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Attorney-Client Privilege and Work Product Review March 10, 2010

Attorney-Client Privilege and Work Product Review March 10, 2010. Presented by Lauren Schmidt. Privilege Logs: Why do we do them?.

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Attorney-Client Privilege and Work Product Review March 10, 2010

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  1. Attorney-Client Privilege and Work Product ReviewMarch 10, 2010 Presented by Lauren Schmidt Brownstein Hyatt Farber Schreck, LLP

  2. Privilege Logs: Why do we do them? • Fed. R. Civ. P. 26(b)(5)(A): When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must: • (i) expressly make the claim; and • (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Brownstein Hyatt Farber Schreck, LLP

  3. Preliminary Privilege Considerations • Trial or arbitration? • Arbitration may not require a privilege log; but be prepared to do one • Consult the ABA “Privilege Bible” • Consult the privilege law of the applicable jurisdiction • Consider document management system. How will you do your privilege review? • Compile list of attorneys and paralegals related to the case Brownstein Hyatt Farber Schreck, LLP

  4. Rule 26(f) conference and scheduling order • Fed. R. Civ. P. 26(f)(3)(D) • Initial meet and confer should include discussion of “any issues relating to claims of privilege or of protection as trial- preparation material, including—if the parties agree on a procedure to assert such claims after production—whether to ask the court to include the agreement in an order.” • Fed. R. Civ. P. 16(b)(3)(B)(iv) • Scheduling orders may also include “any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation materials after production.” Brownstein Hyatt Farber Schreck, LLP

  5. Rule 26(f) conference: Considerations • Is the privilege waived through inadvertent disclosure? • Not under Federal Rules, if you memorialize it • Advisory Committee Note to Rule 16(b)(3)(B)(iv): New rule is designed to facilitate discovery by “minimizing the risk of waiver of privilege or work product protection” • Logging emails from litigation counsel: yes or no? Brownstein Hyatt Farber Schreck, LLP

  6. Returning Inadvertently Produced Privileged Information • Fed. R. Civ. P. 26(b)(5)(B): If other side notifies you of inadvertently produced privileged information you must: • Return or destroy it • Not use the information until the claim is resolved • Most ethical rules require that you affirmatively notify opposing counsel of inadvertently produced privileged documents • E.g., Colorado Ethics Opinion 108: Rule 8.4(d) of the Rules of Professional Conduct “requires a lawyer to respect the privileged and confidential status of documents belonging to non-clients” Brownstein Hyatt Farber Schreck, LLP

  7. The Attorney-Client Privilege • Fed. R. Civ. P. 26(b)(1) / CRCP 26(b)(1): “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense…” • Not as broad as you think it is! • Elements of the attorney-client privilege: (1) A communication (2) Made between privileged persons (3) In confidence (4) For the purpose of seeking, obtaining, or providing legal assistance to the client Brownstein Hyatt Farber Schreck, LLP

  8. The Attorney-Client Privilege (cont.) • Communication: (Not tricky) • Made between privileged persons: • Is the attorney acting as a legal advisor? • Agents of the attorney (e.g., paralegals and legal assistants) are covered by the privilege • (3) In confidence • Must be an intention to maintain confidentiality • Presence of third parties generally destroys the privilege Brownstein Hyatt Farber Schreck, LLP

  9. The Attorney-Client Privilege (cont.) • (4) Made for the purpose of seeking, obtaining, or providing legal assistance to the client • Not sufficient that an attorney was involved in the communication • Same thing for meetings: Mere presence of an attorney at a meeting does not make content of meeting privileged. • Restatement of Law Governing Lawyers: privileged if communication is made for the purpose of obtaining legal advice “and not predominantly for another purpose” • Request for legal advice may be implicit • Corporations: What hat is the lawyer wearing? Attorney or business advisor? • What about communications designed to keep an attorney apprised of business matters? Split of authority • In your privilege review: err on the side of legal advice requested. Courts do. Brownstein Hyatt Farber Schreck, LLP

  10. Attorney-Client Privilege Within Corporations • Upjohn Co. v. United States, 449 U.S. 383 (1981): Communications from employees to in-house counsel are generally protected if matters discussed with counsel fall within the employee’s corporate duties. • Considerations: • How far down the chain does privilege extent? Old “control group” test • Management-level employees may discuss legal advice without waiving the privilege. How far does this extend? • In-house counsel: is the lawyer giving legal advice or acting in some other capacity? • Former employees: (1) information communicated to employee while at corporation remains privileged. (2) BUT, information communicated to former employee likely is NOT privileged • Corporate privilege may extend to non-employee agents Brownstein Hyatt Farber Schreck, LLP

