A Case Study on Privilege Logs

Privilege logs require more than merely saying a prospectively privileged document is an “attorney-client communication.” This requires litigants to conduct privilege review with far more analysis than simply tagging discovery “Attorney Client Privilege” or “Work Product Conduct.” The case of United States v. State & La. Dep’t of Health & Hospitals highlights the importance of effective discovery review in creating privilege logs.

The Defendant produced a 2,941 PAGE privilege log that claimed the discovery was protected by the attorney-client privilege and/or the work product doctrine. United States v. Louisiana, 2015 U.S. Dist. LEXIS 100238, *3 (M.D. La. July 31, 2015).

Following in the wake of a nearly 3,000 page privilege log came a motion by the Plaintiff to compel a “Proper Privilege Log,” which was answered with a new privilege log of only 2,302 pages, plus a new 259 page privilege log. US v. Louisiana, *3-4.

Before discussing any privilege review, it is important to define the privileges in a case. As the Court explained, “[t]he attorney client privilege generally protects confidential communications made by a client to his lawyer for the purpose of obtaining legal advice. The work product doctrine protects materials prepared in anticipation of litigation that reveal the “mental impressions, conclusions, opinions, or legal theories of an attorney.” Id, at *14, citing Hodges, Grant & Kaufmann v. United States Gov’t, 768 F.2d 719, 720-21 (5th Cir. 1985) and Conoco Inc. v. Boh Bros. Construction Co., 191 F.R.D. 107, 118 (W.D. La. 1998).

The Plaintiff challenged the privilege log as being “insufficiently specific,” citing examples that privileged claims were simply “NVRA” or “NVRA Spreadsheet,” “Voter Registration Form,” “Final NVRA-2013,” “NVRA Documents.” The NVRA is an acronym that the Defendant had to follow. Needless to say, the Court agreed these claimed privileges were insufficient. Id., at *9-10.

Rule 26(b)(5) of the Federal Rules of Civil Procedure requires a privilege log to: “(i) expressly make the claim” of privilege; and “(ii) describe the nature” of the withheld information in a way that “will enable other parties to assess the claim.” The test for determining whether a privilege log is adequate is whether each entry states sufficient facts that establish each element of the privilege. This requires a specific description of why something is privileged, not a “conclusory invocations of the privilege or work-product rule.” Id., *6-7. Simply put, lawyers cannot say, “work product doctrine” like they are magic words to ward off opposing counsel.

The privilege log also lacked detail with the identities and roles of each sender and recipient. Id., *11. As such, there was no way for the Plaintiff to determine whether the claimed privileged information was actually covered by the privilege. Simply put, you need to state that a attorney-client communication is actually with an attorney either seeking or receiving legal advice.

The Court’s in-camera review of 40 claimed privileged documents showed serious problems with the privilege log, because there were communications not with any attorneys, emails regarding scheduling of training, reports with factual information, messages on compliance procedures, and apparently unrelated email. Id., at *13-14.

The Court held that many of the sampled documents did not fall under the attorney-client privilege or work-product doctrine, because the communications were internal communications. Many of the communications did not involve any lawyers, did not suggest an attorney-client relationship, and were not seeking legal advice. Moreover, the messages did not contain mental impressions of any lawyers. Id., at *15-18.

Bow Tie Thoughts

Privilege review cannot be haphazard. The litigation team should define the possible privileges in the case, whether there are spouses texting each other or someone emailing their pastor for spiritual advice. This further requires setting up the document review issue coding, so information is properly identified, tagged, and defined in a way to “enable other parties to assess the claim” under Federal Rule of Civil Procedure Rule 26(b)(5).

There are several ways to set up issue coding where a party can “(i) expressly make the claim” of privilege; and “(ii) describe the nature” that “will enable other parties to assess the claim” under Federal Rule of Civil Procedure Rule 26(b)(5). For example, let’s code for the attorney-client privilege. While state laws vary, the attorney client privilege requires at least an email between a client and lawyer, with the client seeking legal advice, or the lawyer providing legal advice. Coding could be set up as follows: Attorney Client Communications, with sub-issues, “Communication from Client to Lawyer Seeking Legal Advice, or “Communication from Lawyer to Client Providing Legal Advice.”

