Protection From Discovery: Everything You Need to Know

The attorney-client privilege, which originated in Roman and canon law, is the oldest of the privileges for confidential communications known to the common law.13 min read updated on February 01, 2023

Protection From Discovery — A Little About Work-Product, Attorney-Client And Common-Interest Privileges

ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege, which originated in Roman and canon law, "is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). Its purpose is "to encourage full and frank communications between attorneys and their clients," and it exists to protect" not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Id. at 389-91.

The Court also said, "the privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Id. at 389, and in Hunt v. Blackburn, 128 U.S. 464, 470 (1888) it explained that the privilege is "founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure."

BASIC RULES REGARDING ATTORNEY-CLIENT PRIVILEGE

What Is Protected?

FIRST, the attorney-client privilege protects confidential communications between an attorney and his or her client "made for the purpose of furnishing or obtaining professional legal advice and assistance." In re LTV Securities Litigation, 89 F.R.D. 595, 600 (N.D.Tex. 1981).

The privilege applies in both directions: to communications from the client to the attorney, and to communications from the attorney to the client. Schwimmer v. U.S., 232 F.2d 855 (8th Cir.), cert. denied, 352 U.S. 833 (1956); Green v. IRS, 556 F.Supp. 79, 85 (N.D.Ind. 1982), afford without op., 734 F.2d 18 (7th Cir. 1984).

It applies with equal force to conversations and correspondence among a client's attorneys, whether or not the client is present during the conversation or receives a copy of the correspondence. See, e.g.:

Natta v. Zletz, 418 F.2d 633, 637 (7th Cir. 1969) (correspondence between house and outside counsel fall within the privilege);
Chicano Lawyers Committee v. City of Chicago, No. 76 C 1982, slip. op. (N.D.Ill. Apr. 1981) (privilege extends to meeting between "attorneys discussing the giving of legal advice or assistance in anticipation of pending litigation");
Green, 556 F.Supp. at 85 (privilege applies equally to inter-attorney communications);
Foseco Int'l Ltd. v. Fireline Inc., 546 F.Supp. 22, 25 (N.D.Ohio 1982) (communications between patent counsel and local counsel were confidential and, therefore, subject to the privilege);
In re D.H. Overmyer Telecasting Co., 470 F.Supp. 1250, 1254- 55 (S.D.N.Y. 1979) (conversations between in-house and outside counsel protected by privilege);
Burlington Inc. v. Exxon Corp., 65 F.R.D. 26, 36 (D.Md. 1974) (confidential communications between in-house and outside counsel, as well as between two outside lawyers representing the same client, fall within scope of privilege).

Confidential Communications, Not Facts, Are Protected

SECOND, what is protected by the privilege is the communications themselves within the confidential setting. "The protection of the privilege extends only to communications and not to facts." Upjohn at 395 (quoting Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D.Pa. 1962)), and investigators are free to question individuals who communicate with counsel about unprivileged facts known to them. But arguments that the information may more conveniently be obtained from the privileged communication are unavailing because "such considerations of convenience do not overcome the policies served by the attorney-client privilege." Id. at 396.

For this reason, even if the information discussed is in the public domain, the fact of communicating about it with or among counsel is privileged. In Lehman v. Superior Court, 81 Cal.App. 3d 90 (1978), for example, the court explained, "if the client discloses certain facts to a third person and subsequently advises his lawyer of those same facts in the form of a confidential communication, there has been no waiver since, obviously, the client has not disclosed to the third person the confidential communication to the attorney, i.e., had not disclosed that certain information had been communicated to the attorney." Id. at 97.

And by necessity, the privilege extends as well to written materials reflecting the substance of an attorney-client communication. See Green, 556 F.Supp. 85 (privilege applies to "an attorneys notes containing information derived from communications to him from a client. That information is entitled to the same degree of protections from disclosure as the actual communication itself."); accord Natta, 418 F.2d at 637 n.3 ("insofar as inter-attorney communications or an attorney's notes contain information which would otherwise be privileged as communications to him from a client, that information should be entitled to the same degree of protection from disclosure. To hold otherwise merely penalizes those attorneys who write or consult with additional counsel representing the same client for the same purposes As such it would make a mockery of both the privilege and the realities of current legal assistance"); Smith v. MCI Telecommunications Corp., 124 F.R.D. 665, 687 (D.Kan. 1989).

Confidential Communications By Agents of Client

THIRD, the attorney-client privilege also covers communications between agents of a client and the client's attorney, again, as long as the communication was intended to be confidential.

"[I]f the purpose of the communication is to facilitate the rendering of legal services by the attorney, the privilege may also cover communications between the client and his attorneys representative, between the client's representative and the attorney, and between the attorney and his representative." Golden Trade v. Lee Ansarel Co., 143 F.R.D. 514, 518 (S.D.N.Y. 1992).

