her rights to refuse to answer the Defendants' questions about her statement that '[t]here may be some things to clean up with MedStar.' Accordingly, Defendants' request to compel Plaintiff's deposition testimony on this matter is denied.")

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

key case


Chapter: 16.201
Case Name: Doe v. Township High School Dist. 211, No. 1-14-0857, 2015 Ill. App. LEXIS 432 (Ill. App. 1d 5th Div. June 5, 2015)
(analyzing protection for an internal investigation of possible sexual misconduct at a high school; "[T]he question is, first, whether the notes were even communications made to an attorney. Cates [Special education director] does not state that his handwritten notes were intended to be communications to an attorney or that they were sent to the attorney prior to this discovery dispute. They were, as he swore in his affidavit, part of the fact-finding mission that he was assigned by his supervisor. At most, they could be work product, which we discuss below. Thus, defendants failed to satisfy their burden of proving that the notes were covered by an attorney-client communication.")

Case Date Jurisdiction State Cite Checked
2015-06-05 State IL

Chapter: 16.201
Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *3 (Del. Ch. Dec. 9, 2013)
("I note that a communication can qualify for the attorney-client privilege even if no party to the communication is an attorney.")

Case Date Jurisdiction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 16.201
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 *20 (D. Conn. Nov. 14, 2013)
("[T]hese do not reflect a distribution list, and only show the substance of the email and the email's author. Again, although Progressive represents that these documents were sent by IAC [Insurance Association of Conn.] counsel to the IAC's members, there is no evidence before the Court as to whom these documents were actually sent. Accordingly, the Court therefore concludes that Progressive has not borne its burden of showing that documents 117 and 119 are protected by the attorney-client privilege. Therefore, Progressive shall produce copies of documents 117, 119-121, 127, 128, and 157.")

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

Chapter: 16.201
Case Name: MediaTek Inc. v. Freescale Semiconductor, Inc., Case No. 4:11-cv-05341 YGR (JSC), 2013 U.S. Dist. LEXIS 147032, at*12-13, *13-14, *14, *15-16, *16 (N.D. Cal. Oct. 10, 2013)
(finding that the privilege did not protect documents created by a consultant hired by plaintiff's lawyer, even assuming that the agent was the "functional equivalent" of an employee; "For purposes of this Order, the Court will assume that the third-party consultant qualifies as an 'agent of the attorney' or a 'functional employee.' But even assuming the third-party consultant is an 'agent' or 'functional employee' of MediaTek for purposes of the privilege, MediaTek has not carried its burden of demonstrating that the documents are privileged, that is, that they were created primarily or predominantly to facilitate legal advice."; "First, there is no evidence that MediaTek's counsel ever received or reviewed the reports. According to MediaTek's own privilege log, the reports were not sent to counsel; rather, they were distributed only to Mr. Yang [plaintiff's IP manager] and MediaTek's Intellectual Property Division. . . . [T]here is no evidence that MediaTek's general counsel or any attorney had possession of the report, reviewed it, or relied upon it. In addition, although there are multiples drafts of the report, there is no evidence that counsel reviewed any of the drafts."; "Mr. Yang's conclusory testimony that the 'report was necessary to enable MediaTek's attorneys to render effective legal advice' and that the legal team --'supported by' the third-party consultant -- evaluated the patents, is insufficient given that the privilege log demonstrates that the report was never disseminated to counsel."; "Second, the context in which the report was prepared and the language found in the report itself do not support a finding that the report was prepared because of a need for legal advice or primarily to facilitate legal advice. The report was commissioned in the context of MediaTek's decision as to whether to purchase certain patents, a business purpose. That such a decision always involves legal as well as business considerations, and that such considerations are intertwined, does not mean that every document prepared to assist with that decision is protected by the attorney-client privilege, especially where, as here, there is no evidence that the report was shared with counsel. . . . [T]he Court does not find that the report was actually reviewed by legal counsel in light of the failure of the privilege log to identify even one attorney as a recipient."; "There is also nothing in the language of the report, or any of the drafts, which even hints that it is intended to be relied upon by counsel to render legal advice. Instead, it is a brief, technical document prepared by non-attorneys that identifies key claim elements of the patents under consideration and identifies additional areas for research.")

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

Chapter: 16.202
Case Name: Knopick v. Dennis Boyle & Boyle Litigation, No. 99 MDA 2017, 2018 Pa. Super. LEXIS 552 (Pa. Super. May 30, 2018)
("On appeal, Appellant first argues the email Mr. Sherman sent to himself is subject to the attorney-client privilege because the email contained notes Mr. Sherman had made in preparation for a meeting with an outside attorney for personal legal advice. Appellant concedes Pennsylvania has no controlling law to cover this particular situation, but Appellant analogizes to the generally-accepted view in this jurisdiction that the attorney-client privilege covers notes taken during a meeting with an attorney. Appellant asserts the same protection should extend to the notes an individual makes in anticipation of meeting with an attorney because this expansion of the privilege advances the public policy reasons behind the attorney-client privilege."; "Appellant then offers that the subject email in this case is analogous to notes a client takes at the behest of his attorney and gives to the attorney, which notes are undeniably privileged.")

Case Date Jurisdiction State Cite Checked
2018-05-30 State PA

Chapter: 16.202
Case Name: Knopick v. Dennis Boyle & Boyle Litigation, No. 99 MDA 2017, 2018 Pa. Super. LEXIS 552 (Pa. Super. May 30, 2018)
("Here, Appellant casts its position on the attorney-client privilege largely in generic terms, as if Mr. Sherman and Appellant are one entity/client, which is grossly misleading. First, Mr. Sherman created the email before consulting an attorney and sent the email to himself. Mr. Sherman's email was not created as a confidential communication to an attorney for the purpose of securing legal advice or created upon directive of counsel. Further, Mr. Sherman is the proper owner of any privilege that might attach to the email he created. Moreover, Mr. Sherman is not a party to the present litigation and is not asserting the privilege."; "Appellant cites no law to support its contention that it can invoke Mr. Sherman's privilege or that the privilege somehow transferred to Appellant or that Appellant absorbed it by osmosis, simply because Appellant's counsel once assumed he could assert the privilege on Mr. Sherman's behalf at a deposition in the present case. No one disputes the order at issue directed only Appellant to produce the email, and Appellant shares no attorney-client relationship with Mr. Sherman. Thus, as the party raising the attorney-client privilege, Appellant failed to satisfy the burden of production to invoke protection under the privilege. See Estate of Paterno, supra; Custom Designs & Mfg. Co., supra. Therefore, the court had no reason to conduct an in camera inspection of the email before ordering Appellant to disclose it in this case.")

Case Date Jurisdiction State Cite Checked
2018-05-30 State PA

Chapter: 16.202
Case Name: Lee v. Condell, No. 3D15-2316, 2016 Fla. App. LEXIS 18366 (Fla. 3rd Dist. Dec. 14, 2016)
(rejecting an alleged criminal's argument that the attorney-client privilege protected notes he prepared to give to his lawyer; "After an evidentiary hearing and after conducting an in camera review of the Notes, the trial court 'concluded that the notes do not reflect any conversations Lee had with counsel or any trial strategy his counsel shared with him.' Specifically, the trial court found that 'Lee's claims that he wrote these notes for the purpose of using them for 'trial strategy' with his attorneys and that the notes were made during meetings with counsel totally lacking in credibility.' Moreover, the trial court in its written order found that, '[e]ven a cursory review of the notes reflects that the notes were a stream of consciousness rather than notes for a strategy session or done while taking notes during a conversation with another person.'"; "The trial court further found that it was only after Lee's counsel went to see him in jail during a recess of the hearing on Respondents' motion to compel that Lee -- for the first time -- testified that he wrote the Notes as 'trial preparations' so he could discuss 'strategy' with his lawyers. Notably, the trial court found that as 'Lee never gave the notes to his attorney (or even discussed them with her until after the deposition) -- and obviously only after a plea was reached -- they were not written for trial preparation or strategy purposes.' Significantly, there was no testimony or other evidence presented that Lee's attorney requested he make the Notes, or that Lee intended the Notes to be delivered to his attorney.")

Case Date Jurisdiction State Cite Checked
2016-12-14 State FL

Chapter: 16.202
Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
("In the case of a corporate client, the attorney-client privilege continues to protect communications between non-attorney employees engaged in discussions to either transmit information to an attorney for the purpose of seeking legal advice or disseminate information from an attorney to corporate employees. It is well established that the attorney-client privilege applies when the client is a corporation, and it may be necessary for a corporate client to collect information relevant to a legal problem from middle management or non-management personnel.")

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

Chapter: 16.202
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: 16.202
Case Name: United States v. Allen, 14 Cr. 272 (JSR), 2016 U.S. Dist. LEXIS 4329 (S.D.N.Y. Jan. 8, 2016)
(holding that the attorney-client privilege protected a government cooperator's notes made when he reviewed the defendant's testimony, even if the cooperator did not give his notes to a lawyer; "As to the notes Mr. Robson [Cooperator] took while reviewing the defendants' compelled testimony, the Court holds that these notes are covered by the attorney-client privilege and the work-product privilege."; "In this case, Mr. Robson has presented uncontroverted testimony that his UK counsel provided him with materials including defendants' compelled testimony and 'instructed [him] to have a read through, highlight anything that was relevant or [he] had any questions about, and then let them know when [he was] done.'. . . Mr. Robson's notes were therefore made by a client for the express purpose of discussing the material with his attorney and thereby obtaining legal advice."; "Defendants emphasize that Mr. Robson's notes were not, in the event, actually communicated to his UK attorney. . . . The Court does not read DeFonte [United States v. DeFonte, 441 F.3d 92 (2d Cir. 2006)] to suggest that when a client takes notes pursuant to a direction from his attorney for the purpose of engaging in a discussion with his attorney, those notes are not covered by the attorney-client privilege simply because the notes are not conveyed to that same attorney as a consequence of intervening events such as delay in an investigation."; also finding that the work product doctrine protected the notes)

Case Date Jurisdiction State Cite Checked
2016-01-08 Federal NY
Comment:

key case


Chapter: 16.202
Case Name: Wellin v. Wellin, C.A. No. 2:13-CV-1831-DCN, C.A. No. 2:13-CV-3595-DCN, C.A. No. 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
(finding that neither the attorney-client privilege nor the work product doctrine protected a pre-existing client summary of events just because it was later sent to a lawyer; "I conclude that they have not carried their burden of establishing that these two documents are protected from disclosure by the attorney-client privilege. Both documents are summaries of events prepared by the Defendant, Peter Wellin, during the time that this Court has already determined there was only a general possibility of litigation, and thus, the notes and summaries in the hands of the client were not protected by the work product privilege.")

Case Date Jurisdiction State Cite Checked
2015-12-04 Federal SC
Comment:

key case


Chapter: 16.202
Case Name: Wellin v. Wellin, C.A. No. 2:13-CV-1831-DCN, C.A. No. 2:13-CV-3595-DCN, C.A. No. 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
(finding that neither the attorney-client privilege nor the work product doctrine protected a pre-existing client summary of events just because it was later sent to a lawyer; "Defendants have not articulated any other basis for asserting privilege other than the subsequent transmittal of the documents to their attorney for the purpose of seeking advice. But as the Court noted in Evergreen Trading, LLC ex rel. Nussdorf, 80 Fed. Cl. 122, 138 (2007) ' . . . A 'pre-existing document which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice.'" (quoting Fisher v. United States, 425 U.S. 391, 403-4, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976))."; "The Defendants have not produced any evidence that distinguishes these two documents from the notes and summaries of events previously determined to be discoverable other than the temporal proximity of their transmittal to their attorney. There is no communication from client to attorney or from attorney to client contained within the summaries themselves. In this regard, it should be noted that the Plaintiffs do not seek the actual email communications within which the summaries were contained as attachments."; "The immediacy of the transmittal does not justify an inference that these documents differ from other notes and summaries maintained by the Defendants during this time frame. Furthermore, I conclude the fact that they were attached to email communications from the client to the attorney does not integrate them into the communication within the emails themselves, which is protected by the attorney-client privilege, and thus transform them into privileged communications. There is no justification for making these distinctions, and to allow such an inference would, in essence, allow a party to acquire protection for documents under the attorney-client privilege merely by transferring them to his or attorney.")

Case Date Jurisdiction State Cite Checked
2015-12-04 Federal SC
Comment:

key case


Chapter: 16.202
Case Name: General Electric v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
GE v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015) (holding that even non-protected historical documents can serve privilege protection if a client sends those documents to a lawyer in order to obtain legal advice about an issue raised in those documents; "This is not to suggest that a standalone, non-communicated document may never be subject to a proper claim of privilege. The Second Circuit, for example, has upheld a claim of privilege to a client's notes of her conversations with her attorney -- notes which themselves were not transmitted to the attorney as part of a communication. . . . In keeping with the purpose of the attorney-client privilege, the guiding rule for documents that have not themselves been communicated between privileged persons is whether the document reflects the substance of a communication that would otherwise be privileged.").

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal CT
Comment:

key case


Chapter: 16.202
Case Name: Shenandoah Publ'g House, Inc. v. City of Winchester, 52 Va. Cir. 111, 114 (Va. Cir. Ct. 2000)
(holding that a chronology prepared by the client deserved attorney-client privilege protection; "The document in question is a factual chronology outlining a series of events involving city funding and personnel changes and salaries which occurred in the city department in question over a period of years. It is very factual, organized logically, and is typical of a document that a reasonably prudent person would prepare to assist his attorney in efficiently rendering informed legal advice about the events recited in the document. It was prepared specifically for the purpose of consulting with the City Attorney and obtaining a legal opinion about the advisability of an administrative investigation into the facts which precipitated the official's concern.")

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

Chapter: 16.202
Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 325 (2000)
("The attorney-client privilege does not attach to a document merely because a client delivers it to his attorney. However, the privilege does attach to a document prepared with the purpose of being sent to counsel for legal advice. Robertson v. Commonwealth, 181 Va. 520, 539-40, 25 S.E.2d 352, 360 (1943).")

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

Chapter: 16.203
Case Name: Wrubleski v. Mary Imogene Bassett Hosp., 526017, 2018 N.Y. App. Div. LEXIS 5161 (N.Y. Sup. Ct. July 12, 2018)
("Although the record reflects that Bobrycki [Plaintiff's lawyer] directed decedent to keep an injury journal in connection with an impending lawsuit, it contains no indication that he specifically asked her to draft the medication log at issue. To the contrary, his affirmation reveals that he directed decedent to provide him with a 'summary of the events which led to her injuries and the failure to identify the injuries to her hamstring and to create . . . an injury journal of the medical care and treatment of her injuries.'")

Case Date Jurisdiction State Cite Checked
2018-07-12 State NY
Comment:

key case


Chapter: 16.203
Case Name: Crawford v. Corizon Health, Inc., Civ. A. No. 17-113, 2018 U.S. Dist. LEXIS 113828 (W.D. Pa. July 10, 2018)
("As Corizon acknowledges, it is black-letter law that the privilege applies only to communications to or from attorneys regarding legal advice. . . . Unlike the memorandum the Court has already determined is privileged and the 'Summary of Care,' discussed above, none of the other documents contains legal advice or appears to be a communication with an attorney. Indeed, Corizon does not claim any of these documents were communications to or from an attorney, noting in the 'To' column of the privilege logs, as to each document, 'Not applicable.' Even as to the John Doe 3 documents, the Finger Declaration goes only so far as to assert that they were prepared '[i]n response to Attorney King's memorandum and direction,' not that they were at any point communicated to the attorney. The Court therefore finds that the attorney-client privilege does not apply to any of these seven documents.")

Case Date Jurisdiction State Cite Checked
2018-07-10 Federal PA
Comment:

key case


Chapter: 16.203
Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)
(after an in camera review, concluding that board minutes were not all privileged; giving plaintiff one week to establish privilege protection; "It is not apparent from the face of the board minutes at issue that these elements can be met. RPI argues that the redacted portions of the minutes 'reflect information and advice that RPI's management learned from its U.S.-based legal counsel,' including Robbins Geller itself. . . . Nothing in the text of the minutes, however, confirms this assertion. The speakers at the board meetings do not attribute either the facts or the opinions they articulate to litigation counsel. Nor can the Court simply conclude, in the absence of admissible evidence, that all of those facts and all of those opinions must have come from counsel, in confidence, in response to RPI's request for legal advice. To the contrary: At least some of the statements that RPI seeks to redact reveal that they are based on sources other than counsel.")

Case Date Jurisdiction State Cite Checked
2016-05-20 Federal NY
Comment:

key case


Chapter: 16.203
Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *19 (N.D. Cal. Apr. 21, 2016)
("[T]here is no reason why Mr. Austermann's [named inventor] emails are not entitled to protection based solely on the fact that they were written by him to himself. While not communicated to his attorneys, Mr. Austermann and his attorneys attest that the emails memorialize and reflect confidential communications made for the purpose of conveying legal advice. . . . So long as Mr. Austermann's emails describe confidential communications with his attorneys, or are based on such communications, they may be protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal CA B 8/16
Comment:

key case


Chapter: 16.203
Case Name: ChriMar Systems Inc. v. Cisco Systems Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *19 (N.D. Cal. Apr. 21, 2016)
June 8, 2016 (PRIVILEGE POINT)

"Can the Privilege Protect Emails that Lawyers Do Not Send or Receive?"

Because privilege logs generally require withholding litigants to identify emails' senders and recipients, the absence of a lawyer's name often triggers discovery skirmishes. Not surprisingly, the withholding litigants' adversaries often argue that communications not involving a lawyer cannot possibly be privileged.

In ChriMar Systems Inc. v. Cisco Systems Inc., the court held that the privilege and the work product doctrine protected emails that a patent inventor sent to himself — noting that the inventor and his lawyers "attest that the emails memorialize and reflect confidential communications made for the purpose of conveying legal advice." Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *19 (N.D. Cal. Apr. 21, 2016). About a week later, another court dealt with an email that was not sent by or received by a lawyer. In FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. Apr. 29, 2016), defendant's senior vice president sent an email to several of his colleagues, and the company's outside counsel. The company's CFO responded to the email, but removed the outside counsel from the recipient list. District Judge Swain acknowledged that employee-to-employee communications can deserve privilege protection, but rejected the defendant's privilege claim for the CFO's response. The court noted that the CFO had deliberately "removed the attorney from the distribution list when she replied, and indicated in her declaration . . . That she had merely offered her comments for possible use by a business colleague in a future communication with the attorney." Id. At *5.

Although email strings that do not include lawyers can sometimes deserve privilege protection, courts usually demand evidence that the emails relayed a lawyer's advice; memorialized a lawyer's advice; or (occasionally) involved clients formulating questions to pose to their lawyer.

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal CA
Comment:

key case


Chapter: 16.203
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, it is readily apparent that the document notes in-house counsel's presence at this meeting and predominantly outlines litigation timelines and potential outcomes. In addition, the notes themselves say 'priviledged (sic)/conf'd.' As such, the Undersigned accepts these notes as reflecting the communication of legal advice to Shire.")

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

Chapter: 16.203
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)
("Shire asserts privilege based on these handwritten notes being recorded by a non-attorney at a board meeting featuring specific legal advice from outside counsel, while Plaintiffs assert that the Court should not just blindly accept the representation that this reflects advice from counsel if it is not specifically noted as such. Upon review, it is readily apparent that these notes specifically document legal repercussions of potential company actions, and, as such, the Undersigned accepts these notes as reflecting legal advice of outside counsel, as Shire claims.")

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

Chapter: 16.203
Case Name: International Cards Co., Ltd. v. MasterCard International Inc., 13-CV-02576 (LGS) (SN), 2014 U.S. Dist. LEXIS 125370 (S.D.N.Y. Aug. 27, 2014)
("Document 138: This document consists of minutes from a March 19, 2013 conference call attended by 11 MasterCard employees, including in-house attorneys Sork and Hiang Choong, Regional Counsel, Singapore. . . . One paragraph, however, summarizes legal advice provided by an in-house attorney and thus constitutes a privileged attorney-client communication.")

Case Date Jurisdiction State Cite Checked
2014-08-27 Federal NY

Chapter: 16.203
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 101 (Fed. Cl. 2013)
("The privilege also may extend to a client's summary of an attorney's advice.")

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

Chapter: 16.203
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *80 (S.D. Fla. Oct. 18, 2012)
("[T]he fact that the notes were made by Greg Collier, an employee of P&G, rather than counsel does not alter this analysis because the notes memorialized legal advice dispensed by Counsel to its client. In other words, the notes are no less protected than a letter from Counsel setting forth legal advice would be.")

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 16.203
Case Name: Roberts v. Corwin, No. 175370/2009, 2012 NY Slip Op 51876U at 4 (N.Y. Sup. Ct. Sept. 10, 2012)
("This document is Mr. Roberts' notes, dated May 2, 2007, of a conference with Mr. Sachs. Contrary to defendant's contention, the privilege is not lost due to the fact that the document is Mr. Roberts' notes, as opposed to Mr. Sach's, memorializing the legal advice. The attorney client privilege attaches to a client's communications to an attorney as well as to communications from attorney to client.")

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

Chapter: 16.204
Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
("In the case of a corporate client, the attorney-client privilege continues to protect communications between non-attorney employees engaged in discussions to either transmit information to an attorney for the purpose of seeking legal advice or disseminate information from an attorney to corporate employees. It is well established that the attorney-client privilege applies when the client is a corporation, and it may be necessary for a corporate client to collect information relevant to a legal problem from middle management or non-management personnel.")

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

Chapter: 16.301
Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)
("Confidential communications between inventors or employees who work for the same employer can retain their privilege so long as they are 'made in furtherance securing legal advice.'. . . However here, there is also no dispute that Mr. Diwu was an employee of AAT, a separate company and employer. Though not within the Ninth Circuit, at least one case held communications between co-inventors not employed by the same company are not privileged.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal CA

Chapter: 16.301
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)
("California's statutory privilege applies by its terms to communications between client and lawyer; it does not apply on its face to communications among non-lawyers regarding a matter in which lawyers are also involved. Defendants have not provided a legal or factual basis for application of the privilege to the communications among non-attorneys here. . . . Accordingly, the assertion of privilege fails and the motion to compel must be granted.")

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

Chapter: 16.301
Case Name: Moore v. Lowe's Home Centers, LLC, Case No. 14-1459 RJB, 2016 U.S. Dist. LEXIS 20630 (W.D. Wash. Feb. 19, 2016)
("When considering privilege for communications from non-attorney employees, a corporation's privilege extends to communications between corporate employees and corporate counsel as long as the communications are 'made at the direction of corporate superiors in order to secure legal advice.'")

Case Date Jurisdiction State Cite Checked
2016-02-19 Federal WA

Chapter: 16.301
Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 85234 (N.D. Ill. July 1, 2015)
("Documents 13 and 14 are email communications exchanged between Angie Morales, another Carnival paralegal, and Alexandra Missagia, director of worldwide sales for Carnival, summarizing conversations they had with Tom Panici, account manager with responsibility for RMG, in March 2011. Morales drafted the email with the intention of sending it to Mike Julius, Managing Director of U.S. Sales for Carnival."; "While this email exchange is contained within an email chain disseminating outside counsel's advice, the March 2011 conversations predated counsel's request for information in April 2011. Further, the Court concludes that the information described in the March 2011 conversation with Panici was not 'necessary' to disseminate counsel's advice. . . . (finding documents reflecting the necessary dissemination of legal information among non-attorneys privileged). Thus, the facts described in documents 13 and 14 are neither directly related to information sought by outside counsel nor reflect upon counsel's legal advice."; "Documents 13 and 14 shall be produced.")

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

Chapter: 16.301
Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 25694 (N.D. Ill. March 3, 2015)
(analyzing the common interest doctrine; requiring a lawyer's involvement; "Defendants' blanket assertion of the attorney client, attorney work product and joint defense privileges objections are overruled. As stated previously, correspondence between the parties directly -- where no counsel was included -- even if it was created after the lawsuit was filed, is not privileged and must be produced. Moreover, as discussed above, documents that are purely factual in nature and don't contain legal advice, or documents shared with nonparties, or documents prepared for business purposes are not protected and must be produced.")

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

Chapter: 16.301
Case Name: Veolia Water Solutions & Technologies Support v. Siemens Industry, Inc., No. 5:11-CV-00296-FL, 2014 U.S. Dist. LEXIS 165747 (E.D.N.C. Nov. 25, 2014)
(analyzing privilege issues in a patent case; "This court has observed, for example, that '[a] document need not be authored or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds.'")

Case Date Jurisdiction State Cite Checked
2014-11-25 Federal NC

Chapter: 16.301
Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *11-12, *12 (N.D. Ohio Aug. 8, 2013)
(analyzing a situation in which a bankruptcy trustee sought documents from the debtor's accountant; holding that the privilege protected communications from the accountant to a lawyer, but did not protect communications that were merely copied to the lawyer or were from the accountant to the client; "The Court finds the documents where Scott Snow [accountant] provided information to the attorneys to be subject to attorney-client privilege. In these instances, Scott Snow was acting directly as agent to Debtor and Karen Myers and communicating to their attorneys when Debtor and Karen Myers could have communicated to their attorneys themselves."; "The Court finds the documents where Scott Snow was merely copied by either Debtor, Karen Myers, or their attorneys, and where the subject was discussing litigation plans to be not subject to attorney-client privilege. In these instances, the Court finds Scott Snow was not acting as agent to Debtor and Karen Myers and that the attorney-client privilege was waived because the communications were revealed to a third party. Similarly, communications between only Debtor and Scott Snow or Karen Myers and Scott Snow are not subject to attorney-client privilege because the attorneys were not included in the communications and, therefore, while Scott Snow may have been acting as their agent in those instances, without an attorney included in the communications, the privilege does not apply. Finally, in instances where Scott Snow, Debtor, or Karen Myers, communicated with third parties, those documents are not subject to attorney-client privilege.")

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

Chapter: 16.301
Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *23 (D. Ariz. Apr. 17, 2013)
("The redacted 6:33 p.m. e-mail is between Lockheed employees. It does not include Mr. Hennegan [in-house lawyer for defendant]. Communications between employees do not qualify for attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 16.301
Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *25 (D. Ariz. Apr. 17, 2013)
("The second redacted e-mail in document 111 is a communication by one Lockheed employee to other Lockheed employees. As a communication between non-lawyer employees, the e-mail is not protected by the attorney-client privilege. See Bickler [Bickler v. Senior Lifestyle Corp., 266 F.R.D. 379 (D. Ariz. 2010)]. But the e-mail does qualify for work-product protection. The e-mail concerns responding to SGD's e-mail threatening litigation and is in furtherance of preparing a response or approach to SGD's litigation threat on which Lockheed's employees had requested Mr. Hennegan's legal advice.")

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 16.301
Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *17 (E.D. Va. Feb. 14, 2013)
(finding that the following email did not deserve privilege or work product protection; "'Mr. Frazier's (a non-lawyer's) statement to other non-lawyers that, 'under its terms, I don't believe the loan can be called based on what we know today.'")

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

Chapter: 16.301
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 592 n.176 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "'Clearly, to the extent that any of the communications listed on the Plaintiffs' privilege log do not include an attorney or his/her staff member, such communications are not protected by the attorney-client privilege.'")

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

Chapter: 16.302
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
("In the corporate context, the protections of the attorney-client privilege extend to employees. Upjohn Co. v. United States, 449 U.S. 383, 391-95, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). The attorney-client privilege protects intra-corporate communications transmitting legal advice to employees, see Deel v. Bank of Am., 227 F.R.D. 456, 460 (W.D. Va. 2005), and communications between employees in preparation for seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA
Comment:

key case


Chapter: 16.302
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)
(rejecting plaintiff's privilege claim for employee-to-employee communication; holding that a litigant must provide evidence to support a privilege claim; "Entry 364 on Motorola's privilege log refers to an October 10, 2012 email string, which included materials in Chinese and in English. The critical email was sent by an engineer at Motorola (Tan CeahHeng) to a host of other Motorola engineers. No lawyer was a recipient on the email chain, and none was even copied. In fact, the word lawyer or attorney does not appear anywhere on the email. The email referred to a former Motorola engineer, Chuan Hoe Choo, who, the email's author thought may have taken a 'very similar idea' that was recently patented by Motorola and that he possibly conceived the idea for the new Hytera product when he was with Motorola. Indeed, the author of the email said that he and other engineers 'are suspecting [sic] that [the former Motorola employee] may have learned and replicated this idea from us.' The purpose of the email was explicitly stated to be a desire 'to bring this recent event to your attention.'. . . The email made absolutely no mention of a lawyer or of the author's desire to bring the matter to the attention of a lawyer."; "It merely asked the non-lawyer recipients to 'advice [sic] what will be the next course of action.' Only literary perversity or jaundiced partisanship could suggest that the email was at bottom really seeking an attorney's advice and counsel is clear from the context of what was said, and context after all is the chief determinant of meaning. . . . Any doubt that this email was not a veiled attempt to seek help from a lawyer is silenced by the closing sentence of the email, which stated 'I am copying the inventors of our filed invention if you need more technical inputs from them.'. . . The email never mentioned a lawyer, or hinted at a desire to get input or assistance from a lawyer, or to have a lawyer assess what was being said in the email. The author of the email does not ask that the email be forwarded to a lawyer; nor does it asked that a lawyer's views on the content of the email be solicited. It bears repeating that there are no attorneys involved in the communication, and the recipient states only that he will forward the communication to yet another non-lawyer. Motorola's unsupported, contrary, and partisan construction of the email is strained and unpersuasive."; "What we have said is sufficient to demonstrate that the October email is not protected by the attorney-client privilege. But we must take note of Motorola's unsupported claim that this type of e-mail chain directed to multiple non-attorneys was the necessary first step for the email's author to seek legal advice, and therefore the email was privileged. Apart from the inherent unpersuasiveness of the claim it must be noted that it rests solely and ultimately on the word of Motorola's lawyers -- actually of Motorola itself. But, that is not enough."; "Thus, courts throughout the nation have been emphatic and unanimous in holding that unsupported representations by lawyers in briefs -- which is what we have here -- will not be accepted.")

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

key case


Chapter: 16.302
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("The attorney-client privilege in the corporate context also protects intra-corporate communications transmitting legal advice to the employees who must act on the advice . . . and notes made or communications made between employees in preparation for seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA
Comment:

key case


Chapter: 16.302
Case Name: Crabtree v. Experian Information Solutions, Inc., No. 1:16-cv-10706, 2017 U.S. Dist. LEXIS 173905 (N.D. Ill. Oct. 20, 2017)
(holding that employee-to-employee communications were privileged, because the employees were gathering facts required by the lawyer; "Defendant conducted an internal investigation at the request of in-house counsel between September 22, 2011 and October 17, 2011 concerning one of its users, Western Sierra Acceptance Corporation ('WSAC'). . . . As part of the investigation, Defendant's employees gathered information from various departments to aid counsel in providing legal advice about Defendant's business relationship with WSAC."; "As Defendant asserts, the legal underpinning of Plaintiff's argument, however, is erroneous. Upjohn is not the apex of the scope of attorney-client privilege as applied to internal corporate communications. Rather, it is arguably the genesis. Indeed, subsequent case law developed from Upjohn confirms that communications between non-lawyer employees often warrant protection from disclosure."; "The Court finds that Defendant appropriately designated as privileged the communications between its non-lawyer employees. The descriptions on the log for each of these entries make clear that the challenged documents (1) relate to the investigation 'launched and conducted at the request of the Legal Department and for the Legal Department' and/or (2) 'reflect[] and contain[] communications used to facilitate the provision of legal advice and/or services' (emphasis added). . . . Contrary to Plaintiff's assertion that Defendant's descriptions are boilerplate, Defendant has provided enough information about each communication to show why privilege attaches without simultaneously destroying privilege by sharing too much. Defendant's employees gathered information to assist counsel with rendering legal advice about how to proceed with WSAC. Defendant later used confidential information gathered during the initial investigation when it sought additional legal advice about WSAC. Throughout both phases, employees collected facts that presumably relied on Defendant's confidential information and those facts were eventually channeled to counsel to aid in the provision of legal services. Defendant provided enough information to conclude that the withheld documents are tied, even if indirectly, to legal advice rendered by counsel.")

Case Date Jurisdiction State Cite Checked
2017-10-20 Federal IL
Comment:

key case


Chapter: 16.302
Case Name: Crabtree v. Experian Information Solutions, Inc., No. 1:16-cv-10706, 2017 U.S. Dist. LEXIS 173905, at *4 (N.D. Ill. Oct. 20, 2017)
January 10, 2018 (PRIVILEGE POINT)

"When Can the Privilege Protect Employee-to-Employee Communications?"

Because privilege logs generally list the authors and recipients of withheld communications, corporations' adversaries frequently cite such logs in challenging the corporations' privilege claims when a log shows that no lawyer sent or received a withheld document. Corporations normally win such disputes if they demonstrate that one employee who received legal advice relayed it to another employee who needed it. Occasionally corporations also successfully withhold employees' contemporaneous notes of a privileged communication.

But there is a third, albeit less frequent, scenario in which the privilege can protect intra-corporate communications not involving a lawyer. In Crabtree v. Experian Information Solutions, Inc., the court held that defendant corporation "appropriately designated as privileged the communications between its non-lawyer employees." No. 1:16-cv-10706, 2017 U.S. Dist. LEXIS 173905, at *4 (N.D. Ill. Oct. 20, 2017). The court noted that the "employees gathered information to assist counsel with rendering legal advice," and that "those facts were eventually channeled to counsel to aid in the provision of legal services." Id. at *5. In other words, company lawyers had essentially deputized such employees to gather facts the lawyers needed. Of course, wise in-house and outside lawyers memorialize such deputization.

This type of protected employee-to-employee communications represents the chronologically first of the intra-corporate lawyerless trifecta of protected scenarios, which can extend privilege protection to such communications (1) before employees go to the lawyer with facts the lawyer needs; (2) that are memorialized while employees communicate with the lawyer; and (3) after they receive legal advice from the lawyer, which they then relay to other employees who need it.

Case Date Jurisdiction State Cite Checked
2017-10-20 Federal IL
Comment:

key case


Chapter: 16.302
Case Name: American Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2017 U.S. Dist. LEXIS 146395 (E.D. Mo. Sept. 11, 2017)
("Communications between a client's representatives regarding the decision to seek legal advice is not subject to the privilege if it is not a request directed to counsel for the purpose of obtaining such advice.")

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

Chapter: 16.302
Case Name: Pallies v. The Boeing Company, Case No. C16-01437RSL, 2017 U.S. Dist. LEXIS 144431 (W.D. Wash. Sept. 6, 2017)
(holding that the attorney-client privilege applied to a pre-deposition meeting among defendant's lawyer and several former defendant employees; holding that defendant Boeing's lawyer represented all of the former employee; "'To be sure, at trial Plaintiff will be allowed to cross-examine Boeing witnesses about the conversations they may have had about Mr. Pallies. Defendant's objection was limited to the pre-deposition session with counsel.'")

Case Date Jurisdiction State Cite Checked
2017-09-06 Federal WA

Chapter: 16.302
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: 16.302
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 number 612 was also properly withheld under the attorney-client privilege. It is an email from Kos Vice President Juan Rodriguez to Kos executive Joseph Suarez. Rodriguez attached a draft agreement relating to ongoing litigation, and asked Suarez to 'take a look' at a specific provision in the agreement. Importantly, another email on AbbVie's privilege log, the relevant portion of which was withheld as privileged, shows that general counsel Koven had previously asked Rodriguez to 'take a look' at the same provision of the same version of the agreement. . . . Thus, although Rodriguez is not an attorney, his request for information, made for the purpose of relaying said information to Koven, was properly withheld under the attorney-client privilege.")

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

Chapter: 16.302
Case Name: Nucap Industries Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 U.S. Dist. LEXIS 135288 (N.D. Ill. Aug. 23, 2017)
("[I]n several instances throughout the document sampling, Nucap redacted emails between non-attorneys in which the sender mentions that he plans to seek, or has sought, legal input. . . . But the emails were not sent to attorneys and do not themselves reflect any legal advice. . . . Indeed, it appears Nucap recognized that these redactions were inappropriate because it removed some of them in its amended submissions, but still left other instances of those same redactions in place elsewhere in the document sampling.")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal IL

Chapter: 16.302
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; "Communications between employees may be privileged in two circumstances. First, communications may be privileged when a corporate client shares information with non-attorney employees 'to relay information requested by attorneys.'"; "Second, communications between non-attorney corporate employees may be privileged when they were made 'for the purpose of securing legal advice.'"; "When the communication involves a document, for the court to find that the attorney-client privilege applies, the court must inspect the document and find that the primary purpose of the communication was to secure legal advice."; "A party can prove that the purpose of a communication was to seek legal advice by offering evidence that the communication was relayed to an attorney.")

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

Chapter: 16.302
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 7:57 a.m. email reflects that Dr. Weers told Ralph Navarrete about a specific request he made for legal advice to an attorney regarding the patent. The attorney-client privilege protects this exchange because, on its face, the email reflects that Dr. Weers communicated that he sought legal advice from a lawyer."; "In the 12:55 p.m. email, Baker seeks to redact a question from Mr. Navarrete to Dr. Weers about the effect of an expired patent on the enforceability of Baker's patent. In the email, Mr. Navarrete does not ask Dr. Weers to forward this question to counsel or state that that Mr. Navarrete intended to do so. Baker submitted Mr. Navarrete's affidavit in support of its position that the communication was privileged. Mr. Navarrete stated that he responded to Dr. Weers' email 'with a question I had for counsel concerning the scope of the 943 patent.'"; "Nothing in the email chain indicates that the question was to be proposed to counsel. . . . Even assuming Mr. Navarrete had such an unexpressed intent, Baker has not submitted evidence that the substance of this communication was in fact conveyed to an attorney.")

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

key case


Chapter: 16.302
Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)
(finding that defendants had properly logged and withheld documents, and that no in camera review is necessary; "The request for a legal opinion, including the information necessary to secure the opinion, may be a privileged communication when discussed between members of an organization even when the attorney is not included on the communication. . . . The privilege log indicates that the redacted information here reflects a request for a legal opinion by NCPC to its outside counsel and Case is listed as a participant, which is sufficient to establish privilege. Further, the action items on the agenda appear discrete and, thus, the nature of the unredacted material is not necessarily indicative of the nature of the redacted material. Finally, Defendant does not have the authority to waive the attorney-client privilege between NCPC and its counsel. Another court has rejected the argument that a defendant improperly asserted privilege on behalf of a third party where emails from the file of the defendant's employee that were created during his past employment as an attorney with a third party were privileged, and that court concluded that only the past employer could waive the privilege. . . . Similarly here, the privileged document came from the file of Defendant's employee who was a member of the NCPC Board and attended the meeting. Defendant cannot waive the privilege between the NCPC Board and its counsel, and Plaintiffs have presented no factual basis from which the court could conclude that NCPC has waived the privilege. Accordingly, the attorney-client privilege applies, and in camera review is unnecessary.")

Case Date Jurisdiction State Cite Checked
2017-05-26 Federal NC

Chapter: 16.302
Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)
("[A] document containing a request for a legal opinion and the information provided to the attorney for the purpose of providing that opinion may be privileged whether or not the attorney is an author or recipient of the document.")

Case Date Jurisdiction State Cite Checked
2017-05-26 Federal NC

Chapter: 16.302
Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)
("It cannot be that these communications, simply because an assistant made them at the request of a lawyer rather than the lawyer's making them herself, are not privileged."; "The court has reviewed all of the communications in this category and finds that they are either seeking or discussing legal advice. The fact that communications are between non-lawyers does not per se waive the privilege.")

Case Date Jurisdiction State Cite Checked
2017-02-03 Federal MA

Chapter: 16.302
Case Name: Bailey v. Oakwood Healthcare, Inc., Case No. 15-11799, 2017 U.S. Dist. LEXIS 13667 (E.D. Mich. Feb. 1, 2017)
April 19, 2017 (PRIVILEGE POINT)

"Can the Attorney-Client Privilege Protect Corporate Executives' Notes of Their Conversations with a Lawyer?"

The attorney-client privilege protects communications between lawyers and their clients, primarily motivated by the latter's need for legal advice. Some corporations' adversaries challenge privilege protection for withheld documents whose log entries do not include a lawyer author or recipient. Fortunately for corporations, courts universally protect such communications in which one corporate employee passes along a lawyer's advice to another employee who needs it.

Fewer courts deal with corporate employees' contemporaneous notes prepared during their conversations with a company lawyer. In Bailey v. Oakwood Healthcare, Inc., Case No. 15-11799, 2017 U.S. Dist. LEXIS 13667 (E.D. Mich. Feb. 1, 2017), defendant claimed privilege protection for two handwritten pages of notes a human resources employee made during his conversation with an in-house lawyer. The court initially acknowledged that for privilege purposes "[n]otes on a privileged conversation that reflect the substance of that conversation can amount to 'communications.'" Id. at *2. The court then relied on the employee's affidavit and deposition testimony in concluding that his notes reflected his request for, and the in-house lawyer's providing of, legal advice.

Thus, the privilege can protect (1) contemporaneous memorializations of privileged conversations, and (2) post-conversation communications relaying legal advice to employees who need it. In some limited circumstances, the privilege can even extend to (3) employees' communications compiling facts or composing questions that they will later present to their company's lawyer.

Case Date Jurisdiction State Cite Checked
2017-02-01 Federal MI
Comment:

key case


Chapter: 16.302
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("[T]he Court will uphold Boehringer's assertion of the attorney-client privilege. Only a few documents reflect express requests for or provision of legal advice. Rather, as might be surmised from the discussion above, most of the documents are mere compilations of facts. Yet factual material compiled during a corporation's internal investigations is analyzed differently under the work-product doctrine and the attorney-client privilege. For the attorney-client privilege, unlike the work-product doctrine, facts collected at counsel's request for later use in providing legal advice are protected. Moreover, the Court of Appeals has endorsed a liberal standard for finding that a communication falls within the attorney-client privilege, finding that a communication should be protected if 'obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.' In re Kellogg, 756 F.3d at 756 [In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757-60, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)]. While Boehringer's documents may have had some business purposes, it is equally clear that one of their significant purposes was to enable Persky and her co-counsel to give Boehringer legal advice.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 16.302
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("This is an email from one Boehringer business executive to another. In it, the author reports certain information that the recipient had requested. The author's information was apparently gleaned from two financial analyses attached to the email. There is no request for or provision of legal advice in this email. Nevertheless, Boehringer represents that this document '[was] prepared to inform [its] attorneys, including the general counsel as well as other attorneys representing [Boehringer], of facts relevant to the analysis of the legal issues involved in the litigation or the settlements.' See Boehringer's Resp. to July 12, 2016 . . . . The Court finds that this document should be protected because disclosure would reveal the facts transmitted to the attorneys from the Boehringer businesspeople which enabled counsel to give the corporation legal advice. . . . Accordingly, the email is privileged in its entirety.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 16.302
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("This document is another email chain, this time involving Persky [Defendant's Senior Vice President, General Counsel, and Secretary] and Boehringer executives. Persky opens the conversation by relaying a settlement offer from Barr and her reactions to it. Boehringer executives then relay their assessments of the settlement proposal. This document . . . is the kind of document the attorney-client privilege was meant to protect -- a communication between attorney and client regarding litigation strategy based on information kept confidential between them. This document is therefore privileged.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 16.302
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 180 F. Supp. 3d 1, 34 (D.D.C. 2016)
("The FTC's focus on the sender and recipient of these documents is also misguided. It is true that 'documents prepared by non-attorneys and addressed to non-attorneys with copies routed to counsel are generally not privileged since they are not communications made primarily for legal advice.' . . . But the principle is more nuanced than the FTC admits. The same protections afforded to communications between counsel and client extend to communications between corporate employees who are working together to compile facts for in-house counsel to use in rendering legal advice to the company. . . . That is precisely what happened here, and it is not surprising that this occurred given the complexity of the factual analyses Persky [Defendant's Senior Vice President, General Counsel, and Secretary] requested.").

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 16.302
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 asserts that Viad has failed to establish that the charts were communicated to anyone. . . . Greyhound notes that Viad's privilege log supports this assertion because the 'To' and 'CC' columns are designated as 'N/A,' or not applicable. . . . But Viad has presented evidence that the charts were created at the request of counsel and to assist counsel in advising the company, and this purpose necessarily includes communication of the charts to counsel. What is more, one of the charts contains a note that states 'update & copy to DJD.'. . . Viad has submitted evidence that 'DJD' are the initials of Viad's general counsel. . . . This further supports Viad's assertion that the charts are shared with counsel.")

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

key case


Chapter: 16.302
Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)
(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "Two categories of the Reuther Spreadsheet, however, clearly contain attorney-client communications. The columns entitled 'How did I use it' and 'Why [sic] felt it was not confidential information' straightforwardly evince communications from Reuther to counsel narrating information for the purpose of obtaining legal advice. Accordingly, the privilege bars Manitowoc from viewing the last two columns of the spreadsheet."; "'Reuther generated the document after Manitowoc filed suit and at the specific instruction of retained counsel. Additionally, we note that the form of communication to counsel is not controlling in determining whether the information conveyed is a 'communication.'"; "Though prohibited from obtaining the Reuther Spreadsheet, Manitowoc may gather the underlying factual information via another means.")

Case Date Jurisdiction State Cite Checked
2016-08-26 Federal IL

Chapter: 16.302
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("There is no privilege where one non-attorney employee states to another non-attorney employee his or her desire to speak with in-house counsel. This is not a communication between privileged persons for the purpose of obtaining legal advice. . . . In fact, this email does not even contain confidential information. It is clear from subsequent unredacted emails and sworn declarations that in-house counsel was in fact consulted on this subject.")

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

Chapter: 16.302
Case Name: Waters v. Drake, Case No. 2:14-cv-1704, 2015 U.S. Dist. LEXIS 164179 (S.D. Ohio Dec. 8, 2015)
(analyzing privilege issues in connection with Ohio State's investigation of its band's director's termination; "Perhaps the most significant is a memorandum from President Drake to the Board of Trustees dated July 24, 2014, the day that Mr. Waters' employment was terminated. Ohio State argues that because Mr. Culley [Ohio State's general counsel] was copied on these communications, they are also privileged."; "There is no question that certain communications among employees or officers of a corporate client which do not directly involve an attorney may be privileged; otherwise, the client would be severely hampered in its efforts to obtain information needed for the attorney to render legal advice."; "The Court concludes that the communications involving President Drake and the Board of Trustees on July 24, 2014, are not privileged. Document 3778 and its attachment, document 3779, simply to not involve the gathering of information to the President or the Board for the purpose of seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2015-12-08 Federal OH

Chapter: 16.302
Case Name: Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015)
August 26, 2015 (PRIVILEGE POINT)

"The Privilege Can Protect Employee-to-Employee Communications"

Because attorney-client privilege protection depends primarily on communications' content, privilege logs rarely play a dispositive role in courts' analyses. But sometimes the adversary will point to the "author" and "recipients" data in challenging a privilege claim — noting the absence of a lawyer's name.

Courts universally acknowledge that employee-to-employee communications may deserve privilege protection. In Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015), the court flatly rejected defendant's argument that "in and of itself" the lack of a lawyer's involvement in plaintiff's communications made privilege unavailable. The court explained that "[i]n the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee's corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice." Id. On the same day, another court generally rejected a corporation's privilege claim, but acknowledged that the privilege can protect communications that "evidence . . . In-house counsel's advice or otherwise reflect counsel's involvement in decisions relating to legal matters, even if the communication is between two members of . . . Management." Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015) (emphasis added).

Given the usually cryptic nature of privilege logs, some litigants understandably argue that the privilege cannot apply to employee-to-employee communications — but every court disagrees.

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal MI
Comment:

key case


Chapter: 16.302
Case Name: Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015)
August 26, 2015 (PRIVILEGE POINT)

"The Privilege Can Protect Employee-to-Employee Communications"

Because attorney-client privilege protection depends primarily on communications' content, privilege logs rarely play a dispositive role in courts' analyses. But sometimes the adversary will point to the "author" and "recipients" data in challenging a privilege claim — noting the absence of a lawyer's name.

Courts universally acknowledge that employee-to-employee communications may deserve privilege protection. In Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015), the court flatly rejected defendant's argument that "in and of itself" the lack of a lawyer's involvement in plaintiff's communications made privilege unavailable. The court explained that "[i]n the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee's corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice." Id. On the same day, another court generally rejected a corporation's privilege claim, but acknowledged that the privilege can protect communications that "evidence . . . In-house counsel's advice or otherwise reflect counsel's involvement in decisions relating to legal matters, even if the communication is between two members of . . . Management." Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015) (emphasis added).

Given the usually cryptic nature of privilege logs, some litigants understandably argue that the privilege cannot apply to employee-to-employee communications — but every court disagrees.

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal PA
Comment:

key case


Chapter: 16.302
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: 16.302
Case Name: Pemberton v. Republic Services, Inc., Case No. 4:14-cv-01421 AGF, 2015 U.S. Dist. LEXIS 81063 (E.D. Mo. June 23, 2015)
(holding that a public relations consultant was outside privilege protection but inside work product protection; "There is some precedent under the federal common law for expanding the privilege to include communications between a party and a public relations consultant. . . . But Defendant has not directed the Court's attention to any Missouri cases addressing expansion of the privilege to communications with public relations consultants, and the Court has found no such cases. Furthermore, the Supreme Court has cautioned that evidentiary privileges should be narrowly construed and expansions cautiously extended."; "[I]t does not appear that defense counsel was reliant on Pelopidas's expertise in order to give appropriate legal advice to Defendants."; "Furthermore, the Court's in camera inspection of the materials reveals that none of the documents actually involved communications directly between counsel and the client. The majority of the documents are internal communications among employees at Pelopidas, many of which reflect prior verbal communications between Pelopidas and counsel. Of the remainder of the materials at issue, most involved communications between Pelopidas and counsel, some of which were shared with Defendants, or were communications between Pelopidas and Defendants, with counsel copied on such. Simply put, the materials at issue were not communications between a client and its counsel made in confidence for the purpose of obtaining legal advice, and thus, are not protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-06-23 Federal MO

Chapter: 16.302
Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)
(in an opinion by Judge Gorenstein, finding that a compliance-initiated investigation into a defendant's possible tie with terrorists did not deserve privilege or work product protection; "[W]e are unaware of any case law suggesting that a person's collection of information is protected merely because the person harbors a plan to provide the information later to an attorney -- particularly where there is no proof that the attorney sought to have the individual collect the information at issue. Indeed, case law holds just the opposite. . . . Nor is it of any importance that this information may have ultimately been used by Loughlin for the purpose of advising BOC."; "Neither Geng nor Loughlin ever assert that specific documents sought by plaintiffs here formed part of a communication between them at the time the documents were created. Rather, BOC's argument is that because it made a 'request for legal advice' to counsel and because outside counsel ultimately received this request and 'rendered advice in response,' the 'communications' at issue are necessarily protected. . . . But this argument elides the critical issue: why the specific documents sought by plaintiffs are 'communications' that were made to an attorney given that plaintiffs are not seeking any 'communications' with counsel."; "[H]owever, provides no evidence -- let alone evidence sufficient to meet its burden of proof -- that any of the documents at issue in this motion were produced at the 'direction' of an attorney in order to allow the attorney to render legal advice. To the extent that BOC is arguing that investigations conducted without the direction of an attorney necessarily form part of an attorney-client communication as long as a corporate employee who received an order to conduct the investigation harbored an 'expectation,'. . . That he would share the information with an attorney at some future date, we reject this argument as unsupported by logic or case law.")

