I suspect many simply assume that if an attorney is involved with a document or communication, that document or communication automatically becomes privileged. If true, this would be a very short post. In reality, the question about whether either privilege attaches is complex and time intensive to resolve.
Phillips v. C.R. Bard, Inc., 290 F.R.D. 615 (D. Nev. 2013) addressed this problem in the context of medical device litigation. Bard had produced in excess of 2,000,000 pages of documents, including “multiple privilege logs which extend over 500 pages with claims of attorney-client privilege or work product doctrine being asserted as to approximately 6800 documents.” Id. at 623. The parties each submitted 50 representative documents to evaluate the privilege logs. “The court is faced with determining under what circumstances a communication to or from a corporate client is insulated under the attorney-client privilege or when a document might be protected from disclosure under the work product doctrine.” Id. at 624.
What standard of review applies?
First it discussed Nevada’s statutory attorney-client privilege and reiterated that the party asserting the privilege has the burden of proving it. This is most frequently done via privilege logs. The court then divided the documents it reviewed into categories. The first concerned communications between Bard and counsel that related to business affairs. The parties applied different standards. Plaintiff claimed privilege did not attach “unless the ‘primary purpose’ of the communication is for securing legal advice.” Bard argued for the “because of” standard where “‘dual purpose’ documents, i.e., those seeking or providing both business and legal advice, are protected by the attorney-client privilege if, based on the totality of the circumstances, it can fairly be said based on the nature of a document that it was primarily created for the purpose of giving or receiving legal advice.” Id. at 628. The court applied the “primary purpose” test but noted conflicting caselaw on that point.
A non-exhaustive list of factors may be considered in applying the primary purpose standard.
1) Examine the context of the communication and content of the document while taking into account the facts surrounding the creation of the document and the nature of the document.
2) Ascertain whether the legal purpose so permeates any non-legal purpose that the two purposes cannot be discretely separated from the factual nexus as a whole.
3) Consider the breadth of the recipient list in assessing the centrality of potential legal advice generated by the communication and whether a communication explicitly sought advice and comment.
Id. at 629.
The court also then refused to apply a per se rule that the primary purpose doctrine cannot apply if a communication is sent to both lawyers and non-lawyers for simultaneous review. Instead the court emphasized it was reviewing each communication substantively, regardless of its distribution list, to establish whether the primary purpose was to seek legal advice. However, “merely copying or ‘cc-ing’ legal counsel, in and of itself, is not enough to trigger the attorney-client privilege.” Id. at 630.
The quest to determine whether documents were protected by the attorney-client privilege produced only one bright line test: there is no bright line test. For instance, communications with attorneys about compliance with governmental regulations could be privileged in some contexts, but not others. Internal corporate communications between non-lawyers that discussed legal advice might be privileged in some contexts but not in others. “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.” Id. at 631. Data and information requested by counsel might be privileged depending upon the context. “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.” Id. at 632 (emphasis in original). Communications with consultants retained by the company, as distinguished from expert witnesses hired for litigation, may be privileged in some situations, but not others. “[T]he court will have to make an individual determination as to whether the consultant can be considered a ‘representative of a client'” under Nevada’s statute by applying the functional equivalent test. Id. at 633. Even communications with outside counsel may presumptively be privileged, but “the nature of the documents at issue in this case … may serve to rebut the presumption, but will have to be examined on a document-by-document basis.” Id. at 635.
The quest to determine whether the work-product doctrine applied fared somewhat better. Generally, “[a]s long as the documents were created in anticipation of litigation, the doctrine applies to investigators and consultants working for attorneys.” Id. at 634. Also, where a document was prepared solely for use in anticipated litigation, the work-product privilege applies. Id. at 635. The issue is murkier where the document may have been created in anticipation of litigation and for another non-privileged purpose. “Dual purpose documents are deemed prepared because of litigation if in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.” United States v. Richey, 632 F.3d 559, 567-68 (9th Cir. 2011) (quotation omitted). The only way to resolve the issue on dual purpose documents was for the court to review them.
Bard’s privilege logs were acceptable.
Plaintiff claimed Bard’s privilege logs were deficient.
The Ninth Circuit has found a privilege log which contains the following information to be sufficient: “(a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated.”
Id. at 627 (quoting In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992)). These factors are flexible, however, and may apply differently depending upon the circumstances of the case. Id. at 637-38. Bard’s logs were sufficient and did not result in a procedural waiver of privilege. The court also refused to rule, yet, that the privilege had been waived because the nature of the documents had been put at issue by Bard’s affirmative defenses. Finally, Bard was not required to itemize every single email in every single email chain and independently establish privilege for each one. Id. at 642.
Were the documents privileged?
The court painstakingly applied all of this analysis to the documents it was provided. Some were privileged, others were not. Either way, reaching a decision point was time consuming and expensive for both parties. If you are going to assert privileges in a big document case, be ready to spend a lot of money defending that assertion.