This is a very interesting article. The attorney-client privilege is an important confidentiality rule that protects certain communications between a client and the lawyer/law-firm. The attorney-client privilege is an important privilege because it encourages clients to be candid with their attorney.
The ABA adopted Resolution 103, which provides that the attorney-client privilege extends to communications between a law firm and in-house counsel for the purpose of facilitating legal services. The resolution provides that these communications are protected to the same extent between the lawyer/law-firm and personnel of a corporation or other entity.
The ABA explains,
The measure stems from the increasing complexity of regulation, rules of professional conduct and greater disclosure obligations under legislation such as the Sarbanes-Oxley Act.
via Attorney-client privilege should apply to law firms consults with in-house counsel, ABA House says – ABA Journal.
This is an illustrative case as to why attorneys want to take precautions when producing discovery. The case is Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 /0S.D. Ohio Aug. 28, 2012).
In this case, the court held that privilege had been waived as to 347 pages of inadvertently produced emails where, among other things, Defendant failed to establish the reasonableness of the precautions taken to prevent the disclosure and “failed to take adequate measures to rectify or mitigate the damage of the disclosure.”
Here, Defendant did not stamp any documents as confidential. Upon reviewing the documents at issue, the court held that those documents were covered under the attorney-client privilege. However, the court found that the privilege had been waived. The court highlighted the following facts:
- Defendant’s lack of specificity as to who conducted the review and how the review was conducted. The general assertion that multiple lawyers reviewed it was not enough.
- Defendant failed to produce a privilege log during discovery;
- 4.6% of the documents were inadvertently produced, which the Court found to be “relatively high.”
In sum, the Court opined:
After balancing the required factors, the Court concludes that Medex waived the attorney client privilege otherwise applicable to the 347 documents in the May 30 production. To summarize, the Court finds that Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure.
via Inadvertent Production Results in Waiver of Attorney-Client Privilege as to 347 Pages of Emails : Electronic Discovery Law.
Mitchell H. Rubinstein, over at the Adjunct Law Prof Blog, sends along this important development in labor relations law from Alaska:
The Court held that “[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State’s union employees a union-relations privilege.” The reasoning employed by the Court – that “the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee” and that recognizing a privilege “harmonizes [the state labor relations act]’s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules” – should be useful in other states and in other settings where this issue frequently arises.
I agree with Mich that this is a “major decision.” And like him, I hope other states soon follow suit. For those interested in this topic, Mitch wrote a law review article on this topic a few years ago: Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley Journal of Labor and Employment Law 221 (2008).