Case Date Jurisdiction State Cite Checked
2015-01-21 Federal NY

Chapter: 16.302
Case Name: United States v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 162680 (D.D.C. Nov. 20, 2014)
("Thus, documents that show one corporate employee telling another to consult a lawyer on a general topic without conveying the specific content of the desired communication are no more immune to production than a witness's statement that he discussed that broad topic with his or her attorney prior to testifying at a trial. By the same token, documents that reflect only that a nonattorney spoke to or received advice from an attorney and then acted are discoverable because they do not reflect privileged communications. Neither the fact of the consultation nor the eventual action taken are protected from disclosure, and the fact that clients sometimes choose not to follow their attorneys' advice prevents such documents from implicitly disclosing any more than the general nature of the confidential communications sheltered by the attorney-client privilege. Thus, these types of documents must be disclosed.")

Case Date Jurisdiction State Cite Checked
2014-11-20 Federal DC

Chapter: 16.302
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: 16.302
Case Name: LightStyles, Ltd. v. Marvin Lumber & Cedar Co., Civ. No. 1:13-cv-1510, 2014 U.S. Dist. LEXIS 69606, at *5 (M.D. Pa. May 21, 2014)
("We move onto the notes and draft letter. Citing Larson v. Harrington, 11 F. Supp. 2d 1198, 1203 (E.D. Cal. 1998), Marvin argues these are not privileged because Slagle [Company's principal] prepared them on his own initiative."; "We disagree. There is no dispute that Slagle prepared these notes and letter in anticipation of his initial meeting with lawyers from McNees Wallace and Nurick and to assist him at that meeting. It is also undisputed that he turned them over to his lawyers. In these circumstances, as LightStyles argues, the notes and letter are privileged.")

Case Date Jurisdiction State Cite Checked
2014-05-21 Federal PA B 7/16

Chapter: 16.302
Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *10-11 (Del. Ch. Dec. 9, 2013)
(holding that the privilege can protect communications between corporate employees before they communicate with a lawyer; "Category Two consists of emails sent among non-lawyer Dell employees that Dell asserts reflect an intent to seek legal advice concerning MPEG LA's royalty audit of Dell. In this category, I find that the following documents are privileged as claimed.")

Case Date Jurisdiction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 16.302
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 *37-38 (E.D. Pa. Sept. 11, 2013)
("Communications shared by non-attorney employees may be privileged if they were made in order to relay information requested by attorneys, or to disseminate legal advice given by those attorneys so that the corporation's employees act appropriately. . . . Again, the focus of the inquiry is on whether those communications were for the purpose of gathering information necessary for Cephalon's attorneys to render legal advice, or were made in order to disseminate legal advice from those attorneys throughout the company.")

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

Chapter: 16.302
Case Name: In re Behr Dayton Thermal Prods., LLC, Case No. 3:08-cv-326, 2013 U.S. Dist. LEXIS 81069, at *1p (S.D. Ohio June 10, 2013)
(holding that a litigant claiming work product protection had to specify the exact date on which it first anticipated litigation; rejecting defendant Aramark's claim that it anticipated litigation when plaintiff filed its complaint, because Aramark denied the allegations; "A communication between non-lawyers is generally not protected under the attorney-client privilege unless the 'dominant intent is to prepare the information in order to get legal advice from the lawyer.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-06-10 Federal OH B 4/14

Chapter: 16.302
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: 16.302
Case Name: Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., Nos. 12 Civ. 1579 & 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 41785, at *28 (S.D.N.Y. Mar. 25, 2013)
("There is no privilege for communications between non-lawyers merely because they were purportedly 'done for the purposes of assisting outside litigation counsel,' as UBS argues. . . . Further, communications between businesspeople and in-house counsel are not automatically shielded from discovery.")

Case Date Jurisdiction State Cite Checked
2013-03-25 Federal NY B 3/14

Chapter: 16.302
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *55, *60 (S.D. Fla. Oct. 18, 2012)
("[I]t is clear that pursuant to the relevant case law, the determination of whether a document is protected by the attorney-client privilege or the work product doctrine does not turn solely on whether a particular document reflects that an attorney and/or certain corporate management employees either authored or received the document in dispute."; "[S]imply because a communication is made between two corporate employees, neither of whom are attorneys, that fact is not determinative of whether that communication primarily involves business advice rather than legal advice for purposes of applying the attorney-client privilege to that correspondence. To conclude otherwise would result in a somewhat absurd finding that a document generated for purposes of obtaining and/or assisting in the transmission of legal advice would not only lose its privileged character, but would be artificially viewed as primarily a business communication merely because the author and recipient were not attorneys.")

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 16.302
Case Name: Wierciszewski v. Granite City Ill. Hosp. Co., Case No. 11-cv-120-GPM-SCW, 2011 U.S. Dist. LEXIS 128772, at *4 (S.D. Ill. Nov. 7, 2011)
("[I]n this case it is clear from the content of the emails that counsel was not directing the investigation. Contrary to the arguments of Defendant, it appears from the emails presented in the privilege log that these emails constituted communications between Ron Payton and his supervisor, Bud Wood, regarding the investigation of and determination to ultimately terminate Plaintiff's employment. The context and content of the emails suggest that Bud Wood was directing the investigation, not attorney Rhea Garrett as argued by Defendant. While Defendant's general counsel was carbon copied (CC'd) on some of the emails, it appears from the context of the emails that Ron Payton and others were merely making attorney Garrett aware of the situation and were not emailing him for the purpose of seeking legal advice from counsel.")

Case Date Jurisdiction State Cite Checked
2011-11-07 Federal IL B 7/16

Chapter: 16.303
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("Plaintiffs next point out that an additional three of the emails do not have an attorney in the To, From, or CC column at all. . . . Defendants respond that they produced two of documents . . . but they were partially redacted. Defendants say that these redacted portions were communications to or from attorney Marilyn Wade. Plaintiffs understandably question how they were supposed to divine Wade's inclusion in the redacted portions when her name was redacted. However, Defendants' explanation of Wade's involvement in the redacted emails within the email chains satisfies their burden.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN
Comment:

key case


Chapter: 16.303
Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)
(in an FLSA case, holding that there had been no waiver when a functional equivalent of an employee took documents when leaving the company, but the company sued to retrieve; and when a hostile witness disclosed privileged communications over the company's lawyer's objection; "In this case, Baker was a CFO/controller for Defendants, and it would seem obvious that an attorney or attorneys for a company would have the need to confer confidentially with a company's CFO/controller, thus placing those communications within the scope of the attorney-client privilege. As CFO/controller, Baker would have arguably possessed decision-making authority about the employment issues allegedly discussed by counsel, he would have been implicated in the relevant chain of command, and he allegedly had personal involvement in the relevant activity. Thus, the Court finds that Baker, whether an employee or independent contractor, was within the scope of the attorney-client privilege. Plaintiffs' position is therefore without merit.")

Case Date Jurisdiction State Cite Checked
2017-10-05 Federal FL

Chapter: 16.303
Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
("Attorney-client privilege can apply to notes taken from oral statements if they reveal privileged communications.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY

Chapter: 16.303
Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson about an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "Having conducted an in camera review of the notes in question, the Court concludes that attorney-client privilege applies to all of them. The notes contain facts and information about the April 29 workplace incident and the employees involved in the incident, which were communicated by defendant's management to the attorneys who are representing defendant in this case. Thus, the notes memorialize the 'giving of information to the lawyer to enable him to give sound and informed advice,'. . . which is protected from disclosure by attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY

Chapter: 16.303
Case Name: Bailey v. Oakwood Healthcare, Inc., Case No. 15-11799, 2017 U.S. Dist. LEXIS 13667 (E.D. Mich. Feb. 1, 2017)
(finding that an HR director's notes of a conversation with the company's in-house counsel deserved privilege protection; "Plaintiff's . . . Squire [Director of Human Resources] states that he contacted Baker [In-House Lawyer] on March 10, 2014 in order to discuss "the associated legal risks" that might arise from the discipline or termination of Plaintiff. . . . This is consistent with Squire's deposition testimony confirming some of the notes that he had made based on his conversation with Baker about Plaintiff's potential termination, including references to the question of whether Defendant would be "inviting a challenge" and the question of whether something (presumably the challenge) would 'survive scrutiny.'. . . Squire also testified that the notes contain the substance of the phrase "[don't] treat her differently," and a reference to 'testimony.'"; "Even putting the explanation in Squire's Affidavit aside, these words, written down during a conversation with Defendant's in-house counsel 10 days before the meeting at which Plaintiff was terminated, are enough on their face to require a clear inference that the conversation involved the seeking of legal advice, and that Baker was therefore acting in her capacity as an attorney. The Court finds that Defendant has made the showing required to invoke the attorney-client privilege in these circumstances.")

Case Date Jurisdiction State Cite Checked
2017-02-01 Federal MI
Comment:

key case


Chapter: 16.303
Case Name: Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015)
August 26, 2015 (PRIVILEGE POINT)

"The Privilege Can Protect Employee-to-Employee Communications"

Because attorney-client privilege protection depends primarily on communications' content, privilege logs rarely play a dispositive role in courts' analyses. But sometimes the adversary will point to the "author" and "recipients" data in challenging a privilege claim — noting the absence of a lawyer's name.

Courts universally acknowledge that employee-to-employee communications may deserve privilege protection. In Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015), the court flatly rejected defendant's argument that "in and of itself" the lack of a lawyer's involvement in plaintiff's communications made privilege unavailable. The court explained that "[i]n the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee's corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice." Id. On the same day, another court generally rejected a corporation's privilege claim, but acknowledged that the privilege can protect communications that "evidence . . . In-house counsel's advice or otherwise reflect counsel's involvement in decisions relating to legal matters, even if the communication is between two members of . . . Management." Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015) (emphasis added).

Given the usually cryptic nature of privilege logs, some litigants understandably argue that the privilege cannot apply to employee-to-employee communications — but every court disagrees.

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal PA
Comment:

key case


Chapter: 16.303
Case Name: Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015)
August 26, 2015 (PRIVILEGE POINT)

"The Privilege Can Protect Employee-to-Employee Communications"

Because attorney-client privilege protection depends primarily on communications' content, privilege logs rarely play a dispositive role in courts' analyses. But sometimes the adversary will point to the "author" and "recipients" data in challenging a privilege claim — noting the absence of a lawyer's name.

Courts universally acknowledge that employee-to-employee communications may deserve privilege protection. In Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015), the court flatly rejected defendant's argument that "in and of itself" the lack of a lawyer's involvement in plaintiff's communications made privilege unavailable. The court explained that "[i]n the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee's corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice." Id. On the same day, another court generally rejected a corporation's privilege claim, but acknowledged that the privilege can protect communications that "evidence . . . In-house counsel's advice or otherwise reflect counsel's involvement in decisions relating to legal matters, even if the communication is between two members of . . . Management." Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015) (emphasis added).

Given the usually cryptic nature of privilege logs, some litigants understandably argue that the privilege cannot apply to employee-to-employee communications — but every court disagrees.

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal MI
Comment:

key case


Chapter: 16.303
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *55, *60 (S.D. Fla. Oct. 18, 2012)
("[I]t is clear that pursuant to the relevant case law, the determination of whether a document is protected by the attorney-client privilege or the work product doctrine does not turn solely on whether a particular document reflects that an attorney and/or certain corporate management employees either authored or received the document in dispute."; "[S]imply because a communication is made between two corporate employees, neither of whom are attorneys, that fact is not determinative of whether that communication primarily involves business advice rather than legal advice for purposes of applying the attorney-client privilege to that correspondence. To conclude otherwise would result in a somewhat absurd finding that a document generated for purposes of obtaining and/or assisting in the transmission of legal advice would not only lose its privileged character, but would be artificially viewed as primarily a business communication merely because the author and recipient were not attorneys.")

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 16.304
Case Name: Greater N.Y. Taxi Assoc. v. City of New York, 13-cv-3089 (VSB) (RWL), 2018 U.S. Dist. LEXIS 80069 (S.D.N.Y. May 8, 2018)
(recognizing that the attorney-client privilege could protect government employee-to-employee communications; "[T]he fact that a communication was made between government employees without the presence of an attorney does not necessarily remove the privilege. If the employees were, for example, sharing legal advice provided by counsel, their communications would be privileged. Moreover, as Defendants point out, the individual log entries in their categorical log contain notations that correlate to more detailed descriptions. . . . For instance, the notation 'Litigation — TOT Litigation' is defined in the categorical log index as: 'Documents discussing, reflecting or requesting legal advice or reflecting work prepared at the direction of counsel, regarding the various legal challenges to the Taxi of Tomorrow project, including, but not limited to the preparation of defenses thereto, analysis of the rulings by Justice Peter Moulton and Justice Shlomo Hagler, and strategy in response to such rulings.'. . . In short, the log for each document does identify a legal basis for the assertion of privilege."; "That said, to the extent they have not already done so, Plaintiffs should identify those specific documents sent between non-attorneys for which they have a colorable basis for concern, and then request that Defendants provide more detailed information about the legal basis for the privilege for those documents.")

Case Date Jurisdiction State Cite Checked
2018-05-08 Federal NY

Chapter: 16.304
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
("In the corporate context, the protections of the attorney-client privilege extend to employees. Upjohn Co. v. United States, 449 U.S. 383, 391-95, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). The attorney-client privilege protects intra-corporate communications transmitting legal advice to employees, see Deel v. Bank of Am., 227 F.R.D. 456, 460 (W.D. Va. 2005), and communications between employees in preparation for seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA
Comment:

key case


Chapter: 16.304
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Goroff Exhibit A contains communications between MMO's employees and MMO's in-house attorneys who, along with outside counsel, were conducting an investigation relating to this litigation. The attorneys request information; the request reveals their legal thinking; and one of the employees provides information in response. This document is privileged. . . . although Goroff Exhibits E and F contain e-mails exchanged only between non-attorney MMO employees, they reflect Kibler's legal thinking and forward-looking strategy for the present litigation. They also contain a relevant response from an employee. These emails do relate to a business issue, but they 'indicate[] that legal advice was sought and obtained,' and they directly and indirectly reveal the communications made to that end.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 16.304
Case Name: Schmalz v. Village of North Riverside, No. 13 C 8012, 2018 U.S. Dist. LEXIS 19623 (N.D. Ill. Feb. 7, 2018)
(holding that the privilege could protect employee-to-employee communications; "The Court agrees that any emails that are simply forwarding emails from counsel should be protected by the attorney-client privilege and need not be produced because such communications would 'reveal, directly or indirectly, the substance of a confidential attorney-client communication.'. . . The Court accepts defense counsels' representations that Document Nos. 163, 164 & 168 are instances where an employee was forwarding counsel's email to other Village employees.")

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

key case


Chapter: 16.304
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("The attorney-client privilege in the corporate context also protects intra-corporate communications transmitting legal advice to the employees who must act on the advice . . . and notes made or communications made between employees in preparation for seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA
Comment:

key case


Chapter: 16.304
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 2145 is an email from the General Manager of Abbott Laboratories' Dyslipidemia Franchise, Marianne Sutcliffe, to Abbot's Vice President of Sales and Marketing John Schilling. In the email, Sutcliffe relays to Schilling legal advice that Sutcliffe had acquired from Abbott's in-house counsel Perry Siatis. Because 'intra corporate distribution of legal advice received from counsel does not vitiate the privilege.'")

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

Chapter: 16.304
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 581 is an email chain between Kos's Chief Executive Officer Adrian Adams and Koven, in which Adams asked Koven about the status of ongoing litigation settlement negotiations. Koven's response conveyed his opinion on the status of those negotiations. Because that response communicated a legal opinion, it was properly withheld under the attorney-client privilege.")

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

Chapter: 16.304
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; "Communications between employees may be privileged in two circumstances. First, communications may be privileged when a corporate client shares information with non-attorney employees 'to relay information requested by attorneys.'"; "Second, communications between non-attorney corporate employees may be privileged when they were made 'for the purpose of securing legal advice.'"; "When the communication involves a document, for the court to find that the attorney-client privilege applies, the court must inspect the document and find that the primary purpose of the communication was to secure legal advice."; "A party can prove that the purpose of a communication was to seek legal advice by offering evidence that the communication was relayed to an attorney.")

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

Chapter: 16.304
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; "Finally, the fact that certain documents may have been sent to many recipients has no bearing on their privileged character. Most of the emails about which Plaintiffs appear to be complaining were from attorneys seeking information from the various religious experts within the BOP 'to enable [the lawyer] to give sound and informed advice. . . . Other such emails are conveying legal advice to several of the many individuals involved in decision making at the BOP. . . . The emails show that the recipients are the 'employees who will put into effect'. . . the legal advice rendered. . . . Emails in both categories -- those seeking information and those providing legal advice -- are clearly privileged.")

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

key case


Chapter: 16.304
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; "[T]he emails between non-attorneys all convey privileged legal advice from one BOP employee to another. Individuals in an organizational structure are permitted to 'consult with one another' about an attorney's legal advice so that all relevant information is known before making a legal decision' without waiving the privilege.")

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

Chapter: 16.304
Case Name: United States v. Microsoft Corporation, Case No. C15-102RSM, 2017 U.S. Dist. LEXIS 69223 (W.D. Wash. May 5, 2017)
(holding that Microsoft could reasonably have anticipated litigation based on various factors; and ordering an in camera review of withheld documents; "Although some of these privilege log entries include no attorney as a recipient or author, all twelve identify the person whose legal advice is being discussed, as well as the subject matter of that legal advice.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal WA

Chapter: 16.304
Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Exhibit 12 is an email chain discussing an investor's request for servicer compliance certificates of certain trusts for which Wells Fargo served as the trustee. In responding to the investor's request, Wells Fargo employees discussed how best to interpret a section of the governing agreements that allowed for the trustee to provide periodic or special servicing reports to certificateholders, and referenced and cited advice from internal counsel on how to construe the agreements' language. Based on the counsel's advice, the Wells Fargo employees formulated a response to the investor's request."; "As with Exhibit 10, Exhibit 12 should be produced in redacted form. Much of the email chain consists of communications among Wells Fargo personnel as to the facts of the investor's request and should be produced. The March 3, 2009 email sent at 5:58 PM, however, references in-house counsel's advice as to whether the compliance documents should be provided to the investor, based on counsel's interpretation of the servicing agreement, and is therefore privileged. . . . Also privileged are the two emails sent after the 5:58 PM email, in which the Wells Fargo employees discuss how to proceed in light of in-house counsel's interpretation. Accordingly, Wells Fargo should redact the March 3, 2009 email sent at 5:58 pm and the two subsequent emails, and produce the rest of the email chain.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 16.304
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."; "It is a communication between two intermediaries, who, by title, seem necessary to discuss and 'need to know' the legal advice given by Nuns Moodliar [Lawyer] earlier in the email chain. The document also seems to have been treated as confidential as the subject states: 'Confidential: RE: FW: CPCC/US CLASS ACTION/Confidential.")

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

Chapter: 16.304
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 email is a message from the President of Hertz France to Hertz personnel, including the Hertz France Legal Director, forwarding a message from Nuns Moodliar [Lawyer] about DCC and the allegations in the case. The substance of the message includes the legal advice of Mr. Moodliar relating to DCC. Moreover, the intent appears to be to treat the communication as privileged, as the subject line states: "CPCC/US Class Action/Confidential.'")

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

Chapter: 16.304
Case Name: CAC Atlantic LLC v. Hartford Fire Ins. Co., 16 Civ. 5454 (GHW) (JCF), 2017 U.S. Dist. LEXIS 11010 (S.D.N.Y. Jan. 19, 2017)
(in an opinion by Magistrate Judge Francis, inexplicably citing Kovel in the context of a client rather than a lawyer agent; "The documents now at issue are all communications to or from Minogue ["a building consultant retained by Hartford prior to its disclaimer of coverage"], and since Minogue is not 'the client,' they are not privileged on their face. Nevertheless, there are two theories that might bring these communications within the privilege. First, an attorney may rely on a non-lawyer to facilitate communications with the client, including persons with expertise such as accountants used to convey technical information. See United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961); Osorio, 75 N.Y.2d at 84, 550 N.Y.5.2d at 615. Here, however, Hartford has not demonstrated that Minogue was engaged simply to 'translate' information for purposes of providing legal advice."; "Second, even though Minogue is not itself a party, its communications with counsel and the defendant might be privileged if it were the functional equivalent of an employee of Hartford."; "Hartford has not established that Minogue served such an integral role in light of these factors that it must be treated as if it were an employee for purposes of the privilege.")

Case Date Jurisdiction State Cite Checked
2017-01-19 Federal NY
Comment:

key case


Chapter: 16.304
Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457, at *12-13 (D.N.J. Dec. 5, 2016)
("Many of the challenged documents involve communications between and amongst Riddell's employees that do not involve an attorney. The Court agrees with Riddell that simply sharing documents amongst corporate employees does not necessarily vitiate a privilege. These communications remain privileged if they assist the attorney to formulate and render legal advice. . . . However, the privilege is waived if the document is shared beyond persons with a 'need to know.'" (citation omitted)).

Case Date Jurisdiction State Cite Checked
2016-12-05 Federal NJ

Chapter: 16.304
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)
("This is a series of emails, certain of which copy James Reed, Chief Legal Counsel at YCA, and others that do not copy Attorney Reed but refer to legal advice given by him or by a Taiwanese attorney."; "These documents all concern legal advice and accordingly are subject to attorney-client privilege. As such, they need not be produced.")

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

Chapter: 16.304
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 296 is an email from Mr. Berlinski [Plaintiff's CEO and Chairman of the Board] to Mr. Press that copies a conversation between Mr. Press [Plaintiff's President] and Attorneys Wolf and Coury concerning prosecution of a patent application in Japan. The attorney-client communications refer to legal strategy, and the discussion of such information among senior executives at a corporation represented by counsel is privileged. Accordingly, the document is subject to attorney-client privilege and does not need not be produced.")

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

Chapter: 16.304
Case Name: Le v. Zuffa, LLC, Case No. 2:15-cv-01045-RFB-PAL, 2016 U.S. Dist. LEXIS 69813 (D. Nev. May 26, 2016)
(finding that many emails to and from Milbank Tweed lawyers were not protected by the attorney-client privilege; "Applying these principles, the court finds the majority of the redacted paragraphs in dispute in this motion are not privileged. The first redacted paragraph relates Pride FC's negotiating positions, the fact the Pride did not trust Zuffa anymore than Zuffa trusted Pride, and that Pride did not want its business tied up any longer in negotiations. The paragraph reports the parties' negotiating positions and contains no legal analysis or advice. The second paragraph relates Zuffa's business purpose for the acquisition -- to stop others from buying Pride and to acquire Pride to shut the business down and acquire its fighters for the UFC. It relates Pride's negotiating position that resulted Zuffa's business decision to set a low threshold for due diligence before the deal became binding on both sides. However, a portion of the last sentence of the paragraph relates the client's concern about a legal matter. In context, it appears to be a legal issue the client and counsel discussed in the expectation it was a confidential communication. The remaining communications do not relate to legal advice sought by or given to Zuffa. Mr. Pachal relates Pride's communications to him during the course of business negotiations. Mr. Paschal was merely serving as a conduit of this information from Pride to his client, Zuffa. The other communications relate to the negotiating parties' commercial strategies and tactics. As such, they are not privileged.")

Case Date Jurisdiction State Cite Checked
2016-05-26 Federal NV

Chapter: 16.304
Case Name: FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. April 29, 2016)
("[A]lthough Van Tassell's statements were prompted by a communication with an attorney, there is no evidence that her statements were communicated to the attorney. Indeed, she removed the attorney from the distribution list when she replied, and indicated in her declaration submitted to the Court that she had merely offered her comments for possible use by a business colleague in a future communication with the attorney. . . . Xaxis has not argued, nor proffered any evidence showing, that any counsel was privy to the communication of Van Tassell's statements. Xaxis has therefore failed to satisfy its burden of establishing the applicability of the attorney-client privilege under New York law because it has not demonstrated 'that the information was a communication between client and counsel.'")

Case Date Jurisdiction State Cite Checked
2016-04-29 Federal NY

Chapter: 16.304
Case Name: FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. Apr. 29, 2016)
June 8, 2016 (PRIVILEGE POINT)

"Can the Privilege Protect Emails that Lawyers Do Not Send or Receive?"

Because privilege logs generally require withholding litigants to identify emails' senders and recipients, the absence of a lawyer's name often triggers discovery skirmishes. Not surprisingly, the withholding litigants' adversaries often argue that communications not involving a lawyer cannot possibly be privileged.

In ChriMar Systems Inc. v. Cisco Systems Inc., the court held that the privilege and the work product doctrine protected emails that a patent inventor sent to himself — noting that the inventor and his lawyers "attest that the emails memorialize and reflect confidential communications made for the purpose of conveying legal advice." Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *19 (N.D. Cal. Apr. 21, 2016). About a week later, another court dealt with an email that was not sent by or received by a lawyer. In FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. Apr. 29, 2016), defendant's senior vice president sent an email to several of his colleagues, and the company's outside counsel. The company's CFO responded to the email, but removed the outside counsel from the recipient list. District Judge Swain acknowledged that employee-to-employee communications can deserve privilege protection, but rejected the defendant's privilege claim for the CFO's response. The court noted that the CFO had deliberately "removed the attorney from the distribution list when she replied, and indicated in her declaration . . . That she had merely offered her comments for possible use by a business colleague in a future communication with the attorney." Id. At *5.

Although email strings that do not include lawyers can sometimes deserve privilege protection, courts usually demand evidence that the emails relayed a lawyer's advice; memorialized a lawyer's advice; or (occasionally) involved clients formulating questions to pose to their lawyer.

Case Date Jurisdiction State Cite Checked
2016-04-29 Federal NY
Comment:

key case


Chapter: 16.304
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("There need not be an attorney participating in the communication if the communication conveys legal advice to other employees so that they may comply.")

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

key case


Chapter: 16.304
Case Name: Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015)
August 26, 2015 (PRIVILEGE POINT)

"The Privilege Can Protect Employee-to-Employee Communications"

Because attorney-client privilege protection depends primarily on communications' content, privilege logs rarely play a dispositive role in courts' analyses. But sometimes the adversary will point to the "author" and "recipients" data in challenging a privilege claim — noting the absence of a lawyer's name.

Courts universally acknowledge that employee-to-employee communications may deserve privilege protection. In Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015), the court flatly rejected defendant's argument that "in and of itself" the lack of a lawyer's involvement in plaintiff's communications made privilege unavailable. The court explained that "[i]n the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee's corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice." Id. On the same day, another court generally rejected a corporation's privilege claim, but acknowledged that the privilege can protect communications that "evidence . . . In-house counsel's advice or otherwise reflect counsel's involvement in decisions relating to legal matters, even if the communication is between two members of . . . Management." Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015) (emphasis added).

Given the usually cryptic nature of privilege logs, some litigants understandably argue that the privilege cannot apply to employee-to-employee communications — but every court disagrees.

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal PA
Comment:

key case


Chapter: 16.304
Case Name: Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015)
August 26, 2015 (PRIVILEGE POINT)

"The Privilege Can Protect Employee-to-Employee Communications"

Because attorney-client privilege protection depends primarily on communications' content, privilege logs rarely play a dispositive role in courts' analyses. But sometimes the adversary will point to the "author" and "recipients" data in challenging a privilege claim — noting the absence of a lawyer's name.

Courts universally acknowledge that employee-to-employee communications may deserve privilege protection. In Stryker Corp. v. Ridgeway, Case Nos. 1:13-CV-1066 & 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741, at *9 (W.D. Mich. July 20, 2015), the court flatly rejected defendant's argument that "in and of itself" the lack of a lawyer's involvement in plaintiff's communications made privilege unavailable. The court explained that "[i]n the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee's corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice." Id. On the same day, another court generally rejected a corporation's privilege claim, but acknowledged that the privilege can protect communications that "evidence . . . In-house counsel's advice or otherwise reflect counsel's involvement in decisions relating to legal matters, even if the communication is between two members of . . . Management." Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *4 (E.D. Pa. July 20, 2015) (emphasis added).

Given the usually cryptic nature of privilege logs, some litigants understandably argue that the privilege cannot apply to employee-to-employee communications — but every court disagrees.

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal MI
Comment:

key case


Chapter: 16.304
Case Name: Roberts Technology Group, Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015)
("Here, we agree communications between Curwood (including its management or employees) with its in-house counsel seeking and providing legal advice are privileged. . . . These communications are privileged when Curwood's documents evidence their in-house counsel's advice or otherwise reflect counsel's involvement in decisions relating to legal matters, even if the communication is between two members of Curwood's management.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal PA
Comment:

key case


Chapter: 16.304
Case Name: Stryker Corporation v. Ridgeway, Case No. 1:13-CV-1066, Case No. 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741 (W.D. Mich. July 20, 2015)
("Ridgeway's assertion that some of the emails were not between attorneys was not sufficient, in and of itself, to suggest that Stryker's assertion of privilege was improper. . . . In the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee's corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal MI
Comment:

key case


Chapter: 16.304
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: 16.304
Case Name: Confidential Informant 59-05071 v. United States, No. 11-153C, 2015 U.S. Claims LEXIS 477 (Fed. Cl. April 13, 2015)
(finding that the privilege protected communications between one government employee and another employee; "The Court has examined these documents in camera and concludes that plaintiff's argument is without merit because, although the sender and recipient are not attorneys, the redacted portions of the documents contain passages that communicate the advice of counsel. The forwarding of documents containing counsel's advice by non-attorneys in an organization does not strip the advice contained within them of its privileged nature.")

Case Date Jurisdiction State Cite Checked
2015-04-13 Federal Other

Chapter: 16.304
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)
("The content of the messages is clearly related to implementing the advice Chipotle received from Messner Reeves [Law firm], and as a large corporation, Chipotle could not realistically have acted on that advice without communicating it to its own employees. Accordingly, to the extent that it is correct that all recipients were able to act upon or implement the information or advice they received (and given their titles the Court assumes that is the case), the e-mails and the attachments are privileged. To hold otherwise would disable corporations from implementing legal advice, exactly what Upjohn seeks to avoid.")

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

key case


Chapter: 16.304
Case Name: United States v. Veolia Env’t N. Am. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717, at *22 (D. Del. Oct. 31, 2014)
December 10, 2014 (PRIVILEGE POINT)

“Courts Affirm Privilege Protection for Intracorporate Communications”

In most states (Illinois being the main exception), attorney-client privilege protection extends to communications between a corporation's lawyers and (1) employees with facts the lawyers need, regardless of the employee's place in the hierarchy, and (2) employees with a "need to know" the lawyers' advice about those facts. Most courts also protect ancillary communications that support the corporation's request for and receipt of legal advice.

In Moffatt v. Wazana Brothers International, the court confirmed that the privilege protects "communications relaying legal advice provided by corporate counsel among nonattorney corporate employees who share responsibility 'for the subject matter underlying the consultation.'" Civ. A. No. 14-1881, 2014 U.S. Dist. LEXIS 151326, at *4 (E.D. Pa. Oct. 24, 2014) (citation omitted). Corporations frequently rely on this principle when their adversaries challenge privilege protection for documents whose privilege log entries do not show a lawyer as either the author or a recipient. One week later, the District of Delaware similarly held that the privilege could continue to protect privileged documents "shared within the corporate family, such as those sent to or from" the corporate defendant's French parent -- "[t]o the extent that . . . such involvement was essential to and in futherance of the communications with the attorneys involved." United States v. Veolia Env’t N. Am. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717, at *22 (D. Del. Oct. 31, 2014).

Although these justifiable principles provide some comfort, company employees should be warned against intracorporate circulation of privileged communications beyond those with a "need to know."

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

key case


Chapter: 16.304
Case Name: Moffatt v. Wazana Brothers International, Civ. A. No. 14-1881, 2014 U.S. Dist. LEXIS 151326, at *4 (E.D. Pa. Oct. 24, 2014)
December 10, 2014 (PRIVILEGE POINT)

“Courts Affirm Privilege Protection for Intracorporate Communications”

In most states (Illinois being the main exception), attorney-client privilege protection extends to communications between a corporation's lawyers and (1) employees with facts the lawyers need, regardless of the employee's place in the hierarchy, and (2) employees with a "need to know" the lawyers' advice about those facts. Most courts also protect ancillary communications that support the corporation's request for and receipt of legal advice.

In Moffatt v. Wazana Brothers International, the court confirmed that the privilege protects "communications relaying legal advice provided by corporate counsel among nonattorney corporate employees who share responsibility 'for the subject matter underlying the consultation.'" Civ. A. No. 14-1881, 2014 U.S. Dist. LEXIS 151326, at *4 (E.D. Pa. Oct. 24, 2014) (citation omitted). Corporations frequently rely on this principle when their adversaries challenge privilege protection for documents whose privilege log entries do not show a lawyer as either the author or a recipient. One week later, the District of Delaware similarly held that the privilege could continue to protect privileged documents "shared within the corporate family, such as those sent to or from" the corporate defendant's French parent -- "[t]o the extent that . . . such involvement was essential to and in futherance of the communications with the attorneys involved." United States v. Veolia Env’t N. Am. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717, at *22 (D. Del. Oct. 31, 2014).

Although these justifiable principles provide some comfort, company employees should be warned against intracorporate circulation of privileged communications beyond those with a "need to know."

Case Date Jurisdiction State Cite Checked
2014-10-24 Federal PA
Comment:

key case


Chapter: 16.304
Case Name: Moffatt v. Wazana Bros. Int'l, Civ. A. No. 14-1881, 2014 U.S. Dist. LEXIS 151326 (E.D. Pa. Oct. 24, 2014)
(analyzing intra-corporate communications about an employment discrimination matter; "In this case, just as in In re Grand Jury 90-1, corporate counsel gave legal advice to high ranking members of her corporate client, Wazana Brothers International. Those members proceeded to disclose that legal advice to the company CEO and President. Based on a review of the unredacted email, the Court concludes that the recipients 'needed to know' the content of the communication in order to 'make informed decisions concerning . . . The subject matter of the communication[,]' the termination and severance of plaintiff.")

Case Date Jurisdiction State Cite Checked
2014-10-24 Federal PA

Chapter: 16.304
Case Name: Moffatt v. Wazana Bros. Int'l, Civ. A. No. 14-1881, 2014 U.S. Dist. LEXIS 151326 (E.D. Pa. Oct. 24, 2014)
(analyzing intra-corporate communications about an employment discrimination matter; "Courts have consistently held that communications relaying legal advice provided by corporate counsel among nonattorney corporate employees who share responsibility 'for the subject matter underlying the consultation' are privileged.")

Case Date Jurisdiction State Cite Checked
2014-10-24 Federal PA

Chapter: 16.304
Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("State Street has not established how emails among its own employees, which are not communicated to counsel and do not even appear to contain information intended to be conveyed to counsel, satisfies any of the elements of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-08-11 Federal MA

Chapter: 16.304
Case Name: Wells Fargo Bank, N.A. v. RLJ Lodging Trust, Case No. 13-cv-00758, 2014 U.S. Dist. LEXIS 106273 (N.D. Ill. Aug. 4, 2014)
(finding that the privilege covered employee-to-employee communications; "That Mr. Greenholtz, a non-lawyer, communicated the legal advice to other non-lawyers comprising the Special Servicing Committee within Torchlight for their consideration in determining the course of action to follow in connection with the loan ultimately at issue in this case does not remove the legal advice he received from Torchlight's lawyers from the protection of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-08-04 Federal IL

Chapter: 16.304
Case Name: Love v. Permanente Med. Grp., No. C-12-05679 DMR, 2014 U.S. Dist. LEXIS 22243, at *8 (N.D. Cal. Feb. 19, 2014)
("[T]he mere act of transmitting an attorney's advice to other employees of Defendants does not render that advice unprivileged.")

Case Date Jurisdiction State Cite Checked
2014-02-19 Federal CA B 7/14

Chapter: 16.304
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 *37-38 (E.D. Pa. Sept. 11, 2013)
("Communications shared by non-attorney employees may be privileged if they were made in order to relay information requested by attorneys, or to disseminate legal advice given by those attorneys so that the corporation's employees act appropriately. . . . Again, the focus of the inquiry is on whether those communications were for the purpose of gathering information necessary for Cephalon's attorneys to render legal advice, or were made in order to disseminate legal advice from those attorneys throughout the company.")

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

Chapter: 16.304
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 *26-27 (E.D. Pa. Sept. 11, 2013))
("Based upon the content of these statements, and the fact that they reflect advice or information Baldino [Defendant pharmaceutical company's president] received from Cephalon's General Counsel, it is clear that the communications had a legal rather than a business purpose. Specifically, Baldino's statements were made in an effort to assist the board in making an informed decision regarding the settlement of the Provigil patent infringement litigation. The statements specifically relayed information from Cephalon's attorneys regarding the status and terms of those agreements. As such, the statements were made for the purpose of providing legal advice and are protected by the attorney-client privilege.")

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

Chapter: 16.304
Case Name: Jemsek v. Jemsek Clinic, P.A. (In re Jemsek Clinic, P.A.), Ch. 11 Case No. 06-31760, Adv. No. 07-03008, 2013 Bankr. LEXIS 3120, at *45 (W.D.N.C. Aug. 2, 2013)
("The Jemsek Defendants claim these current documents are not protected by the attorney client privilege because they were transmitted between non-attorneys. However, documents containing discussions of legal advice given by an attorney are protected as attorney-client privileged, irrespective of whether they were sent, received, or prepared by an attorney.")

Case Date Jurisdiction State Cite Checked
2013-08-02 Federal NC B 4/14

Chapter: 16.304
Case Name: BNP Paribas Mortg. Corp. v. Bank of Am., N.A., Nos.09 Civ. 9783 & 9784 (RWS), 2013 U.S. Dist. LEXIS 75402, at *29 (S.D.N.Y. May 21, 2013)
(holding that an inadvertent production did not result in a waiver, relying on the Lois Sportswear (Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y. 1985)) factors; "While neither party to this email is an attorney, 'the privilege protects from disclosure communications among corporate employees that reflect advice rendered by counsel to the corporation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-05-21 Federal NY B 3/14

Chapter: 16.304
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *8 (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; "Communications between Astellas's [defendant] employees that discuss or relay counsel's legal advice related to the citizen petition are privileged to the extent that the employees are in a 'need to know' position or bear some responsibility for the subject matter underlying the consultation.")

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

Chapter: 16.304
Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *14 (E.D. Va. Apr. 22, 2013)
(analyzing the privilege impact of communications to and from General McKnight, who is described as a "member" of plaintiff corporation but not a board member; "As Defendants note, the communications sought flowed from counsel to the client and were then sent to others, including General McKnight. The Fourth Circuit has held that the attorney-client privilege applies not only to the upward flow of information from a client or client's representative to counsel, but also can apply to the downward flow of legal advice from counsel to client in limited circumstances. See e.g., Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999); United States v. (Under Seal), 748 F.2d 871, 874-877 (4th Cir. 1984).")

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

Chapter: 16.304
Case Name: Skansgaard v. Bank of America, Case No. C11-0988 RJB, 2013 U.S. Dist. LEXIS 48176, at *4 (W.D. Wash. Mar. 6, 2013)
("The attorney-client privilege extends to confidential communications between employees of a corporation and the corporation's attorney, . . . as well as to confidential communications among corporate employees relating to legal advice obtained from the corporation's attorney.")

Case Date Jurisdiction State Cite Checked
2013-03-06 Federal WA B 3/14

Chapter: 16.304
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 631 (D. Nev. 2013)
("The court will have to determine, in each instance, whether the non-attorneys were seeking or forwarding legal advice to non-attorneys who needed it to fulfill the purpose for which the lawyer was consulted and/or that disclosure to other non-lawyer employees was reasonably necessary for the transmission of the communication.")

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

Chapter: 16.304
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 659 (D. Nev. 2013)
("The court concludes that this e-mail is forwarding on a privileged attorney-client communication to employees at Bard who needed the information to perform their job functions. Therefore, it need not be produced to Plaintiff.")

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

Chapter: 16.304
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *73 (S.D. Fla. Oct. 18, 2012)
("This conclusion is supported by the Affidavit of Donald L. Bjerke, Ph.D., a principal scientist in the Product Safety and Regulatory Affairs Department in the Beauty Care Division at P&G, which has been submitted to the undersigned on an ex parte basis. Dr. Bjerke's Affidavit makes clear that the email in question was generated as part of his completion of a task for the P&G legal department related to litigation. Thus, although the Plaintiffs are correct when they state that 'non-attorney impressions are not protected work product,'. . . the carrying out of tasks at the behest of legal counsel, or the summarization of legal advice, even if done by a non-attorney for purposes of disseminating that advice to other corporate employees[,] is clearly protected, as is the case of the document authored by Dr. Bjerke.")

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 16.304
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 111 (D.D.C. 2012)
("[C]ommunications among employees of a client are still afforded the protection of the privilege, so long as the communications concern legal advice sought or received that was intended to be confidential.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 16.304
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 254 (E.D. Va. 2012)
("For the entries concerning communications by non attorneys which reflect legal advice, no privilege can apply. Lawson does not establish that they these are communications from or to an attorney or that . . . these are communications made at the direction of an attorney. . . . Lawson has not carried its burden, and the asserted privilege is waived.")

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

Chapter: 16.304
Case Name: Clubcom, LLC v. Captive Media. Inc., No. 02: 07-cv-1462, 2009 U.S. Dist. LEXIS 55651, at *5 (W.D. Pa. June 30, 2009)
("Courts have found that where an in-house attorney provides the corporation's officers with legal advice, the attorney-client privilege protects both the initial communication from the attorney and subsequent communications among the corporation's officers discussing the legal advice, whether or not the attorney is included in the subsequent communications.")

Case Date Jurisdiction State Cite Checked
2009-06-30 Federal PA B 2/14

Chapter: 16.401
Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *9 (W.D. Va. Dec. 8, 2006)
("[T]he protection extends not only to documents authored by an attorney but also to information and queries submitted to him by his or her client, . . . (the privilege 'exists to protect 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'); In re Allen, 106 F.3d 582, 601 (4th Cir. 1997) (applying Upjohn Co. v. United States).")

Case Date Jurisdiction State Cite Checked
2006-12-08 Federal VA

Chapter: 16.402
Case Name: Basso v. New York University, 16-CV-7295 (VM) (KNF), 2018 U.S. Dist. LEXIS 126149 (S.D.N.Y. July 27, 2018)
("Regardless of the font used to express counsel's comments, none of the paragraphs provide legal advice. In his e-mail message, dated 'Mon, Jan 20, 2014 at 9:30 AM,' Kenneth E. Tabachnick asked counsel to 'take a look and see if we have any comments' on 'the final draft (as I understand it) LOR for the Tisch Asia audit.' Comments are not legal advice, which is clear from counsel's responsive e-mail message, dated 'Tue, 21 Jan 2014 15:35:32:55 -0500.' Counsel's 'Comments below' include phrases reflecting uncertainty and ignorance about business practices and matters: (i) 'we should probably follow [PwC's] instructions'; (ii) 'I am not sure if I am authorized to sign'; (iii) 'Do we need to modify to leave open the possibility it will remain open longer?'; (iv) 'Not sure how to answer this, but would there be any reason to keep the campus open - not the outside production studios?'; (v) 'Not sure why this language is needed'; and (vi) 'I can reach out to PwC to inquire about this.' It is apparent from the content of counsel's 'Comments below' that the comments are business-related communications, including questions and uncertainties about business practices and matters, not legal advice provided based on counsel's legal education and experience. The defendant failed to establish that the attorney-client privilege applies to the e-mail messages contained in the defendant's Exhibit C; thus, they must be disclosed to the plaintiffs.")

Case Date Jurisdiction State Cite Checked
2018-07-27 Federal NY

Chapter: 16.402
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)
(analyzing log entries; "'Despite RockTenn's characterization of this e-mail, there is no indication that the author was requesting legal review. It is improper to infer as a blanket matter that any e-mail asking for 'comments' that copies in-house counsel along with several other high level managers automatically is a request for 'legal review.'")

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

Chapter: 16.402
Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *25 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "Exhibit 12 is a February 7, 2011 email, which informs Ms. Morgan that the Executive Committee is considering the full package and asks her to make whatever changes she desires to the 'CYC Reorganization Plan.' Like the earlier emails inviting editorial changes to administrative and program operations, budget reduction and reorganizations plans, the email does not seek legal advice and is not privileged.")

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

Chapter: 16.403
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)
("This document is an e-mail string containing three e-mails. The e-mails are not privileged. Although an attorney is one of seven recipients of the e-mails, the document does not reflect legal advice nor reveal client confidences conveyed for the purpose of seeking legal advice. Syngenta's privilege assertion is overruled, and Syngenta shall produce this document.")

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

Chapter: 16.403
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 2 is an email from Jack Sasaki, a non-attorney, to 22 recipients, one of whom is Katsu Yumoto, a non-attorney 'legal coordinator' who reported to attorney John Castellano. The document includes a reference to needing to request a legal opinion, and refers to a future meeting with YKK's U.S. legal team."; "The Court finds that this is a business communication that does not request legal advice from an attorney, provide legal advice, or disseminate legal advice already given by an attorney among non-attorney employees of a corporation. To the degree that legal issues are referenced, the document only states, to a broad audience of non-attorneys, that the relevant department has the intention of requesting legal advice in the future.")

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

key case


Chapter: 16.403
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: 16.404
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 employee-to-employee communications deserved privilege protection; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "ESU argues that the email communications from various university personnel seeking direction on how to handle certain issues with the Hales during the investigation constitute requests for legal advice from ESU's general counsel. Some, but not all, of these communications were initially made to high-level university personnel and then forwarded to general counsel Johnson for response. Many of these communications start with an email from Dr. Hale, followed by an inquiry of the sender regarding how to handle the email in light of the investigation and potential for litigation. ESU argues the attorney-client privilege is not defeated simply because some of the emails are not initiated to or from its general counsel; the privilege applies because communications were made to university personnel seeking legal advice in confidence. The email correspondence relating to the Hales during the investigation seeking advice of counsel meets the requirements of the attorney-client privilege and its disclosure should not be compelled."; "As acknowledged by ESU, many of the email strings at issue start with an email exchange between one of the Hales and SLIM Assistant Dean Alexander and are then forwarded to other ESU officials. The Court therefore has conducted an in camera review of these email communications to determine whether any should be produced. For example, ESU lists a three-page email string 'regarding teaching assignment' as Bates number AGO-000362-364 (privilege log 63), but a review of the email string shows that two and a half of the three pages withheld are emails only between Alexander and the Hales. Another example is a two-page email string 'regarding payment resolution of Dr. Hale's practicum.' A review of the emails reveals that all but the last email in the string are between only Alexander and the Hales. ESU cannot claim attorney-client privilege with respect to the emails between its employees and the Hales without some showing those emails contain confidential attorney-client privileged or work-product information that was not disclosed to the Hales. All of the withheld emails at issue between only ESU employees and the Hales must be produced to Plaintiff.")

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

key case


Chapter: 16.404
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: 16.404
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)
("Plaintiffs argue that Defendants improperly have included documents on the privilege logs, which contain factual material prepared by non-attorneys, which is then transmitted to or copied to attorneys. Plaintiffs say that these emails are not subject to the attorney-client privilege because the privilege only protects disclosure of communications and not disclosure of the underlying facts by those who communicated with the attorney. Plaintiffs statement of the law on this issue is generally correct. Simply because factual information has been transmitted to an attorney does not make the underlying factual information privileged."; "On the other hand, there is little question that where a client (or agent of the client) submits information to an attorney for legal advice the attorney-client privilege protects the communication from disclosure. . . . This applies as well to information gathered by non-attorneys for transmission to an attorney for the attorney to provide legal advice on an issue or to provide legal advice regarding the document or information gathered by the non-attorney employee of the client."; "Consequently, those emails generated by BMS or OAPI [Defendants] employees transmitting information to in-house counsel charged with the responsibility for the legal proceedings and requesting or receiving legal advice on the matter transmitted are protected from disclosure under the attorney-client privilege. The same applies to emails from BMS or OAPI's counsel requesting information to assist the attorney in providing legal advice. The Court has utilized these principles in its in camera review of the documents.")

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

key case


Chapter: 16.404
Case Name: Pallies v. The Boeing Company, Case No. C16-01437RSL, 2017 U.S. Dist. LEXIS 144431 (W.D. Wash. Sept. 6, 2017)
(holding that the attorney-client privilege applied to a pre-deposition meeting among defendant's lawyer and several former defendant employees; holding that defendant Boeing's lawyer represented all of the former employee; "[T]here is no evidence that any communications between employees happened during group deposition preparations that were not part of their attempts to seek legal advice from Defendant's counsel. Each of the deposed witnesses signed declarations stating that they sought out Boeing's counsel for the purpose of being represented by counsel and receiving legal advice regarding depositions, advice considered confidential. . . . Defendant's attorney, Jennifer Svanfeldt, also signed a declaration stating that she represented each of the various employees to prepare them for deposition and extended the attorney-client privilege to them to the extent necessary to give them legal advice. . . . The eight-factor test necessary to establish the attorney-client privilege has been met here because all the witnesses (1) sought legal advice (2) from Ms. Svanfeldt and (3) communicated with her (4-5) for that purpose in confidence with an expectation of the attorney-client privilege and therefore (6) are permanently protected (7) from disclosure by anyone since (8) they have not waived their protection. . . . Therefore, it can be clearly established that the Defendant has proved that the attorney-client privilege applies to these deposition preparation meetings.")

Case Date Jurisdiction State Cite Checked
2017-09-06 Federal WA
Comment:

key case


Chapter: 16.404
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; "Finally, the fact that certain documents may have been sent to many recipients has no bearing on their privileged character. Most of the emails about which Plaintiffs appear to be complaining were from attorneys seeking information from the various religious experts within the BOP 'to enable [the lawyer] to give sound and informed advice. . . . Other such emails are conveying legal advice to several of the many individuals involved in decision making at the BOP. . . . The emails show that the recipients are the 'employees who will put into effect'. . . the legal advice rendered. . . . Emails in both categories -- those seeking information and those providing legal advice -- are clearly privileged.")

