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TABLE OF CONTENTS PART 1 The Attorney-Client Privilege 1 I. Purpose and Scope of the Attorney-Client Privilege 3 A. Definition of the Privilege 3 B. Policy Justifications for the Privilege 4 C. Strict Construction of Privilege 11 D. Relationship Between Privilege and Attorney's Ethical Obligations 15 II. Standing 19 A. Who May Raise the Privilege? 19 B. Who May Waive the Privilege? 23 1. The Client 24 2. Counsel Acting on Client's Behalf 25 3. Deceased Client 27 4. In the Corporate Context 28 5. Successors-In-Interest 36 6. Trustees in Bankruptcy 40 a. In the Corporate Context 40 b. In the Individual Context 42 7. In the Governmental Context 49 8. Who May Waive a Joint Privilege? 50 9. Waiver in Context of Dual Representations 53 C. May the Privilege Be Assigned? 58 D. Dismissal of Action Based on Privileged Communications 61 E. May a Negative Inference Be Drawn from Assertion of the Privilege? 61 III. Elements of the Attorney-Client Privilege 64 ELEMENT 1: A Communication 66 A. Communications from Client 66 1. Client and Potential Client Questionnaires 73 a. Protection Accorded 73 b. Protection Not Accorded 75 B. Communications from Attorney 76 1. Strict Construction of Privilege 78 2. Broad Construction of Privilege 82 C. Communications About Legal Advice Among Client Employees 86 D. Communications Between Attorneys 87 E. Communications Not Encompassed Within Privilege 88 1. Facts 88 2. Existence of Attorney-Client Relationship and Identity of Client 88 3. The Fact That and the Purpose for Which Attorney Was Retained Are Not Privileged 91 4. Foundational Issues 93 5. Fee Arrangements Generally Not Privilege Protected 95 6. Client Identity and Fee Payments in the Grand Jury or Quasi Criminal Context 104 7. Billing Statements and Hourly Records 121 8. Documents and Other Tangibles Transmitted to an Attorney 125 9. Client Notes 130 10. Witness Statements 131 11. Attorney's Notes 132 12. Drafts of Documents 132 13. Communications Between Debtor and Attorney Before Filing of Petition 133 ELEMENT 2: Privileged Persons 134 A. The Client 134 1. In General 134 2. When Is a Client Indeed a "Client"? 135 a. Temporal: When Does a Client Become a "Client" for Purposes of the Privilege? 140 b. When Can a Client Speak Through a Representative? 140 3. Corporation as Client 141 a. Subject Matter and Control Group Tests 142 b. Transmission of Privileged Documents Within Corporation 151 c. Transmission of Documents Through Agent of Corporation 153 d. Transmission of Documents Among Related Corporate Entities 154 4. Individual Employee or Corporation as Client 155 a. The Default Assumption: The Corporation Is the Client 155 b. The Bevill Factors Must Be Shown for Privilege to Attach to Corporate Officer 157 c. Whom Is Counsel Representing in the Closely Held Corporation? 161 d. Whom Is Counsel Representing in Other Institutional Contexts? 164 e. Representational Conflict Issues 165 5. Does the Privilege Extend to Former Employees of the Corporation? 168 6. Various Corporate Agents as Representatives of Client 175 7. Other Non-Individual Entities as Clients 178 8. Government as Client 179 a. In the Civil Context 179 b. In the Grand Jury Context 183 9. Class Members as Clients 188 10. Multiple Clients 189 11. Association Members as Clients 190 12. Fiduciary or Beneficiary as Client 190 13. -Independent Contractors as Corporate Agents for Privilege Purposes 192 B. Client's Attorney 195 1. Formal Retention 195 2. When Is an Attorney an "Attorney"? 