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BY BRIAN J. CHRISTENSEN & BRET G. WILSON1
The attorney-client privilege is one of the cornerstones of the attorney-client relationship. Attorneys depend on the privilege to ensure full, uninhibited disclosure of critical information and imparting of candid advice. However, the protections of the privilege are more limited than most attorneys realize and can be lost through disclosure of privileged communications. Despite the privilege’s long-standing history, conflicts still regularly arise regarding its applicability, and the law governing its scope and waiver continues to evolve. In-house counsel face unique challenges with respect to the attorneyclient privilege. They serve as lawyer and company employee, offer legal and business advice, and communicate with numerous persons at all levels of an organization on topics both legal and non-legal. Outside counsel generally enjoy a bright line demarcation between attorney and client. By contrast, inhouse counsel often are perceived to be – or are in fact – “the client” acting in a business role as well as in the role of attorney. In the current era of close scrutiny of corporate conduct, many entities and their counsel are being placed in the position of having to risk waiver of the privilege to satisfy auditors or regulators.2 This article is intended to
provide in-house practitioners with guidance on how to avoid conduct in which they may unintentionally waive the privilege. While this article focuses most generally on applicable Missouri law, the principles discussed are, for the most part, generally applicable in many jurisdictions.
II. The Attorney-Client Privilege and Work Product Doctrines and Their Applicability In the Corporate Setting
A. The Attorney-Client Privilege Generally “The attorney-client privilege is one of the oldest recognized privileges for confidential communications.”3 It “protects ‘confidential communications . . . between an attorney and . . . client’ concerning representation of the client.”4 “By assuring confidentiality, the privilege encourages clients to make ‘full and frank’ disclosures to their attorneys.”5 There is no privilege for communications simply because they are made to or by an attorney.6 For the attorney-client privilege to attach to a communication, there must be an actual relationship of attorney and client in existence at the time of the communication, and that relationship must exist with respect to the subject
Brian J. Christensen Spencer, Fane, Britt & Browne, LLP Kansas City
Bret G. Wilson Kansas City
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Attorney-Client roduct for the
matter of the communication.7 “[A]n attorney-client relationship is . . . established when the advice and assistance of an attorney is sought and received in matters pertinent to her profession”8 “from a lawyer who intends to give [such] advice and assistance.”9 A formal retainer agreement is not necessary.10 “It is the client’s reasonable belief that [the] attorney is representing him” or her on the matters to which the communication relates and the client’s expectation that the communication will remain confidential that forms the “basis for the privilege.”11 Accordingly, a communication is not privileged if it is made in public12 or within the hearing of third persons other than those reasonably necessary to the transmission of the communication.13 Under Missouri law, “the attorneyclient privilege is to be construed broadly to [promote] its fundamental policy of encouraging uninhibited” attorney-client communications.14 The attorney-client privilege[, codified in § 491.060(3), RSMo,] attaches to: (1) Information transmitted by [a] voluntary act of disclosure; (2) between a client and his [or her] lawyer; (3) in confidence; and (4) by a means which, so far as the client is aware, discloses the information to no third parties other than those reasonably necessary for the transmission of the information or for the accomplishment of the
purpose for which it is to be transmitted.15 “All four . . . elements must be present for the privilege to apply.”16 If there is a question as to whether one of the elements has been satisfied, courts review the surrounding facts and circumstances to assist with determining the applicability of the privilege.17 The privilege encompasses both oral and written communications18 as well as other kinds of communications passing between attorney and client by reason of the attorney-client relationship.19 It protects only disclosure of the communications, not the “underlying facts by those who communicated with the attorney.”20 “The privilege may be invoked by either the attorney or the client, [but]
it exists ‘for the benefit of the client.’”21 The privilege gives the client the right “to refuse to disclose, and to prevent others from disclosing, confidential” information passed between the attorney and the client.22 The attorney-client privilege attaches to communications made to an attorney’s agents if intended for transmission to the attorney.23 No privilege attaches, however, to communications between an attorney (or an attorney’s agent) and a third person, even though made on behalf of a client.24 Similarly, unless it is clear that a third person is an agent of either the lawyer or the client, the privilege does not attach to communications between the client and a third person employed by the client directly25 or employed
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on the client’s behalf by his or her attorney.26 Where information believed to be privileged is sought during litigation, the party that asserts the privilege bears the burden of showing that it applies.27 Once the party establishes that a particular communication is privileged, that communication is absolutely privileged and may not be revealed even if there is a substantial need for it.28 B. The Work Product Doctrine Generally The work product doctrine is distinguishable from the attorneyclient privilege. It is not a privilege. Rather, “[t]he work product [doctrine] precludes an opposing party from discovering materials created or commissioned by counsel in preparation for [actual or anticipated] litigation.”29 “While the attorneyclient privilege protects disclosures by the client to the attorney and is absolute in” most situations, the work product doctrine is much less absolute in that it “‘is designed to prevent a party from reaping the benefits of his opponent’s labors . . . for the same or a related cause of action.’”30 A majority of courts have adopted a “because of ” test for determining whether materials were “prepared in anticipation of litigation.”31 Under this approach, courts will find the work product doctrine applicable if, “in light of the nature of the document and the factual situation of a particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.”32 Rule 56.01(b), governing the scope of discovery, codifies the work product doctrine in Missouri. It provides in relevant part: “Parties may obtain discovery regarding any matter, not privileged, that is relevant to the
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subject matter involved in the pending action.”33 Blanket assertions of work product are insufficient to invoke its protection.34 “The party seeking discovery has the burden of showing” that the sought after materials are relevant.35 Once that has been done, the party claiming the protections of the work product doctrine has the burden of showing that the doctrine is applicable.36 “To invoke [work product] protection . . ., the party opposing discovery must establish, through competent evidence, that the materials sought to be protected are documents or tangible things prepared in anticipation of litigation or for trial, and were prepared by or for a party or a representative of that party.”37 “Competent evidence” may include a privilege log and affidavits from counsel.38 The mere possibility of litigation is also “not sufficient to invoke the doctrine”,39 but it can be invoked to prevent disclosure of materials that relate to litigation that has not been actually commenced.40 The doctrine does not encompass communications between an attorney and opposing counsel.41 “The doctrine generally protects both tangible work product (consisting of trial preparation documents such as written statements, briefs, and attorney memoranda) and intangible work product (consisting of mental impressions, conclusions, opinions, and legal theories of an attorney . . . – sometimes called ‘opinion work product’) from disclosure.”42 “Protection of [opinion] work product exists independently of Rule 56.01(b)(3).”43 The work product doctrine provides absolute immunity against the disclosure of opinion work product, both tangible and intangible.44 Non-opinion trial preparation materials may be discovered only if the party seeking discovery shows a substantial need for the material in
the preparation of the case and an inability to obtain the substantial equivalent without undue hardship.45 Substantial need exists when the material for which discovery is sought has a material influence on the litigation.46 C. The Attorney-Client Privilege and Work Product Doctrine in the Corporate Setting It is now well-established that the attorney-client privilege applies to corporations as well as to individuals.47 “In a corporate context, in-house counsel can serve as the client when communicating with outside counsel, or as ‘attorney-legal advisor’ when communicating with personnel within the organization.”48 Communications with in-house counsel in the role of attorney-advisor are afforded the same protection as outside counsel, but communications conveying business (as opposed to legal) advice are not protected by the privilege.49 Courts often require that in-house counsel make a “clear showing” that communications were made for a legal purpose, rather than a business purpose.50
