Overcoming bogus privilege objections – one at a time
It is no secret that the discovery process in an employment case, as in many other contexts, frequently devolves into a long, drawn-out slog – the more so if an employee’s claim is clearly meritorious and evidence supporting their strong claim resides exclusively with the employer. Corporate defendants, well aware of the inevitable information asymmetry, deploy an array of tricks to obscure, delay, limit, and thwart the production of documents or information necessary to prove an employee’s claim. One of the most insidious obstructionist tactics is bad-faith assertion of the attorney-client privilege (ACP). This article explores how to overcome the common methods by which employers misuse the ACP in the employment litigation context.
As a quick refresher, the ACP is an evidentiary privilege that may be used to prohibit the disclosure of documents or information if such documents or information meet four requirements:
1) a communication1,
2) made between an attorney and a client,
3) that is made in confidence, and
4) made for the purpose of seeking, obtaining, or delivering legal advice.2
The burden is on the party asserting the privilege to establish “the preliminary facts necessary to support its exercise.”3 However, unlike some privileges, which the court may order disclosed for in camera review to prove or disprove the “preliminary facts”4 of the privilege, a California court or a federal district court sitting in diversity over California state-based claims cannot order the production of documents or information that a party claims is covered by the ACP in order to rule on whether the documents or information are actually covered by the ACP.5 A federal district court not sitting in diversity, while authorized to compel the production of materials claimed to be covered by the attorney-client privilege under certain circumstances6, likely will be reluctant to do so for public policy reasons (at least in the first instance).
Accordingly, you have three options to defeat a claim of ACP: (1) show that defendant did not establish the “preliminary facts” of the ACP without reviewing the privileged material, (2) demonstrate that the ACP was waived, and (3) argue that an exception to the assertion of the ACP applies. All three of these strategies rely principally on first obtaining a privilege log from defendant.
Obtaining a privilege log is key
Reviewing a defendant’s privilege log is not a glamorous task. But, a dutiful review of the privilege log7 is critical to getting ultimately the evidence you need to prove your case, and more specifically, to establish the ACP does not apply, any privilege was waived, and/or an exception to the ACP applies.
Neither the CCP8 nor the FRCP9 requires a party to produce a privilege log every time a party withholds documents or information on account of privilege. However, both sets of rules require the party claiming the ACP to “provide sufficient factual information for other parties to evaluate the merits of that claim,”10 and if the ACP is asserted over a broad class of documents, a privilege log becomes the only practical way of satisfying this requirement.
The purpose of the privilege log, ultimately, is to “permit a judicial evaluation of the claim of privilege” without requiring disclosure of the underlying documents. (Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-89.) So, what does a judge need to see in the privilege log to determine if the privilege applies, if the privilege has been waived, or an exception applies?
Federal and California state courts typically order the holder of the privilege to provide the following information in a good-faith privilege log11:
• Identity and role of senders and recipients of purportedly privileged document/information;
• Description of each document/information withheld or redacted;
• The specific ground for withholding each document/information, e.g., ACP, work-product, constitutional right of privacy, etc.
If defendant fails to produce a privilege log after making a claim of privilege, then you should immediately send a meet and confer letter demanding one. Do not agree to any privilege log that lacks one of the three requirements above. At the same time, do your best to obtain a privilege log of some kind informally. Otherwise, when you bring your motion to compel production of documents, the court likely will only order defendant to produce a privilege log. However, if you already have a deficient privilege log in hand, then you can move to compel further responses, thereby potentially saving on needless motion practice and reducing delay created by defendant’s obstructionism. Moreover, a deficient privilege log, produced after a court order compelling a sufficient privilege log, provides you with grounds to request monetary sanctions, issue sanctions, evidentiary sanctions, or terminating sanctions.12
After you obtain an adequate privilege log, determine whether the ACP applies in the first instance.
When elements of ACP are not met
As a threshold matter, only “communications” to an attorney or at the direction of an attorney are covered by the ACP. A party cannot cloak the underlying factual matter of a communication to an attorney in privilege merely because it was transmitted to an attorney after the fact.13 For example, just because an attorney at some point reviewed a policy governing a witness’s job duties does not enable an employer to preclude that witness from testifying as to how he regularly does his job in defendant’s employ.14 Similarly, the time, date, and general nature of legal representation are not protected by the ACP, because such information is not a communication.15 Examine the privilege log for any similar withheld documents, and also record each instance such information is shielded during deposition on the basis of ACP.