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

key case


Chapter: 16.404
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)
("This document is an e-mail string containing three e-mails. The e-mails are not privileged. Although an attorney is one of seven recipients of the e-mails, the document does not reflect legal advice nor reveal client confidences conveyed for the purpose of seeking legal advice. Syngenta's privilege assertion is overruled, and Syngenta shall produce this document.")

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

Chapter: 16.404
Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs also argue that Wells Fargo improperly designated as confidential documents containing only factual information. Plaintiffs cite as exemplars three charts . . . to demonstrate that many of the allegedly privileged documents are spreadsheets summarizing trust data and are therefore factual business documents that should be disclosed."; "The relevant inquiry with respect to Exhibits 11 (and the related chart in Exhibit 14), 15, and 16 is whether these charts were created for the purpose of obtaining legal advice or whether they were otherwise created in the ordinary course of Wells Fargo's business. . . . Based on the current record, Wells Fargo has not met its burden of establishing that these charts should be withheld. Exhibit 11 (and Exhibit 14) appears to be a chart that was prepared in the ordinary course of Wells Fargo's business. Indeed, the Court suspects that this document (at least in large part) was generated by Wells Fargo as part of its management of the trusts, not by counsel. It would be surprising that a lawyer would have been responsible for inputting this sheer volume of data into a spreadsheet. Similarly, Exhibit 15 is a compilation of repurchase and loan file review information that appears to have been extracted from a database. In its February 7, 2017 submission, Wells Fargo represented that it has already produced the non-privileged portions of Exhibit 15 but does not indicate what those portions were. Regarding Exhibit 16, Wells Fargo asserts that it consists of documents and communications shared between Wells Fargo and its attorneys in order for counsel to determine whether and EOD had occurred. But it is not clear what the role of counsel was in preparing Exhibit 16."; "[T]he Court will reserve decision pending further submission by Wells Fargo."; "Wells Fargo shall submit a declaration of a person with knowledge to show that these charts were created for the purpose of obtaining legal advice, not for the purpose of conducting its ordinary business. The declarant should describe, in detail, each column in each of the charts and explain whether the information in each column reflected attorney advice or was compiled for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 16.404
Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Going forward, the Court sets forth the following guidance for the parties with regards to this category of privilege assertions. Documents, including emails, created in connection with a request for advice from in-house counsel regarding courses of action in connection with loan repurchase requests or requests for compliance documents may be withheld. . . . But to the extent business records created in the ordinary course of business are attached to requests for legal advice, those business records do not become privileged simply because they were sent to counsel unless they were created solely for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 16.404
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 196 is an email from Mr. Press [Plaintiff's President] to Mr. Berlinski forwarding a cover email from Attorney Wolf to Mr. Press, with an attachment of Attorney Wolf's summary of a meeting with YKK."; "While it does not contain substantial information, Document 196 is a direct communication from attorney to client instructing client to view the attachment (Document 197), and is thus privileged.")

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

Chapter: 16.404
Case Name: 01 Communique Laboratory, Inc. v. Citrix Systems, Inc., Case No. 1:06-cv-253, 2016 U.S. Dist. LEXIS 3011 (N.D. Ohio Jan. 10, 2016)
(focusing on the four corners of a document in determining that the privilege applied; "The Court conducted its own in camera review of Privilege Log Entry No. 98. That review confirms the magistrate judge's conclusion that within the email at issue, Citrix seeks legal advice from its counsel regarding litigation strategy for this case.")

Case Date Jurisdiction State Cite Checked
2016-01-10 Federal OH

Chapter: 16.404
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)
("These are emails concerning a request for information from counsel and an attachment that was generated at the request of counsel. The emails are privileged and the attachment is work product.")

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

Chapter: 16.404
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: 16.404
Case Name: Yocabet v. UPMC Presbyterian and University of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)
(holding that the attorney-client privilege can protect communications during a meeting of an institution's governing board; "Initially, we note that UPMC facially invoked this privilege in its answers to interrogatories. While the trial court speculated that Ms. Concordia's presentation was merely to apprise the Board of the situation, UPMC indicated the contrary in its answers to the two interrogatories. It asserted that the Board meeting was called in part to review what happened and seek legal advice. Although it did not identify the individuals by name, UPMC maintained that a lawyer or lawyers were present. Given the gravity of the situation and the inevitable filing of a lawsuit by Mr. Yocobet and Ms. Meccanic, it is reasonable and appropriate that the UPMC Board was eliciting legal advice from its lawyers.").

Case Date Jurisdiction State Cite Checked
2015-06-05 State PA

Chapter: 16.404
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: 16.404
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)
(analyzing log entries; "'Despite RockTenn's characterization of this e-mail, there is no indication that the author was requesting legal review. It is improper to infer as a blanket matter that any e-mail asking for 'comments' that copies in-house counsel along with several other high level managers automatically is a request for 'legal review.'")

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

Chapter: 16.404
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: 16.404
Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *13 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "From these fundamental principles, it inexorably follows that sending an otherwise non-privileged document to a lawyer in connection with a request for legal advice will not make the attached document independently privileged and immune from discovery, even though the communication seeking legal advice is privileged.")

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

Chapter: 16.404
Case Name: Tecnomatic, S.P.A. v. Remy, Inc., No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014)
("Tecnomatic contends that Documents Two through Eight 'do not seek legal consultation and merely relay facts.' . . . However, the court has reviewed Documents Two through Eight on a document-by-document basis and finds that the communications withheld explicitly request, render, arrange for, or act in furtherance of rendering legal assistance.")

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

Chapter: 16.404
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 *38-39, *39 (E.D. Pa. Sept. 11, 2013)
(holding that internal corporate communications deserve privilege protection; relying both on the documents and on supporting affidavits; "[O]ne document provides a Cephalon attorney with details regarding other pharmaceutical companies in order to obtain his opinion on the terms of a collaborative agreement between the two companies. . . . Several documents are drafts of a spreadsheet concerning another company's assets, which was requested by in-house counsel to allow him to provide an opinion on antitrust issues. . . . Two of the identified documents are handwritten letters, with attached data and analyses, from a Cephalon scientist to counsel in response to counsel's request for pharmaceutical testing information relevant to the infringement litigation. . . . These documents, which all constitute communications to Cephalon attorneys by corporate employees in order to further counsel's ability to provide legal advice, are subject to attorney-client privilege."; "[A]nother document requests counsel's advice on certain draft letter agreements.")

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

Chapter: 16.404
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 659 (D. Nev. 2013)
("This e-mail, while sent directly to Janet Hudnall [Marketing Manager, Filters], copies Brian Leddin [lawyer], and specifically discusses a request for his advice about the forwarded e-mail. The court recognizes there are instances where simply copying an attorney does not bring the document within the attorney-client privilege, but here, in the context of this particular document, copying Mr. Leddin had the same effect as e-mailing him directly for advice. As such, the court finds that Joint Selection 42 comes within the attorney-client privilege and need not be produced.")

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

Chapter: 16.404
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 111 (D.D.C. 2012)
("[A]dditional [documents] are directed to an attorney, admittedly among other recipients, and include requests for legal advice.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 16.404
Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *9-10 (E.D. Va. May 12, 2011)
("Document 1 involves an email chain of communications between various AIG employees and general counsel. The subject of the communications concerns a business meeting. The document makes no reference to any particular legal issue. While general counsel is a recipient of the email chain, the communications do not explicitly ask for legal advice, opinions, or oversight. Furthermore, the attorney's response is limited to clarifying a business issue and scheduling a meeting. Consequently, though the communication is between a client and attorney, Document 1 is not subject to the attorney client privilege because the purpose of the document is not to provide an opinion on law, legal services, or to provide assistance in some legal context.")

Case Date Jurisdiction State Cite Checked
2011-05-12 Federal VA B 4/13

Chapter: 16.404
Case Name: Batt v. Manchester Oaks Homeowners Ass'n, 80 Va. Cir. 502, 505 (Va. Cir. Ct. 2010)
(in an opinion by Judge Ney, holding that the fiduciary exception did not apply in a situation involving homeowners' attempt to obtain an opinion letter from the homeowners association's lawyer to management; "The communications between the Directors and their counsel are protected by the attorney client privilege as well as the work product doctrine. The documents the Home Owners seek to recover are the documents between the Board, acting on behalf of the HOA, and its counsel. And, unlike Virginia Electric [Virginia Elec. & Power Co. v. Westmoreland LG&E Partners, 526 S.E. 2d 750 (Va. 2000)], where the document sought was merely a letter between negotiating parties, here the documents specifically request legal advice. Because Virginia Electric makes plain that the privilege attaches even where the document on its face does not seek legal advice, the documents are clearly privileged.")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA B 4/11

Chapter: 16.404
Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *9 (W.D. Va. Dec. 8, 2006)
("[T]he protection extends not only to documents authored by an attorney but also to information and queries submitted to him by his or her client, . . . (the privilege 'exists to protect 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'); In re Allen, 106 F.3d 582, 601 (4th Cir. 1997) (applying Upjohn Co. v. United States).")

Case Date Jurisdiction State Cite Checked
2006-12-08 Federal VA

Chapter: 16.404
Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 266 (E.D. Va. 2006)
("This is a classic example of a confidential communication. A client, here a Council Member, approached his or her attorney, the City Attorney, for legal advice relating to an existing legal problem. Certainly some public information was involved in the City Attorney's analysis: the governing laws, the details of the permit, and other information. But these public facts are intermixed with confidential information: the Council Members' own opinions and concerns and the City Attorney's opinions and analysis. Given confidential treatment and the absence of any waiver, this information may be protected under the attorney-client privilege.)

Case Date Jurisdiction State Cite Checked
2006-01-01 Federal VA B 11/06

Chapter: 16.404
Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *19-20 (E.D. Va. June 10, 2004)
("Item 10 is a memo created by an employee at Capital One, and addressed to Capital One's in-house counsel, seeking advice in connection with Ms. Jannon Pierce. Specifically, the document asks questions about communications with Ms. Pierece and seeks legal advice on how to minimize any legal risk associated with the threat of anticipated litigation by Ms. Pierce. Item 10 was clearly created as a communication directed to in-house counsel, for the express purpose of obtaining legal advice, and therefore falls within the attorney-client privilege.")

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

Chapter: 16.404
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 7:57 a.m. email reflects that Dr. Weers told Ralph Navarrete about a specific request he made for legal advice to an attorney regarding the patent. The attorney-client privilege protects this exchange because, on its face, the email reflects that Dr. Weers communicated that he sought legal advice from a lawyer."; "In the 12:55 p.m. email, Baker seeks to redact a question from Mr. Navarrete to Dr. Weers about the effect of an expired patent on the enforceability of Baker's patent. In the email, Mr. Navarrete does not ask Dr. Weers to forward this question to counsel or state that that Mr. Navarrete intended to do so. Baker submitted Mr. Navarrete's affidavit in support of its position that the communication was privileged. Mr. Navarrete stated that he responded to Dr. Weers' email 'with a question I had for counsel concerning the scope of the 943 patent.'"; "Nothing in the email chain indicates that the question was to be proposed to counsel. . . . Even assuming Mr. Navarrete had such an unexpressed intent, Baker has not submitted evidence that the substance of this communication was in fact conveyed to an attorney.")

Case Date Jurisdiction State Cite Checked
Federal TX
Comment:

key case


Chapter: 16.405
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: 16.405
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)
("Plaintiffs argue that Defendants improperly have included documents on the privilege logs, which contain factual material prepared by non-attorneys, which is then transmitted to or copied to attorneys. Plaintiffs say that these emails are not subject to the attorney-client privilege because the privilege only protects disclosure of communications and not disclosure of the underlying facts by those who communicated with the attorney. Plaintiffs statement of the law on this issue is generally correct. Simply because factual information has been transmitted to an attorney does not make the underlying factual information privileged."; "On the other hand, there is little question that where a client (or agent of the client) submits information to an attorney for legal advice the attorney-client privilege protects the communication from disclosure. . . . This applies as well to information gathered by non-attorneys for transmission to an attorney for the attorney to provide legal advice on an issue or to provide legal advice regarding the document or information gathered by the non-attorney employee of the client."; "Consequently, those emails generated by BMS or OAPI [Defendants] employees transmitting information to in-house counsel charged with the responsibility for the legal proceedings and requesting or receiving legal advice on the matter transmitted are protected from disclosure under the attorney-client privilege. The same applies to emails from BMS or OAPI's counsel requesting information to assist the attorney in providing legal advice. The Court has utilized these principles in its in camera review of the documents.")

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

key case


Chapter: 16.405
Case Name: Greater New York Taxi Ass’n v. City of New York, No. 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017)
December 6, 2017 (PRIVILEGE POINT)

"How Do Courts Decide If Employees CC'ing a Lawyer are Implicitly Seeking Legal Advice?"

Electronic communications exacerbate judges' already difficult task of determining if employees copying lawyers on their communications with fellow employees are implicitly seeking legal advice – and thus deserve privilege protection. The increasing volume of emails understandably tempts judges to look only at the face of emails for employees' explicit requests for legal advice. And given the accelerating tempo of employees' electronic communications, those communications are increasingly cryptic.

In Greater New York Taxi Ass’n v. City of New York, No. 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017), Magistrate Judge Francis articulated a common-sense approach. He noted that courts hold "that communications constitute implicit requests for legal advice where an attorney is copied on the communications and the communications implicate specific legal issues." Id. at *3-4. He found that some emails defendant had redacted "fit into that framework" – because defendant's commissioners copied their general counsel when they communicated "about how to craft a new set of legal rules after a court invalidated their initial set of rules." Id. at *34-35. In contrast, Judge Francis rejected defendant's privilege claim for another email on which a commissioner had copied a lawyer – because "there is no indication that it solicits legal advice or implicates a specific legal issue." Id. at *36.

Wise lawyers train their corporate clients' executives and employees to explicitly seek legal advice when they want it, but Judge Francis's wise approach gives hope for privilege claims even in the absence of such explicit requests.

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

key case


Chapter: 16.405
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; "Courts have held that communications constitute implicit requests for legal advice where an attorney is copied on the communications and the communications implicate specific legal issues. Compare ADT Security Services, Inc. v. Swenson, No. 07-2983, 2010 U.S. Dist. LEXIS 74987, 2010 WL 2954545, at *5 (D. Minn. July 26, 2010) (emails concerning company's response to media coverage about pending lawsuit on which General Counsel was copied were attorney-client privileged as implicit requests for legal advice), and TNI Packaging, Inc. v. Perdue Farms, Inc., No. 05 C 2900, 2006 U.S. Dist. LEXIS 7774, 2006 WL 6654885, at *2 (N.D. Ill. Feb. 28, 2006) ('The suggested revision to the patent application [sent to the client's attorney] was [] an implicit request for legal advice on what should be included in the application.'), with Retail Brand Alliance, 2008 U.S. Dist. LEXIS 17746, 2008 WL 622810, at *2 (email sent to in-house counsel providing 'general corporate information' was not protected as implicit request for legal advice). The redacted emails here fit into that framework; TLC commissioners are communicating about how to craft a new set of legal rules after a court invalidated their initial set of rules, and the TLC's General Counsel was copied on the emails. Therefore, the defendants' attorney-client privilege redactions in Exhibit H are proper."; "The defendants argue that a single redacted email in the third email chain, attached as exhibit L to the plaintiffs' motion, is also protectable as an implicit request for legal advice. . . . The redacted email appears to consist of Mr. Yassky forwarding a conversation between himself and Mr. Freidman that covers a range of topics to a group of TLC employees. Although Ms. Joshi is copied on the email, there is no indication that it solicits legal advice or implicates a specific legal issue, unlike the redacted emails in Exhibit H. Therefore, the defendants have not met their burden to establish that the redacted email in Exhibit L is protected by the attorney-client privilege.")

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

key case


Chapter: 16.405
Case Name: La. Municipal Police Employees Retirement Sys. v. Green Mountain Coffee Roasters, Inc., Case No. 2:11-cv-289, 2017 U.S. Dist. LEXIS 165151 (D. Vt. April 7, 2017)
(holding that a client's communications updating a lawyer on developments can amount to an implicit request for legal advice if the need arises for such advice; "Courts have held that requests for legal advice need not be express, and may include updates about ongoing business developments so long as there is an expectation that the attorney will respond if the matter raises important legal issues. . . . Also included in this category of protection are draft documents sent to in-house counsel for legal review. See, e.g., Valente v. Lincoln Nat. Corp., 2010 U.S. Dist. LEXIS 90983, 2010 WL 3522495, at *4 (D. Conn. Sept. 2, 2010) (finding draft of document privileged where it 'was sent to counsel with an implicit request to provide feedback and comments about the draft').")

Case Date Jurisdiction State Cite Checked
2017-04-07 Federal VT
Comment:

key case


Chapter: 16.405
Case Name: Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. Apr. 5, 2017)
June 7, 2017 (PRIVIELGE POINT)

"Court Offers Rare Good News and a Helpful Hint about Effective Privilege Logs"

Plaintiffs suing document-laden corporate defendants often try to make privilege log mistakes into a destructive side show.

In Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. Apr. 5, 2017), the court acknowledged that defendant had made privilege log mistakes and withheld some unprotected documents. But the court refused plaintiff's request for a Special Master's appointment – noting that defendant's over-designation was not "a systemic problem," and that "it appears to the Court that this is simply the type of human error that will necessarily occur when a large document review and production is undertaken." Id. at *15. The court's review of some withheld documents also provided a helpful hint about how lawyers and their corporate clients can maximize their chance of winning privilege fights. The court held that an email seeking "'initial reactions'" to what was likely an advertisement was not privileged, although a lawyer received a copy. Id. at *7 (internal citation omitted). The court noted that the email "does not request legal advice from [the lawyer] or discuss any legal issues." Id.

Some courts' refreshingly realistic approach to privilege log errors should encourage corporate defendants. But those defendants should train their employees seeking legal advice to explicitly request it in communications – because even tolerant courts often protect only those documents which demonstrate their primarily legal purpose on their face.

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL
Comment:

key case


Chapter: 16.405
Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs also argue that Wells Fargo improperly designated as confidential documents containing only factual information. Plaintiffs cite as exemplars three charts . . . to demonstrate that many of the allegedly privileged documents are spreadsheets summarizing trust data and are therefore factual business documents that should be disclosed."; "The relevant inquiry with respect to Exhibits 11 (and the related chart in Exhibit 14), 15, and 16 is whether these charts were created for the purpose of obtaining legal advice or whether they were otherwise created in the ordinary course of Wells Fargo's business. . . . Based on the current record, Wells Fargo has not met its burden of establishing that these charts should be withheld. Exhibit 11 (and Exhibit 14) appears to be a chart that was prepared in the ordinary course of Wells Fargo's business. Indeed, the Court suspects that this document (at least in large part) was generated by Wells Fargo as part of its management of the trusts, not by counsel. It would be surprising that a lawyer would have been responsible for inputting this sheer volume of data into a spreadsheet. Similarly, Exhibit 15 is a compilation of repurchase and loan file review information that appears to have been extracted from a database. In its February 7, 2017 submission, Wells Fargo represented that it has already produced the non-privileged portions of Exhibit 15 but does not indicate what those portions were. Regarding Exhibit 16, Wells Fargo asserts that it consists of documents and communications shared between Wells Fargo and its attorneys in order for counsel to determine whether and EOD had occurred. But it is not clear what the role of counsel was in preparing Exhibit 16."; "[T]he Court will reserve decision pending further submission by Wells Fargo."; "Wells Fargo shall submit a declaration of a person with knowledge to show that these charts were created for the purpose of obtaining legal advice, not for the purpose of conducting its ordinary business. The declarant should describe, in detail, each column in each of the charts and explain whether the information in each column reflected attorney advice or was compiled for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 16.405
Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Going forward, the Court sets forth the following guidance for the parties with regards to this category of privilege assertions. Documents, including emails, created in connection with a request for advice from in-house counsel regarding courses of action in connection with loan repurchase requests or requests for compliance documents may be withheld. . . . But to the extent business records created in the ordinary course of business are attached to requests for legal advice, those business records do not become privileged simply because they were sent to counsel unless they were created solely for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 16.405
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(analyzing communications between Ford and CRA; "Document number 2755, however, is a draft memorandum 'prepared at the request of counsel' and sent to James VanAssche Nicole Rathbun Shanks and Douglas Gastrell, none of whom appear to be attorneys. . . . Even though this document may have been created at the request of counsel, it was not sent to or from counsel for the purpose of seeking legal advice. While such a document may be protectable as work product, CRA did not claim such protection in its privilege log. Protection of this document is inappropriate under the attorney-client privilege. Therefore, the Court will grant Defendant's Motion with regard to this document.")

Case Date Jurisdiction State Cite Checked
2015-10-27 Federal MI

Chapter: 16.405
Case Name: Alomari v. Ohio Dept. of Public Safety, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
(in discrimination case, holding that the attorney-client privilege protected communications about defendant's response to media inquiries; "In challenging the assertion of privilege over the April 2010 meeting between Plaintiff, Director Vedra, and Reed-Frient, Plaintiff argues that 'ODPS failed to provide any evidence that Reed-Friend interviewed [Plaintiff] in order to provide legal advice.'"; "Plaintiff stated in his deposition that at the April 2010 meeting, Reed-Frient told him that she wanted to understand the circumstances surrounding Plaintiff's termination from Columbus State in order to help ODPS prepare a response to those inquiries."; "Plaintiff disputes whether seeking advice for a response to the media is considered 'legal advice' in the first place, although he recognizes that this circuit has not addressed the issue. Plaintiff cites several district court cases that deemed an attorney's advice about media relations to be non-legal. See, e.g., In re Chevron Corp., 749 F. Supp. 2d 141, 167 (S.D.N.Y. 2010) (holding that an attorney's communications were not privileged when 'substantial evidence' suggested his predominant role was 'not the rendition of professional legal services, but politics, lobbying, and media and public relations'); City of Springfield v. Rexnord Corp., 196 F.R.D. 7,9 (D. Mass. 2000) (finding that an attorney's documents 'prepared in anticipation of media inquiries' were not privileged)."; "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."; "[T]he privilege protects communications 'necessary to obtain legal advice.'. . . No caselaw suggests that communications are privileged only when they are utilized to dispense legal advice."; "Plaintiff's own deposition testimony indicates that he was aware Reed-Frient, a lawyer, was present to gather information in order to advise ODPS on how to respond to the media inquiries, an act with great legal ramifications. Accordingly, the district court did not abuse its discretion in denying Plaintiff's claim."; "Plaintiff argues that the attorney-client privilege did not cover communications that occurred at the June 2010 meeting because the purpose of the meeting was to make a business decision concerning Plaintiff's employment and discipline, not to render legal advice. But the magistrate judge made a finding of fact that 'the purpose of the meeting was to secure [Reed-Frient's] legal advice related to the results of the administrative investigation,' crediting an affidavit supplied by Reed-Frient in camera that detailed the substance of the discussion at that meeting and clarified Reed-Frient's role as a legal advisor. The district judge relied on the magistrate's judge's factual finding in concluding that the privilege applied to communications during the June 2010 meeting."; "Just as the privilege applied to all communications during the school board executive session in Rush [Rush v. Columbus Municipal School Dist., No. 99-60910, 2000 U.S. App. LEXIS 39647, 2000 WL 1598021 (5th Cir. Sept. 28, 2000)] because the primary purpose of that meeting was to obtain legal advice, the privilege similarly covers all communications from the June 2010 meeting because its purpose was to acquire legal advice. Although Director Stickrath's testimony suggests that the primary purpose of the June 2010 meeting was to provide business advice instead of legal advice, the district court did not abuse its discretion in relying on the magistrate judge's determination, which credited Reed-Frient's affidavit, that the primary purpose of the meeting was to provide ODPS with legal advice.")

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

key case


Chapter: 16.405
Case Name: Alomari v. Ohio Dept. of Public Safety, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
(in discrimination case, holding that the attorney-client privilege protected communications about defendant's response to media inquiries; "In challenging the assertion of privilege over the April 2010 meeting between Plaintiff, Director Vedra, and Reed-Frient, Plaintiff argues that 'ODPS failed to provide any evidence that Reed-Friend interviewed [Plaintiff] in order to provide legal advice.'"; "Plaintiff stated in his deposition that at the April 2010 meeting, Reed-Frient told him that she wanted to understand the circumstances surrounding Plaintiff's termination from Columbus State in order to help ODPS prepare a response to those inquiries."; "Plaintiff disputes whether seeking advice for a response to the media is considered 'legal advice' in the first place, although he recognizes that this circuit has not addressed the issue. Plaintiff cites several district court cases that deemed an attorney's advice about media relations to be non-legal. See, e.g., In re Chevron Corp., 749 F. Supp. 2d 141, 167 (S.D.N.Y. 2010) (holding that an attorney's communications were not privileged when 'substantial evidence' suggested his predominant role was 'not the rendition of professional legal services, but politics, lobbying, and media and public relations'); City of Springfield v. Rexnord Corp., 196 F.R.D. 7,9 (D. Mass. 2000) (finding that an attorney's documents 'prepared in anticipation of media inquiries' were not privileged)."; "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."; "[T]he privilege protects communications 'necessary to obtain legal advice.'. . . No caselaw suggests that communications are privileged only when they are utilized to dispense legal advice."; "Plaintiff's own deposition testimony indicates that he was aware Reed-Frient, a lawyer, was present to gather information in order to advise ODPS on how to respond to the media inquiries, an act with great legal ramifications. Accordingly, the district court did not abuse its discretion in denying Plaintiff's claim."; "Plaintiff argues that the attorney-client privilege did not cover communications that occurred at the June 2010 meeting because the purpose of the meeting was to make a business decision concerning Plaintiff's employment and discipline, not to render legal advice. But the magistrate judge made a finding of fact that 'the purpose of the meeting was to secure [Reed-Frient's] legal advice related to the results of the administrative investigation,' crediting an affidavit supplied by Reed-Frient in camera that detailed the substance of the discussion at that meeting and clarified Reed-Frient's role as a legal advisor. The district judge relied on the magistrate's judge's factual finding in concluding that the privilege applied to communications during the June 2010 meeting."; "Just as the privilege applied to all communications during the school board executive session in Rush [Rush v. Columbus Municipal School Dist., No. 99-60910, 2000 U.S. App. LEXIS 39647, 2000 WL 1598021 (5th Cir. Sept. 28, 2000)] because the primary purpose of that meeting was to obtain legal advice, the privilege similarly covers all communications from the June 2010 meeting because its purpose was to acquire legal advice. Although Director Stickrath's testimony suggests that the primary purpose of the June 2010 meeting was to provide business advice instead of legal advice, the district court did not abuse its discretion in relying on the magistrate judge's determination, which credited Reed-Frient's affidavit, that the primary purpose of the meeting was to provide ODPS with legal advice.")

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

key case


Chapter: 16.405
Case Name: Havel v. Dentsu McGarry Bowen UK Ltd., Civ. A. No. H-13-1291, 2014 U.S. Dist. LEXIS 181327 (S.D. Tex. Jan. 29, 2015)
(holding that the privilege protected some documents among non-lawyers preparing to present a question to a lawyer; "The defendants argue that the four emails are protected because they were made in preparation for consultations with attorneys. After careful in camera review, the court agrees in part. The 'dominant intent' of three out of four emails was 'to prepare the information in order to get legal advice from the lawyer.'"; "'The plaintiffs argue that the lack of any contemporaneous email communication with counsel documented in the privilege log prevents the defendants from asserting privilege as to these emails. But the defendants' log shows that they eventually communicated with counsel, and they may have communicated even sooner in a different medium.'")

Case Date Jurisdiction State Cite Checked
2015-01-29 Federal TX

Chapter: 16.405
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)
(analyzing log entries; "'Despite RockTenn's characterization of this e-mail, there is no indication that the author was requesting legal review. It is improper to infer as a blanket matter that any e-mail asking for 'comments' that copies in-house counsel along with several other high level managers automatically is a request for 'legal review.'")

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

Chapter: 16.405
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: 16.405
Case Name: Colon v. The City of New York, 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483, at *5-6 (S.D.N.Y. July 8, 2014)
(holding that the privilege protected a client's draft letter sent to a lawyer for privilege advice, as long as the letter was never sent to a third party; "Had the letter at issue actually been sent to a journalist (or other third party), it plainly would not qualify as privileged. . . . But Plaintiff did not send or otherwise disclose the letter to the addressee; instead, he sent it to his attorney as part of a confidential communication to obtain legal advice.")

Case Date Jurisdiction State Cite Checked
2014-07-08 Federal NY

Chapter: 16.405
Case Name: Hamdan v. Indiana Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *14 (S.D. Ind. June 24, 2014)
(emphasizing the four corners of documents prepared during an investigation of a discrimination claim; "Simply copying attorneys on an email chain in order to keep them abreast of HR and other business-related occurrences does not transform the emails into an attorney's investigation with a built-in expectation of legal services to be rendered which would qualify for attorney-client privilege.")

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

Chapter: 16.405
Case Name: Wells Fargo & Co. v. United States of America, Case No. 09-CV-2764 (PJS/TNL), 2014 U.S. Dist. LEXIS 81430, at *8-9 (D. Minn. June 16, 2014)
(concluding that a client employee's draft of a memorandum to a lawyer was not an implicit request for legal advice; "Even if Wells Fargo could show that all 21 of the documents were circulated to its in-house attorneys, the Court could not find that the documents were privileged, because Wells Fargo has failed to establish that the documents were circulated for the purpose of obtaining legal advice or services. Wells Fargo argues that the Court can infer that drafts of the memorandum sent to in-house counsel were implicit requests for legal advice or services regarding the memorandum. . . . But Wells Fargo offers no evidence to support these rather vague and abstract assertions. By contrast, the government offers concrete evidence that Wells Fargo's in-house attorneys were involved in non-legal aspects of implementing the STARS transaction. . . . Under these circumstances, it is as likely that these attorneys were being asked to ensure the factual accuracy of the drafts as it is that these attorneys were being asked to provide legal advice.")

Case Date Jurisdiction State Cite Checked
2014-06-16 Federal MN

Chapter: 16.405
Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *23-24 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "Exhibit 6 is a series of emails. The January 7, 2011 email from Ms. Morgan to Mr. Wells merely encloses the job descriptions and points out the qualifications of the VP for program operations. This email is not privileged as it does not ask for legal advice. Ms. Morgan's somewhat lengthy response of the same day is arguably privileged.")

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

Chapter: 16.405
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *4, *12-13, *13-14 (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; analyzing two documents; "Exhibit 8 . . . is an e-mail from Sam Zeller, a Unilever Regulatory Affairs employee, regarding the status of the 'natural' claim for a particular ingredient."; "Sam Zeller is a member of Unilever's Regulatory Affairs department. He is not an attorney. According to Defendant, he worked closely with the Legal Department in developing the guidelines. . . . The e-mail summarizes some of the statements contained in a set of guidelines for natural claims. Defendant argues that Mr. Zeller understood, when he sent the e-mail, that he was passing on legal analysis from those guidelines, a joint initiative of the Regulatory and Legal Departments. . . . Plaintiff contends that this email string was initiated by William Leo, a director of Research and Development, and terminated with Samuel Zeller, a Senior Manager of Regulatory Affairs. No lawyers are on the e-mail string. The string addresses a public document that discusses an 'all-natural' lawsuit against a competitor."; "The Court concludes that this e-mail is not protected by either the attorney-client privilege or the work-product doctrine. No attorneys are involved in the e-mail chain, and although Andrew Sztehlo asks Zeller for a view on the status of the particular ingredient, and Zeller provides the Regulatory Department view, it does not appear to be a request for legal advice. . . . To the extent that the e-mails discuss litigation, they address a lawsuit against another company, not a threatened or pending case against Defendant, or even past litigation against Defendant.")

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

Chapter: 16.405
Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 900, 901 (N.D. Ill. 2013)
("[A]n explicit request for legal assistance is not necessary when such a request is implied."; "[T]echnical information does not make the document privileged. The inclusion of technical information also does not, however, 'render the document discoverable, because requests for legal advice on patentability or for legal services in preparing a patent application necessarily require evaluation of technical information such as prior art.'. . . The fact that the conversation between Dr. Kuzmich [plaintiff's outside lawer] and Dr. Motheram [plaintiff's scientist] involved technical information is not determinative.")

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

Chapter: 16.405
Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 900 (N.D. Ill. 2013)
("[A]n explicit request for legal assistance is not necessary when such a request is implied.")

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

Chapter: 16.405
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 100 (Fed. Cl. 2013)
("The privilege protects the confidentiality of communications regardless of whether the information they contain is confidential, because a communication by a client with his or her attorney is generally assumed to be a request for legal advice.")

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

Chapter: 16.405
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 102 (Fed. Cl. 2013)
("The 'overall tenor' of the first passage at issue, and particularly the first sentence of the passage, which sets the tone of the paragraph, seem to reflect a request for JCCI/A [Joint Contracting Command Iraq/Afghanistan] Legal's advice, which is what is necessary to establish the applicability of the privilege." (citation omitted))

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

Chapter: 16.405
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: 16.405
Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 128-29 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "[T]he mere fact that a document is created by a non-attorney is not dispositive of the privilege question, so long as the communication of the document to counsel was confidential and for the primary purpose of seeking legal advice.")

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

Chapter: 16.405
Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 325-26 (2000)
("Virginia Power apparently considers the privilege applicable only to a document which by its own terms conveys a request for legal advice. Such an application of the privilege requirement is too narrow.")

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

Chapter: 16.406
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; "The mere inclusion of a lawyer as a recipient of a copy of a draft document circulated by one business person to other business people seeking comments on the draft would not, standing alone, warrant the protection of the attorney-client privilege. The Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations.")

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

Key Case


Chapter: 16.406
Case Name: Entrata, Inc. v. Yardi Systems, Inc., Case No. 2:15-cv-00102, 2018 U.S. Dist. LEXIS 149239, at *10 (D. Utah Aug. 30, 2018)
October 31, 2018 (PRIVILEGE POINT)

Court Criticizes Corporation's Sneaky "Tactic" to Avoid Discovery

Corporations claiming attorney-client privilege protection for their emails must prove that the emails were primarily motivated by their need for legal advice. Simply adding lawyers' names as direct or copy recipients does not assure protection. Lawyers must and clients should understand this – but some clients cannot avoid the temptation to withhold documents based on such steps.

In Entrata, Inc. v. Yardi Systems, Inc., the court noted that several emails "appear to be marked as privileged for no other reason than the fact that [lawyers] are recipients of the mail or are 'CCed' on the email." Case No. 2:15-cv-00102, 2018 U.S. Dist. LEXIS 149239, at *10 (D. Utah Aug. 30, 2018). The court rejected the privilege assertions for one email, because "nowhere in the email does anyone seek any legal advice." Id. The court also noted that "there was evidence that '[defendant] copied in-house-counsel [sic] on non-privileged communications as a tactic to avoid having emails discovered.'" Id. (internal citation omitted).

Lawyers should remind their clients: (1) to include requests for legal advice in the body of their emails seeking such advice; (2) that merely including lawyers as direct or copy recipients does not automatically assure privilege protection; and (3) that discussing or (especially) writing about adding lawyers "as a tactic to avoid having the emails discovered" may forfeit privilege protection even for legitimately protected documents, or worse.

Case Date Jurisdiction State Cite Checked
2018-08-30 Federal

Chapter: 16.406
Case Name: Basso v. New York University, 16-CV-7295 (VM) (KNF), 2018 U.S. Dist. LEXIS 126149 (S.D.N.Y. July 27, 2018)
("None of the e-mail messages in the string e-mail messages contained in Exhibit A contains a communication seeking or giving legal advice. Copying counsel on an e-mail message directed to an unidentified person does not establish that the: (1) communications contained in Exhibit A's e-mail messages are between the defendant and its counsel; (2) communications are intended to be, and in fact were, kept confidential; and (3) communications were made for the purpose of obtaining or providing legal assistance. . . . As the defendant acknowledges in its July 3, 2018 ex parte letter, Exhibit A contains 'internal communications among the highest level of administrators.' None of the communications is sent to or by the defendant's counsel; rather, counsel is only listed with the designation 'Cc,' signaling a copy recipient. Internal business communications by the defendant's high level administrators are not protected by the attorney-client privilege just because copies are sent to the defendant's counsel. The defendant failed to establish that the attorney-client privilege applies to the e-mail messages contained in the defendant's Exhibit A; thus, they must be disclosed to the plaintiffs.")

Case Date Jurisdiction State Cite Checked
2018-07-27 Federal NY

Chapter: 16.406
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("It is true that 'simply copying a lawyer on an otherwise non[-]privileged communication will not transform the non-privileged document into a privileged one.'. . . On the other hand, courts have held that the attorney being in the CC, rather than To or From, column is not prima facie evidence that the email is not privileged. . . . The deciding issue is whether the communications sought legal advice from a lawyer, and the typical manner to resolve the dispute when the attorney is only copied on the communication is in camera review of the documents.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN
Comment:

key case


Chapter: 16.406
Case Name: Jordan v. US Dept. of Labor, Civ. A. No. 16-1868 (RC), 2018 U.S. Dist. LEXIS 53940 (D.D.C. March 30, 2018)
("DOL [Department of Labor] seems to argue that the Huber email [Internal memorandum of DynCorp.] qualifies for protection under the attorney-client privilege because it was sent as part of DynCorp's broader efforts to address a legal issue and because it was sent to an in-house attorney to provide him 'with a complete understanding of the facts relevant to the matter that was being discussed in the email.'. . . The Court disagrees and concludes that, contrary to DOL's contentions, the Huber email is not protected by attorney-client privilege and must be produced."; "Several factors buttress this conclusion. First, it is difficult to say, under the circumstances of this case, that one of the primary purposes of the Huber email was to obtain legal advice. The email is specifically directed to another person – a non-attorney – and the email specifically (and only) seeks information from that person. It is not all apparent from DOL's submissions how Mr. Huber's request that Mr. Powers provide certain information might in any way shape Mr. Bellomy's legal advice on the business contract or any other legal matter. DOL's contention that some broader legal problem existed in the background is insufficient to connect this specific communication to that legal problem existed in the background is insufficient to connect this specific communication to that legal problem or to any prospective legal problem. Second and relatedly, the Huber email does not appear to contain any factual information on which Mr. Bellomy might rely to form a legal judgment. Rather, it appears to contain a discrete request – directed to one person – that exposes little to nothing about the factual circumstances underlying the problem of the 'short paid invoices' or any other legal issue. Third, protection of this document does little to promote the purpose of the attorney-client privilege, which is 'to encourage 'full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'" Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (quoting Upjohn, 449 U.S. at 389). Fourth, the Huber email's topic and distribution list appears to be nearly identical to that of the final email in the chain, which was not withheld on the basis of attorney-client privilege. The only difference between the two emails is that the Huber email was copied to any attorney while the final email in the chain was not. As set forth above, simply copy an attorney on a communication does not make that communication privileged. In sum, DOL's arguments that the attorney-client privilege applies to the Huber email are unavailing. DOL's renewed motion for summary judgment is denied, and DOL is ordered to release the Huber email.")

Case Date Jurisdiction State Cite Checked
2018-03-30 Federal DC

Chapter: 16.406
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)
("There are a number of emails where attorneys are one of a number of recipients merely copied on the communications. As to these emails Plaintiffs argue that the document should not be protected by the attorney-client privilege because the widespread distribution evidences the communication was not prepared primarily to seek legal advice. Plaintiffs suggest these types of emails widely distributed to a number of recipients constitute communications that serve both business and legal purposes and therefore are not privileged."; "Defendants point out that the focus of the inquiry is not on whether the attorney is a direct or copied recipient of an email but rather upon whether the email was made for the purpose of securing legal advice or legal services, or conveying legal advice. The number of lawyers or non-lawyers to whom a communication is disseminated is not dispositive of whether the attorney-client privilege applies. In re Vioxx, 510 F. Supp. 2d 789, 799 (E.D. La. 2007). In corporate environments involving drug manufacturers -- who frequently are involved in product liability litigation and adversarial challenges by regulatory authorities -- in-house counsel are involved in coordinating the company's legal position, responding to issues from outside counsel and advising the company on legal strategies and actions that should or should not be taken with regard to both business and legal issues. The involvement of attorneys with business teams consisting of non-legal personnel is the norm in many corporations. The key question as to whether emails distributed among a business team are subject to the attorney-client privilege is dependent upon whether the attorney is providing legal advice even though the attorney may be a copyee of an email that also contains business advice."; "By way of example, drug manufacturers as part of their business deal with regulatory authorities concerning labeling issues for their drug products. Although labeling issues may involve a number of business issues, none of which would be protected by the attorney-client privilege, the request to an attorney and the attorney's advice concerning the legal ramifications of a decision regarding the label of a drug -- particularly where the drug manufacturer faces threatened or ongoing litigation -- would be subject to the attorney-client privilege. The bottom line is that simply because emails involve multiple recipients or even because some emails circulated among a business team may contain business advice, does not mean that legal advice requested and provided to the corporate decision makers is not privileged. It depends. In conducting the in camera inspection of the documents the Court has utilized these principles in determining whether an email is subject to the attorney-client privilege.")

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

key case


Chapter: 16.406
Case Name: Raynor v. G4S Secure Solutions (USA) Inc., Dkt. No. 3:17-cv-00160-FDW-DSC, 2017 U.S. Dist. LEXIS 190600 (W.D.N.C. Nov. 17, 2017)
("[M]ost of the communication in Exhibit 1 was between non-attorneys that was forwarded or copied to Defendant's in house counsel. The mere fact that in-house counsel was forwarded and copied on the emails and produced the document prior to any concern of litigation is insufficient to establish protection under either privilege.")

Case Date Jurisdiction State Cite Checked
2017-11-17 Federal NC

Chapter: 16.406
Case Name: Carr v. Lake Cumberland Regional Hosp., Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
(analyzing a hospital's investigation after an allegedly botched surgery; "Although the Hospital has not provided an affidavit as to Mr. Seraphine's [former hospital CEO] intent in drafting the 9:26 a.m. email, it is in direct response to at least one of Mr. Parker's [current hospital CEO] emails, and also directly includes in-house counsel Ms. Hendry [hospital's lawyer] as a recipient. For these reasons, the 9:26 a.m. email is also protected by attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY

Chapter: 16.406
Case Name: Carr v. Lake Cumberland Regional Hosp., Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
(analyzing a hospital's investigation after an allegedly botched surgery; "That facts contained within a privileged attorney-client communication are available through other discovery methods does not render the communication unprivileged. . . . Nevertheless, there is no indication that this memorandum was communicated to an attorney or another representative of the Hospital for the purposes of legal representation, or that any person conveying this memorandum intended for it to be confidential.")

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY

Chapter: 16.406
Case Name: Carr v. Lake Cumberland Regional Hosp., Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
(analyzing a hospital's investigation after an allegedly botched surgery; "Although the Hospital has not provided an affidavit as to Mr. Seraphine's [former hospital CEO] intent in drafting the 9:26 a.m. email, it is in direct response to at least one of Mr. Parker's [current hospital CEO] emails, and also directly includes in-house counsel Ms. Hendry [hospital's lawyer] as a recipient. For these reasons, the 9:26 a.m. email is also protected by attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY

Chapter: 16.406
Case Name: Greater New York Taxi Ass’n v. City of New York, No. 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017)
December 6, 2017 (PRIVILEGE POINT)

"How Do Courts Decide If Employees CC'ing a Lawyer are Implicitly Seeking Legal Advice?"

Electronic communications exacerbate judges' already difficult task of determining if employees copying lawyers on their communications with fellow employees are implicitly seeking legal advice – and thus deserve privilege protection. The increasing volume of emails understandably tempts judges to look only at the face of emails for employees' explicit requests for legal advice. And given the accelerating tempo of employees' electronic communications, those communications are increasingly cryptic.

In Greater New York Taxi Ass’n v. City of New York, No. 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017), Magistrate Judge Francis articulated a common-sense approach. He noted that courts hold "that communications constitute implicit requests for legal advice where an attorney is copied on the communications and the communications implicate specific legal issues." Id. at *3-4. He found that some emails defendant had redacted "fit into that framework" – because defendant's commissioners copied their general counsel when they communicated "about how to craft a new set of legal rules after a court invalidated their initial set of rules." Id. at *34-35. In contrast, Judge Francis rejected defendant's privilege claim for another email on which a commissioner had copied a lawyer – because "there is no indication that it solicits legal advice or implicates a specific legal issue." Id. at *36.

Wise lawyers train their corporate clients' executives and employees to explicitly seek legal advice when they want it, but Judge Francis's wise approach gives hope for privilege claims even in the absence of such explicit requests.

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

key case


Chapter: 16.406
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; "Courts have held that communications constitute implicit requests for legal advice where an attorney is copied on the communications and the communications implicate specific legal issues. Compare ADT Security Services, Inc. v. Swenson, No. 07-2983, 2010 U.S. Dist. LEXIS 74987, 2010 WL 2954545, at *5 (D. Minn. July 26, 2010) (emails concerning company's response to media coverage about pending lawsuit on which General Counsel was copied were attorney-client privileged as implicit requests for legal advice), and TNI Packaging, Inc. v. Perdue Farms, Inc., No. 05 C 2900, 2006 U.S. Dist. LEXIS 7774, 2006 WL 6654885, at *2 (N.D. Ill. Feb. 28, 2006) ('The suggested revision to the patent application [sent to the client's attorney] was [] an implicit request for legal advice on what should be included in the application.'), with Retail Brand Alliance, 2008 U.S. Dist. LEXIS 17746, 2008 WL 622810, at *2 (email sent to in-house counsel providing 'general corporate information' was not protected as implicit request for legal advice). The redacted emails here fit into that framework; TLC commissioners are communicating about how to craft a new set of legal rules after a court invalidated their initial set of rules, and the TLC's General Counsel was copied on the emails. Therefore, the defendants' attorney-client privilege redactions in Exhibit H are proper."; "The defendants argue that a single redacted email in the third email chain, attached as exhibit L to the plaintiffs' motion, is also protectable as an implicit request for legal advice. . . . The redacted email appears to consist of Mr. Yassky forwarding a conversation between himself and Mr. Freidman that covers a range of topics to a group of TLC employees. Although Ms. Joshi is copied on the email, there is no indication that it solicits legal advice or implicates a specific legal issue, unlike the redacted emails in Exhibit H. Therefore, the defendants have not met their burden to establish that the redacted email in Exhibit L is protected by the attorney-client privilege.")

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

key case


Chapter: 16.406
Case Name: Nucap Industries Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 U.S. Dist. LEXIS 135288 (N.D. Ill. Aug. 23, 2017)
("The court recognizes that distinguishing between business and legal advice can be difficult, but it appears Nucap adopted an overly cautious view of what constitutes privileged information. . . . For example, Nucap redacted portions of an email thread discussing contract terms in which general counsel, Jonathan Kielb, was copied. . . . It appears Kielb was included in the correspondence because the sender, Vince Butera, wanted his 'input,' along with the input of other non-attorney employees. However, copying an attorney does not make a communication privileged, and it is not apparent that the purpose of the email was to solicit legal advice as opposed to business advice. . . . In fact, as Bosch points out in its motion, Butera himself later characterized his email as one involving 'business issues' rather than legal issues.")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal IL
Comment:

key case


Chapter: 16.406
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
Comment:

key case


Chapter: 16.406
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: 16.406
Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)
(finding that defendants had properly logged and withheld documents, and that no in camera review is necessary; "[A]n attorney does not have to author the communication for privilege to attach, and likewise 'the fact that a corporate attorney is copied on an email, rather than appearing as a direct recipient, is not fatal to a claim of privilege.'. . . Here, the privilege log sufficiently demonstrates that counsel were included on the email for the purpose of receiving information to provide a legal opinion, and Plaintiffs have failed to provide a factual basis that would justify in camera review.")

Case Date Jurisdiction State Cite Checked
2017-05-26 Federal NC
Comment:

key case


Chapter: 16.406
Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "Log Entry 2480 is not privileged and should be produced in an unredacted version. The section of the email chain that is redacted copies an attorney (Jennifer McCabe), but does not discuss any legal issues. The email seeks 'initial reactions' for what appears to be a thirty second video (likely an advertisement), but it does not request legal advice from McCabe or discuss any legal issues. The main purpose of the email appears to be marketing SharkNinja products.")

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL

Chapter: 16.406
Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "Log Number 313 does not contain privileged information and should be produced. This document is an email attachment. SharkNinja provided the parent email to which this document was attached to allow the Court to understand the context of the attachment. The Court does not believe that the attachment contains privileged information. The body of the email states that the attachment is a 'presentation for a general sketch overview of the various NEW concepts we are pursuing at this time.' (EP0155435.) The email copies two attorneys, but does not generally relate to legal issues.")

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL

Chapter: 16.406
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: 16.406
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)
("While Mr. Sawers reports a recent incident and asks for follow-up, he does not seek legal guidance. Not every communication involving a lawyer will meet the definition of a privileged communication. . . . Moreover, a communication does not become privileged simply by including a lawyer in an e-mail chain and noting the communication as 'a request for legal direction.'. . . Indeed, it appears that Mr. Sawers put the header -- indicating that the e-mail was a request for legal advice -- in his March e-mail primarily because the header had appeared on the earlier e-mails discussing similar subject matter.").

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

Chapter: 16.406
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)
("Copying an attorney on an email does not necessarily render the communication privileged. Because the Court does not have sufficient information to determine whether GAF 815 is protected by the attorney-client privilege, it will inspect these two emails in camera.")

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

Chapter: 16.406
Case Name: United States v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 162680 (D.D.C. Nov. 20, 2014)
("In the first category of documents that the Court concludes are subject to disclosure, KBR attorneys were merely copied on or were added recipients of emails that were not sent for the purpose of seeking or providing legal advice. As noted above, in order for a communication to be sheltered by the attorney-client privilege, it must have a 'primary purpose' defined as 'one of the significant purposes' of either obtaining or providing legal advice. Parties, including corporations, may not shield otherwise discoverable documents from disclosure by including an attorney on a distribution list. Thus, the fact that an attorney either is copied on or is one of multiple recipients of an email does not on its own support a claim of attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-11-20 Federal DC

Chapter: 16.406
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)
("[T]he Court notes that the mere fact that Mr. Hunt [Lawyer] may have been copied on a given communication does not automatically transform the contents of that message into a privileged request for legal advice.")

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

Chapter: 16.406
Case Name: International Cards Co., Ltd. v. MasterCard International Inc., 13-CV-02576 (LGS) (SN), 2014 U.S. Dist. LEXIS 125370 (S.D.N.Y. Aug. 27, 2014)
("This email was sent from a businessperson to 11 businesspeople and one in-house attorney. It concerns a future meeting at which the participants planned to discuss items including 'business strategy in regards to ICC' and the 'financials of ICC.' Document 105 is predominantly a business document that does not evince any legal advice or legal matters. Therefore, Document 105 is not privileged and must be produced in its entirety.")