Courts define the term "agent" broadly to encompass a range of individuals, from expert consultants to relatives to insurance agents, whose presence is necessary to the purpose of the meeting and to the rendering of advice. See, e.g:

Kevlick v. Goldstein, 724 F.2d 844, 849 (lst Cir. 1984) (client's father);
U.S. v. Biros, 459 F.2d 639, 643 (1st Cir.) (client's father), cert. denied sub nom.,
Raimondi v. U.S., 409 U.S. 847 (1972); Benedict v. Amaducci, No. 92 Civ 5239 (KMW), 1995 U.S. Dist. LEXIS 573, 3-4 (S.D.N.Y. Jan. 18, 1995) (consultant);
Foseco Int'l. v. Fireline Inc., 546 F.Supp. 22, 25 (N.D.Ohio 1982) (patent agent);
Miller v. Haulmark, 104 F.R.D. 442, 445 i (E.D.Pa. 1984) (insurance agent);
Harkobusic v. General American, 31 F.R.D. 264, 265 (W.D.Pa. 1962) (brother-in-law).

Nor must the client be present at a meeting between his agents and his lawyer for the communications during the meeting to be protected by the attorney-client privilege. Thus, for example, in Foseco, 546 F.Supp. 22, the court held that a meeting between the plaintiff's patent agent and the plaintiff's lawyer fell within the scope of the attorney-client privilege, even though the Plaintiff was not present at the meeting.

As the court explained, "these communications are in essence communications between the client and the client's attorney. The British patent agent acted at the direction and control of the plaintiff. Further, through the agency of its patent agent, the plaintiff sought from the U.S. patent counsel legal advice and assistance concerning a U.S. patent application proceeding. Had the communications been made between the plaintiff and its U.S. counsel, the privilege would have attached.

The Court finds that, given the purpose of the attorney-client privilege to encourage full and frank communication between attorneys and their clients, the communications made between [plaintiff], through its patent agent, and its U.S. patent counsel are privileged. The communications involved in this case were made in furtherance of the rendition of professional legal services to the client and were reasonably necessary for adequate legal assistance. Id. at 26.

Privilege Offers Absolute Protection

FINALLY, it is important to note that the attorney-client privilege affords absolute protection to privileged communications. As the Ninth Circuit explained in Admiral Insurance Co. v. U.S. District Court, 881 F.2d 1486 (9th Cir. 1989), "the principal difference between the attorney-client privilege and the work-product doctrine, in terms of the protections each provides, is that the privilege cannot be overcome by a showing of need, whereas a showing of need may justify discovery of an attorney's work product. Id. at 1494. The attorney-client privilege cannot be vitiated by a claim that the information sought is unavailable from any other source. Id. at 1495. "Such an exception would either destroy the privilege or render it so tenuous and uncertain that it would be little better than no privilege at all." Id.

The privilege applies to confidential communications between government attorneys and their clients in the same manner in which it applies to communications between private counsel and their clients. See:

Green, 556 F.Supp. at 85 ("privilege unquestionably is applicable to the relationship between government attorneys and administrative personnel");
SEC v. World-Wide Coin, 92 F.R.D. 65, 67 (N.D.Ga. 1981) (privilege applied to communications between SEC lawyers and staff);
Jusiter Painting v. U.S., 8 F.R.D. 593, 598 (E.D.Pa. 1380) ("Courts generally have accepted that attorney-client privilege applies in the governmental context").

COMMON INTEREST PRIVILEGE

The "common interest" privilege enables counsel for clients with a common interest "to exchange privileged communications and attorney work product in order to adequately prepare a defense without waiving either privilege." Haines v. Liggett Group Inc., 975 F.2d 81, 94 (3d Cir. 1992); see also:

Walter v. Financial Corp. of America, 828 F.2d 579, 583 n.7 (9th Cir. 1987) ("communications by a client to his own lawyer remain privileged when the lawyer subsequently shares them with co- defendants for purposes of a common defense") (quoting U.S. v. McPartlin, 595 F.2d 1321, 1326 (7th Cir. 1979), cert. denied, 444 U.S. 833 (1979));
In re Grand Jury Subpoena Duces Tecum Dated Nov. 16, 1974, 406 F. Supp. 38l, 389 (S.D.N.Y. 1975) ("the attorney-client privilege covers communications to a prospective or actual co-defendant's attorney when those communications are engendered solely in the interests of a joint defense effort.").

The privilege encompasses notes and memoranda of statements made at meetings among counsel and their clients with a common interest, as well as the statements themselves. In re Grand Jury Subpoena, 406 F. Supp. 381, 384-94 (S.D.N.Y. 1975). The rationale for this well-accepted privilege is readily apparent:

"Whether an action is ongoing or contemplated, whether the jointly interested persons are defendants or plaintiffs, and whether the litigation or potential litigation is civil or criminal, the rationale for the joint defense rule remains unchanged: persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims." In re Grand Jury Subpoenas, 89-4, 902 F.2d 244, 249 (4th Cir. 1990).

