DLA Piper LLP: Strategies For Helping To Preserve Attorney-Client, Work Product Privileges

By Kathy J. Owen

The definition of attorney-client privilege is generally consistent across jurisdictions: (1) an attorney, (2) a client, (3) a communication, (4) confidentiality anticipated and preserved and (5) legal advice or assistance being the purpose of the communication.i The fifth prong of this test is often the one that is difficult to apply and prove.

The law generally is that "[c]ommunications from a client to a lawyer, even confidential ones, are not protected unless the primary purpose of the communication is a request for (or the giving of) legal advice." ii In other words, business advice from a lawyer is not entitled to attorney-client protection.iii

The "classical example" that meets the "primary purpose" test is a memorandum or email "addressed solely to an attorney with apparently limited circulation and an identifiable legal question ... ."iv In such a case, the privilege applies to the communication as well as the attachment.v

The "classical example" is the easy case. The more difficult and more frequent example is when a document serves mixed purposes; for example, when (i) it is distributed to lawyers and non-lawyers simultaneously, or (ii) it includes a lawyer's non-legal input, such as scientific, technical, or grammatical advice.

Certain mixed purpose communications such as: (i) the "collaborative effort" approach; (ii) scientific, grammatical and editorial edits by lawyers; and (iii) lawyer comments on routine business communications are more difficult to discern and prove the privilege. Courts seem to be trending towards finding the attorney-client privilege in very limited instances with these types of communications.

Is the primary purpose of a communication legal in nature?

While courts are being more restrictive in finding that documents are protected by the attorney-client privilege, there are things that can be done to make it more likely that a court would find the primary purpose of a communication to be legal in nature.

  • When legal advice is requested on a document or draft language, send the document/language only to the attorney for comment, rather than including the attorney in a large distribution. In addition, clearly ask the attorney to review the document/language and provide legal input.
  • When forwarding a document to an attorney, do not merely send the document with an FYI. Place a statement in the email with language that makes it clear the email and documents are being sent relating to a legal matter. Here are some examples: "Please review the attached document and provide me your advice"; "The attached documents are in furtherance of the investigation you are handling on our behalf"; "Attached are the documents you requested that I gather for you relating to the pending legal matter."
  • Instruct employees not to forward emails from attorneys that contain legal advice to large groups of employees. Privilege can be waived on an email that would otherwise be considered privileged if it has broad circulation beyond what is needed to facilitate and provide legal advice.

Drafting emails and documents

Also, certain strategies in drafting privileged emails and documents make them easier for document reviewers to identify so that they are not inadvertently produced and the protections of Federal Rule of Evidence 502 (Rule 502) do not have to be used.

  • When an attorney sends and email, he/she needs to include a statement at the beginning of each email: "Privileged and Confidential/Attorney-Client Communication." If related to litigation or an investigation, include "Attorney Work Product" in the statement. Creating a "signature" with this privilege language makes it much easier to insert the language into appropriate emails.
  • In Word documents, include a header on each page that says "Privileged and Confidential/Attorney-Client Communication." If related to litigation or an investigation, include "Attorney Work Product Prepared for Litigation" in the statement.
  • In spreadsheets, place the "Privileged and Confidential/Attorney-Client Communication" and "Attorney Work Product Prepared for Litigation" language in the first row of the spreadsheet. Also include this language in a header or footer in the document. It is important to include this language in the first row of the spreadsheet - otherwise an individual, including a document reviewer, will not see the privilege notification on the spreadsheet unless the document is reviewed in "print preview" mode.
  • In PowerPoint presentations, place the "Privileged and Confidential/ Attorney-Client Communication" and "Attorney Work Product Prepared for Litigation" language in a text box on each page. Do not include the privilege notification language as part of the presentation template. Any language that is only a part of the presentation template is not a part of the extracted text. A full text search done on a document platform for the phrase "Attorney-Client" will not hit on a document in which that language appears only in the presentation template. Also, if the document is being reviewed in text mode, as opposed to image or native mode, the privilege notification language would not be seen.
  • When an attorney is giving legal advice or seeking information needed to render legal advice, that should be clearly stated in the communication. Whenever possible, language should be used to make it clear that the purpose of the communication is in furtherance of legal representation and not for a business purpose. 

For more information about these and other strategies to protect work product, contact Kathy Owen

i This definition is from the findings in In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 795 (E.D. La. 2007).

ii In re Avandia Marketing, Sales Practices & Prods. Liab. Litig., MDL No. 1871, Doc. No. 431 at *3 (E.D. Pa. June 1, 2009).

iii See In re Human Tissue Prods. Liab. Litig., MDL No. 1763, 2009 WL 1097671, at *5 (D.N.J. Apr. 23, 2009) ("The provision of business advice is not encompassed by the [attorney-client] privilege.").

iv In re Vioxx, 501 F. Supp. 2d at 809.

v Id. at 811.

This information is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper is not responsible for any actions taken or not taken on the basis of this information. Please refer to the full terms and conditions on our website.

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