1. The Control Group Test, Upjohn and Variants Not only must the communication regard legal versus business advice, it must be made to a person within the company who is deemed a client by the law. Historically, courts applying the attorney-client privilege to corporations have struggled to determine which corporate employees should be considered the client. Courts often have found the interaction between high-level officers and corporate counsel to best resemble a traditional attorneyclient relationship deserving of protection. These courts applied a test known as the “control group” test that designates only upper-level management as the client of the corporate counsel, and thus only
protects communications between upper-echelon management and the attorney.51 In 1981, the United States Supreme Court rejected the control group test for federal cases in Upjohn Co. v. United States.52 Upjohn created a less structured definition of the corporate client, looking to what motivated the lawyer to seek out or to impart information. In place of the control group test, the Court laid out five factors to guide federal courts in determining the validity of attorney-client privilege claims for communications between legal counsel and lower-echelon corporate employees: (1) the information is necessary to supply the basis for legal advice to the corporation or was ordered to be communicated by superior officers; (2) the information was not available from “control group” management; (3) “[t]he communications concerned matters within the scope of the employees’” duties; (4) the employees were “aware that they were being questioned in order [for] the corporation” to secure legal advice; and (5) “the communications were considered ‘highly confidential’ when made” and kept confidential.53 When these elements are met, even a lower echelon employee is considered a client protected under the attorneyclient privilege.54 The test developed in Upjohn does not distinguish between an agent’s position or degree of decision-making responsibility, and instead focuses on whether the employee provided information to the lawyer or received assistance from the lawyer on behalf of the organization. Although Upjohn is controlling in federal courts applying federal law, state courts and federal courts sitting in exercise of diversity jurisdiction are not bound by the Upjohn decision and have adopted various tests for defining the organizational client. Additionally, the current Restatement (Third)
of the Law Governing Lawyers adopts a pre-Upjohn test known as the “subject matter” test.55 Under the subject matter test, the privilege extends to communications of any agent or employee of the corporation so long as the communication relates to a subject matter for which the organization is seeking legal representation.56 By contrast, under the Upjohn test, the subject matter of the communication is just one factor to consider. States across the country apply different tests to analysis of the attorney-client privilege in the corporate context.57 Alabama, Arizona, Arkansas, Colorado, Nevada, Oregon, Texas and Vermont have explicitly adopted the test articulated by Upjohn.58 The more limited control group test is still used in at least eight states – Alaska, Hawaii, Illinois, Maine, New Hampshire, North Dakota, Oklahoma, and South Dakota – despite the harsh results it sometimes yields.59 In a recent Illinois case applying the control group test, the court held that interviews conducted by the defendant’s managers at the direction of in-house counsel were not privileged. 60 The court reasoned that the interviews were not protected from disclosure because the witnesses, including a director of clinical services responsible for overseeing and managing all bio-medical service contracts, were not “involved in decisionmaking at the highest levels,” and the communications were not made for the purpose of expressing recommendations to top management.61 By contrast, Missouri courts apply a modified version of the subject matter test.62 In Missouri, communications between a corporation’s in-house counsel and its directors, officers and employees will be privileged if:
(1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of his [or her] corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee’s corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.63
2. Choice of Law Issues In addition to the fact that the law governing privilege varies among jurisdictions, the question of which state’s privilege laws will govern in a particular dispute also
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is jurisdiction dependent. This circumstance frequently arises where the communication at issue occurred in a jurisdiction with a different test than the one in which the dispute is pending. In this situation, a court frequently will apply the choice-oflaw rules of the state in which the court sits to determine which privilege law should apply to a particular communication.64 A federal court sitting in diversity normally will apply the privilege law of the state in which it sits.65 State courts have adopted a variety of different tests to resolve choice-of-law issues concerning the application of privilege. Perhaps the most prevalent test is that of the Restatement (Second) of Conflict of Laws. The Restatement approach generally focuses on the jurisdiction having the most significant relationship to the communication, which typically is defined as that jurisdiction where the communication took place.66 Because the law varies widely from state to state, it is critical to understand the test applied by each jurisdiction in which an attorney practices.67
without waiving otherwise applicable privileges. An audit committee or special litigation committee may establish an attorney-client privilege with counsel engaged by the committee.69 This is the prevailing view among jurisdictions that have considered this issue.70 However, some courts have held that communications between counsel for the special committee and the company’s board of directors are not privileged.71 For example, in SEC v. Roberts the court required disclosure of all factual information that counsel for the special committee had provided to the government or the board regarding the internal investigation because not only is the Board not [the special committee counsel’s] client such that the attorneyclient privilege does not attach, the Board also does not have a common interest with the Special Committee since it was the Special Committee’s mandate to ascertain whether members of the Board … may have engaged in wrongdoing.72 To avoid disclosing confidential information learned during internal audits, in-house counsel must develop clear procedures that members of special committees and their counsel can follow to ensure that communications and work product remain confidential and protected. B. External Audit At least in part due to various recent scandals that have colored the corporate landscape in recent years, corporations are under pressure to make broad disclosures to outside entities such as independent auditors. Likewise, auditors are becoming more demanding, sending more burdensome engagement letters and issuing more expansive requests during audits – such as seeking
internal audit letters, board minutes, assessments of litigation reserves or accruals by in-house and outside counsel, tax opinions, and results of internal investigations. In general, an outside auditor is considered a non-privileged party under federal law, because the interests of independent auditors are not aligned with the corporation.73 United States v. Textron, referenced in § I above, exemplifies the rigidity of this rule. As a result, disclosures to outside auditors risks waiver of the privilege. In contrast with federal law, several states provide varying degrees of protection for communications between auditors/accountants and their clients. For example, the Missouri legislature has enacted an accountant-client privilege.74 Under that privilege, information communicated by the client to an accountant in connection with the accounting issue and/or audit is protected and privileged in order “to create an atmosphere where the client will provide all relevant information to the accountant without fearing future disclosure in subsequent litigation.”75 There is not a significant body of law on the issue of whether Missouri’s statute applies in the context of a corporation and its external auditors. However, a recent federal case suggests that Missouri will protect communications between a corporation and its external auditor.76 Corporations must proceed carefully when working with external auditors. Until federal regulators or courts adopt a universal standard protecting disclosure of privileged materials to outside auditors, corporations will continue to be put in a position of having to make a Hobson’s choice: Failure to disclose protected information may lead to a qualified opinion or liability for misrepresentation, but disclosure may waive the attorney-client and work product protections.
