Attorney-client Privilege in Civil Litigation: Protecting and Defending ConfidentialityThis edition has been substantially updated, revised and expanded wih new chapters, including Sarbanes-Oxley Act of 2002, confidentiality/communications and ethical problems. This guide addresses the problems faced when representing corporate and other clients in civil litigation. |
Contents
An Overview of the AttorneyClient Privilege When the Client Is a Corporation | 1 |
First Principles | 2 |
Establishing the Privilege | 3 |
Control Group v Subject Matter | 4 |
Conflict of LawsApplication of the Proper Test | 7 |
InHouse Attorney as Executive | 8 |
InHouse Counsel as a Witness | 11 |
The Joint Defense Scenario | 13 |
The Application of the WorkProduct Doctrine | 236 |
Materials Obtained or Prepared In Anticipation of Litigation | 237 |
Applying the AttorneyClient Privilege to Investigations Involving Attorneys What Is Fair Game in Discovery? | 245 |
The AttorneyClient Privilege Defined | 246 |
Is the Attorney Investigator Acting as an Attorney? | 247 |
Attorney Investigator Not Acting in Capacity of Attorney | 249 |
Summary | 252 |
Special Problems Facing Corporations That Retain Counsel to Investigate | 253 |
SelfCritical Analysis Privilege | 14 |
From Brinksmanship to Outright Disaster | 16 |
Waiver | 17 |
Offensive Use of the Privilege | 19 |
Distinguishing the Attorney WorkProduct Doctrine from the AttorneyClient Privilege | 20 |
Limits of the WorkProduct Doctrine | 21 |
Asserting the WorkProduct Privilege in Successive Litigation | 22 |
Conclusion | 23 |
Confidentiality and Its Relationship to the AttorneyClient Privilege | 31 |
Information versus Communication | 32 |
Public Information | 33 |
Paragraph a Impliedly Authorized Disclosures | 34 |
Authorized Disclosures | 35 |
CrimeFraud Exception | 36 |
Ethics Advice | 37 |
Claim or Defense | 38 |
Other Law or Court Order | 39 |
Court Orders | 40 |
The AttorneyClient Privilege and the SarbanesOxley Act of 2002 | 43 |
The Adopted Attorney Conduct Rules | 44 |
Enforcement | 45 |
AttorneyClient Privilege Issues Raised by the Adopted Rules | 46 |
The Proposed Reporting Out Rules | 48 |
The Second Proposed Rule | 49 |
The AttorneyClient Privilege and Corporate Communications Whats Still Confidential? | 57 |
The AttorneyClient Privilege Generally | 58 |
The Asserted Holder of the Privilege isor Sought to Become a Client | 59 |
The AttorneyClient Privilege Protects Communications Not Facts | 60 |
Legal Advice | 61 |
SR Intl Business Ins Co Ltd v World Trade Center Properties LLC | 62 |
Electronic Data Systems Corporation v Steingraber | 64 |
Contract Negotiations by InHouse Counsel | 65 |
The Impact of New Reporting Requirements upon the AttorneyClient Privilege | 66 |
The American Bar Associations Model Rules | 68 |
Conclusion | 69 |
Communications Between Related Corporations and the AttorneyClient Privilege | 75 |
The Common Ownership Test | 76 |
The Joint Defense Test | 79 |
Privilege Denied | 81 |
Conclusion | 86 |
Privilege of Manufacturer Product Safety Quality Assurance Reviews | 91 |
AttorneyClient Privilege | 92 |
Client | 93 |
Lawyer Consulted as Lawyer | 94 |
Legal Advice | 95 |
Confidentiality | 96 |
Development | 97 |
Safety Evaluations | 98 |
Establishing the SelfEvaluative Privilege | 100 |
Application of the Privilege on Documents Prepared for the Government | 101 |
Communications Between Attorneys and Putative Class Members | 105 |
Communications with NonClients Generally | 106 |
NoComment Local Rules | 107 |
Case Management | 109 |
Communications with Putative Class Members | 110 |
Jackson v Motel 6 Multipurpose Inc and Abdollah v CocaCola Company | 111 |
The OptOut Period | 114 |
Georgine v Amchem Products Inc | 116 |
PostCertification PostOptOut Period | 118 |
OptIn Class Actions | 119 |
Conclusion | 122 |
The Application of the AttorneyClient Privilege and the WorkProduct Doctrine to Communications Between Insureds and Insurance Carriers | 127 |
Application of the AttorneyClient Privilege | 129 |
The Minority View | 132 |
Witness Interviews by Carriers or Their Counsel | 133 |
The Impact of a Carriers Reservation of Rights or Declination on the Applicability of the AttorneyClient Privilege | 134 |
Application of the WorkProduct Doctrine | 135 |
Information in an Insurance Carriers Claim Files Is Collected in the Ordinary Course of Business | 136 |