Case Date Jurisdiction State Cite Checked
2014-08-27 Federal NY

Chapter: 16.406
Case Name: International Cards Co., Ltd. v. MasterCard International Inc., 13-CV-02576 (LGS) (SN), 2014 U.S. Dist. LEXIS 125370 (S.D.N.Y. Aug. 27, 2014)
("Documents 565 and 710.1 are predominantly business communications sent from one businessperson to other businesspeople, with multiple other businesspeople and one in-house attorney copied in the 'cc' field. "'A corporation cannot be permitted to insulate its files from discovery simply by sending a 'cc' to in-house counsel.'")

Case Date Jurisdiction State Cite Checked
2014-08-27 Federal NY

Chapter: 16.406
Case Name: Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, Civil Action No. DKC 13-0031, 2014 U.S. Dist. LEXIS 88569, at *45-46 (D. Md. June 30, 2014)
("Although it is true that the Myers memo was sent to both legal and nonlegal personnel, one plausible conclusion from the evidence here is that the review by the nonlegal personnel was part of the overall effort to gather information needed by Mr. Kaminski to provide legal advice. The cases Plaintiff cites to support the proposition that merely copying an attorney on an email or forwarding him an email does not make the document privileged involved situations where the information at issue was not gathered for a primarily legal purpose.")

Case Date Jurisdiction State Cite Checked
2014-06-30 Federal MD

Chapter: 16.406
Case Name: Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, Civil Action No. DKC 13-0031, 2014 U.S. Dist. LEXIS 88569, at *48-49 (D. Md. June 30, 2014)
("In his declaration, Mr. Kaminski states that '[a]s the attorney responsible for drafting the Agreement for Discovery, I was soliciting comments and input from others at Discovery during this period for the purpose of providing legal advice as relates to the Agreement. I utilized Ms. Freeman in order to solicit necessary input in this regard, and as such Ms. Freeman copied me on her emails.' . . . . Mr. Kaminski acknowledges that while he was not copied on every email, all information solicited or obtained was done on his behalf and at his request for the purposes of drafting the Agreement and providing legal advice. . . . The evidence submitted does not indicate that Judge Day's conclusion that the October 2007 emails concern information requested by Mr. Kaminski to aid in his provision of legal services was clearly erroneous and Plaintiff's objection will be overruled.")

Case Date Jurisdiction State Cite Checked
2014-06-30 Federal MD

Chapter: 16.406
Case Name: Hamdan v. Indiana Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *9-10 (S.D. Ind. June 24, 2014)
(emphasizing the four corners of documents prepared during an investigation of a discrimination claim; "The redacted emails are HR focused and document at-the-moment analysis of the Plaintiff's situation authored by Hospital employees such as the chief medical officer, chief nursing officer, and representatives from the department in which Plaintiff worked. None of the redacted emails are sent directly to an attorney (attorneys are included via CC), nor are any of the redacted emails addressed to an attorney in the text of the messages. There is no request for legal advice in any of the redacted emails, nor is there any indication in any of the emails that the author initiated or created the message for the purpose of seeking advice from the attorneys. In fact, the only explicit mention of the attorneys by an author of a redacted email occurs when the chief medical officer indicates that the attorneys were copied so that one of them might attend a previously scheduled meeting.")

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

Chapter: 16.406
Case Name: Hamdan v. Indiana Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *14 (S.D. Ind. June 24, 2014)
(emphasizing the four corners of documents prepared during an investigation of a discrimination claim; "Simply copying attorneys on an email chain in order to keep them abreast of HR and other business-related occurrences does not transform the emails into an attorney's investigation with a built-in expectation of legal services to be rendered which would qualify for attorney-client privilege.")

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

Chapter: 16.406
Case Name: Hamdan v. Indiana Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *16-17 (S.D. Ind. June 24, 2014)
(emphasizing the four corners of documents prepared during an investigation of a discrimination claim; "[A]ttorneys are simply included on correspondence that was business-related and would have occurred regardless of the attorney's inclusion by CC. This is demonstrated by the authors addressing one another (not the attorneys) and discussing the HR implications of the situation with one another throughout the chain of emails rather than engaging in a discussion with the attorneys about the forthcoming tribunal referred to in Defendants' response brief. . . . In fact, within the emails themselves there is not a single mention of a forthcoming tribunal, and certainly no discussion between the attorneys and Hospital officials that would give Plaintiff undue access to attorney mental impressions or thought processes in anticipation of the tribunal that would be protected as work product. Simply copying attorneys on an email chain in order to keep them abreast of HR and other business-related occurrences does not transform the emails into the mental impressions and thought processes of the attorneys and qualify them for work product protection.")

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

Chapter: 16.406
Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *10-11 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "Thus, merely communicating with a lawyer or copying a lawyer on an otherwise non-privileged communication, will not transform the non-privileged communication or attachment into a privileged one. And that is so even if the otherwise non-privileged communication was at the behest of the lawyer.")

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

Chapter: 16.406
Case Name: Federal Housing Finance Agency v. HSBC North America Holdings Inc., 11 Civ. 6189 (DLC),11 Civ. 6190 (DLC),11 Civ. 6193 (DLC),11 Civ. 6198 (DLC),11 Civ. 6200 (DLC),11 Civ. 6201 (DLC),11 Civ. 7010 (DLC), 2014 U.S. Dist. LEXIS 46519 (S.D.N.Y. April 3, 2014)
("To the extent that the request for advice attaches business records created in the ordinary course of business, those business records do not become privileged because copies are also sent to counsel in connection with a request for advice. To the extent business records have been altered to assist counsel in providing advice, those altered business records are privileged.")

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

Chapter: 16.406
Case Name: Arfa v. Zionist Org. of Am., Case No. CV 13-2942 ABC (SS), 2014 U.S. Dist. LEXIS 26970, at *18-19 (C.D. Cal. Mar. 3, 2014)
("Consistent with the purpose of the attorney-client privilege, the Court finds that communications from ZOA executives (serving as agents for an attorney), referring to or repeating counsel's advice or recommendations, and Board members are protected from disclosure because these communications reflect confidential attorney-client communications. However, the mere 'cc-ing' of counsel on an email or the forwarding of an email to counsel does not extend the attorney-client privilege to an otherwise non-privileged document.")

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

Chapter: 16.406
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *19, *20 (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; analyzing two documents; "Plaintiff argues that even though Ms. Woodhouse is an attorney, the email does not explicitly seek legal advice and simply asks people to respond if they disagree with the approach set forth in the message. It is not clear whether Ms. Woodhouse was sent the email in her legal capacity, and Defendant did not submit a declaration from her."; "Ms. Woodhouse is among a large group of people copied on the e-mails and she is never mentioned in the body of the e-mails. Her legal opinion is neither requested nor given. The e-mail proposes that the regulatory group prepare a decision paper based on the key points discussed in the product category feedback document (addressed above). Defendant is correct that the document mentions the role of the guidelines as a potential legal defense, but there is no evidence that the document was prepared 'because of' the prospect of litigation; indeed, the transmittal e-mail and the underlying document are primarily focused on the 'science and technology' aspects of the natural claims. This document is not protected by the attorney-client privilege or by the work-product doctrine.")

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

Chapter: 16.406
Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *5-6 (M.D. Ga. Dec. 6, 2013)
("While Stifel's in-house counsel was copied on the email, information that is not otherwise privileged will not become so simply by being communicated to or filtered through an attorney.")

Case Date Jurisdiction State Cite Checked
2013-12-06 Federal GA B 5/14

Chapter: 16.406
Case Name: Warren v. Bastyr Univ., No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *4, *4-5 (W.D. Wash. May 17, 2013)
("Simply adding an attorney to a distribution list does not mean that the communication requests or reflects the advice of counsel."; "More fundamentally, defendant's privilege log identifies at least twenty emails between non-attorneys, with no indication that Mr. Burgon was involved at all. . . . Most of these emails are described as 'Forward of attorney-client communications from Steve Burgon.' The Court has no doubt that an employee who seeks the advice of counsel may forward the substance of that advice to others within the organization who have a need to know without losing its privileged character. It is not, however, clear that the underlying communications that are being forwarded are privileged. It is just as likely that they are simply business communications passed through the hands of counsel. This suspicion is heightened by the fact that one entry is specifically described as 'regarding legal advice from Steve Burgon,' which raises the obvious concern that the remaining entries do not, in fact, reflect legal advice.")

Case Date Jurisdiction State Cite Checked
2013-05-17 Federal WA B 3/14

Chapter: 16.406
Case Name: One Place Condo. LLC v. Travelers Prop. Cas. Co. of Am., No. 11 C 2520, 2013 U.S. Dist. LEXIS 28257, at *18-19 (N.D. Ill. Mar. 1, 2013)
("Mr. Sacks [in-house lawyer at Travelers] was clearly an intended recipient of those messages, and the mere fact that his email address was typed in the 'cc' field rather than the 'to' field is irrelevant.")

Case Date Jurisdiction State Cite Checked
2013-03-01 Federal IL B 3/14

Chapter: 16.406
Case Name: Spread Enters., Inc. v. First Data Merch. Servs. Corp., No. CV 11 4743 (ADS) (ETB), 2013 U.S. Dist. LEXIS 22307, at *5-6 (E.D.N.Y. Feb. 19, 2013)
("While Cohen [in-house lawyer] is an intended recipient or is included as a 'cc', among others, on all of these emails, 'the mere fact that a communication is made directly to an attorney, or an attorney is copied on a memorandum, does not mean that the communication is necessarily privileged.'" (citation omitted))

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

Chapter: 16.406
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 612 n.246 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "Communications among corporate representatives which are copied to an attorney are not eligible for attorney-client privilege protection, nor are they protected by the 'common legal interest' doctrine.")

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

Chapter: 16.406
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 592 n.176 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "Nor are communications which merely were copied to the attorneys at Akerman Senterfitt considered to be privileged; an e-mail sent between employees of an entity that is simply copied or forwarded to an attorney is not viewed as a legally privileged communication.")

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

Chapter: 16.406
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 652 (D. Nev. 2013)
("Unlike Joint Selection 14, Joint Selection 23 consists of several e-mails where Ms. Dunsmuir [defendant's Assistant General Counsel] is merely copied. The content of the e-mails do not appear to contain any advice given by Ms. Dunsmuir. Nor are any questions posed that could be interpreted as requesting legal advice. Accordingly, the court finds that Joint Selection 23 does not come within the attorney-client privilege, and is ordered to be produced to Plaintiff.")

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

Chapter: 16.406
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 659 (D. Nev. 2013)
("This e-mail, while sent directly to Janet Hudnall [Marketing Manager, Filters], copies Brian Leddin [lawyer], and specifically discusses a request for his advice about the forwarded e-mail. The court recognizes there are instances where simply copying an attorney does not bring the document within the attorney-client privilege, but here, in the context of this particular document, copying Mr. Leddin had the same effect as e-mailing him directly for advice. As such, the court finds that Joint Selection 42 comes within the attorney-client privilege and need not be produced.")

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

Chapter: 16.406
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *9-10 (E.D. Va. July 12, 2012)
("Scan-Optics, LLC and Scan-Optics, Ltd. claim that several documents exchanged between business persons are privileged. Attorneys were listed as copy recipients of those documents. The documents at issue are communications between business persons at the two companies relating to fees billed and amounts owed by Scan-Optics, Ltd. The fact that an attorney is copied on these emails does not make them about 'legal matters.' See Gould, Inc. v. Mitsui Min. & Smelting Co., 825 F.2d 676, 679-80 (2nd Cir. 1987); Isom v. Bank of Am., N.A., 177 N.C. App. 406, 411, 628 S.E.2d 458 (N.C. App. 2006).")

Case Date Jurisdiction State Cite Checked
2012-07-12 Federal VA

Chapter: 16.406
Case Name: Wierciszewski v. Granite City Ill. Hosp. Co., Case No. 11-cv-120-GPM-SCW, 2011 U.S. Dist. LEXIS 128772, at *4 (S.D. Ill. Nov. 7, 2011)
("[I]n this case it is clear from the content of the emails that counsel was not directing the investigation. Contrary to the arguments of Defendant, it appears from the emails presented in the privilege log that these emails constituted communications between Ron Payton and his supervisor, Bud Wood, regarding the investigation of and determination to ultimately terminate Plaintiff's employment. The context and content of the emails suggest that Bud Wood was directing the investigation, not attorney Rhea Garrett as argued by Defendant. While Defendant's general counsel was carbon copied (CC'd) on some of the emails, it appears from the context of the emails that Ron Payton and others were merely making attorney Garrett aware of the situation and were not emailing him for the purpose of seeking legal advice from counsel.")

Case Date Jurisdiction State Cite Checked
2011-11-07 Federal IL B 7/16

Chapter: 16.406
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008)
("Nor does the fact that Cintas' attorneys are carbon copied on the emails, nor do the various blanket 'privileged and confidential' labels attached without apparent regard to content.")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA

Chapter: 16.406
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008)
("Nor does the fact that Cintas' attorneys are carbon copied on the emails, nor do the various blanket 'privileged and confidential' labels attached without apparent regard to content."; "While document one is addressed to Cintas' counsel and labeled 'CONFIDENTIAL WORK PRODUCT', it appears to have been prepared by one of Cintas' administrators, there is absolutely nothing to indicate that it was prepared at the request of Cintas' counsel, and in addition to the attorney it is also addressed to two employees of Environ. The subject does not appear to be litigation, and Cintas has not addressed why they would be sharing litigation or trial preparation materials with another company. Document two is addressed to two of Cintas' attorneys, but it is also addressed to an Environ employee, and although it suggests litigation there is nothing to indicate that it was prepared in anticipation of litigation. Rather the subject appears to be the ongoing environmental remediation work, and when that work might be complete.")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA B 9/10

Chapter: 16.407
Case Name: Entrata, Inc. v. Yardi Systems, Inc., Case No. 2:15-cv-00102, 2018 U.S. Dist. LEXIS 149239, at *10 (D. Utah Aug. 30, 2018)
October 31, 2018 (PRIVILEGE POINT)

Court Criticizes Corporation's Sneaky "Tactic" to Avoid Discovery

Corporations claiming attorney-client privilege protection for their emails must prove that the emails were primarily motivated by their need for legal advice. Simply adding lawyers' names as direct or copy recipients does not assure protection. Lawyers must and clients should understand this – but some clients cannot avoid the temptation to withhold documents based on such steps.

In Entrata, Inc. v. Yardi Systems, Inc., the court noted that several emails "appear to be marked as privileged for no other reason than the fact that [lawyers] are recipients of the mail or are 'CCed' on the email." Case No. 2:15-cv-00102, 2018 U.S. Dist. LEXIS 149239, at *10 (D. Utah Aug. 30, 2018). The court rejected the privilege assertions for one email, because "nowhere in the email does anyone seek any legal advice." Id. The court also noted that "there was evidence that '[defendant] copied in-house-counsel [sic] on non-privileged communications as a tactic to avoid having emails discovered.'" Id. (internal citation omitted).

Lawyers should remind their clients: (1) to include requests for legal advice in the body of their emails seeking such advice; (2) that merely including lawyers as direct or copy recipients does not automatically assure privilege protection; and (3) that discussing or (especially) writing about adding lawyers "as a tactic to avoid having the emails discovered" may forfeit privilege protection even for legitimately protected documents, or worse.

Case Date Jurisdiction State Cite Checked
2018-08-30 Federal

Chapter: 16.407
Case Name: Basso v. New York University, 16-CV-7295 (VM) (KNF), 2018 U.S. Dist. LEXIS 126149 (S.D.N.Y. July 27, 2018)
("None of the e-mail messages in the string e-mail messages contained in Exhibit A contains a communication seeking or giving legal advice. Copying counsel on an e-mail message directed to an unidentified person does not establish that the: (1) communications contained in Exhibit A's e-mail messages are between the defendant and its counsel; (2) communications are intended to be, and in fact were, kept confidential; and (3) communications were made for the purpose of obtaining or providing legal assistance. . . . As the defendant acknowledges in its July 3, 2018 ex parte letter, Exhibit A contains 'internal communications among the highest level of administrators.' None of the communications is sent to or by the defendant's counsel; rather, counsel is only listed with the designation 'Cc,' signaling a copy recipient. Internal business communications by the defendant's high level administrators are not protected by the attorney-client privilege just because copies are sent to the defendant's counsel. The defendant failed to establish that the attorney-client privilege applies to the e-mail messages contained in the defendant's Exhibit A; thus, they must be disclosed to the plaintiffs.")

Case Date Jurisdiction State Cite Checked
2018-07-27 Federal NY

Chapter: 16.407
Case Name: Basso v. New York University, 16-CV-7295 (VM) (KNF), 2018 U.S. Dist. LEXIS 126149 (S.D.N.Y. July 27, 2018)
("Regardless of the font used to express counsel's comments, none of the paragraphs provide legal advice. In his e-mail message, dated 'Mon, Jan 20, 2014 at 9:30 AM,' Kenneth E. Tabachnick asked counsel to 'take a look and see if we have any comments' on 'the final draft (as I understand it) LOR for the Tisch Asia audit.' Comments are not legal advice, which is clear from counsel's responsive e-mail message, dated 'Tue, 21 Jan 2014 15:35:32:55 -0500.' Counsel's 'Comments below' include phrases reflecting uncertainty and ignorance about business practices and matters: (i) 'we should probably follow [PwC's] instructions'; (ii) 'I am not sure if I am authorized to sign'; (iii) 'Do we need to modify to leave open the possibility it will remain open longer?'; (iv) 'Not sure how to answer this, but would there be any reason to keep the campus open - not the outside production studios?'; (v) 'Not sure why this language is needed'; and (vi) 'I can reach out to PwC to inquire about this.' It is apparent from the content of counsel's 'Comments below' that the comments are business-related communications, including questions and uncertainties about business practices and matters, not legal advice provided based on counsel's legal education and experience. The defendant failed to establish that the attorney-client privilege applies to the e-mail messages contained in the defendant's Exhibit C; thus, they must be disclosed to the plaintiffs.")

Case Date Jurisdiction State Cite Checked
2018-07-27 Federal NY

Chapter: 16.407
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("It is true that 'simply copying a lawyer on an otherwise non[-]privileged communication will not transform the non-privileged document into a privileged one.'. . . On the other hand, courts have held that the attorney being in the CC, rather than To or From, column is not prima facie evidence that the email is not privileged. . . . The deciding issue is whether the communications sought legal advice from a lawyer, and the typical manner to resolve the dispute when the attorney is only copied on the communication is in camera review of the documents.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN
Comment:

key case


Chapter: 16.407
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "Deutsche Bank must produce ICN RER 002 1 00000095-0062. This communication is an email string between Deutsche Bank and Litton Loans employees concerning the status of two properties in litigation. There are no attorneys involved in this communication, and it does not seek or reveal legal advice. Rather, this communication is more akin to litigation management because its primary purpose is to update Deutsche Bank on hearing dates and the legal representative assigned to each case. The Court has directed that documents reflecting the management of litigation, as opposed to litigation strategies and advice, fall within the business communication category. Commerzbank A.G. v. Wells Fargo Bank, N.A., 15-CIV-10033 (KPF)(SN), ECF No. 368 at 2. Accordingly, this communication should be produced.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 16.407
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "Deutsche Bank must produce ICN STA_001_1_00000013-0950. This communication is a string of cover emails between Deutsche Bank employees that attach communications between attorneys at Nixon Peabody, outside counsel for Deutsche Bank. These cover emails do not reveal legal advice or counsel's impressions. Therefore, this communication is not privileged and should be produced.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 16.407
Case Name: AbbVie Inc. v. Boehringer Ingelheim Int'l GMBH, Civ. No. 17-cv-01065-MSG-RL, 2018 U.S. Dist. LEXIS 99809 (D. Del. June 14, 2018)
(focusing on a withheld document's content in rejecting privilege protection; "The slide has nothing to say about a legal issue, and is certainly not primarily or predominately legal in nature. The slide identifies 11 different projects as falling into '3 categories with distinct value propositions.' Legal services, considerations, and issues are never mentioned. The slide is not subject to the attorney-client privilege because AbbVie has not clearly demonstrated that legal issues predominate. The slide must be turned over unredacted.")

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

Chapter: 16.407
Case Name: AbbVie Inc. v. Boehringer Ingelheim Int'l GMBH, Civ. No. 17-cv-01065-MSG-RL, 2018 U.S. Dist. LEXIS 99809 (D. Del. June 14, 2018)
(focusing on a withheld document's content in rejecting privilege protection; "No legal concerns, questions, or issues are identified on the slide. Certainly none predominate. The slide is a summary of a 'brainstorm meeting' on October 4-5, 2010 designed to 'generate ideas to broaden our Humira patent estate in response to Biosimilars.' The presence of an attorney in a room full of employees brainstorming about new inventions does not convert everything said into privileged communications. Neither is a slide summarizing the results of the brainstorming meeting privileged because an attorney is sitting in on the slide presentation. The question is whether what was said at the conference - or on the slide - would not have been communicated 'but for the client's need for legal advice or services.' Louisiana Mun. Police Employees Retirement System, 253 F.R.D. at 306. The slide does not show this. AbbVie has not otherwise shown this. The slide is not subject to the attorney-client privilege and must be produced unredacted.")

Case Date Jurisdiction State Cite Checked
2018-06-14 Federal DE
Comment:

Key Case


Chapter: 16.407
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)
(rejecting plaintiff's privilege claim for employee-to-employee communication; "Item 364 is an email sent by a Motorola engineer to numerous other Motorola engineers. No lawyer was involved in the communication either as sender or recipient, or even as a person copied on the email. Legal advice was not sought, nor is any such advice revealed. . . . For Motorola none of this matters, because -- its lawyers assure us, with absolutely no evidentiary support -- that the email was the necessary first step in the obtaining legal advice. But, '[u]nfortunately . . . saying so doesn't make it so . . . .' . . . 'Lawyers' talk is no substitute for data.'. . . Little wonder that the courts are unanimous in requiring proof of assertions made in briefs.")

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

Chapter: 16.407
Case Name: Towner v. County of Tioga, Civ. A. No. 3:15-CV-0963 (GLS/DEP), 2018 U.S. Dist. LEXIS 30901 (N.D.N.Y. Feb. 27, 2018)
(holding that the privilege did not protect documents that did not relate to legal advice; "Although the email is between a client and her counsel, the communication is limited solely to a factual matter; no legal advice is mentioned, much less shared or otherwise conveyed between the parties. After a careful review of this email, the court finds that it is not shielded from disclosure by the attorney-client privilege, and must therefore be produced to plaintiff.")

Case Date Jurisdiction State Cite Checked
2018-02-27 Federal NY
Comment:

key case


Chapter: 16.407
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: 16.407
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: 16.407
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: 16.407
Case Name: Greater New York Taxi Ass’n v. City of New York, No. 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017)
December 6, 2017 (PRIVILEGE POINT)

"How Do Courts Decide If Employees CC'ing a Lawyer are Implicitly Seeking Legal Advice?"

Electronic communications exacerbate judges' already difficult task of determining if employees copying lawyers on their communications with fellow employees are implicitly seeking legal advice – and thus deserve privilege protection. The increasing volume of emails understandably tempts judges to look only at the face of emails for employees' explicit requests for legal advice. And given the accelerating tempo of employees' electronic communications, those communications are increasingly cryptic.

In Greater New York Taxi Ass’n v. City of New York, No. 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017), Magistrate Judge Francis articulated a common-sense approach. He noted that courts hold "that communications constitute implicit requests for legal advice where an attorney is copied on the communications and the communications implicate specific legal issues." Id. at *3-4. He found that some emails defendant had redacted "fit into that framework" – because defendant's commissioners copied their general counsel when they communicated "about how to craft a new set of legal rules after a court invalidated their initial set of rules." Id. at *34-35. In contrast, Judge Francis rejected defendant's privilege claim for another email on which a commissioner had copied a lawyer – because "there is no indication that it solicits legal advice or implicates a specific legal issue." Id. at *36.

Wise lawyers train their corporate clients' executives and employees to explicitly seek legal advice when they want it, but Judge Francis's wise approach gives hope for privilege claims even in the absence of such explicit requests.

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

key case


Chapter: 16.407
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; "Courts have held that communications constitute implicit requests for legal advice where an attorney is copied on the communications and the communications implicate specific legal issues. Compare ADT Security Services, Inc. v. Swenson, No. 07-2983, 2010 U.S. Dist. LEXIS 74987, 2010 WL 2954545, at *5 (D. Minn. July 26, 2010) (emails concerning company's response to media coverage about pending lawsuit on which General Counsel was copied were attorney-client privileged as implicit requests for legal advice), and TNI Packaging, Inc. v. Perdue Farms, Inc., No. 05 C 2900, 2006 U.S. Dist. LEXIS 7774, 2006 WL 6654885, at *2 (N.D. Ill. Feb. 28, 2006) ('The suggested revision to the patent application [sent to the client's attorney] was [] an implicit request for legal advice on what should be included in the application.'), with Retail Brand Alliance, 2008 U.S. Dist. LEXIS 17746, 2008 WL 622810, at *2 (email sent to in-house counsel providing 'general corporate information' was not protected as implicit request for legal advice). The redacted emails here fit into that framework; TLC commissioners are communicating about how to craft a new set of legal rules after a court invalidated their initial set of rules, and the TLC's General Counsel was copied on the emails. Therefore, the defendants' attorney-client privilege redactions in Exhibit H are proper."; "The defendants argue that a single redacted email in the third email chain, attached as exhibit L to the plaintiffs' motion, is also protectable as an implicit request for legal advice. . . . The redacted email appears to consist of Mr. Yassky forwarding a conversation between himself and Mr. Freidman that covers a range of topics to a group of TLC employees. Although Ms. Joshi is copied on the email, there is no indication that it solicits legal advice or implicates a specific legal issue, unlike the redacted emails in Exhibit H. Therefore, the defendants have not met their burden to establish that the redacted email in Exhibit L is protected by the attorney-client privilege.")

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

key case


Chapter: 16.407
Case Name: Nucap Industries Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 U.S. Dist. LEXIS 135288 (N.D. Ill. Aug. 23, 2017)
("The court recognizes that distinguishing between business and legal advice can be difficult, but it appears Nucap adopted an overly cautious view of what constitutes privileged information. . . . For example, Nucap redacted portions of an email thread discussing contract terms in which general counsel, Jonathan Kielb, was copied. . . . It appears Kielb was included in the correspondence because the sender, Vince Butera, wanted his 'input,' along with the input of other non-attorney employees. However, copying an attorney does not make a communication privileged, and it is not apparent that the purpose of the email was to solicit legal advice as opposed to business advice. . . . In fact, as Bosch points out in its motion, Butera himself later characterized his email as one involving 'business issues' rather than legal issues.")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal IL
Comment:

key case


Chapter: 16.407
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; "Communications between employees may be privileged in two circumstances. First, communications may be privileged when a corporate client shares information with non-attorney employees 'to relay information requested by attorneys.'"; "Second, communications between non-attorney corporate employees may be privileged when they were made 'for the purpose of securing legal advice.'"; "When the communication involves a document, for the court to find that the attorney-client privilege applies, the court must inspect the document and find that the primary purpose of the communication was to secure legal advice."; "A party can prove that the purpose of a communication was to seek legal advice by offering evidence that the communication was relayed to an attorney.")

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

Chapter: 16.407
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 7:57 a.m. email reflects that Dr. Weers told Ralph Navarrete about a specific request he made for legal advice to an attorney regarding the patent. The attorney-client privilege protects this exchange because, on its face, the email reflects that Dr. Weers communicated that he sought legal advice from a lawyer."; "In the 12:55 p.m. email, Baker seeks to redact a question from Mr. Navarrete to Dr. Weers about the effect of an expired patent on the enforceability of Baker's patent. In the email, Mr. Navarrete does not ask Dr. Weers to forward this question to counsel or state that that Mr. Navarrete intended to do so. Baker submitted Mr. Navarrete's affidavit in support of its position that the communication was privileged. Mr. Navarrete stated that he responded to Dr. Weers' email 'with a question I had for counsel concerning the scope of the 943 patent.'"; "Nothing in the email chain indicates that the question was to be proposed to counsel. . . . Even assuming Mr. Navarrete had such an unexpressed intent, Baker has not submitted evidence that the substance of this communication was in fact conveyed to an attorney.")

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

key case


Chapter: 16.407
Case Name: Nalco Co. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127, at *8 (S.D. Tex. July 18, 2017)
September 13, 2017 (PRIVILEGE POINT)

"Remember the Nitty-Gritty of Privilege Analyses: Part I"

Although attorney-client privilege claims often involve thorny legal issues, at some point a human being (usually a judge) may have to read the withheld documents and make privilege calls. In fact, judges must read withheld documents if they cannot make some global rulings based on privilege logs. Unfortunately, withheld documents now consist primarily of emails (1) whose increasing volume understandably tempts judges to primarily look for explicit privileged content on the face of the emails, and (2) whose cryptic nature make that task very difficult.

In United States v. Owensboro Dermatology Associates, P.S.C., the judge "completed a thorough in camera review" of withheld emails, and found that "each document predominantly involves legal advice." Civ. A. No. 4:16-mc-00003- to -00005-JHM, 2017 U.S. Dist. LEXIS 105099, at *16-17 (W.D. Ky. July 7, 2017). Several days later, the judge in Nalco Co. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127, at *8 (S.D. Tex. July 18, 2017), similarly upheld a privilege claim for an email between two employees, in which one referred to "a specific request he made for legal advice to an attorney."

Lawyers should remind their clients to (1) be careful what they write, because even a successful privilege assertion often will involve the judge reading the withheld document, (2) discipline themselves to state on the face of their emails when they are seeking legal advice (not just add a "privilege" header). Next week's Privilege Point will address a case in which in camera review dealt with a more subtle issue.

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

key case


Chapter: 16.407
Case Name: In re Residential Capital, LLC v. Certain Underwriters at Lloyd's of London, Ch. 11, Case No. 12-12020 (MG), Jointly Administered, Adv. No. 15-01025 (SHL), 2017 Bankr. LEXIS 1951 (S.D.N.Y. July 14, 2017)
("As the Court had previously suggested, the record here reflects that Sedgwick wore two hats: that of claims handler and legal counsel."; "Sedgwick's role as counsel is also supported by other contemporaneous evidence and sworn statements. For example, there was a specific request for legal advice.")

Case Date Jurisdiction State Cite Checked
2017-07-14 Federal NY

Chapter: 16.407
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; "Finally, the fact that certain documents may have been sent to many recipients has no bearing on their privileged character. Most of the emails about which Plaintiffs appear to be complaining were from attorneys seeking information from the various religious experts within the BOP 'to enable [the lawyer] to give sound and informed advice. . . . Other such emails are conveying legal advice to several of the many individuals involved in decision making at the BOP. . . . The emails show that the recipients are the 'employees who will put into effect'. . . the legal advice rendered. . . . Emails in both categories -- those seeking information and those providing legal advice -- are clearly privileged.")

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

key case


Chapter: 16.407
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: 16.407
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
Comment:

key case


Chapter: 16.407
Case Name: United States v. Owensboro Dermatology Associates, P.S.C., Civ. A. No. 4:16-mc-00003- to -00005-JHM, 2017 U.S. Dist. LEXIS 105099, at *16-17 (W.D. Ky. July 7, 2017)
September 13, 2017 (PRIVILEGE POINT)

"Remember the Nitty-Gritty of Privilege Analyses: Part I"

Although attorney-client privilege claims often involve thorny legal issues, at some point a human being (usually a judge) may have to read the withheld documents and make privilege calls. In fact, judges must read withheld documents if they cannot make some global rulings based on privilege logs. Unfortunately, withheld documents now consist primarily of emails (1) whose increasing volume understandably tempts judges to primarily look for explicit privileged content on the face of the emails, and (2) whose cryptic nature make that task very difficult.

In United States v. Owensboro Dermatology Associates, P.S.C., the judge "completed a thorough in camera review" of withheld emails, and found that "each document predominantly involves legal advice." Civ. A. No. 4:16-mc-00003- to -00005-JHM, 2017 U.S. Dist. LEXIS 105099, at *16-17 (W.D. Ky. July 7, 2017). Several days later, the judge in Nalco Co. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127, at *8 (S.D. Tex. July 18, 2017), similarly upheld a privilege claim for an email between two employees, in which one referred to "a specific request he made for legal advice to an attorney."

Lawyers should remind their clients to (1) be careful what they write, because even a successful privilege assertion often will involve the judge reading the withheld document, (2) discipline themselves to state on the face of their emails when they are seeking legal advice (not just add a "privilege" header). Next week's Privilege Point will address a case in which in camera review dealt with a more subtle issue.

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

key case


Chapter: 16.407
Case Name: Haynes v. Indiana Univ., No. 1:15-cv-01717-LJM-DKL, 2017 U.S. Dist. LEXIS 104991 (S.D. Ind. July 7, 2017)
("These e-mails do not qualify for protection under either the attorney-client privilege or the work-product doctrine. The mere fact that an author of a communication is an attorney, that recipients (direct or copied) are attorneys, or that the communication addresses a subject that is or later became the subject of an attorney's legal advice, do not qualify a communication as privileged. These e-mails do not communicate legal advice from an attorney to a client or information from a client to an attorney for the purpose of obtaining legal advice. Their disclosure would not tend to reveal any confidential attorney-client communications. Likewise, the e-mails do not qualify as work product because there is no indication that they were generated in anticipation of litigation (as opposed to, for example, fulfilling the statutory duty to respond to a public records request) or that they were developed in order to prepare for litigation.")

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

key case


Chapter: 16.407
Case Name: Boltz v. United Process Controls, Civ. A. No. 1:16-cv-703, 2017 U.S. Dist. LEXIS 102913 (S.D. Ohio June 23, 2017)
(in connection with employees claim that he was wrongfully terminated, finding that the communications did not deserve attorney-client privilege protection; "Here, the in camera review of the emails does not indicate that the primary purpose and/or dominant intent of the communication was to seek legal advice. . . . As noted above, the emails were written by and sent to non-attorney corporate employees relating to questions surrounding Eric Boltz' injury, health insurance, short and long term disability coverage."; "The fact that such information was later shared with counsel does not invoke the privilege.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal OH
Comment:

key case


Chapter: 16.407
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: 16.407
Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "Log Entry 1592 is not privileged and should be produced in an unredacted version. The section of the email chain that is redacted copies an attorney (Jennifer McCabe), but does not discuss any legal issues. The subject matter being discussed relates to the performance of certain SharkNinja products, and no legal issues are mentioned at all.")

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL

Chapter: 16.407
Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "Log Entry 2480 is not privileged and should be produced in an unredacted version. The section of the email chain that is redacted copies an attorney (Jennifer McCabe), but does not discuss any legal issues. The email seeks 'initial reactions' for what appears to be a thirty second video (likely an advertisement), but it does not request legal advice from McCabe or discuss any legal issues. The main purpose of the email appears to be marketing SharkNinja products.")

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL

Chapter: 16.407
Case Name: Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. Apr. 5, 2017)
June 7, 2017 (PRIVIELGE POINT)

"Court Offers Rare Good News and a Helpful Hint about Effective Privilege Logs"

Plaintiffs suing document-laden corporate defendants often try to make privilege log mistakes into a destructive side show.

In Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. Apr. 5, 2017), the court acknowledged that defendant had made privilege log mistakes and withheld some unprotected documents. But the court refused plaintiff's request for a Special Master's appointment – noting that defendant's over-designation was not "a systemic problem," and that "it appears to the Court that this is simply the type of human error that will necessarily occur when a large document review and production is undertaken." Id. at *15. The court's review of some withheld documents also provided a helpful hint about how lawyers and their corporate clients can maximize their chance of winning privilege fights. The court held that an email seeking "'initial reactions'" to what was likely an advertisement was not privileged, although a lawyer received a copy. Id. at *7 (internal citation omitted). The court noted that the email "does not request legal advice from [the lawyer] or discuss any legal issues." Id.

Some courts' refreshingly realistic approach to privilege log errors should encourage corporate defendants. But those defendants should train their employees seeking legal advice to explicitly request it in communications – because even tolerant courts often protect only those documents which demonstrate their primarily legal purpose on their face.

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL
Comment:

key case


Chapter: 16.407
Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Exhibit 12 is an email chain discussing an investor's request for servicer compliance certificates of certain trusts for which Wells Fargo served as the trustee. In responding to the investor's request, Wells Fargo employees discussed how best to interpret a section of the governing agreements that allowed for the trustee to provide periodic or special servicing reports to certificateholders, and referenced and cited advice from internal counsel on how to construe the agreements' language. Based on the counsel's advice, the Wells Fargo employees formulated a response to the investor's request."; "As with Exhibit 10, Exhibit 12 should be produced in redacted form. Much of the email chain consists of communications among Wells Fargo personnel as to the facts of the investor's request and should be produced. The March 3, 2009 email sent at 5:58 PM, however, references in-house counsel's advice as to whether the compliance documents should be provided to the investor, based on counsel's interpretation of the servicing agreement, and is therefore privileged. . . . Also privileged are the two emails sent after the 5:58 PM email, in which the Wells Fargo employees discuss how to proceed in light of in-house counsel's interpretation. Accordingly, Wells Fargo should redact the March 3, 2009 email sent at 5:58 pm and the two subsequent emails, and produce the rest of the email chain.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 16.407
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: 16.407
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 involves CYC revenue in a year-to-year comparison."; "While an attorney -- Mr. Moodliar -- is copied on the document, it could only be for 'business' and not legal purposes. Indeed, the Subject of the email is 'DCC – Revenue Decrease.'")

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

Chapter: 16.407
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: 16.407
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: 16.407
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 does not expressly refer to any attorney's legal advice, nor is it sent to or from an attorney.")

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

key case


Chapter: 16.407
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."; "As with the last document, it does not include or reference an attorney or legal advice."; "Moreover, the mere inclusion of Mr. Moodliar [Lawyer] earlier in the email chain is irrelevant, as merely copying an attorney on an email is insufficient to establish the attorney-client privilege.")

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

key case


Chapter: 16.407
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: 16.407
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 196 is an email from Mr. Press [Plaintiff's President] to Mr. Berlinski forwarding a cover email from Attorney Wolf to Mr. Press, with an attachment of Attorney Wolf's summary of a meeting with YKK."; "While it does not contain substantial information, Document 196 is a direct communication from attorney to client instructing client to view the attachment (Document 197), and is thus privileged.")

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

Chapter: 16.407
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 296 is an email from Mr. Berlinski [Plaintiff's CEO and Chairman of the Board] to Mr. Press that copies a conversation between Mr. Press [Plaintiff's President] and Attorneys Wolf and Coury concerning prosecution of a patent application in Japan. The attorney-client communications refer to legal strategy, and the discussion of such information among senior executives at a corporation represented by counsel is privileged. Accordingly, the document is subject to attorney-client privilege and does not need not be produced.")

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

Chapter: 16.407
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)
("After in camera review of the document, the Court finds that it does not reference the contents of discussions with Attorney Martino; rather it references a request that Mr. Berlinski [Plaintiff's CEO and Chairman of the Board], a non-attorney, had made of Mr. Press [Plaintiff's President, also a non-attorney, which was non-legal in nature and did not incorporate Mr. Martino's advice and counsel. Accordingly, the email is subject to neither the attorney-client privilege nor the work product doctrine and should be produced.")

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

Chapter: 16.407
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 2 is an email from Jack Sasaki, a non-attorney, to 22 recipients, one of whom is Katsu Yumoto, a non-attorney 'legal coordinator' who reported to attorney John Castellano. The document includes a reference to needing to request a legal opinion, and refers to a future meeting with YKK's U.S. legal team."; "The Court finds that this is a business communication that does not request legal advice from an attorney, provide legal advice, or disseminate legal advice already given by an attorney among non-attorney employees of a corporation. To the degree that legal issues are referenced, the document only states, to a broad audience of non-attorneys, that the relevant department has the intention of requesting legal advice in the future.")

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

key case


Chapter: 16.407
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("Plaintiffs express concern that Fluidmaster was copying Carroll on communications to allow it to assert the attorney-client privilege in instances where the privilege would not otherwise apply. That is not the impression the Court gets from reviewing these document entries assuming the document descriptions are accurate. Plaintiffs' suspicions do not rise to the level of concrete facts that would justify the wholesale in camera review of all communications between Carroll and Fluidmaster employees about the settlement of claims which is ultimately what Plaintiffs want to accomplish here.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL
Comment:

key case


Chapter: 16.407
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("California's attorney-client privilege simply does not differentiate 'between 'factual' and 'legal' information.'. . . The 'privilege equally attaches to both 'legal' and 'factual' information or advice exchanged between the attorney and client.'. . . In fact, the privilege may extend to 'communications that merely transmit documents,' even if those documents are publicly available. . . . All of this means that the privilege protects the transmission of information 'regardless of their content.'")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 16.407
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("[T]he Court will uphold Boehringer's assertion of the attorney-client privilege. Only a few documents reflect express requests for or provision of legal advice. Rather, as might be surmised from the discussion above, most of the documents are mere compilations of facts. Yet factual material compiled during a corporation's internal investigations is analyzed differently under the work-product doctrine and the attorney-client privilege. For the attorney-client privilege, unlike the work-product doctrine, facts collected at counsel's request for later use in providing legal advice are protected. Moreover, the Court of Appeals has endorsed a liberal standard for finding that a communication falls within the attorney-client privilege, finding that a communication should be protected if 'obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.' In re Kellogg, 756 F.3d at 756 [In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757-60, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)]. While Boehringer's documents may have had some business purposes, it is equally clear that one of their significant purposes was to enable Persky and her co-counsel to give Boehringer legal advice.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 16.407
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("Context matters here. While the documents do not reflect express requests for or provision of legal advice, they were created during the Boehringer-Barr settlement talks in the context of their ongoing lawsuit. As such, one of their primary purposes was to enable Boehringer's counsel to advise it on how to settle the complex, interlocking lawsuits pending at the time. . . . The prevalent legal overtones in these documents, combined with the fact that Boehringer attorneys requested these analyses, satisfies the Court that these were not mere business documents which Boehringer attempted to protect by providing a copy to counsel.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 16.407
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("This document is another email chain, this time involving Persky [Defendant's Senior Vice President, General Counsel, and Secretary] and Boehringer executives. Persky opens the conversation by relaying a settlement offer from Barr and her reactions to it. Boehringer executives then relay their assessments of the settlement proposal. This document . . . is the kind of document the attorney-client privilege was meant to protect -- a communication between attorney and client regarding litigation strategy based on information kept confidential between them. This document is therefore privileged.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 16.407
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("This is an email from one Boehringer business executive to another. In it, the author reports certain information that the recipient had requested. The author's information was apparently gleaned from two financial analyses attached to the email. There is no request for or provision of legal advice in this email. Nevertheless, Boehringer represents that this document '[was] prepared to inform [its] attorneys, including the general counsel as well as other attorneys representing [Boehringer], of facts relevant to the analysis of the legal issues involved in the litigation or the settlements.' See Boehringer's Resp. to July 12, 2016 . . . . The Court finds that this document should be protected because disclosure would reveal the facts transmitted to the attorneys from the Boehringer businesspeople which enabled counsel to give the corporation legal advice. . . . Accordingly, the email is privileged in its entirety.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 16.407
Case Name: Velsicol Chemical, LLC v. Westchester Fire Insurance Co., No. 15 C 2534, 2016 U.S. Dist. LEXIS 109736 (N.D. Ill. Aug. 18, 2016)
("The third document, dated 11/18/14 and described as 'policy analysis,' was sent to, among other people, one of defendant's lawyers. However, there is no indication that it solicited or contains any legal advice, or that it is anything other than an ordinary course business document. Therefore, it must be produced.")

Case Date Jurisdiction State Cite Checked
2016-08-18 Federal IL

Chapter: 16.407
Case Name: Carlin v. Dairy America, Case No. 1:09-cv-430 AWI-EPG, 2016 U.S. Dist. LEXIS 108737 (E.D. Cal. Aug. 16, 2016)
(holding that defendant's spreadsheet about possible damages was not privileged, but deserved work product protection which the plaintiff could overcome; declining to allow the inadvertently produced spreadsheet to be clawed-back by the defendant; "Here, the spreadsheet consists of factual data maintained by Dairy America, albeit data that was gathered based on an attorney's request. The document does not contain communications seeking or giving legal advice. The spreadsheet is merely a compilation of data related to sales and pricing that was transmitted to an attorney for a work-product purpose. It does not contain any request from a client, nor any advice -- or indeed any response at all -- from an attorney. Accordingly, the document is not protected under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-08-16 Federal CA

Chapter: 16.407
Case Name: Fosbre v. Las Vegas Sands Corp., Case No. 2:10-cv-00765-APG-GWF Consolidated with: Case No.: 2:10-cv-01210-APG-GWF, 2016 U.S. Dist. LEXIS 5422 (D. Nev. Jan. 14, 2016)
("Whether a particular communication was primarily for the purpose of obtaining or providing legal advice can only be determined by evaluating the communication itself. . . . The Court will grant limited in camera review to determine whether the privilege is or is not being properly asserted.")


Case Date Jurisdiction State Cite Checked
2016-01-14 Federal NV
Comment:

key case


Chapter: 16.407
Case Name: 01 Communique Laboratory, Inc. v. Citrix Systems, Inc., Case No. 1:06-cv-253, 2016 U.S. Dist. LEXIS 3011 (N.D. Ohio Jan. 10, 2016)
(focusing on the four corners of a document in determining that the privilege applied; "The Court conducted its own in camera review of Privilege Log Entry No. 98. That review confirms the magistrate judge's conclusion that within the email at issue, Citrix seeks legal advice from its counsel regarding litigation strategy for this case.")

Case Date Jurisdiction State Cite Checked
2016-01-10 Federal OH

Chapter: 16.407
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("[C]ounsel's role in these documents is unclear where the documents were not prepared by or sent to counsel. Although Siatis's [In-house lawyer] declaration asserted that the privilege should apply, it does not provide any additional information to help the court understand counsel's role.")

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

Chapter: 16.407
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("Taking documents 22 and 23 first, according to the privilege log, they were created by a non-attorney employee and sent to Siatis [In-house lawyer] and two other in-house counsel. By declaration, Siatis has claimed that the redacted portion contains a request for legal advice addressed to the legal department. We disagree.")

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

key case


Chapter: 16.407
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("AbbVie has not met its burden to demonstrate that the August 9, 2011 email to Siatis [In-house lawyer] is privileged. Although Siatis claimed by sworn declaration that the email was a request for legal advice, AbbVie has not provided any supporting information that would allow the court to reach the same conclusion. The attorney-client privilege does not apply to every communication between corporate counsel and corporate employees."; "Here, an AbbVie non-lawyer employee alerted in-house counsel that 'we ought to consider a regulatory strategy.' Based on the information in the record about the nature of this request, the court does not find that this communication sought legal advice. As a participant in a highly-regulated industry, a pharmaceutical company must consider regulatory matters in making nearly all of its business decisions.")

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

key case


Chapter: 16.407
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: 16.407
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
February 24, 2016 (PRIVILEGE POINT)

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

In nearly every court, the attorney-client privilege protects intra-corporate communications only if their "primary purpose" was the corporation's need for legal advice. How do courts apply this standard? One might think that companies' lawyers can simply file affidavits confirming under oath that clients' communications to them sought legal advice, and that their communication to clients contained or reflected their legal advice.

In FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015), the court dealt with three documents corporate employees sent to an in-house lawyer. The court rejected privilege protection for all the documents. For one, it explained that "[a]lthough [an in-house lawyer] claimed by sworn declaration that the email was a request for legal advice, AbbVie has not provided any supporting information that would allow the court to reach the same conclusion." Id.at *26. For the other two documents, the court similarly explained that "[b]y declaration, [the in-house lawyer] has claimed that the redacted portion contains a request for legal advice addressed to the legal department. We disagree." Id. At *31. In addition to the court's troubling conclusion that the in-house lawyer filed a false affidavit, the court's holding highlights the importance of corporate employees explicitly articulating their communications' legal purpose. Later affidavits failed to make up for the absence of such contemporaneous privilege indicia.

Lawyers should not only train their clients on this issue, they should themselves remember this lesson when communicating to their clients. Next week's Privilege Point will address the same court's rejection of an outside lawyer's privilege claim for his report to a client.

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

key case


Chapter: 16.407
Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 U.S. Dist. LEXIS 157752 (D. Kansas Nov. 23, 2015)
("In this case, the Court has reviewed the sixteen privilege log entries challenged by Plaintiff and concludes that Defendant has established the elements of attorney-client privilege. The log indicates that the withheld emails, Word documents, or Excel documents were either authored by or sent to Defendant's counsel or Defendant's in-house counsel, and the subject of the communication was Plaintiff's allegations and Defendant's investigation. Although the log entries do not expressly state that the withheld emails and documents were for the purpose of seeking legal advice, Defendant attached the Affidavit of its counsel . . . In which counsel states that the materials set forth in Defendant's privilege log asserting attorney-client privilege 'were communications between counsel for [Defendant] and [Defendant] for the purpose of seeking legal advice.' Defendant has sufficiently established the attorney-client privilege applies to these documents.")

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

Chapter: 16.407
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(analyzing communications between Ford and CRA; "Document number 2755, however, is a draft memorandum 'prepared at the request of counsel' and sent to James VanAssche Nicole Rathbun Shanks and Douglas Gastrell, none of whom appear to be attorneys. . . . Even though this document may have been created at the request of counsel, it was not sent to or from counsel for the purpose of seeking legal advice. While such a document may be protectable as work product, CRA did not claim such protection in its privilege log. Protection of this document is inappropriate under the attorney-client privilege. Therefore, the Court will grant Defendant's Motion with regard to this document.")

Case Date Jurisdiction State Cite Checked
2015-10-27 Federal MI

Chapter: 16.407
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

Chapter: 16.407
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)
("While Mr. Sawers reports a recent incident and asks for follow-up, he does not seek legal guidance. Not every communication involving a lawyer will meet the definition of a privileged communication. . . . Moreover, a communication does not become privileged simply by including a lawyer in an e-mail chain and noting the communication as 'a request for legal direction.'. . . Indeed, it appears that Mr. Sawers put the header -- indicating that the e-mail was a request for legal advice -- in his March e-mail primarily because the header had appeared on the earlier e-mails discussing similar subject matter.").

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

Chapter: 16.407
Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("Document Nos. 1 and 4-A are facsimile cover sheets to and from Tamblyn and Gerner, which qualify as privileged attorney-client communications. The cover sheets consist of the typical form of privileged documents -- confidential communications from a client to an attorney for the purpose of receiving legal advice. . . . Indeed, both documents include a request by Tamblyn for legal advice . . . or a reference to Tamblyn's request for legal advice . . . from Gerner in his capacity as an attorney with the communication relating to that purpose under the express condition of confidentiality and there is no evidence of waiver. . . . Document Nos. 1 and 4-A are therefore privileged and protected from disclosure.")

