Access to the case file and protection of confidential information – HOWELL –...
Disclosure.waiver.gwc.2013
1. 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
2. A barrier to discovery
Not a rule of evidence
Work-Product Privilege
C. 4 Lawyer's Duty of Confidentiality 2
3. 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
4. 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
6. 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
7. 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
8. 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
9. 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
10. `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
11. 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
12. 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
13. Losing an existing right of confidentiality
Waiver of the privilege
C. 4 Lawyer's Duty of Confidentiality 13
14. 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
15. 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
16. 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
17. 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
18. 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
19. 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
Editor's Notes
(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”).
