Corporate Practice Series Portfolio No. 22-4th, Attorney-Client Privilege and Work-Product Doctrine: Corporate Applications, traces the historical development of the attorney-client privilege and the work-product doctrine and explains in detail their purposes, availability to corporations, scope of protection, and relation to each other. The section on attorney-client privilege also covers problem areas for claiming the privilege; traditional exceptions to the privilege; waiver issues; e-mail and the privilege; the availability of the privilege in shareholder suits, in the partnership context, and for special committees of boards of directors; and alternative forms of protection, such as the trade secrets privilege and statutory measures. Coverage of the work-product doctrine includes waiver issues and exceptions to the doctrine. The portfolio also examines the showing of substantial need and undue hardship required to force disclosure of otherwise protected material, and the effect of attorney disqualification.
Portfolio 22-4th: Attorney-Client Privilege and Work-Product Doctrine: Corporate Applications I. Introduction A. The Tension B. Attorney-Client Privilege: Historical Development and Basic Elements C. Work-Product Doctrine: Historical Development and Basic Elements D. Relationship Between Attorney-Client Privilege and Work-Product Doctrine E. Other Protections for Confidential Corporate Information 1. Trade secrets 2. Statutory protection 3. Self-critical analysis II. Availability of Privilege to Corporations III. Client Identity IV. Communications Covered by the Corporation’s Privilege A. Directors, Officers, and Employees 1. Control-group test 2. Subject-matter test 3. Rejection of previous tests: Upjohn Co. v. United States 4. Continued relevance of control-group and subject-matter tests B. Multiple Representation V. ‘Attorney' for Purposes of Privilege A. ‘Acting as Attorney' B. Inside Counsel C. Inside Patent Counsel D. Outside Counsel E. Effect of Non-Membership in Local Bar F. Associates, Paralegals, Secretaries, Consultants G. Effect of Termination of Litigation H. Posthumous Application of the Privilege VI. ‘Communications': Definitional Problems A. Communications Versus Underlying Facts B. Communications Between Attorney and Client C. Existence of Attorney-Client Relationship D. Inter-Attorney Communications E. Communications Made in Confidence VII. Waiver of Privilege A. Introductory Material B. Voluntary Waiver; Failure to Claim Privilege C. Who May Waive D. Scope of Waiver E. Appeal of Order Requiring Disclosure and Other Jurisdictional Issues F. Inadvertent Disclosure G. Rule 502 H. Required Disclosures I. Waiver—Patent Law and ‘Adverse Inference' J. DOJ Corporate Waiver Guidelines K. Corporate Internal Investigations L. Selective Waiver in Government Investigations M. Privilege Logs
VIII. E-Mail Communications and the Attorney-Client Privilege IX. Traditional Exceptions to Privilege A. Prospective Crime or Fraud B. Impact of the Sarbanes-Oxley Act and the Amendments to the Ethics Rules C. Intentional Torts D. Joint Attorney E. Joint Defense/Common Interest F. Joint Prosecution Privilege G. Attorney’s Defense Against Accusation of Wrongful Conduct H. Rejection of Unavailability Exception I. DHS Policy on Border Searches of Electronic Devices X. Attorney-Client Privilege in Shareholder Suits A. Introductory Material B. Good Cause C. Fiduciary Obligations D. Pre-Merger and Post-Merger Legal Advice XI. Applications in the Partnership Context A. Access to Privileged Materials by General Partners B. Access to Privileged Materials by Limited Partners XII. Attorney-Client Privilege and Special Committees of Boards of Directors XIII. Choice of Law XIV. IRS Investigations/Tax Shelters A. Taxpayer Privileged Communications 1. Statutes 2. Identities of taxpayers B. The Section 7525 and Attorney-Client Privilege XV. Availability of Doctrine to Corporations XVI. Scope of Work-Product Protection A. Federal Rule of Civil Procedure 26(b)(3) B. Attorney’s Mental Impressions and Opinions C. Materials Prepared in Anticipation of Litigation 1. Prepared in anticipation of litigation 2. Protection in subsequent litigation a. Witness statements b. Test results c. Other materials 3. Protection after settlement D. Expert Disclosures and Draft Reports
E. Materials Prepared by or for Party or Party’s Representative F. Non-Tangible Work Product G. Work Product and Experts/Problems With Dual Roles XVII. Waiver of Work-Product Protection A. In General B. Decisions Endorsing the Selective Waiver Doctrine 1. Common interest 2. Selective versus partial waivers 3. Expectation of privacy C. The Trend Today—Rejection of Selective Waiver Doctrine 1. Waiver where there is no confidentiality agreement 2. Waiver even with a confidentiality agreement 3. Waiver/Standing XVIII. Exceptions to Doctrine A. Prospective Crime or Fraud B. Joint Attorney XIX. Showing Required to Obtain Disclosure A. Tangible Work Product 1. Showing of substantial need and undue hardship a. Upjohn Co. v. United States b. Witness statements c. Test results d. Other materials e. Effect of case management techniques 2. Protection of attorney’s mental impressions, conclusions, opinions, or legal theories a. In camera inspection b. Activities of attorney directly in issue B. Non-Tangible Work Product XX. Subsequent Counsel
Karen L. Valihura
Skadden, Arps, Slate, Meager, & Flom, LLPWilmington, Delaware