DiscoveryEsq

The Crime Fraud Exception

I mentioned the crime fraud exception as an exception to otherwise privileged attorney work product or attorney - client communications. Let’s go over the purpose and effect of this exception.

The crime-fraud exception prevents abuse of the relationship between the client and attorney. The purpose of the exception is to make sure that the protection and secrecy of attorney-client discussions doesn’t extend to communications made for the purpose of continuing or contemplating criminal or fraudulent behavior. Courts have also recognized other situations involving wrongdoing that don’t necessarily amount to crime or fraud and applied the exception there too.

Two conditions must be met for the crime fraud exception to apply:

1. The client must have made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act

2. The client must have carried out the crime or fraud

What’s the reason behind that second requirement? Otherwise this exception would prevent clients from seeking advice about a bad idea and receiving advice leading them to comply with the law.

For work product, it’s more difficult to apply exceptions like this to documents containing attorney’s mental impressions, conclusions, opinions, or legal theories. I’ll go over this more when we discuss the substantial need exception, an exception that applies to work product, but NOT attorney-client privilege.

Please comment with any discovery or privilege related info you’d like to hear about, including cases you may have read about in the news or seen on tv!

3rd Parties Break Privilege

Even & Especially Lawyers

Lawyers for 2 different sides negotiate a contract via back & forth emails. Each side makes comments & proposed changes on the drafts.

The MANY different versions of drafts.

Are the drafts protected by privilege?

2 scenarios:

The other side / opposing counsel sent the drafts - Not privileged

During a back and forth negotiation, except in rare situations, opposing counsel’s presence in a correspondence constitutes a 3rd party that breaks privilege.

2. The other side sent their most recent draft which was subsequently distributed internally between company attorneys who added their comments to that draft; the draft was kept company confidential - Privileged or Partially privileged

This draft would be protected by privilege or the internal comments from attorneys would at least get redacted before the draft could be produced. Legal work, review, advice, etc on a draft from the other side is protected by privilege, even if the draft itself (without the lawyers’ comments) is not protected by privilege anymore.

Related situations:

Email correspondence attaching the same drafts:

If the email includes opposing counsel: Not privileged

Swift Discovery Lessons

It’s no secret I’m a huge Taylor Swift fan so of course I jumped at this opportunity to use this to discuss board meeting minutes, agendas, and attorney-client privilege.

This issue actually comes up a LOT in discovery reviews.

Let’s say this was a real board meeting agenda, as many Swifties would likely argue that it is. And let’s say Taylor Nation wanted to keep the discussion of the evidence privileged.

What practices should The Tortured Poets Department use to preserve privilege?

It’s good that the agenda mentions the purpose of reviewing evidence during the meeting. However, I’d highly recommend making it abundantly clear that an attorney(s) will attend the meeting, participate in this review, and provide legal advice.

I’d either advise keeping the subject matter simple so it doesn’t reveal too much information, but enough to make the topics of the meeting clear. The department did pretty well in that regard.

Any further legal detail should either get sent separately, or put in a distinct section to make it easier to facilitate necessary redaction.

The department should only send the agenda and subsequent minutes on a “need-to-know” basis, likely only including board members and attorneys. The department should also specify very clearly that the information must remain confidential and the recipients are not to distribute it to third parties.

If the meeting minutes include legal advice, the department should include a very clear legal section in the minutes and specify that its contents are protected by attorney-client privilege. If the discussions pertain to a litigation, I also advise labeling it as attorney work product, in case an argument is made that meeting minutes aren’t a “communication” and therefore wouldn’t have attorney-client privilege protection. However, since the notes would constitute a summary of a communication, I don’t know how much success an attorney making that argument would have. BUT it doesn’t hurt to take the extra step to be on the safe side!

And for a fortnight I get to feature Taylor Swift in my law blog… 🎶

All credit for the photo and its contents go to Taylor Swift and Taylor Nation.

REDACTED FOR PRIVILEGE

Lawyers use redaction as a technique to avoid producing privileged information to the other side during litigation.

Does that mean that anything containing information that needs redaction won’t get produced in discovery?

No it does not.

Only parts of documents that contain privileged information get withheld; that’s the whole point of using redaction as a technique.

People tend to get into trouble here when they assume that an attorney’s presence on a document and the presence of that lawyer’s legal advice shields the entire document.

How can you avoid this? Keep your communications pertaining to legal advice separate and distinct from other, unrelated, non-privileged information. If you’re consulting with an attorney that “wears multiple hats,” make it clear that the communication regards legal advice and the discussion with the attorney is within their legal capacity.

