Attorney-Client Privilege

It is a fairly common situation.  A company is facing an issue that someone thinks the board of directors ought to know about, so general counsel retains outside counsel to provide advice.  Maybe outside counsel prepares a memo.  Maybe he or she appears at a board meeting to give a presentation with others from the

A lot of companies rely on retired and otherwise former employees for information in litigation – including product liability litigation. Particularly where a product (such as a drug that’s now gone generic) has a long history, they are often the best source of knowledge about what happened years ago.  In dealing with ex-employees, however, defendants must keep in mind that, for purposes of the attorney/client privilege, discussions with ex-employees are subject to being treated much differently (and less protectively) than corporate communications with current employees.

The recent case, Newman v. Highland School District No. 203, 381 P.3d 1188 (Wash. 2016), although not involving prescription medical products, or even product liability, is a cautionary tale.  The defendant in Newman was a governmental entity, a school district.  The plaintiff alleged that he suffered a brain injury playing high school football, and that the injury occurred because the plaintiff was allegedly allowed to play in a game the day after suffering a concussion in practice.

The plaintiff in Newman didn’t sue until some three years after the injury. Id. at 1189-90.  By then, most of the coaching staff had turned over, and the individuals with the best knowledge of what had happened were employed elsewhere.  The school district’s litigation counsel contacted the ex-coaches and when they were deposed, claimed to represent them.  Id. at 1190.  Plaintiff challenged that representation as a conflict of interest and “sought discovery concerning communications between [the defendant] and the former coaches.”  Id.  The defendant resisted discovery with a claim of attorney/client privilege, and plaintiff opposed.  The defendant lost, and appealed denial of its motion for a protective order.  Id.


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Here is a guest post from Jason Casell of Reed Smith.  As always, our guest blogger gets all the credit, and any blame, for the analysis that follows.

Those of you who rely on emails to get your fix of DDL posts may have noticed your inboxes a little light recently.  Do not despair.  Bexis has been being Bexis, but the email distribution was not behaving.  Feel free to peruse the website through your preferred browser or just click on this, this, and/or this.

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2016 is well underway and some of us have already abandoned our well-intentioned New Year’s resolutions.  But for those who might be thinking about weight loss, here’s a cautionary tale with a pretty happy ending from our good friends on the Ninth Circuit.

In re Grand Jury Investigation, No. 15-50450, 2016 U.S. App. LEXIS 580 (9th Cir. Jan. 14, 2016), is the Ninth Circuit’s latest pronouncement on the discoverability of privileged communications in the context of the crime-fraud exception.  The decision vacated a scary district court order – one that granted the government’s ex parte motion to compel production of attorney-client privileged documents.  The Ninth Circuit remanded and required the district court to inspect the subpoenaed documents in camera to determine if any specific attorney-client communications for which production was sought were sufficiently related to and were made in furtherance of the intended, or present, continued illegal activity.


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Here’s a guest post we received from Reed Smith’s Andrew Stillufsen about a discovery topic that afflicts drug/device defendants, as well as those representing any large corporate entity – the applicability of the attorney/client privilege to communications authored by in-house counsel.  Andy describes a recent successful outcome in a case involving a large oil company, but for the underlying subject matter, the dispute could just as easily have arisen in drug/device litigation.  As always, all the credit and/or blame for this post goes to the guest poster.

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In-house counsel everywhere, and those who rely on their advice, breathed a sigh of relief last month when the Fifth Circuit overturned a district court decision and found that a memo drafted by in-house counsel at the request of a business colleague in connection with a contract negotiation was in fact protected by the attorney-client privilege.  This case serves not only as a validation of the role of in-house counsel in corporate transactions, but also is an important reminder of the importance of establishing the elements of the privilege on the face of a document, and thus be able to withstand even the most demanding court review.

In Exxon-Mobil Corp. v. Hill, ___ F.3d ___, 2014 WL 1796646 (5th Cir. May 6, 2014), the court was presented with a question that many courts grapple with every day:  is a document drafted by an in-house lawyer a confidential communication for the purpose of providing legal advice, or merely a business communication that happened to be drafted by a lawyer?  Since the answer was not apparent on the face of the document, the court was forced to take a deep dive into the context of the drafting of the memo, and fortunately found that, given this context, it was in fact privileged.

The document at issue, called the Stein Memo after its author, was created in a fairly typical manner.  In the late 1980s Exxon was negotiating with another company over a contract to  clean its oilfields and store the cleaned materials, which included substances contaminated by naturally occurring radioactive materials (“NORM”).  A business person involved in the negotiations asked in-house counsel Stein for advice regarding how to respond to a request from the other company for some relevant test results.  Stein’s advice, including which test results to disclose and proposed language to accompany the test results, was memorialized by her in the Stein Memo.


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We saw another decision, A.H. v. Evenflo Co., 2012 U.S. Dist. LEXIS 76100 (D. Colo. May 31, 2012), addressing whether communications involving public relations firms can be protected by the attorney-client privilege.  This is an issue that we’ve discussed in the past, and that involves some uncertainty, particularly as to whether the likelihood

We had the issue of when a lawyer can, and can’t, confer with his/her own witness during a deposition come up recently in one of our cases.  It caused a bit of scrambling since – typically – it came up in the middle of a deposition, so now that the issue is behind us in this particular case, we thought we’d blog about it

Unlike a lot of the stuff we talk about here, this issue is one that, depending on the circumstances, we could easily find ourselves on either side.  That means we don’t have a particular axe to grind, and we’re more concerned with knowing when we’re on solid ground (either conferring or objecting to same), and when we’re likely to run into problems.

Well, the grand-daddy of all cases on this question is from right here in our back yard in the Eastern District of Pennsylvania, called Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), written by the late Judge Robert Gawthrop (also an accomplished singer and actor).  Hall involved one common situation – where the deponent (that’s the guy answering the questions, for you non-lawyers) and his lawyer stopped an ongoing deposition to confer amongst themselves.  Indeed, one of these conferences occurred while there was a question pending (again, for non-lawyers that means after the question was asked but before it was answered).  The side taking the deposition objected to these conferences, and the matter was brought before Judge Gawthrop.

To use another technical term, Judge Gawthrop went ballistic (not all that uncommon with him) – and the Hall opinion was the result.  It probably didn’t help that the conferring attorney took a rather extreme position, “that an attorney and client have the right to confer with one another at any time during the taking of the client’s deposition.” 150 F.R.D. at 526 (emphasis ours).


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