Litigation tends to focus everyone on their rights and remedies. But rights, remedies and privileges can be diluted, muddied or waived before litigation commences. The interests of good client service and marketing should prompt us to remind clients about how to preserve their discovery rights before they get sued, even when they are not faced with impending litigation.
Our clients need to know that there are two broad categories of material that might be subject to protection: (1) attorney-client privileged communications and (2) work product. Work product may be subdivided into true attorney work product and non-attorney work product, which might include materials “prepared in anticipation of litigation.”1 Non-attorney work product is what clients often deal with when conducting pre-litigation investigations.
Clients should be educated about privileges and both kinds of work product before litigation ensues. They should know that the privilege and work product protections can include not only their attorneys, but also consultants, sureties, indemnitors, insurers and agents.2 We need to counsel them to appropriately keep and treat communications with such persons as confidential legal documents, akin to their correspondence with us.
An organization’s constituents who are typically charged with communicating with the organization’s lawyers or conducting investigations in anticipation of litigation also should treat their communications as confidential in order to maintain the appropriate protection. Those constituents should be reminded that although they may not be clients of yours, their communications to you in their capacity as constituents are confidential under the ethics rules.3 This remains true even if opposing counsel may contact them under relevant case law4 (something about which they should be forewarned).
Washington clients should know that certain post-incident communications are not discoverable when they fall within the work-product protection.5 “[U]nder both the federal and Washington rules, there is no distinction between attorney and nonattorney work product.”6 In general, “there is no justification for discovery of the statement of a person contained in work-product materials when the person is available for deposition.”7 Not even impeachment, by itself, justifies discovery of work product.8
Clients can waive attorney-client privilege if they are not careful to keep the communications privileged and private. This is an increasingly common problem through the inadvertent or indiscriminate use of the “Reply to All” button on email. Clients also can waive attorney-client privilege by forwarding email messages to those who are not similarly situated constituents or counsel.
A client’s information technology department can, and should, move this troublesome button to an inconvenient location on the toolbar so that it cannot be hit by accident. Law firms already are doing this. Another solution is to create a specific email contact list that is limited to counsel and those with authority to guide the representation. This ensures that email communication stays within the circle of privilege or does not extend beyond protected constituents.
A similar concern with computer programs that automatically fill in addressees also should be addressed with clients. The recently much-publicized mistake by an attorney at Sidley Austin on behalf of Eli Lilly should be a sufficient example.
Email is not the only problem, however. Clients (and employees in the law firm) need to be cautioned about all forms of electronic communication. Portable data storage devices (thumb drives and laptop computers) need to be encrypted. And our clients and their employees should be counseled not to speak with counsel using insecure cordless phones at home or to work on wireless networks that lack encryption while communicating confidential information. Any of these things can result in a loss of the reasonable expectation of privacy and the inadvertent waiver of privilege.
Clients should understand the concept of what is prepared in anticipation of litigation and, thus, protectable. This concept is not intuitive and is contrary to the way most people think and behave.
Clients often assume that their own communications are private or protected. Generally, non-attorneys do not conceptually or actually segregate their communications between business practices and tasks. Thus, when clients investigate an incident as part of their ordinary business practices, as opposed to anticipation of litigation or a claim, that investigation is not protected from discovery, despite their belief that the investigation was private or confidential.
Clients also should know that when an investigation is in specific response to a demand or other reason to expect a claim, it may be protected from discovery. When clients initiate an investigation regarding a matter that has any potential for litigation, they should call their attorney to discuss how best to preserve the protections as to this work product. For example, clients should make distinct titling choices in reports and memos to memorialize and reflect the protected nature of the communication.
Clients also should consider implementing a protocol to inform those participating in an investigation that their role is not simply an act within the ordinary course of business. They should train their employees on the important difference between filling out an incident report and preparing for litigation or responding to a request from the attorney.
You, as attorney, may frequently rely upon the information in such reports. You may even want to hand these reports over when they contain useful information. You probably cannot pick and choose when you want to waive protection. For that reason, such materials should be kept within the circle of privilege until you and your client can make an informed decision about waiver of work-product protection. By educating our clients in advance, we can help them conform their behavior to the counterintuitive requirements of the privilege and work-product rules.
The court rules are evolving in this area, particularly with electronic communication. Until Congress passes proposed federal ER 502, which will address inadvertent waivers of privilege or work-product protection, you and your clients should presume that inadvertent waiver is a genie that will not return to its bottle once uncorked.
Looking through the lens of litigation heightens our clients’ perception of the rigors of privilege and work-product protection. This sensitivity can and should be developed long before a lawsuit. This not only increases the likelihood that investigative practices will not be confused with business practices, but it also will reduce the likelihood that important privileges and protections will not be waived.
Christopher Howard and Colin Folawn are trial lawyers at Northwest law firm Schwabe, Williamson & Wyatt. They co-host Schwabe’s monthly ethics hour CLEs and can be contacted at 206 622-1711 or choward@schwabe.com and cfolawn@schwabe.com.
1 Wash. R. Civ. P. 26(b)(4).
2 Id.
3 RPC 1.13, cmt. 1–2; see generally RPC 1.6.
4 See generally Wright v. Group Health, 103 Wn.2d 192, 691 P.2d 564 (1984).
5 See Heidebrink v. Moriwaki, 104 Wn.2d 392, 393, 401–02, 706 P.2d 212 (1985).
6 Id. at 396.
7 Id. at 402.
8 Id.
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