These tags would give detail to the privilege log, but still more is required. An additional free text note field would need to be added that could contain “sufficient facts that establish each element of the privilege.” A review team would need to decide at what stage of review they want reviewers adding such detail to the database. Some might find it is advantageous to have lawyers go into such detail while conducting their initial review, others might elect to have a privilege review team review everything tagged as privilege to provide sufficient facts in the notes to explain the claimed privilege.

The privilege log can be exported from most litigation support databases in Excel. The privilege log should include fields such as the Production Number (or Bates), Email From, Email To, Subject, Date Sent, Date Received, and any other relevant field, minus the body of the message. This information should provide both the requesting party and the Court enough information to evaluate whether the claimed privilege applies to the withheld discovery.

There are multiple ways to build a privilege log in a discovery review application. However, whichever method you select, think it through with the requirements for privilege logs and the privileges in mind.

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Let’s Ask Dad About the Attorney-Client Privilege

The Defendant, apparently well versed in social-media, requested “[a] complete copy of all communications” between specific individuals and the Plaintiff sent on “Facebook, in a blog, via e-mail, text message, voicemail, letter, facsimile, or anywhere else.”  The Defendant requested the ESI be produced in their “original, unaltered form.” Armstrong v. Shirvell, 2012 U.S. Dist. LEXIS 65697, 5 ( E.D. Mich. May 10, 2012).

The Plaintiff, a college student, objected to producing communications with his father, because his father was an attorney and counseled him on privacy expectations. The Plaintiff believed that his communications with his father to be privileged and protected from disclosure. Armstrong, at *6.

The Defendant countered that the father was a witness to the case who tried to gain access to the Defendant’s Facebook account “by posing under a fake name.” Armstrong, at *13.

The Court held there was an attorney-client relationship between the Plaintiff and his father. As such, the Plaintiff did not need to file a response to the Defendant’s discovery request.  Armstrong, at *14-15.

Bow Tie Law

Just as doctors have family members who call them with health related questions, the same thing happens to lawyers. The issue can become tricky when a question turns into legal advice and your aunt is suddenly a client.

It is very well established that email communications with an attorney seeking legal advice, or the reply giving legal advice, are protected under the attorney-client privileged. It is not a stretch to see a college age son texting his mother the attorney for legal advice. Granted, I am confident no parent wants to see a text seeking legal advice from his or her child at any age.

However, questions seeking legal advice that are public on social media profiles, such as a public wall post from a college student to a parent attorney, arguably were not asked in confidence. When it comes to the attorney-client privilege and modern communications, one must ask, “How was the communication made?” For example, was the text message seeking legal advice sent from a work issued smartphone with no expectation of privacy?

We hold the attorney-client privilege with the upmost reverence for those seeking and providing legal advice. However, those seeking and providing advice must not inadvertently breach the privilege by communicating in public forums where there is no expectation of privacy.

Attorney Client Text Messages or Texting & Depositions Don’t Mix

A child was injured at an Old Navy store (a subsidiary of the Gap) on a clothing rack, and naturally, a lawsuit followed in Federal Court based on Diversity Jurisdiction. Wei Ngai v. Old Navy, 2009 U.S. Dist. LEXIS 67117 (D.N.J. July 31, 2009).

The Plaintiffs deposed the Gap’s General Liability Claims Manager via video deposition on the chain of custody of the clothing rack. Ngai, 2.

The witness was in Sacramento, California, Defense attorneys in Fort Lee, New Jersey and Pro Hac Vice in Southfield, Michigan.  Ngai, 2.

The deponent and their Pro Hac Vice attorney were only visible from the chest up and their hands were not visible.  Ngai, 2.

However, the Pro Hac Vice attorney and the deponent had very busy hands texting each other.  Before the deposition, the two sent 11 text messages between themselves.  Ngai, 4.

TextingDuring the one hour and twelve minute deposition, the attorney and client exchanged 5 more text messages.  Ngai, 3.  Below is the timing of the messages: 

FROM TO TIME
PHV counsel Deponent 3:05:26 PM
PHV counsel Deponent 3:24:18 PM
PHV counsel Deponent 3:26:30 PM
Deponent PHV counsel 3:28:38 PM
Deponent PHV counsel 3:28:54 PM

Ngai, 4.