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

Chapter: 16.407
Case Name: Shipyard Assocs., L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927, at *23 (D.N.J. Aug. 3, 2015)
("[T]he Court has reviewed the samples submitted, and has upheld the privilege only when facially apparent from a review of the document.").

Case Date Jurisdiction State Cite Checked
2015-08-03 Federal NJ

Chapter: 16.407
Case Name: Shipyard Associates, L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927 (D.N.J. Aug. 3, 2015)
("[T]he Court has reviewed the samples submitted, and has upheld the privilege only when facially apparent from a review of the document.")

Case Date Jurisdiction State Cite Checked
2015-08-03 Federal NJ

Chapter: 16.407
Case Name: Roberts Tech. Grp., Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779, at *5 (E.D. Pa. July 20, 2015)
("[W]e cannot preclude production of internal communications between employees relating to collection activities and discussions with Plaintiff's business persons simply because counsel claims they relate to some unidentified legal advice not evident on the documents.").

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal PA

Chapter: 16.407
Case Name: Roberts Technology Group, Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015)
("[T]he presently withheld communications with counsel not referencing legal advice but updating business initiatives, such as past billing history, are not privileged. Based on this record, we cannot preclude production of internal communications between employees relating to collection activities and discussions with Plaintiff's business persons simply because counsel claims they relate to some unidentified legal advice not evident on the documents.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal PA

Chapter: 16.407
Case Name: Stryker Corporation v. Ridgeway, Case No. 1:13-CV-1066, Case No. 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741 (W.D. Mich. July 20, 2015)
("Ridgeway's assertion that some of the emails were not between attorneys was not sufficient, in and of itself, to suggest that Stryker's assertion of privilege was improper. . . . In the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee's corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal MI
Comment:

key case


Chapter: 16.407
Case Name: Roberts Technology Group, Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015)
("Here, we agree communications between Curwood (including its management or employees) with its in-house counsel seeking and providing legal advice are privileged. . . . These communications are privileged when Curwood's documents evidence their in-house counsel's advice or otherwise reflect counsel's involvement in decisions relating to legal matters, even if the communication is between two members of Curwood's management.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal PA
Comment:

key case


Chapter: 16.407
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)
("In this string of emails, Shire asserts that a non-attorney employee solicits and receives legal advice from the Shire legal team. However, review of the document reveals no such advice was solicited, nor was any given. In fact, no attorneys are even carbon copied in the email chain for four out of the six emails. And in the emails in which counsel are copied, no communication is directed at them with regard to legal advice or concerns. Accordingly, Shire's assertion of privilege over large swaths of this email chain should be overruled.")

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

Chapter: 16.407
Case Name: Frickey v. Kobelco Stewart Bolling, Inc., Civ. A. No. 14-2 Sec. "I" (2), 2015 U.S. Dist. 27264 (E.D. La. March 5, 2015)
(finding that Dow's post-accident root cause analysis did not deserve privilege protection; noting Dow had already produced all witness statements and factual documents collected during the investigation, despite an in-house lawyer's involvement in the investigation; "Every page of the Root Cause Investigation report is marked 'attorney-client privileged.' The second page states that the report is an attorney-client communication that was prepared for the purpose of obtaining legal advice and notifies recipients that they may not disseminate it without permission from Dow Legal or Eddlemon. . . . The report contains no other references to law, legal advice or litigation. It includes factual analyses of the root causes that led to the accident and action items to address the identified causes. None of the action items are assigned to Eddlemon. The final page summarizes what has been learned and makes a few recommendations for what appear to be longer term actions."; "I find that Eddlemon's affidavit and the Root Cause Investigation report contain only conclusory and self-serving allegations about attorney-client privilege. Viewed in light of the overall content of the report, these allegations fail to carry Dow's burden to prove that the report was not prepared in the ordinary course of business of investigating an accident.")

Case Date Jurisdiction State Cite Checked
2015-03-05 Federal LA
Comment:

key case


Chapter: 16.407
Case Name: Havel v. Dentsu McGarry Bowen UK Ltd., Civ. A. No. H-13-1291, 2014 U.S. Dist. LEXIS 181327 (S.D. Tex. Jan. 29, 2015)
(holding that the privilege protected some documents among non-lawyers preparing to present a question to a lawyer; "The defendants argue that the four emails are protected because they were made in preparation for consultations with attorneys. After careful in camera review, the court agrees in part. The 'dominant intent' of three out of four emails was 'to prepare the information in order to get legal advice from the lawyer.'"; "'The plaintiffs argue that the lack of any contemporaneous email communication with counsel documented in the privilege log prevents the defendants from asserting privilege as to these emails. But the defendants' log shows that they eventually communicated with counsel, and they may have communicated even sooner in a different medium.'")

Case Date Jurisdiction State Cite Checked
2015-01-29 Federal TX

Chapter: 16.407
Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. 2015)
(focusing on the four corners of a document in denying privilege protection; "Privilege Log Number 2 involves the discussion of a settlement of plaintiff's debts. Like Privilege Log Number 1, this communication is not protected by the privilege because it does not involve a request for, or provision of, legal advice. Rather, it constitutes a part of defendant’s ordinary debt collection activities.")

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal DC

Chapter: 16.407
Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. 2015)
("Privilege Log Number 3 includes an email from defendant to Sunrise regarding a request for a breakdown of Arrowood's settlement offer made by plaintiff’s counsel. Here, like Privilege Log Numbers 1 and 2, this communication involves no legal judgment or advice. Rather, in this instance, defendant is merely a pass-through for factual information between plaintiff and Arrowood.")

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal DC

Chapter: 16.407
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: 16.407
Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *12 (D. Conn. Sept. 2, 2014)
("The Court finds that these emails are not protected by the attorney-client privilege. Although Attorney Duhl received the February 1 email, there is no implicit request for legal advice apparent from its contents, nor does it appear to have been sent for the purpose of providing factual information for the purposes of future legal advice. Moreover, the email appears solely directed to Ms. Calderon. Just because Attorney Dulh received the February 1 email does not make it privileged. Indeed, what defendant neglects to consider is that the attorney-client privilege does not necessarily attach to all communications between a client and his or her attorney.")

Case Date Jurisdiction State Cite Checked
2014-09-02 Federal CT

Chapter: 16.407
Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *13 (D. Conn. Sept. 2, 2014)
("[T]he emails are not to or from an attorney. Second, the emails do not divulge the substance of any legal advice, or a substantive request for legal advice.")

Case Date Jurisdiction State Cite Checked
2014-09-02 Federal CT

Chapter: 16.407
Case Name: Williams v. Duke Energy Corp., Civ. A. 1:08-cv-00046, 2014 U.S. Dist. LEXIS 109835 (S.D. Ohio Aug. 8, 2014)
("Documents prepared and emailed for review by both legal and nonlegal employees are often held to be not privileged because the communications were not made for the primary purpose of seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2014-08-08 Federal OH

Chapter: 16.407
Case Name: Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, Civil Action No. DKC 13-0031, 2014 U.S. Dist. LEXIS 88569, at *48-49 (D. Md. June 30, 2014)
("In his declaration, Mr. Kaminski states that '[a]s the attorney responsible for drafting the Agreement for Discovery, I was soliciting comments and input from others at Discovery during this period for the purpose of providing legal advice as relates to the Agreement. I utilized Ms. Freeman in order to solicit necessary input in this regard, and as such Ms. Freeman copied me on her emails.' . . . . Mr. Kaminski acknowledges that while he was not copied on every email, all information solicited or obtained was done on his behalf and at his request for the purposes of drafting the Agreement and providing legal advice. . . . The evidence submitted does not indicate that Judge Day's conclusion that the October 2007 emails concern information requested by Mr. Kaminski to aid in his provision of legal services was clearly erroneous and Plaintiff's objection will be overruled.")

Case Date Jurisdiction State Cite Checked
2014-06-30 Federal MD

Chapter: 16.407
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)
July 23, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part III"

Last week's Privilege Point described the District of Columbia Circuit Court of Appeals' articulation of a privilege standard very favorable to companies conducting internal investigations. In In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014), the appeals court also found the privilege applicable despite involvement of nonlawyers in conducting interviews, and those interviewers' failure to give interviewed employees the classic Upjohn warnings or confidentiality agreements mentioning legal advice.

Commentators applauding the D.C. Circuit's decision generally overlook an equally significant issue -- what the court did not say. The lower court's rejection of Kellogg Brown & Root's (KBR) privilege claim also rested on the absence of any request for or offering of legal advice in the investigation's email message traffic, and on the investigation report's failure to request legal advice or identify "possible legal issues for further review." United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866, at *6 (D.D.C. Mar. 11, 2014). The appeals court upheld KBR's privilege claim despite these factors -- thus implicitly rejecting many courts' increasingly common exclusive focus on withheld documents' four corners in rejecting privilege claims. See, e.g., A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2014 U.S. Dist. LEXIS 20859, at *8 n.1 (D. Conn. Feb. 19, 2014) (denying a privilege claim because "[t]here is no legal advice requested, explicitly or implicitly, in the cover letter"); Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *6 (M.D. Ga. Dec. 6, 2013) (denying a privilege claim because emails to and from an in-house lawyer "do not explicitly seek or contain legal advice"); Lolonga-Gedeon v. Child & Family Servs., No. 08-CV-00300A(F), 2012 U.S. Dist. LEXIS 67843, at *12-13 (W.D.N.Y. May 15, 2012) ("Nor is there any request within the text of the communication for legal advice or services and, as such, the communication is not protected by the attorney-client privilege.").

In addition to articulating a company-friendly legal standard for judging corporate investigations' motivations when assessing privilege protection, the D.C. Circuit Court of Appeals looked beyond the investigation-generated documents' four corners. The court also examined the documents' context -- ultimately concluding that "there can be no serious dispute that one of the significant purposes of the KBR internal investigation was to obtain or provide legal advice." In re Kellogg Brown & Root, 2014 U.S. App. LEXIS 12115, at *14.

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal
Comment:

key case


Chapter: 16.407
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)
August 13, 2014 (PRIVILEGE POINT)

"Most Courts Focus on the Four Corners of Withheld Documents, Despite Barko: Part I"

The widely publicized Barko decision (In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)) has encouraged corporations hoping to extend privilege protection to their internal corporate investigations. As explained in a previous Privilege Point, perhaps the most important aspect of Barko was the D.C. Circuit's willingness to examine the context of withheld communications — rather than focusing just on the documents' four corners.

However, many courts essentially limit their review to the withheld documents themselves in analyzing both privilege and work product claims. In Tecnomatic, S.P.A. v. Remy, Inc., the court examined withheld documents in camera, ultimately concluding that the attorney-client privilege protection applied — because "the communications withheld explicitly request, render, arrange for, or act in furtherance of rendering legal assistance." No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014). Unfortunately, courts' assessment of withheld documents usually results in bad news. One week later, the Northern District of Illinois rejected a corporation's privilege claim for several emails, using phrases such as "[t]his email is not privileged as it does not ask for legal advice"; "the email does not seek legal advice and is not privileged"; and "[n]either the email nor the attached bill reveals any confidential communications or involves a request for legal advice." Lee v. Chi. Youth Ctrs., No. 12 C 9245, 2014 U.S. Dist. LEXIS 79868, at *24, *23, *26 (N.D. Ill. June 10, 2014). In an even more worrisome conclusion, the court rejected privilege claims for two emails a company employee sent the company's outside lawyer (1) asking for the lawyer's advice about "'the preferred language'" for finance committee minutes, and (2) inviting the lawyer "to make whatever changes she desires to [a] 'Reorganization Plan.'" Id. at *23, *25. The court held that the first email merely sought the outside lawyer's "editorial changes," and that the second email "does not seek legal advice and is not privileged." Id.

Despite the promise of Barko, most courts examining a privilege claim focus almost exclusively on withheld documents' four corners. Clients seeking legal advice should therefore explicitly ask for it in the body of their communications. And lawyers providing legal advice should explain that they are doing so — especially if their legal advice takes the form of suggested language changes in client-prepared draft documents.

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal
Comment:

key case


Chapter: 16.407
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: 16.407
Case Name: Hamdan v. Indiana Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *9-10 (S.D. Ind. June 24, 2014)
(emphasizing the four corners of documents prepared during an investigation of a discrimination claim; "The redacted emails are HR focused and document at-the-moment analysis of the Plaintiff's situation authored by Hospital employees such as the chief medical officer, chief nursing officer, and representatives from the department in which Plaintiff worked. None of the redacted emails are sent directly to an attorney (attorneys are included via CC), nor are any of the redacted emails addressed to an attorney in the text of the messages. There is no request for legal advice in any of the redacted emails, nor is there any indication in any of the emails that the author initiated or created the message for the purpose of seeking advice from the attorneys. In fact, the only explicit mention of the attorneys by an author of a redacted email occurs when the chief medical officer indicates that the attorneys were copied so that one of them might attend a previously scheduled meeting.")

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

Chapter: 16.407
Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *23-24 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "Exhibit 6 is a series of emails. The January 7, 2011 email from Ms. Morgan to Mr. Wells merely encloses the job descriptions and points out the qualifications of the VP for program operations. This email is not privileged as it does not ask for legal advice. Ms. Morgan's somewhat lengthy response of the same day is arguably privileged.")

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

Chapter: 16.407
Case Name: Lee v. Chi. Youth Ctrs., No. 12 C 9245, 2014 U.S. Dist. LEXIS 79868, at *24, *23, *26 (N.D. Ill. June 10, 2014)
August 13, 2014 (PRIVILEGE POINT)

"Most Courts Focus on the Four Corners of Withheld Documents, Despite Barko: Part I"

The widely publicized Barko decision (In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)) has encouraged corporations hoping to extend privilege protection to their internal corporate investigations. As explained in a previous Privilege Point, perhaps the most important aspect of Barko was the D.C. Circuit's willingness to examine the context of withheld communications — rather than focusing just on the documents' four corners.

However, many courts essentially limit their review to the withheld documents themselves in analyzing both privilege and work product claims. In Tecnomatic, S.P.A. v. Remy, Inc., the court examined withheld documents in camera, ultimately concluding that the attorney-client privilege protection applied — because "the communications withheld explicitly request, render, arrange for, or act in furtherance of rendering legal assistance." No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014). Unfortunately, courts' assessment of withheld documents usually results in bad news. One week later, the Northern District of Illinois rejected a corporation's privilege claim for several emails, using phrases such as "[t]his email is not privileged as it does not ask for legal advice"; "the email does not seek legal advice and is not privileged"; and "[n]either the email nor the attached bill reveals any confidential communications or involves a request for legal advice." Lee v. Chi. Youth Ctrs., No. 12 C 9245, 2014 U.S. Dist. LEXIS 79868, at *24, *23, *26 (N.D. Ill. June 10, 2014). In an even more worrisome conclusion, the court rejected privilege claims for two emails a company employee sent the company's outside lawyer (1) asking for the lawyer's advice about "'the preferred language'" for finance committee minutes, and (2) inviting the lawyer "to make whatever changes she desires to [a] 'Reorganization Plan.'" Id. at *23, *25. The court held that the first email merely sought the outside lawyer's "editorial changes," and that the second email "does not seek legal advice and is not privileged." Id.

Despite the promise of Barko, most courts examining a privilege claim focus almost exclusively on withheld documents' four corners. Clients seeking legal advice should therefore explicitly ask for it in the body of their communications. And lawyers providing legal advice should explain that they are doing so — especially if their legal advice takes the form of suggested language changes in client-prepared draft documents.

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

key case


Chapter: 16.407
Case Name: Tecnomatic, S.P.A. v. Remy, Inc., No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014)
August 13, 2014 (PRIVILEGE POINT)

"Most Courts Focus on the Four Corners of Withheld Documents, Despite Barko: Part I"

The widely publicized Barko decision (In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)) has encouraged corporations hoping to extend privilege protection to their internal corporate investigations. As explained in a previous Privilege Point, perhaps the most important aspect of Barko was the D.C. Circuit's willingness to examine the context of withheld communications — rather than focusing just on the documents' four corners.

However, many courts essentially limit their review to the withheld documents themselves in analyzing both privilege and work product claims. In Tecnomatic, S.P.A. v. Remy, Inc., the court examined withheld documents in camera, ultimately concluding that the attorney-client privilege protection applied — because "the communications withheld explicitly request, render, arrange for, or act in furtherance of rendering legal assistance." No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014). Unfortunately, courts' assessment of withheld documents usually results in bad news. One week later, the Northern District of Illinois rejected a corporation's privilege claim for several emails, using phrases such as "[t]his email is not privileged as it does not ask for legal advice"; "the email does not seek legal advice and is not privileged"; and "[n]either the email nor the attached bill reveals any confidential communications or involves a request for legal advice." Lee v. Chi. Youth Ctrs., No. 12 C 9245, 2014 U.S. Dist. LEXIS 79868, at *24, *23, *26 (N.D. Ill. June 10, 2014). In an even more worrisome conclusion, the court rejected privilege claims for two emails a company employee sent the company's outside lawyer (1) asking for the lawyer's advice about "'the preferred language'" for finance committee minutes, and (2) inviting the lawyer "to make whatever changes she desires to [a] 'Reorganization Plan.'" Id. at *23, *25. The court held that the first email merely sought the outside lawyer's "editorial changes," and that the second email "does not seek legal advice and is not privileged." Id.

Despite the promise of Barko, most courts examining a privilege claim focus almost exclusively on withheld documents' four corners. Clients seeking legal advice should therefore explicitly ask for it in the body of their communications. And lawyers providing legal advice should explain that they are doing so — especially if their legal advice takes the form of suggested language changes in client-prepared draft documents.

Case Date Jurisdiction State Cite Checked
2014-06-03 Federal IN
Comment:

key case


Chapter: 16.407
Case Name: United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866, at *6 (D.D.C. Mar. 11, 2014)
July 23, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part III"

Last week's Privilege Point described the District of Columbia Circuit Court of Appeals' articulation of a privilege standard very favorable to companies conducting internal investigations. In In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014), the appeals court also found the privilege applicable despite involvement of nonlawyers in conducting interviews, and those interviewers' failure to give interviewed employees the classic Upjohn warnings or confidentiality agreements mentioning legal advice.

Commentators applauding the D.C. Circuit's decision generally overlook an equally significant issue -- what the court did not say. The lower court's rejection of Kellogg Brown & Root's (KBR) privilege claim also rested on the absence of any request for or offering of legal advice in the investigation's email message traffic, and on the investigation report's failure to request legal advice or identify "possible legal issues for further review." United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866, at *6 (D.D.C. Mar. 11, 2014). The appeals court upheld KBR's privilege claim despite these factors -- thus implicitly rejecting many courts' increasingly common exclusive focus on withheld documents' four corners in rejecting privilege claims. See, e.g., A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2014 U.S. Dist. LEXIS 20859, at *8 n.1 (D. Conn. Feb. 19, 2014) (denying a privilege claim because "[t]here is no legal advice requested, explicitly or implicitly, in the cover letter"); Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *6 (M.D. Ga. Dec. 6, 2013) (denying a privilege claim because emails to and from an in-house lawyer "do not explicitly seek or contain legal advice"); Lolonga-Gedeon v. Child & Family Servs., No. 08-CV-00300A(F), 2012 U.S. Dist. LEXIS 67843, at *12-13 (W.D.N.Y. May 15, 2012) ("Nor is there any request within the text of the communication for legal advice or services and, as such, the communication is not protected by the attorney-client privilege.").

In addition to articulating a company-friendly legal standard for judging corporate investigations' motivations when assessing privilege protection, the D.C. Circuit Court of Appeals looked beyond the investigation-generated documents' four corners. The court also examined the documents' context -- ultimately concluding that "there can be no serious dispute that one of the significant purposes of the KBR internal investigation was to obtain or provide legal advice." In re Kellogg Brown & Root, 2014 U.S. App. LEXIS 12115, at *14.

Case Date Jurisdiction State Cite Checked
2014-03-11 Federal DC
Comment:

key case


Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *6, *7, *8, *9, *10-11 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney-client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "Defendant argues that this document was the product of a joint effort by multiple departments at Unilever to create uniform guidelines relating to 'natural' and 'all natural' claims."; "Defendant has attached a declaration from Nancy Schnell, then an in-house counsel, which states that the document relates to Unilever's efforts to create guidelines for 'natural' and 'all natural' claims. . . . Defendant also points out that the document notes that formal approval by the Legal and Regulatory departments is required before making any 'natural' claims and that 'Legal' is listed as the owner of a document referenced internally."; "The 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."; "Declarations from Unilever employees that the purpose of the initiative was to ensure compliance with the law and address possible future litigation cannot create a blanket work-product protection for every document related to a particular business venture. . . . Although Exhibit 15 relates generally that natural claims have legal and regulatory implications, and mentions two court cases in Europe, it was prepared in the ordinary course of Unilever's global foods business. That a business such as Unilever's functions in a complex legal and regulatory environment is not enough to anticipate litigation under the 'because of' standard articulated in In re Grand Jury Subpoena, 357 F.3d [900,] 907 [9th Cir. 2004)]. . . . The awareness that there might potentially be legal consequences to certain actions does not 'anticipate litigation' as required by the work-product doctrine. Defendant has not shown that it anticipated any actual lawsuit: it has not cited any demand letters or other threats of a lawsuit from anyone, much less an actual suit.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *17 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "[T]he fact that there are legal implications to a decision is not enough to give rise to attorney-client privilege where no legal advice is sought or provided, and not enough to give rise to work-product protection where there is no evidence the document was prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *18-19 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "Ms. Woodhouse [in-house lawyer for defendant] is among a large group of people copied on the e-mails and she is never mentioned in the body of the e-mails. Her legal opinion is neither requested nor given. The e-mail proposes that the regulatory group prepare a decision paper based on the key points discussed in the product category feedback document (addressed above). Defendant is correct that the document mentions the role of the guidelines as a potential legal defense, but there is no evidence that the document was prepared 'because of' the prospect of litigation; indeed, the transmittal e-mail and the underlying document are primarily focused on the 'science and technology' aspects of the natural claims. This document is not protected by the attorney-client privilege or by the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *11, *12 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney-client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "Sam Zeller is a member of Unilever's Regulatory Affairs department."; "Plaintiff contends that Mr. Zeller was asked for his opinion as a member of the Regulatory group, and provided it, but that nothing in the e-mail sets forth legal policy or originates from an attorney. . . . No lawyers are on the e-mail chain.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *13 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney-client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "No attorneys are involved in the e-mail chain . . . [and] it does not appear to be a request for legal advice.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 16.407
Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2-15 U.S. Dist. LEXIS 20859, at *8 n.1 (D. Conn. Feb. 19, 2014)
("Document 6 is a letter from Alan Neigher to Ken Przbysz, attaching a draft of Attorney Neigher's proposed testimony. Mike London, Tom Bivona, Bill Denya, Attorney Ronald Aranoff, and Attorney David Slossberg are also copied on the email. There is no legal advice requested, explicitly or implicitly, in the cover letter.")

Case Date Jurisdiction State Cite Checked
2014-02-19 Federal CT B 7/14

Chapter: 16.407
Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2014 U.S. Dist. LEXIS 20859, at *8 n.1 (D. Conn. Feb. 19, 2014)
July 23, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part III"

Last week's Privilege Point described the District of Columbia Circuit Court of Appeals' articulation of a privilege standard very favorable to companies conducting internal investigations. In In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014), the appeals court also found the privilege applicable despite involvement of nonlawyers in conducting interviews, and those interviewers' failure to give interviewed employees the classic Upjohn warnings or confidentiality agreements mentioning legal advice.

Commentators applauding the D.C. Circuit's decision generally overlook an equally significant issue -- what the court did not say. The lower court's rejection of Kellogg Brown & Root's (KBR) privilege claim also rested on the absence of any request for or offering of legal advice in the investigation's email message traffic, and on the investigation report's failure to request legal advice or identify "possible legal issues for further review." United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866, at *6 (D.D.C. Mar. 11, 2014). The appeals court upheld KBR's privilege claim despite these factors -- thus implicitly rejecting many courts' increasingly common exclusive focus on withheld documents' four corners in rejecting privilege claims. See, e.g., A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2014 U.S. Dist. LEXIS 20859, at *8 n.1 (D. Conn. Feb. 19, 2014) (denying a privilege claim because "[t]here is no legal advice requested, explicitly or implicitly, in the cover letter"); Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *6 (M.D. Ga. Dec. 6, 2013) (denying a privilege claim because emails to and from an in-house lawyer "do not explicitly seek or contain legal advice"); Lolonga-Gedeon v. Child & Family Servs., No. 08-CV-00300A(F), 2012 U.S. Dist. LEXIS 67843, at *12-13 (W.D.N.Y. May 15, 2012) ("Nor is there any request within the text of the communication for legal advice or services and, as such, the communication is not protected by the attorney-client privilege.").

In addition to articulating a company-friendly legal standard for judging corporate investigations' motivations when assessing privilege protection, the D.C. Circuit Court of Appeals looked beyond the investigation-generated documents' four corners. The court also examined the documents' context -- ultimately concluding that "there can be no serious dispute that one of the significant purposes of the KBR internal investigation was to obtain or provide legal advice." In re Kellogg Brown & Root, 2014 U.S. App. LEXIS 12115, at *14.

Case Date Jurisdiction State Cite Checked
2014-02-19 Federal CT
Comment:

key case


Chapter: 16.407
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *18 (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 10 is a letter dated April 27, 2004, from Estreicher [consultant, who was a lawyer, but not acting in the legal capacity] to Barnett [lawyer for the railroad] enclosing a copy of his first preliminary report. No legal advice is provided in the letter and the letter itself must be produced. The document also contains hand-written commentary from Barnett, most of which is factual and not legal advice. . . . Most of Barnett's notations on the report are grammatical or factual and need not be redacted.")

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

Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *19, *20 (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; analyzing two documents; "Plaintiff argues that even though Ms. Woodhouse is an attorney, the email does not explicitly seek legal advice and simply asks people to respond if they disagree with the approach set forth in the message. It is not clear whether Ms. Woodhouse was sent the email in her legal capacity, and Defendant did not submit a declaration from her."; "Ms. Woodhouse is among a large group of people copied on the e-mails and she is never mentioned in the body of the e-mails. Her legal opinion is neither requested nor given. The e-mail proposes that the regulatory group prepare a decision paper based on the key points discussed in the product category feedback document (addressed above). Defendant is correct that the document mentions the role of the guidelines as a potential legal defense, but there is no evidence that the document was prepared 'because of' the prospect of litigation; indeed, the transmittal e-mail and the underlying document are primarily focused on the 'science and technology' aspects of the natural claims. This document is not protected by the attorney-client privilege or by the work-product doctrine.")

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

Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *16 (N.D. Cal. Dec. 17, 2013)
("The mere mention of the legal department and that certain statements are subject to its approval does not give rise to privilege in the absence of a request for or provision of legal advice.")

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

Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *12-13, *13-14, *16 (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; "Sam Zeller is a member of Unilever's Regulatory Affairs department. He is not an attorney. According to Defendant, he worked closely with the Legal Department in developing the guidelines. . . . The e-mail summarizes some of the statements contained in a set of guidelines for natural claims. Defendant argues that Mr. Zeller understood, when he sent the e-mail, that he was passing on legal analysis from those guidelines, a joint initiative of the Regulatory and Legal Departments. . . . Plaintiff contends that this email string was initiated by William Leo, a director of Research and Development, and terminated with Samuel Zeller, a Senior Manager of Regulatory Affairs. No lawyers are on the e-mail string. The string addresses a public document that discusses an 'all-natural' lawsuit against a competitor."; "The Court concludes that this e-mail is not protected by either the attorney-client privilege or the work-product doctrine. No attorneys are involved in the e-mail chain, and although Andrew Sztehlo asks Zeller for a view on the status of the particular ingredient, and Zeller provides the Regulatory Department view, it does not appear to be a request for legal advice. . . . To the extent that the e-mails discuss litigation, they address a lawsuit against another company, not a threatened or pending case /against Defendant, or even past litigation against Defendant."; "The mere mention of the legal department and that certain statements are subject to its approval does not give rise to privilege in the absence of a request for or provision of legal advice.")

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

Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *18-19 (N.D. Cal. Dec. 17, 2013)
("[T]he fact that there are legal implications to a decision is not enough to give rise to attorney-client privilege where no legal advice is sought or provided, and not enough to give rise to work-product protection where there is no evidence the document was prepared in anticipation of litigation.")

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

Chapter: 16.407
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *4, *12-13, *13-14 (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; analyzing two documents; "Exhibit 8 . . . is an e-mail from Sam Zeller, a Unilever Regulatory Affairs employee, regarding the status of the 'natural' claim for a particular ingredient."; "Sam Zeller is a member of Unilever's Regulatory Affairs department. He is not an attorney. According to Defendant, he worked closely with the Legal Department in developing the guidelines. . . . The e-mail summarizes some of the statements contained in a set of guidelines for natural claims. Defendant argues that Mr. Zeller understood, when he sent the e-mail, that he was passing on legal analysis from those guidelines, a joint initiative of the Regulatory and Legal Departments. . . . Plaintiff contends that this email string was initiated by William Leo, a director of Research and Development, and terminated with Samuel Zeller, a Senior Manager of Regulatory Affairs. No lawyers are on the e-mail string. The string addresses a public document that discusses an 'all-natural' lawsuit against a competitor."; "The Court concludes that this e-mail is not protected by either the attorney-client privilege or the work-product doctrine. No attorneys are involved in the e-mail chain, and although Andrew Sztehlo asks Zeller for a view on the status of the particular ingredient, and Zeller provides the Regulatory Department view, it does not appear to be a request for legal advice. . . . To the extent that the e-mails discuss litigation, they address a lawsuit against another company, not a threatened or pending case against Defendant, or even past litigation against Defendant.")

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

Chapter: 16.407
Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *6 (M.D. Ga. Dec. 6, 2013)
("The document is an email string about Anthony Fisher [broker] and Plaintiffs' accounts. In-house counsel is involved in the email string, but the emails do not explicitly seek or contain legal advice. However, the emails are protected by the work product doctrine because the emails were prepared because of the prospect of litigation.")

Case Date Jurisdiction State Cite Checked
2013-12-06 Federal GA B 5/14

Chapter: 16.407
Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *6 (M.D. Ga. Dec. 6, 2013)
July 23, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part III"

Last week's Privilege Point described the District of Columbia Circuit Court of Appeals' articulation of a privilege standard very favorable to companies conducting internal investigations. In In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014), the appeals court also found the privilege applicable despite involvement of nonlawyers in conducting interviews, and those interviewers' failure to give interviewed employees the classic Upjohn warnings or confidentiality agreements mentioning legal advice.

Commentators applauding the D.C. Circuit's decision generally overlook an equally significant issue -- what the court did not say. The lower court's rejection of Kellogg Brown & Root's (KBR) privilege claim also rested on the absence of any request for or offering of legal advice in the investigation's email message traffic, and on the investigation report's failure to request legal advice or identify "possible legal issues for further review." United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866, at *6 (D.D.C. Mar. 11, 2014). The appeals court upheld KBR's privilege claim despite these factors -- thus implicitly rejecting many courts' increasingly common exclusive focus on withheld documents' four corners in rejecting privilege claims. See, e.g., A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2014 U.S. Dist. LEXIS 20859, at *8 n.1 (D. Conn. Feb. 19, 2014) (denying a privilege claim because "[t]here is no legal advice requested, explicitly or implicitly, in the cover letter"); Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *6 (M.D. Ga. Dec. 6, 2013) (denying a privilege claim because emails to and from an in-house lawyer "do not explicitly seek or contain legal advice"); Lolonga-Gedeon v. Child & Family Servs., No. 08-CV-00300A(F), 2012 U.S. Dist. LEXIS 67843, at *12-13 (W.D.N.Y. May 15, 2012) ("Nor is there any request within the text of the communication for legal advice or services and, as such, the communication is not protected by the attorney-client privilege.").

In addition to articulating a company-friendly legal standard for judging corporate investigations' motivations when assessing privilege protection, the D.C. Circuit Court of Appeals looked beyond the investigation-generated documents' four corners. The court also examined the documents' context -- ultimately concluding that "there can be no serious dispute that one of the significant purposes of the KBR internal investigation was to obtain or provide legal advice." In re Kellogg Brown & Root, 2014 U.S. App. LEXIS 12115, at *14.

Case Date Jurisdiction State Cite Checked
2013-12-06 Federal GA
Comment:

key case


Chapter: 16.407
Case Name: Americus Mortg. Corp. v. Mark, Civ. A. No. 12-10158-GAO, 2013 U.S. Dist. LEXIS 148820, at *17 (D. Mass. Oct. 16, 2013)
("Belli's [defendant's partial owner] forwarding the letter to Attorney Hadlock does not convert the document into a privileged communication. . . . There is no introductory request seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2013-10-16 Federal MA B 5/14

Chapter: 16.407
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 *38-39, *39 (E.D. Pa. Sept. 11, 2013)
(holding that internal corporate communications deserve privilege protection; relying both on the documents and on supporting affidavits; "[O]ne document provides a Cephalon attorney with details regarding other pharmaceutical companies in order to obtain his opinion on the terms of a collaborative agreement between the two companies. . . . Several documents are drafts of a spreadsheet concerning another company's assets, which was requested by in-house counsel to allow him to provide an opinion on antitrust issues. . . . Two of the identified documents are handwritten letters, with attached data and analyses, from a Cephalon scientist to counsel in response to counsel's request for pharmaceutical testing information relevant to the infringement litigation. . . . These documents, which all constitute communications to Cephalon attorneys by corporate employees in order to further counsel's ability to provide legal advice, are subject to attorney-client privilege."; "[A]nother document requests counsel's advice on certain draft letter agreements.")

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

Chapter: 16.407
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 *26-27 (E.D. Pa. Sept. 11, 2013))
("Based upon the content of these statements, and the fact that they reflect advice or information Baldino [Defendant pharmaceutical company's president] received from Cephalon's General Counsel, it is clear that the communications had a legal rather than a business purpose. Specifically, Baldino's statements were made in an effort to assist the board in making an informed decision regarding the settlement of the Provigil patent infringement litigation. The statements specifically relayed information from Cephalon's attorneys regarding the status and terms of those agreements. As such, the statements were made for the purpose of providing legal advice and are protected by the attorney-client privilege.")

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

Chapter: 16.407
Case Name: Earthworks v. U.S. Dept. of the Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *4-5, *5-6 (D.D.C. Apr. 2, 2013)
(holding that a lawyer's draft of contemporaneous documents did not deserve privilege protection; "Whether or not a document styled a draft in a privilege log is privileged can be a multifaceted and fact-bound determination. The transmittal of a communication from a client to a lawyer with an express request for guidance presents the easy case: 'Here is the draft employment agreement I am going to ask my boss to sign. Let me know if it protects my legal rights.' In other circumstances, the absence of an explicit request for advice may not doom the claim of privilege, if the confidential nature of the communication can be discerned from what the lawyer has said or done. For example, a red lined edited draft of the agreement from the lawyer to the client may, in a certain context, itself permit the inference that the client sent the draft to the lawyer expecting the lawyer to provide confidential guidance as to contents of the documents. The process of the exchange may itself bespeak an intention by the client that her transmittal of the draft be a confidential request for guidance."; "On the other hand, and this is particularly true in a governmental situation, the lawyer may be the chief draftsperson of a particular document which she then sends to her co-workers for their views and thoughts. While their responses may qualify as communications to a lawyer intended to be confidential, the lawyer's draft, transmitted to them, does not yield any confidential communication from them. In other words, from the lawyer's draft, we learn only that she wrote a draft and transmitted it to her clients. Thus, while there are circumstances where even a draft might yield a secret, client communication (e.g. the draft of a will that provides for an illegitimate child), the transmittal of drafts in this case does not. That the DOI lawyers and other employees were in the process of drafting new rules and regulations in response to an order in this case is hardly a secret. The privilege log itself indicates that such drafting was taking place.")

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

Chapter: 16.407
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: 16.407
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 654 (D. Nev. 2013)
("It is important to note that no one from the Law Department was included in Richard Bliss's [quality consultant] response. Moreover, the communications do not reflect a confidential nature. Nor do any of the e-mails indicate the solicitation or provision of legal advice. As a result, the court cannot conclude that Joint Selection 29 comes within the attorney-client privilege. Therefore, Joint Selection 29 should be produced to Plaintiff.")

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

Chapter: 16.407
Case Name: Hedden v. Kean Univ., 82 A.3d 238, 249 (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; finding that a university employee's draft letter deserved privileged protection, implicitly rejecting the dissenting judge's contention that the coach's act of copying a supervisor meant the privilege was unavailable; "It does not expressly seek legal advice and nothing in the simply and briefly worded message can be reasonably interpreted, in my view, as doing so. Moreover, Sharp's [Coach] act of copying Connelly [defendant], who was not a member of the University's legal department, is an indication that she did not intend that her communication with Tripodi [University's lawyer] would be confidential. There is no support in the record for the conclusion that either party had a reasonable expectation that the email would remain confidential.")

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

Chapter: 16.407
Case Name: Hedden v. Kean Univ., 82 A.3d 238, 249 (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; finding that a university employee's draft letter deserved privileged protection, implicitly rejecting the dissenting judge's contention that the coach's draft letter did not deserve privilege protection because the coach did not explicitly ask the university's lawyer for legal advice about the draft; "Sharp's [Coach] only request to Tripodi [University's lawyer] was simply to review the draft letter. Nothing in her three-sentence email suggests she was seeking legal advice from Tripodi. Tripodi claims that he reviewed the letter and gave Sharp a verbal response.")

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

Chapter: 16.407
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 652 (D. Nev. 2013)
("Unlike Joint Selection 14, Joint Selection 23 consists of several e-mails where Ms. Dunsmuir [defendant's Assistant General Counsel] is merely copied. The content of the e-mails do not appear to contain any advice given by Ms. Dunsmuir. Nor are any questions posed that could be interpreted as requesting legal advice. Accordingly, the court finds that Joint Selection 23 does not come within the attorney-client privilege, and is ordered to be produced to Plaintiff.")

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

Chapter: 16.407
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: 16.407
Case Name: County of San Mateo v. CSL Ltd. (In re Plasma Derivative Protein Therapies Antitrust Litig.), Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *10 (N.D. Ill. Nov. 7, 2012)
January 16, 2013 (PRIVILEGE POINT)

"Where Do Courts Look When Determining Whether a Litigant has Proven Attorney Client Privilege or Work Product Protection?: Part II"

Last week's Privilege Point described some courts' reliance on affidavits or some other extrinsic evidence when assessing a protection claim – rather than a review of the documents themselves. Other courts takes exactly the opposite position.

In County of San Mateo v. CSL Ltd. (In re Plasma Derivative Protein Therapies Antitrust Litig.), the court dealt with defendant Baxter's withholding of a document described as a "'draft set of key messages for an upcoming investor conference.'" Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *10 (N.D. Ill. Nov. 7, 2012) (internal citation omitted). In support of its privilege claim, Baxter supplied a declaration from the company's Corporate Vice President of Investor Relations. She stated that she prepared the document at the General Counsel's request "’for the purpose of seeking legal advice from and discussing legal issues with senior in house counsel about the messages we could convey to investors.’" Id. At *10-11. The court found the affidavit unconvincing, labeling it a "self serving declaration, drafted more than five years after the fact." Id. At *11. Instead, the court looked only at the document and its forwarding email. The court noted that the Vice President's claimed purpose was "not apparent from the face of the document or the [forwarding] email." Id. In rejecting Baxter's privilege claim, the court reiterated that "[t]here is nothing in the body of the email or the document – other than the inclusion of lawyers on the distribution list – to suggest that [the Vice President] was soliciting legal advice." Id.

Because some courts do not give much weight to affidavits (even labeling them "self serving" – which seems axiomatic), lawyers should encourage their clients to articulate the basis for any protection in the documents themselves. For instance, a cover email forwarding a draft document to a lawyer for review should explicitly indicate that the sender requests legal advice about the attached draft.

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal IL
Comment:

key case


Chapter: 16.407
Case Name: In re Plasma Derivative Protein Therapies Antitrust Litig., Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *10-11 (N.D. Ill. Nov. 7, 2012)
("Baxter [defendant] has argued that the document is privileged, and to support its claim it has offered a declaration from Ms. Ladone [Baxter V.P.] explaining that the attachment, written by her, was 'a draft set of key messages for an upcoming investor conference.'. . . Ms. Ladone states that she wrote the document 'in response to an earlier communication by Ms. Lichtenstein [Baxter's General Counsel at the time] requesting a legal review of Baxter's communications for the upcoming investor conference.'. . . She further states that she wrote the email and the attachment 'for the purpose of seeking legal advice from and discussing legal issues with senior in-house counsel about the messages we could convey to investors at the upcoming conference.'. . . But this purpose is not apparent from the face of the document or the email. On its face the document appears to be drafted and circulated for primarily a business purpose - namely, to get all the potential players on the same page as to how to respond to inquiries at the upcoming investor conference. There is nothing in the body of the email or the document - other than the inclusion of lawyers on the distribution list - to suggest that Ms. Ladone was soliciting legal advice. Ms. Ladone's self-serving declaration, drafted more than five years after the fact, is not enough to trigger a privilege that clearly did not exist when the document was created.")

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal IL

Chapter: 16.407
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *33 (M.D. Fla. Nov. 6, 2012)
("Not privileged. No attorney 'to' or 'from.' No legal advice sought or received.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 16.407
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *33 (M.D. Fla. Nov. 6, 2012)
("Not privileged. A. Pike is the recipient of one of the emails, but the purpose of the communication is not to request or transmit legal advice. Rather, the sender explicitly intends to 'keep [A. Pike] in the loop,' with regards to a Human Resources issue. No legal advice sought or received.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 16.407
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *21 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx [In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)] standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "I have reviewed the content of Individual Communications 97, 98, and 99 and find that none of them evidence legal advice sought or received. In no instance has a lawyer commented on the information recorded nor has an employee in the Compliance Department indicated that he or she would seek advice of counsel. Some of the information in the log can only be characterized as a recordation of fact.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 16.407
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *23 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx [In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)] standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "Halifax argues that its assertion of attorney-client privilege is proper simply because its organization is structured so that 'the compliance department operates under the supervision and oversight of [the] legal department.'. . . I am not persuaded by this argument. Halifax's organizational structure is of no consequence. Halifax bears the burden of proving that the primary purpose and intent of each allegedly privileged document was to seek or give legal advice. Halifax has failed to meet its burden with regards to the descriptions of the documents under the following headings: 'facilitate the provision of compliance advice,' 'facilitate the rendering of compliance advice,' 'reflecting request for compliance advice,' 'for the purpose of obtaining compliance advice,' 'reflecting provision of compliance advice,' 'reflecting compliance advice,' and 'request for and provision of compliance advice.'" (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 16.407
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *33 (M.D. Fla. Nov. 6, 2012)
("Email correspondence involves A. Pike and D. Davidson from the Legal Department, but the purpose of the communication to resolve a business/Human Resources related issue. The communication does not involve the request for or transmission of legal advice.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 16.407
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *73 (S.D. Fla. Oct. 18, 2012)
("This conclusion is supported by the Affidavit of Donald L. Bjerke, Ph.D., a principal scientist in the Product Safety and Regulatory Affairs Department in the Beauty Care Division at P&G, which has been submitted to the undersigned on an ex parte basis. Dr. Bjerke's Affidavit makes clear that the email in question was generated as part of his completion of a task for the P&G legal department related to litigation. Thus, although the Plaintiffs are correct when they state that 'non-attorney impressions are not protected work product,'. . . the carrying out of tasks at the behest of legal counsel, or the summarization of legal advice, even if done by a non-attorney for purposes of disseminating that advice to other corporate employees[,] is clearly protected, as is the case of the document authored by Dr. Bjerke.")

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 16.407
Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *26 (W.D. Va. June 20, 2012)
("The letter clearly indicates both in its heading and body that the information contained in the letter and the accompanying documents is confidential and that it should not be disseminated.")

Case Date Jurisdiction State Cite Checked
2012-06-20 Federal VA B 12/12

Chapter: 16.407
Case Name: Lolonga-Gedeon v. Child & Family Servs., No. 08-CV-00300A(F), 2012 U.S. Dist. LEXIS 67843, at *12-13 (W.D.N.Y. May 15, 2012)
July 23, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part III"

Last week's Privilege Point described the District of Columbia Circuit Court of Appeals' articulation of a privilege standard very favorable to companies conducting internal investigations. In In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014), the appeals court also found the privilege applicable despite involvement of nonlawyers in conducting interviews, and those interviewers' failure to give interviewed employees the classic Upjohn warnings or confidentiality agreements mentioning legal advice.

Commentators applauding the D.C. Circuit's decision generally overlook an equally significant issue -- what the court did not say. The lower court's rejection of Kellogg Brown & Root's (KBR) privilege claim also rested on the absence of any request for or offering of legal advice in the investigation's email message traffic, and on the investigation report's failure to request legal advice or identify "possible legal issues for further review." United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866, at *6 (D.D.C. Mar. 11, 2014). The appeals court upheld KBR's privilege claim despite these factors -- thus implicitly rejecting many courts' increasingly common exclusive focus on withheld documents' four corners in rejecting privilege claims. See, e.g., A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2014 U.S. Dist. LEXIS 20859, at *8 n.1 (D. Conn. Feb. 19, 2014) (denying a privilege claim because "[t]here is no legal advice requested, explicitly or implicitly, in the cover letter"); Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *6 (M.D. Ga. Dec. 6, 2013) (denying a privilege claim because emails to and from an in-house lawyer "do not explicitly seek or contain legal advice"); Lolonga-Gedeon v. Child & Family Servs., No. 08-CV-00300A(F), 2012 U.S. Dist. LEXIS 67843, at *12-13 (W.D.N.Y. May 15, 2012) ("Nor is there any request within the text of the communication for legal advice or services and, as such, the communication is not protected by the attorney-client privilege.").

In addition to articulating a company-friendly legal standard for judging corporate investigations' motivations when assessing privilege protection, the D.C. Circuit Court of Appeals looked beyond the investigation-generated documents' four corners. The court also examined the documents' context -- ultimately concluding that "there can be no serious dispute that one of the significant purposes of the KBR internal investigation was to obtain or provide legal advice." In re Kellogg Brown & Root, 2014 U.S. App. LEXIS 12115, at *14.

Case Date Jurisdiction State Cite Checked
2012-05-15 Federal NY
Comment:

key case


Chapter: 16.407
Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *7 (W.D. Va. Oct. 6, 2011)
("The communications 'do not explicitly ask for legal advice, opinions, or oversight,' or otherwise suggest that the purpose of the documents is to obtain or provide 'an opinion on law, legal services, or . . . assistance in some legal context.' Scott & Stringfellow[, LLC v. AIG Commer. Equip. Fin., Inc.], 2011 U.S. Dist. LEXIS 51028, at *10 [(W.D. Va. May 12, 2011)]. While the table of contents in one of the exhibit binders indicates that the exhibit contains 'counterclaim analysis,' the actual documents, consisting of spreadsheets prepared by WGI, were generated months before SNC filed the instant action in December of 2010. The same is true with all of the other documents, which were drafted between March and September of that year. Because neither the documents themselves nor any other evidence proffered by ATK establishes that the documents were 'made for the purpose of facilitating the rendition of legal services,' In re Grand Jury Proceedings, 947 F.2d [1188,] 1191 [(4th Cir. 1991)], the court concludes that ATK has failed to meet its burden of demonstrating that the attorney-client privilege immunizes the documents from disclosure.")

Case Date Jurisdiction State Cite Checked
2011-10-06 Federal VA B 3/16
Comment:

key case


Chapter: 16.407
Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *9-10 (E.D. Va. May 12, 2011)
("Document 1 involves an email chain of communications between various AIG employees and general counsel. The subject of the communications concerns a business meeting. The document makes no reference to any particular legal issue. While general counsel is a recipient of the email chain, the communications do not explicitly ask for legal advice, opinions, or oversight. Furthermore, the attorney's response is limited to clarifying a business issue and scheduling a meeting. Consequently, though the communication is between a client and attorney, Document 1 is not subject to the attorney client privilege because the purpose of the document is not to provide an opinion on law, legal services, or to provide assistance in some legal context.")

Case Date Jurisdiction State Cite Checked
2011-05-12 Federal VA B 4/13
Comment:

key case


Chapter: 16.407
Case Name: Complex Sys., Inc. v. ABN Amro Bank N.V., 279 F.R.D. 140, 150 (S.D.N.Y. 2011)
("The first of these emails . . . forwards to Lussier the Crescenzi email considered in the preceding paragraph. Unlike Crescenzi, however, the author of this email specifically requests legal advice. As a consequence, because I have already directed disclosure of the non-privileged portion of the underlying email, ABN need not produce any portion of this email forwarding Crescenzi's email.")

Case Date Jurisdiction State Cite Checked
2011-01-01 Federal NY B 10/12

Chapter: 16.407
Case Name: King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. LEXIS 54407, at *5 (W.D. Va. June 2, 2010)
(holding that under Federal Rule of Evidence 502 a litigant's inadvertent disclosure did not result in a waiver; "I have carefully reviewed the document, including the Four Pages in dispute. While the privileged nature of the Four Pages is not apparent solely on the words used, based on the extrinsic evidence that Purdue has submitted, and the context of the document, I find that the Four Pages are privileged as attorney client communication and attorney work product.")

Case Date Jurisdiction State Cite Checked
2010-06-02 Federal VA B 4/13
Comment:

key case


Chapter: 16.407
Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *20-21 (E.D. Va. June 10, 2004)
("Item 15 is an e-mail with a two-page spreadsheet attached. The spreadsheets are marked 'Confidential Not for Distribution Protected by Attorney-Client Privilege.' The spreadsheets outline male/female ratios, transfers, and voluntary attrition in a particular group. Defendant has attached the declaration of Katrina C. Randolph, which shows that Item 15 was created at the direction of the assistant general counsel for the purpose of providing confidential legal advice to a business client about employment issues related to anticipated litigation. The document was intended to be confidential communication between corporate counsel and a business client, and was not distributed to individuals other than those who had a 'need to know' in connection with the data.")

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

key case


Chapter: 16.407
Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *19-20 (E.D. Va. June 10, 2004)
("Item 10 is a memo created by an employee at Capital One, and addressed to Capital One's in-house counsel, seeking advice in connection with Ms. Jannon Pierce. Specifically, the document asks questions about communications with Ms. Pierece and seeks legal advice on how to minimize any legal risk associated with the threat of anticipated litigation by Ms. Pierce. Item 10 was clearly created as a communication directed to in-house counsel, for the express purpose of obtaining legal advice, and therefore falls within the attorney-client privilege.")

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

Chapter: 16.407
Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 325-26 (2000)
("Virginia Power apparently considers the privilege applicable only to a document which by its own terms conveys a request for legal advice. Such an application of the privilege requirement is too narrow.")

