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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.
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.
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. Copyright © 2012 DLA Piper. All rights reserved.
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