III. Special Situations Unique to the In-House Practitioner
The attorney-client privilege may be waived by almost any voluntary disclosure running contrary to its assertion.68 In the corporate context, there are a number of special situations where corporations may be considered to have made a voluntary disclosure, and, in these situations, the protection of the privilege will be lost. A. Internal Audit One issue that frequently arises during corporate internal investigations is whether an audit committee or special litigation committee and its counsel may communicate investigation findings and related investigatory materials to the company’s board of directors
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C. Corporate Investigations It is common for corporations to conduct internal investigations regarding matters that come to the attention of management. The materials created during the investigation are often later sought by a government subpoena or civil discovery request. While many communications regarding an internal investigation may be privileged, there is no absolute protection over the facts garnered during an internal investigation. As for the communications themselves, the attorney-client privilege does not apply unless the predominant intention of the communication is to obtain or to offer legal advice.77 By contrast, the work product protection may be preserved even if a substantial portion of the investigative document relates solely to business matters.78 When reviewing privilege claims asserted over communications from investigations, courts will examine whether the investigation was conducted primarily or solely for the purpose of rendering legal advice versus business advice79; whether the investigation was conducted by an attorney providing legal advice
rather than by an attorney acting solely as an investigator or by nonlegal personnel80; and whether the investigation was conducted in anticipation of imminent litigation or as a routine matter in response to the always present concern that litigation is possible.81 A critical component of most internal investigations is interviewing employees regarding their knowledge of relevant events. Memoranda generated by interviews conducted in anticipation of litigation generally are deemed work product. However, verbatim or near verbatim statements (i.e., notes that attempt to track the actual statements made by the witnesses) often are held to be discoverable because the opposing party demonstrates substantial need and undue hardship with respect to the witness statements. Therefore, it is preferable for witness interviews to be drafted as summaries of witness statements that do not attempt to recite any statements verbatim.82 Courts have allowed privilege to attach in certain circumstances where non-legal employees act at the behest and direction of an attorney, the boundaries of which are fact-
specific and often are disputed. For example, courts frequently have extended the attorney-client privilege to communications made to investigators who have provided necessary assistance to attorneys and to interviews between in-house counsel and employees.83 While an investigator’s communications with in-house counsel made in preparation for litigation are usually protected by the work product doctrine,84 investigations “prepared in the ordinary course of business” usually are not. 85 For example, the Missouri Court of Appeals decided an investigator’s communications with in-house counsel for the Board of Healing Arts were not privileged even though the corporation’s in-house counsel was present when the board commenced the investigation, advised the board’s staff on how to conduct the investigation, communicated with the investigator throughout the investigation, and reviewed evidence obtained in the investigation.86 The court concluded that the attorney’s involvement in the investigation did not shield the investigative reports from discovery, noting that only actual, direct attorney-client
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communications are privileged.87 Because the board regularly investigated complaints in its ordinary course of business, the attorney-client privilege did not apply. Corporations concerned about maintaining the confidentiality of investigative materials should consider delegating investigations to outside or in-house counsel, rather than to non-legal personnel.88 Unless there is a compelling reason to do so, the company should not take verbatim statements or have statements signed by employee witnesses over which they intend to assert the privilege. Instead, counsel should consider summarizing information provided by witnesses and drafting memoranda that weave in the attorney’s mental impressions and opinions.89 C. Disclosure to Government Entities Recently, there has been increased pressure on corporations to disclose privileged information to be deemed “fully cooperative” with government investigations. For example, in August 2011, the Securities and Exchange Commission (SEC) revised its Enforcement Manual to allow investigators to request privilege waivers with senior agency approval.90 However, a voluntary presentation of privileged information to the government, even if intended to avoid the filing of charges, can waive the attorney-client privilege. The 8th Circuit presently recognizes a selective waiver doctrine, under which producing internal reports to government agencies may not waive attorney-client privilege as to private litigants.91 However, the clear trend – and the majority rule under federal law – is that waiver to one government agency may constitute waiver to all, including other government agencies and private litigation adversaries.92 For example, in In re Sulfuric Acid Antitrust Litigation, the court held that defendants waived any claim of
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privilege by producing documents to the Department of Justice pursuant to a subpoena.93 In many courts, disclosure to the government waives the privilege even when the disclosing party has entered into a confidentiality agreement with the government.94 Although disclosure of privileged materials to the government can waive the attorney-client privilege and work product protections, Federal Rule of Evidence 502 may limit the scope of such waiver. Under Federal Rule of Evidence 502(a), when [a] disclosure made in a federal proceeding or to a federal office or agency … waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed ucommunications … concern the same subject matter; and (3) they ought in fairness to be considered together. Also, the rules provide that an inadvertent disclosure of protected information will not result in a subject matter waiver except in a situation where a party intentionally puts protected information into litigation in a selective and misleading manner.95 D. Communication with an Insurer Where an insured communicates with an insurer for the purpose of establishing a defense, several courts have held that an insured’s communication with its insurer remains privileged, at least where the communication is made for the specific purpose of obtaining legal advice for the provision of counsel.96 Other courts have rejected the idea that the interests of the insured and insurer are
