Attorney Work-Product in the United States:

Attorney Work-Product in the United States: What Swiss lawyers need to know Jim Nickovich, Counsel (U.S. Attorney at Law), VISCHER AG BSW Online Marketing und Recht 1

U.S. doctrines matter to Swiss Counsel Counseling American clients Advising on matters that could end up venued in an American court Comity dictating courts to apply the privilege law of the jurisdiction where the privilege originated < Titel der Veranstaltung > 2

Hickman interplay with U.S. discovery Hickman as genesis of attorney work-product in the United States Fed.R.Civ.Proc. 26(b)(3) and Fed.R.Crim.P. 16(b)(2) limit pretrial discovery of materials prepared in anticipation of litigation Neither go as far as Hickman, so Hickman is standard Hickman v. Taylor, 329 U.S. 495, at 510 (1947) ( not even the most liberal discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney ) But Id. at 511 ( Where relevant and non-privileged facts remain hidden in an attorney s file and where production of those facts is essential to the preparation of a case, discovery may be had ) < Titel der Veranstaltung > 3

Overview of work-product protection An attorney cannot provide full and adequate representation unless certain matters are kept beyond the knowledge of adversaries There is always a balance that must be struck between a client s right to be zealously and strategically represented by counsel, and a counterparty s right to discovery Whether work-product protection will be afforded depends on the type of matter being sought, and the need for it < Titel der Veranstaltung > 4

Three essential findings from Hickman Main Hickman v. Taylor propositions: 1. Material collected by counsel in the course of preparation for possible litigation is protected from disclosure in discovery; 2. that protection is qualified, in that the adversary may obtain discovery on showing sufficient need for the material; 3. the attorney s thinking theories, analysis, mental impressions, beliefes, etc. is at the heart of the adversary system, and privacy is essential for the attorney s thinking; thus, the protection is greatest, if not absolute, for materials that would reveal that part of the work-product < Titel der Veranstaltung > 5

Opinion work-product Rule 26(b)(3) states that a court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney when discovery is ordered, viz., opinion work-product as opposed to ordinary work-product Work-product containing an attorney s opinions and theories enjoys nearly absolute protection and may be discovered only in rare and extraordinary circumstances. In re Murphy, 560 F.2d 326, 336 (8th Cir. 1977) Supreme Court has declined to rule on whether opinion workproduct protection is absolute. Upjohn Co. v. United States, 449 U.S. 383, 400-02 (1981) < Titel der Veranstaltung > 6

Work-product protection may be afforded in many non-civil discovery contexts Criminal: discovery by government in grand jury proceedings subject to the work-product protection. In re Grand Jury Subpoena, 599 F.2d 504, 509 (2d Cir. 1979) Non-criminal investigations. Upjohn Co. V. United States, 449 U.S. 383 (1981) Extends to trial stage of litigation. United States vs. Nobles, 422 U.S. 225, 239 (1975) Arbitration. Samuels v. Mitchell, 155 F.R.D. 195 (N.D. Cal. 1994) < Titel der Veranstaltung > 7

Comparing work-product with the attorneyclient privilege Scope and reach of the work-product protection is broader than that of attorney-client privilege. In re Grand Jury Investigation (Sun Co.), 599 F.2d 1224, 1232 (3d cir. 1979) Recall elements of attorney-client privilege? But narrower than attorney-client privilege in that workproduct limited to communications made in anticipation of litigation < Titel der Veranstaltung > 8

Limitations to work-product protection Work-product protection cannot be asserted to prevent disclosure of underlying facts, which are discoverable in any adversary proceeding. ECDC Envtl. LC v. New York Marine & Gen Ins. Co., 1998 U.S. Dist. LEXIS 8808, at *44 (S.D.N.Y. June 4, 1998) Clients, including former clients, generally have the right to obtain the work-product. Reiff v. Much Shelist Freed Denenberg, Ament & Rubenstein, P.C., 2003 U.S. Dist. LEXIS 18888 (N.D. Ill. Oct. 23, 2003) < Titel der Veranstaltung > 9

