Privilege Refresher From Illinois Federal Court
In almost any litigation, questions will surface about whether certain communications and documents are privileged and protected from discovery. One of the key roles that in-house counsel can cover is educating the company about the details of privilege law. To this end, it is helpful for in-house counsel to consistently stay abreast of developments in what types of communications courts are finding to be privileged vs. non-privileged. Last week, the U.S. District Court for the Northern District of Illinois issued a lengthy opinion regarding privilege issues in overruling most claims of privilege made by one of the litigant companies. As a useful refresher of some of the guiding principles in the world of privilege calls, some key excerpts of the opinion, some of which are quotations from previous cases, are provided below (let us know if you want a full copy of the opinion):
-“It cannot be too strongly emphasized that the lawyer-client relationship, itself, ‘does not create a cloak of protection which is draped around all occurrences and conversations which have any bearing, direct or indirect, upon the relationship of the attorney with his client.’ Thus, communicating with, mentioning, or copying a lawyer on an otherwise non-privileged communication, will not transform the non-privileged communication or attachment into a privileged one, even if the otherwise non-privileged communication was at the behest of the lawyer.”
-“While a client cannot be compelled to answer the question, ‘what did you say to your attorney,’ he may not refuse to disclose any relevant non-privileged document or fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney or attached the document to an email or letter to the attorney. … As the Fifth Circuit more succinctly put it, if a document is discoverable in the client’s hands, it does not become less discoverable when passed to an attorney’s hands.”
-“Also, the fact that documents are labeled ‘Confidential’ or ‘Protected by Attorney-Client Privilege’ — as nearly all the emails in this cache are — is all but meaningless, contrary to [the company’s] thinking.”
-“The mere fact that a person is or has seeked legal advice is not privileged.”
-“While in-house counsel were cc’d, [the company] seems to routinely do that with every communication. It is apparent from its showing before the Special Master and arguments on appeal that [the company] is operating under the misapprehension that documents become privileged magically when touched by an attorney.”