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA B 3/16
Comment:

key case


Chapter: 16.409
Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 326 (2000)
("The privilege attaches to a document even if the document does not contain, or is not accompanied by, a written request for legal advice, if the proponent of the privilege sustains its burden of proof to show that the document was prepared with the intention of securing legal advice on its contents. Robertson, 181 Va. at 540, 25 S.E.2d at 360. As we have said, the record in this case contains the testimony of Brown that when he drafted the letter he intended to get legal advice on its content and on whether he should deliver it to Mable.")

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

Chapter: 16.501
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: 16.501
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: 16.501
Case Name: In re ExxonMobil Corp., No. 14-02-00779-CV, 2003 Tex. App. LEXIS 981 (Tex. App. Jan. 31, 2003)
(holding that the attorney-client privilege protected factual portions of a client's communication to a lawyer; "The attorney-client prvilege, however, attaches to the complete communication between attorney and client, including both legal advice and factual information. . . . If a document is a confidential communication, the privilege extends to the entire document and not merely to the portion of the document containing legal advice, opinions, or analysis."; "It is inconceivable that an attorney could give sound legal advice on a client's case if he or she did not include an application of the law or opinion to the specific facts of that case. If we were to hold that all or part of a document containing privileged information should be disclosed because it also included facts pertinent to the lawsuit, the purpose of the attorney-client and work-product privileges would be annihilated. The ultimate effect of such a holding would be that clients would be reluctant to give their attorneys any factual information for fear that it would be subject to discovery. And no attorney could even begin to prepare a case for trial, or be able to give sound advice for lack of those facts. Such a chilling intervention into the attorney-client relationship under the guise of 'looking for facts,' pierces the core of a critical privilege to carve out limited and usually superfluous morsels of discovery otherwise obtainable. In our opinion, the cost is too great.")

Case Date Jurisdiction State Cite Checked
2003-01-31 State TX
Comment:

key case


Chapter: 16.502
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: 16.502
Case Name: Van Every v. Ambrozyak, No. 797 MDA 2017, 2018 Pa. Super. Unpub. LEXIS 1256 (Pa. Super. April 20, 2018)
("While Van Every claims that FFE must disclose all communications regarding such facts, this is simply not the law of Pennsylvania. The attorney-client privilege attaches to communications between an attorney and a client in preparation for litigation even if the discussion in the interview concerns merely factual events.")

Case Date Jurisdiction State Cite Checked
2018-04-20 State PA

Chapter: 16.502
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)
("It cannot be too often repeated or too strongly emphasized that while a particular communication may be privileged, the underlying facts are not. . . . Thus, even if some or all of the email were privileged, the facts that prompted its writing and which were obviously known to the writer are not. In this case, the name of the author of Item 364 would have to be listed by Motorola in its required disclosures, and his knowledge disclosed. And this whether or not the actual email was privileged. What would happen next would be up to Hytera. But a deposition would seem a forgone conclusion, and disclosure of the facts that ultimately were expressed in the email would be inevitable. So, too, would be the identities of any individuals to whom he communicated these facts.")

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

Chapter: 16.502
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)
("Suppose a person witnesses a crime or some other event and thus has come into possession of knowledge regarding the event. That individual then consults with a lawyer about what he witnessed. While communications to obtain legal advice between the client/observer and the lawyer are privileged, what the individual observed or heard is not and may be the subject of appropriate inquiry.")

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

Chapter: 16.502
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)
("[T]he privilege extends only to the disclosure of the communications, and does not extend to disclosure of the underlying facts conveyed in those communications.")

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

Chapter: 16.502
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: 16.502
Case Name: Cain v. Wal-Mart Stores, Inc., 5:16-CV-221-D, 2018 U.S. Dist. LEXIS 47160 (E.D.N.C. March 22, 2018)
(rejecting privilege and work product protection for discovery answers that would disclose the identity of employees present at the time of an incident, employees involved in the investigation of the incident; and other information; "Here, Wal-Mart has not explained how the identity of the employees working on the day of the incident could be subject to the attorney-client privilege or work-product doctrine, as is its burden. Facts underlying a claim are not protected

Case Date Jurisdiction State Cite Checked
2018-03-22 Federal NC

Chapter: 16.502
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)
("Plaintiffs argue that Defendants improperly have included documents on the privilege logs, which contain factual material prepared by non-attorneys, which is then transmitted to or copied to attorneys. Plaintiffs say that these emails are not subject to the attorney-client privilege because the privilege only protects disclosure of communications and not disclosure of the underlying facts by those who communicated with the attorney. Plaintiffs statement of the law on this issue is generally correct. Simply because factual information has been transmitted to an attorney does not make the underlying factual information privileged."; "On the other hand, there is little question that where a client (or agent of the client) submits information to an attorney for legal advice the attorney-client privilege protects the communication from disclosure. . . . This applies as well to information gathered by non-attorneys for transmission to an attorney for the attorney to provide legal advice on an issue or to provide legal advice regarding the document or information gathered by the non-attorney employee of the client."; "Consequently, those emails generated by BMS or OAPI [Defendants] employees transmitting information to in-house counsel charged with the responsibility for the legal proceedings and requesting or receiving legal advice on the matter transmitted are protected from disclosure under the attorney-client privilege. The same applies to emails from BMS or OAPI's counsel requesting information to assist the attorney in providing legal advice. The Court has utilized these principles in its in camera review of the documents.")

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

key case


Chapter: 16.502
Case Name: Carr v. Lake Cumberland Regional Hosp., Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
("The availability of facts through other discovery tools does not obviate the attorney-client privilege of a communication containing those facts. . . . Nor does it allow an adverse party to obtain discovery of those facts contrary to Rule 26(b)(3), the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY

Chapter: 16.502
Case Name: Carr v. Lake Cumberland Regional Hosp., Civ. A. No. 15-138-DLB-HAI, 2017 U.S. Dist. LEXIS 188865 (E.D. Ky. Nov. 15, 2017)
(analyzing a hospital's investigation after an allegedly botched surgery; "That facts contained within a privileged attorney-client communication are available through other discovery methods does not render the communication unprivileged. . . . Nevertheless, there is no indication that this memorandum was communicated to an attorney or another representative of the Hospital for the purposes of legal representation, or that any person conveying this memorandum intended for it to be confidential.")

Case Date Jurisdiction State Cite Checked
2017-11-15 Federal KY

Chapter: 16.502
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: 16.502
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)
("Questions about Dr. Weers' opinions on the strength or weakness of the case, in essence seek his opinions as to whether the PTO will grant the patent application. The Court finds that any opinions Dr. Weers has regarding the strength or weakness of the claims are based on his discussion with counsel about the patent process and what is necessary to satisfy the PTO. Therefore, the attorney-client privilege precludes Nalco from obtaining discovery on this line of questioning.")

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

key case


Chapter: 16.502
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)
("Genesis misses the point when it repeatedly argues that the attorney-client privilege does not apply to recitations of fact. As Upjohn makes clear, it is the underlying facts that are not protected by the attorney-client privilege. When the client recites facts to his attorney in the course of obtaining legal advice, that particular recitation is shielded from discovery.")

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

key case


Chapter: 16.502
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: 16.502
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
("The Court begins by noting that attorney-client privilege 'only protects disclosure of communications; it does not protect disclosure of the underlying facts.'. . . Thus, Banneker could, through a well-written interrogatory, request the disclosure of all facts unearthed during the 51 witness interviews and WMATA would have no legitimate basis to refuse to respond. Banneker need not draft such an interrogatory, however, because the Court finds WMATA has waived the attorney-client privilege with respect to the interview memoranda."; "As originally commissioned, the Bondi Report was intended to be an internal document for WMATA's purposes and not slated for public disclosure. Upon receipt of the Bondi Report, the WMATA Board decided to release it to the public in its entirety. By disclosing the Bondi Report, WMATA chose to disclose the legal and factual conclusions that were contained in the report and, therefore, waived any claim of attorney-client privilege that existed with respect to the Bondi Report itself. The Court must now consider whether the public disclosure of the Bondi Report also resulted in subject-matter waiver of the attorney-client privilege covering the interview memoranda used to compile the report."; "The Court finds that the waiver of privilege as to the Bondi Report was intentional. . . . the Bondi Report cites extensively to the interview memoranda throughout the entirety of the document. The Court notes multiple references to at least 23 different witness interviews. Additionally, WMATA has not argued that the interview memoranda contain information outside the scope of the investigation or Bondi Report."; "'Ms. Rockwood notes in her declaration that the references to the interview memoranda in the Bondi Report were intended only for use by Cadwalader. . . . However, WMATA failed to remove the references and citations from the version of the Bondi Report that was made available to the public.'"; "WMATA has not zealously protected the information contained in the interview memoranda. Instead, WMATA has permitted direct citation and reference to confidential communications to be disclosed publically in the Bondi Report. WMATA has also used the Bondi Report to its advantage in this litigation. Fairness dictates that if WMATA is able to use the Bondi Report and facts disclosed in that report to support its claims and defenses, then Banneker is entitled to the remaining facts and information contained in the interview memoranda that were not included in the Bondi Report. The intent of subject matter waiver is to prevent a party from selectively disclosing information and documents that would otherwise be privileged to gain a tactical advantage. WMATA cannot both benefit from the disclosure of the Bondi Report and prevent further disclosure of the remaining information in the interview memoranda.")

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC

Chapter: 16.502
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: 16.502
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)
("[T]o the extent that any facts or information are known to either defendant without reference to their having been discussed in any privileged communication, then defendants shall fully respond to such discovery requests. For example, if an interrogatory can be answered without reliance on or reference to the occurrence of and content of a privileged communication, then defendants shall answer such interrogatory regardless of whether the interrogatory is directed at underlying factual matter that happened to be later discussed in a privileged communication. Only if disclosure of facts would unavoidably result in disclosure that the facts occurred or were learned in the context of a privileged communication may defendants assert the privilege as to the disclosure of such facts.")

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

Chapter: 16.502
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)
("Plaintiffs further contend that defendants may not assert the privilege as grounds to withhold facts or information solely by reason of such facts or information being the subject of a privileged communication. I agree.")

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

Chapter: 16.502
Case Name: Textron Financial Corporation v. Gallegos, Case No. 15cv1678-LAB (DHB), 2016 U.S. Dist. LEXIS 103578 (S.D. Cal. Aug. 5, 2016)
("[T]he privilege only protects communications between Gallegos [Defendant] and Gaghen [Defendant's lawyer] from disclosure, not underlying facts known by Gaghen.")

Case Date Jurisdiction State Cite Checked
2016-08-05 Federal CA

Chapter: 16.502
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: 16.502
Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 100535 (S.D. Cal. July 31, 2015)
("[F]acts are not privileged, only communications. But here, Plaintiff is, in fact, seeking communications in the form of 2011 Emails, not the underlying facts.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal CA

Chapter: 16.502
Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("Facts acquired from persons or sources other than the client are not privileged.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal DC

Chapter: 16.502
Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 85234 (N.D. Ill. July 1, 2015)
("Documents 13 and 14 are email communications exchanged between Angie Morales, another Carnival paralegal, and Alexandra Missagia, director of worldwide sales for Carnival, summarizing conversations they had with Tom Panici, account manager with responsibility for RMG, in March 2011. Morales drafted the email with the intention of sending it to Mike Julius, Managing Director of U.S. Sales for Carnival."; "While this email exchange is contained within an email chain disseminating outside counsel's advice, the March 2011 conversations predated counsel's request for information in April 2011. Further, the Court concludes that the information described in the March 2011 conversation with Panici was not 'necessary' to disseminate counsel's advice. . . . (finding documents reflecting the necessary dissemination of legal information among non-attorneys privileged). Thus, the facts described in documents 13 and 14 are neither directly related to information sought by outside counsel nor reflect upon counsel's legal advice."; "Documents 13 and 14 shall be produced.")

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

Chapter: 16.502
Case Name: SEC v. Carrillo Huettel LLP, 13 Civ. 1735 (GBD) (JCF), 2015 U.S. Dist. LEXIS 45988 (S.D.N.Y. April 8, 2015)
("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
2015-04-08 Federal NY

Chapter: 16.502
Case Name: United States v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 162680 (D.D.C. Nov. 20, 2014)
("[A] consultation with a lawyer does not make underlying facts privileged, even though the substance of the discussion about those facts would be.")

Case Date Jurisdiction State Cite Checked
2014-11-20 Federal DC

Chapter: 16.502
Case Name: Pate v. Winn-Dixie Stores, Inc., Civ. A. No. CV213-166, 2014 U.S. Dist. LEXIS 14874 (S.D. Ga. Oct. 20, 2014)
("The privilege does not protect facts communicated to an attorney; therefore, a designated agent must testify as to factual information transmitted from or through its counsel.")

Case Date Jurisdiction State Cite Checked
2014-10-20 Federal GA

Chapter: 16.502
Case Name: Perez v. El Tequila LLC, Case No. 12-CV-588-JED-PJC, 2014 U.S. Dist. LEXIS 149372 (N.D. Okla. Oct. 20, 2014)
("The privilege protects communications between the attorney and his or her client. It does not, however, protect the information contained within the attorney-client communication.")

Case Date Jurisdiction State Cite Checked
2014-10-20 Federal OK

Chapter: 16.502
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: 16.502
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *14-15 (W.D. Wash. Sept. 19, 2014)
("Counsel for Plaintiff may inquire into conversations that took place at SHA legal department staff meetings, including as they related to SHA management decisions and opinions about the decisions of Mr. Chandola and other Hearing Officers, which took place prior to the initiation of this litigation. At deposition, counsel for Defendants may object on the basis of attorney-client privilege only if SHA can show that the dominant purpose of a conversation inquired into was to impart or receive confidential legal advice rather than to make a personnel decision. In no instance are the facts underlying communications with SHA attorneys and relevant to claims and defenses privileged.")

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

Chapter: 16.502
Case Name: In re ISN Software Corp. Appraisal Litig., Civ. A. No. 8388-VCG, 2014 Del. Ch. LEXIS 52 (Del. Ch. Ct. April 10, 2014)
(finding that the attorney-client privilege did not protect draft board minutes; "The Petitioners here challenge the Respondent's claim of privilege over certain draft documents, including draft board minutes, created by ISN's management but 'forwarded to counsel for legal review.' The Petitioners contend that the Respondent may not 'claim privilege over a document merely because it was forwarded to counsel,' as 'ISN has never made a claim of work-product with respect to draft minutes,' and 'the drafts Petitioners' [sic] seek are of minutes in which (1) no attorney attended, (2) no attorney authored and (3) the final minutes do not reflect a single conversation with counsel.' According to the Petitioners, 'ISN is attempting to shield relevant non-privileged documents from discovery by funneling those documents through its counsel,' but the facts contained in the draft documents at issue 'do not become privileged merely by transmitting those facts to an attorney.'")

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

Chapter: 16.502
Case Name: Americus Mortg. Corp. v. Mark, Civ. A. No. 12-10158-GAO, 2013 U.S. Dist. LEXIS 148820, at *10 (D. Mass. Oct. 16, 2013)
("The privilege extends only to confidential communications and not to the underlying facts. . . . Consequently, it does not immunize underlying facts available from another source just because a client disclosed the facts to an attorney.")

Case Date Jurisdiction State Cite Checked
2013-10-16 Federal MA B 5/14

Chapter: 16.502
Case Name: Diodato v. Wells Fargo Ins. Servs. USA, Inc., Civ. No. 1:12-CV-2454, 2013 U.S. Dist. LEXIS 96920, at *6 (M.D. Pa. July 11, 2013)
("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. . . . However, the privilege extends only to the disclosure of the communications, and does not extend to disclosure of the underlying facts conveyed in those communications.")

Case Date Jurisdiction State Cite Checked
2013-07-11 Federal PA B 4/14

Chapter: 16.502
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *37 (E.D. Wis. July 10, 2013)
("[A]s the document appears to have been related to the government's investigation and in anticipation of further government proceedings, the document qualifies for work product protection regarding what Furr [defendant] and his counsel said. Regardless of whether particular 'historical facts' may be within the government's knowledge, what Furr and his counsel focused on and the issues they discussed concerning those historical facts are not subject to disclosure to the government.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 16.502
Case Name: Fid. Nat'l Title Ins. Co. v. Harlow, Adams & Friedman, P.C., No. CV116021869S, 2013 Conn. Super. LEXIS 1447, at *17 (Conn. Super. Ct. June 27, 2013)
("In the present case, the allegedly offensive interrogatories all relate to the transfer of funds by the defendant on behalf of its client. They do not relate to legal counseling of the client or the defendant's client seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2013-06-27 State CT B 4/14

Chapter: 16.502
Case Name: In re Uehling, Case Nos. 1: 13-mc-00022-BAM & 2: 12-cv-01301-SLG, 2013 U.S. Dist. LEXIS 90867, at *18 (E.D. Cal. June 27, 2013)
("[T]he attorney-client privilege only protects certain communications; it does not protect disclosure of the underlying facts of those communications.")

Case Date Jurisdiction State Cite Checked
2013-06-27 Federal CA B 4/14

Chapter: 16.502
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 *8-9, a*9 (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 a case list prepared by Chris Risberg, a paralegal working for outside counsel. It basically sets out the name of the case, the state in which the case is brought, the building type, and the product or claim at issue in each case. The Defendant claims privilege but that claim fails, because there is no communication between attorney and client reflected in this list. It is, rather, just a factual description of the extant cases. The attorney-client privilege does not protect underlying facts."; "The Defendant claims work product, and while there does not seem to be much though process going on in the preparation of the list, it is apparent that the list is prepared for litigation purposes and it would be of some assistance to MIWD's lawyer. As such, it is granted the qualified immunity of fact work product.")

Case Date Jurisdiction State Cite Checked
2013-05-01 Federal SC B 12/13

Chapter: 16.502
Case Name: Abbo-Bradley v. City of Niagara Falls, 293 F.R.D. 401, 409 (W.D.N.Y. 2013)
("[E]ven if providing defendants the opportunity for split sampling could somehow be construed as an intrusion on confidential communications between plaintiffs' counsel and their clients, the factual and scientific evidence collected through observation of the physical condition of the property in the area of the Landfill 'can never be protected by the attorney-client privilege and neither can the resulting opinions and recommendations' of the environmental consultants, scientists, or engineers employed to gather the data." (citation omitted))

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

Chapter: 16.502
Case Name: Gueniot Kornegay v. Blitz U.S.A., No. 3:10CV429 TSL MTP, 2012 U.S. Dist. LEXIS 172468, at *7-8 (S.D. Miss. Dec. 5, 2012)
(analyzing a Rule 30(b)(6) deposition of a Wal-Mart employee; "[F]acts are not protected by the attorney-client privilege or the work-product doctrine. Likewise, the underlying facts are not privileged strictly because they were provided to the deponent by counsel.")

Case Date Jurisdiction State Cite Checked
2012-12-05 Federal MS B 9/13

Chapter: 16.502
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: 16.502
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)
("[T]he privilege has limits. It does not shield from discovery the facts underlying the communication; it applies only to communications made in confidence; it covers only communications made with a view toward obtaining legal advice; and it may be waived. Hawkins, 148 F.3d at 383 [Hawkins v. Stables, 148 F.3d 379, 382-83 (4th Cir. 1998)]")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal VA

Chapter: 16.502
Case Name: Congregation Sha'are Shalom v. Tully Int'l, Inc., 78 Va. Cir. 188, 189 (Va. Cir. Ct. 2009)
("Therefore, it appears to me that the only documents that the Congregation needs are the ones relevant to the premiums charged and paid for the errors and omissions policy. I do not think that attorney work product or attorney-client privilege would protect these documents from production.")

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

Chapter: 16.502
Case Name: Burlage v. Summerville Senior Living, Inc., Civ. A. No. 1:07cv352, 2007 U.S. Dist. LEXIS 79551, at *2 (E.D. Va. Oct. 25, 2007)
("'The privilege attaches not to the information but to the communication of the information.' United States v. O'Malley, 786 F.2d 786, 794 (7th Cir. 1986). The privilege protects the communication itself, not the facts conveyed in the communication.")

Case Date Jurisdiction State Cite Checked
2007-10-25 Federal VA

Chapter: 16.502
Case Name: Burlage v. Summerville Senior Living, Inc., Civ. A. No. 1:07cv352, 2007 U.S. Dist. LEXIS 79551, at *2-3 (E.D. Va. Oct. 25, 2007)
("Plaintiff asserts she wants to know only facts-the dates and times-regarding the decision to consult counsel and that communication with counsel about the eviction letter. But defendants have already produced a privilege log setting forth the dates of the communications protected by the attorney-client privilege or work product doctrine. If communications between defendants and counsel took place regarding the eviction letter, presumably they are there included. Therefore, plaintiff already has the facts to which she is entitled. Requiring defendants to provide greater specificity as to their communications with counsel on particular issues would necessarily reveal the nature of the communications. The nature of communications between 'attorney and client made because of that relationship and concerning the subject matter of attorney employment' is precisely what the privilege protects. If and when defendants decided to consult with counsel about his drafting an eviction letter, and if and when they did so consult are issues that go to the nature of defendants' communications with counsel. Such information is therefore privileged and protected. Plaintiff is not entitled to it.")

Case Date Jurisdiction State Cite Checked
2007-10-25 Federal VA b 3/16
Comment:

key case


Chapter: 16.502
Case Name: Monroe v. City of Charlottesville, Civ. No. 3:05cv00074, 2007 U.S. Dist. LEXIS 63013, at *12 nn.4, 5 (W.D. Va. Aug. 27, 2007)
(assessing whether the plaintiff was an adequate class representative; ultimately finding that the plaintiff was not adequate; noting that "'[d]uring the deposition, Plaintiff's attorney objected and Plaintiff never stated when he first considered filing a lawsuit or when he first authorized the filing of the lawsuit. Inasmuch as the first question does not contemplate a communication between Plaintiff and his attorney and the second question does not seem to contemplate a confidential communication between Plaintiff and his attorney, it would seem as though the privilege would not apply. Even if it did apply, it is unclear why Plaintiff's attorney would invoke the privilege for seemingly benign information, especially considering the burden is on the Plaintiff to prove that he meets the Rule 23(a) requirements."; also noting that plaintiff's lawyer objected to the defendants' question about whether the plaintiff knew a lawsuit had been filed before the filing; "Plaintiff's attorney again objected on the basis of attorney client privilege, but Defendants are not seeking a [sic] information from a communication made between Plaintiff and his attorney; instead, the question merely inquires whether Plaintiff knew that a lawsuit had been filed in his name before the time that his attorneys actually filed the lawsuit. As such, it would not appear that Plaintiff's answer to this question would be protected by the attorney client privilege. Regardless, Plaintiff did not answer the questions.")

Case Date Jurisdiction State Cite Checked
2007-08-27 Federal VA

Chapter: 16.502
Case Name: Sharer v. Tandberg, Inc., No. 1:06cv626 (JCC), 2007 U.S. Dist. LEXIS 22391, at *3, *4-*6 (E.D. Va. Mar. 27, 2007)
("The attorney client privilege 'protects only the communications themselves, not underlying facts.' X-Corp. v. Doe, 805 F. Supp. 1298, 1305 (E.D. Va. 1992) (citing Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). The mere fact of legal consultation also falls outside the protection of the privilege. See, e.g., In Re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983); Howell v. Jones, 516 F.2d 53, 58 (5th Cir. 1975). It is clear that the substance of any communications between Law and his attorney are protected by the attorney-client privilege, while the fact that he met with an attorney which he has openly admitted during the course of this litigation is not (footnote omitted). Thus, Plaintiffs do not seek to protect the fact of legal consultation under the guise of the attorney-client privilege, but instead seek to protect against a negative inference about the substantive information sought during such consultations namely whether Law was advised by counsel in writing the emails to Tandberg. The issue for this Court to resolve is whether an inference regarding assertion of the privilege intrudes upon that privilege or is irrelevant under Rule 402 of the Federal Rules of Evidence. . . . The Fourth Circuit examined the issue of whether a negative inference may be drawn by invocation of the attorney-client privilege in Parker v. Prudential Ins. Co. of America, 900 F.2d 772 (4th Cir. 1990). In that case, the Fourth Circuit held that 'a client asserting the privilege should not face a negative inference about the substance of the information sought.' Id. at 775. The Court's decision was based upon the finding that the testimony was only probative if one infers that the attorney advised the client to act as she did. . . . The fact that Law met with an attorney prior to the email exchange with Smith, Ricci, and Kent is only relevant to the extent that an inference may be drawn as to the substance of legal communications between attorney and client. As the Fourth Circuit held in Parker, 'any such inference would intrude upon the protected realm of the attorney-client privilege.' Id. Accordingly, Defendant may not refer to Plaintiff's legal consultation prior to the April emails to draw an inference about the substance of legal advice. In concordance with the Fourth Circuit precedent established in Parker, because the fact of legal consultation is only relevant in order to draw this improper inference, the danger of unfair prejudice to the Plaintiff greatly outweighs any probative value under Rule 403 of the Federal Rules of Evidence. Accordingly, this Court sees no reason to allow Defendants to question Law regarding his consultations with counsel prior to the sending of the emails.")

Case Date Jurisdiction State Cite Checked
2007-03-27 Federal VA

Chapter: 16.502
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 *49-50 (N.D.N.Y. Dec. 13, 2006)
("[T]he attorney-client privilege does not protect a deponent's knowledge of the relevant facts, whether they were learned by counsel or facts learned from an attorney from independent sources. . . . The same principles are true with regard to the work product doctrine because work product may encompass facts as well.")

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

key case


Chapter: 16.502
Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 326 (2000)
(rejecting the argument that a letter providing factual information to a lawyer and seeking legal advice is discoverable because the adversary "is only seeking factual material, the contents of the letter, not the advice counsel gave to [clients] concerning the letter"; explaining that "the substance of the letter in this case constitutes the very matter for which legal advice was sought. There is no 'factual material' apart from the substance of the letter itself.")

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA nsvb 2/23/04
Comment:

key case


Chapter: 16.502
Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 186, 187 (Va. Cir. Ct. 2000)
("Plaintiff agrees that some communications are privileged, but contends that the privilege does not extend to facts or alleged facts that counsel communicates to an employee or that an employee communicates to counsel. Plaintiff argues that communications giving legal advice are privileged, but that the facts conveyed in attorney-client communications are not. Therefore, plaintiff reasons, the attorney-client communications between Media General's in-house counsel and the corporation's employees are not privileged as to those facts. However, plaintiff's argument misstates the rule."; "Plaintiff specifically seeks the communication of facts between the corporation's employee and the corporation's attorney in this case, not merely the facts themselves. Contrary to plaintiff's argument, those communications of fact, written or oral, are privileged where, as stated above, the communications help legal counsel to serve the corporation. See Upjohn at 395. Plaintiff may, through usual discovery, inquire into the facts within the knowledge of Mahoney and McDonald, but plaintiff may not seek the extent or the method of communications of those facts from Mahoney to McDonald or McDonald to Mahoney.")

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

key case


Chapter: 16.502
Case Name: Industrial Chems., Inc. v. Rehrig Int'l, Inc., 2 Va. Cir. 147, 149 (Va. Cir. Ct. 1983)
("'[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, "What did you say or write to the attorney?" but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney'" (quoting Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)))

Case Date Jurisdiction State Cite Checked
1983-01-01 State VA

Chapter: 16.503
Case Name: Wye Oak Tech., Inc. v. Republic of Iraq, Civ. No. 1:10-cv-01182-RCL, 2018 U.S. Dist. LEXIS 159097 (D.D.C. Sept. 18, 2018)
(allowing the deposition of an opposing lawyer; "The conversation between Mr. Quinn and Mr. Lakhani is not privileged because a third party, Mr. Quinn, was present; the conversation occurred in public and was therefore not confidential; and Mr. Lakhani, not the defendants, was Mr. Mills' [Lawyer] client at the time of this conversation. Defendants did not become Mr. Mills' clients until after this conversation occurred. Although Mr. Mills' conversations with defendants are privileged, this does not prevent Wye Oak from being able to discover information about Mr. Mills' personal observations regarding the discussion that occurred between Mr. Quinn and Mr. Lakhani, which occurred before defendants became Mr. Mills' clients. . . . Wye Oak may depose Mr. Mills regarding the underlying facts of the contents of the conversation between Mr. Quinn and Mr. Lakhani that Mr. Mills allegedly witnessed even though Mr. Mills relayed this information to defendants in this case."; "The Court limits the scope of the deposition solely to information regarding this conversation. This limiting instruction will prevent attorney-client privileged information and attorney work-product information from being inquired about during plaintiff's deposition of Mr. Mills, and will guard against the concerns that make this Court wary of permitting depositions of opposing counsel.")

Case Date Jurisdiction State Cite Checked
2018-09-18 Federal DC

Chapter: 16.503
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)
("It cannot be too often repeated or too strongly emphasized that while a particular communication may be privileged, the underlying facts are not. . . . Thus, even if some or all of the email were privileged, the facts that prompted its writing and which were obviously known to the writer are not. In this case, the name of the author of Item 364 would have to be listed by Motorola in its required disclosures, and his knowledge disclosed. And this whether or not the actual email was privileged. What would happen next would be up to Hytera. But a deposition would seem a forgone conclusion, and disclosure of the facts that ultimately were expressed in the email would be inevitable. So, too, would be the identities of any individuals to whom he communicated these facts.")

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

Chapter: 16.503
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)
("[T]he privilege extends only to the disclosure of the communications, and does not extend to disclosure of the underlying facts conveyed in those communications.")

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

Chapter: 16.503
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)
("Questions about Dr. Weers' opinions on the strength or weakness of the case, in essence seek his opinions as to whether the PTO will grant the patent application. The Court finds that any opinions Dr. Weers has regarding the strength or weakness of the claims are based on his discussion with counsel about the patent process and what is necessary to satisfy the PTO. Therefore, the attorney-client privilege precludes Nalco from obtaining discovery on this line of questioning.")

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

key case


Chapter: 16.503
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: 16.503
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: 16.503
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)
("Genesis misses the point when it repeatedly argues that the attorney-client privilege does not apply to recitations of fact. As Upjohn makes clear, it is the underlying facts that are not protected by the attorney-client privilege. When the client recites facts to his attorney in the course of obtaining legal advice, that particular recitation is shielded from discovery.")

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

key case


Chapter: 16.503
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
("The Court begins by noting that attorney-client privilege 'only protects disclosure of communications; it does not protect disclosure of the underlying facts.'. . . Thus, Banneker could, through a well-written interrogatory, request the disclosure of all facts unearthed during the 51 witness interviews and WMATA would have no legitimate basis to refuse to respond. Banneker need not draft such an interrogatory, however, because the Court finds WMATA has waived the attorney-client privilege with respect to the interview memoranda."; "As originally commissioned, the Bondi Report was intended to be an internal document for WMATA's purposes and not slated for public disclosure. Upon receipt of the Bondi Report, the WMATA Board decided to release it to the public in its entirety. By disclosing the Bondi Report, WMATA chose to disclose the legal and factual conclusions that were contained in the report and, therefore, waived any claim of attorney-client privilege that existed with respect to the Bondi Report itself. The Court must now consider whether the public disclosure of the Bondi Report also resulted in subject-matter waiver of the attorney-client privilege covering the interview memoranda used to compile the report."; "The Court finds that the waiver of privilege as to the Bondi Report was intentional. . . . the Bondi Report cites extensively to the interview memoranda throughout the entirety of the document. The Court notes multiple references to at least 23 different witness interviews. Additionally, WMATA has not argued that the interview memoranda contain information outside the scope of the investigation or Bondi Report."; "'Ms. Rockwood notes in her declaration that the references to the interview memoranda in the Bondi Report were intended only for use by Cadwalader. . . . However, WMATA failed to remove the references and citations from the version of the Bondi Report that was made available to the public.'"; "WMATA has not zealously protected the information contained in the interview memoranda. Instead, WMATA has permitted direct citation and reference to confidential communications to be disclosed publically in the Bondi Report. WMATA has also used the Bondi Report to its advantage in this litigation. Fairness dictates that if WMATA is able to use the Bondi Report and facts disclosed in that report to support its claims and defenses, then Banneker is entitled to the remaining facts and information contained in the interview memoranda that were not included in the Bondi Report. The intent of subject matter waiver is to prevent a party from selectively disclosing information and documents that would otherwise be privileged to gain a tactical advantage. WMATA cannot both benefit from the disclosure of the Bondi Report and prevent further disclosure of the remaining information in the interview memoranda.")

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC

Chapter: 16.503
Case Name: Whitchurch v. Canton Marine Towing Co., Inc., No. 16-cv-3278, 2017 U.S. Dist. LEXIS 42034 (C.D. Ill. March 23, 2017)
(holding that a third party's affidavits did not deserve work product protection; "The privilege, however, does not extend to the identity of individuals with knowledge and the factual information that such individual possess.")

Case Date Jurisdiction State Cite Checked
2017-03-23 Federal IL

Chapter: 16.503
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)
("[T]o the extent that any facts or information are known to either defendant without reference to their having been discussed in any privileged communication, then defendants shall fully respond to such discovery requests. For example, if an interrogatory can be answered without reliance on or reference to the occurrence of and content of a privileged communication, then defendants shall answer such interrogatory regardless of whether the interrogatory is directed at underlying factual matter that happened to be later discussed in a privileged communication. Only if disclosure of facts would unavoidably result in disclosure that the facts occurred or were learned in the context of a privileged communication may defendants assert the privilege as to the disclosure of such facts.")

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

Chapter: 16.503
Case Name: Loop Ai Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2016 U.S. Dist. LEXIS 114247 (N.D. Cal. Aug. 25, 2016)
("Plaintiff's witnesses also refused to respond to questions seeking the factual bases of Plaintiff's claims based on improper assertions of attorney-client privilege. This court has repeatedly ordered Plaintiff to respond to discovery seeking information about the factual allegations in Plaintiff's complaints.")

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

Chapter: 16.503
Case Name: Carlin v. Dairy America, Case No. 1:09-cv-430 AWI-EPG, 2016 U.S. Dist. LEXIS 108737 (E.D. Cal. Aug. 16, 2016)
(holding that defendant's spreadsheet about possible damages was not privileged, but deserved work product protection which the plaintiff could overcome; declining to allow the inadvertently produced spreadsheet to be clawed-back by the defendant; "Here, the spreadsheet consists of factual data maintained by Dairy America, albeit data that was gathered based on an attorney's request. The document does not contain communications seeking or giving legal advice. The spreadsheet is merely a compilation of data related to sales and pricing that was transmitted to an attorney for a work-product purpose. It does not contain any request from a client, nor any advice -- or indeed any response at all -- from an attorney. Accordingly, the document is not protected under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-08-16 Federal CA

Chapter: 16.503
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: 16.503
Case Name: McSparran v. Commonwealth of Pennsylvania, Civ. No. 1:13-CV-1932, 2016 U.S. Dist. LEXIS 19993 (M.D. Pa. Feb. 18, 2016)
(allowing the plaintiff to ask the government agency's investigator about the logistics of her investigation into sexual discrimination allegations, and also ask her about the facts she uncovered; dealing first with attorney-client privilege issues; "[T]he information at issue is not a communication. Plaintiff wants disclosure of the steps Moseley took during her investigation -- what she did, who she talked to, where she looked -- not disclosure of what agency counsel told her. Thus, Plaintiff seeks disclosure of underlying facts, and those facts do not become shielded under attorney-client privilege simply because they may have been included in a communication between Moseley and counsel. Id."; "Accordingly, we will deny Defendants' motion for protective order. Plaintiff may inquire into the steps Moseley took during the course of her investigation. She may also inquire into the facts Moseley learned during that investigation. Plaintiff may not, however, discover the contents of conversations Moseley had with agency counsel or the contents of conversations Moseley had with other DEP employees while acting at the direction of agency counsel. Such conversations, whether written or oral, are privileged attorney-client communications."; also finding the work product doctrine inapplicable)

Case Date Jurisdiction State Cite Checked
2016-02-18 Federal PA

Chapter: 16.503
Case Name: Atlantis Consultants Ltd. Corp. v. Terradyne Armored Vehicles, Inc., Civ. No. 1:15-cv-439-CMH-MSN, 2015 U.S. Dist. LEXIS 169152 (E.D. Va. Dec. 16, 2015)
("Plaintiff argues further that '[w]hether [Defendant] improperly disclosed [Plaintiff]'s confidential information is an operative fact that cannot be concealed under the attorney client privilege, common interest privilege, or any other privilege.'. . . By inquiring as to what Defendant 'disclosed,'. . . Plaintiff is necessarily asking what Defendant 'sa[id] or wr[ote],'. . . rather than some 'fact' that can be divorced from the content of the communications.")

Case Date Jurisdiction State Cite Checked
2015-12-16 Federal VA
Comment:

key case


Chapter: 16.503
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: 16.503
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *25 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "Barko was able to pursue the facts underlying KBR's investigation. But he was not entitled to KBR's own investigation files.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 16.503
Case Name: Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 282 (W.D. Pa. 2014)
(analyzing documents created during a post-accident investigation, and application of the common interest doctrine; "[C]ommunications made by Patterson's [employer of a worker who died at an oil rig] employees to Attorney Shu [Patterson's outside lawyer] for the purposes of gaining legal advice or formulating legal strategy are protected from disclosure. Plaintiff cannot compel disclosure of such communications. Nevertheless, plaintiff is free to gather the factual information from Patterson and the other defendants through myriad discovery devises and neither Patterson nor any other defendant can shelter the actual factual information known or imparted to them. But it is plaintiff's burden to employ those devises and frame the inquires in a manner that nets the factual information without intruding into the actual privileged documents and communications.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal PA B 8/14

Chapter: 16.503
Case Name: Wiand v. Wells Fargo Bank, N.A., Case No. 8:12-CV-557-T-27EAJ, 2013 U.S. Dist. LEXIS 166375, at *5 (M.D. Fla. Nov. 22, 2013)
("[A] deponent may not refuse to answer questions seeking factual information merely because the facts were learned through counsel.")

Case Date Jurisdiction State Cite Checked
2013-11-22 Federal FL B 5/14 B 5/14

Chapter: 16.503
Case Name: Americus Mortg. Corp. v. Mark, Civ. A. No. 12-10158-GAO, 2013 U.S. Dist. LEXIS 148820, at *10 (D. Mass. Oct. 16, 2013)
("The privilege extends only to confidential communications and not to the underlying facts. . . . Consequently, it does not immunize underlying facts available from another source just because a client disclosed the facts to an attorney.")

Case Date Jurisdiction State Cite Checked
2013-10-16 Federal MA B 5/14

Chapter: 16.503
Case Name: Bishop Rink Holdings, LLC v. CIMCO Refrigeration, Inc., Case No. 12-2715-JAR-KGG, 2013 U.S. Dist. LEXIS 112257, at *9, *9-10 (D. Kan. Aug. 9, 2013)
(holding that facts do not deserve privilege protection, but that the adversary must obtain the facts through other discovery; " For example, if a party involved in a car accident was adjusting his radio at the time of the accident, he may be required to disclose that fact in his deposition. The fact does not become privileged because before the deposition he communicated the fact to his attorney. However, his communication of that fact to his attorney is privileged."; "Discovery of the facts of this case may be had without examining the disclosure of these facts in a privileged communication.")

Case Date Jurisdiction State Cite Checked
2013-08-09 Federal KS B 4/14

Chapter: 16.503
Case Name: Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968, at *11-12, *12-13 (D.S.C. May 23, 2013)
(holding that the attorney-client privilege protected a collection of historical data; not addressing any possible work product protection; noting that the party produced the raw data to the adversary; "Defendants contend that the spreadsheets were created to enable defense counsel to advise Defendants on litigation strategy and the possibility of settlement. In a declaration, the general manager of Starcraft Bus asserted that after the filing of this lawsuit, Defendants' attorney requested that particular information be pulled from the files of Starcraft Bus [defendant], that certain calculations be made using variables he requested, and that the data be compiled in a certain way to aid his analysis. Accordingly, Starcraft Bus employees compiled the requested information in the spreadsheets now requested by Plaintiff. The general manager further averred that the spreadsheets have never been shared with any third party or government agency, were not used in the normal course of business, and were not required by any regulatory agency. There is no evidence contradicting the general manager's assertions."; "The Court concludes that the spreadsheets are protected by the attorney-client privilege. The specific data was compiled and calculations were made at the request of counsel following the commencement of litigation and for the purpose of rendering legal advice regarding this case. Furthermore, there is no evidence that the spreadsheets have ever been disclosed to a third party. . . . However, the Court finds that the raw data relating to FMVSS [Federal Motor Vehicle Safety Standards] certification of South Carolina buses upon which Defendants drew to create the spreadsheets is not protected by the privilege and is responsive to Request No. 19. . . . Thus, to the extent that Defendants have not produced non-privileged documents containing raw data relating to FMVSS compliance for Starcraft buses sold to South Carolina residents, Defendants must produce those documents to Plaintiff.")

Case Date Jurisdiction State Cite Checked
2013-05-23 Federal SC B 3/14

Chapter: 16.503
Case Name: Moore v. Dan Holdings, Inc., No. 1:12CV503, 2013 U.S. Dist. LEXIS 61378, at *19 (M.D.N.C. Apr. 30, 2013)
(holding that an employment discrimination plaintiff was not entitled to details about a company lawyer's investigation of alleged employment discrimination, such as the identity of the witnesses, etc.; "[A]lthough Defendants cannot prevent fact witnesses from presenting information during the course of discovery simply because such witnesses also provided information to Defendants' counsel, Plaintiff may not attempt to learn the underlying facts simply by using discovery to inquire about the investigation conducted by Defendants' counsel.")

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal NC B 7/13

Chapter: 16.503
Case Name: Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 555 (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; "[T]he facts here are the attributes of Goldman Sachs employees, not the collection and communication of those facts through the Diversity Objects fields. The attributes -- the facts -- are available in the PeopleSoft database, which is not cloaked by the attorney-client privilege, and which has been disclosed to the plaintiffs.")

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

Chapter: 16.503
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 99 (Fed. Cl. 2013)
("[A]lthough the privilege protects the substance of attorney-client communications, 'it does not protect disclosure of the underlying facts by those who communicated with the attorney.'. . . Underlying facts, therefore, are independently discoverable, but the facts that a client included in a request for legal advice to assist the attorney in providing legal services are privileged in the context of an attorney-client communication.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal Other B 3/15

Chapter: 16.503
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *163 (S.D. Ohio Nov. 13, 2012)
("[W]hile the Court reaffirms the principle that the attorney-client privilege and work product doctrine do not protect underlying facts, the Court will compel no further production or redaction of the withheld documents to unearth any potential underlying facts. Plaintiffs may inquire about the relevant facts by deposing the appropriate witnesses or through other discovery vehicles.")

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

Chapter: 16.503
Case Name: Collins v. Braden, 384 S.W.3d 154, 159 (Ky. 2012)
(holding that the attorney-client privilege might protect documents created during an internal corporate investigation about a plaintiff's suicide; remanding for further evidence; "It protects only the communication to the attorney. It does not protect any facts or claims reported to the attorney in those communications from all discovery. Such facts are still discoverable through other discovery tools like depositions of the hospital's employees. Thus, for example, if a physician employee had admitted fault to the attorney investigator, the communication of the fault (and any recording of it, written or oral) would be protected. The privilege, however, would not prevent plaintiff's counsel from deposing the physician employee and asking whether he was at fault. . . . That the deposition process would be more expensive, both in time and money, especially given the number of physicians and other employees involved in Mr. Collins' care, does not change this principle.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State KY B 9/13

Chapter: 16.503
Case Name: Collins v. Braden, 384 S.W.3d 154, 159 (Ky. 2012)
("[The attorney-client privilege] does not protect any facts or claims reported to the attorney in those communications from all discovery. Such facts are still discoverable through other discovery tools like depositions of the hospital's employees.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State KY B 12/13

Chapter: 16.503
Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 186, 187 (Va. Cir. Ct. 2000)
("Plaintiff agrees that some communications are privileged, but contends that the privilege does not extend to facts or alleged facts that counsel communicates to an employee or that an employee communicates to counsel. Plaintiff argues that communications giving legal advice are privileged, but that the facts conveyed in attorney-client communications are not. Therefore, plaintiff reasons, the attorney-client communications between Media General's in-house counsel and the corporation's employees are not privileged as to those facts. However, plaintiff's argument misstates the rule."; "Plaintiff specifically seeks the communication of facts between the corporation's employee and the corporation's attorney in this case, not merely the facts themselves. Contrary to plaintiff's argument, those communications of fact, written or oral, are privileged where, as stated above, the communications help legal counsel to serve the corporation. See Upjohn at 395. Plaintiff may, through usual discovery, inquire into the facts within the knowledge of Mahoney and McDonald, but plaintiff may not seek the extent or the method of communications of those facts from Mahoney to McDonald or McDonald to Mahoney.")

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

Chapter: 16.503
Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 326 (2000)
(rejecting the argument that a letter providing factual information to a lawyer and seeking legal advice is discoverable because the adversary "is only seeking factual material, the contents of the letter, not the advice counsel gave to [clients] concerning the letter"; explaining that "the substance of the letter in this case constitutes the very matter for which legal advice was sought. There is no 'factual material' apart from the substance of the letter itself.")

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA nsvb 2/23/04

Chapter: 16.503
Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1305 n.13 (E.D. Va. 1992)
(enjoining a former in-house lawyer and his lawyer from disclosing privileged documents in-house lawyer retained when he was terminated for allegedly complaining about corporate misconduct; refusing to order the former in-house lawyer to return the documents to the company; "'[T]he privilege protects only the communications themselves, not underlying facts, the disclosure of which may be compelled from those who communicated them to the attorney.'")

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA B 8/15

Chapter: 16.504
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: 16.504
Case Name: Wiand v. Wells Fargo Bank, N.A., Case No. 8:12-CV-557-T-27EAJ, 2013 U.S. Dist. LEXIS 166375, at *6 (M.D. Fla. Nov. 22, 2013)
("[T]he issue is whether Wells Fargo's inquiries seek the factual basis of Receiver's claims or call for the legal theories, strategies, and conclusions of Receiver's attorneys. Receiver has adequately established that certain questions encroach on privileged communications. For example, asking Receiver to explain why the doctrines of delayed discovery and continuing violations apply calls for legal theories and could result in disclosure of protected communications. However, some questions were factual in nature and should be answered." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-11-22 Federal FL B 5/14

Chapter: 16.504
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 751 (E.D. Va. 2007)
("RLI made the conclusory assertion that 'the only way Mr. Rasmussen could possibly know [the answer to each question] would be if his client told him' in a privileged communication. This assertion is unsupported by any proof. A conclusory allegation that the documents sought are protected by attorney client privilege is inadequate to meet this burden.")

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal VA B 5/08

Chapter: 16.505
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)
("[S]everal of the documents submitted for in camera review reflect that certain documents or information is being transmitted to counsel at counsel's request. The document standing alone is not privileged but the fact that a particular document has been requested by an attorney or that a particular document is being transmitted to an attorney at his or her request is subject to the work product privilege. On the other hand, there may be a document that is an attachment but the document was specifically prepared at the request of an attorney and therefore the document is independently subject to the work product privilege, assuming the document was created in anticipation of or incident to ongoing legal proceedings."; "The difference between these two types of scenarios has now been resolved. With regard to documents for which Defendants are not asserting independently a privilege, Defendants have certified that those documents have been or will be produced to Plaintiffs. With regard to the remaining attachments, where disclosure of the attachment would invade the work product privilege (and in some cases the attorney client privilege) the Court has examined these attachments as part of the in camera inspection and determined whether disclosure of the attachment would itself invade the work product privilege. The Court's ruling on attachments therefore has taken this into account.")

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

key case


Chapter: 16.505
Case Name: Atlantis Consultants Ltd. Corp. v. Terradyne Armored Vehicles, Inc., Civ. No. 1:15-cv-439-CMH-MSN, 2015 U.S. Dist. LEXIS 169152 (E.D. Va. Dec. 16, 2015)
("Plaintiff argues further that '[w]hether [Defendant] improperly disclosed [Plaintiff]'s confidential information is an operative fact that cannot be concealed under the attorney client privilege, common interest privilege, or any other privilege.'. . . By inquiring as to what Defendant 'disclosed,'. . . Plaintiff is necessarily asking what Defendant 'sa[id] or wr[ote],'. . . Rather than some 'fact' that can be divorced from the content of the communications.")

Case Date Jurisdiction State Cite Checked
2015-12-16 Federal VA
Comment:

key case


Chapter: 16.505
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: 16.505
Case Name: Sharer v. Tandberg, Inc., No. 1:06cv626 (JCC), 2007 U.S. Dist. LEXIS 22391, at *3, *4-*6 (E.D. Va. Mar. 27, 2007)
("The attorney client privilege 'protects only the communications themselves, not underlying facts.' X-Corp. v. Doe, 805 F. Supp. 1298, 1305 (E.D. Va. 1992) (citing Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). The mere fact of legal consultation also falls outside the protection of the privilege. See, e.g., In Re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983); Howell v. Jones, 516 F.2d 53, 58 (5th Cir. 1975). It is clear that the substance of any communications between Law and his attorney are protected by the attorney-client privilege, while the fact that he met with an attorney which he has openly admitted during the course of this litigation is not (footnote omitted). Thus, Plaintiffs do not seek to protect the fact of legal consultation under the guise of the attorney-client privilege, but instead seek to protect against a negative inference about the substantive information sought during such consultations namely whether Law was advised by counsel in writing the emails to Tandberg. The issue for this Court to resolve is whether an inference regarding assertion of the privilege intrudes upon that privilege or is irrelevant under Rule 402 of the Federal Rules of Evidence. . . . The Fourth Circuit examined the issue of whether a negative inference may be drawn by invocation of the attorney-client privilege in Parker v. Prudential Ins. Co. of America, 900 F.2d 772 (4th Cir. 1990). In that case, the Fourth Circuit held that 'a client asserting the privilege should not face a negative inference about the substance of the information sought.' Id. at 775. The Court's decision was based upon the finding that the testimony was only probative if one infers that the attorney advised the client to act as she did. . . . The fact that Law met with an attorney prior to the email exchange with Smith, Ricci, and Kent is only relevant to the extent that an inference may be drawn as to the substance of legal communications between attorney and client. As the Fourth Circuit held in Parker, 'any such inference would intrude upon the protected realm of the attorney-client privilege.' Id. Accordingly, Defendant may not refer to Plaintiff's legal consultation prior to the April emails to draw an inference about the substance of legal advice. In concordance with the Fourth Circuit precedent established in Parker, because the fact of legal consultation is only relevant in order to draw this improper inference, the danger of unfair prejudice to the Plaintiff greatly outweighs any probative value under Rule 403 of the Federal Rules of Evidence. Accordingly, this Court sees no reason to allow Defendants to question Law regarding his consultations with counsel prior to the sending of the emails.")

Case Date Jurisdiction State Cite Checked
2007-03-27 Federal VA

Chapter: 16.601
Case Name: GE v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562, at *4 (D. Conn. Sept. 15, 2015)
November 11, 2015 (PRIVILEGE POINT)

"Can the Privilege Ever Protect Historical Documents?"

