Attorney-Client Privilege and Work Product

Attorney-Client Privilege and Work Product

Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.

There are times when a party to litigation (“the requesting party”) seeks the production of information from another party (“the producing party”) that the latter refuses to produce, contending that the information can be withheld on the basis of attorney-client privilege and/or the work product doctrine. There are other reasons why otherwise discoverable information could be withheld, but this post will only address privilege and work product. A recent decision, In re: Abilify (Aripiprazole) Products Liability Litig., No. 16-md-2734 (N.D. Fl. Dec. 29, 2017), provides a framework for dealing with assertions of privilege and work product.

Abilify is a products liability action based on allegations that an anti-psychotic medication causes certain compulsive behavior. The plaintiffs moved to compel production of various documents withheld by the defendants on privilege and work product grounds. The Court described the dispute before it as follows:

“As a general proposition claims of attorney-client privilege and work product protection should be fairly straightforward in application. But, as is the situation in most complex cases litigated in federal court, disputes arise frequently concerning whether documents are privileged. Raising claims of privilege and resolving these claims require the parties to incur great expense and expend extensive time reviewing, identifying and litigating claims of privilege. This case is certainly no different.

Defendants primarily raise two types of privilege claims—attorney-client and work product. While both doctrines protect from disclosure documents and other information, there are differences between the two. With regard to attorney-client privilege the underlying purpose of the doctrine is to encourage the client to communicate freely with the attorney. Work product protection on the other hand encourages careful and thorough preparation by the attorney. And sometimes both doctrines may apply to a single communication. An email or memo may contain confidential legal discussions between client and lawyer and at the same time disclose the preparation by the attorney in anticipation of legal proceedings. But even though a party claims both privileges or protections as to the same document the Court must analyze the applicability of each privilege or protection separately.

In this case, Plaintiffs challenge as a threshold argument the sufficiencies of Defendants’ logs. Plaintiffs say that Defendants’ logs are so inadequate that the logs as a whole are legally insufficient to raise claims of privilege. Alternatively, Plaintiffs argue that nine specific categories of objections are suspect or insufficient to support Defendants’ claims of privilege. The Court will first address the sufficiency of Defendants’ logs and then resolve whether Defendants’ claims of privilege as to specific categories of documents are well supported.”

The Court first addressed the adequacy of the logs. The content of a log is described in Rule 26(b)(5)(A)(ii) of the Federal Rules of Civil Procedure. It must “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” The Court found that the logs, together with other information that was disclosed by the defendants, met the requirements of the rule.

The “other information” was gleaned from the Court’s in camera review of the withheld information. An in camera review allows a judge to look at information on an ex parte basis, that is, to look at information withheld from another party without that party having an opportunity to look at it. The Court did that in Abilify after it had conducted an in camera review of a sample of the withheld information because “a full review was necessary to make sure that the privileges asserted were valid.”

I plan to return to the Abilify discussion in a future post to discuss more specific objections to the defendants’ assertions of privilege and work product. However, several lessons can be drawn from this blog. First, Rule 26(B)(5)(A)(ii)—and similar State rules—require that a log be prepared when otherwise discoverable information is withheld because of privilege or work product. Second, a party should have a process in place to identify such information, segregate it from what is discoverable, and generate an adequate log. That process might be automated, especially when large volumes of information might be subject to production. Moreover, review of a party’s information might not be undertaken in-house, but instead by retained counsel.


**Editor’s Note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as legal advice.

Ron Hedges, JD, is a former US Magistrate Judge in the District of New Jersey and is a writer, lecturer, and consultant on topics related to, among other things, electronic information. He is a Senior Counsel with Dentons US LLP.
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