Then there was perhaps one of the worst sending errors text message history: The Pro Hac Vice attorney sent a text to the PLAINTIFF attorney saying, “[you] [are] doing fine.”  Ngai, 2. 

The Plaintiff’s attorney suspected shenanigans, requested the defending attorney preserve his text messages from the deposition.  Ngai, 2.

As one would expect, the Pro Hac Vice attorney claimed the text messages were all sent during a break.  However, the Court stated the record showed that only one break was taken, at an unknown time.  Ngai, 5.  Moreover, the NJ attorneys reported that the deponent was visible the entire deposition, minus the deponent and NJ attorneys going off camera to phone the Pro Hac Vice attorney.  Ngai, 5.

The Fallout Begins…

Pro Hac Vice attorney informed the court by letter of the text message incident and claimed the text messages were protected by the attorney-client privilege.  Ngai, 6.  Deciding to fall on his own sword, the Pro Hac Vice attorney attempted to withdraw from representing the Defendant.  Ngai, 6.

The Plaintiff opposed the Pro Hac Vice attorney’s withdrawal, claiming the withdrawal would delay the trial. Ngai, 6.  The Plaintiff requested all non-attorney-client privileged documents that supported the Pro Hac Vice attorney’s withdrawal.  Ngai, 6. 

The Court granted the withdrawal and ordered the Defendant to either produce the text message attachment provided to the Court or explain why the Attorney-Client privilege should not be pierced.  Ngai, 6-7.

Privileged Text Messages?

 The Defendant argued against producing the transcript of the text messages because:

(1) The communications are protected by the attorney-client privilege and work product rule;

(2) The crime fraud exception does not apply because the communications were not in furtherance of a crime;

(3) The “at issue” exception does not apply because the communications do not refer to the client’s state of mind or any other relevant issue in the case;

(4) There is no Rule of Professional Responsibility that compels this discovery; (5) the communications have no effect on the case; and

(6) The court rules provide that inadvertent disclosures must be returned to the sender. Ngai, 7.

The Plaintiff in turned argued that the text messages were not protected by the Attorney-Client Privilege.  Ngai, 7-8.

New Jersey Attorney-Client Privilege Standards

The attorney-client privilege statute states “communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it . . . .” Ngai, 8-9, citing N.J.S.A. 2A:84A-20.

One key test for sending an Attorney-Client communication is between the attorney and their client for legal advice with the expectation that its content remain confidential.” Ngai, 9-10, citations omitted.

The disclosure of these communications “to or in the presence of third-parties destroys the confidential nature of the communication and therefore such communications are not privileged.” Ngai, 10, referencing Aysseh v. Lawn, 186 N.J. Super. 218, 222, 452 A.2d 213 (Ch. Div. 1982).

Just When Were the Communications Made?

The Court held the text messages made BEFORE the deposition were privileged, which the possible exception of the last message, which the Court did not explain in depth.  Ngai, 11-12.

The Court explained the pre-deposition text messages related to the upcoming deposition, including “words of encouragement,” that attorney and client would have before a legal proceeding.  The Court characterized these text messages as furthering the client’s legal interest and were thusly protected.  Ngai, 11-12.

Texting During the Deposition or “No Note Passing”

The text messages sent during the deposition were not privileged.  Ngai, 12.

Federal Rule of Civil Procedure Rule 30(c) states that “depositions are to be conducted in the same manner as trial examination.”  Ngai, 12.

Rule 30 does not allow a lawyer and witness to have a discussion during trial or deposition testimony because, “once a deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth.”  Ngai, 13. 

The Court stated, “The goal of obtaining the facts of a case is defeated when the lawyer and not the witness is answering questions or influencing the answers to them.”  Ngai, 13. 

During a deposition if there is an “off-the record” discussion other than discussing the assertion of a privilege, the exchange is not privileged and “deposing attorney is [] entitled to inquire about the content thereof.”  Ngai, 13. 

passing notes in classThe Court stated the Pro Hac Vice attorney violated Federal Rule of Civil Procedure Rule 30 by texting during the deposition.  Ngai, 14.  The Court equated the conduct with passing notes to the client that included instructions “intended to influence the fact finding goal of the deposition process.” Ngai, 15.

