Some of your bloggers recently attended the American Conference Institute’s annual Drug and Medical Device Litigation Conference in New York.  One of the conference panels addressed a recent unsettling ruling in a non-drug-device case that held communications training provided by defense counsel for their client’s employees was not only discoverable but admissible at trial.  In re Google Play Store Antitrust Litigation, 664 F. Supp.3d 981, 983 (N.D. Cal. 2023).  Moreover, some of the “practices” that found their way into the opinions seemed to us not only privileged but entirely unobjectionable:

Plaintiffs also point out that, for years, [defendant] has directed its employees to avoid using certain [legal] buzzwords in their communications. . . .  Eight years later, [defendant] still was telling employees . . . “[a]ssume every document you generate … will be seen by regulators.”

United States v. Google LLC, ___ F. Supp.3d ___, 2024 WL 3647498, at *113 (D.D.C. Aug. 5, 2024) (citation omitted).  That’s only good sense, and no different than the other side (at least if they have good lawyers) tells its own individual plaintiffs before they have to testify. 

But why are these materials being cited at all?  By all rights, the details of this program should be privileged information, since the defendant’s “employees receive[d]” “live group trainings” that were “presented by lawyers.”  664 F. Supp.3d at 983.  Given that the defendant’s lawyers were instructing corporate employees, these sessions seem to us rather obviously privileged.

We were disturbed enough to research this subject.  Sure enough, most courts reject discovery into training sessions for corporate employees conducted by either in-house or outside counsel, let alone their use at trial.  We found only one appellate decision, State ex rel. Montpelier U.S. Insurance Co. v. Bloom, 757 S.E.2d 788 (W. Va. 2014), an insurance bad faith action.  The lower court had ordered the defendant’s law firm to produce “all seminar or training materials it prepared for any insurer or industry group involving coverage interpretation or extra-contractual liability.”  Id. at 798.  The state’s high court reversed because this material was protected by the attorney-client privilege.

We have reviewed all of the documents submitted under this discovery request.  All of the documents reflect [defense counsel’s] legal opinion on specific topics.  The documents explain legal concepts and procedures and specific policy issues. . . .  [T]hese documents clearly demonstrate specific requests by [the firm’s] clients for legal opinions on specific subjects.  Further, . . . we find these documents are protected by the attorney-client privilege.

Id. at 799 (citations omitted),

Montpelier U.S. relied largely on Santer v. Teachers Insurance & Annuity Ass’n, 2008 WL 821060 (E.D. Pa. March 25, 2008), another insurance bad faith case, where the plaintiff sought “materials related to training that defendant . . . provided to its claims department representatives concerning bad faith insurance practices, insurance litigation in general, and privacy rights.”  Id. at *1.  Santer held those materials privileged:

After careful and meticulous in camera review of the materials plaintiff seeks, the Court finds that the documents are privileged.  [Defendant’s] in-house attorneys prepared the materials for the purpose of answering their clients’ questions concerning how statutes and court decisions in the areas of bad faith, insurance litigation, and privacy affect the way [defendant] handles claims.  [The] attorneys then presented these materials to [defendant’s] claims representatives during training sessions in a question and answer format.  The contents of the materials, generally speaking, include explanations of basic legal concepts and direction concerning where claims representatives fit into the legal process when [defendant] is sued.  The materials are thus communications from an attorney to a client that reflect communications from the client to the attorney for the purpose of securing an opinion of law.

Id.

Santer and Montpelier U.S. were recently cited in Willis v. Progressive Direct Insurance Co., 2023 WL 4305130 (W.D. Okla. June 30, 2023), another bad faith case where the defendant had engaged an attorney to “conduct[] annual formal training relaying advice to [defendant’s] employees concerning how [they] should properly handle first and third party claims.”  Id. at *3.  Again, the material (including a PowerPoint presentation) was held privileged.  “[T]he PowerPoint slides contain legal advice and are squarely protected by attorney-client privilege.”  Id. at *4.  “The slides, which ‘explain legal concepts and procedures and specific policy issues,’ clearly reflect [the attorney’s] ‘legal opinion on specific topics.’”  Id. (quoting Montpelier U.S.). They “were prepared by outside counsel for [defendant], and [he] never even provided a copy of the files to [the defendant].  Id.

