So you’re sitting next to one of your client’s senior executives. You’re at a large table in a larger conference room. There’s a lawyer for every seat at the table. There’s a court reporter in the room. A videographer too. The lawyer across the table from you slides a document to your client and gives you a copy. And then she starts asking questions. You look at the document. It dawns on you. This is a privileged document. It’s an email attaching a power point that was used in a presentation by your client’s legal department to its employees. The videotape is rolling. The court reporter is typing. Uh-oh. Bad thing.
What to do? Well, whatever you do, don’t panic. It’s not over. You probably have a chance to fix this, to claw it back. And, if you do it right—which in part involves speaking up—and you’ve done the preparation, the court will likely back you.
This precise predicament happened to the defendant in In re Abilify (Aripiprazole) Prods. Liab. Litig., 2018 WL 44440707 (N.D. Fla. Sept. 17, 2018). Bristol-Myer Squibb’s lawyer objected to a plaintiffs’ attorney’s use of a document at a deposition, asserting that it was privileged and had been inadvertently produced. The BMS lawyer sent a follow-up email that night further asserting the privilege. Three business days later, the lawyer sent another written notification, this time accompanied by a privilege log. As it turned out, taken together, these actions weren’t perfect. But they were enough.
The plaintiffs filed a motion asking the court to confirm that the documents should remain produced material. They argued that (1) the defendant did not follow the claw-back procedure set out in a protective order addressing inadvertent disclosures and (2) regardless, the document was not privileged. Neither argument won.
For their procedural argument, the plaintiffs pointed to the protective order’s requirement that the defendant provide the plaintiffs with written notification of the claw-back and an accompanying privilege log within two business days of the deposition, not three. The court agreed that the protective order required this. But the court found it more important that the BMS lawyer gave a detailed verbal notice of the privilege assertion at the deposition and followed-up that evening with a detailed email confirming it. In other words, speaking up quickly and clearly helped. Preparation helped to—that is, already having a protective order on inadvertent disclosures in place. The court held that the defendant’s clarity in immediately clawing the document back and stating the reasons won out over missing the two-day deadline by one day. Substance over form:
Although BMS might not have followed the precise terms of the Protective Order, in the Court’s view the one-day delay in sending the privilege log can charitably be described as a situation where the expression “no harm, no foul” applies. Plaintiffs cannot point to any prejudice they suffered or could have suffered as a result of the receipt of a privilege log one day late, which simply confirmed the privilege timely raised by BMS at the deposition and then confirmed in writing the same day. Consequently, Plaintiffs’ argument that BMS waived its ability to claw back the email and PowerPoint is due to be denied.
Id. at *2.
Plaintiffs argued that the power point wasn’t privileged because a non-lawyer assisted in preparing it and, regardless, it conveyed publicly known facts about a corporate integrity agreement (“CIA”). This argument lost too.
It did not matter that a non-lawyer assisted in preparing the power point. What mattered was that the power point’s content came from an attorney using it to advise a client:
While the final preparation of the PowerPoint slide deck may have been created by a paralegal or non-attorney, the information does not lose its privileged nature simply because the attorney did not perform the ministerial function of actually preparing the PowerPoint deck. Thus, the fact that the meta data reflects the deck was prepared by a non-attorney has little relevance to whether the PowerPoint is protected by the attorney-client privilege.
And the fact that the power point addressed a publicly available CIA didn’t destroy its privileged nature either. It contained counsel’s interpretation of the CIA and the obligations that it placed on defendants, and it was used in counsel’s presentation to senior management on those issues:
BMS not only asserts that the redacted portions of the PowerPoint dealing with the CIA were prepared by in-house counsel but importantly that the PowerPoint was part of a presentation by Regina Cavaliere, a Senior BMS counsel, made to BMS management employees. According to BMS, Ms. Cavaliere’s presentation was not simply a historical account of the CIA but instead was Ms. Cavaliere’s interpretation of the scope of BMS’ obligation under the CIA. The redacted portions of the PowerPoint specifically related to the presentation, which provided BMS employees with both factual background to the CIA and BMS counsel’s interpretation of BMS’ obligations under the CIA. The information in the slides in the PowerPoint therefore must be viewed in the context for which the slides were prepared and how the slides were used by BMS’ in-house counsel in her presentation.
Id. at *3. The court ordered that the email and attached power point were privileged and had been inadvertently disclosed.
Phew. Bad thing averted. So, if you’re at a deposition and your opposition hands a privileged document to your witness, ignore that shiver going down your spine. Just go to work, speak up and follow up.