The Court found no “it was on a break” defense for the text messages.  Ngai, 15-16.  A deposing attorney may question a deponent to determine if any witness coaching occurred.  Ngai, 16.  Additionally, Rule 30 only allows discussions pertaining to privileged issues.  Ngai, 16.  Finally, there was no evidence the text messages were actually sent during a break.  Ngai, 16.

Bow Tie Thoughts

If it had not been for the Pro Hac Vice attorney sending a text to the Plaintiff’s attorney, no one would have known of this impermissible (and ethically questionable for arguably witness coaching) conduct.  It will be a sad day for our system if deposing attorneys need to include a “no texting” provision to deposition admonitions.

Status Messages and Client Confidences

Web 2.0 marketing is a highly effective way for lawyers to promote their services to prospective clients.  Web 2.0 marketing is leveraging collaborative programs hosted over the Internet, such as social networking sites or Wikis, to provide content highlighting an attorney’s services.  This form of marketing could also result in disaster if used incorrectly. 

Client Confidences: The Work Product Doctrine and the Attorney Client Privilege

tugboatThe sailor in me remembers Hickman v Taylor 329 U.S. 495 (U.S. 1947) because it had a tug boat that sank.  The lawyer in me remembers it for the Work Product Doctrine.

 

For those not familiar with the Work Product Doctrine, the Doctrine protects documents prepared in anticipation of litigation from discovery, including mental impressions, conclusions, opinions, or a lawyer’s legal theories.  Chemtech Royalty Assocs., L.P. v. United States, 2009 U.S. Dist. LEXIS 27696 (M.D. La. Mar. 30, 2009).  The Work Product Doctrine is codified by Federal Rule of Civil Procedure 26(b)(3).  The Doctrine covers material prepared by a party and a party’s representative, which includes lawyers, consultants or agents.  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), citing FRCP 26(b)(3). 

istock_000002813503xsmallThe Attorney Client Privilege is a different concept.  The Attorney Client Privilege protects “confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.”  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), (citations omitted).  Additionally, the privilege applies “only [to] those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id.

California law also requires a lawyer to, “…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Cal Bus & Prof Code § 6068

Additionally, attorneys should realize they are responsible for their staff, consultants, non-lawyers, and others also using technology. ABA Model Rule of Professional Conduct, Rule 5.1, Rule 5.2 and Rule 5.3 outline these responsibilities.

Enter Web 2.0 Marketing

There is the potential for disclosure of information protected by both the Work Product Doctrine and the Attorney Client Privilege on social networking sites such as Twitter or Facebook.  These services are popular Web 2.0 sites where users can create public profiles, invite other users to follow their daily updates, micro-blogging and other information sharing.  It does not take much to imagine someone new to Web 2.0 marketing disclosing too much information to their “friends” or “followers.”

Here is how the risk of disclosure is possible: a Facebook user posts a status message they deem harmless, such as “I just landed ‘Company A’ as a client and have a bunch of back-up tapes to restore.”

Does this disclose any mental impressions or strategy about the case?  Probably not, but it is flirting with disclosure.  Moreover, Company A would probably not be thrilled with their lawyer announcing their actions in a lawsuit to 300 “friends.”

After reviewing data from imaged hard drives, the same individual posts the status message, “Wow, they really blew preserving their emails.” 

If the client is somehow identifiable, there is a problem, because a mental impression of the client’s ESI is being disclosed.  While the “friends” are probably in no way related to anyone in a lawsuit, disclosing a client confidence to one person is one too many. 

This Does Not Mean Don’t Market!

This is only a call to action for common sense.  Lawyers, consultants and their agents should exercise reasonable care in promoting their services.  A status message of “Working on a Summary Judgment Motion” or “Preparing for the CMC” or “I settled the case!” is not disclosing any legal theory or confidence.  Moreover, using Facebook with the JDSupa application to show published documents can be very effective marketing.  However, saying a client name, plus a specific argument or confidence in a status message, might put a tech savvy lawyer in hot water. 

Web 2.0 empowers lawyers to promote their services and demonstrate their knowledge in ways few people could imagine when Silicon Valley engineers were teenagers building computers in the 1970s.  Lawyers marketing their services on Facebook, Twitter and other social networking sites should exercise reasonable care to protect client confidences.  While this may seem like stating the obvious, the potential for someone saying too much in a status message is very real.