I’m not doing those things anymore; I’m not underestimating myself. I’m working hard and people out there enjoy my writing and it’s not a bad thing to allow some of them to tip me if they so choose. ❤️

So I am PROUD to announce that the tip feature is on. I’ve been paid a lot for my legal writing and other writing before, so I know I’m valuable and I want to set that example for anyone who follows me so you’re all proud to value yourselves too.

I’ll be back to talking about discovery shortly.

Is Attorney Work Product Still Privileged if We REALLY Need it?

You might expect an unequivocal yes in response to that question, but “it depends” is more appropriate because the Attorney Work Product privilege is not an absolute privilege. This blog post goes over the “substantial need” exception, that some people refer to as the “unavailability” exception. Attorneys who don’t familiarize themselves with these exceptions may experience some unpleasant surprises in the form of a judge ordering them to produce a document they expected privilege to shield. 

The unavailability/ substantial need exception allows for disclosure of attorney work product where counsel can demonstrate a substantial need for the documents and that it would cause an undue hardship to otherwise obtain the sought relevant information from an unprivileged source. This exception generally applies to ordinary or fact work product, as an attorney’s mental process in preparing for litigation would not usually be subject to disclosure under discovery rules. This means that opinion work product IS an absolute privilege and its protections cannot be overcome by a showing of substantial need and undue hardship. 

This exception applies only to fact/ordinary work product. The more a document / material consists of an attorney’s mental impressions, processes, or strategies, the more protection it will have from production in discovery. 

For fact/ ordinary work product, Courts consider several factors when determining if a substantial need exists: relevance, availability of other similar evidence, and potential for impeachment, since the substantial need exception often comes into play when counsel intends to use the work product to impeach a witness’s statement. A demonstration that the document is relevant to the case is NOT sufficient on its own for this exception to apply; the party challenging the privilege must make a showing that they will be prejudiced if the material isn’t disclosed.

Further, an attorney can establish an undue hardship by proving that they have tried and failed to obtain the documents / materials or the substantial equivalent of the documents / materials, or that they are unable to obtain them from another source. 

Keep in mind: this exception does NOT apply to the Attorney-Client privilege, because it would defeat the purpose of attorney-client privilege, which we will discuss in a future post.

What is a privilege log? Other #lawyers have told me it’s a list of privileged documents. No.

At least not if you expect it to be used and accepted by the courts, government agencies, etc. Most require a lot more detail.

Most of the privilege logs I create must:

* Specify if the documents are wholly or partially privileged

* If partially privileged we must redact and specify the redactions are complete

* Specify the privilege type noting that multiple may apply to one document ie) attorney-client privilege, attorney work product, joint defense/ common interest

* Identify the privilege source / the attorney(s)

* We must identify the action giving rise to each privilege type

* For attorney-client we must specify if the lawyer provided advice, if someone requested advice from them, if it was prepared at the request of an attorney, is relaying legal advice, providing info needed to render or request legal advice, transmitted for the purpose of giving or receiving legal advice, etc etc

* If it’s work product we must research and specify the related litigation and if it’s prepared in anticipation of litigation or in the course of the litigation

* Must flag common interest and joint defense privilege scenarios and what entity has the common interest or joint defense agreement

* Specify the document type

* Specify in detail (but not giving away the privileged info) the subject matter of the privileged document

Your company has locations in several countries & employs in house counsel.

Are your communications with in house counsel privileged?

Maybe. 🤔

Maybe isn’t usually the answer people are looking for when it comes to privilege.

Here’s why the answer is maybe and suggestions on how to make it a yes.

In the US, corporations commonly have in-house counsel, and those attorneys can form attorney-client relationships. But lots of corporations have presence in other countries. Some countries do NOT recognize the position of in-house counsel and do not legally recognize people employed in that position as attorneys.

This means in house counsel in those countries CANNOT form attorney-client relationships or have their communications protected by privilege.

If you’re not aware of this, you wouldn’t even know where to begin combatting the situation.

Now that you are aware, many US corporations that do business in countries that don’t recognize in-house counsel positions hire outside counsel to establish privilege, then the in-house attorneys participate in communications as clients.

I once worked at a firm where a major partner got arrested for stealing a ton of money. 💴 Enough money to make it a federal crime.

If during a federal prosecution, that #attorney wanted to assert a fifth amendment privilege claim to prevent the law firm from producing firm documents, would he succeed?

No.

Generally, courts consider law firm partnerships well structured organizations that maintain a distinct set of organizational records. A partner could not assert 5th amendment privilege to prevent that type of production.

Similarly, if the firm waives attorney-client privilege when it comes to their communication with counsel on an investigation, the partner cannot preclude the production of the communications because he didn’t consent to the waiver. The partner would have to establish that counsel represented him separately and distinctly from the representation of the firm.

