Annual Advanced ALI-ABA Course of Study Civil Practice and Litigation Techniques in Federal and State Courts

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1 Annual Advanced ALI-ABA Course of Study Civil Practice and Litigation Techniques in Federal and State Courts January 19-21, 2005 San Juan, Puerto Rico March 2-4, 2005 Maui, Hawaii An Update to A Comprehensive Survey of the Attorney-Client Privilege and Work Product doctrine by the Honorable Alvin K. Hellerstein U.S.D.J., S.D.N.Y. By Alan M. Klinger James L. Bernard Michael L. fox Lauren E. Abolsky Stroock & Stroock & Lavan LLP New York, New York 2005 Alan M. Klinger and James L. Bernard. All rights reserved.

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3 TABLE OF CONTENTS Page No. I. Work Product Protection - Anticipation of Litigation...1 II. Attorney-Client Privilege...8 III. Self-Critical Analysis Privilege...10 IV. Corporate Investigations...14 V. Waiver - Disclosure to Third Parties...15 VI. VII. Selective Disclosure, Scope of Waiver and Protection of Facts...21 At Issue Waiver Doctrine...23 VIII. Corporate Waiver: Who Holds the Privilege?...32 IX. Inadvertent Disclosure...34 X. The Filegate Scandal: Litigating Privilege Issues...38 XI. XII. XIII. World Trade Center Litigation...40 Disclosure to Testifying Experts...42 Disclosure to Governmental Agencies...43 XIV. Miscellaneous Decisions...45 i

4 I. Work Product Protection - Anticipation of Litigation In United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998), the Second Circuit issued an important decision concerning the work product doctrine, the ramifications of which are still being sorted out by the District Courts. See generally Charles M. Yablon & Steven S. Sparling, United States v. Adlman: Protection for Corporate Work Product?, 64 Brook. L. Rev. 627 (1998). Adlman involved a document generated in connection with a proposed merger between two companies. Because of the merger, one company anticipated suffering an enormous loss, but intended to off-set that loss by claiming a tax refund. The company expected the IRS to challenge the refund, and hired Arthur Andersen & Co. to evaluate the implications of the proposed restructuring. That evaluation resulted in the creation of the memorandum at issue, which contained a detailed analysis of IRS regulations, relevant rulings and possible legal strategies to address the IRS s likely concerns. The memorandum was, in many respects, a mixed document. It was generated both for a business purpose to assist in evaluating the desirability of the merger and for a litigation purpose to address what was assumed would be the inevitable commencement of litigation by the IRS. As the Second Circuit explained, the memorandum was intended to inform a business decision which turn[ed] on the party s assessment of the likely outcome of litigation expected as a result of the transaction. Id. at Resolution of whether this document was entitled to work product protection turned on Fed. R. Civ. P. 26(b)(3) s requirement that a document be prepared in anticipation of litigation. Addressing the different interpretations given to that phrase, the Second Circuit rejected the line of authority, adopted by the Fifth Circuit, see United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982), cert. denied, 466 U.S. 944 (1984), that requires a showing that the document be primarily to assist in litigation. Adlman, 134 F.3d at According to the Court, there is no textual basis for a requirement that a document be primarily to assist in litigation; it is enough that the document be in anticipation of litigation, regardless of its primary purpose. Under another line of authority, which the Second Circuit specifically adopted, as had the Third Circuit in In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir. 1979), it is sufficient if the document was created because of litigation, even if it also has another purpose. But this standard has its limits, too. The Court explained that documents prepared in the ordinary course of business which later turn out to have value in the context of litigation will not be entitled to protection. As to the Arthur Andersen document, the Court held that while it had a business purpose, it was also created because of litigation with the IRS, albeit anticipated and not currently pending litigation, and was thus entitled to protection. See also In re Sealed Case, 146 F.3d 881, & 888 (D.C. Cir. 1998) (holding that work product protection could attach even where a specific claim had not been made and that [t]he work-product privilege protects documents prepared in anticipation of litigation regardless of whether the anticipated litigation ever occurs ). The Adlman formulation has been accepted by the First Circuit in State of Maine v. United States Department of the Interior, 298 F.3d 60 (1st Cir. 2002). There, the State had brought suit under the Freedom of Information Act against federal agencies, seeking the disclosure of documents relating to listing of certain fish populations as protected under the Endangered Species Act. After clarifying that privileges apply in a FOIA context, the Court 1

5 rejected the primary motivation test. The Court embraced the because of prospect of litigation test as consistent with the purposes of the work product doctrine, finding no reason to preclude a dual purpose document from coming within its protection. (The Court did, however, caution that sufficient information about the document(s) in question must be produced to allow for a determination that the document was not created in the ordinary course of business.) Moreover, in In re Grand Jury Subpoena, 350 F.3d 1010 (see note infra), decided in November 2003, the Ninth Circuit adopted the because of anticipated litigation standard, abrogating a body of case law that had recently developed among the District Courts in that Circuit. See, e.g., Jumpsport, Inc. v. Jumpking, Inc., 213 F.R.D. 329 (N.D. Cal. 2003) (rejecting because of litigation standard). In this decision, the Ninth Circuit held that documents created in anticipation of both litigation and EPA review were protected by the work product doctrine. Now that the Ninth Circuit and the First Circuit have adopted the approach articulated by the Second Circuit and the Third Circuit, the because of litigation standard is accepted by the majority of federal circuit courts. See Logan v. Commercial Union Ins. Co., 96 F.3d 971 (7th Cir. 1996); PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813 (8th Cir. 2002); E.E.O.C. v. Lutheran Social Servs., 186 F.3d 959 (D.C. Cir. 1999). But post-adlman decisions have reached different results under different fact patterns on the question of whether work product protection applies, and a review of these cases demonstrates the types of facts that courts focus on in making these types of decisions. A. Work Product Protection Upheld (1) In re Grand Jury Subpoena, 350 F.3d 1010 (9th Cir. 2003), amended and superceded on add l grounds by 357 F.3d 900 (9th Cir. 2004): After learning that the federal government was investigating it for alleged criminal wrongdoing with regards to waste management laws, a company hired an attorney, who in turn hired a consultant. The consultant acted as an environmental consultant on the clean up of a waste site, but also assisted the attorney in preparing the company s legal defense. Under the because of litigation standard, the Court held the consultant s work product was protected from disclosure. (2) SR Int l Bus. Ins. Co. Ltd. v. World Trade Ctr. Prop. LLC, No. 01 Civ (JSM), 2002 WL (S.D.N.Y. Aug. 29, 2002): In context of insureds suing insurers to recover for losses incurred when two buildings were destroyed by terrorist activity, the Court (in one of a series of decisions on privilege issues) relied upon Adlman in finding that dual purpose did not negate document s status as protected work product. (The Court did qualify its analysis by stating that the work product privilege does not protect underlying facts from discovery merely because they have been incorporated into a privileged document.) But see United States v. Stewart, 287 F.Supp.2d 461, 467 n.2 (S.D.N.Y. 2003) (discussed infra) (citing, inter alia, SR Int l, quoting its holding, and then stating: [n]either of these cases, however, dealt with an individual facing multiple civil and criminal investigations who was compiling facts on her own behalf ). 2