www.bruneandrichard.com Recent Developments and Ethical Issues in Attorney-Client Privilege and Work Product Hillary Richard PLI February 18, 2015
Attorney-Client Privilege A communication Made between privileged persons In confidence For the purpose of obtaining or providing legal assistance for the client Restatement (Third) of Law Governing Lawyers 68 2
Attorney Work Product tangible material or its intangible equivalent in unwritten or oral form, other than underlying facts, prepared by a lawyer for litigation then in progress or in reasonable anticipation of future litigation Restatement (Third) of Law Governing Lawyers 87 3
2014: A Big Year in Internal Investigations Privilege Jurisprudence In re General Motors LLC Ignition Switch Litigation (S.D.N.Y.) In re Kellogg Brown & Root (D.D.C. & D.C. Cir.) 4
In re General Motors LLC Ignition Switch Litigation -- F. Supp. 3d --, 2015 WL 22105 (S.D.N.Y. Jan. 15, 2015) The Valukas Report Jenner & Block and chair Anton Valukas Interviewed more than 200 current and former GM employees in approximately 350 interviews Collected over 41 million documents Submitted report to Congress, DOJ, NHTSA, and plaintiffs in ignition switch MDL 5
In re General Motors LLC Ignition Switch Litigation GM Held Back: Notes taken during interviews Summaries created after interviews Formal interview memos 6
In re General Motors LLC Ignition Switch Litigation Materials Found Privileged Because: Upjohn squarely applied Primary purpose of Jenner s investigation was to provide legal advice 7
In re General Motors LLC Ignition Switch Litigation Protected Work Product Under FRCP 26(b)(3): preparing a document in anticipation of litigation is sufficient even if business decisions also in play 2015 WL 22105, at *9 notes and memos would not have been created in essentially similar form had [GM] not been faced with the inevitability of such litigation 2015 WL 22105, at *10 8
In re General Motors LLC Ignition Switch Litigation No Waiver Had not used report offensively Had not made selective or misleading presentation that was unfair to plaintiffs 9
U.S. ex rel Barko v. Halliburton -- F. Supp. 2d --, 2014 WL 1016784 (D.D.C. Mar. 6, 2014) Qui tam False Claims Act case alleging KBR inflated costs and accepted kickbacks on defense contracts in Iraq After receiving tips, KBR personnel had investigated underlying conduct and then reported to KBR legal 10
U.S. ex rel Barko v. Halliburton District court found investigation materials weren t privileged Applied but for test Found investigation done pursuant to company policy and regulatory law, not for purpose of obtaining legal advice Materials weren t protected work product because investigation conducted in ordinary course of business, not in anticipation of litigation 11
In re Kellogg Brown & Root 756 F.3d 754 (D.C. Cir. 2014) D.C. Circuit Grants Mandamus Interviews were protected attorney-client communications under Upjohn No magic words required District court erred in applying but for test 12
Back to the District Court U.S. ex rel Barko v. Halliburton, 05 Civ. 1276 (D.D.C. Nov. 20, 2014) ( November Order ) U.S. ex rel Barko v. Halliburton, 05 Civ. 1276 (D.D.C. Dec. 18, 2014) ( December Order ) 13
The November Order At-issue waiver Sword-and-shield approach on summary judgment Fairness 30(b)(6) witness used CBOC reports to refresh recollection before testifying 14
The December Order Fact Work Product Portions of the reports were fact work product, not opinion work product Discoverable based on need Events occurred many years ago Many witnesses Many witnesses foreign and/or had left company 15
Best Practices from GM and Barko Put lawyers, not business or compliance people, in charge of internal investigations Have attorneys conduct interviews Integrate legal analysis into interview memoranda 16
Best Practices from GM and Barko Tell witnesses up front that they are being interviewed by counsel representing the company for purposes of obtaining legal advice Upjohn warning Model Rule of Professional Conduct 1.13(f) Use the fruits of the investigation carefully Respect duty of candor to the court 17
Common Interest Privilege If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged... that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communications. Restatement (Third) of Law Governing Lawyers 126 18
Ambac Assurance Corp. v. Countrywide 124 A.D.3d 129 (1 st Dept. 2014) Broadened scope of common interest privilege in New York by holding that in today's business environment, pending or reasonably anticipated litigation is not a necessary element of the commoninterest privilege primary purpose for the communication still must be to obtain legal, not business, advice 19
Joint Representation Privilege Requires consent of all clients and no substantial risk that the lawyer will be unable to fulfill duties to all Waiver requires consent of all joint clients, although client may unilaterally waive as to its own communications with counsel Written agreement is preferable but not required Legal interests must be identical, or nearly so, because lawyer must be able to zealously advocate for both If and when parties become adverse and sue one another, communications made during the course of the joint representation become discoverable 20
Common Interest/Joint Representation Practice Pointers Know what law will apply to privilege issues arising out of a common interest or joint representation scenario Document the privilege in a written agreement Include legal advice in communications Remember that purely business advice is not privileged Ensure that clients relay information through their attorneys Client-to-client communications are subject to disclosure 21
Common Interest/Joint Representation Practice Pointers Clearly label communications as subject to a common interest agreement When representing multiple clients, be on alert for signs that their interests are diverging and consider getting separate counsel to avoid privilege waivers, if so Remind co-clients that if a dispute develops between them, adverse litigation destroys the privilege 22