sufficiently aligned for the privilege to be maintained.97 Some courts have rejected the extension of a privilege to insurer/insured communications on the additional ground that such communications are made for a business and not a legal purpose.98 Missouri, however, has found that communications between an insured and its liability insurer generally are privileged.99 This privilege covers a broad range of communications. For example, it covers any communications between a client and attorney even if no action has been filed against the insured and no attorney has been employed in reference to the occurrence.100 An incident report provided to an insurer will be found to be privileged if it was made in contemplation of its use in litigation.101 This insured/ insurer privilege, however, is limited to communications as opposed to facts or business records.102 It may be invoked by the insurer or the insured but can be waived only by the insured.103 E. Joint Defense Privilege The joint defense privilege is similar, though not identical, to the attorney-client privilege. Courts consider it a logical extension of the attorney-client privilege and an exception to the waiver doctrine discussed above.104 When the same attorney represents two parties, co-clients usually may share communications with their common lawyer under the “joint defense privilege” without destroying confidentiality.105 The joint defense privilege “serves to protect the confidentiality of communications passing from one party to the attorney for another party where joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel.”106 While not necessary, written joint defense agreements are the best evidence for proving the existence of a joint defense agreement.107 The joint defense privilege only applies where the parties seek
representations for legal purposes, rather than for business or other purposes.108 Furthermore, the joint defense privilege requires the parties to show “[s]ome form of joint strategy[,]” not just the impressions of one side.109 Mere exchange of information will not be protected by the joint defense privilege. For example, the privilege may not apply to corporate counsel’s claim to represent an employee for purposes of a deposition.110 Courts have expanded the rationale behind the joint defense doctrine to include situations in which the clients are pursuing a common interest but do not share the same attorney.111 A common example of this would be a circumstance where industry members cooperate to respond to an industry-wide antitrust inquiry by the Department of Justice. Under this scenario, the responding parties are different entities that almost always are represented by different counsel. Courts generally view this type of industry cooperation through the same analytical lens as the joint defense agreement in a litigation setting.112 For example, in Haines v. Liggett Group, Inc., the court held that the protection of the privilege “extend[s] to communications between different persons or separate corporations when the communications are ‘part of an on-going and joint effort to set up a common defense strategy.’”113 To be protected by the common interest privilege, the parties must demonstrate that “(1) the communication is made by separate parties in the course of a matter of common legal interest; (2) that communication is designed to further that effort; and (3) the privilege has not been waived.”114 “The common interest must be a legal” rather than a “commercial or financial interest.”115 There does not need to “be actual litigation in progress for the
common interest” doctrine to apply.116 Missouri courts have recognized this common interest privilege so long as parties “share a common interest in the outcome of the litigation and where the communication in question was made in confidence.”117 One consideration prior to entry into a joint defense agreement is the potential consequence associated with withdrawal by a party from the arrangement. At least one federal magistrate has held that withdrawal by a party from the agreement subjects the attorney for the withdrawing party to disqualification on the basis of his prior representation of an adverse party.118 The magistrate also disqualified counsel for all of the other members of the joint defense group. While this decision ultimately was overturned by the district court, this issue should at least be considered prior to entering into these arrangements.119 At a minimum, participants in the group should understand that most courts hold that when a party withdraws from a joint defense relationship, that party may not reveal the confidential information shared by other members of the group.120
may result in the perception of overdesignation that, in turn, may lead to a court viewing legitimate claims of privilege with skepticism. Segregate legal functions from those that typically are non-legal by determining whether the function could have been performed by a non-lawyer. For example, government relations or compliance should be maintained as a separate function from traditional legal functions. The fact that all three functions ultimately may report to a corporation’s lead attorney, such as its general counsel, does not result in the non-legal functions’ activities being privileged. Business and legal advice should be communicated in separate documents when possible. In-house counsel should preface communications containing privileged communications with assertions that the content relates to legal matters (for example, “You inquired whether there is any legal restraint on” or “Under the facts you presented, the law would allow. . . ”). Use legal titles such as “general counsel,” “chief legal officer,” “esquire,” or “attorney at law” in all written communications over which the privilege likely is to be asserted. B. Inadvertent Disclosure The attorney-client and work product privileges may be waived through inadvertent disclosure of a privileged document.121 With the increasing amount of electronic communication and data storage, protecting privileged documents from inadvertent disclosure has become increasingly difficult. In March 2011, Microsoft fought a motion to compel an e-mail chain, initiated by its inhouse counsel, that Microsoft believed was protected by the attorney-client privilege.122 The e-mail chain at issue had within it a request from Microsoft’s in-house counsel “to investigate whether [the] Plaintiff had infringed [on Microsoft’s] intellectual
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IV. Points to Consider For Protecting Privilege in the Corporate Setting
To ensure that confidential and sensitive corporate communications are protected by the attorney-client privilege, and to guard against waiver of the privilege, in-house counsel should consider implementing the following as best practices: A. Draw Clear Distinctions Between Legal Advice and Business Counsel Routine business communications are not privileged merely because they were sent to in-house counsel. Avoid funneling all correspondence through in-house counsel, because doing so
property rights.”123 Microsoft inadvertently produced this e-mail chain in 1.2 million pages of documents, and the plaintiff filed a motion to compel, arguing that the e-mail was no longer privileged because it was inadvertently produced. Although the court agreed that Microsoft’s disclosure was inadvertent and that Microsoft took reasonable steps to prevent the disclosure, the court determined that other than the in-house counsel’s initial e-mail, none of the remaining e-mails contained communications with lawyers or legal advice. Therefore, the court found that the only e-mail that would be protected by the attorney-client privilege was the originating e-mail from the corporate counsel.124 To protect against inadvertent disclosure, companies should legend documents and e-mails as “Attorney-Client Communications” as appropriate. However, as discussed previously, this method should be used only in the case where truly applicable. If documents are overly and improperly designated as privileged, employees become conditioned to believe that all communication involving in-house counsel is secure. To the contrary, noting “attorney-client privileged” on every e-mail, fax cover sheet, letter and document does not create a privileged document. The substance – not the label – of the content is determinative. Additionally, the court will be less likely to allow certain documents to be withheld if non-privileged documents are mislabeled. With respect to meetings during which legal advice is sought, detailed minutes should be maintained that include the date, each person present, the involvement of an attorney, the subject of the meeting, and the confidentiality of the proceedings.