The attorney-client privilege normally does not protect pre-existing historical documents, even if clients convey those to their lawyers. In the work product context, lawyers' selection of certain intrinsically unprotected historical documents can deserve opinion work product protection — but few courts have recognized a parallel protection for clients' selection of historical documents they consider important. This is one of the most mysterious gaps in privilege jurisprudence.

In GE v. United States, the government challenged GE's privilege assertion for "attachments to otherwise privileged email communications between [GE] attorneys and GE personnel." No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562, at *4 (D. Conn. Sept. 15, 2015). The court refreshingly acknowledged that an intrinsically unprotected historical document the client sends a lawyer could "reveal that it was communicated in confidence to an attorney in connection with the seeking or receipt of legal advice." Id. At *5. The court even offered an example: an executive's sending to "the company's counsel a news article about alleged bid-rigging activities within the company's industry" — explaining that "the fact that the news article is a quintessentially public document would not defeat a claim of privilege." Id. At *5-6. Perhaps not surprisingly, the court cited no case law for this proposition.

Lawyers' selection of intrinsically unprotected documents can deserve opinion work product protection only if the adversary also has the documents. Although the GE court did not address this issue, presumably privilege protection would apply to clients' selection only if those intrinsically unprotected historical documents were otherwise produced to the adversary (not in conjunction with the privileged communication). Otherwise, clients could withhold responsive intrinsically unprotected historical documents just by giving them to their lawyers.

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal CT
Comment:

key case


Chapter: 16.602
Case Name: Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
November 14, 2018 (PRIVILEGE POINT)

How Do Clients Successfully Assert Privilege Protection for Draft Documents They Send to Lawyers for Review?

Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and sometimes assistance in drafting. How do courts tell them apart?

In Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018), Judge Castel acknowledged these two basic principles. The court then explained that "[p]reexisting business documents that are sent to a lawyer are fundamentally different from drafts because their business purpose (or content) cannot be affected by any after-the-fact advice received from the lawyer." Id. at *4-5. The court also recognized that clients might ask for abstract legal advice, but "[t]o save time and to place the inquiry in a concrete setting, the business person could instead send a draft of the material" about which the clients seek advice. Id. at *5 (footnote omitted). Those documents can deserve privilege protection -- "[a]ssuming the transmittal of those drafts were confidential and implicitly or explicitly sought the lawyer's advice." Id. The court also explained how it would differentiate between unprotected preexisting documents and protected draft documents: "[t]he Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations." Id. at *8. The court then addressed possible privilege protection for each withheld document one by one.

Given this well-settled law and judicial approach, lawyers should educate their clients who send them draft documents to describe them as drafts, and to explicitly ask for legal advice if that is what they seek – so courts' "in camera" review will reach the right result.

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

Chapter: 16.602
Case Name: Basso v. New York University, 16-CV-7295 (VM) (KNF), 2018 U.S. Dist. LEXIS 126149 (S.D.N.Y. July 27, 2018)
("None of the e-mail messages in the string e-mail messages contained in Exhibit A contains a communication seeking or giving legal advice. Copying counsel on an e-mail message directed to an unidentified person does not establish that the: (1) communications contained in Exhibit A's e-mail messages are between the defendant and its counsel; (2) communications are intended to be, and in fact were, kept confidential; and (3) communications were made for the purpose of obtaining or providing legal assistance. . . . As the defendant acknowledges in its July 3, 2018 ex parte letter, Exhibit A contains 'internal communications among the highest level of administrators.' None of the communications is sent to or by the defendant's counsel; rather, counsel is only listed with the designation 'Cc,' signaling a copy recipient. Internal business communications by the defendant's high level administrators are not protected by the attorney-client privilege just because copies are sent to the defendant's counsel. The defendant failed to establish that the attorney-client privilege applies to the e-mail messages contained in the defendant's Exhibit A; thus, they must be disclosed to the plaintiffs.")

Case Date Jurisdiction State Cite Checked
2018-07-27 Federal NY

Chapter: 16.602
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; "Documents independently prepared by a party do not become privileged communications because they are later turned over to counsel.")

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

Chapter: 16.602
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: 16.602
Case Name: Millsaps College v. Lexington Ins. Co., Civ. A. No. 3:16CV193-CWR-LRA, 2017 U.S. Dist. LEXIS 114849 (S.D. Ms. July 24, 2017)
("The documents in question consists of strings of emails that were forwarded to various people involved in this matter. In some instances, those forwarded strings are clipped together, with potentially privileged communications clipped to communications that are clearly not privileged. The fact that non-privileged communications were transmitted to counsel does not make the entire package privileged; each communication must be analyzed on its own.")

Case Date Jurisdiction State Cite Checked
2017-07-24 Federal MS

Chapter: 16.602
Case Name: Boltz v. United Process Controls, Civ. A. No. 1:16-cv-703, 2017 U.S. Dist. LEXIS 102913 (S.D. Ohio June 23, 2017)
(in connection with employees claim that he was wrongfully terminated, finding that the communications did not deserve attorney-client privilege protection; "Here, the in camera review of the emails does not indicate that the primary purpose and/or dominant intent of the communication was to seek legal advice. . . . As noted above, the emails were written by and sent to non-attorney corporate employees relating to questions surrounding Eric Boltz' injury, health insurance, short and long term disability coverage."; "The fact that such information was later shared with counsel does not invoke the privilege.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal OH
Comment:

key case


Chapter: 16.602
Case Name: Diamond Consortium, Inc. v. Manookian, Civ. A. No. 4:16-CV-00094, 2017 U.S. Dist. LEXIS 83252 (E.D. Tex. May 31, 2017)
(allowing deposition of an adverse party's paralegal; "The Federal Rules of Civil Procedure do not specifically prohibit deposing an opposing party's paralegals."; "Here, Plaintiffs allege Defendants created public websites and advertisements accusing Plaintiffs of cheating customers and selling over graded diamonds. Plaintiffs allege Rice and Pepe may have knowledge about the creation of these allegedly negative websites and advertisements. Defendants generally respond that any work Rice and Pepe completed was in anticipation of litigation or at the direction of attorneys. Defendants do not explain how the attorney-client and work-product privilege apply to public websites and advertisements that were not for the purpose of obtaining or rendering legal advice. Defendants thus have not met their burden of showing an applicable privilege for the categories of information Plaintiffs seek from Rice and Pepe.")

Case Date Jurisdiction State Cite Checked
2017-05-31 Federal TX

Chapter: 16.602
Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("AbbVie avers that these documents are privileged because they were 'collected and compiled at the request of attorneys, so that the attorneys could provide informed legal advice.' Yet, AbbVie concedes 'that other copies of the same documents, in the original custodians' files, would not be privileged.' These documents were created for some unspecified business purpose unrelated to legal matters. Nevertheless, AbbVie asserts that this 'does not matter' and that the privilege should apply because an employee later sent those documents to counsel."; "We disagree. Pre-existing, non-privileged documents do not become privileged merely because they were later sent to an attorney. See SEPTA, 254 F.R.D. at 259. Every document sent to counsel in relation to a patent application is not automatically deemed privileged. AbbVie has not met its burden to prove that these particular documents are privileged.")

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

key case


Chapter: 16.602
Case Name: Wilson v. Greater Las Vegas Association of Realtors, Case No. 2:14-cv-00362-APG-NJK, 2016 U.S. Dist. LEXIS 58595 (D. Nev. May 2, 2016)
(ordering plaintiff to identify the document that she gave to her lawyer; "Plaintiff contends that she produced all documents responsive to these requests, but submits that identifying the specific documents that she provided to Attorney Callister so that he could evaluate the merits of a potential wrongful termination suit would reveal privileged information."; "Plaintiff has failed to satisfy her burden. The Court, therefore, finds that the identity of the documents disclosed to Mr. Callister is not protected by the attorney-client privilege. Plaintiff is ordered to provide supplemental responses identifying the documents responsive to Requests Nos. 43 and 51, no later than May 16, 2016.")

Case Date Jurisdiction State Cite Checked
2016-05-02 Federal NV

Chapter: 16.602
Case Name: Wellin v. Wellin, C.A. No. 2:13-CV-1831-DCN, C.A. No. 2:13-CV-3595-DCN, C.A. No. 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
(finding that neither the attorney-client privilege nor the work product doctrine protected a pre-existing client summary of events just because it was later sent to a lawyer; "I conclude that they have not carried their burden of establishing that these two documents are protected from disclosure by the attorney-client privilege. Both documents are summaries of events prepared by the Defendant, Peter Wellin, during the time that this Court has already determined there was only a general possibility of litigation, and thus, the notes and summaries in the hands of the client were not protected by the work product privilege.")

Case Date Jurisdiction State Cite Checked
2015-12-04 Federal SC
Comment:

key case


Chapter: 16.602
Case Name: Wellin v. Wellin, C.A. No. 2:13-CV-1831-DCN, C.A. No. 2:13-CV-3595-DCN, C.A. No. 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
(finding that neither the attorney-client privilege nor the work product doctrine protected a pre-existing client summary of events just because it was later sent to a lawyer; "Defendants have not articulated any other basis for asserting privilege other than the subsequent transmittal of the documents to their attorney for the purpose of seeking advice. But as the Court noted in Evergreen Trading, LLC ex rel. Nussdorf, 80 Fed. Cl. 122, 138 (2007) ' . . . A 'pre-existing document which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice.'" (quoting Fisher v. United States, 425 U.S. 391, 403-4, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976))."; "The Defendants have not produced any evidence that distinguishes these two documents from the notes and summaries of events previously determined to be discoverable other than the temporal proximity of their transmittal to their attorney. There is no communication from client to attorney or from attorney to client contained within the summaries themselves. In this regard, it should be noted that the Plaintiffs do not seek the actual email communications within which the summaries were contained as attachments."; "The immediacy of the transmittal does not justify an inference that these documents differ from other notes and summaries maintained by the Defendants during this time frame. Furthermore, I conclude the fact that they were attached to email communications from the client to the attorney does not integrate them into the communication within the emails themselves, which is protected by the attorney-client privilege, and thus transform them into privileged communications. There is no justification for making these distinctions, and to allow such an inference would, in essence, allow a party to acquire protection for documents under the attorney-client privilege merely by transferring them to his or attorney.")

Case Date Jurisdiction State Cite Checked
2015-12-04 Federal SC
Comment:

key case


Chapter: 16.602
Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)
(in an opinion by Judge Gorenstein, finding that a compliance-initiated investigation into a defendant's possible tie with terrorists did not deserve privilege or work product protection; "[W]e are unaware of any case law suggesting that a person's collection of information is protected merely because the person harbors a plan to provide the information later to an attorney -- particularly where there is no proof that the attorney sought to have the individual collect the information at issue. Indeed, case law holds just the opposite. . . . Nor is it of any importance that this information may have ultimately been used by Loughlin for the purpose of advising BOC."; "Neither Geng nor Loughlin ever assert that specific documents sought by plaintiffs here formed part of a communication between them at the time the documents were created. Rather, BOC's argument is that because it made a 'request for legal advice' to counsel and because outside counsel ultimately received this request and 'rendered advice in response,' the 'communications' at issue are necessarily protected. . . . But this argument elides the critical issue: why the specific documents sought by plaintiffs are 'communications' that were made to an attorney given that plaintiffs are not seeking any 'communications' with counsel."; "[H]owever, provides no evidence -- let alone evidence sufficient to meet its burden of proof -- that any of the documents at issue in this motion were produced at the 'direction' of an attorney in order to allow the attorney to render legal advice. To the extent that BOC is arguing that investigations conducted without the direction of an attorney necessarily form part of an attorney-client communication as long as a corporate employee who received an order to conduct the investigation harbored an 'expectation,'. . . That he would share the information with an attorney at some future date, we reject this argument as unsupported by logic or case law.")

Case Date Jurisdiction State Cite Checked
2015-01-21 Federal NY

Chapter: 16.602
Case Name: In re Third Party Subpoenas Issued to Rambus, Inc. v. Acer Inc., Case No. 14-mc-80293 EJD (NC), 2014 U.S. Dist. LEXIS 164398 (N.D. Cal. Nov. 21, 2014)
("Furthermore, merely sharing a document with counsel does not automatically make that document privileged.")

Case Date Jurisdiction State Cite Checked
2014-11-21 Federal CA

Chapter: 16.602
Case Name: In re Third Party Subpoenas Issued to Rambus, Inc. v. Acer Inc., Case No. 14-mc-80293 EJD (NC), 2014 U.S. Dist. LEXIS 164398 (N.D. Cal. Nov. 21, 2014)
("In other words, it is not good enough for Rambus to list a document that it shared with counsel in the privilege log as 'privileged' on the basis of it being passed from client to lawyer; Rambus must provide an independent basis for why that document itself is covered by the attorney-client privilege or some other privilege.")

Case Date Jurisdiction State Cite Checked
2014-11-21 Federal CA

Chapter: 16.602
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: 16.602
Case Name: Reid v. Transocean Offshore Deepwater Drilling, Inc., Civil Action No. 13-6080 SECTION "I" (2), 2014 U.S. Dist. LEXIS 83045, at *4-5 (E.D. La. June 17, 2014)
(holding that a company's investigation by a third-party adjusting firm did not deserve work product protection, because the post-accident investigation was undertaken in the ordinary course of business after a plaintiff was injured; "Transocean cannot shield non-privileged materials from discovery by sending them to its attorney and then claiming the attorney-client privilege or work product protection because the materials are in the attorney's files.")

Case Date Jurisdiction State Cite Checked
2014-06-17 Federal LA

Chapter: 16.602
Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *12 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "[T]he privilege would never be construed to allow a client to funnel papers and documents into the hands of its lawyers for custodial purposes and thereby avoid disclosure.")

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

Chapter: 16.602
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: 16.602
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: 16.602
Case Name: Americus Mortg. Corp. v. Mark, Civ. A. No. 12-10158-GAO, 2013 U.S. Dist. LEXIS 148820, at *17 (D. Mass. Oct. 16, 2013)
("Belli's [defendant's partial owner] forwarding the letter to Attorney Hadlock does not convert the document into a privileged communication. . . . There is no introductory request seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2013-10-16 Federal MA B 5/14

Chapter: 16.602
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *11, *11-12 (M.D. Fla. Nov. 6, 2012)
("The advent of email has added to the difficulty of determining the purpose and intent of communications that involve corporate legal counsel."; "Courts have held that when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation 'cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'. . . In such cases, the email and attachments are not privileged and are discoverable.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 16.602
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 111 (D.D.C. 2012)
(holding that a litigant could not withhold an entire e-mail string that had been forwarded to the lawyer, but instead had to produce all but the final e-mail forwarding the string to the lawyer; "Some documents contain an entire string of e-mails being sent back and forth, in which the correspondence addresses legal strategies, proffers of advice, or potential avenues for the settlement. Document #2190 is such a chain, and as such, it is privileged in its entirety. However, in instances where there are multiple e-mails in a single string, and only one of those e-mails contains privileged material, the privileged component may be excised but the remainder of the e-mail string must be disclosed. I hope that the parties will find this consistent with my treatment of the transmittal e-mails described in [previously]. For example, document #1318 contains multiple e-mails back and forth among several groups of people, with only the final e-mail indicating a request for legal advice. In instances such as this, only the specific email that is privileged may be withheld or redacted; the rest must be disclosed.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 16.602
Case Name: Virginia Elec. & Power Co. v. Westmoreland-LG&E Partners, 526 S.E.2d 750, 755 (Va. 2000)
("The attorney-client privilege does not attach to a document merely because a client delivers it to his attorney. However, the privilege does attach to a document prepared with the purpose of being sent to counsel for legal advice."; finding that the attorney-client privilege protected a draft letter sent to a lawyer for legal review and ultimately never sent out)

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

Chapter: 16.602
Case Name: Darnell v. McMurray, 141 F.R.D. 433, 436 (W.D. Va. 1992)
(noting that a nonprivileged document does not become privileged because it has been given to a lawyer)

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA

Chapter: 16.602
Case Name: In re Bryant, 27 Va. Cir. 414, 418-19 (Va. Cir. Ct. 1992)
("Pre-existing documents which pass from a client to an attorney are not protected by the privilege if they would not have been protected by some privilege while in the hands of the client.")

Case Date Jurisdiction State Cite Checked
1992-01-01 State VA

Chapter: 16.602
Case Name: First Chicago International v. United Exchange Co., Ltd., No. 87 Civ. 1587 (WCC), 1989 U.S. Dist. 3077 (S.D.N.Y. Mar. 30, 1989)
(adopting a "but for" privilege standard; "A corollary to limiting the privilege to circumstances where protection furthers the policy behind it is that a communication between a corporation's employee and counsel should only be shielded if the communication would not have been made but for the client's need for legal advice or services. . . . ('to invoke the privilege, the claimant must demonstrate that the communication would not have been made but for the pursuit of legal services'). This requirement is analogous to the rule that 'pre-existing' documents are not privileged.")

Case Date Jurisdiction State Cite Checked
1989-03-30 Federal NY

Chapter: 16.602
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: 16.602
Case Name: Lyle v. Higginbotham, 37 Va. (10 Leigh) 63, 79 (1839)
("An attorney submitting to produce title deeds in his possession, which, if admitted by the principal to be in his custody, he would be compelled to produce, may, as standing in the situation of the principal, be also compelled to do so . . . . But there appears to me to be a striking difference between the production of such deeds, and the communication of any fact disclosed in professional confidence. The client himself could not be compelled to discover such communications, for if he could, the reason of the rule which is meant to allow unrestrained intercourse between client and attorney, would be violated, and its object frustrated." (citations omitted))

Case Date Jurisdiction State Cite Checked
1839-01-01 State VA

Chapter: 16.603
Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)
(finding that defendants had properly logged and withheld documents, and that no in camera review is necessary; "'[A]ny public document that a client sends a lawyer might be subject to a claim of privilege if disclosure would reveal that it was communicated in confidence to an attorney in connection with the seeking or receipt of legal advice. Imagine, for example, that a company executive sent the company's counsel a news article about alleged bid-rigging activities within the company's industry; if the executive did so for the confidential purpose of seeking advice about the company's legal obligations or liability exposure, the fact that the news article is a quintessentially public document would not defeat a claim of privilege.'"; citing and quoting Gen. Elec. Co. v. United States, No. 3:14-CV-00190 (JAM), 2015 U.S. Dist. LEXIS 122562, 2015 WL 5443479, at *2 (D. Conn. Sept. 15, 2015); finding that approach applicable; "[T]he privileged nature of the communication between Defendant's employee and its counsel seeking legal advice is not defeated by the publicly-available nature of the underlying report. The basis for the asserted privilege is evident on the face of the document coupled with Defendant's privilege log, which is sufficiently detailed to establish the privilege, and Plaintiffs have failed to articulate a reasonable basis to challenge it.")

Case Date Jurisdiction State Cite Checked
2017-05-26 Federal NC
Comment:

key case


Chapter: 16.603
Case Name: GE v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562, at *4 (D. Conn. Sept. 15, 2015)
November 11, 2015 (PRIVILEGE POINT)

"Can the Privilege Ever Protect Historical Documents?"

The attorney-client privilege normally does not protect pre-existing historical documents, even if clients convey those to their lawyers. In the work product context, lawyers' selection of certain intrinsically unprotected historical documents can deserve opinion work product protection — but few courts have recognized a parallel protection for clients' selection of historical documents they consider important. This is one of the most mysterious gaps in privilege jurisprudence.

In GE v. United States, the government challenged GE's privilege assertion for "attachments to otherwise privileged email communications between [GE] attorneys and GE personnel." No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562, at *4 (D. Conn. Sept. 15, 2015). The court refreshingly acknowledged that an intrinsically unprotected historical document the client sends a lawyer could "reveal that it was communicated in confidence to an attorney in connection with the seeking or receipt of legal advice." Id. At *5. The court even offered an example: an executive's sending to "the company's counsel a news article about alleged bid-rigging activities within the company's industry" — explaining that "the fact that the news article is a quintessentially public document would not defeat a claim of privilege." Id. At *5-6. Perhaps not surprisingly, the court cited no case law for this proposition.

Lawyers' selection of intrinsically unprotected documents can deserve opinion work product protection only if the adversary also has the documents. Although the GE court did not address this issue, presumably privilege protection would apply to clients' selection only if those intrinsically unprotected historical documents were otherwise produced to the adversary (not in conjunction with the privileged communication). Otherwise, clients could withhold responsive intrinsically unprotected historical documents just by giving them to their lawyers.

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal CT
Comment:

key case


Chapter: 16.603
Case Name: General Electric v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
(holding that even non-protected historical documents can serve privilege protection if a client sends those documents to a lawyer in order to obtain legal advice about an issue raised in those documents; "For this reason, any public document that a client sends a lawyer might be subject to a claim of privilege if disclosure would reveal that it was communicated in confidence to an attorney in connection with the seeking or receipt of legal advice. Imagine, for example, that a company executive sent the company's counsel a news article about alleged bid-rigging activities within the company's industry; if the executive did so for the confidential purpose of seeking advice about the company's legal obligations or liability exposure, the fact that the news article is a quintessentially public document would not defeat a claim of privilege. Accordingly, the fact that numerous and concededly privileged GE email communications included attachments (such as draft board meeting minutes, presentations, and spreadsheets) evincing facts that were known to third parties who were not part of the privileged communications does not render these documents free from a valid claim of privilege in the context of their inclusion within otherwise privileged communications.").

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal CT
Comment:

key case


Chapter: 16.603
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 99-100 (Fed. Cl. 2013)
("The fact that a client included a document in a request for legal advice is privileged, however, because it partially reveals the substance of the client's privileged communication to an attorney.")

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

Chapter: 16.603
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 657 (D. Nev. 2013)
("On June 3, 2006, Janet Hudnall [Marketing Manager, Filters] sent an e-mail to Shari Allen [Director, Regulatory Affairs], Gin Schulz [Q.A.], John McDermott [President, Bard Peripheral Vascular], Kevin Shifrin [V.P., Marketing], and attorney Brian Leddin forwarding an attached e-mail thread and clearly asking for legal advice regarding the forwarded e-mail thread. The court finds that the e-mail and forwarded thread are a confidential communication requesting legal advice that come within the attorney-client privilege and need not be produced to Plaintiff. To be clear, the e-mails included in the thread appear to have been discoverable standing alone because they did not involve an attorney-client communication and there is no indication they were protected work product. However, to the extent the e-mail thread was then forwarded to counsel with a request for legal advice, the communication becomes privileged.")

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

Chapter: 16.603
Case Name: Rhoades Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 238, 241 & n.5 (E.D. Pa. 2008)
("A situation may arise where a number of email messages, by themselves not privileged, but eventually sent to an attorney for the purpose of securing legal advice, become privileged. If they are not produced, they must be logged individually in order to claim the privilege, but they do not have to be detailed in the log entry describing the email message sent to the attorney. An email string may be analogous to a meeting that takes place in a conference room between attorney and client for the purpose of seeking legal advice. The facts discussed at the meeting must be disclosed in discovery, but the communications that take place at the meeting are privileged. As a result of the meeting, if the client prepares a letter to the attorney summarizing those communications, both the discussions at the meeting and the letter itself are clearly privileged. In the world of electronic communications, a series of email messages, among people employed by the client but working in different locations, can replace the meeting and subsequent letter. Some of the communications may not include copies to the attorney, but after the exchange of email messages among the client's employees, all contained within one email string, the last and most recent email, attaching all the prior emails, is then sent to the attorney with a request for legal advice based on the underlying email messages. If the purpose of the email string was to gather facts and communicate those facts to the attorney for legal advice, then a good argument exists that the email communications served the functional equivalent of a face-to-face meeting, and although the facts contained in the emails are discoverable, all of the messages, not only the compilation of messages sent to the attorney, are privileged. If that is the case, all of the separate email messages must be disclosed under Rule 26(b)(5), which is usually done by a privilege log. However, the client's log need not disclose that all of these emails were forwarded to the attorney.")

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal PA B 8/13

Chapter: 16.802
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: 16.802
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: 16.802
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: 16.802
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: 16.802
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: 16.802
Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson about an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "Having conducted an in camera review of the notes in question, the Court concludes that attorney-client privilege applies to all of them. The notes contain facts and information about the April 29 workplace incident and the employees involved in the incident, which were communicated by defendant's management to the attorneys who are representing defendant in this case. Thus, the notes memorialize the 'giving of information to the lawyer to enable him to give sound and informed advice,'. . . which is protected from disclosure by attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY

Chapter: 16.802
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: 16.802
Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)
(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "Two categories of the Reuther Spreadsheet, however, clearly contain attorney-client communications. The columns entitled 'How did I use it' and 'Why [sic] felt it was not confidential information' straightforwardly evince communications from Reuther to counsel narrating information for the purpose of obtaining legal advice. Accordingly, the privilege bars Manitowoc from viewing the last two columns of the spreadsheet."; "'Reuther generated the document after Manitowoc filed suit and at the specific instruction of retained counsel. Additionally, we note that the form of communication to counsel is not controlling in determining whether the information conveyed is a 'communication.'"; "Though prohibited from obtaining the Reuther Spreadsheet, Manitowoc may gather the underlying factual information via another means.")

Case Date Jurisdiction State Cite Checked
2016-08-26 Federal IL

Chapter: 16.802
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; rejecting plaintiff's argument defendant Ford was obligated to produce facts included in the lawyer's suggested changes and comments; "[F]acts are discussed by the attorney as an essential part of his advice. When factual material is incorporated in an attorney-client communication, and the factual material is 'an integral part of the overall communication,' the entire communication remains privileged, including the factual content. . . . That is not to say that the privilege cloaks the facts under a blanket of non-disclosure; instead, the facts are protected only to the extent that they appear in and are an integral part of the privileged communication. This is so because attorneys give advice based upon certain factual scenarios."; "In the instant action, the Logel document contains some factual statements. The statements are made by Mr. Logel to explain the reasons for his advice. As such, the factual information is integral to the overall communication. Undoubtedly, the facts stated by Mr. Logel would have been communicated to him in his role as an attorney for Ford. This exchange of factual information between corporate employees and the corporation's lawyer in the course of providing legal advice is privileged. . . . However, Plaintiffs are not precluded from deposing corporate employees to discover their personal knowledge of the same facts.")

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

key case


Chapter: 16.802
Case Name: SEC v. Carrillo Huettel LLP, 13 Civ. 1735 (GBD) (JCF), 2015 U.S. Dist. LEXIS 45988 (S.D.N.Y. April 8, 2015)
("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
2015-04-08 Federal NY

Chapter: 16.802
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: 16.802
Case Name: In re Bank of New York Mellon Corp. Forex Trans. Litig. v. The Bank of New York Mellon, 12-md-2335 (LAK), 11-cv-6969 (LAK), 2014 U.S. Dist. LEXIS 159069 (S.D.N.Y. Nov. 10, 2014)
("[T]he privilege protects not only the advice an attorney gives his client, but also the information a client gives his attorney to enable the latter 'to give sound and informed advice.'")

Case Date Jurisdiction State Cite Checked
2014-11-10 Federal NY

Chapter: 16.802
Case Name: Exxon Mobil Corp. v. Hill, No. 13-30830, 2014 U.S. App. LEXIS 8495 (5th Cir. May 6, 2014)
("When ITCO requested internal data prepared by and on behalf of Exxon Mobil, it is no surprise that Exxon Mobil would seek advice from its attorney as to how to respond. All of this is to say that the context in which the Stein Memo [prepared by Exxon Mobil's in-house lawyer] was produced even before we say anything of the memorandum itself strongly suggests that Exxon Mobil was approaching its in-house counsel for just the sort of lawyerly thing one would expect of an in-house lawyer: advice on transactional matters. Though we recognize that in-house counsel can often play a variety of roles within an organization, this record is devoid of any indication that Stein was providing business advice divorced from its legal implications.")

Case Date Jurisdiction State Cite Checked
2014-05-06 Federal

Chapter: 16.802
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 *38-39, *39 (E.D. Pa. Sept. 11, 2013)
(holding that internal corporate communications deserve privilege protection; relying both on the documents and on supporting affidavits; "[O]ne document provides a Cephalon attorney with details regarding other pharmaceutical companies in order to obtain his opinion on the terms of a collaborative agreement between the two companies. . . . Several documents are drafts of a spreadsheet concerning another company's assets, which was requested by in-house counsel to allow him to provide an opinion on antitrust issues. . . . Two of the identified documents are handwritten letters, with attached data and analyses, from a Cephalon scientist to counsel in response to counsel's request for pharmaceutical testing information relevant to the infringement litigation. . . . These documents, which all constitute communications to Cephalon attorneys by corporate employees in order to further counsel's ability to provide legal advice, are subject to attorney-client privilege."; "[A]nother document requests counsel's advice on certain draft letter agreements.")

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

Chapter: 16.802
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: 16.802
Case Name: Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968, at *11-12, *12-13 (D.S.C. May 23, 2013)
(holding that the attorney-client privilege protected a collection of historical data; not addressing any possible work product protection; noting that the party produced the raw data to the adversary; "Defendants contend that the spreadsheets were created to enable defense counsel to advise Defendants on litigation strategy and the possibility of settlement. In a declaration, the general manager of Starcraft Bus asserted that after the filing of this lawsuit, Defendants' attorney requested that particular information be pulled from the files of Starcraft Bus [defendant], that certain calculations be made using variables he requested, and that the data be compiled in a certain way to aid his analysis. Accordingly, Starcraft Bus employees compiled the requested information in the spreadsheets now requested by Plaintiff. The general manager further averred that the spreadsheets have never been shared with any third party or government agency, were not used in the normal course of business, and were not required by any regulatory agency. There is no evidence contradicting the general manager's assertions."; "The Court concludes that the spreadsheets are protected by the attorney-client privilege. The specific data was compiled and calculations were made at the request of counsel following the commencement of litigation and for the purpose of rendering legal advice regarding this case. Furthermore, there is no evidence that the spreadsheets have ever been disclosed to a third party. . . . However, the Court finds that the raw data relating to FMVSS [Federal Motor Vehicle Safety Standards] certification of South Carolina buses upon which Defendants drew to create the spreadsheets is not protected by the privilege and is responsive to Request No. 19. . . . Thus, to the extent that Defendants have not produced non-privileged documents containing raw data relating to FMVSS compliance for Starcraft buses sold to South Carolina residents, Defendants must produce those documents to Plaintiff.")

Case Date Jurisdiction State Cite Checked
2013-05-23 Federal SC B 3/14

Chapter: 16.802
Case Name: Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968 (D.S.C. May 23, 2013)
August 7, 2013 (PRIVILEGE POINT)

"Courts Apply an Expansive View of Privilege Protection for Corporations' Internal Data"

The attorney-client privilege protects communications between clients and their lawyers involving the former's request for legal advice. Although the privilege can extend to corporations' collections of internal data, most courts conclude that business rather than legal concerns motivated such compilations, and find they are not protected.

On the other hand, some courts take a broad view. In Lopez v. Longs Drug Stores California, Inc., the court upheld privilege protection for a six-page document "listing the names, job titles and employment locations of 139 employees" being considered for a reduction in force. No. A131638, 2013 Cal. App. Unpub. LEXIS 3399, at *36 (Cal. Ct. App. May 14, 2013). The court noted that the Human Resource department prepared the interim list for lawyers' use, and that only they viewed the list. Nine days later, another court took a similarly expansive view. In Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968 (D.S.C. May 23, 2013), the court protected a spreadsheet detailing vehicle certifications. The court cited the general manager's declaration that the company's "attorney requested that particular information be pulled from the files of Starcraft Bus, that certain calculations be made using variables he requested, and that the data be compiled in a certain way to aid his analysis." Id. At *12. The declaration further stated that "the spreadsheets have never been shared with any third party or government agency, were not used in the normal course of business, and were not required by any regulatory agency." Id.

Not all courts would be this expansive, but lawyers should be on the lookout for such helpful cases.

Case Date Jurisdiction State Cite Checked
2013-05-23 Federal SC
Comment:

key case


Chapter: 16.802
Case Name: Lopez v. Longs Drug Stores California, Inc., No. A131638, 2013 Cal. App. Unpub. LEXIS 3399, at *36 (Cal. Ct. App. May 14, 2013)
August 7, 2013 (PRIVILEGE POINT)

"Courts Apply an Expansive View of Privilege Protection for Corporations' Internal Data"

The attorney-client privilege protects communications between clients and their lawyers involving the former's request for legal advice. Although the privilege can extend to corporations' collections of internal data, most courts conclude that business rather than legal concerns motivated such compilations, and find they are not protected.

On the other hand, some courts take a broad view. In Lopez v. Longs Drug Stores California, Inc., the court upheld privilege protection for a six-page document "listing the names, job titles and employment locations of 139 employees" being considered for a reduction in force. No. A131638, 2013 Cal. App. Unpub. LEXIS 3399, at *36 (Cal. Ct. App. May 14, 2013). The court noted that the Human Resource department prepared the interim list for lawyers' use, and that only they viewed the list. Nine days later, another court took a similarly expansive view. In Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968 (D.S.C. May 23, 2013), the court protected a spreadsheet detailing vehicle certifications. The court cited the general manager's declaration that the company's "attorney requested that particular information be pulled from the files of Starcraft Bus, that certain calculations be made using variables he requested, and that the data be compiled in a certain way to aid his analysis." Id. At *12. The declaration further stated that "the spreadsheets have never been shared with any third party or government agency, were not used in the normal course of business, and were not required by any regulatory agency." Id.

Not all courts would be this expansive, but lawyers should be on the lookout for such helpful cases.

Case Date Jurisdiction State Cite Checked
2013-05-14 State CA
Comment:

key case


Chapter: 16.802
Case Name: Lopez v. Longs Drug Stores Cal., A131638, 2013 Cal. App. Unpub. LEXIS 3399, at *36-37, *37-38, *40-41 (Cal. Ct. App. May 14, 2013)
(finding that the attorney-client privilege protected a list of possible RIF employees, which an employee prepared for a lawyer's use; "'Project Orange' was a code name for a 2003 reduction in force at Longs. The 'Project Orange' document was a six-page document with the notation 'Longs Drugs Confidential,' listing the names, job titles and employment locations of 139 employees Lopez's attorney obtained the document from Douglas Hale, a former Vice President of Administration at Longs who was laid off in 2003. In his declaration, Hale stated he 'received an internal and confidential document from Longs Legal Department entitled "Project Orange Address Listing,"' a few days after he was laid off in February 2003."; "Linda Watt, former Senior Vice President of Human Resources at Longs, declared 'I recognize [the Project Orange Document] to be a version of a document my staff exchanged with Longs' lawyers for the purposes of seeking and obtaining legal advice about the employees Longs was considering for layoff as part of the 'Project Orange' RIF. This document was not a final list of those who had been selected for layoff; rather it appears to be an interim list. This document was created solely for the purpose of the 'Project Orange' RIF and we treated it as confidential and privileged -- i.e., as part of a privileged communication with the Company's attorneys. Other than to Longs' outside lawyers, I am not aware of anyone disclosing or sending this document to anyone outside of the Company's Human Resources or Legal Departments. I never provided Mr. Hale with a copy of this document, nor was he authorized to possess it.'"; "Just as in Mitsubishi [O'Mary v. Mitsubishi Elecs. Am., Inc., 69 Cal. Rptr. 2d 389 (Cal. Ct. App. 1997)], the 'Project Orange' document was a list of employees identified for possible termination, prepared by the human resources department for the company attorneys. The fact that the 'Project Orange' list was modified in the course of being 'exchanged' between Human Resources and the legal department does not indicate the document Hale produced was not privileged. Substantial evidence supports the trial court's factual findings in this regard.")

Case Date Jurisdiction State Cite Checked
2013-05-14 State CA B 3/14

Chapter: 16.802
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 99 (Fed. Cl. 2013)
("[A]lthough the privilege protects the substance of attorney-client communications, 'it does not protect disclosure of the underlying facts by those who communicated with the attorney.'. . . Underlying facts, therefore, are independently discoverable, but the facts that a client included in a request for legal advice to assist the attorney in providing legal services are privileged in the context of an attorney-client communication.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal Other B 3/15

Chapter: 16.802
Case Name: Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 552 (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 then-head of the Employment Law Group] and I were the ones who decided on the parameters for the Diversity Objects data fields when we began these analyses; they were based on our mental impressions about the manner in which the data could help us identify circumstances in which the legal department could provide useful advice to the divisions. The field names reflect the criteria and parameters that we set for the requested reports, and they reveal our thinking about the factual circumstances we consider most important to identify for further investigation and assessment of legal risk.'" (internal citation omitted))

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

Chapter: 16.802
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: 16.802
Case Name: Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 554-55 (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; "Communication is very simply 'a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior.' Merriam-Webster's Collegiate Dictionary 251 (11th ed. 2003). In this instance, when the Human Capital Management Division populates the database with information in the Diversity Objects fields, it is taking the initial step in communicating that information to counsel for the purpose of obtaining legal advice. That the information then resides in the database for some period of time before being passed on to the attorneys is of no moment. Likewise, the Diversity Objects fields -- the names of the data categories -- are communications. They are the organizational principles, dictated by counsel, that the client uses to sort and package the information provided to the attorneys. In effect, they are the syntactical structure for the communication of privileged information, and syntax is an indispensable aspect of the way verbal communication transmits meaning. Were the Diversity Objects fields to be disclosed, the ability of the client to seek legal advice would be chilled, which is precisely the result that the privilege is intended to avoid.")

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

Chapter: 16.802
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 868 (Tex. Ct. App. 2013)
("This privilege attaches to the complete communication between attorney and client. . . . The subject matter of the information communicated is irrelevant when determining whether the privilege applies.")

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

Chapter: 16.802
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *38 (S.D. Ohio Nov. 13, 2012)
(holding that documents created during a 2006 compliance audit deserved privilege protection; "The withheld documents reflect that the information gathered by . . . corporate employee[s] and transferred to General Counsel was done so at counsel's request and in furtherance of counsel's provision of legal advice.")

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

Chapter: 16.802
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *80 (S.D. Fla. Oct. 18, 2012)
("[D]ocuments made for purposes of communicating information to a litigant's attorney are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 16.802
Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *25 (W.D. Va. June 20, 2012)
("[I]t is well established that the attorney-client privilege extends not only to documents authored by an attorney, but also to information submitted to him by his client's employees.")

Case Date Jurisdiction State Cite Checked
2012-06-20 Federal VA B 1/12

Chapter: 16.802
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: 16.802
Case Name: In re McDowell, 483 B.R. 472, 483 (Bankr. S.D. Tex. 2012)
("[T]his document is used by the lawyer; it is either filled in by counsel when meeting with the client, or is filled in by the client in counsel's office in the presence of counsel. . . . Not all of the pages of the Questionnaire are relevant to every client; therefore, the information given on the Questionnaire is controlled by the very questions which counsel has devised. . . . These questions are specifically tailored to the client's issues. . . . Accordingly, the Court finds that the information provided in the Questionnaire was communicated by the Debtors to their attorney.")

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

Chapter: 16.802
Case Name: In re McDowell, 483 B.R. 472, 489 (Bankr. S.D. Tex. 2012)
("[T]his Court adopts the reasoning of Stoutamire [In re Stoutamire, 201 B.R. 592 (Bankr. S.D. Ga. 1996)] in holding that the attorney-client privilege may attach to intake interview communications, intake questionnaires, and draft bankruptcy schedules.")

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

Chapter: 16.802
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: 16.802
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: 16.802
Case Name: In re ExxonMobil Corp., No. 14-02-00779-CV, 2003 Tex. App. LEXIS 981 (Tex. App. Jan. 31, 2003)
(holding that the attorney-client privilege protected factual portions of a client's communication to a lawyer; "The attorney-client prvilege, however, attaches to the complete communication between attorney and client, including both legal advice and factual information. . . . If a document is a confidential communication, the privilege extends to the entire document and not merely to the portion of the document containing legal advice, opinions, or analysis."; "It is inconceivable that an attorney could give sound legal advice on a client's case if he or she did not include an application of the law or opinion to the specific facts of that case. If we were to hold that all or part of a document containing privileged information should be disclosed because it also included facts pertinent to the lawsuit, the purpose of the attorney-client and work-product privileges would be annihilated. The ultimate effect of such a holding would be that clients would be reluctant to give their attorneys any factual information for fear that it would be subject to discovery. And no attorney could even begin to prepare a case for trial, or be able to give sound advice for lack of those facts. Such a chilling intervention into the attorney-client relationship under the guise of 'looking for facts,' pierces the core of a critical privilege to carve out limited and usually superfluous morsels of discovery otherwise obtainable. In our opinion, the cost is too great.")

Case Date Jurisdiction State Cite Checked
2003-01-31 State TX
Comment:

key case


Chapter: 16.802
Case Name: Shenandoah Publ'g House, Inc. v. City of Winchester, 52 Va. Cir. 111, 114 (Va. Cir. Ct. 2000)
(holding that a chronology prepared by the client deserved attorney-client privilege protection; "The document in question is a factual chronology outlining a series of events involving city funding and personnel changes and salaries which occurred in the city department in question over a period of years. It is very factual, organized logically, and is typical of a document that a reasonably prudent person would prepare to assist his attorney in efficiently rendering informed legal advice about the events recited in the document. It was prepared specifically for the purpose of consulting with the City Attorney and obtaining a legal opinion about the advisability of an administrative investigation into the facts which precipitated the official's concern.")

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

Chapter: 16.803
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: 16.803
Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)
(in an opinion by Judge Gorenstein, finding that a compliance-initiated investigation into a defendant's possible tie with terrorists did not deserve privilege or work product protection; "[W]e are unaware of any case law suggesting that a person's collection of information is protected merely because the person harbors a plan to provide the information later to an attorney -- particularly where there is no proof that the attorney sought to have the individual collect the information at issue. Indeed, case law holds just the opposite. . . . Nor is it of any importance that this information may have ultimately been used by Loughlin for the purpose of advising BOC."; "Neither Geng nor Loughlin ever assert that specific documents sought by plaintiffs here formed part of a communication between them at the time the documents were created. Rather, BOC's argument is that because it made a 'request for legal advice' to counsel and because outside counsel ultimately received this request and 'rendered advice in response,' the 'communications' at issue are necessarily protected. . . . But this argument elides the critical issue: why the specific documents sought by plaintiffs are 'communications' that were made to an attorney given that plaintiffs are not seeking any 'communications' with counsel."; "[H]owever, provides no evidence -- let alone evidence sufficient to meet its burden of proof -- that any of the documents at issue in this motion were produced at the 'direction' of an attorney in order to allow the attorney to render legal advice. To the extent that BOC is arguing that investigations conducted without the direction of an attorney necessarily form part of an attorney-client communication as long as a corporate employee who received an order to conduct the investigation harbored an 'expectation,'. . . That he would share the information with an attorney at some future date, we reject this argument as unsupported by logic or case law.")

Case Date Jurisdiction State Cite Checked
2015-01-21 Federal NY

Chapter: 16.803
Case Name: Cormack v. United States, No. 13-232C, 2014 U.S. Claims LEXIS 664 (Fed. Cl. July 18, 2014)
(analyzing discovery about discovery; holding that an email relaying information about the location of documents did not deserve privilege protection, but did deserve work product protection; "In the e-mail in question, the employee provided the in-house counsel with information regarding the location of certain documents at the apparent request of counsel. . . . This is hardly a communication conveying information for the purpose of obtaining legal advice. The e-mail relayed only the physical location of certain documents, information that in-house counsel could not directly use to form the basis of her legal advice for the company. Consequently, the e-mail in question does not fall under the protection of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-07-18 Federal Other

Chapter: 16.803
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *15 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "The mere mention of the legal department and that certain statements are subject to its approval does not give rise to privilege in the absence of a request for or provision of legal advice.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 8/14

Chapter: 16.803
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *30-31, *31 (S.D. Ohio Feb. 19, 2013)
(finding that the privilege did not protect documents created by an association's general manager; "Little Hocking does suggest that Mr. Griffin's notes 'can reveal D. David Altman's opinion work product on what counsel thought was important enough to justify an instruction to take notes.'" (internal citation omitted); "This Court disagrees. Other than this one unsworn, speculative sentence buried in a footnote, Little Hocking offers nothing to persuade this Court that Mr. Griffin's notes, made during the course of public meetings, reflect Attorney Altman's opinions. Indeed, as DuPont points out, the Altman Declaration confirms that Mr. Griffin was simply recording and relaying PFOA [Perfluorooctanoic acid] and related information to counsel.")

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

Chapter: 16.803
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *18-19, *20 (S.D. Ohio Feb. 19, 2013)
(finding that the privilege did not protect documents created by an association's general manager; "Little Hocking's general manager, Robert Griffin, authored the majority of the disputed notes and compilations. . . . Although Mr. Griffin and Little Hocking's counsel aver that these notes and compilations were created at the direction of counsel for the purpose of providing legal advice . . ., the record also reflects that Mr. Griffin created these documents for business purposes. . . . Moreover, the evidence establishes that Mr. Griffin did not send many of his meeting notes to counsel, undermining the suggestion that all of his notes were used in formulating litigation strategy."; "Considering the present record as a whole, the Court therefore concludes that Mr. Griffin created the notes and compilations primarily for a non-privileged purpose. This otherwise unprivileged information regarding scientific and public health issues is not rendered privileged simply because Mr. Griffin may have later sent some of his notes to counsel.")

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

Chapter: 16.803
Case Name: Tietsworth v. Sears, Roebuck & Co., No. C09-00288 JF HRL, 2013 U.S. Dist. LEXIS 15005, at *5-6 (N.D. Cal. Feb. 4, 2013)
(holding that the privilege protects draft documents if a lawyer is involved in the drafting; "This court generally agrees that 'unless the communication does not at the outset meet the elements of the attorney-client privilege, then a draft of a document which becomes public record does not thereby lose that privilege.' But, Roth [Roth v. Aon Corp., 254 F.R.D. 538 (N.D. Ill. 2009)] involved an email communication between the client and in-house counsel, seeking legal advice with respect to an attached draft of a document to be submitted to the Securities & Exchange Commission. By contrast, there is no evidence of any attorney-client communication as to these Sears documents. The documents themselves do not appear to be communications. There is nothing in the record presented to this court indicating they were exchanged or discussed between attorney and client. Moreover, the documents in question appear to contain purely factual information. 'The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal CA B 2/14

Chapter: 16.803
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 632 (D. Nev. 2013)
("The court will have to determine whether data or information was prepared at the direction of legal counsel or whether it already existed and was simply forwarded to counsel for review. In doing so, however, the court will be mindful of the Nevada Supreme Court's admonitions in Wardleigh [Wardleigh v. Second Judicial Dist. Court, 891 P.2d 1180 (Nev. 1995)] that a corporation's communications of 'facts' are likely not protected, particularly in light of the court's further direction in Whitehead [Whitehead v. Comm'n on Judicial Discipline, 873 P.2d 946 (Nev. 1994)] that the attorney-client privilege is to be narrowly construed.")

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

Chapter: 16.803
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *20 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx [In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)] standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "Each incident cover sheet is addressed to the attention of Mr. Davidson, General Counsel, and all pages are stamped 'Confidential Attorney-Client Privileged Information.' This is not dispositive of the privilege issue. A document is not privileged simply because the custodian wants it to be or because it is marked as such.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 16.803
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *23 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx [In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)] standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "Halifax argues that its assertion of attorney-client privilege is proper simply because its organization is structured so that 'the compliance department operates under the supervision and oversight of [the] legal department.'. . . I am not persuaded by this argument. Halifax's organizational structure is of no consequence. Halifax bears the burden of proving that the primary purpose and intent of each allegedly privileged document was to seek or give legal advice. Halifax has failed to meet its burden with regards to the descriptions of the documents under the following headings: 'facilitate the provision of compliance advice,' 'facilitate the rendering of compliance advice,' 'reflecting request for compliance advice,' 'for the purpose of obtaining compliance advice,' 'reflecting provision of compliance advice,' 'reflecting compliance advice,' and 'request for and provision of compliance advice.'" (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 16.901
Case Name: Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015)
(finding that the attorney-client protected draft 10-K filings, and that the nonlawyer consultants were the functional equivalent of employees; "In light of these cases [In re Flonase Antitrust Litig., 879 F. Supp. 2d 454, 457-58 (E.D. Pa. 2012); In re Healthcare, Inc. Sec. Litig., No. 88-0559, 1989 U.S. Dist. LEXIS 1043, 1989 WL 11068, *4 (E.D. Pa. Feb. 8, 1989)] and Plaintiff's inability to cite a case holding that drafts of Form 10-K reports are discoverable, the Court noted at the hearing that there was no reason in this case to hold that drafts of UniLife's 2011 SEC Form 10-K report, which were the subject of communications with corporate counsel, are discoverable. Plaintiff has not been barred from pursuing discovery as to the accuracy of the SEC Form 10-K at issue, but that does not mean that detailed and expensive discovery into all drafts of that document is necessary.")

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

key case


Chapter: 16.901
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 *17 (D. Conn. Nov. 14, 2013)
("[M]any of the documents withheld are draft documents sent to in-house counsel for legal review, which are protected.")

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

Chapter: 16.901
Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *16 (W.D. Va. Apr. 16, 2009)
("'. . . the privilege does attach to a document prepared with the purpose of being sent to counsel for legal advice.' Virginia Elec. & Power Co. v. Westmoreland-LG & E Partners, 259 Va. 319, 325, 526 S.E.2d 750, 755 (2000) (citation omitted).")

Case Date Jurisdiction State Cite Checked
2009-04-16 Federal VA

Chapter: 16.902
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; "News must produce Exhibits 8, 12, and 14. News has not established that the draft marking materials contained in Exhibit 8 were ever submitted to a lawyer. Exhibit 12 contains only business, not legal, advice. Exhibit 14 is a business document that already incorporates, but does not provide, legal advice.")

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

Chapter: 16.903
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: 16.903
Case Name: Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
November 14, 2018 (PRIVILEGE POINT)

How Do Clients Successfully Assert Privilege Protection for Draft Documents They Send to Lawyers for Review?

Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and sometimes assistance in drafting. How do courts tell them apart?

In Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018), Judge Castel acknowledged these two basic principles. The court then explained that "[p]reexisting business documents that are sent to a lawyer are fundamentally different from drafts because their business purpose (or content) cannot be affected by any after-the-fact advice received from the lawyer." Id. at *4-5. The court also recognized that clients might ask for abstract legal advice, but "[t]o save time and to place the inquiry in a concrete setting, the business person could instead send a draft of the material" about which the clients seek advice. Id. at *5 (footnote omitted). Those documents can deserve privilege protection -- "[a]ssuming the transmittal of those drafts were confidential and implicitly or explicitly sought the lawyer's advice." Id. The court also explained how it would differentiate between unprotected preexisting documents and protected draft documents: "[t]he Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations." Id. at *8. The court then addressed possible privilege protection for each withheld document one by one.