Information in an Insurance Carriers Claim File Is Collected in Anticipation of Litigation | 137 |
The California View | 138 |
The Broad Protection View | 139 |
Waiver Under California Law | 140 |
Safeguards an Insured May Employ to Protect the AttorneyClient Privilege and the WorkProduct Doctrine | 141 |
Conclusion | 142 |
A Second Look at Privilege and Confidentiality in the Reinsurance Arena | 149 |
Follow the Fortunes Clauses in General | 150 |
Recent Developments in Reinsurance and Follow the Fortunes Case Law | 152 |
Recent Example Involving Reinsurance Scenario and Duty of Good Faith | 153 |
How Discovery Privilege and Confidentiality Relate to Reinsurance | 155 |
Discovery of Reinsurance Information by Policyholder in Action Against the Insurance Company | 157 |
Broader Discovery of Other Reinsurance Information | 158 |
Responding to a ThirdParty Subpoena for Reinsurance Documents under Rule 45 of the Federal Rules of Civil Procedure | 159 |
AttorneyClient Privilege and the Common Interest Rule as Applies to Subpoenas | 160 |
Privilege and Confidentiality in Disputes Between the Ceding Company and the Reinsurer | 163 |
Common Interest Rule as Arises in Litigation Between Reinsurer and Ceding Company | 165 |
Other Major Issues Involving Privilege and Confidentiality That Arise in Reinsurance Scenarios | 167 |
The Impact of Rule 408 of the Federal Rules of Evidence | 169 |
Communication with Person Represented by Counsel | 170 |
Fairness to Opposing Party and Counsel | 177 |
Dealing with an Unrepresented Person | 179 |
Respect for Rights of Third Persons | 180 |
Listing of Related Topics and Supplemental Authority | 181 |
In Continental Casualty Co v United States Fidelity Guaranty Co204 US | 183 |
Statutory and CommonLaw Privileges and Confidentialities | 185 |
AttorneyClient and WorkProduct Doctrines in Environmental Coverage Litigation | 217 |
Common Interest Exception to AttorneyClient Privilege and WorkProduct Doctrine | 220 |
Cooperation Clause | 221 |
Preserving the Confidentiality of Investigations by InHouse and Outside Counsel | 223 |
Application of the Privilege to the Corporate Client | 224 |
The Supreme Court Rejects the Control Group Test | 225 |
The Subject Matter Test | 226 |
InHouse and Outside Counsel and the Distinction between Legal and Business Advice | 227 |
Dual Representation of the Corporation and the Employee | 229 |
Communications with Former Employees During the Course of the Investigation | 230 |
AttorneyClient Privilege in the ParentSubsidiary Relationship | 231 |
Communications with NonLawyers Acting at the Direction of Lawyers | 232 |
The AtIssue Exception | 233 |
The WorkProduct Doctrine in the Corporate Client Context | 235 |
The Control Group Theory Remains Viable | 254 |
Arizona Adopts a Third Approach | 255 |
Summary | 256 |
Is It Protected? | 257 |
Are Former Employees Clients or Third Parties? | 259 |
What Must Be Disclosed? | 260 |
When Is the Client a Client? | 261 |
Has the Privilege Been Waived? | 262 |
WorkProduct Issues | 263 |
In Anticipation of Litigation | 264 |
Substantial Need | 266 |
Conclusion | 267 |
Conflict Between the Permissive Scope of Fact Witness Investigation and Protection of AttorneyClient Communication | 283 |
Current Employees | 285 |
Former Employees | 286 |
The AttorneyClient Privilege Affords the Most Effective Protection Against Exploitation of a Turncoat Former Employee | 290 |
Creation of AttorneyClient Relationships | 291 |
Confidentiality Agreements | 292 |
Quashing ThirdParty Subpoenas | 294 |
Sizing Up the Hostile ExEmployee Witness | 295 |
The Former Witness at Trial | 296 |
Discovery of the InHouse Expert Assigned to Litigation | 303 |
Protecting the NonTestifying InHouse Experts Work from Discovery | 304 |
No Protection | 305 |
Some Protection | 306 |
CaveatsLimits on Protection | 307 |
Suggestions to Minimize Risk of Discovery | 308 |
Conclusion | 309 |
Loss of AttorneyClient Privilege Through Inadvertent Disclosure of Privileged Documents | 313 |
AttorneyClient Privilege and Waiver | 315 |
Privilege Automatically Lost by Disclosure | 316 |
Clients Subjective Intent to Waive | 318 |
Evaluation of the Circumstances Test | 319 |
How to Protect the PrivilegeAvoiding Production and Retrieving Privileged Materials | 321 |
Putting Attorneys on the Witness Stand and Their Advice at Issue The Perils of Selective Waiver of Privilege | 329 |