C. Maintain “Need To Know” Basis With Privileged Materials All communications regarding legal issues, particularly those in writing, must be limited only to those employees who are working on or involved with the problem at hand. Attorneys should document why communications are occurring, for example, by noting that litigation is expected, and state why recipients of correspondence need to be included. In light of the inconsistencies among various jurisdictions regarding which employees represent the company, in-house counsel should communicate legal advice on a “need to know” basis only. Distribution of confidential memorandums and e-mails and other written communications containing sensitive communications should be limited. Counsel also must be alert to the presence of unprivileged persons at a meeting where privileged matters are going to be discussed. Company employees often believe the scope of the privilege is far broader than it actually is. In-house counsel should periodically remind company employees of their responsibility to the corporation and the narrow scope of the privilege by issuing statements explaining company policy on legal communications, with advice on how to retain the privilege. D. If Disclosure to Outside Party is Required, Such as to Government or Auditor, Obtain a Privilege Preservation Agreement If a corporation is served with a grand jury subpoena or receives correspondence from an investigatory arm of the government, signaling an investigation into the corporation’s practices, the corporation should consider retaining outside counsel immediately, and before contacting prosecutors or investigators to discuss the basis for the investigation. Inhouse counsel should not execute affidavits refuting accusations against the company, because doing so may cause corporate counsel to become a fact
witness and lead to waiver assertions. When faced with a demand for privileged material, if disclosure is in the corporation’s interests, the corporation should negotiate with the government for protection against future third party discovery and enter into a confidentiality/privilege preservation agreement with the investigating entity. The agreement should assert that the parties are acting cooperatively and not as adversaries, if possible. Because an agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, it should be incorporated into a court order .125 “A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.”126 Where a request originates from an outside auditor, consider negotiating engagement letters that will protect the company. Include an agreement that the auditor will maintain the confidentiality of the audit materials and give advance warning prior to disclosing documents in response to government or third party subpoena. The company should negotiate with auditors to narrow the scope of the necessary information as much as possible. After disclosing privileged records, record what was disclosed and not disclosed. When possible, find a way to provide the information sought without disclosing privileged information.
Contrary to the belief of many practitioners and their non-lawyer clients, there is no universal privilege covering all communications made to an attorney. Even otherwise privileged communications may easily be waived without careful consideration and an understanding of applicable law.
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These issues are even more complex for in-house counsel, who frequently serve in many capacities, sometimes simultaneously. In-house counsel must determine the identity of the client before engaging in confidential and sensitive communications that are intended to be privileged, be aware that the disclosure of protected information to auditors and government officials may waive the privilege, and take steps to properly label privileged correspondence and other documents to prevent inadvertent disclosure to third parties. Through thoughtful consideration of the issues that may arise during their work as in-house attorneys, and by being aware of the principles governing attorney-client privilege law in each relevant jurisdiction, in-house counsel will better protect the entities they serve and avoid potentially embarrassing and expensive professional pitfalls.
1 Brian J. Christensen is a partner in the Labor and Employment and Litigation Groups at Spencer, Fane, Britt & Browne, LLP and a former vice-president and associate general counsel for Litigation, Legal Systems and Records Policy at H&R Block in Kansas City. Bret G. Wilson is the vice-president and general counsel of the National Beef Packing Company, LLC in Kansas City. The authors wish to extend their gratitude to Denise Portnoy, an associate at Spencer, Fane, Britt & Browne, LLP, for her invaluable contribution to this article. 2 See, e.g., United States v. Textron, Inc., 577 F.3d 21 (1st Cir. 2009). 3 Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). 4 State ex rel. Polytech, Inc. v. Voorhees, 895 S.W.2d 13, 14 (Mo. banc 1995). 5 Mohawk Indus., Inc. v. Carpenter, 130 S.Ct. 599, 606 (2009). 6 State v. Fingers, 564 S.W.2d 579, 582 (Mo. App. S.D. 1978); see also Wilcox v. Coons, 220 S.W.2d 15, 18 (Mo. banc 1949). 7 See State v. Pride, 1 S.W.3d 494, 505 (Mo. App. W.D. 1999); State v. Smith, 979 S.W.2d 215, 220 (Mo. App. S.D. 1998). 8 State v. Longo, 789 S.W.2d at 812, 815 (Mo. App. E.D. 1990). 9 Polish Roman Catholic St. Stanislaus v. Hettenbach, 303 S.W.3d 591, 601 (Mo. App. E.D. 2010); Collins v. Mo. Bar Plan, 157 S.W.3d 726, 736 (Mo. App. W.D. 2005).
10 See Hettenbach, 303 S.W.3d at 601. 11 Longo, 789 S.W.2d at 816; Pride, 1 S.W.3d at 505 (no attorney-client privilege for conversation that took place after attorney-client relationship terminated). 12 See Hilgedick v. Nothstine, 289 S.W. 939, 941 (Mo. 1926). 13 State Farm Mut. Auto. Ins. Co. v. Allen, 744 S.W.2d 782, 787 (Mo. banc 1988); State ex rel. Headrick v. Bailey, 278 S.W.2d 737, 740 (Mo. banc 1955). 14 State v. Longo, 789 S.W.2d 812, 815 (Mo. App. E.D. 1990); State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d 379, 383 (Mo. banc 1978). 15 Longo, 789 S.W.2d at 815; see also Great Am. Ins. Co., 574 S.W.2d at 384 (quoting with approval ALI Model Code of Evidence, Rule 209(d) (1942), and Comment on Clause (d)); State ex rel. Syntex Agri-Bus., Inc. v. Adolf, 700 S.W.2d 886, 888 (Mo. App. E.D. 1985). 16 Longo at 815. 17 Id. 18 Syntex Agri-Bus., Inc., 700 S.W.2d at 889. 19 Weinshenk v. Sullivan, 100 S.W.2d 66, 70 (Mo. App. E.D. 1937). 20 Upjohn Co. v. United States, 449 U.S. 383, 396 (1981). 21 Voorhees, 895 S.W.2d at 14 (citing Great Am. Ins. Co., 574 S.W.2d at 385 n.6). 22 McCaffrey v. Estate of Brennan, 533 S.W.2d 264, 267 (Mo. App. E.D. 1976); In re Marriage of Hershewe, 931 S.W.2d 198, 201-02 (Mo. App. S.D. 1996). 23 See Tyler v. Hall, 17 S.W. 319, 321 (Mo. 1891); cf. Canty v. Halpin, 242 S.W. 94, 97 (Mo. banc 1922) (privilege did not bar testimony of attorney’s wife, who was present when attorney interviewed client, because wife “was not an intermediary employed by her husband for the purpose of facilitating communications between attorney and client”). 24 State v. Hardin, 558 S.W.2d 804, 807 (Mo. App. W.D. 1977). 25 State v. Panter, 536 S.W.2d 481, 484 (Mo. App. W.D. 1976). 26 State v. Carter, 641 S.W.2d 54, 57 (Mo. banc 1982), cert. denied, 461 U.S. 932 (1983). 27 See Ratcliff v. Sprint Mo., Inc., 261 S.W.3d 534, 549 (Mo. App. W.D. 2008). 28 State ex rel. Tillman v. Copeland, 271 S.W.3d 42, 45 (Mo. App. S.D. 2008); State ex rel. Mo. Highways & Transp. Comm’n v. Legere, 706 S.W.2d 560, 566 (Mo. App. S.D. 1986); see also State ex rel. Cain v. Barker, 540 S.W.2d 50, 57-8 (Mo. banc 1976). 29 State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. banc 2004); see also State Esquire rel. Friedman v. Provaznik, 668 S.W.2d 76, 80 (Mo. banc 1984). 30 Westbrooke, 151 S.W. at 366 n.3. 31 See In re Grand Jury Subpoena, 357 F.3d 900, 907-09 (9th Cir. 2004); Maine v. U.S. Dep’t of the Interior, 298 F.3d 60, 69 (1st Cir. 2002); United States v. Adlman, 134 F.3d 1194 (2d Cir.
