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Imagine this scenario. You represent a party that has sued a drug manufacturer. Your client claims the drug company is attempting to delay competition coming from a generic version of a widely distributed medicine. You request from the drug manufacturer all documents “related to the marketing of the drug” and all documents “related to the listing and use of any patents regarding the drug” �- an obvious generic discovery request in this generic drug litigation. You receive many documents in response to the request, and you receive a privilege log from the defendant. This log describes the documents that are being withheld and claims that all documents withheld are protected by the attorney-client privilege. You ask for the names of each person who received these allegedly privileged documents. The defendant resists this, saying the request is onerous and will be expensive. Eventually, the judge rules in your favor, accepting the argument that you have the right to know whether the privilege was forfeited by dissemination of the documents to anyone who did not need to see these items for the corporation to obtain legal advice. You think it is possible that the company sent one or two documents to corporate employees who had no reason to see them, allowing you to claim the defendants forfeited the privilege. Indeed, many courts and scholars agree that if a corporation disseminates a document to those within the corporation who do not need to have access to the document for the rendition of legal services, then the privilege no longer protects that document. See Upjohn v. United States, a 1981 U.S. Supreme Court ruling. Unexpectedly, you strike pay dirt � you think. As it turns out, the company sent almost all the contested documents to an outside public relations consultant. The defendant asked the consultant to review documents containing legal advice received by the corporation to assist in devising the marketing and legal strategies to prevent the sale of generics. Eureka! By sending all these documents to an outside third party, you conclude the privilege has been forfeited. Unfortunately, it is not as cut and dried as you may think. A number of recent decisions show a growing judicial willingness to allow the privilege to attach to documents sent to outside consultants, even those whose primary purpose is to formulate a public relations strategy. In 2002′s Federal Trade Commission v. GlaxoSmithKline, the U.S. Court of Appeals for the D.C. Circuit, in reviewing facts closely paralleling the above scenario, held that GlaxoSmithKline did not forfeit the privilege even though an outside public relations firm was allowed to have access to legal strategy documents. In Texas, the attorney-client privilege rule is at least as broad as federal precedent on the subject of how to apply the privilege to corporations. Indeed, Texas Rule of Evidence 503 is so broad as written that it has been argued that “all communications between corporate representatives could be claimed as privileged,” according to In re Monsanto, a 1999 opinion from the 10th Court of Appeals in Waco. So it is well within the realm of possibility that federal decisions such as GlaxoSmithKline eventually will find some support in Texas case law. Different Ways What does this all mean for Texas lawyers? As to document production, be prepared to see more claims of privilege when seeking corporate documents, and anticipate some courts upholding these privilege claims even when the documents are widely disseminated. To counter this, understand and argue the public policy reasons for the privilege, and have a command of differing case law that rejects this expansive application of the privilege. For an example of this divergent case law, see In re Currency Conversion Fee, a 2003 decision by the U.S. District Court for the Southern District of New York. On the other hand, be prepared to assert claims of privilege for corporate clients in ways not previously considered. There is nothing unethical about asserting a claim of privilege in a creative way when there is case law and language in the rules of evidence that support doing so. In witness interviews and depositions, be prepared to encounter more claims of privilege based on witnesses having had access to confidential attorney-client information. For example, in the above scenario, what happens if you depose an employee of the outside public relations firm and ask for information this employee possibly learned from the privileged documents? It is likely the other side will stop the witness from answering because of privilege and will stop questions that arguably relate in any way to the privileged documents. As for informal witness interviews, remember that ethical duties require you not to ask for information that would violate the other side’s right to protect its privileged or confidential information. This becomes particularly complicated for lawyers who want to stay within the bounds of their ethical codes. How did it come to this? How is it that some courts apply the attorney-client privilege so expansively to corporations? The privilege, itself, has its origins in the desire to protect individual freedom and human dignity so that when faced with criminal charges, a person is able to tell the truth to his lawyer to have adequate representation without fear of disclosure. It is a long way from those origins to this new precedent. In an effort to be fair to businesses and corporations and to allow them the protection of the privilege in defending their interests, the courts and those who draft evidence rules may have gone too far. Are courts failing to construe the privilege as strictly as necessary to ensure the privilege is not an undue impediment to the public’s right to every citizen’s evidence? Further, are the courts construing the privilege so as to hinder informal discovery and increase the cost of litigation? And, are those who draft evidence rules making the same choices in giving corporations too much protection under the privilege? Here’s hoping the wise heads of the profession take some time to consider once again how best to apply the attorney-client privilege to corporations. Linda Eads has taught at Southern Methodist University Dedman School of Law in Dallas since 1986. She teaches and writes in the areas of evidence, legal ethics, constitutional law, and women and the law. “Legal Ethics” appears regularly in Texas Lawyer.

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