196 3. Non-Attorneys Giving Legal Advice 202 4. Attorney as In-House Counsel 205 5. Attorney as Friend or Relative 207 6. Attorney as Officer of Court 208 7. Government Agency as Attorney for Private Citizens 209 8. Insurance Company Representatives 210 C. Agents of Attorney 211 D. Retained Experts 216 E. Communicating Agents 229 F. Attempts to Use Attorney as Shield to Prevent Disclosure 232 ELEMENT 3: In Confidence 233 A. Existence of Attorney-Client Relationship 233 B. Expectation of Confidentiality 235 C. Intention to Maintain Confidentiality 236 D. Intention to Reveal to Third Parties 246 E. To What Extent Are Prior Drafts of Public Filings or Third-Party Letters Discoverable? 253 F. How Does the Presence of Third Parties Affect Privilege? 258 F. Presence of Third Parties 261 1. Family Context 266 2. Corporate Context 268 3. Governmental Context 271 4. In Jail 273 5. Co-Counsel 273 G. Common Interest 274 1. Single Attorney for Multiple Clients 281 2. Common or Joint Defense 286 3. Joint Prosecutorial Interest 289 4. Commonality of Legal Interest 289 5. Commonality of Commercial Interests 297 6. Actual or Potential Identity of Interest 301 7. Agreements to Pursue Common Interest 304 8. Adverse Interests Intertwined with Common Interests 307 9. Presence of Requisite Elements for Joint Defense/ Common Interest Privilege 309 10. When Parties with Common Interests Have a Falling Out 312 11. Extent of Joint Defense or Common Interest Privilege 321 12. Waiver of Joint Privilege 323 H. Settlement Discussions 324 I. Marking Documents as Confidential 325 ELEMENT 4: For Purpose of Seeking or Obtaining Legal Assistance 325 A. Primary Purpose Must Be to Seek Advice 325 B. Implicit Request for Legal Advice Is Sufficient 329 C. Communication Is Necessary to Render Legal Advice 331 D. Client Testimony About Why Documents Were Created 333 E. Nonlegal Business Information Conveyed to Attorney 334 F. When Is Attorney Giving Legal Advice? 336 1. When Attorneys Wear Two Hats 337 2. Attorney as Drafter of Legal Documents 341 3. Attorney as Document Depository or Incidental Recipient of Documents 342 4. Attorney on Corporate and Other Committees 344 5. Attorney as Conduit of Information 346 6. Attorney as Business Advisor 347 7. Attorney as Business Agent 350 8. Attorney as Negotiator 352 9. Attorney as Consultant 354 10. Attorney as Lobbyist 355 11. Attorney as Political Advisor 355 12. The Legal Audit or Attorney as Investigator 356 13. Attorney as Tax Preparer 364 14. Attorney in Patent Law Area 370 15. Attorney as Claims Adjuster 389 IV. Waiver of the Attorney-Client Privilege 390 A. Reservation of the Privilege 392 B. What Actions and What Situations Constitute Waiver? 398 1. Purposeful or Voluntary Disclosure 398 2. Partial Disclosure 407 3. Involuntary or Compelled Disclosure 410 4. Failure to Object to Disclosure 417 5. What Constitutes Failure to Protect from Disclosure 423 6. Inadvertent Disclosure 433 a. The Lenient Approach to Inadvertent Disclosure 433 b. Strict Liability for Inadvertent Disclosure 437 c. The Balancing Test for Inadvertent Disclosure 442 d. Inadvertent Production Not Excused 452 e. Inadvertent Disclosure Excused 458 f. Must Inadvertently Produced Documents Be Returned? 466 g. Volunteering Attorney Communications During Depositions 470 7. Repairing Inadvertent Disclosure 470 8. Precautions to Protect the Privilege 471 9. Disclosure by Third Parties 474 10. Disclosure Between Privileged Parties 476 11. Disclosure Within a Privilege-Protected Context 483 12. Disclosure During Settlement Discussions 484 13. Disclosure Within Corporation 486 14. Disclosure Between Affiliated Corporations 489 15. Disclosure to Client's Agent 491 16. Selective Disclosure 492 a. Privilege Is Definitively Lost by Selective Disclosure 495 b. Selective Disclosure Does Not Definitively Lose the Privilege 502 