1998); Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992); Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109, 1118-19 (7th Cir. 1983); Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987). 32 See Simon, 816 F.2d at 401, quoting 8 Charles Alan Wright, Et Al., Federal Practice & Procedure, § 2024 (1970). 33 Rule 56.01(b)(1) (emphasis added). 34 Id. 35 Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 323 (Mo. App. E.D. 2010). 36 Diehl, 309 S.W.3d at 323-24. 37 Id. 38 Id. 39 Bd. of Registration for the Healing Arts v. Spinden, 798 S.W.2d 472, 478 (Mo. App. W.D. 1990). 40 State ex rel. Day v. Patterson, 773 S.W.2d 224, 228 (Mo. App. E.D. 1989). 41 Maher v. Maher, 951 S.W.2d 669, 674-75 (Mo. App. E.D. 1997). 42 Brief and Appendix of Respondent at 29, State ex rel. Reif v. Jamison, SC88987 (Mo. 2008); available at http://www.courts.mo.gov/ SUP/index.nsf/0/d6fc972c141cfaf6862574cd0 071690b/$FILE/SC88987_Missouri_Baptist_ Medical_Center_Brief.pdf; see also State ex rel. Atchison, Topeka & Santa Fe Ry. Co., 898 S.W.2d 550 (Mo. banc 1995). 43 Westbrooke, 151 S.W.3d at 367. 44 Diehl, 309 S.W.3d at 323; Edwards v. Mo. State Bd. of Chiropractic Examiners, 85 S.W.3d 10, 26 (Mo. App. W.D. 2002). 45 Edwards, 85 S.W.3d at 26. 46 See Porter ex rel. Alyward v. Gottschall, 615 S.W.2d 63 (Mo. banc 1981). 47 Upjohn Co. v. United States, 449 U.S. 383 (1981). 48 Gucci America, Inc. v. Guess?, Inc., 271 F.R.D. 58, 70 (S.D. N.Y. 2010). 49 See Upjohn, 449 U.S. at 395; In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1037 (2d. Cir. 1984). 50 See e.g. Rowe v. E.I. DuPont de Nemours & Co., Civil Nos. 06-1810-RMB-AMD, 06-3080-RMB-AMD, 2008 WL 4514092, at *7-8 (D. N.J. Sept. 30, 2008) (utilizing “‘predominantly legal’ test” and requiring showing that in-house counsel were engaged in “predominantly legal” communications for application of privilege); In re Seroquel Prods. Liab. Litig., No: 6:06-md-1769-Orl-22DAB, 2008 WL 1995058, at *4 (M.D. Fla. May 7, 2008 ) (defendant did not meet burden of showing that communications with in-house counsel related to legal matters); In re Vioxx Prod. Liab. Litig., 501 F.Supp.2d 789, 797 (E.D. La. 2007) (recognizing difficulty of applying attorney-client privilege to “modern corporate counsel [who] have become involved in all facets of ” corporations and requiring “clear showing” in-house counsel “was acting in his professional March-April 2012 / 91
legal capacity.”). 51 Radiant Burners, Inc. v. Am. Gas Ass’n, 320 F.2d 314 (7th Cir. 1963). 52 449 U.S. 383 (1981). 53 Id. at 394-95. 54 Id. 55 Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 608-09 (8th Cir. 1977). See Restatement (Third) of the Law Governing Lawyers § 73 (2000). 56 Diversified Indus., Inc., 572 F.2d at 609. 57 See generally Brian E. Hamilton, Conflicts, Disparity and Indecision: The Unsettled Corporate Attorney-Client Privilege, 1997 Ann. Surv. Am. L. 629 (1999). 58 Id. 59 Id. 60 Resurrection Healthcare & Factory Mut. Ins. Co. v. GE Health Care, No. 07 C 5980, 2009 WL 691286 (N.D. Ill. Mar. 16, 2009). 61 Id. 62 DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 531 (Mo. App. E.D. 1991) citing Diversified Indus., Inc., 572 F.2d at 609. 63 DeLaporte, 812 S.W.2d at 531. 64 See, e.g., Allianz Ins. Co. v. Guidant Corp., 869 N.E.2d 1042, 1055 (Ill. App. Ct. 2007); Sterling Fin. Mgmt., L.P. v. UBS PaineWebber, Inc., 782 N.E.2d 895 (Ill. App. Ct. 2002) (applying Illinois law and control group test over New York law based on the court’s analysis under Comment d of the Restatement); State v. Heaney, 689 N.W.2d 168, 174-75 (Minn. 2004) (adopting Restatement (Second) and identifying other jurisdictions that have done so). 65 Palmer v. Fisher, 228 F.2d 603 (7th Cir.1955), cert. den. 351 U.S. 965 (1956); Engl v. Aetna Life Ins. Co., 139 F.2d 469 (2d Cir. 1943); Merlin v. Aetna Life Ins. Co., 180 F.Supp. 90 (S.D. N.Y.1960); Munzer v. Swedish Am. Line, 35 F.Supp. 493 (S.D. N.Y. 1940); Spray Prods. Corp. v. Strouse, Inc., 31 F.R.D. 244 (E.D. Pa.1962); Padovani v. Liggett & Meyers Tobacco Co., 23 F.R.D. 255 (E.D. N.Y. 1959); Berdon v. McDuff, 15 F.R.D. 29 (E.D. Mich. 1953); cf. Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala.1953). 66 Connolly Data Sys., Inc. v. Victor Techs., 114 F.R.D. 89, 91-92 (S.D. Cal. 1987) (where communications took place in and parties to the communications were located in California, such that client’s expectation of confidentiality would have stemmed from the law of California, and not law of the forum in which action was pending, governed privilege issue); Ford Motor Co. v. Leggat, 904 S.W.2d 643, 646-48 (Tex. 1995) (law of Michigan, rather than that of forum state, applied to manufacturer’s claim that report by general counsel to manufacturer’s policy and strategy committee was subject to attorney-client privilege where Michigan had most significant relationship to the communication). 67 An analogous problem may arise when a 92 / Journal of the MISSOURI BAR
