The court denied Chase’s motion noting that Chase could not demonstrate that it satisfied the elements supporting the assertion of the privilege. The court held that, as to the first element, the e-mail could not properly be regarded as a “communication between client and counsel” because the e-mail did not state that it was prepared by or was being sent from in-house counsel, that it contained privileged information, that any of the information contained therein had been obtained from counsel or was based on communications with counsel, or that counsel had been consulted. Id. at 2.
The court reasoned that all the information contained in the e-mail could have been understood to have come from senior management or the human resources department and not from an attorney. Id. at 3.
As for the second element, confidentiality, the court held that the way in which the e-mail was written undermined any argument that a privileged communication was made with the expectation that its recipients maintain confidentiality. Id. The court also noted that because one or more of the plaintiffs obtained the e-mail in the ordinary course of employment, this bolstered the argument that the recipients of the e-mail were not aware that it contained confidential legal advice. Id.
As for the third element, the court expressed doubts as to whether the primary purpose of the e-mail was to “provide legal advice.” Given the manner in which the e-mail was presented, the court noted that it reasonably could have been understood as having been sent for the purpose of “beginning an effectuation of a corporate policy change” and not for the purpose of providing legal advice. Id. at 4.
The court next addressed the issue of waiver and – citing to the recently enacted Fed. R. Evid. 502(b)(2) and (3) – held that even if the e-mail contained a privileged communication, defendant had waived the privilege by taking no steps to prevent the dissemination of the e-mail.3 In addition, after learning that the e-mail had been disseminated to plaintiffs, Chase took more than two months, which the court described as “an inexplicably long time,” to demand its destruction or return. Id. at 6.4
‘Baptiste’
Another context in which litigants frequently battle over the privileged status of legal advice rendered by employment lawyers involves the treatment of employees who have asserted claims of discrimination. For example, in Baptiste v. Cushman & Wakefield, Inc., 2004 WL 330235 (S.D.N.Y. 2004), a former employee sued her former employer claiming, inter alia, employment discrimination on the basis of age, race, color and gender. In discovery, plaintiff produced an e-mail authored by Dennis Waggner, plaintiff’s former supervisor’s supervisor. Id. at 1. The e-mail indicated that Mr. Waggner had spoken with defendant’s outside counsel regarding the Equal Employment Opportunity Commission’s dismissal of plaintiff’s administrative charge, her retention of new counsel, and counsel’s suggestion as to the proper way to treat the plaintiff. Id. The e-mail also discusses Mr. Waggner’s views concerning plaintiff’s job performance. Id.
Plaintiff testified at her deposition that the e-mail in question was left anonymously on her desk in February 2003, before she began her disability leave from her employment with the defendant. Id. At the conclusion of the deposition, defendant demanded that plaintiff immediately return the e-mail in question, arguing that it was protected by the attorney-client privilege. Id. at 4.
Plaintiff refused to return the e-mail on the grounds that it was not privileged because it was not labeled so, did not for the most part refer to legal advice, was not authored by an attorney, was circulated to non-attorneys, and contained primarily information incidental to business advice. Id. at 1. Plaintiff also contended that the defendant waived any privilege by inter alia, waiting until approximately two months after receipt of the e-mail from plaintiff to assert the privilege.
Despite plaintiff’s assertions to the contrary, the court in the Southern District of New York had “little difficulty” in concluding that the overwhelming majority of the e-mail was in fact protected by the attorney-client privilege and therefore must be returned to the defendant. Id. at 2.5
The court held that it was “of no moment” that the e-mail was not authored by an attorney or sent to an attorney because the e-mail clearly was conveying advice given to Mr. Waggner by outside counsel. Counsel’s advice pertained to, among other things, the effect of the EEOC proceeding on plaintiff’s claims, counsel’s view on how the litigation would proceed, and how management should treat plaintiff in light of the pending litigation.
The court also noted that Mr. Waggner’s conveying of counsel’s advice to other supervisory employees did not destroy the privilege since these supervisors shared responsibility for the subject matter of the communication.
