Cohen Cheat Sheet on Attorney-Client Privilege and Work Product Privilege.

Cohen Cheat Sheet on Attorney-Client Privilege, and Work Product Privilege.

I.    Work Product.

The seminal case, Hickman v. Taylor, S. Ct. 1947 (not assigned), where in a lawsuit relating to a tug boat accident one party seeks to get by discovery (1) the recorded and signed witness statements of the survivors, and (2) the lawyer’s own memoranda setting forth his recollection of other interviews (and beyond that unwritten recollections of those interviews that are still in lawyer’s head).

The question is whether that summary should be privileged.

The S. Ct, though worried that too much privilege will mean lawsuits become “more of a battle of deception than a search for truth,” and recognizing “Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise,” still finds that “discovery, like all matters of procedure, has ultimate and necessary boundaries.”

It thus introduces what has become known as the work product doctrine, rejecting an “attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney [] without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner's case or cause him any hardship or injustice.”  It leaves open a kind of safety valve wherein “relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s own case, discovery may be had.”

There are twin motivations for the rule, says the Court: (1) The Parasite problem -- one lawyer will just leech off the opposite side, let him do the work and then try and get discovery. (2) Fear of breakdown of adversary system, that lawyer will become embroiled in litigation as witness, conflict of interest (more in Jackson, Concurrence).

The Hickman doctrine actually divides “work product” into two types, (1) regular work product that is ordinarily ‘privileged’ in a qualified way, that is it gets a  prima facie protection but can be overcome if the other side can show it cannot otherwise get access to the material. (2) the lawyer's mental impressions sometimes called “opinion work product” though it contains more than opinions.  It's the lawyer's strategy, mental impressions, tactics, and opinions.   This gets absolute protection.

The Hickman Rule is now codified in FRCP 26(b)(3):

(3) Trial Preparation: Materials.

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

The rule says “things that are prepared in anticipation of litigation or for trial.”  That does not mean ordinary business records. It means interviews, or documents, or reports that are generated with an eye to litigation.  So if a drug company routinely creates a report every time there is an adverse event with a drug, that is not work product, that’s just ordinary business records.

On the other hand, the suit does not have to have been filed before work product protection attaches. Law firms get hired all the time by companies because they fear that the case will come. Between these two poles are a lot of hard close calls, because the work product immunity threatens the truth-finding function of courts, they tend to view it stingily.

It does not matter who generates the thing. Be careful it is sometimes sloppily referred to as “attorney work product” but the rule is actually broader.  It says “prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)” An attorney? Sure, but that is just part of an “including” list, so illustrative not exhaustive. It can be something generated by the lawyer, by the party, or by an employee of the party.  No matter who produced it, if it's produced in anticipation of litigation, it's work product.

Hypo IX-1: Imagine I ask you for (1) the names and addresses of all witnesses, (2) which witnesses you’ve interviewed, and (3) the statements of such witnesses.  Are any of these work product?

Answer: The third is clearly work product under the Hickman case and the rule.  The first is clearly not, in fact mandatory disclosure.  The second is tricky.  It comes close to revealing lawyer’s thought process, why you singled out these particular witnesses, not clear what a court would do.

The standard to overcome work product is in FRCP 26(b)(3)(A)(ii) that “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”

You both need to show that you need the materials to prepare your case and can’t get it without undue hardship.   Imagine there is a plane crash, and the witness is a Brazilian flight attendant.  The airline, in anticipation of litigation, takes his statement.  The flight attendant goes back to Brazil and is thus unavailable for interview by the crash decedent’s lawyers.  Well first you ask, is it work product? Yes statement prepared in anticipation of litigation.  Then you ask, can the protection be overcome?  Again, yes, they need it to prepare their case, and it would be an undue hardship to travel to Brazil and find the witness.

Also notice that the material you seek it has to be discoverable under FRCP 26(b)(1), that’s the scope of discovery materials.  So the order of operation should be that you should always ask yourself is within the scope of discoverable material under 26(b)(1), THEN ask if it is work product, then if it is not opinion work product whether the standard for overcoming the prima facie protection can be made.

