Protecting the Privilege

by: Jennifer M. Monty, Esq.
 
It may seem impossible that a court could order that communication between an attorney and client be disclosed.  It may seem even odder that a court would order an attorney to turn over her litigation file.  However, if a privilege is not adequately protected, it can be waived, and a court may require such disclosure.

The law provides for two privileges: attorney-client privilege and work product doctrine.  Both privileges must be asserted at the first instance when the privileged information is requested. Attorney-client privilege protects communications between an attorney and client (or an attorney’s agents, such as secretary or paralegal).  Work product doctrine protects “documents and tangible things prepared in anticipation of litigation or for trial by or for another party or that party’s representative…”  (Ohio Civ. R. 26(B)(3)).  Courts often give greater protection to opinion work product, versus fact work product.  Opinion work product generally describes an attorney’s mental impressions, legal theories or strategies and disclosure through discovery would allow the opposing party to benefit from the parties’ preparation.  Fact work product includes witness statements or underlying facts that may be part of the attorney’s file, but would otherwise be discoverable. 

Although most attorneys know to assert the privilege, there are specific safeguards that must be followed.  To protect items under either attorney-client privilege or work product doctrine, an attorney must not only assert the privilege but also identify and list the “privileged” documents that the party is withholding.  A proper privilege log should:

• Identify the discovery requests to which objection is made;
• State the grounds of the objection—either attorney-client communication or attorney work product doctrine;
• A table or chart showing for each document the custodian of the record, the author of the record, when it was created/modified, and a general description of the subject matter.

The purpose of providing the information is that it allows the opposing party to assess or challenge the claim that the document is privileged.  In federal courts, the filing of a proper privilege log is an acceptable way to assert the privilege during the discovery process.  The failure to properly assert a privilege, may waive the privilege.  Therefore the question is whether failure to submit a privilege log (or proper privilege log) waives the attorney-client privilege or work product doctrine?

Currently, courts are split on appropriate sanctions for when a party fails to timely submit a privilege log or submits a deficient privilege log.  Sanctions can include either monetary sanctions against the party who failed to properly submit a privilege log or a finding that the party has waived its privilege, which would require disclosure of otherwise privileged materials.

The Notes of the Advisory Committee to the Federal Rules of Civil Procedure discuss potential waiver: A “party must notify other parties if it is withholding materials otherwise subject to disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product production. To withhold materials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection.”  The use of the word “may” rather than “shall” provides the reviewing court discretion in finding a sanction versus a waiver. 

The decision of a court to monetarily sanction a party or find that there is waiver is often determined by the facts of the case.  If the party has actively tried to properly respond, there is less likelihood that waiver will be found.  As one court explained, “a waiver of privilege is a serious sanction reserved for cases of unjustified delay, inexcusable conduct, bad faith or other flagrant violation”  (Applied Systems, Inc. v. Northern Ins. Co. of New York, 1997 U.S. Dist. LEXIS 16014, 1997 WL 639235, at *2 (N.D. Ill. Oct. 7, 1997)).  Other courts have found that “Minor procedural violations, good faith attempts at compliance and other such mitigating circumstances bear against finding waiver.” (Heavin v. Owens-Corning Fiberglass, 2004 U.S. Dist. LEXIS 2265, 2004 WL 316072, at *12 (D. Kan. Feb. 3, 2004)).

Additionally, trial court discovery orders are reviewed under an abuse of discretion standard; on appeal an appellate court will often not overturn a trial court’s decision unless there is some showing that the trial court acted unreasonably, arbitrarily, or unconscionably. 

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.  However, if a privilege log is not prepared (or is deficient), there are many arguments to make to avoid waiver of privilege.  An attorney can argue attempted compliance with the rules, as well as the purpose of the privilege – to promote open exchanges between attorneys and clients and to protect an attorney’s litigation strategy.

Jennifer M. Monty is an Associate in Litigation & Defense; Consumer Finance Litigation, Commercial Business, Commercial Real Property and Federal Court Litigation Groups. She is also involved in WWR’s Real Estate Default Group. Jennifer is based in the Cleveland office and can be reached at (216) 685-1136 or jmonty@weltman.com.