That means this post is confidential. Right? Wrong. It doesn’t relate to a litigation…

You cannot just place this label on any work a lawyer does and expect it to mean anything.

Attorney work product privilege is a bit of a misnomer in my opinion. It suggests that all attorney work is covered by this #privilege and that is not the case.

This seems obvious every time I talk about it to my peers, but I’ve got years of experience telling me that #attorneys way above my pay grade do not understand this.

Amazing that successful higher-up #lawyers & execs look down on attorneys making their privilege logs when MANY of them clearly don’t understand privilege.

Understanding attorney-client privilege is very important and I’m making this post because of how much correspondence I have to REMOVE from the privilege log because it’s not actually privileged and it’s discoverable.

Common things I see:

1) Attorneys and other execs stamping “privileged and confidential” on things that don’t involve anything legal in nature, no attorneys were involved or consulted with for preparing, and even documentation that has already been shared with people with whom they have no privileged relationship.

Guess what? Your fancy stamp didn’t magically make that privileged and the other side is getting it.

2) Execs adding attorneys to correspondence hoping to shield the contents from discovery.

If the attorney is not clearly addressed and asked for advice, opinions, to review, to do SOMETHING, most of the time, including their name does not have the effect people expect when they CC the lawyer.

3) This relates to attorney work-product privilege and is similar to 1) above, except for some nuances: attorneys stamping documents as attorney work product when it’s not prepared in anticipation of, during the course of, or because of litigation.

The name “work product” is a bit deceiving as it suggests it covers all work done by attorneys when really it covers a LOT LESS THAN THAT. I’ve seen draft agreements with the other side to a merger, confidentiality agreements and NDAs, and ordinary course of business materials labeled this way.

And they’re not protected by work product privilege and they’re getting produced during discovery.

One big suggestion I have is that if you have something you want protected by privilege, you should explicitly say this. If you’re including an attorney on an email with a bunch of other recipients, address the attorney by name and make it clear you’re seeking their legal advice / legal review, etc.

If you’re labeling something as privileged and confidential and expecting it to actually work that way, make sure it’s clear WHY it’s privileged and confidential; make sure the legal / attorney involvement is clear.

Linda was uncomfortable with her manager’s advice, thought she might get fired, and she documented it in an email to herself.

She never ended up losing her job.

10 years after, she was called as a witness to testify in a case unrelated to her employment.

Counsel asked her about certain issues she mentioned in the decade old email, but she didn’t bring the same issue up.

The email came up during the discovery document review process, but a contract attorney marked the email as privileged and it wasn’t produced. At first.

But this case is an MDL, and the company tosses it in with other, unrelated, late-produced discovery and fails to mention it to opposing counsel, going against court order.

The attorneys find the email after Linda’s contradictory testimony. In open court, accusations of perjury fly across the room, the judge wonders out loud about contacting the witness, who’s now outside subpoena power, to advise her that she may need her own lawyer to handle the perjury charges… or would that risk witness tampering as the defense counsel wonders?

The company hires biglaw discovery experts.

When the judge instructs counsel to draft a jury instruction regarding the email and strikes part of the witness’s testimony, the company “coincidentally” settles the next day for $50 million dollars.

A hearing ensues where special masters decide about sanctions relating to the discovery misconduct allegations in a separate hearing. The company ends up paying $150,000 on attorneys fees, $10,000 relating explicitly to the failure to turn over that email.

“Because a contract attorney marked it off as privileged.”

“It was a mistake.”

It was a $10,000 mistake that led to an expensive investigation.

This is a true story. I didn’t include Linda’s last name, but she was a real witness I observed during the opioid trials as I watched this transpire in open court in 2021. This all stemmed from an email she sent to herself to an email address she used with her husband 10 years before this trial.

In case you’re wondering why I’m so interested in discovery reform and am working on an idea related to it.

Delete your drafts.

They’re discoverable.

At least more discoverable than people think…

Judging by the confidential nature of the drafts I see every day, a lot of people don’t realize that the same privilege rules apply to those as to regular communications; it might not matter if you didn’t press send (I won’t apply any rule so broadly as to say it applies to all drafts), especially if:

it seems the intent was to send it; or

the intent can’t be determined easily; or

the many other situations people don’t tend to think of at the time, etc etc etc…

To have been a fly on the wall during OJ Simpson’s privileged conversations with his #lawyers

To know what he actually disclosed to that law firm…

Since he passed away today some people may think that his lawyers (the ones who are still living) can reveal that information.

HOWEVER, the attorney-client privilege survives the death of a client, so his attorneys still may not reveal any of the privileged communications they had with him.

Even if they really want to and people are really curious.