Memorandum Prepared By Company President On Afternoon Of Deadly Incident Deemed Privileged

In litigation arising out of a worker’s death in a drilling rig incident, a party sought to withhold as privileged a memorandum prepared on the afternoon of the incident by the company’s president based on interviews and notes he conducted at the site of the incident.  He addressed the memorandum to the company’s current counsel and to its former counsel.  The other party to the litigation brought a motion to compel on grounds that the memorandum was not privileged and should be disclosed in response to the discovery request for “All documents which evidence, arise out of, or relate to the investigation of the accident.”  That party argued that the memorandum was not made to seek legal advice, but rather was a business document made merely to convey factual information.  In support of the argument, the party pointed to the president’s deposition in which he stated that he did not prepare the memorandum at anyone’s request (he later corrected his testimony on the deposition errata sheet to indicate that he gathered the information on his own and at his counsel’s request).

The U.S. District Court for the Western District of Oklahoma concluded that the document was attorney-client privileged, explaining there is no requirement under Oklahoma’s privilege law that an attorney must request a particular communication from a client to establish the communication’s privilege.  The court reasoned that the president prepared the memorandum for the purpose of obtaining legal advice:  “Even if [the president] prepared the memorandum without a request from [counsel], it is still a summary of the facts of a deadly accident on a drilling site that is marked ‘Attorney-Client Privilege’ and sent from the president of a company to that company’s attorney.”