Next, examine the privilege log for the recipients and senders of the purportedly privileged documents and note any communications between non-attorneys that are claimed to be covered by the ACP. Unless there is information provided in the log explaining why a communication between two non-attorneys falls under the ACP, e.g., the non-attorneys are transmitting information between each other at the direction of an attorney, the privilege holder has failed to establish that the communication is covered by the ACP.16
Some corporate and government defendants, knowing that courts either cannot or are hesitant to compel disclosure of documents or information purportedly covered by the ACP, copy legal counsel on routine e-mails and communications as a general policy, thereby blurring the line between which communications and documents are for the purpose of seeking, obtaining, or delivering legal advice as opposed to solely for a business purpose, such as negotiating a deal. As one court observed, in a dispute about whether to compel disclosure of communications by an attorney hired to engage in collective bargaining, extending the ACP to routine business communications such as these “unfairly reward[s] those organizations able to hire attorneys as their negotiators because their communications concerning pending negotiations would be protected, whereas the communications of organizations with lay negotiators would not receive protection.”17
To deal with these types of communications where the purpose of the communication is obscured, both federal and California state courts have adopted a “primary” or “dominant” purpose test to determine whether a communication purportedly covered by the ACP actually satisfies the “preliminary facts” necessary to establish the ACP.18 For example, if an attorney is hired to perform a task that could be performed by a non-attorney, e.g., handling labor negotiations, and no legal analysis is performed by the attorney, then the ACP is inapplicable.19
Accordingly, develop a factual record to show that the attorney – who should be identified in the privilege log – was hired as a negotiator, trustee, etc., rather than someone that provides legal advice. For example, use the descriptions of the withheld documents to argue that the documents sent are not for the purpose of legal representation. Analyze the To:/From: lines to see if the attorney is actually responding to any e-mails, or is merely being copied on emails by non-attorneys. If redacted e-mails were produced, then identify if different versions of the e-mail chain were produced – some versions of the e-mail chain may have less redaction than others, thereby revealing the lack of any legal advice sought or provided. In addition, in depositions, ask about any practice or policy of copying legal counsel as a matter of course on all communications. These are only some of the ways by which you might be able to establish that the dominant purpose of a relationship between two individuals is not attorney-client or protected by the ACP.
Once you have completed your analysis of the privilege log, relevant discovery, and your own investigation file, you must decide whether you are convinced that the relevant documents are covered by the ACP. If it appears that the documents you seek are legitimately covered by the ACP, at least initially, do not despair. The privilege might still have been waived, or an exception might apply.
If the privilege log checks out, consider waiver
Even if the “preliminary facts” establishing the ACP have been met, you should determine if the ACP has been waived for a particular document or communication. A party can waive the ACP
in a variety of ways, but the essence of waiver is that a party has explicitly or implicitly consented to the disclosure of the purportedly privileged document or information.20 Examples include:
• Allowing a non-represented third party to be present at a meeting or to be copied on correspondence between a client and an attorney, unless the third party is reasonably necessary to the representation;21
• Copying individuals on purportedly privileged communications who did not need to know the information, including employees within the defendant entity;22
• Failing to object timely to a request for privileged documents or information, including at the administrative exhaustion phase;23
• Failing to file a motion to strike pleadings if the purportedly privileged information or documents appear in your complaint;24
• Putting the contents of the privileged documents at issue in the case;25 and
• The privilege holder asking about the contents of the privilege documents/ information at your client’s deposition.26
Each of these examples, while not exhaustive of the many ways a party can waive the ACP, are grounds to assert that the purportedly privileged material must be produced even if the “preliminary facts” of the ACP are met.
Does an exception to the ACP apply?
Even if you are satisfied that a withheld or redacted communication satisfies the “preliminary facts” of the ACP, and no waiver argument is apparent from your review of the privilege log,
discovery produced to date, and your own investigation of the case, you should still consider whether an exception to the ACP applies. Several exceptions to the ACP bear reviewing for applicability to your particular case, e.g., the crime-fraud exception to the ACP.27
Ask for sanctions for privilege abuse
The California Code of Civil Procedure provides a statutory basis for requesting sanctions28 on account of “misuses of the discovery process,”29 including “[m]aking, without substantial justification, an unmeritorious objection to discovery.” This includes meritless objections based on the purported applicability of the ACP.30
Because courts reserve issue and terminating sanctions for repeated discovery misuse and/or disobedience with prior court orders, it is vital to keep pushing for supplementary privilege logs and declarations as to the basis of the ACP. Give the court an adequate record to fashion the stringent remedies you are seeking.
Clients need to be able to speak frankly and openly with their attorneys, but that should not be a blank check for defendants to cover up wrongdoing. With these tips in mind, we encourage you to continue the struggle to realize dignity in the workplace – by overcoming one bogus privilege objection at a time.
Eduard Meleshinsky is an associate at Bryan Schwartz Law, where he focuses on employment discrimination, disability accommodation, whistleblower retaliation, and wage and hour claims. During and immediately after graduation from Berkeley Law, Mr. Meleshinsky was a fellow or intern with the Lawyers’ Com-mittee for Civil Rights of the San Francisco Bay Area, Legal Aid Society-Employment Law Center’s Workers’ Rights Clinic, and East Bay Community Law Center’s Neighborhood Justice Clinic, and externed with the Honorable Judge Lucy H. Koh of the United States District Court for the Northern District of California.
2023 by the author.
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