In contrast to Clarke, the court in Baptiste was not troubled by the fact that the communication was not labeled “privileged” noting that “the determination of whether a document is privileged does not depend on the technical requirement of a privilege legend.” (citing In re Grand Jury Proceedings, 2001 WL 1167497, at 10 (S.D.N.Y. 2001). The court also rejected plaintiff’s claim that the defendant waived the privilege by waiting two months to demand the e-mail’s return. Id. at 3. The court excused this delay because the defendant was conducting an investigation during this period of time to determine how plaintiff obtained the e-mail and whether the defendant had a colorable claim that the e-mail was privileged.
Practice Pointers
As evidenced by the holdings in Clarke and Baptiste, courts apply the attorney-client privilege based on the unique facts presented, and at times may reach conclusions that at first blush may appear inconsistent. While motion practice concerning the privileged status of particular documents may sometimes be unpredictable, employment lawyers and their clients may wish to consider adopting the following “best practices” and prophylactic measures in an effort to maximize the likelihood that a court will uphold the privilege, should the issue get litigated:
• If a communication needs to be sent to non-lawyers, consider including a brief statement confirming the assertion of attorney-client privilege and the basis for it. For example, the attorney may simply note that the communication is in connection with a trial lawyer’s or in-house counsel’s investigation into allegations being made by an employee. If the communication is being sent from non-lawyers, it should reference any pertinent advice previously rendered by counsel or requests to counsel for advice;
• Seek to draft the communication in such a manner as to render self-evident, that the primary purpose of the communication is to disseminate legal advice as opposed to ordinary business advice;
• To avoid waiver of the attorney-client privilege, the communication should be kept confidential and should not be disclosed to third parties not necessary to the lawyers’ delivery of legal advice. Should the communication inadvertently be disclosed to a third party, counsel should demand that the document be returned or destroyed promptly after being put on notice of the inadvertent disclosure. See Fed. R. Civ. P. 26(b)(5)(B) (providing a procedure for making a claim of privilege for information already produced in discovery). See also Coleman v. Schwarzenegger, 2008 WL 2237046, at 3 n.4 (E.D. Cal. 2008) (noting that Rule 26(b)(5)(B) provides for the return of information produced during discovery that is subject to a claim of privilege or of protection as trial-preparation material).
• To aid in the recovery of inadvertently disclosed privileged documents, parties should seek to enter into a court-ordered stipulation with opposing counsel providing for the immediate return of inadvertently disclosed documents and further providing that the receiving party may not – in the context of motion practice concerning the inadvertently disclosed documents – assert as a ground for seeking an order compelling the production of the documents the fact or circumstances of the inadvertent disclosure. 6
Jeffrey S. Klein and Nicholas J. Pappas are partners at Weil, Gotshal & Manges. Jason E. Pruzansky, an associate in the firm’s employment litigation group, assisted in the preparation of this article.
Endnotes:
1. Plaintiffs produced the e-mail in a document production in December 2008.
2. In contrast to the attorney-client privilege, the work product doctrine protects documents prepared “in anticipation of litigation” by a party or its representatives, Fed.R.Civ.P. 26(b)(3)(A), including those solicited by counsel “to perform investigative or analytical tasks to aid counsel in preparing for litigation,” Kayata v. Foote, Cone & Belding Worldwide, L.L.C., 2000 WL 502859 at 5 (S.D.N.Y. 2000).
3. For example, as previously noted, the e-mail did not flag that any of its contents were privileged and should not be shared with third parties.
4. The Court also rejected Chase’s work product claim holding that the e-mail was prepared in the ordinary course of business and not “in anticipation of litigation,” even if the reclassification itself might have been expected to result in litigation.
5. Specifically, the court found all but the last paragraph, which merely conveyed Mr. Waggner’s frustrations regarding plaintiff’s conduct on the job, to be privileged.
6. Entering into such a court-ordered stipulation may be especially prudent with the advent of Fed. R. Evid. 502(d), which provides that a federal court order governing waiver through disclosure of privileged or protected information is binding on all other courts and third parties. Fed. R. Evid. 502(d) applies to all cases filed on and after Sept. 19, 2008, and to previously-filed cases in the discretion of the trial judge.