Remember it is the document, not the underlying information, that is work product protected.  Someone else can get the information another way, through interrogatories to the actual people, etc.

Now in many instances, there are documents in the file that are a mixture of work product and opinion work product.  And if you make the necessary showing you are entitled to the regular work product but not the opinion work product.  What does the court do in those situations? The judge will actually sit down and redact the stuff that is opinion work product.

II.    Attorney-Client Privilege (more on this in the evidence class).

The rule (CB 908, not assigned from U.S. v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass 1950)):

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Where it applies the privilege prevents the interlocutor from getting the evidence altogether, it is a disclosure privilege, not just using it at trial (think of the police investigation context), and is absolute.  For that reason courts often want to be careful to narrowly construe where it applies.

Unlike work product, here it has to be a member of the bar or his subordinate.

It only applies to the communication, not the underlying facts.  So I can ask you about the thing you told your lawyer, just not about the conversation with the lawyer.

Where does the privilege come from? It is statutory.  In federal courts it comes from the Federal Rules of Evidence.  In state courts it is state statutes, and some of them have interpreted their state statutes in a way that is different from the federal privilege.

The Rationale is discussed in the Upjohn case I ultimately omitted. Effective representation of a client requires full and frank communication between lawyer and client.  That communication would be chilled if client knew what he told lawyer was discoverable.  Like spousal privilege operates from the POV of a certain kind of social engineering.

But the privilege also frustrates the truth-seeking aim of the system, so we are trying to do some balancing here, and the multi-factor test of the privilege is meant to try and cut the privilege down to the exact kind of human behavior we don’t want to chill.  We want to limit it to communications with attorneys and their subordinates.  We want it to be a communication related to legal matters.  We want to say no privilege if those besides your lawyer are there to listen, since if you were willing to blab it more publicly we don’t think you need the privilege to get you to talk.  Also exclusion of advice related to committing a crime.

All of these points in the definition get litigated and have long well-established jurisprudences you would learn in real life if this came up, and could learn more about in Evidence.  For example, when does someone meet the definition of becoming or seeking to become a client? If I call your office and before you say hello I blab about a long criminal problem, how I want your advice and you ultimately respond “actually I’m a divorce lawyer” has the privilege been triggered?

Hypo IX-2: Catherine Banning leaves the world of insurance for law school.  She advises her good friend, Mr. Crown, on Real Estate Transactions. At Mr. Crown’s McMansion during a party, Ms. Banning sees Edward Munch’s “The Scream” sitting on the wall.  Ms. Banning exclaims to Mr. Crown “This is an amazing reproduction, where did you get it?” Mr. Crown responds: “Oh that old, thing, it’s actually the original, I stole it from a museum in Norway in 1994.  More pinot grigio?”  Is that protected by the attorney-client privilege?

Answer: Probably not, because (using the numbering of the definition above) there were strangers present -- 3(b) -- and because -- 3(c) -- the communication was not made for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.

One issue that is litigated often is that you can waive the attorney-client privilege either purposefully/explicitly, or by failing to assert the privilege in responding, even mere disclosure to a random third party.  This gets tricky, you cannot reveal part of the communication and then seek to assert privilege on the other part.  Also problem of scope of subject matter waiver, TO SIMPLIFY in general when you waive the privilege as to one communication on a subject-matter you waive as to ALL communications on the subject matter.  The “crown-jewel” approach.  What this means is that law firms spend huge amounts of resources and attorney time to make sure nothing falls through the crack, also means that your gut instinct will be to assert privilege if you are not sure.

Partly in response to this tendency, FRCP 26(b)(5)(A) require that claim of privilege or work product has to be made expressly and the nature of the items withheld have to be described in a way that enables the other party to assess whether to challenge the claim of privilege or work product.  It also makes you stick to the privilege you actually claimed to begin with rather than introducing a “moving target.”