c. Selective Waiver May Not Lose Privilege Provided a Confidentiality Agreement Is Entered into Before Disclosure 504 17. Waiver by Affirmative Reliance 507 a. Waiver When Advice of Counsel Is Raised as a Defense 511 b. Giving Notice of an Intent to Rely upon an Advice of Counsel Defense 525 c. Strategies to Avoid Waiving the Privilege 525 ?i) -Choice: Abandonment of Defense of Advice of Counsel or Disclosure 525 ii) -Bifurcation of Trial for Issues Which Rely on Advice of Counsel 528 d. When Advice of Counsel Is Merely Implicit to a Claim or a Defense 529 e. When Advice of Counsel Is Asserted as a Reason for an Action Taken, But Not as a Defense 535 f. Waiver by "Offensive Use" 546 g. Advice of Counsel in the Grand Jury Context 550 h. Reliance on Privileged Document 551 18. Waiver in Suits/Proceedings Where Actions of Counsel Are Placed in Issue 552 a. In the Civil Context 554 b. In the Criminal Context 561 19. Waiver by Reliance on Attorney's Investigation 566 20. Waiver by Preparation of or Refreshing Recollection of Witness 567 21. Waiver Where Testimony of a Witness Can Be Impeached by a Privilege-Protected Document 570 22. Waiver by Use of Attorney as Witness or by Testimony Regarding Privileged Communications 572 23. Waiver by Failure to Assert the Privilege 575 24. Compelled Waiver to Avoid Prosecution or Reduce Sentence 576 C. What Actions and Situations Do Not Constitute Waiver 579 D. Scope of Waiver 580 1. Permanent and for All Purposes 581 a. In the Civil Litigation Context 581 b. In the Criminal Litigation Context 583 2. All Communications on Same Subject Matter 584 3. Scope of Waiver in Context of Inadvertent Disclosure 594 a. Same Subject Matter Disclosure Not Required 599 b. Document-by-Document Determination of Whether Disclosure Is Required 600 c. Disclosure of Subsidiary Issues Not Required 600 4. Scope of Waiver When Attorney Advice Is at Issue 601 5. Scope of Waiver in Patent Cases 603 a. What Discovery Is Allowed When Opinion Relied upon Is Not in Writing? 613 b. Discovery Allowed Even of Work Product Which Is Not Communicated 614 c. Discovery of Not Communicated Work Product Not Allowed 622 d. Will Discovery of Trial Counsel's Work Product Be Allowed? 625 ?i) Discovery of Trial Counsel's Work Product Allowed 625 ii) Discovery of Trial Counsel's Work Product Not Allowed 626 iii) Discovery of Trial Counsel's Work Product Allowed But Only If Communicated to Client 627 e. Will Discovery of Trial Counsel's Work Product Be Allowed After Suit Is Filed? 628 E. Attorney's Ethical Obligations upon Receipt of Privileged Documents 631 F. Policy Considerations Implicated in Scope of Waiver 636 V. Exceptions to Application of the Attorney-Client Privilege 637 A. The Fiduciary Exception 638 1. Garner Doctrine 639 2. Garner Doctrine Applied and Then Again Not 641 3. Garner Doctrine Criticized 647 4. Piercing the Privilege in Other Fiduciary Contexts 647 a. Other Corporate Contexts 648 b. ERISA Context 650 c. When Banks Act as Fiduciaries 663 d. When Unions Act as Fiduciaries 664 e. When Government Acts as a Fiduciary 666 f. Partnerships 667 g. Fiduciaries in Bankruptcy Context 667 h. Attorneys as Fiduciaries 668 i. Executors 669 B. Crime or Fraud Exception to the Attorney-Client Privilege 670 1. Policy Reasons for Not Protecting Confidences Designed to Effect Future Crime or Fraud 674 2. Time When Legal Advice Is Sought Key to Whether Exception Is Available 677 3. Requisite Showing of Crime/Fraud 679 4. What Constitutes a Prima Facie Showing of Crime or Fraud? 