Exemptions from Discovery

From LegalLanding

Rules of Professional Responsibility

Client confidences/secrets are anything that you observe or learn while you are representing that client, and there is an obligation not to volunteer information about your clients. A violation of this rule can result in reprimand, censure, suspension, or disbarment. Anything at all is covered – birthdate, age, tattoos, finances, social network - anything that is public information.

If a layperson reasonably thinks an attorney-client relationship might be formed, the whole set of rules of P.R. applies. However, a lawyer can be compelled to testify as to client secrets.

Attorney-Client Privilege

The attorney-client privilege applies when: (1) Where legal advice of any kind is sought, (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his instance permanently protected, (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

Some of these requirements deserve special consideration:

(1) Confidential communication

Facts that attorney observes are not privileged, nor are documents handed (cover letters might be privileged, but otherwise discoverable documents don’t get the shield)

(2) Between attorney and client

The relationship is what’s privileged. Communicating through intermediaries (assistants, paralegals, agents), can be part of the relationship when doing so is necessary

Corporations present problems with the attorney-client privilege. Can a lower level employee go to corporate counsel with information and have it be privileged? The answer is not always clear, but where it is a definite part of the employee’s responsibilities to report to and to assist the lawyer, that person will be covered in most cases by the attorney-client privilege. It might also be asked why we don't just make every employee the "client" of corporate counsel. The answer is that doing so would create a conflict of interest between multiple clients, e.g. between an employee and the corporation in an employment discrimination matter.

If two clients to the same attorney in the same action have the same interests and those interests aren’t adverse, then there can be privileged communication if they fall under (3).

(3) For the purpose of giving or getting legal advice

Work Product Protection

Work product protection covers documents and tangible things prepared in anticipation of litigation. See FRCP Rule 26(b)(3). It also covers a lawyer's opinions and mental impressions in some circumstances. See Hickman v. Taylor (1947). There are interpretation problems, though, because Hickman didn’t make it verbatim into Rule 26.

Work product protection is available only if material is produced in anticipation of litigation. Tests to determine this look at the date a document came into existence, the date of attorney involvement, and the date on which suit was first filed or threatened. Material generated in the ordinary course of business is not considered to have been developed in anticipation of litigation.

The rationale for protection is that allowing opinions, strategy, and mental impressions to be discovered would reduce the quality of lawyering and encourage sharp practices. It would be unfair and create a free rider problem; although the aggregate costs of litigation would decline if it could be discovered, the burden would shift almost entirely to one side. Finally, there is the issue of privacy. It is unseemly to some to allow one lawyer to go through another’s thought process. When litigation has ended, the question arises as to whether the protection should extend to a second, unrelated litigation. Some courts rule that protection only endures in related litigation.

In almost all jurisdictions the holder (owner) of attorney-client privilege is the client, and the holder of the work product protection is the attorney. It matters who holds it, because someone has to raise the privilege or protection (failure to do so is a waiver). The attorney can raise the attorney-client privilege on behalf of client, but the "vice versa" isn’t true for work product.

Hickman and Rule 26 distinguish between fact (qualified protection) and opinion (almost absolute protection) work product. A court must protect mental impressions, conclusions, opinions, legal theories. The problem is that sometimes there is not a clear division between fact and opinion. There are two requirements to get factual work product: substantial need and undue hardship. The easiest situation to get work product is where a witness has very important information and has died. The standard of review is abuse of discretion.

Expert Work Product

Expert work product has value because one side had to pay to get it. It is divided into two kinds: consulting experts and trial experts. Consulting experts are only for trial preparation, and with them there is almost absolute protection, with one exception: for a showing of exceptional circumstances (money isn’t enough; a better situation is where a sample can only be tested once). Consulting experts can also be in-house employees who ordinarily could be called as witnesses, but now claim to be consulting experts who won’t testify. The employees in In Re Shell Oil Refinery (1990) reported directly to outside counsel, and it wasn’t their regular duty to prepare for trial. That case held that in-house experts can be treated as experts “retained or specially employed” in anticipation of litigation if court decides to do so, decided on a case-by-case basis.

If an expert is going to testify at trial, then the opposing party gets everything, including privileged information given to the expert, such as work product, information otherwise protected by the attorney-client privilege.