Elements of attorney work-product Three basic elements of attorney work-product: documents and tangible things otherwise discoverable; prepared in anticipation of litigation or for trial; by or for another party or that party s representative Certain qualifications, exceptions to, and potential waiver of attorney work-product apply < Titel der Veranstaltung > 10

Documents and other tangible things The attorney work-product only applies to documents and other tangible things otherwise discoverable Regardless of specific form of the work-product, critical question is the extent to which it discloses attorney thought processes. The more it does so, the more protection it will be given. Harper & Row Publishers Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970) ( memoranda of witness interviews prepared by or under the supervision of attorney are protected; of course, the less the lawyer s mental processes are invovled, the less will be the burden to show good cause for disclosure ) < Titel der Veranstaltung > 11

Information is discoverable Work-product protection does not shield information from disclosure, it only protects a party against having to turn over particular documents containing the information Interrogatories can be addressed to obtain the sought-after information, witnesses depositions can be taken, etc. Brock v. Frank V. Panzarino, Inc., 109 F.R.D. 157, 160 (E.D.N.Y. 1986) < Titel der Veranstaltung > 12

Mere existence of work-product is not protected United States v. Exxon Corp., 87 F.R.D. 624, 638 (D.D.C. 1980) (party cannot invoke work-product protection to shield itself from answering whether protected documents even existed) Butler v. United States, 226 F.Supp. 341, 343 (W.D. Mo. 1964) (discovering party entitled to know the existence, description, nature, custody, condition and location of relevant documents) < Titel der Veranstaltung > 13

Anticipation of litigation Prepared in anticipation of litigation or for trial Jordan v. United States Dep t of Justice, 591 F.2d 753, 775 (D.C. Cir. 1978) ( work-product does not extend to every written document generated by an attorney ) There must be a threat of litigation ( causation requirement) and document must be created because of that threat ( reasonableness requirement viz. the threat must be real and imminent ). Marten v. Yellow Freight Sys., 1998 U.S. dist. LEXIS 268, 1998 WL 13244, at *10 (D. Kan. Jan. 7, 1998) < Titel der Veranstaltung > 14

When can litigation reasonably be anticipated? Any time after initiation of the proceeding or such earlier time as the party who normally would initiate the proceeding had tentatively formulated a claim, demand, or charge. United States v. AT&T, Civ. No. 74-1698 (D.D.C. Feb. 28, 1979) No lawsuit need already have been filed for anticipation of litigation requirement to be met. Upjohn Co. V. United States, 449 U.S. 383, 386-7, 397-402 (1981) Guzzino v. Felterman, 174 F.R.D. 59, 63 (W.D. La. 1997) (Once an investigation by a federal agency has commenced, a corporation may reasonably be said to anticipate litigation) < Titel der Veranstaltung > 15

Indicators of anticipation A party s retention of a lawyer. EEOC v. Lutheran Soc. Servs., 186 Fed.3d 959, 968 (D.C. Cir. 1999) Party s receipt of correspondence from other party s lawyer making demand. McNulty v. Bally s Park Place, Inc., 120 F.R.D. 27, 29 (E.D. Pa. 1988) Notice from government that it believes a party is not in compliance with legal obligation. Bernardo v. Commissioner, 104 T.C. 677, 688 (1995) Issuance of federal grand jury subpoena Commencement of litigation in foreign country < Titel der Veranstaltung > 16

Internal audits not in anticipation of litigation Difficult to get courts to recognize an internal audit as work done in anticipation of litigation. Electronic Data Sys. Corp. V. Steingraber, 2003 U.S. Dist. LEXIS 11818 (E.D. Tex. July 9, 2003); Seibu Corp. v. KPMG LLP, 2002 U.S. Dist. LEXIS 906, at *12 (N.D. Tex. Jan. 22, 2002) Instead, attempt to get protection via attorney-client privilege. Remember, Upjohn Co. V. United States, 449 U.S. 383 (1981) < Titel der Veranstaltung > 17

