Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Privilege, Confidential Business Information and the Work Product Doctrine, Midwest Environmental Compliance Conference, Chicago, October 29-30, 2015

Understanding Attorney Client Privilege,
Confidential Business Information and
the Work Product Doctrine
Christopher H. Dolan
Midwest Environmental Compliance Conference
October 29, 2015
1

Overview
►Why We Care
►Attorney-Client Privilege
►Work Product
►Third-Party Consultant Work Product
►Self-Evaluative Privilege
►Confidential Business Information
►Recommendations
2

Why We Care
►Emails
► work account
► personal account, if used for work
►Facebook posts
►Texts
►Tweets
►Facebook
►Voicemail
►Chat Applications
►…Paper too!
3

How Do Your Emails Turn into Their Evidence?
►Lawsuit by or against your company
►Subpoena to your company in other parties’ legal proceeding
►Regulatory Request for Information
►Discovery – almost anything goes
4

Protected Communications are “Logged,”
Not Produced
5

The party asserting the privilege
bears the burden of establishing
each element.
6
Privilege
You

Attorney-Client Privilege
►Attorney-client privilege protects confidential communications
between clients and lawyers for the purpose of obtaining legal advice.
► Communications are privileged, but not facts.
► The privilege belongs to the company, not to you.
► Privileges tend to be construed narrowly.
► Must not be for the purpose of committing crime or fraud.
► Beware overuse of the “attorney-client privilege” label.
7

Attorney-Client Privilege—Basic Elements
1 2 3 4
Communication Between
Attorneys
& Clients
In
Confidence
Purpose:
Legal Advice
8

How To Lose The Privilege
1 2 3 4
Attorneys
& Clients
In
Confidence
Purpose:
Legal Advice
Non-
lawyers
9

1 2 3 4
Attorneys
& Clients
In
Confidence
Purpose:
Legal Advice
Tell Someone
Outside of the
Circle
10

1 2 3 4
Privileged
Persons
In
Confidence
Purpose:
Legal Advice
Business
Communications
11

From:
Sent:
To:
CC:
Subject:
Our company totally messed this one up in the following ways:
(1) lying;
(2) bribing;
(3) stealing.
I'm cc'ing Sarah Lawyer on this so it's privileged.
Business, Joe
Wednesday, March 4, 2015 11:55 PM
Business, Jane;
Lawyer, Sarah
The big disaster
Example 1
12

From:
Sent:
To:
CC:
Subject:
Sarah,
I need your legal advice on this situation.
(1) lying;
(2) bribing;
(3) stealing.
I'm cc'ing Sarah Lawyer on this so it's privileged."
Business, Joe
Business, Jane
Lawyer, Sarah
The big disaster
1. State that you are seeking legal
advice.
Example 1
13

From:
Sent:
To:
CC:
Subject:
Sarah,
(1) lying;
(2) bribing;
(3) stealing.
Business, Joe
Lawyer, Sarah; Business, Jane
Lawyer, Sarah Business, Jane
The big disaster
2. Direct the communication to the
lawyer or other legal
professional from whom legal
advice is being sought.
Example 1
14

From:
Sent:
To:
CC:
Subject:
Sarah,
(1) lying;
(2) bribing;
(3) stealing.
Business, Joe
Lawyer, Sarah
Business, Jane
The big disaster The ABC Matter
3. Keep the subject neutral.
Example 1
15

From:
Sent:
To:
CC:
Subject:
Privileged and Confidential—Attorney-Client Communication
Sarah,
(1) lying;
(2) bribing;
(3) stealing.
Business, Joe
Lawyer, Sarah
Business, Jane
The ABC Matter
4. Label the communication
“Privileged and Confidential—Attorney-
Client Communication.”
Example 1
16

From:
Sent:
To:
CC:
Subject:
Sarah,
I need your legal advice.
Our company totally messed this one up in may have done the
following:
(1) lying Said we released two gallons of hazardous substances;
(2) bribing; Offered a position to the Administrator’s daughter;
(3) stealing. Moved dedicated remediation funds to the operating
account.
Business, Joe
Lawyer, Sarah
Business, Jane
The ABC Matter
5. Even if you think it’s privileged
– don’t forget your email basics.
Example 1
17

From:
Sent:
To:
CC:
Subject:
Sarah,
I need your legal advice. Can we set up a time to talk?
Our company totally messed this one up in may have done the
following:
(1) lying Said we released two gallons of hazardous substances;
(2) bribing; Offered a position to the Administrator’s daughter;
(3) stealing. Moved dedicated remediation funds to the operating
account.
Business, Joe
Lawyer, Sarah
Business, Jane
The ABC Matter
6. And there’s nothing wrong with
a phone call.
Example 1
18