692 5. Problems Surrounding the Requisite in Camera Review 707 6. Prima Facie Finding Made 712 7. Prima Facie Case Not Made 718 8. Extent to Which the Privilege Is Lost 720 9. Reliance on Prior Proceedings and Findings 723 10. Bankruptcy Context 724 11. Reaching Privileged Communications in Furtherance of a Tort 724 12. Reaching Privileged Communications in Furtherance of Breach of Fiduciary Duty 728 13. -Reaching Privileged Communications in Context of Other Improper Behavior 728 14. -Dangers Attendant upon Subpoenas Issued by Prosecutors Against Attorneys 740 15. Miscellaneous Considerations 741 C. Overriding Public Policy Exception 742 VI. Criminal Convictions Based on Attorney Testimony 744 VII. Survival of the Attorney-Client Privilege 748 A. The Death or Transformation of the Client 748 1. The Individual Client 748 2. The Corporate Client 756 3. The Partnership 757 B. The Death or Transformation of the Attorney 758 C. Sale of Corporation or Corporate Assets 759 VIII. Attorney-Client Privilege in International Context 761 A. Recognition of the Privilege Abroad 761 B. Recognition of Foreign Attorney's Privilege by United States Courts 764 IX. Ethical Concerns 767 A. Maintaining Client Confidences 767 B. Whistle-Blowing 768 C. In-House Lawyers Suing Former Employer/Client for Wrongful Discharge 769 D. Attorneys Providing Privileged Information Against Clients 779 E. Disqualification of Counsel 783 F. Interviewing Former Corporation Employees as Witnesses 785 G. Returning Privileged Documents 787 PART 2 The Work-Product Protection 791 I. Purpose and Scope of Work-Product Protection 791 A. History and Policy of Work-Product Protection 793 B. Codification of Work-Product Protection 795 1. Civil Discovery Rule 796 2. Criminal Discovery Rule 797 3. Availability of Work-Product Protection in Other Proceedings 798 a. Grand Jury 799 b. Other Investigations 800 c. Trials 800 d. State Court Proceedings 800 e. Arbitrations 801 C. Scope of Work-Product Protection 801 D. Discovery of Underlying Facts 802 II. Procedural Matters 803 A. Applicable Law 803 B. Standing to Assert or to Waive Protection 804 C. Burden of Proof 810 D. Client's Right to Work Product 812 III. Elements of Work-Product Protection 815 ELEMENT 1: Documents and Tangible Things Otherwise Discoverable 815 ELEMENT 2: Prepared in Anticipation of Litigation or for Trial 824 A. What Constitutes Litigation? 826 B. What Constitutes "Anticipation?" 836 1. Time When Work Product Is Prepared 837 2. Likelihood of Litigation 839 3. Requisite Specificity of Claims 845 4. Time as Continuum 850 5. Facts Indicative of "Anticipation" 852 C. Causation: In Anticipation of Litigation from a Motivational Perspective 854 1. Internal Investigations or Business Audits 864 2. Tax and Business-Related Documents 867 2. Implementation-of-Policy Documents 869 3. Settlement Documents 870 4. Routine Investigatory Documents 871 5. Assessments of Litigation as Work Product 874 6. Patent Filings 874 D. Indicia of Primary Motivation 875 1. Designating Documents as Work-Product Protected 877 2. Participation of Attorney 877 3. Commentary on Ongoing Litigation 881 4. Routine Business Practice 881 5. Dual Purpose Documents: For Business and Litigation 885 6. Avoidance of Litigation 894 E. Review of Preexisting Documents 894 F. Attorney's Non-Litigation Activity 895 G. Extent of Protection 897 1. If No Litigation Ensues 897 2. In Current Litigation Only 898 3. In Subsequent Litigation 900 4. Protection After Litigation Has Terminated 907 H. Insurance Company Files 908 I. False Claims Act Disclosure Statements to Government 910 J. Mechanisms for Enhancing Likelihood That Work Protection Will Be Granted 913 ELEMENT 3: By or For Another Party or That Party's Representative 914 IV. Qualifications on Work-Product Protection 922 A. Substantial Need 924 1. Nature of Substantial Need Must Be Specifically