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Use and Abuse of Attorney-Client Privilege and Work Product Doctrine in E-Discovery

Rarely do those of us  responding to e-discovery requests fail to assert the attorney-client privilege as one of the grounds for declining to produce some documents being sought by opposing counsel. Typically, we also cite the work product doctrine in objecting to several requests.

Two  federal courts recently dealt with thorny issues stemming from defendant employers’ use of the attorney-client privilege. Applying the Supreme Court’s ruling 33 years ago in Upjohn Co. v. U.S., 449 U.S. 383 (1981),  the two courts issued highly-instructive opinions.  In the second of the rulings, the court also carefully analyzed  how the work product doctrine can be used. These rulings should be heeded by those of us who develop or revise electronic data review protocols, particularly any  guidance for determining when to withhold documents under the attorney-client privilege or the work product doctrine.

The D.C. Circuit Court of Appeals held in the qui tam case of In re Kellogg Brown & Root (KBR), No. 14-5055 (June 27, 2014), that the attorney-client privilege applies if “one of the significant purposes” of a communication between corporate officers and the in-house legal department as part of an internal investigation was “made for the purpose of obtaining or providing legal advice” to the corporation. The D.C. Circuit reversed the District Court, which had held that certain documents had to be produced because KBR had not shown that “the communication would not have been made ‘but for’ the fact that legal advice was sought.”  Rejecting the “but-for test,” the D.C. Circuit held that the lower court’s ruling was “legally erroneous” and contrary to  Upjohn. The D.C. Circuit proceeded to find that the District Court’s error was “the kind that justifies mandamus”  because the “novelty of the District Court’s privilege ruling, combined with its potentially broad and destabilizing effects in an important area of the law,” required mandamus “’to forestall future error in trial courts’ and ‘eliminate uncertainty’ in important areas of the law.”

The District Court for the Southern District of Indiana, in Hamden v. Indiana Univ. Health North, No. 1:13-cv-00195 (June 24, 2014), rejected a tactic often used by business entities that abuse the attorney-client privilege and the work product doctrine by refusing to produce the emails and other communications on which they routinely copy in-house or outside counsel on virtually all sensitive communications. When a former employee asked Health North to produce in discovery the email communications “between and among certain supervisory and subordinate medical, nursing, and human resources personnel at the Hospital,” Health North invoked  the attorney-client privilege and the work product doctrine as grounds for its refusal to produce two email chains with a CC to in-house counsel. Granting the former employee’s motion to compel production of the two email chains, the court found that none of the emails in question had been “sent directly to an attorney” or “addressed to an attorney in the text of the messages.” Thus, the court concluded that the emails had to be produced because “no legal advice was sought by the emails, nor were they related to the purpose of seeking legal advice.” Citing Upjohn and Seventh Circuit rulings applying Upjohn, the court both determined that “there is no evidence that the Hospital’s in-house attorneys were performing an active investigation” and  refused to “assume that simply adding an attorney to an email via a CC creates an expectation that legal services will be rendered.” The court emphasized, in terms intended to discourage a practice commonly used by business entities:

Simply copying attorneys on an email chain in order to keep them abreast of HR and other business-related occurrences does not transform the emails into an attorney’s investigation with a built-in expectation of legal services to be rendered which would qualify for attorney-client privilege.

Finally, the court decided that “work product protection” should not be granted because “the instant case does not qualify for such protection,” primarily because “none of the emails represent work performed by the attorneys or at the direction of the attorneys.” In language tracking its ruling on the inapplicability of the attorney-client privilege, the court stressed:

Simply copying attorneys on an email chain in order to keep them abreast of HR and other business-related occurrences does not transform the emails into the mental impressions and thought processes of the attorneys and qualify them for work product protection.

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