The attorney-client privilege does not provide an excuse to withhold all damaging documents. Documents in an attorney’s possession are not necessarily privileged and the refusal to produce discoverable materials may be grounds for sanctions. A Massachusetts court is currently considering whether a prominent, global law firm should be sanctioned for the allegedly imprudent conduct of a former partner. An appellate panel ruled that the trial court erred in deciding that the partner acted in good faith when he invoked the work-product doctrine to conceal key information in a suit against a former client. The appellate court has yet to determine whether sanctions are appropriate.
In the underlying case, the plaintiffs alleged that their attorneys improperly withheld relevant, key documents – documents that subsequently surfaced at trial. The Appeals Court held that the firm should have produced the documents. The court reasoned that the work-product doctrine did not support the firm’s decision to withhold the information. In its holding, the Court noted: “It has long been held that where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.”
This case is a reminder that lawyers need to exercise caution and seek outside support when uncertain about the reach of the attorney-client and other privileges. Here are some general tips to ensure your practice does not run afoul of the privilege rules:
- The Basics. The work product doctrine protects documents and tangible things as well as intangible work product such as an attorney’s mental impressions created “in anticipation of litigation.” If the work product is prepared because of the prospect of litigation, it will be protected from discovery unless the opposing party can show substantial need and showing there is no other access to the information without undue hardship.
- Be organized. Clearly label written communications seeking or rendering legal advice and documents that include your mental impressions, create a specific folder to separate legal advice from responses to other matters, and limit dissemination of privileged information to only those who need it.
- Be diligent. Work product privilege does not only come into play during the discovery phase. Rather, it should remain in the back of your mind at all stages of the case.
- Instruct the client. Advise your clients that communications do not become privileged simply because they are shared with an attorney. Caution that privileged status, whether it be attorney-client-related or work product-related, may be destroyed when a communication shared with third parties, even inside the client’s own company or with business partners.
- Still in doubt? The safest approach is to prepare a privilege log, identifying the documents that contain the privileged matter, and serve it on opposing counsel, concurrent with serving discovery requests. Other jurisdictions will grant in camera review so that the court can determine what materials are work product material.
- Cooperate. Include an agreement for asserting privilege claims in the pre-trial scheduling order. Prepare an honest and thorough privilege log. Make a good faith effort to comply with the rules, as well as the purpose of the privilege, to promote open communication between you, your client, and opposing counsel while still protecting your litigation strategy.