Similarly, In re Currency Conversion Antitrust Litigation, 2010 WL 4365548 (S.D.N.Y. Nov. 3, 2010), considered whether “training materials and information about the arbitration provisions that was to be conveyed to consumers,” were protected by the attorney-client privilege.  Id. at *3.  After in camera review, Currency Conversion determined that the documents all dealt with the decision-making process and implementation of [a defendant’s] decision to adopt an arbitration provision, and that in-house and outside counsel had been deeply involved.  Id.  “[A]lthough large groups of business people were, at times, parties to the communications, standing alone that fact does not undermine the privileged status of the documents.”  Id. at *6.  The training materials had been authored by an attorney, had been sent to another attorney for revisions, and provided advice to “customer service representatives as to what the arbitration provision means and entails, and how to respond to customer questions about the arbitration provision.”  Id.  Thus, they were “materials for which a corporation would choose to rely upon an attorney’s advice and legal expertise,” and “[w]here interactions with customers can reasonably be expected to have legal consequences, advice from an attorney on how to respond to customer inquiries is legal advice.”  Id.

Training and policy materials for the defendant’s employees were also found privileged in Valassis Communications, Inc. v. News Corp., 2018 WL 4489285 (S.D.N.Y. Sept. 19, 2018).  “The documents . . . provide[d] confidential legal advice concerning marketing tactics to [defendant’s] employees who are in a position to act on the information.”  Id. at *3.  Such training plainly had a valid purpose:

A corporation can only act through its employees and agents.  Concern by managers of a corporation that its conduct not run afoul of the law is a worthy consideration.  Providing business people with ready access to lawyers to ensure that their business activities are in compliance with the law is not a nefarious activity.  Prudent lawyers counsel against, and thus often prevent, unlawful actions by a client.  In a suit against a corporation, it is the actions and statements of the corporation, through its employees, that are to be judged and not bad ideas that are presented by its employees to a lawyer and never see the light of day because of the lawyer’s legal advice.  The act of “vetting” a proposed strategy with a lawyer is what an honest client may choose to do before implementing a strategy.

Id. at *2.

McKnight v. Honeywell Safety Products USA, Inc., 2019 WL 452741 (D.R.I. Feb. 5, 2019), held that a “Wage-Hour Compliance Training document” was privileged.

[T]he training Document proffered for in camera review is plainly a protected attorney-client communication.  Its content is pure legal advice, which was communicated to an employee who has testified that she was “seeking legal advice,” related to her job, by an attorney who has averred that she was “providing legal advice.” The Document is labeled as confidential and there is no evidence of waiver.  No more need be said.  The privilege objection is sustained.

Id. at *2 (record citations omitted).

Additional cases reaching the same result include:  Insignia Systems, Inc. v. News Corp., 2021 WL 5086385, at *1 (D. Minn. May 20, 2021) (“the document − described as a legal training presentation – . . . is an attorney-client privileged document.  Defendants have sufficiently shown that the employees who were provided the document (even though this was hundreds of employees) were in the ‘need to know’ category.”); Friedman v. Bloomberg LP, 2019 WL 9089585, at *1 (Mag. D. Conn. Jan. 14, 2019) (presentation by defendant’s “in-house counsel to employees provided legal advice to [them] regarding legal issues, such as libel and privacy”; thus “its ‘predominant purpose’ . . . was to render legal advice to promote compliance with the law, shielding such trainings with the attorney client privilege”); National Security Counselors v. CIA, 206 F. Supp.3d 241, 286 (D.D.C. 2016) (training documents exempt from FOIA production as privileged; “the material redacted from these documents is comprised of legal advice and examples provided by [defendant’s] attorneys to assist in the preparation of training materials for [government] employees responsible for processing FOIA requests for agency records”).

So let the recent Google  litigation be a cautionary tale.  You might think that, when you are called in by your client to provide attorney-led advice and training, that information is privileged – and most courts agree.  But some cases out there don’t see things that way, at least in the antitrust context.  Notably, we did not come across any cases involving prescription medical product liability litigation.  Nevertheless, be careful.

And in doing this research, we found another interesting privilege decision.  If you’re like us, every time you sign on to your firm’s/company’s computer system you receive a notice that includes phrases like “there is no expectation of privacy” in anything you do on that computer system.  Well, guess what, those notices  work.  In Sickels v. McDonough, 2023 WL 7406161 (E.D. Mo. Nov. 9, 2023), the plaintiff, who had brought an employment discrimination suit against her employer, nonetheless used her employer’s computer system to communicate with her attorney about that suit.  Bad move, the employer’s warnings established that none of those communications were privileged:

Defendant also provided evidence that it requires employees to acknowledge that their activity is not private through a security warning banner every time they login and access their account. . . .  It provides annual training about these policies. [Plaintiff] has undergone this training since she began her employment. . . .  And [plaintiff] was warned . . . not to use Defendant’s instant messaging system for anything that she wanted to keep private.  This evidence shows that [plaintiff] had no expectation of privacy on her email account and server.  The disputed communications are therefore not protected by the attorney-client privilege.  Any email attachments are not protected by work product doctrine either.

Id. at *2 (citations omitted).

So that is today’s ethics CLE, only you would have had to attend the ACI conference to receive credit.