Preserving The Attorney-Client Privilege and Work Product Protection

Preserving The Attorney-Client Privilege and Work Product Protection June K. Ghezzi Jones Day Mark P. Rotatori Jones Day September 2006 Jones Day publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form, which can be found on our web site at www.jonesday.com. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the law firm with which they are associated.

PROPOSED FEDERAL RULE OF EVIDENCE 502 June K. Ghezzi Jones Day

COST CONCERNS Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D. Md. 2005) E-discovery may encompass millions of documents, and to insist upon record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation. 2006 Jones Day. All rights reserved. 8

WHAT THE RULE DOES DO Assuming a protected communication or material, it establishes standards for how WAIVER will be applied in federal courts: Through Voluntary Disclosure Through Inadvertent Disclosure Through Disclosure to the Government that Cannot Fairly be Termed Voluntary 2006 Jones Day. All rights reserved. 10

RULE 502 a. Scope of Waiver b. Inadvertent Disclosure c. Selective Waiver d. Non-Waiver Agreements court order endorsed e. Non-Waiver Agreements not court endorsed 2006 Jones Day. All rights reserved. 11

SUBJECT MATTER WAIVER UNDER RULE 502 Section (a) Scope of waiver (i.e., subject matter waiver) In federal proceedings, the waiver by disclosure of an attorneyclient privilege or work product protection extends to an undisclosed communication or information concerning the same subject matter only if that undisclosed communication or information ought in fairness to be considered with the disclosed communication or information. Codifies the existing majority rule in federal courts by adopting Limited Waiver over All or Nothing Approach 2006 Jones Day. All rights reserved. 12

INADVERTENT DISCLOSURE UNDER RULE 502 Section (b) Inadvertent disclosure In federal or state case or administrative proceeding, inadvertent disclosure should not constitute a waiver so long as the privilege holder took 1. reasonable precautions to prevent disclosure, and 2. reasonably prompt measures to rectify the error when 3. the holder knew or should have known about the inadvertent disclosure. 2006 Jones Day. All rights reserved. 13

SELECTIVE WAIVER UNDER RULE 502 Section (c) Selective Waiver (i.e., disclosures to the federal government) In a federal or state proceeding, when a party decides to disclose privileged or protected information to a federal public office or agency, that disclosure does not waive the privilege or protection with respect to non-governmental persons or entities. The effect of disclosure to a state or local government agency, with respect to non-governmental persons or entities, is governed by applicable state law. 2006 Jones Day. All rights reserved. 14

2003 U. S. Dept. of Justice THOMPSON MEMORANDUM In determining whether to prosecute: the prosecutor may consider the corporation s willingness to identify the culprits within the corporation, including senior executives... to disclose the complete results of its internal investigation; and to waive the attorney-client and work product protection as to the government. 2006 Jones Day. All rights reserved. 16

CURRENT CONDITIONS ENCOURAGE COOPERATION AND WAIVER 2004 Amendments to Chapter 8 of the Sentencing Guidelines provide commentary authorizing and encouraging the government to require entities to waive privilege to show cooperation and thereby qualify for a more lenient sentence. April 5, 2006, the Sentencing Commission voted unanimously to reverse this privilege waiver concept from the amendments. Takes effective, unless Congress acts, on November 1, 2006. However, the McCallum Memorandum from 2005, updating Thomson s, regarding written waiver review process for U.S. Attorney district offices. No minimum standards provided, and no national uniformity required. 2006 Jones Day. All rights reserved. 17

ADVISORY COMMITTEE NOTES: Furthers the important policy of cooperation with government agencies, and maximizes the effectiveness and efficiency of government investigations. 2006 Jones Day. All rights reserved. 19

PUBLIC INTEREST IN TIME-HONORED CONFIDENTIAL RELATIONSHIPS Erosion of attorney-client privilege leading to less constructive corporate compliance with law Threatening confidentiality of communications between corporate employees and corporate lawyers 2006 Jones Day. All rights reserved. 21

WHY CORPORATIONS ARE DIFFERENT No 5 th Amendment Right State-created creatures accorded significant benefits Corporate attorney-client privilege is not as longstanding 2006 Jones Day. All rights reserved. 22

RULE 502 (d) (d) Controlling Effect of Court Orders A federal court order that the attorney-client privilege or work product protection is not waived as a result of disclosure in connection with the [pending case] governs all persons or entities in all state or federal proceedings, whether or not they were parties [to the pending case], if the order incorporates the agreement of the parties before the court. 2006 Jones Day. All rights reserved. 23

RULE 502 (e) (e) Controlling Effect of Party Agreements An agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection is binding on the parties to the agreement, but not on the other parties unless the agreement is incorporated into a court order. 2006 Jones Day. All rights reserved. 24

THE JOINT DEFENSE DOCTRINE Mark P. Rotatori Jones Day

What is the Joint Defense Doctrine? An extension of the attorney-client privilege (and work product doctrine) that protects communications between an individual and an attorney for another, when those communications involve an on-going and joint effort to create a common defense strategy. 2006 Jones Day. All rights reserved. 26

Purposes of a Joint Defense Agreement ( JDA ) Better access to information Improved coordination of defense strategy Ability to trade and obtain valuable information without waiving the privilege Reduction in defense costs by spreading out resources 2006 Jones Day. All rights reserved. 27

Potential Pitfalls of a JDA Defectors of JDAs who settle (or enter into a plea with the Government) might reveal privileged information. Counsel s right to cross-examine a defector freely might be limited. Counsel risks a motion to disqualify for a conflict of interest created by another counsel in the joint defense group. The Government likely will find that a JDA indicates a lack of cooperation (in criminal cases). 2006 Jones Day. All rights reserved. 28

Should the JDA Be Written? Advantages: The communications shared (including work product) are more likely to be protected by a court Provides protection against the disclosure of privileged information by defectors Can clarify roles of the attorneys and provide for sharing of costs 2006 Jones Day. All rights reserved. 29

Should the JDA Be Written? Disadvantages: In a corporate/white collar criminal case, the Government may view the JDA as a sign of uncooperativeness. In a civil case, the written JDA might not be protected from production. 2006 Jones Day. All rights reserved. 30

If Written, the JDA Should... Explain the nature of the relationship among the parties; namely that they are members of a JDA and that there is no implied attorney-client relationship between counsel for one member and any other members. 2006 Jones Day. All rights reserved. 32

If Written, the JDA Should... State that if one member of the JDA decides to cooperate with the government or settle with the plaintiff, he or she waives any conflict of interest that may arise if the attorney for another member of the JDA examines the defector as a witness. 2006 Jones Day. All rights reserved. 33

If Written, the JDA Should... Include a provision that requires each party to promptly disclose overtures (settlement or plea) from the plaintiff or Government, which might result in disclosure of privileged information. 2006 Jones Day. All rights reserved. 35