What else is not in anticipation of litigation Documents prepared for other purposes do not become protected as work-product by being examined in anticipation of litigation. In re Grand Jury Subpoenas dated March 19 & Aug. 2, 2002, U.S. Dist. LEXIS 17079 (S.D.N.Y. Sept. 12, 2002) When attorneys act as legal advisors outside the litigation context, the work-product protection from discovery generally does not apply. F.H. Krear & Co. V. 19 Named Trustees, 90 F.R.D. 102, 103-4 (S.D.N.Y. 1981) < Titel der Veranstaltung > 18

Assessments of ongoing litigation Assessments of ongoing litigation will almost always be afforded attorney work-product protection. Carey-Canada, Inc. V. California Union Ins. Co., 118 F.R.D. 242 (D.D.C. 1986) < Titel der Veranstaltung > 19

Who can prepare the attorney work-product Prepared by or for another party or that party s representative Element sweeps broadly to envisage not just the lawyer, but also those who assist the lawyer as capable of creating attorney work-product protected information Martin v. Bally s Park Place Hotel & Casino, 983 F.2d 1252, 1260-62 (3d. Cir. 1993) (work-product doctrine applied to report of environmental consultant) < Titel der Veranstaltung > 20

Who continued Westhemeceo Ltd. v. New Hamshire Ins. Co., 82 F.R.D. 702, 708 (S.D.N.Y. 1979) (work-product applied to documents prepared by defendants investigator) Sprague v. Director, Office of Workers Compensation Programs, 688 F.2d 862, 698-670 (1st Cir. 1982) (letter from a physican to lawyer in response to the lawyer s request for information to prepare for litigation held within work-product) But attorney must direct the effort. Sterling Drug, Inc. V. Harris, 488 F. Supp. 1019, 1026 (S.D.N.Y. 1980) (communications between federal agency staff members and medical personnel not work-product because not prepared at request of attorney) < Titel der Veranstaltung > 21

Framing engagement for work-product protection Steps that can be taken to increase likelihood that workproduct protection will be granted: Engagement letter between client and attorney or other agent that will conduct the investigation Identify in writing the nature of the litigation expected, feared, or anticipated with as much specificity as possible State that the investigation is being conducted, and the reports of the studies done, to assist counsel in preparing for that foreseeable litigation < Titel der Veranstaltung > 22

Qualifications, exceptions, and waiver of workproduct Work-product is not absolute, but a privilege Work-product material may be ordered produced if the party seeking discovery has demonstrated a substantial need for the material and a hardship in obtaining the material by alternative, less intrusive means < Titel der Veranstaltung > 23

Substantial need, and hardship in obtaining the material by alternative means Substantial need usually occurs when witness is unavailable (deceased, faulty memories, cannot be readily found) Courts generally require an explanation of why or how alternative sources for obtaining the equivalent information do not exist before the work-product protection will be lifted. In re Grand Jury Subpoena Dated Nov. 8, 1979, 622 F.2d 933, 935 (6th Cir. 1980); United States v. Chapman City Corp., 72 F.R.D. 640, 643-4 (S.D. Ga. 1976)(equivalent of witness s statement can be obtained by interview or deposition) Usually turns on an examination of cost < Titel der Veranstaltung > 24

Exception to work-product protection for material shown to expert A party is generally allowed to see materials reviewed by opposing party s expert, so if that expert reviews workproduct protected material, that material generally must be turned over < Titel der Veranstaltung > 25

Waiver of the work-product doctrine Work-product protection must be separately asserted It is not enough only to assert the attorney-client privilege (have to assert both) Waiver of attorney-client privilege for a communication will not necessarily waive its work-product protection While any disclosure may waive the attorney-client privilege, only disclosures inconsistent with the adversary system waives work-product protection. United States v. AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980) < Titel der Veranstaltung > 26

Scope of waiver for work-product Unlike attorney-client privilege, scope of waiver of workproduct does not envisage waiver of all work-product pertaining to same subject. FTC v. U.S. Grant Resources, LLC, 2004 U.S. Dist. LEXIS 11769, at *33 (E.D. La. June 25, 2004) Can waive only specific pieces of work-product Indeed, selective and strategic disclosure is consistent with the work-product doctrine (viz., adversary process) < Titel der Veranstaltung > 27