  11. Joint Defense / Common Interest Privilege • Two or more clients with a common legal interest are represented by same lawyer – or separate lawyers – and agree to exchange information concerning the matter • Communication of a client that qualifies as privileged and relates to the common interest matter is privileged as against third persons • Memorialize in writing. Courts will look at facts behind the privilege • If you have a falling out: privilege is retained with respect to third parties. BUT – privilege is NOT retained if parties sue each other Brownstein Hyatt Farber Schreck, LLP

  12. Examples of Common Information that is NOT Privileged • Communication seeking business, not legal, advice • Forwards of other communication without commentary (“FYIs”) • Non-privileged documents sent to an attorney • Drafts of legal documents (may be covered by work product) • Details regarding underlying conversation: the fact that legal advice was sought or given; who was present; when and where the conversation took place, and how long; entries and records of meetings (e.g., Outlook records) • Fee agreements and billing statements (usually not privileged) Brownstein Hyatt Farber Schreck, LLP

  13. Waiver of the Privilege • Generally: Privileged is waived once material is in the public domain • Intentional disclosure • Failure to take adequate precautions • Waiver is complicated • Underscores the need to memorialize privilege agreements with opposing counsel Brownstein Hyatt Farber Schreck, LLP

  14. Attorney Work Product Doctrine: The Basis • Hickman v. Taylor, 329 U.S. 495 (1947) • The purpose: To give qualified immunity from discovery to materials prepared in anticipation of litigation or for trial • FRCP 26(b)(3)(A): “Ordinarily, a party may not discover documents and tangible things that are prepare in anticipation of litigation or for trial by or for another party or its representative.” • Exception: Showing of substantial need • 26(b)(3)(B): If materials must be produced, court must still “protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Brownstein Hyatt Farber Schreck, LLP

  15. Attorney Work Product Doctrine: The Elements • Fed. R. Civ. P. 26(b)(3): • (1) Documents and tangible things • (2) Prepared in anticipation of litigation or for trial • (3) By or for another party or that party’s representative • Fed. R. Civ. P. 34(a): Also applies to electronically stored information • Hickman v. Taylor: Intangibles (i.e., attorney’s thought process) also protected Brownstein Hyatt Farber Schreck, LLP

  16. Work Product: Not as Broad as you Think It Is • Work product is a “qualified immunity” – not a privilege • Can obtain materials based on showing of substantial need • Only applies to documents prepared “in anticipation of litigation” • Corporate / transactional documents are not protected work product!! Brownstein Hyatt Farber Schreck, LLP

  17. Work Product: More Broad Than You Think It Is • “In anticipation of litigation” • May be well before suit is filed • Although: not sufficient that suit was eventually filed. Must still show material was prepared in anticipation of litigation at the time it was prepared • Prepared by or for an attorney • Includes information gathered or prepared at an attorney’s direction • Includes information prepared by third parties (no waiver) • Includes information prepared by attorneys and disseminated to third parties (no waiver) Brownstein Hyatt Farber Schreck, LLP

  18. Briefly: Withholding Information on Other Grounds • Attorneys often withhold or redact irrelevant or marginally relevant information on the grounds that it is “super sensitive” or confidential • Can you do it? • Split of authority as to whether irrelevant portions of documents may be redacted • Best practice for confidential and highly personal information: (a) try to reach stipulation with opposing counsel and/or (b) seek Rule 26(c) protective order • Be prepared to defend a motion to compel Brownstein Hyatt Farber Schreck, LLP

  19. Privilege Review: In General • Early in case: • Attorneys should generate list of attorneys, paralegals, and other custodians who are subject to privilege • Discuss specific privilege issues with doc review team • Set appropriate tags in document management system • Privileged: Attorney-client communication; attorney work product • To be redacted: Attorney client communication; attorney work product • Discuss appropriate Bates labeling system with team and IT • Best practice: Privileged documents should be separately Bates numbered • Take aggressive, but fair, approach to privilege designations Brownstein Hyatt Farber Schreck, LLP

  20. Tips for Document Descriptions in Privilege Logs • Document descriptions: (1) Should reveal privilege status: i.e., why attorney-client communication or work product (2) Should be clear and concise: sufficient to describe but not to give away too much information) (3) If no attorney is listed in the to/from data, make sure that the attorney communication is reflected in description Brownstein Hyatt Farber Schreck, LLP

  21. Redacted Documents • If document contains privileged and non-privileged information: document must be produced in redacted form • Best practices: • Leave identifying information (email header and subject) and redact appropriate text • Insert “Redacted” label over redacted text • Always make sure you can easily access original and redacted copy of documents • QC your productions before they go out! • When logging redacted documents: identify all redacted communications; not just document itself Brownstein Hyatt Farber Schreck, LLP

  22. Review Your Opponent’s Privilege Logs! • Your opponent’s logs contain valuable information • Remember: opposing counsel will often try to withhold important information on privilege or work product grounds • Be prepared to challenge and seek in camera review if necessary Brownstein Hyatt Farber Schreck, LLP

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