From:
Sent:
To:
CC:
Subject:
Everyone,
FYI – from legal.
Jill
______________________________________________
From: Lawyer, Tom
Sent: Tuesday, September 24, 2007 3:17 PM
To: Business, Jill
Subject: Legal Advice
I think dumping the hazardous waste is illegal. Don’t do it.
Business, Jill
Tuesday, March 3, 2015 9:23 AM
Mark; Jack; Sue; Steve; Tom; Nancy; Amy; Eric; Jim; Tina
Tim Vendor
FYI
Example 2
19

From:
Sent:
To:
CC:
Subject:
Everyone,
FYI – from legal.
Jill
______________________________________________
From: Lawyer, Tom
To: Business, Jill
Business, Jill
Tim Vendor
FYI
Recommendation: Do not
forward legal advice to people
outside of company.
Example 2
20

From:
Sent:
To:
CC:
Subject:
Everyone,
FYI – from legal. Do Not Forward.
Jill
______________________________________________
From: Lawyer, Tom
To: Business, Jill
Business, Jill
FYI
Recommendation: Forward
legal advice internally on a need-
to-know basis only. Instruct
others not to forward it.
Example 2
21

From:
Sent:
To:
CC:
Subject:
Hi everybody – Take a look at this article, is this a consultant we
should be doing business with?
Thanks,
Jill
Business, Jill
Monday, March 2, 2015 2:37 PM
Lawyer, Tom; Business, Mark; Business, Jack
article
Example 3
22

From:
Sent:
To:
CC:
Subject:
Hi everybody – Take a look at this article, is this a consultant we
should be doing business with?
Thanks,
Jill
Business, Jill
Monday, March 2, 2015 2:37 PM
Lawyer, Tom; Business, Mark; Business, Jack
article
Remember, not all communications
with lawyers are privileged—the
subject matter needs to be legal.
Example 3
23

Work Product Doctrine
►Attorney work product doctrine protects materials (including notes)
prepared by or on behalf of an attorney in anticipation of litigation.
►“Anticipation of litigation” means that the material must be:
► Prepared before or during litigation (or threat of litigation), and
► For the purpose of litigation specifically, and not some other purpose.
►Waived if party shares document/information/opinion with third party.
► Document itself is protected, underlying facts are not.
24

Work Product: What Isn’t Covered?
►Materials prepared before litigation anticipated
►Materials prepared in ordinary course of business
►Materials that are not kept confidential
►Fact work product – substantial need
►Whether you reference potential litigation is important
25

Third-Party Consultant Work Product
► Communications with consultants, including consultant-attorney
communications, reports, technical studies, and laboratory tests, may
be protected if prepared at attorney’s direction/supervision in
anticipation of litigation.
►“Anticipation of litigation” includes when an agency issues a request
for an investigation.
►Protection more likely if consultant considered retained by counsel.
►Lawyer should be included on communications with consultants where
possible.
26

Self-Evaluative Privilege
► 25 States have passed laws and/or rules establishing limited
self-evaluative privileges.
► Can be helpful in environmental audit situations.
► Rules vary by state.
► Do your research in advance.
►
► Courts interpret these privileges narrowly.
27

Requests for Information
►EPA and DOJ are aggressively using RFIs to identify violations
► CWA § 308, CAA § 114, RCRA § 3007(a), and CERCLA § 104(e)
► Extremely broad RFIs
► Not limited to documentation of violations or compliance issues
► May include routine documentation and communications
28

Confidential Business Information
►CBI is broadly defined as proprietary information, considered
confidential to the submitter, the release of which would cause
substantial business injury to the owner.
►Broadly defined, but narrowly construed.
►CBI is not a Privilege.
►CBI as a Tool to Limit Public Disclosure.
29

Recommendations to Protect Communications
►If requesting legal advice, state that you are requesting legal advice.
►Label legitimate communications as “Privileged and Confidential—
Attorney-Client Communication.”
►Explain the purpose of the document.
►Sending a message to a lawyer does not guarantee it will be
privileged.
►Limit the use of ccs to maintain the privilege.
► Beware of e-mail strings.
►Include only non-lawyers on a need to know basis.
►Include a “Do Not Forward” line and abide by it.
►Strictly follow by your company’s document retention policy.
►If it doubt, call… your lawyer.
30

Don’t . . .
►Write when you can call (or even better, meet in person).
►“Fire off” an email, text, post, etc.
►Joke or kid about things that would be very bad if you meant it
►Be flip or sarcastic
►Exaggerate or overstate things
►Use absolutes
►Say things you do not know to be true
►Swear
►Reply all unless you really, really mean it
31

Comments and Questions?
Christopher H. Dolan
chris.dolan@faegrebd.com
612-766-8849
32

Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Privilege, Confidential Business Information and the Work Product Doctrine, Midwest Environmental Compliance Conference, Chicago, October 29-30, 2015

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Christopher H. Dolan, Faegre Baker Daniels, Understanding Attorney Client Privilege, Confidential Business Information and the Work Product Doctrine, Midwest Environmental Compliance Conference, Chicago, October 29-30, 2015