Work-product and attorney-client privilege implications for document retention policies Clients, and their attorney, should always consider how their document retention policies (and use and distribution of documents) impact integral privileges, viz., attorney-client privilege and attorney work-product Unfortunately, due to cost and an absence of urgency, due consideration is often not given until it is too late Proactive measures are good medecine, and particular considerations need to be given in our digital age < Titel der Veranstaltung > 28

Privileges must be raised with specicifity To sustain a privilege (attorney-client or work-product), it is essential that it is raised with specificity and document by document with sufficient identification provided in a privilege log. CSX Transp., Inc. V. Admiral Ins. Co., 1995 U.S. Distr. LEXIS 22359, 1995 WL 855421, at *3 (M.D. Fla. July 20, 1995) Potential need to eventually produce a privilege log should be kept in mind with regard to document retention policies Will need to be a cost-benefit ( practical ) analysis/approach < Titel der Veranstaltung > 29

Tips for filing documents Court, in Hill v. McHenry, 2002 U.S. Dist. LEXIS 6637, at *6, 8 (D. Kann. Apr. 10, 2002), requested following information in privilege log: 1. Description of document (e.g. correspondence, memo) 2. Date prepared 3. Date of document (if different from date prepared) 4. Identity of person(s) who prepared the document 5. Identify of persons for whom document was prepared 6. Purporse of preparing document 7. Number of pages of document 8. Basis of withholding discovery of document (e.g. specific privilege or protection being asserted) 9. Other pertinent information necessary to establish elements of privilege < Titel der Veranstaltung > 30

Sharing documents with party with common interest Parties who share only a business interest may share workproduct protected documents without losing the protection. Sheets v. Insurance Co. Of N. Am., 2005 U.S. Dist. LEXIS 27060 (W.D. Va. Nov. 8, 2005); In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 221 n.6 (S.D.N.Y. July 9, 2004) Compare, attorney-client privilege where common interest must have a legal component < Titel der Veranstaltung > 31

Sharing documents with third-parties Disclosure of work-product protected documents to nonadversary third-parties will not necessarily vitiate the workproduct protection. United States v. Johnson, 378 F.Supp. 2d 1041 (N.D. Iowa 2005); United States v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003)(disclosure by Martha Stewart of work-product protected material to daughter did not waive work-product protection) Compare, disclosure to third-party much more likely to waive attorney-client privilege < Titel der Veranstaltung > 32

Sharing documents publicly Public disclosure (e.g. Internet site) of documents where such disclosure has a commercial purpose necessarily increases the risk that an adversary will become privy to the work-product and therefore waives the protection. Kintera, Inc. V. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003) Obviously, such public disclosure waives attorney-client privilege as well < Titel der Veranstaltung > 33

Disclosure of work-product to independent auditor Disclosure of work-product to an indepedent auditor of publicly held company is considered to waive the work-product protection. United States v. Arthur Young & Co., 465 U.S. 805, 817-18 (1984) Likely to waive attorney-client privilege as well, as independent auditor unlikely to fall within Kovel doctrine Recall Kovel doctrine considerations??? < Titel der Veranstaltung > 34

Attorney cannot withhold work-product from client Since the work-product is prepared for the client s benefit, and the client pays for the work-product, the attorney may not withhold the work-product from the client. Gottlieb v. Wiles, 143 F.R.D. 241 (D. Colo. 1992) (Attorney cannot withhold work-product materials from corporation s board of directors); Roberts v. Heim, 123 F.R.D. 614, 631 (N.D. Cal. 1988) (limited partners may have access to work-product generated by law firm representing general partner) By its nature, attorney-client privileged information is shared with client < Titel der Veranstaltung > 35

Further detail This is not an exhaustive examination of these topics For a deeper dive into any element, contact: VISCHER Counsel Jim Nickovich jnickovich@vischer.com +41 79 386 89 05

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