deposition is sought to be taken in a state other than the state of trial. To date, the courts of the deposition state generally have refused to admit evidence of a communication privileged under their local law, but it would appear that in all of these cases the deposition state was also the state of most significant relationship with the communication. See e.g. In Re Walsh, 243 N.Y.S.2d 325 (N.Y. App. Div. 1963); Application of Queen, 233 N.Y.S.2d 798 (N.Y. App. Div. 1962); In re Franklin Washington Trust Co., 148 N.Y.S.2d 731 (N.Y. App. Div. 1956). 68 Gray v. Bicknell, 86 F.3d 1472, 1482 (8th Cir. 1996); Profit Mgmt Dev., Inc. v. Jacobson, Brandvik & Anderson, Ltd., 721 N.E.2d 826, 835 (Ill. App. Ct. 1999). 69 See e.g. Ryan v. Gifford, Civil Action No. 2213-CC, 2007 WL 4259557, at *3 (Del. Ch. Nov. 30, 2007) (“attorney-client privilege protects communications between [outside counsel] and its client, the Special Committee” absent waiver or good cause); In re BCE West, L.P., No. M-8-85, 2000 WL 1239117, at *2 (S.D. N.Y. August 31, 2000). 70 Id. 71 See Ryan v. Gifford, Civil Action No. 2213-CC, 2008 WL 43699, at *5 (Del. Ch. Jan. 2, 2008) (presence of board members acting in their personal capacity during counsel’s presentation waived the privilege); but see In re BCE West, L.P., No. M-8-85, 2000 WL 1239117, at *2 (S.D. N.Y. Aug. 31, 2000) (communications with the board were part of transaction process and did not destroy the special committee’s privilege). 72 254 F.R.D. 371, 378 (N.D. Cal. 2008). 73 Couch v. United States, 409 U.S. 322 (1973); see Cavallaro v. United States, 284 F.3d 236, 246 (1st Cir. 2002); United States v. Frederick, 182 F.3d 496, 502 (7th Cir. 1999); see e.g. In re Honeywell Int’l, Inc. Sec. Litig., 230 F.R.D. 293, 297 (S.D. N.Y. 2003) (disclosure to company’s auditor waives the attorney-client privilege); see Medinol, Ltd. v. Boston Scientific Corp, 214 F.R.D. 113 (S.D. N.Y 2002). 74 Section 326.322.1, RSMo Supp. 2011. 75 Ayers Oil Co. v. Am. Bus. Brokers, Inc., No. 2:09 CV 02 DDN, 2009 WL 2592154, at *2 (E.D. Mo. Aug. 20, 2009), citing Sears, Roebuck & Co. v. Gussin, 714 A.2d 188, 193 (Md. 1998); Fed. Ins. Co. v. Arthur Anderson & Co., 816 S.W.2d 328, 331 (Tenn. 1991). 76 Semi-Materials Co., Ltd. v. MEMC Elec. Materials, Inc., No: 4:06CV1426 FRB, 2010 WL 3038086, at *3 (E.D. Mo. Aug. 3, 2010) (addressing applicability of accountant-client privilege to relationship between external auditor and corporation, but holding that privilege had been waived to the extent defendant invoked the advice of the external auditor as a defense to plaintiff’s claims in the case). 77 Diversified Indus., Inc., 572 F.2d at 603. 78 Id.
79 Diversified Indus., Inc., 572 F.2d at 603 (report prepared by outside counsel based on interviews with corporate employees not protected by attorney-client privilege because counsel “was employed solely for the purpose of making an investigation of facts and to make business recommendations with respect to future conduct of Diversified”); see also Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 476 (N.D. Tex. 2004). 80 Cataldo v. Nat’l Grid USA, No. 20065120, 2008 WL 496718, at *6 (Mass. Super. Ct. Feb. 15, 2008) (concluding that investigation report prepared under the direction of in-house counsel was not privileged because the substance of the report was very similar to a parallel investigation report prepared by business personnel, members of the two investigation teams overlapped, and the independence of the teams was questionable. 81 In re Syncor ERISA Litig., 229 F.R.D. 636, 645 (C.D. Cal. 2005) (documents prepared during internal investigation “were created with the intent to disclose … to the Government [and] … thus were never privileged.”); In re Aqua Dots Prods. Liab. Litig., 270 F.R.D. 322, 327-28 (N.D. Ill. 2010) (whether the predominant intention of the party is to obtain legal advice is a factintensive inquiry and high level of detail demanded from the party). 82 See Coito v. Super. Ct., 106 Cal. Rptr. 3d 342, 351 (Cal. Ct. App. 2010) (“hold[ing] that written and recorded witness statements, [even if ] taken by counsel, are not attorney work product.”); but see Sandra T.E. v. S. Berwyn Sch. Dist 100, 600 F.3d 612, 622-23 (7th Cir. 2009) (finding that use for impeachment of notes of attorneys’ interviews with school district employees during investigation of sexual abuse was not substantial need); Treat v. Tom Kelley Buick Pontiac GMC, Inc., No. 1:08-CV-173, 2009 WL 1543651, at *9 (N.D. Ind. June 2, 2009) (holding witness interview notes “reflecting counsel’s mental impressions about what counsel deemed important” were protected work product). 83 See e.g. United States v. McPartlin, 595 F.2d 1321, 1335-36 (7th Cir. 1979) (statements made to investigator acting as attorney’s agents); Sanchez v. Matta, 229 F.R.D. 649, 660 (D. N.M. 2004) (employee communications to investigator acting as agent of employer’s counsel); Welland v. Trainer, No. 00 Civ. 00738(JSM), 2001 WL 1154666, at *3 (S.D. N.Y Oct. 1, 2001) (employee serving as investigator was attorney’s agent); Carter v. Cornell Univ., 173 F.R.D. 92, 95 (S.D. N.Y. 1997) (communications to employee whose duties normally did not include conducting investigations for in-house counsel specifically asked to conduct investigation), aff’d 159 F.3d 1345 (2d. Cir. 1998) (summary order). 84 See, Edwards, 85 S.W.3d at 27.