Articulated 925 2. Cost Alone Does Not Constitute Substantial Need 926 3. Unavailable Witness 926 a. Dead Witness 927 b. Witness Beyond Court's Reach 928 c. Witness Who Claims Privilege 928 d. Witness with Faulty Memory 928 e. Hostile Witness 932 4. Disclosure at Trial Likely 932 5. Work Product Probative of Key Issue in Litigation 933 6. Possible Rebuttal and Possible Impeachment 935 7. Most Reliable Available Information 937 8. Substantial Need Not Shown 937 B. Unable to Obtain Substantial Equivalent by Other Means Without Undue Hardship 938 1. No Readily Available Alternative Means 938 2. Cost as a Factor of Undue Hardship 942 C. Balancing Need for Information Against Work-Product Protection Policies 944 V. Protecting Attorney's Mental Impressions 946 A. Rule Implies Absolute Protection Is to Be Accorded 946 1. Prior Drafts 954 2. Assessment of Litigation 956 3. Attorney's Notes 957 B. Exceptions to Absolute Protection Given to Opinion Work Product 958 1. Attorney as Expert Witness 959 2. Attorney's Opinion Relevant to Prove Issue in Dispute 960 3. Attorney's Actions Relevant to Issue in Dispute 960 4. Obtaining Work Product of Plaintiff's Attorney to Prove Defendant's Defense 961 5. Obtaining Work Product of Defendant's Attorney to Prove Plaintiff's Claim 963 C. Specific Categories of Documents 965 1. Litigation Reserves 965 2. Insurance Reserves 966 3. Fee Arrangements in Multiple Party Cases 968 4. Litigation Assessments 969 5. Reduction in Force Work Papers 969 6. Document Organization, Selection, Indexes 970 7. Insurance Company Files 970 8. Data Compilations 974 9. Witness Statements 975 10. Witness Identities 985 a. Identities of Witnesses Interviewed Work-Product Protected 985 b. Identities of Witnesses Interviewed Not Work-Product Protected 987 11. Witness Preparation 990 12. Settlement Negotiations 992 VI. Exceptions to the Work-Product Protection 993 A. Witness Statements 993 B. Experts 993 1. Testifying Experts 993 2. Non-Testifying Experts 1001 C. Surveillance Tapes 1003 D. Attorney's Conduct in Issue 1004 E. Crime or Fraud 1005 1. Protection Can Be Claimed by Either Attorney or Client 1009 2. Considering Actions of Attorney and Client 1014 3. Prima Facie Case in Work-Product Protection Context 1015 F. Garner Doctrine in Work-Product Context 1019 G. Work Product When Common Interest Exists 1022 H. Insurance Company Files 1023 I. Right of Trustee-in-Bankruptcy to Attorney Work Product 1025 J. No Protection for Third-Party Work Product 1026 VII. Waiver of the Work-Product Protection 1027 A. Relation to Waiver of Attorney-Client Privilege 1027 B. Who May Waive the Work-Product Protection 1030 C. Disclosure 1030 1. Disclosure to an Adversary 1033 2. Disclosure to a Party with a Common Interest in Litigation or Business 1038 3. Disclosure to Non-Adversary Third Party 1046 4. To a Governmental Agency 1050 a. Compelled Disclosure 1050 b. Voluntary Disclosure 1053 C. Mandated Filings 1060 1. Securities Law Filings 1060 2. To an Independent Auditor 1060 3. To or From a Testifying Expert 1063 a. Cases Requiring Full Disclosure Even of Core Work Product 1064 b. Cases Not Requiring Disclosure of Core Work Product 1075 c. When a Testifying Expert Is or Was Also a Consulting Expert 1079 4. To a Non-Testifying Expert 1081 5. To Outside Auditors 1082 a. Protection Waived 1084 b. Protection Not Waived 1085 c. More Proof Required 1085 6. Inadvertent Disclosure of Work-Product-Protected Documents 1085 7. Attempted Recapture of Work-Product Protection 1087 C. Selective Waiver 1088 1. To Governmental Agency 1088 2. Disclosure for Settlement Purposes 1095 3. Partial or Manipulative Disclosure 1097 D. Effect of "Advice of Counsel Defense" on