Given this well-settled law and judicial approach, lawyers should educate their clients who send them draft documents to describe them as drafts, and to explicitly ask for legal advice if that is what they seek – so courts' "in camera" review will reach the right result.

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

Chapter: 16.903
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; "News has withheld drafts of business documents, such as marketing materials, sales highlights, and meeting minutes, that News's business people sent to in-house lawyers for review prior to external or wider internal dissemination. It has also withheld legal training and policy materials created by its in-house lawyers. Valassis has moved to compel the production of both categories of documents."; "The attorney-client privilege attaches to a confidential communication from a client to the client's lawyer if the predominate purpose of the communication is seeking legal advice. . . . The attorney-client privilege does not extend to preexisting documents that a client sends to the client's lawyer. . . . But, depending on context, a draft document sent to a lawyer may be a confidential communication made for the predominant purpose of obtaining legal advice even though the draft is intended ultimately to become a business document when and if the lawyer's legal input or approval is received. Preexisting business documents that are sent to a lawyer are fundamentally different from drafts because their business purpose (or content) cannot be affected by any after-the-fact advice received from the lawyer; they are simply not privileged."; "A business person could communicate with a lawyer in confidence, inquiring whether certain claims about a product could be made lawfully or whether a business strategy violated the antitrust laws, and those communications presumptively would be protected by the attorney-client privilege. To save time and to place the inquiry in a concrete setting, the business person could instead send a draft of the material making the claims about the product or setting out the business strategy to the lawyer to obtain the lawyer's advice before disseminating it more widely or implementing the strategy. Assuming the transmittal of those drafts were confidential and implicitly or explicitly sought the lawyer's advice on the lawfulness of their content, they, too, would be presumptively privileged. If, after a lawyer's review, the draft becomes a business document, then the business document received from the lawyer is not privileged and must be produced to an opposing party upon request."; "A corporation can only act through its employees and agents. Concern by managers of a corporation that its conduct not run afoul of the law is a worthy consideration. Providing business people with ready access to lawyers to ensure that their business activities are in compliance with the law is not a nefarious activity. Prudent lawyers counsel against, and thus often prevent, unlawful actions by a client. In a suit against a corporation, it is the actions and statements of the corporation, through its employees, that are to be judged and not bad ideas that are presented by its employees to a lawyer and never see the light of day because of the lawyer's legal advice. The act of 'vetting' a proposed strategy with a lawyer is what an honest client may choose to do before implementing a strategy. If, by use of the term 'scrubbing,' Valassis is insinuating that privileged documents have been altered or destroyed, there has been no evidence of it; rather, the documents have been logged and preserved for in camera review by a court.")

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

Key Case


Chapter: 16.903
Case Name: Nanticoke Lenni-Lenape Tribal Nation v. Porrino, Civ. No. 15-5645 (RMB/JS), 2017 U.S. Dist. LEXIS 151410 (D.N.J. Sept. 19, 2017)
("There is a split of authority as to whether draft versions of a privileged document eventually disclosed remains privileged or if the privilege is waived by the publication. Some courts hold that draft documents intended to be published are not privileged. In re Grand Jury Proceedings, 33 F.3d 342, 354(4th Cir. 1994) ('[I]f a client communicates information to his attorney with the understanding that the information will be revealed to others, that information as well as the details underlying the data which was to be published will not enjoy the privilege.') (citation and quotations omitted); United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983) ('When information is transmitted to an attorney with the intent that the information will be transmitted to a third party . . . , such information is not confidential'); In re Grand Jury Subpoena, 204 F.3d 516, 521 (4th Cir. 2000) (no blanket privilege for drafts and related communications on information a client intends to eventually publish). These courts reason that if a draft was intended to be disclosed there is no expectation of confidentiality.": "Other Courts reach a different conclusion. See U.S. v. Schlegal, 313 F. Supp. 177 (D. Neb. 1970); Schenet v. Anderson, 678 F. Supp. 1280 (E.D. Mich. 1988). These decisions hold that a 'privilege is waived only as to those portions of the preliminary drafts ultimately revealed to third parties.' Id. at 1284."; "'The Court is not addressing a 'sham' draft document where it is known the document will be released but it is marked draft solely to protect a privilege.'")

Case Date Jurisdiction State Cite Checked
2017-09-19 Federal NJ
Comment:

key case


Chapter: 16.903
Case Name: SCF Waxler Marine LLC v. Aris T, Civ. A. Nos. 16-902, -959, -1022, -1134, & -1614 SECTION: "A"(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017)
September 6, 2017 (PRIVILEGE POINT)

"The Trouble with Drafts: Part II"

Last week's Privilege Point discussed a decision holding that the privilege did not protect in-progress drafts of documents whose final version will be disclosed to third parties. In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017).

On the same day, the Eastern District of Louisiana dealt with this issue. In SCF Waxler Marine LLC v. Aris T, Civ. A. Nos. 16-902, -959, -1022, -1134, & -1614 SECTION: “A”(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017), the court rejected a party's effort to discover preliminary drafts of an incident report whose final version was ultimately made public. The court noted that the client and his lawyer "did not intend that their drafts and analysis would be subject to disclosure." Id. at *25. The court then emphasized an obvious point some courts seemingly overlook – "the argument raised by [the party seeking discovery] 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." Id.

The SCF Waxler Marine court's refreshingly logical approach should carry the day in every court. But to be safe, clients and their lawyers should carefully document (1) both of their roles in drafting documents for ultimate disclosure; (2) the lawyer's legal input as reflecting legal advice, rather than business, stylistic, or grammatical advice; and (3) their intent to maintain their drafting process's confidentiality until they agree on a final version to be disclosed.

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

key case


Chapter: 16.903
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: 16.903
Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("Document No. 3 appears to be in final form, except that it is not signed or dated. District 180 has not offered any evidence demonstrating that Tamblyn [School district superintendent] -- or anyone else -- requested further legal advice regarding this document. Nor has it offered evidence that anyone made further changes to Document No. 3 based on Gerner's [School district's outside counsel] advice or that this version remained confidential and undisclosed to others. To the contrary, Tamblyn testified that, as a matter of course, after receiving Gerner's legal comments regarding a draft letter, Tamblyn 'would create a final document and send it off.'")

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

Chapter: 16.903
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: 16.903
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: 16.904
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: 16.904
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; "News must produce Exhibits 8, 12, and 14. News has not established that the draft marking materials contained in Exhibit 8 were ever submitted to a lawyer. Exhibit 12 contains only business, not legal, advice. Exhibit 14 is a business document that already incorporates, but does not provide, legal advice.")

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

Chapter: 16.904
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; "Exhibits 6, 7, 13 all contain confidential drafts of marketing materials submitted to News's legal department for review.")

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

Chapter: 16.904
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; "News has withheld drafts of business documents, such as marketing materials, sales highlights, and meeting minutes, that News's business people sent to in-house lawyers for review prior to external or wider internal dissemination. It has also withheld legal training and policy materials created by its in-house lawyers. Valassis has moved to compel the production of both categories of documents."; "The attorney-client privilege attaches to a confidential communication from a client to the client's lawyer if the predominate purpose of the communication is seeking legal advice. . . . The attorney-client privilege does not extend to preexisting documents that a client sends to the client's lawyer. . . . But, depending on context, a draft document sent to a lawyer may be a confidential communication made for the predominant purpose of obtaining legal advice even though the draft is intended ultimately to become a business document when and if the lawyer's legal input or approval is received. Preexisting business documents that are sent to a lawyer are fundamentally different from drafts because their business purpose (or content) cannot be affected by any after-the-fact advice received from the lawyer; they are simply not privileged."; "A business person could communicate with a lawyer in confidence, inquiring whether certain claims about a product could be made lawfully or whether a business strategy violated the antitrust laws, and those communications presumptively would be protected by the attorney-client privilege. To save time and to place the inquiry in a concrete setting, the business person could instead send a draft of the material making the claims about the product or setting out the business strategy to the lawyer to obtain the lawyer's advice before disseminating it more widely or implementing the strategy. Assuming the transmittal of those drafts were confidential and implicitly or explicitly sought the lawyer's advice on the lawfulness of their content, they, too, would be presumptively privileged. If, after a lawyer's review, the draft becomes a business document, then the business document received from the lawyer is not privileged and must be produced to an opposing party upon request."; "A corporation can only act through its employees and agents. Concern by managers of a corporation that its conduct not run afoul of the law is a worthy consideration. Providing business people with ready access to lawyers to ensure that their business activities are in compliance with the law is not a nefarious activity. Prudent lawyers counsel against, and thus often prevent, unlawful actions by a client. In a suit against a corporation, it is the actions and statements of the corporation, through its employees, that are to be judged and not bad ideas that are presented by its employees to a lawyer and never see the light of day because of the lawyer's legal advice. The act of 'vetting' a proposed strategy with a lawyer is what an honest client may choose to do before implementing a strategy. If, by use of the term 'scrubbing,' Valassis is insinuating that privileged documents have been altered or destroyed, there has been no evidence of it; rather, the documents have been logged and preserved for in camera review by a court.")

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

Key Case


Chapter: 16.904
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: 16.904
Case Name: Audubon Society of Portland v. Zinke, Case No. 1:17-cv-00069-CL (lead), 2018 U.S. Dist. LEXIS 53570 (D. Ore. March 27, 2018)
("Because it is a draft, AR 050198 contains comments in the margins. And comment 'TM25' contains a statement from Tim Mayer, a FWS supervisory hydrologist, rehashing an interpretation of the Kuchel Act provided to him by Solicitor's Office attorneys Steve Palmer and Barbara Scott-Brier."; "Federal Defendants have, however, failed to demonstrate that 'confidentiality was expected in' making the comment at issue. . . . Defendants nowhere demonstrate an expectation of secrecy; and, in fact, Mr. Mayer indicates in the comment that the Kuchel Act interpretation provided to him by the Solicitor's Office attorneys 'is a major point' and 'it would seem like this needs to be mentioned' in the document itself, a document which, in its final form, composed part of the agencies' Plan and was made available to the public as such.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OR

Chapter: 16.904
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: 16.904
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)
("Caselaw 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. Fourth, where a communication contains both legal advice and business advice, attorney-client protection only applies if the legal advice predominates over the business advice; the privilege does not apply where legal advice is merely incidental to business advice. Fifth, '[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.' On the other hand, drafts of memoranda prepared for a client are protected Sixth, the attorney-client privilege does not attach to simple editing or 'word-smithing' by counsel.")

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

key case


Chapter: 16.904
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: 16.904
Case Name: SCF Waxler Marine LLC v. Aris T, Civ. A. Nos. 16-902, -959, -1022, -1134, & -1614 SECTION: "A"(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017)
September 6, 2017 (PRIVILEGE POINT)

"The Trouble with Drafts: Part II"

Last week's Privilege Point discussed a decision holding that the privilege did not protect in-progress drafts of documents whose final version will be disclosed to third parties. In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017).

On the same day, the Eastern District of Louisiana dealt with this issue. In SCF Waxler Marine LLC v. Aris T, Civ. A. Nos. 16-902, -959, -1022, -1134, & -1614 SECTION: “A”(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017), the court rejected a party's effort to discover preliminary drafts of an incident report whose final version was ultimately made public. The court noted that the client and his lawyer "did not intend that their drafts and analysis would be subject to disclosure." Id. at *25. The court then emphasized an obvious point some courts seemingly overlook – "the argument raised by [the party seeking discovery] 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." Id.

The SCF Waxler Marine court's refreshingly logical approach should carry the day in every court. But to be safe, clients and their lawyers should carefully document (1) both of their roles in drafting documents for ultimate disclosure; (2) the lawyer's legal input as reflecting legal advice, rather than business, stylistic, or grammatical advice; and (3) their intent to maintain their drafting process's confidentiality until they agree on a final version to be disclosed.

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

key case


Chapter: 16.904
Case Name: La. Municipal Police Employees Retirement Sys. v. Green Mountain Coffee Roasters, Inc., Case No. 2:11-cv-289, 2017 U.S. Dist. LEXIS 165151 (D. Vt. April 7, 2017)
(holding that a client's communications updating a lawyer on developments can amount to an implicit request for legal advice if the need arises for such advice; "Courts have held that requests for legal advice need not be express, and may include updates about ongoing business developments so long as there is an expectation that the attorney will respond if the matter raises important legal issues. . . . Also included in this category of protection are draft documents sent to in-house counsel for legal review. See, e.g., Valente v. Lincoln Nat. Corp., 2010 U.S. Dist. LEXIS 90983, 2010 WL 3522495, at *4 (D. Conn. Sept. 2, 2010) (finding draft of document privileged where it 'was sent to counsel with an implicit request to provide feedback and comments about the draft').")

Case Date Jurisdiction State Cite Checked
2017-04-07 Federal VT
Comment:

key case


Chapter: 16.904
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: 16.904
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: 16.904
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: 16.904
Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("A number of the documents listed in the privilege logs are draft versions of the APA with red-line edits. These documents are protected under the attorney work-product privilege.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal NY

Chapter: 16.904
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("Although AbbVie contends that Vice President and in-house counsel Perry Siatis ('Siatis') and in-house counsel Joanne Lee ('Lee') and Jennifer Razor ('Razor') were 'involved' with these presentations, Siatis does not address these presentations in his declaration. AbbVie did not submit a declaration from Lee. Razor states by declaration that '[t]hese documents are draft presentations concerning the AndroGel promotional initiatives that were sent to me for my legal review and analysis.' Razor says that she reviewed and edited the drafts, but she does not identify the portions of the document which contain her comments and notes, let alone her legal advice. Neither Razor nor AbbVie explains why these presentations were created or the nature of Razor's legal advice. It is apparent from our in camera review that Landreck created these documents for some unspecified business purpose. Notably, one of the few identifiable comments on the presentations instructs Landreck to delete the statement 'Prepared at the request of legal counsel' because '[t]his statement isn't accurate. Please change to 'Privileged and Confidential.'")

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

Chapter: 16.904
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: 16.904
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)
("These are emails concerning a request for information from counsel and an attachment that was generated at the request of counsel. The emails are privileged and the attachment is work product.")

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

Chapter: 16.904
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 a draft of an op-ed where the author is seeking legal advice on the content. Defendants have agreed to provide the EEOC with a link to the final published version.")

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

Chapter: 16.904
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 a draft of an op-ed where the author is seeking legal advice on the content. Defendants have agreed to provide the EEOC with a link to the final published version.")

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

Chapter: 16.904
Case Name: United Food and Commercial Workers Local 1776 v. Teikoku Pharma USA, Inc., Case No. 14-md-02521-WHO, 2015 U.S. Dist. LEXIS 151948 (N.D. Cal. Nov. 9, 2015)
(holding that a draft letter did not deserve privilege protection because they were primarily business-related, and that any privilege was waived when the company provided the draft letters to Deloitte; also rejecting work product protection for tax-related communications occurring after litigation ended; "Having reviewed the draft letters and considered the argument the parties made during the October 6, 2015 Case Management Conference, I find that the drafts were created primarily for accounting purposes and not in anticipation of litigation. The drafts were circulated between, and the edits made by, members of Endo's business team and Endo's outside accountants at Deloitte in order to seek pre-clearance of Endo's accounting of the Watson settlement. In these circumstances -- where Deloitte was engaged to provide business accounting services, not to assist counsel with specific legal matters -- the attorney-client privilege cannot be invoked.")

Case Date Jurisdiction State Cite Checked
2015-11-09 Federal CA

Chapter: 16.904
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(analyzing communications between Ford and CRA; "Document number 2755, however, is a draft memorandum 'prepared at the request of counsel' and sent to James VanAssche Nicole Rathbun Shanks and Douglas Gastrell, none of whom appear to be attorneys. . . . Even though this document may have been created at the request of counsel, it was not sent to or from counsel for the purpose of seeking legal advice. While such a document may be protectable as work product, CRA did not claim such protection in its privilege log. Protection of this document is inappropriate under the attorney-client privilege. Therefore, the Court will grant Defendant's Motion with regard to this document.")

Case Date Jurisdiction State Cite Checked
2015-10-27 Federal MI

Chapter: 16.904
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: 16.904
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)
(rejecting the Eastern District of Virginia's approach to draft documents expressed in FTC v. Reckitt Benckiser Pharms., Inc., No. 3:14mc5, Dkt. Nos. 42-43 (E.D. Va. Mar. 10, 2015); "Plaintiffs argue that the attached 'Citizens Petition' document is not privileged under the 'draft document' rule, which they say was applied in a similar case, FTC v. Reckitt Benckiser Pharms., Inc., No. 3:14mc5, Dkt. Nos. 42-43 (E.D. Va. Mar. 10, 2015). The Undersigned's review of that case however does not find support for Plaintiffs' position. In that case, a court in the Eastern District of Virginia stated the Fourth Circuit's view that 'the attorney-client privilege with respect to confidential communications does not apply to published documents and the underlying details and data if, at the time the communication was made, the client intended that the document was to be made public.' Id. At p. 15."; "While Plaintiffs may be entitled to the draft of a document that was ready to publish, it is clear from the email exchange that this document is attached to a document which was still under consideration and in the drafting process. The specific email that the document is attached to is from a non-attorney and addressed directly to two attorneys (one in-house counsel and one outside counsel) while copying two more (in-house counsel). Further, the communication in that email calls the attached document the 'latest version' and notes that the parties involved in the email will talk about the contents of the document at a later date. From the Undersigned's perspective, this is a clear indication that the document is not ready to publish and therefore is not subject to the 'draft document rule,' as Plaintiffs argue (if the Undersigned agreed that the rule was even applicable in this Circuit). Accordingly, CIT021317-324 should remain protected by privilege.")

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

key case


Chapter: 16.904
Case Name: In re Lululemon Athletica Inc. 220 Litig., Consol. C.A. No. 9039-VCP, 2015 Del. Ch. LEXIS 127 (Del. Ct. Chan. April 30, 2015)
(analyzing the Garner doctrine and a common interest doctrine in connection with a retailer's investigation into the sale of its stock by the company's founder and CEO; "Plaintiffs argue that the Nicholas Email is not privileged because Nicholas, who is both the company's in-house counsel and its corporate secretary, was not acting as an attorney when she sent it. In her email, Nicholas apparently answered an inquiry from Director Stritzke regarding whether Wilson's trades complied with Wilson's Trading Plan. Generally, when an attorney has more than a legal role with the company, her communications will be privileged only if the legal aspects of the communication predominate. Based on the description in the privilege log, I conclude that the Nicholas Email is privileged. Stritzke emailed Nicholas asking her to review a legal document (the Trading Plan) and tell him whether certain acts complied with it. No non-attorney employees of the Company were involved in the email chain, nor is there any reason based on the log's description to think that Stritzke or Nicholas were discussing anything.")

Case Date Jurisdiction State Cite Checked
2015-04-30 State DE
Comment:

key case


Chapter: 16.904
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: 16.904
Case Name: Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015)
(finding that the attorney-client protected draft 10-K filings, and that the nonlawyer consultants were the functional equivalent of employees; "In light of these cases [In re Flonase Antitrust Litig., 879 F. Supp. 2d 454, 457-58 (E.D. Pa. 2012); In re Healthcare, Inc. Sec. Litig., No. 88-0559, 1989 U.S. Dist. LEXIS 1043, 1989 WL 11068, *4 (E.D. Pa. Feb. 8, 1989)] and Plaintiff's inability to cite a case holding that drafts of Form 10-K reports are discoverable, the Court noted at the hearing that there was no reason in this case to hold that drafts of UniLife's 2011 SEC Form 10-K report, which were the subject of communications with corporate counsel, are discoverable. Plaintiff has not been barred from pursuing discovery as to the accuracy of the SEC Form 10-K at issue, but that does not mean that detailed and expensive discovery into all drafts of that document is necessary.")

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

key case


Chapter: 16.904
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: 16.904
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: 16.904
Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
(finding defendants' affidavits insufficient to justify privilege protection or allow defendants to retrieve one document claimed to be inadvertently produced out of 30,000 produced; analyzing the privilege protection issue for the inadvertently produced document; "Defendants state that their 'executive officers [had] provided Prior Counsel with a copy of the Draft Document for the purpose of obtaining Prior Counsel's legal advice.'. . . Defendants stress that, on advice of Prior Counsel, they removed certain language from the Draft Document that was not included 'in the final, non-privileged, version of the document.'. . . Therefore, Defendants claim that, as a result of this communication with and advice from Prior Counsel regarding the Draft Document, the Draft Document is privileged.")

Case Date Jurisdiction State Cite Checked
2014-11-05 Federal GA

Chapter: 16.904
Case Name: International Cards Co., Ltd. v. MasterCard International Inc., 13-CV-02576 (LGS) (SN), 2014 U.S. Dist. LEXIS 125370 (S.D.N.Y. Aug. 27, 2014)
("The Court finds that portions of Document 89 are protected by the attorney-work privilege because they are communications sufficiently related to D'Souza's request for Sork's legal advice. The predominantly legal nature of Sork's advice is evident from the revisions D'Souza made to the ICC response letter after she conferred with Sork.")

Case Date Jurisdiction State Cite Checked
2014-08-27 Federal NY
Comment:

key case


Chapter: 16.904
Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644C/W10-106 Ref: All Cases Section "N" (3), 2014 U.S. Dist. LEXIS 93881 (E.D. La. July 10, 2014)
(holding that the privilege and the work product doctrine protected draft affidavits; "With regard to the draft affidavits, the general rule is that draft documents are only privileged to the extent that communications contained therein are not revealed to third parties.")

Case Date Jurisdiction State Cite Checked
2014-07-10 Federal LA

Chapter: 16.904
Case Name: Colon v. The City of New York, 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483, at *5-6 (S.D.N.Y. July 8, 2014)
(holding that the privilege protected a client's draft letter sent to a lawyer for privilege advice, as long as the letter was never sent to a third party; "Had the letter at issue actually been sent to a journalist (or other third party), it plainly would not qualify as privileged. . . . But Plaintiff did not send or otherwise disclose the letter to the addressee; instead, he sent it to his attorney as part of a confidential communication to obtain legal advice.")

Case Date Jurisdiction State Cite Checked
2014-07-08 Federal NY

Chapter: 16.904
Case Name: Wells Fargo & Co. v. United States of America, Case No. 09-CV-2764 (PJS/TNL), 2014 U.S. Dist. LEXIS 81430, at *8-9 (D. Minn. June 16, 2014)
(concluding that a client employee's draft of a memorandum to a lawyer was not an implicit request for legal advice; "Even if Wells Fargo could show that all 21 of the documents were circulated to its in-house attorneys, the Court could not find that the documents were privileged, because Wells Fargo has failed to establish that the documents were circulated for the purpose of obtaining legal advice or services. Wells Fargo argues that the Court can infer that drafts of the memorandum sent to in-house counsel were implicit requests for legal advice or services regarding the memorandum. . . . But Wells Fargo offers no evidence to support these rather vague and abstract assertions. By contrast, the government offers concrete evidence that Wells Fargo's in-house attorneys were involved in non-legal aspects of implementing the STARS transaction. . . . Under these circumstances, it is as likely that these attorneys were being asked to ensure the factual accuracy of the drafts as it is that these attorneys were being asked to provide legal advice.")

Case Date Jurisdiction State Cite Checked
2014-06-16 Federal MN

Chapter: 16.904
Case Name: Exxon Mobil Corp. v. Hill, No. 13-30830, 2014 U.S. App. LEXIS 8495 (5th Cir. May 6, 2014)
("Especially when viewed in context, the Stein Memo cannot be mistaken for anything other than legal advice. Stein drafted a proposed response to ITCO in which she included elaborate language disclaiming liability for any reliance ITCO may have on the data, stating that the data was prepared for Exxon Mobil's own internal use and disclaiming any warranty as to the accuracy of the test results. The manifest purpose of the draft was to deal with what would be the obvious reason Exxon Mobil would seek its lawyer's advice in the first place, namely to deal with any legal liability that may stem from under-disclosure of data, hedged against any liability that may occur from any implied warranties during complex negotiations.")

Case Date Jurisdiction State Cite Checked
2014-05-06 Federal

Chapter: 16.904
Case Name: In re ISN Software Corp. Appraisal Litig., Civ. A. No. 8388-VCG, 2014 Del. Ch. LEXIS 52 (Del. Ch. Ct. April 10, 2014)
(finding that the attorney-client privilege did not protect draft board minutes; "On the other hand, the Respondent contends that draft board minutes are per se not discoverable, and that 'documents sent to legal counsel for the purpose of facilitating the rendition of professional legal services are privileged,' understanding this Court's decisions in In re Quest Software Inc. Shareholders Litigation [2013 Del. Ch. LEXIS 167, 2013 WL 3356034 (Del. Ch. Sept. 7, 2010)] and Jedwab v. MGM Grand Hotels, Inc. [1986 Del. Ch. LEXIS 383, 1986 WL 3426 (Del. Ch. Mar. 20, 1986)] to foreclose the Petitioners' discovery requests for draft documents. Specifically, the Respondent suggests that a comparison of draft documents sent for legal review and their final counterparts may reveal the underlying legal advice that caused the Company to make certain edits to those documents."; finding that Jedwab was inapplicable because it protected lawyer-created draft documents; "Though the Respondent contends that Jedwab is controlling here, I disagree. As made clear by the italicized language above, the Court in Jedwab was primarily focused on attorney participation in drafting the documents in dispute; where attorneys endeavored to make legal conclusions as to the appropriate inclusion or omission of certain facts, their own work product created in undertaking that task was protected by the attorney-client privilege. The Court acknowledged that in circumstances where, as here, drafts were not 'prepared by a lawyer in a setting in which [they were] intended to remain confidential,' the ability to infer an attorney-client communication 'would not alone establish a basis to protect such a document from discovery.' I therefore find unpersuasive the Respondent's contention that, though the documents in dispute were not drafted by an attorney, management's decision to send those documents to legal counsel 'for review' caused them to become privileged."; "Here, where attorneys did not draft the minutes or other documents requested by the Petitioners, nor did they gather the information contained therein, the work-product doctrine does not shield such documents from production, and the Court's holding with respect to draft documents in Quest is inapposite.")

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

Chapter: 16.904
Case Name: In re ISN Software Corp. Appraisal Litig., Civ. A. No. 8388-VCG, 2014 Del. Ch. LEXIS 52 (Del. Ch. Ct. April 10, 2014)
(finding that the attorney-client privilege did not protect draft board minutes; "The Petitioners here challenge the Respondent's claim of privilege over certain draft documents, including draft board minutes, created by ISN's management but 'forwarded to counsel for legal review.' The Petitioners contend that the Respondent may not 'claim privilege over a document merely because it was forwarded to counsel,' as 'ISN has never made a claim of work-product with respect to draft minutes,' and 'the drafts Petitioners' [sic] seek are of minutes in which (1) no attorney attended, (2) no attorney authored and (3) the final minutes do not reflect a single conversation with counsel.' According to the Petitioners, 'ISN is attempting to shield relevant non-privileged documents from discovery by funneling those documents through its counsel,' but the facts contained in the draft documents at issue 'do not become privileged merely by transmitting those facts to an attorney.'")

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

Chapter: 16.904
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: 16.904
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: 16.904
Case Name: Federal Housing Finance Agency v. HSBC North America Holdings Inc., 11 Civ. 6189 (DLC),11 Civ. 6190 (DLC),11 Civ. 6193 (DLC),11 Civ. 6198 (DLC),11 Civ. 6200 (DLC),11 Civ. 6201 (DLC),11 Civ. 7010 (DLC), 2014 U.S. Dist. LEXIS 46519 (S.D.N.Y. April 3, 2014)
("To the extent that the request for advice attaches business records created in the ordinary course of business, those business records do not become privileged because copies are also sent to counsel in connection with a request for advice. To the extent business records have been altered to assist counsel in providing advice, those altered business records are privileged.")

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

Chapter: 16.904
Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *10 (N.D. Cal. Mar. 17, 2014)
("The privilege extends to electronic communications versions and preliminary drafts of communicated documents.")

Case Date Jurisdiction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 16.904
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *19-20 (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; "[D]rafts of minutes of meetings of a corporation's board of directors were held not protected from discovery by the attorney-client privilege, where the corporation failed to establish that the document pertained to any request for legal advice from the corporation's attorneys.")

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

Chapter: 16.904
Case Name: Montanez v. Publix Super Markets, Inc., 135 So. 3d 510, 512 (Fla. Dist. Ct. App. 2014)
("Although signed and verified answers to interrogatories served on an opposing party are obviously intended to be disclosed to a third person, we reject Publix's suggestion that a client's unsigned and unverified draft answers, submitted directly to that client's lawyer for review, are likewise intended to be disclosed to others. Indeed, an attorney's role will often include assisting a client in the preparation of interrogatory answers, so as to best advance the client's interest while complying with all applicable legal and ethical requirements.")

Case Date Jurisdiction State Cite Checked
2014-01-01 State FL B 8/14

Chapter: 16.904
Case Name: Lopez v. Longs Drug Stores Cal., A131638, 2013 Cal. App. Unpub. LEXIS 3399, at *36-37, *37-38, *40-41 (Cal. Ct. App. May 14, 2013)
(finding that the attorney-client privilege protected a list of possible RIF employees, which an employee prepared for a lawyer's use; "'Project Orange' was a code name for a 2003 reduction in force at Longs. The 'Project Orange' document was a six-page document with the notation 'Longs Drugs Confidential,' listing the names, job titles and employment locations of 139 employees Lopez's attorney obtained the document from Douglas Hale, a former Vice President of Administration at Longs who was laid off in 2003. In his declaration, Hale stated he 'received an internal and confidential document from Longs Legal Department entitled "Project Orange Address Listing,"' a few days after he was laid off in February 2003."; "Linda Watt, former Senior Vice President of Human Resources at Longs, declared 'I recognize [the Project Orange Document] to be a version of a document my staff exchanged with Longs' lawyers for the purposes of seeking and obtaining legal advice about the employees Longs was considering for layoff as part of the 'Project Orange' RIF. This document was not a final list of those who had been selected for layoff; rather it appears to be an interim list. This document was created solely for the purpose of the 'Project Orange' RIF and we treated it as confidential and privileged -- i.e., as part of a privileged communication with the Company's attorneys. Other than to Longs' outside lawyers, I am not aware of anyone disclosing or sending this document to anyone outside of the Company's Human Resources or Legal Departments. I never provided Mr. Hale with a copy of this document, nor was he authorized to possess it.'"; "Just as in Mitsubishi [O'Mary v. Mitsubishi Elecs. Am., Inc., 69 Cal. Rptr. 2d 389 (Cal. Ct. App. 1997)], the 'Project Orange' document was a list of employees identified for possible termination, prepared by the human resources department for the company attorneys. The fact that the 'Project Orange' list was modified in the course of being 'exchanged' between Human Resources and the legal department does not indicate the document Hale produced was not privileged. Substantial evidence supports the trial court's factual findings in this regard.")

Case Date Jurisdiction State Cite Checked
2013-05-14 State CA B 3/14

Chapter: 16.904
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 647 (D. Nev. 2013)
("The first attachment is a draft of an 'external Q&A' regarding the Recovery Filter. It does not appear to contain any comments of counsel that might be considered privileged. The next attachment is a memorandum from Hill & Knowlton [P.R. firm] which encloses a draft of the guide for implementing a 'communications strategy' to ensure Bard is 'prepared for any news coverage that may result from pending investigations surrounding the Recovery Vena Cava Filter.' None of the highlighted comments reflect any legal advice. Rather, they appear to be notes to include additional information without legal significance. The last attachment is an 'internal Q&A' regarding the Recovery Filter; it does not include any comments that appear to have come from counsel.")

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

Chapter: 16.904
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *71 72 (S.D. Ohio Nov. 13, 2012)
("The Court's in camera review of the documents contained at Tabs 11, 12, 13, and 18 reflects that the draft letters created by corporate corporate employee and revised by counsel, as well as the emails transmitted to and from counsel, were at counsel's request and in furtherance of counsel's provision of legal advice to defendants and fall squarely within the protection of the attorney client privilege outlined by the Supreme Court in Upjohn [Upjohn Co. v. United States, 449 U.S. 383 (1981)]. . . . The revised drafts and emails contain confidential communications made for purposes of enabling counsel to provide legal advice to defendants in response to the NOV.")

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

Chapter: 16.904
Case Name: In re Plasma Derivative Protein Therapies Antitrust Litig., Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *10-11 (N.D. Ill. Nov. 7, 2012)
("Baxter has argued that the document is privileged, and to support its claim it has offered a declaration from Ms. Ladone explaining that the attachment, written by her, was 'a draft set of key messages for an upcoming investor conference.'. . . Ms. Ladone states that she wrote the document 'in response to an earlier communication by Ms. Lichtenstein [Baxter's General Counsel at the time] requesting a legal review of Baxter's communications for the upcoming investor conference.'. . . She further states that she wrote the email and the attachment 'for the purpose of seeking legal advice from and discussing legal issues with senior in-house counsel about the messages we could convey to investors at the upcoming conference.'. . . But this purpose is not apparent from the face of the document or the email. On its face the document appears to be drafted and circulated for primarily a business purpose - namely, to get all the potential players on the same page as to how to respond to inquiries at the upcoming investor conference. There is nothing in the body of the email or the document - other than the inclusion of lawyers on the distribution list - to suggest that Ms. Ladone was soliciting legal advice. Ms. Ladone's self-serving declaration, drafted more than five years after the fact, is not enough to trigger a privilege that clearly did not exist when the document was created.")

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal IL B 7/13

Chapter: 16.904
Case Name: County of San Mateo v. CSL Ltd. (In re Plasma Derivative Protein Therapies Antitrust Litig.), Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *10 (N.D. Ill. Nov. 7, 2012)
January 16, 2013 (PRIVILEGE POINT)

"Where Do Courts Look When Determining Whether a Litigant has Proven Attorney Client Privilege or Work Product Protection?: Part II"

Last week's Privilege Point described some courts' reliance on affidavits or some other extrinsic evidence when assessing a protection claim – rather than a review of the documents themselves. Other courts takes exactly the opposite position.

In County of San Mateo v. CSL Ltd. (In re Plasma Derivative Protein Therapies Antitrust Litig.), the court dealt with defendant Baxter's withholding of a document described as a "'draft set of key messages for an upcoming investor conference.'" Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *10 (N.D. Ill. Nov. 7, 2012) (internal citation omitted). In support of its privilege claim, Baxter supplied a declaration from the company's Corporate Vice President of Investor Relations. She stated that she prepared the document at the General Counsel's request "’for the purpose of seeking legal advice from and discussing legal issues with senior in house counsel about the messages we could convey to investors.’" Id. At *10-11. The court found the affidavit unconvincing, labeling it a "self serving declaration, drafted more than five years after the fact." Id. At *11. Instead, the court looked only at the document and its forwarding email. The court noted that the Vice President's claimed purpose was "not apparent from the face of the document or the [forwarding] email." Id. In rejecting Baxter's privilege claim, the court reiterated that "[t]here is nothing in the body of the email or the document – other than the inclusion of lawyers on the distribution list – to suggest that [the Vice President] was soliciting legal advice." Id.

Because some courts do not give much weight to affidavits (even labeling them "self serving" – which seems axiomatic), lawyers should encourage their clients to articulate the basis for any protection in the documents themselves. For instance, a cover email forwarding a draft document to a lawyer for review should explicitly indicate that the sender requests legal advice about the attached draft.

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal IL
Comment:

key case


Chapter: 16.904
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: 16.904
Case Name: High Point Sarl v. Sprint Nextel Corp., Civ. A. Case No. 09 2269 CM DJM, 2012 U.S. Dist. LEXIS 154585, at *27-28 (D. Kan. Oct. 29, 2012)
(analyzing privilege issues in a patent case; "The Court has reviewed the document identified as entry 1095 and agrees with the Special Master's recommendation that page 4 should be retained as it appears to contain handwritten notes by Avaya's former patent licensing director about the patents-in-suit. Avaya has alleged that this information is the product of discussion with Avaya's attorneys and is a record of an attorney-privileged communication. The Court will therefore adopt the Special Master's privilege recommendation with regard to entry 1095.")

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

Chapter: 16.904
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: 16.904
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: 16.904
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: 16.904
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: 16.904
Case Name: Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
November 14, 2018 (PRIVILEGE POINT)

How Do Clients Successfully Assert Privilege Protection for Draft Documents They Send to Lawyers for Review?

Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and sometimes assistance in drafting. How do courts tell them apart?

In Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018), Judge Castel acknowledged these two basic principles. The court then explained that "[p]reexisting business documents that are sent to a lawyer are fundamentally different from drafts because their business purpose (or content) cannot be affected by any after-the-fact advice received from the lawyer." Id. at *4-5. The court also recognized that clients might ask for abstract legal advice, but "[t]o save time and to place the inquiry in a concrete setting, the business person could instead send a draft of the material" about which the clients seek advice. Id. at *5 (footnote omitted). Those documents can deserve privilege protection -- "[a]ssuming the transmittal of those drafts were confidential and implicitly or explicitly sought the lawyer's advice." Id. The court also explained how it would differentiate between unprotected preexisting documents and protected draft documents: "[t]he Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations." Id. at *8. The court then addressed possible privilege protection for each withheld document one by one.

Given this well-settled law and judicial approach, lawyers should educate their clients who send them draft documents to describe them as drafts, and to explicitly ask for legal advice if that is what they seek – so courts' "in camera" review will reach the right result.

Case Date Jurisdiction State Cite Checked
Federal

Chapter: 16.905
Case Name: Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
November 14, 2018 (PRIVILEGE POINT)

How Do Clients Successfully Assert Privilege Protection for Draft Documents They Send to Lawyers for Review?

Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and sometimes assistance in drafting. How do courts tell them apart?

In Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018), Judge Castel acknowledged these two basic principles. The court then explained that "[p]reexisting business documents that are sent to a lawyer are fundamentally different from drafts because their business purpose (or content) cannot be affected by any after-the-fact advice received from the lawyer." Id. at *4-5. The court also recognized that clients might ask for abstract legal advice, but "[t]o save time and to place the inquiry in a concrete setting, the business person could instead send a draft of the material" about which the clients seek advice. Id. at *5 (footnote omitted). Those documents can deserve privilege protection -- "[a]ssuming the transmittal of those drafts were confidential and implicitly or explicitly sought the lawyer's advice." Id. The court also explained how it would differentiate between unprotected preexisting documents and protected draft documents: "[t]he Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations." Id. at *8. The court then addressed possible privilege protection for each withheld document one by one.

Given this well-settled law and judicial approach, lawyers should educate their clients who send them draft documents to describe them as drafts, and to explicitly ask for legal advice if that is what they seek – so courts' "in camera" review will reach the right result.

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

Chapter: 16.905
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; "News has withheld drafts of business documents, such as marketing materials, sales highlights, and meeting minutes, that News's business people sent to in-house lawyers for review prior to external or wider internal dissemination. It has also withheld legal training and policy materials created by its in-house lawyers. Valassis has moved to compel the production of both categories of documents."; "The attorney-client privilege attaches to a confidential communication from a client to the client's lawyer if the predominate purpose of the communication is seeking legal advice. . . . The attorney-client privilege does not extend to preexisting documents that a client sends to the client's lawyer. . . . But, depending on context, a draft document sent to a lawyer may be a confidential communication made for the predominant purpose of obtaining legal advice even though the draft is intended ultimately to become a business document when and if the lawyer's legal input or approval is received. Preexisting business documents that are sent to a lawyer are fundamentally different from drafts because their business purpose (or content) cannot be affected by any after-the-fact advice received from the lawyer; they are simply not privileged."; "A business person could communicate with a lawyer in confidence, inquiring whether certain claims about a product could be made lawfully or whether a business strategy violated the antitrust laws, and those communications presumptively would be protected by the attorney-client privilege. To save time and to place the inquiry in a concrete setting, the business person could instead send a draft of the material making the claims about the product or setting out the business strategy to the lawyer to obtain the lawyer's advice before disseminating it more widely or implementing the strategy. Assuming the transmittal of those drafts were confidential and implicitly or explicitly sought the lawyer's advice on the lawfulness of their content, they, too, would be presumptively privileged. If, after a lawyer's review, the draft becomes a business document, then the business document received from the lawyer is not privileged and must be produced to an opposing party upon request."; "A corporation can only act through its employees and agents. Concern by managers of a corporation that its conduct not run afoul of the law is a worthy consideration. Providing business people with ready access to lawyers to ensure that their business activities are in compliance with the law is not a nefarious activity. Prudent lawyers counsel against, and thus often prevent, unlawful actions by a client. In a suit against a corporation, it is the actions and statements of the corporation, through its employees, that are to be judged and not bad ideas that are presented by its employees to a lawyer and never see the light of day because of the lawyer's legal advice. The act of 'vetting' a proposed strategy with a lawyer is what an honest client may choose to do before implementing a strategy. If, by use of the term 'scrubbing,' Valassis is insinuating that privileged documents have been altered or destroyed, there has been no evidence of it; rather, the documents have been logged and preserved for in camera review by a court.")

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

Key Case


Chapter: 16.905
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: 16.905
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: 16.905
Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("Although AbbVie contends that Vice President and in-house counsel Perry Siatis ('Siatis') and in-house counsel Joanne Lee ('Lee') and Jennifer Razor ('Razor') were 'involved' with these presentations, Siatis does not address these presentations in his declaration. AbbVie did not submit a declaration from Lee. Razor states by declaration that '[t]hese documents are draft presentations concerning the AndroGel promotional initiatives that were sent to me for my legal review and analysis.' Razor says that she reviewed and edited the drafts, but she does not identify the portions of the document which contain her comments and notes, let alone her legal advice. Neither Razor nor AbbVie explains why these presentations were created or the nature of Razor's legal advice. It is apparent from our in camera review that Landreck created these documents for some unspecified business purpose. Notably, one of the few identifiable comments on the presentations instructs Landreck to delete the statement 'Prepared at the request of legal counsel' because '[t]his statement isn't accurate. Please change to 'Privileged and Confidential.'")

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

Chapter: 16.905
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
2016-01-25 Federal IL B 7/16

Chapter: 16.905
Case Name: United Food and Commercial Workers Local 1776 v. Teikoku Pharma USA, Inc., Case No. 14-md-02521-WHO, 2015 U.S. Dist. LEXIS 151948 (N.D. Cal. Nov. 9, 2015)
(holding that a draft letter did not deserve privilege protection because they were primarily business-related, and that any privilege was waived when the company provided the draft letters to Deloitte; also rejecting work product protection for tax-related communications occurring after litigation ended; "Having reviewed the draft letters and considered the argument the parties made during the October 6, 2015 Case Management Conference, I find that the drafts were created primarily for accounting purposes and not in anticipation of litigation. The drafts were circulated between, and the edits made by, members of Endo's business team and Endo's outside accountants at Deloitte in order to seek pre-clearance of Endo's accounting of the Watson settlement. In these circumstances -- where Deloitte was engaged to provide business accounting services, not to assist counsel with specific legal matters -- the attorney-client privilege cannot be invoked.")

Case Date Jurisdiction State Cite Checked
2015-11-09 Federal CA

Chapter: 16.905
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: 16.905
Case Name: Wells Fargo & Co. v. United States of America, Case No. 09-CV-2764 (PJS/TNL), 2014 U.S. Dist. LEXIS 81430, at *8-9 (D. Minn. June 16, 2014)
(concluding that a client employee's draft of a memorandum to a lawyer was not an implicit request for legal advice; "Even if Wells Fargo could show that all 21 of the documents were circulated to its in-house attorneys, the Court could not find that the documents were privileged, because Wells Fargo has failed to establish that the documents were circulated for the purpose of obtaining legal advice or services. Wells Fargo argues that the Court can infer that drafts of the memorandum sent to in-house counsel were implicit requests for legal advice or services regarding the memorandum. . . . But Wells Fargo offers no evidence to support these rather vague and abstract assertions. By contrast, the government offers concrete evidence that Wells Fargo's in-house attorneys were involved in non-legal aspects of implementing the STARS transaction. . . . Under these circumstances, it is as likely that these attorneys were being asked to ensure the factual accuracy of the drafts as it is that these attorneys were being asked to provide legal advice.")

Case Date Jurisdiction State Cite Checked
2014-06-16 Federal MN

Chapter: 16.905
Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2-15 U.S. Dist. LEXIS 20859, at *8 (D. Conn. Feb. 19, 2014)
("[T]here is no indication that these drafts were prepared for the purpose of obtaining legal advice. Since plaintiffs have not met their burden of establishing the privilege for these drafts, documents 3, 4 and 6 must be produced.")

Case Date Jurisdiction State Cite Checked
2014-02-19 Federal CT B 7/14

Chapter: 16.905
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *19-20 (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; "[D]rafts of minutes of meetings of a corporation's board of directors were held not protected from discovery by the attorney-client privilege, where the corporation failed to establish that the document pertained to any request for legal advice from the corporation's attorneys.")

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

Chapter: 16.905
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 *19-20 (D. Conn. Nov. 14, 2013)
("Although Progressive represents that these documents were sent to in-house counsel for legal review and approval, or sent by the lobbyist-attorneys to clients, there is no evidence before the Court as to whom these documents were actually sent, and whether they were distributed outside of Progressive or the IAC's IAC [Insurance Association of Conn.] members. Unlike other draft documents provided to the Court for in camera review, these documents are not accompanied by their transmittal email for 'context', nor does the privilege log indicate whether such documents were attached to other emails also submitted for review. The Court therefore concludes that Progressive has not borne its burden of showing that documents 120, 121, 127, 128, and 157 are protected by the attorney-client privilege.")

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

Chapter: 16.905
Case Name: Tietsworth v. Sears, Roebuck & Co., No. C09-00288 JF HRL, 2013 U.S. Dist. LEXIS 15005, at *5-6 (N.D. Cal. Feb. 4, 2013)
(holding that the privilege protects draft documents if a lawyer is involved in the drafting; "This court generally agrees that 'unless the communication does not at the outset meet the elements of the attorney-client privilege, then a draft of a document which becomes public record does not thereby lose that privilege.' But, Roth [Roth v. Aon Corp., 254 F.R.D. 538 (N.D. Ill. 2009)] involved an email communication between the client and in-house counsel, seeking legal advice with respect to an attached draft of a document to be submitted to the Securities & Exchange Commission. By contrast, there is no evidence of any attorney-client communication as to these Sears documents. The documents themselves do not appear to be communications. There is nothing in the record presented to this court indicating they were exchanged or discussed between attorney and client. Moreover, the documents in question appear to contain purely factual information. 'The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal CA B 2/14

Chapter: 16.905
Case Name: In re Plasma Derivative Protein Therapies Antitrust Litig., Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *10-11 (N.D. Ill. Nov. 7, 2012)
("Baxter has argued that the document is privileged, and to support its claim it has offered a declaration from Ms. Ladone explaining that the attachment, written by her, was 'a draft set of key messages for an upcoming investor conference.'. . . Ms. Ladone states that she wrote the document 'in response to an earlier communication by Ms. Lichtenstein [Baxter's General Counsel at the time] requesting a legal review of Baxter's communications for the upcoming investor conference.'. . . She further states that she wrote the email and the attachment 'for the purpose of seeking legal advice from and discussing legal issues with senior in-house counsel about the messages we could convey to investors at the upcoming conference.'. . . But this purpose is not apparent from the face of the document or the email. On its face the document appears to be drafted and circulated for primarily a business purpose - namely, to get all the potential players on the same page as to how to respond to inquiries at the upcoming investor conference. There is nothing in the body of the email or the document - other than the inclusion of lawyers on the distribution list - to suggest that Ms. Ladone was soliciting legal advice. Ms. Ladone's self-serving declaration, drafted more than five years after the fact, is not enough to trigger a privilege that clearly did not exist when the document was created.")

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal IL B 7/13

Chapter: 16.906
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; "News must produce Exhibits 8, 12, and 14. News has not established that the draft marking materials contained in Exhibit 8 were ever submitted to a lawyer. Exhibit 12 contains only business, not legal, advice. Exhibit 14 is a business document that already incorporates, but does not provide, legal advice.")

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

Chapter: 16.906
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)
("Caselaw 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. Fourth, where a communication contains both legal advice and business advice, attorney-client protection only applies if the legal advice predominates over the business advice; the privilege does not apply where legal advice is merely incidental to business advice. Fifth, '[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.' On the other hand, drafts of memoranda prepared for a client are protected Sixth, the attorney-client privilege does not attach to simple editing or 'word-smithing' by counsel.")

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

key case


Chapter: 16.906
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: 16.906
Case Name: SCF Waxler Marine LLC v. Aris T, Civ. A. Nos. 16-902, -959, -1022, -1134, & -1614 SECTION: "A"(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017)
September 6, 2017 (PRIVILEGE POINT)

"The Trouble with Drafts: Part II"

Last week's Privilege Point discussed a decision holding that the privilege did not protect in-progress drafts of documents whose final version will be disclosed to third parties. In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kan. June 13, 2017).

On the same day, the Eastern District of Louisiana dealt with this issue. In SCF Waxler Marine LLC v. Aris T, Civ. A. Nos. 16-902, -959, -1022, -1134, & -1614 SECTION: “A”(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017), the court rejected a party's effort to discover preliminary drafts of an incident report whose final version was ultimately made public. The court noted that the client and his lawyer "did not intend that their drafts and analysis would be subject to disclosure." Id. at *25. The court then emphasized an obvious point some courts seemingly overlook – "the argument raised by [the party seeking discovery] 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." Id.

The SCF Waxler Marine court's refreshingly logical approach should carry the day in every court. But to be safe, clients and their lawyers should carefully document (1) both of their roles in drafting documents for ultimate disclosure; (2) the lawyer's legal input as reflecting legal advice, rather than business, stylistic, or grammatical advice; and (3) their intent to maintain their drafting process's confidentiality until they agree on a final version to be disclosed.

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

key case


Chapter: 16.906
Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644C/W10-106 Ref: All Cases Section "N" (3), 2014 U.S. Dist. LEXIS 93881 (E.D. La. July 10, 2014)
(holding that the privilege and the work product doctrine protected draft affidavits; "With regard to the draft affidavits, the general rule is that draft documents are only privileged to the extent that communications contained therein are not revealed to third parties.")

Case Date Jurisdiction State Cite Checked
2014-07-10 Federal LA

Chapter: 16.906
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: 16.906
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: 16.907
Case Name: International Cards Co., Ltd. v. MasterCard International Inc., 13-CV-02576 (LGS) (SN), 2014 U.S. Dist. LEXIS 125370 (S.D.N.Y. Aug. 27, 2014)
("The Court finds that portions of Document 89 are protected by the attorney-work privilege because they are communications sufficiently related to D'Souza's request for Sork's legal advice. The predominantly legal nature of Sork's advice is evident from the revisions D'Souza made to the ICC response letter after she conferred with Sork.")

Case Date Jurisdiction State Cite Checked
2014-08-27 Federal NY
Comment:

key case