See also 2 Stephen A. Saltzberg, et al., Federal Rules of Evidence Manual 599 (6th ed. 1994) ("In many cases it is necessary for clients to pool information in order to obtain effective representation. So, to encourage information-pooling, the common interest rule treats all involved attorneys and clients as a single attorney-client unit, at least insofar as a common interest is pursued.")

Thus, the common interest privilege may be asserted with respect to communications among counsel for different parties if:

"(1) the disclosure is made due to actual or anticipated litigation or other adversarial proceedings;

(2) for the purposes of furthering a common interest; and

(3) the disclosure is made in a manner not inconsistent with maintaining confidentiality against adverse parties."

Holland v. Island Creek Corn., 885 F. Supp. 4, 6 (D.D.C. 1995); see also U.S. v. Bav State Ambulance, 874 F.2d 20, 28 (lst Cir. 1989); In re Bevill, Bresler & Schulman, 805 F.2d 120, 126 (3d Cir. 1986); In re LTV Sec. Litig., 89 F.R.D. at 604.

It is not necessary for actual litigation to have commenced at the time of the meeting for the privilege to be applicable. U.S. v. Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989), cert. denied, 502 U.S. 810 (1991).

If these circumstances are present, the communications are protected. Indeed, the privilege covers communications not only among counsel for clients with common interests but also between an individual and an attorney for a different party with a common interest. See:

Schwimmer id. (it is not necessary for attorney representing the communicating party to be present when the communication is made to the other party's attorney);
McPartlin, 595 F.2d at 1335 (applying common interest rule to communications between client and agent for attorney of person with common interest);
Saltzberg at 600 ("The fact that clients are present at a consultation in the common interest certainly should not preclude the application of the common interest ruie, so long as the statements are otherwise intended to remain confidential and are made for purposes of obtaining legal advice in the common interest.").

Of course, no two individuals or entities' interests will be totally congruent, and it is not necessary for every party's interest to be identical for the common interest privilege to apply; rather, the parties must have a "common purpose." U.S. v. McPartlin, 595 F.2d 1321, 1336-37 (7th Cir. 1979), cert. denied, 444 U.S. 833 (1979). The question my of whether the parties share a 'common interest' "must be evaluated as of the time that the confidential information is disclosed." Holland, 885 F. Supp. at 6. While it is conceivable that that interest could diverge --indeed, that is one reason for separate counsel -- the possibility of a future divergence in no respect undermines the privilege. And it is settled that private and government counsel may share a common interest. In U.S. v. American Tel. & Tel. Co., 642 F.2d 1285, 1300-01 (D.C.Cir. 1980), for example, the court applied the "common interest" privilege to materials shared between a private company, MCI, and the government, and held that MCI did not waive the work-product privilege by sharing documents with the govt in aid of a common purpose.

WORK PRODUCT DOCTRINE

"The work product doctrine is an independent source of immunity from discovery, separate and distinct from the attorney-client privilege." In re Grand Jury, 106 F.R.D. 255, 257 (D.N.R. 1985). It is "broader than the attorney-client privilege; it protects materials prepared by the attorney, whether or not disclosed to the client, and it protects material prepared by agents for the attorney." In re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir. 1979).

Unlike the attorney-client privilege, which "is not limited to communications made in the context of litigation, or even a specific dispute," Coastal States Gas Comm. v. Dept. of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) -- and see Flynn v. Church of Scientology Int'l, 115 F.R.D. 1,3 (D.Mass. 1986) ("one who consults a lawyer with a view to obtaining professional legal services from him is regarded as a client for purposes of the attorney-client privilege.") -- the work-product doctrine "protects the work of the attorney done in preparation for litigation..." In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). However, litigation need only be contemplated at the time the work is performed for the doctrine to apply, see Holland, 885 F.Supp. at 7, and the term "litigation" is defined broadly to encompass the defense of administrative and other federal investigations. See:

In re Grand Jury Proceedings, 867 F.2d 539 (9th Cir. 1989) (applying doctrine in context of grand jury investigation);
In re Sealed Case, 676 F.2d 793 (D.C.Cir. 1982) (applying doctrine to documents created by counsel rendering legal advice in connection with SEC and IRS investigations).

As the Supreme Court observed in Hickman v. Taylor, 329 U.S. 495 (1947), the work-product doctrine is critical to a lawyer's ability to render professional services to his client:

"it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation It of a client's case demands that he assemble information, sift what he considers to be the relevant go from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.... This work is reflected of course, be in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways...."

"Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." Id. at 510-11.

Although "factual" work-product may be discoverable upon a showing of substantial need for the information sought, the protection afforded to "opinion" work-product -- which reflects counsel's subjective beliefs, impressions, and strategies regarding a case -- is nearly absolute. As the D.C. Circuit explained in In re Sealed Case, 676 F.2d 793, 809-10 (D.C. Cir. 1982), "to the extent that work product reveals the opinions, judgments, and thought processes of counsel, it receives some higher level of protection, and a party seeking discovery must show extraordinary justification." Accord Upjohn, 449 U.S. at 401 (opinion work product "cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship").

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