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During class action discovery, attorneys may invoke attorney-client privilege or work-product doctrine to shield information from disclosure. In most instances, the principles governing these doctrines in ordinary litigation will apply in the class action context. However, in other instances, the fact that the litigants are involved in a class action will affect questions of privilege and work product. Class counsel invoke the privileges to prevent disclosure of information obtained from class representatives or putative class members. Privilege questions are complicated by whether class counsel obtained information prior to class certification. Thus, when defendants seek information, questions arise concerning whether an attorney-client relationship existed to shield disclosure. Other privilege issues arise when counsel seek to compel evidence that has bearing on class certification. In these circumstances, courts must consider whether class certification requirements justify disclosure. In this column, I address issues concerning attorney-client privilege and work-product doctrine in relation to precertification questionnaires. In my next column, I address assertion of privilege concerning information relating to class-certification requirements. In diversity actions, feds look to state law In federal court, in diversity actions, courts look to state law on privilege to determine the standards governing application of the doctrines. If a case is brought within federal-question jurisdiction, courts apply prevailing federal common law principles to determine whether information is protected or must be disclosed. When attorneys contemplate filing a class action or have already filed a class action, counsel frequently hold meetings and circulate questionnaires to the attendees. During precertification discovery, defense counsel may request disclosure of the questionnaires. Class counsel seek to shield disclosure by invoking attorney-client privilege or work-product doctrine. Courts have split concerning whether class counsel must divulge the questionnaires or the information contained in the questionnaires. In the most recent examination of these issues, Magistrate Judge Nan R. Nolan for the Northern District of Illinois determined that precertification questionnaires were protected from disclosure. Vodak v. City of Chicago, 2004 WL 783051, 1 (N.D. Ill. Jan. 16, 2004). The Vodak litigation arose from detentions and arrests during a mass protest against the Iraq war on the Federal Plaza in Chicago on March 20, 2003. The National Lawyers Guild organized a meeting at which approximately 500 people attended. The Guild attorneys prepared a questionnaire that requested information including the name, address, telephone number and e-mail address of people completing the form. The questionnaire also asked whether the individual was taken into custody, the circumstances surrounding detention and arrest, court dates and whether the individual wanted representation. Only people who were seeking legal advice were requested to complete the questionnaire. The attorneys filed a class action against the city of Chicago and the Chicago Police Department. The defendants sought to compel disclosure of the questionnaires, and counsel produced a list of protesters who attended the meeting. However, counsel refused to produce the completed questionnaires, invoking attorney-client privilege. The defendants disputed that the people who had completed the questionnaires were “clients” entitled to protection of the attorney-client privilege. The district court held that there had been no waiver of the privilege. Vodak, 2004 WL 783051, 2. Whether a protected attorney-client relationship existed hinged “upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.” Id., citing Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978). The plaintiffs established that the persons who completed the forms believed that they were consulting counsel in their capacity as lawyers, and that they had completed the questionnaire for the purpose of requesting legal representation. Id., 2004 WL 783051 at 3. Class counsel did not assert the privilege on behalf of everyone who attended the meeting, but only on behalf of persons who had completed the form. Only those seeking legal representation were asked to complete the form, and the questionnaire expressly stated that it should be completed “if the person is ‘interested in either legal representation on a criminal charge or to pursue a civil lawsuit.’ ” Id. The defendants further objected that the guild meeting was held before the attorneys filed a class action. The court held that the attorney-client privilege covered communications where “legal advice of any kind is sought” and is not dependent on the initiation or contemplation of litigation. Id., 2004 WL 783051 at 4. Moreover, the existence of an attorney-client relationship is not tied to actual employment of the lawyer, but extends to preliminary consultations by a prospective client. Finally, the court rejected the defendants’ contention that they had a substantial need for the information and that it would cause undue hardship to obtain the information by other means. The court held that the “substantial need” and “undue hardship” exceptions in Fed. R. Civ. P. 26(b) apply to attorney work product, but not to attorney-client privilege. Id. In other cases, federal courts have refused to recognize the applicability of the attorney-client privilege or work-protect doctrine, and have ordered class counsel to divulge questionnaires obtained prior to class certification. See Morisky v. Public Service Electric and Gas Co., 191 F.R.D. (D.N.J. 2000); Dobbs v. Lamonts Apparel Inc., 155 F.R.D. 650 (D. Alaska 1994). In Morisky, employees of Public Service’s (PSE&G) nuclear business unit brought a class action alleging violations of the federal Fair Labor Standards Act. Before the lawsuit was filed, counsel held a public meeting at a firehouse, attended by approximately 40 people. The attorneys distributed a blank questionnaire to the attendees, which included questions concerning job titles, departments, job duties, training and education, compensation and overtime hours. During the meeting, counsel gave additional copies of the questionnaire for distribution among employees who did not attend the meeting. These questionnaires were left on the desks of employees. During initial discovery, class counsel did not reveal the existence of 141 completed questionnaires, but an employee revealed their existence during a deposition. Plaintiffs’ counsel then disclosed a copy of a blank questionnaire, but refused to turn over the 141 completed questionnaires or the information contained in those forms. When the defendant sought disclosure of the 141 questionnaires, class counsel invoked both attorney-client privilege and work-product doctrine to protect disclosure. Magistrate Judge Joel B. Rosen granted the defendant’s motion and held that the questionnaires were not shielded by the attorney-client privilege or work-product doctrine. Morisky, 191 F.R.D. at 420. The magistrate held that class counsel could not establish that the 141 PSE&G employees who completed the questionnaires were clients or sought to become clients when they completed the questionnaires. Id., 191 F.R.D. at 420. The questionnaires were distributed in a public firehouse before the lawsuit was filed, and anyone could have attended the meeting. There was no evidence that the 40 people who attended were then, or subsequently became, clients of the plaintiff’s law firm. Id., 191 F.R.D. at 423. The court noted that the questionnaires contained fact information that had nothing to do with legal representation, and that class counsel were attempting to extend privilege to even those employees who declined or may not have been invited to join the class action. Id. Employees not seekingto become clients More important, the majority of the PSE&G employees who completed the questionnaires were given the form by other PSE&G employees after the meeting. There was nothing to indicate these employees were seeking to become clients or seeking legal advice when they completed the form. Id. The magistrate concluded that the primary purpose of the questionnaire was to solicit potential clients, and that the plaintiff’s law firm could not show that it was acting as counsel for PSE&G employees when the questionnaires were distributed and completed. Id., 191 F.R.D. at 424. Class counsel argued that an attorney-client relationship existed based on its projection that the litigation would proceed as a class action. The court held that this did not establish an attorney-client relationship. “[A]t this juncture, this is only a putative class action and not a certified class. The employees who have filed notices seeking to join the lawsuit as class members, therefore, cannot be considered clients of the [plaintiff's] law firm. Even if certified as a class, ‘class members are really neither parties to the litigation nor clients of plaintiffs’ counsel.’ ” Id. The magistrate also rejected counsel’s argument that the questionnaires were protected by attorney work-product doctrine. Id., 191 F.R.D. 423-24. The questionnaires contained fact information that was subject to disclosure. Moreover, most of the questionnaires had been distributed in a nonconfidential-the forms were left lying in open view on employees’ desks. The only conceivable work product-the actual questions formulated by counsel-were not protected, either, because counsel had given the defendant a blank copy of the form. See also Dobbs, 155 F.R.D. 650. Finally, the court held that the defendant had a substantial need for the completed questionnaires and it would unduly burden the parties to require defense counsel to depose 141 individuals. Linda S. Mullenix holds the Morris and Rita Atlas Chair in Advocacy at the University of Texas School of Law. She can be reached at [email protected].

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