85 Spinden, 798 S.W.2d at 478 (Mo. App. W.D. 1990); Claude P. Bamberger Int’l Inc. v. Rohm & Haas, Co., No. Civ 96-1041(WGB), 1997 WL 33762249, at *3 (D. N.J. Dec. 29, 1997) (no attorney-client privilege involving materials that didn’t appear for primary purpose of obtaining legal advice). 86 Id. 87 Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 61 (S.D. N.Y. 2010). 88 Admiral Ins. Co. v. U.S. Dist. Ct. for the Dist. of Az., 881 F.2d 1486 (9th Cir. 1989) (illustrating importance of having internal interview conducted by counsel). 89 In re John Doe Corp., 675 F.2d 482, 492-93 (2d Cir. 1982) (notes taken by an attorney during an internal investigation are discoverable because the notes did not reflect the mental processes of counsel). 90 Securities and Exchange Commission, Division of Enforcement, Enforcement Manual § 4.3 (Aug. 2, 2011). 91 Diversified Indus., Inc., 572 F.2d at 604. 92 See, e.g. Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981); In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414 (3d Cir. 1991); United States v. Mass. Inst. of Tech., 129 F.3d 681 (1st Cir. 1997); In re Columbia/ HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002); In re Qwest Commc’ns Int’l, Inc., 450 F.3d 1179 (10th Cir. 2006), but c.f. In re Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993) (confidentiality agreement may protect privilege); Saito v. McKesson HBOC, Inc., No. CIV.A. 18553, 2002 WL 31657622 (Del. Ch. Nov. 13, 2002) (adopts selective waiver doctrine); Aronson v. McKesson HBOC, Inc., No. 99-CV-20743, 2005 WL 934331 (N.D. Cal. Mar. 31, 2005) (no waiver of work product protection based on confidentiality agreement); In re Cardinal Health, Inc. Sec. Litig., No. C2 04 575 ALM, 2007 WL 495150 (S.D. N.Y. Jan. 26, 2007) (no waiver of work product protection even in absence of confidentiality agreement); In re Natural Gas Commodity Litig., No. 03 Civ. 6186VMAJP, 2005 WL 1457666 (S.D. N.Y. June 21, 2005) (no waiver of work product protection even in absence of confidentiality agreement). 93 235 F.R.D. 407, 427 (N.D. Ill. 2006). 94 See e.g. Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1426 (3d Cir. 1991) (holding that disclosure to the government waived privileges despite entry into confidentiality agreement with the government agency receiving the privileged materials), but see In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir. 1993) (declining “to adopt a per se rule that all voluntary disclosures to the government waive work product protection[s]” and recognizing that entering into explicit agreement the
government agency will maintain the confidentiality of the disclosed materials prevents waiver of privilege. 95 Explanatory Note to Rule 502(a) clarifies that “a subject matter waiver … is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.” 96 See e.g. Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1515 (D.C. Cir. 1993); Kingsway Fin. Servs. v. Pricewaterhouse-Coopers LLP, No. 03 Civ. 5560(RMB)(HBP), 2008 WL 4452134 (S.D. N.Y. Oct. 2, 2008); Schipp v. Gen. Motors, Corp., 457 F. Supp.2d 917, 92224 (E.D. Ark. 2006). 97 See e.g. SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291(JSM), 2002 WL 1334821, at *3-4 (S.D. N.Y. June 19, 2002); Cigna Ins. Co. v. Cooper Tires & Rubber, Inc., No. 3:99CV7397, 2001 WL 640703, at *1 (N.D. Ohio May 24, 2001); Go Med. Indus. Pty., Ltd. v. C.R. Bard, Inc., No. 3:95 MC 522(DJS), 1998 WL 1632525, at *3 (D. Conn. Aug. 14, 1998). 98 Calabro v. Stone, 225 F.R.D. 96, 98 (E.D. N.Y. 2004); In re Imperial Corp. of Am., 167 F.R.D. 447, 452 (S.D. Cal. 1995). 99 See Barker, 540 S.W.2d at 53-57. 100 See State ex rel Day v. Patterson, 773 S.W.2d 224, 227-30 (Mo. App. E.D. 1989). 101 Id.; see also Legere, 706 S.W.2d at 566. 102 See Patterson, 773 S.W.2d at 225. 103 See Voorhees, 895 S.W.2d at 14. 104 See e.g. In re LTV Sec. Litig., 89 F.R.D. 595, 604 (N.D. Tex. 1981). 105 See United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). 106 Id. 107 Daralyn J. Durie, Drafting the Joint Defense Agreement (With Sample Provisions), 13 The Practical Litigator 7 (March 2002). 108 See e.g. United States v. Aramony, 88 F.3d 1369, 1392 (4th Cir. 1996). 109 United States v. Weissman, 195 F.3d 96, 100 (2d Cir. 1999). 110 Wade Williams Distrib., Inc. v. Am. Broad. Cos., No. 00 Civ. 5002(LMM), 2004 WL 1487702, at *1-2 (S.D.N.Y. June 30, 2004). 111 See United States v. Schwimmer, 892 F.2d 237 (2d Cir. 1989); Davis v. Costa-Gavras, 580 F. Supp. 1082, 1098-99 (S.D.N.Y. 1984); SCM Corp. v. Xerox Corp, 70 F.R.D. 508, 514 (D. Conn. 1976). 112 See generally Raymond Banoun & Ronald G. White, The Joint Defense Privilege and Recent Government Challenges, 9 Corp. Counsel’s Q. 71 (Oct. 1993). 113 975 F.2d 81, 94 (3d Cir. 1992). 114 Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007). 115 See Blanchard v. EdgeMark Fin. Corp.,
192 F.R.D. 233, 237 (N.D. Ill. 2000). 116 Schwimmer, 892 F.2d at 244. 117 See Lipton Realty, Inc. v. St. Louis Housing Authority, 705 S.W.2d 565, 570 (Mo. App. E.D. 1986); citing Transmirra Products Corp. v. Monsanto Chem. Co., 26 F.R.D. 572, 577 (S.D. N.Y. 1960). 118 See Essex Chem. Corp. v. Hartford Accident & Indem. Co., 975 F.Supp. 650 (D. N.J. 1997). 119 See Essex Chem. Corp. v. Hartford Accident & Indem. Co., 993 F.Supp. 241 (D. N.J. 1998); see also Nat’l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123 (Tex. 1996). 120 See e.g. Interfaith Housing Del., Inc. v. Town of Georgetown, 841 F.Supp. 1393 (D. Del. 1994); Edward C. Brewer, III, The Ethics of Internal Investigations in Kentucky and Ohio, 27 N. Ky. L. Rev. 721, 797-98 (2000). 121 Gray, 86 F.3d at 1482-84; State ex rel. Mueller v. Dixon, 456 S.W.2d 594 (Mo. App. W.D. 1970). 122 Datel Holdings, Ltd. v. Microsoft Corp., No. C-09-055353 EDL, 2011 WL 866993 (N.D. Cal. March 11, 2011). 123 Id. at *1. 124 Id. at *6. 125 Id. 126 Fed. R. Evid. 502(d). March-April 2012 / 93
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