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  • (including an attorney, consultant, surety, indemnitor, insurer or agent)
  • (including an attorney, consultant, surety, indemnitor, insurer or agent)
  • Claim denied: Disclosure to PR firm not part of legal defensePrivileged – part of effort to seek legal adviceClaim denied – Hill & Knowlton was offering business advice
  • Choice of law: F.R. Evid. 501 (diversity, federal tort claims actlex loci deliciti)U.S. v. Kovel (2d Cir – 1961)
  • Pages 328-329
  • RULE 502. ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS ON WAIVERThe following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:(1) the waiver is intentional;(2) the disclosed and undisclosed communications or information concern the same subject matter; and(3) they ought in fairness to be considered together.(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:(1) the disclosure is inadvertent;(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:(1) would not be a waiver under this rule if it had been made in a federal proceeding; or(2) is not a waiver under the law of the state where the disclosure occurred.(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.(g) Definitions. In this rule:(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.Notes(Added Pub. L. 110–322, §1(a), Sept. 19, 2008, 122 Stat. 3537; Apr. 26, 2011, eff. Dec. 1, 2011.)Explanatory Note on Evidence Rule 502The following explanatory note was prepared by the Judicial Conference Advisory Committee on Evidence Rules, revised Nov. 28, 2007:This new rule has two major purposes:1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product—specifically those disputes involving inadvertent disclosure and subject matter waiver.2) It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery. See, e.g., Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D.Md. 2005) (electronic discovery may encompass “millions of documents” and to insist upon “record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation”).

Disclosure.waiver.gwc.2013 Disclosure.waiver.gwc.2013 Presentation Transcript

  • C. 4 Lawyer's Duty of Confidentiality 1 Professional Responsibility  Ch. 4 The Lawyer’s Duty of Confidentiality  Disclosure and Waiver  George W. Conk  Adjunct Professor of Law & Senior Fellow  Stein Center for Law & Ethics  Room 409  212-636-7446  gconk@law.fordham.edu
  • A barrier to discovery Not a rule of evidence Work-Product Privilege C. 4 Lawyer's Duty of Confidentiality 2
  • Work-product privilege (N.J.)  (c) … a party may obtain discovery of documents…and tangible things  prepared in anticipation of litigation or for trial by or for another party (or its agent)  only upon a showing of substantial need of the materials in the preparation of the case and  is unable without undue hardship to obtain the substantial equivalent of the materials by other means.C. 4 Lawyer's Duty of Confidentiality 3
  • Work-product privilege (N.J.)  The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. C. 4 Lawyer's Duty of Confidentiality 4
  • Keeping secrets The attorney client privilege C. 4 Lawyer's Duty of Confidentiality 5
  • Evidentiary Privileges – FRE 501  Common law privilege law governs “as interpreted in the light of reason and experience” by courts of the U.S.  - except as modified by Constitution, federal statute, or Rules of Supreme Court  If state substantive law applies, state law of privilege governs C. 4 Lawyer's Duty of Confidentiality 6
  • In re New York Renu p. 325 Report of special master Is the communication privileged? Disclosures to non-lawyer agents of the representation C. 4 Lawyer's Duty of Confidentiality 7
  • Renu Moisture-Loc  Two email chains  1) Corp and Exec to CEO, General Counsel and Hill & Knowlton PR firm Denied  2) Corp exec to CEO re need to seek legal advice from GC Sustained  3) Hill and Knowlton suggest mechanism for redemption of defective items Denied C. 4 Lawyer's Duty of Confidentiality 8
  • Privilege is in derogation of search for truth  1) Party asserting privilege has the burden of proof  2) Is a communication between attorney and advice-seeking client or  3) Is attorney work product (notes, impressions, legal theories – not facts)  4) Has not been disclosed to a stranger to the representation C. 4 Lawyer's Duty of Confidentiality 9
  • `Kovel doctrine’ Disclosure to non-lawyers is protected IF  1) Communication’s predominant purpose is to seek legal advice  2) Disclosure limited to those with “need to know” advice of counsel  3) State privilege law applies in diversity or FTCA case  4) Communication to non lawyer must be necessary to promote the lawyer’s effectiveness C. 4 Lawyer's Duty of Confidentiality 10
  • Is communication with a PR firm `necessary to the representation?  1) NO “a media campaign is not a litigation strategy” Haugh v. Schroder (2003)  2) Foreign language – company needed help from PR firm Copper Market Anti-trust Lit (2001)  3) PR firm helped counsel “create an atmosphere” to influence prosecutor In Re. G.J. (2003)  4) NY – waiver unless disclosure “absolutely necessary” to lawyer’s services C. 4 Lawyer's Duty of Confidentiality 11
  • U.S. v. Hatcher (2003) p. 330  Because the inmates and their lawyers were aware that the conversations were being recorded they had no reasonable expectation of privacy C. 4 Lawyer's Duty of Confidentiality 12
  • Losing an existing right of confidentiality Waiver of the privilege C. 4 Lawyer's Duty of Confidentiality 13
  • Development of F.R. Evid,. 502 – limitations on waiver of privilege  Pre-rule case law:  1) only intentional disclosure is a waiver  2) careless disclosure and no retrieval = waiver  3) any inadvertent disclosure is a waiver C. 4 Lawyer's Duty of Confidentiality 14
  • Fed. R. Evid. 502 Disclosure of communications or information covered by Attorney Client and Work Product Privileges  a) Communication in a federal proceeding or to a federal office or agency  b) Inadvertent disclosure  c) In a state proceeding  d) Federal court order - may limit waiver  e) party agreement - binds only parties unless incorporated in a court order C. 4 Lawyer's Duty of Confidentiality 15
  • FRE 502 Inadvertent Disclosure not a waiver if  the disclosure is inadvertent;  the holder of the privilege or protection took reasonable steps to prevent disclosure; and  the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). C. 4 Lawyer's Duty of Confidentiality 16
  • FRCP 25(b)(5)(B)  (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. C. 4 Lawyer's Duty of Confidentiality 17
  • FRCP 25(b)(5)(B)  After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; C. 4 Lawyer's Duty of Confidentiality 18
  • FRCP 25(b)(5)(B)  must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. C. 4 Lawyer's Duty of Confidentiality 19