Attorney's Work Product 1098 E. Affirmative Use 1099 1. Reliance on Protected Material 1099 2. "At Issue" 1103 3. Attorney as Expert Witness 1104 4. Use at Trial 1105 5. Witness Preparation and Rule 612 1107 F. Extent of Waiver 1114 G. Anticipatory Waiver 1119 H. Disclosure to Client 1120 PART 3 Factors Common to Both the Attorney-Client Privilege and the Work-Product Protection 1123 I. Underlying Facts Not Privilege Protected 1123 II. Procedural Issues 1126 A. Privilege Applicable in all Proceedings 1126 B. Applicable Law 1128 1. Privilege Issues in Non-Diversity Cases 1128 2. Privilege Issues in Diversity Cases 1131 3. Privilege Issues in Cases Where State and Federal Claims Are Intermixed 1138 4. Comity of Law Principles in Foreign Law Context 1140 5. Privilege Issues in Patent Cases 1142 6. Privilege Issues in Bankruptcy Context 1146 C. Raising and Demonstrating Each Element of the Privilege 1146 D. Sustaining Burden of Proof 1151 1. No Blanket Assertions of Privilege or Protection 1151 2. Raising Privilege or Protection 1158 3. Demonstrating Applicability of Each Element 1166 a. Privilege Elements 1171 b. Work-Product Elements 1173 c. Demonstrating Waiver or the Availability of an Exception 1175 4. Submission of Affidavits 1179 5. Proving and Applying Foreign Law 1184 6. Providing Translations 1186 7. Marking Documents as Privileged 1187 E. Privilege Logs 1188 1. What Rules Apply and What Do They Require? 1188 2. Defective Privilege Logs 1193 3. Waiver of Privilege Claims If Privilege Log Not Provided 1197 4. Amendment of Privilege Logs Either Granted or Required 1198 F. In Camera Inspections 1216 G. Appointment of Special Masters 1236 H. Filing Privileged Documents Under Seal 1238 I. Production in Redacted Form 1241 J. Agreements to Disclose Privileged Material without Privilege Waiver 1245 K. Protective Orders 1252 L. Confidentiality Agreements 1269 M. "Chinese Walls" by Prosecutors 1271 N. In Limine Motions 1272 O. Status to Intervene 1275 P. Sanctions 1276 1. Dismissal of Action or Issue Preclusion 1276 2. Waiver of Privilege/Protection Due to Failure to Assert in Timely Fashion 1279 3. Waiver of Privilege as Sanction for Discovery Abuse 1285 4. Monetary Sanctions 1286 5. Sanction of Loss of Work-Product Protection for Ethical Lapse 1290 Q. Requisite Findings for Valid Order 1292 R. Judicial Sua Sponte Review 1293 S. Appeals 1294 1. From Magistrate's Ruling 1294 2. From Special Master's Ruling 1296 3. From Ruling by the District Court 1296 4. From Ruling by Administrative Law Judge 1305 T. Availability of Mandamus 1306 1. Mandamus Issued 1308 2. Mandamus Not Issued 1311 U. Standard of Review for Discovery Orders 1314 V. Stay Orders Pending Appeal 1320 W. Reversal of Trial Verdict 1321 Y. Mootness 1323 Z. Preclusive Effect of Prior Discovery Orders 1323 III. Deposing and Testifying Counsel 1324 IV. Waiver of Privilege in Government Prosecutions or Investigations 1339 V. Attorney-Client Privilege and Work-Product Protection in the Electronic Age 1341 A. Costs of Privilege Review and Cost Shifting 1341 B. Non-Waiver Agreements 1343 D. Precautions Against Waiver 1346 E. Personal Use of Employer's Computer System- Is It Privilege Protected? 1350 1. No Reasonable Expectation of Privacy 1351 2. Reasonable Expectation of Privacy 1352 F. Seizure of Entire Hard Drives 1354 VI. "Two Strings to the Bow" Raising Both Privilege and Protection 1354 VII. Interplay Between FOIA and Privilege/Protection 1358 VIII. Conclusion: Whither the Privilege 1365
Library of Congress Subject Headings for this publication:
Confidential communications -- Lawyers -- United States.
Attorney and client -- United States.
Corporate legal departments -- United States.