Lawyers and Privilege

Factual Questions
41

There are two separate questions there. If - in the anticipation of litigation or a request for legal advice - a lawyer meets with representatives of a corporate client, their communications may be privileged.

If two employees of a corporation talk to one another and a lawyer happens to be present, their communications will not be privileged. The lawyer is probably not required to disclose any of those communications, but it is likely that the other participants are free to do so, leaving aside any fiduciary responsibilities they may have to the corporation and its shareholders.

42

It’s not a question of whether they’re “free to do so”. They don’t want to. The question is whether the conversations - or emails - can be forcibly disclosed under subpoena.

And one of my questions above was: assuming that such emails are not privileged, how does anyone know that without looking at the emails themselves. Suppose the company gets sued and required under subpoena to turn over all relevant emails, how do to the plaintiff’s lawyers know that these emails are not really legal discussions?

43

I’ll simplify. As a general rule, subject to many, many exceptions, no privileges attaches when somebody in the room is not a lawyer (or an employee of the lawyer). It depends a bit on who the two people are in the case of a corporation, of course.

When you refuse to produce documents on privilege grounds, you (as the lawyer) normally have to generate something called a privilege log. It identifies each document very generally. For example, in Florida the rule (which is broadly similar to the federal rule and those of other states) is:

[QUOTE=Florida Rules of Civil Procedure]
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
[/QUOTE]

Usually, you identify the date, author, and general subject matter of the document. If it’s an e-mail, you’d also identify the recipient. However, sometimes privilege is “category specific,” rather than “document specific.” In other words, the application of the privilege - or at least the basis of the claimed privilege - is obvious so you don’t have to identify the documents.

For example, you wouldn’t have to specifically identify your medical records to assert a privilege in a breach-of-contract case unrelated to injuries or medical care. It is clear that the doctor-patient privilege applies to your medical records in such a case regardless of what the records say or when they were generated.

Now, if you assert a document-specific privilege and the other side doesn’t agree that the document is privileged, they ask the court to compel you to produce the document(s). Normally the judge will perform in camera (that is, alone in chambers and off the record) review of contested documents and decide whether they should be produced or not.

ETA: A company being sued can’t be subpoenaed. Subpoenas are issued on third parties. Discovery requests addressed to the parties themselves are called “requests for production,” “requests for inspection,” or other similar terms.

44

This is more a matter of discovery, which is a whole different (and complex) issue. But the gist is that you can’t get away with preventing emails from being disclosed by simply including certain magic words (“privileged and confidential”) into the body of the messages. The opposing party will ask the court to do an in camera review of the emails in question. Usually the court will take some random sample of the emails in question to determine if they are in fact confidential.

ETA: RNATB beat me to it.

45

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