The Attorney as Witness | 330 |
Handgards | 331 |
The Attorney as an Expert Witness | 332 |
Pretrial Procedure | 333 |
Northbrook v Procter Gamble | 334 |
Putting the Advice of Counsel at Issue | 336 |
Hearn and Progenythe State of Mind Exception | 337 |
The Good Faith Defense | 338 |
Equitable Estoppel | 339 |
Fraud | 340 |
Contractual Intent | 341 |
Further Extensions of the Implied Waiver Doctrine | 342 |
Pleading by Opponent | 343 |
Conclusion | 345 |
Preserving Candor The Hidden Danger from Exceptions to the AttorneyClient Privilege | 353 |
The Unspoken Understanding Between Lawyers and Clients | 354 |
Substantive Law | 355 |
How Restricting the Scope of the Privilege Expands Exceptions to the Privilege | 357 |
Bad FaithAt Issue Exception | 359 |
The CrimeFraud Exception | 361 |
Why the Courts Are Not the Answer | 363 |
Why LitigationBased Rules Should Not Define the Privilege | 364 |
Conclusion | 365 |
The SelfDefense Exception to the Attorneys Ethical Obligation to Maintain Client Confidences | 371 |
The SelfDefense Exception | 374 |
Illustrative Cases | 375 |
Perspectives on the AttorneyClient Privilege and the WorkProduct Doctrine | 383 |
The AttorneyClient Privilege | 384 |
The WorkProduct Doctrine | 385 |
The Evolving Role of Corporate Counsel | 387 |
The Use of Outside Counsel in Internal Investigations | 389 |
Changing Conceptions of Secrecy | 390 |
The CrimeFraud Exception | 392 |
Evidentiary Standards | 393 |
Building a CrimeFraud Exception Argument in Mass Disaster Cases | 395 |
Communications with Former Employees | 397 |
Conclusion | 400 |
The Joint Defense Privilege An Illusion or a Magic Wand? | 405 |
Basic Overview of the AttorneyClient and WorkProduct Privileges | 406 |
The Applicability of the AttorneyClient Privilege and the WorkProduct Privilege in the Context of a Joint Defense Arrangement | 407 |
WorkProduct Privilege | 409 |
AttorneyClient Privilege | 410 |
WorkProduct Privilege | 411 |
The Use of a Confidential Clause as a Precautionary Measure | 413 |
Issues Concerning Insurance Coverage Groups | 414 |
Privileges Afforded Plaintiffs in Joint Prosecution Against Insurer | 417 |
Duties of Emergency Disclosure to the Government Under CERCLA EPCRAand the Clean Air Act | 421 |
Notifying Government Agencies | 422 |
What Is a Reportable Release? | 423 |
Exemptions from Notification | 424 |
Normal Application of Fertilizers and Pesticides | 425 |
EPA Inspection and Requests to Produce Information | 426 |
Reporting Requirements Under EPCRA | 427 |
Toxic Chemical Release Reports | 428 |
Reporting Requirements Under the Clean Air Act | 429 |
Protection from Disclosure as a Result of Voluntary Audit Privilege | 430 |
EPA Disclosure of Information to the Public | 431 |
Public Access to Information Under FOIA | 432 |
Information Exempted by Statute | 433 |
Trade Secrets | 434 |
Trade Secret Protection Under EPCRA | 435 |
Enforcement and Citizens Suits | 436 |
Beyond the Labor and Employment Lawyers Looking Glass Who Is My Client? | 441 |
Background of the AttorneyClient Privilege | 442 |
The AttorneyClient Privilege in Federal Courts | 443 |
The AttorneyClient Privilege in State Courts | 445 |
California | 446 |
Texas | 447 |
Waiver | 448 |
Procedures to Maximize Protection of the Confidentiality of Communications | 450 |
Conclusion | 451 |
453 | |
Common terms and phrases
2d Cir 8th Cir anticipation of litigation asserted attor attorney attorney-client privilege attorney's carrier CERCLA claim class action client Colo confidential control group test Corp corporation's court held coverage crime-fraud exception D.C. Cir decision disclose discovery district court EPCRA Ethics evidence facts Federal Rules filed former employees fraud Grand Jury Gulf Oil in-house counsel insured insured's Int'l interest interviews investigation involved issue issuer joint defense lawyer legal advice lege LEXIS liability material ment Model Rule N.D. Cal N.D. Ill Nat'l obtain opinion person plaintiff potential prepared privi privilege applies protected purpose putative class members reasonably reinsurance relating relevant represented Rptr Sarbanes-Oxley Act scope Subpoena Superior Court Supp supra note Supreme Court tion trial U.S. Dist underlying United Upjohn violation waived waiver Westinghouse Elec witness work-product doctrine work-product privilege