Privileges in 2021—Year in Review

The year 2021 brought a wide range of privilege issues for our consumption and edification. Several others published articles worthy of our time, as I reviewed in Practice Tips, Ideas, and Considerations: Privilege Articles from 2021.  As for case-law development, we saw a few fun things, like a major anniversary and Justice Barrett’s first opinion; a few concerning things, like imposition of sanctions for a lawyer’s misuse of privilege objections; and a few educational things, like whether to ever “cc” an in-house lawyer, how to engage a consultant, and differing privilege views of email attachments

So, let’s review an interesting privilege year.

Upjohn’s 40th Anniversary

The U.S. Supreme Court issued its decision in Upjohn Co. v. United States in January 1981—40 years ago—and it remains the leading opinion on the scope of the corporate attorney–client privilege. The case featured an American-made story of corporate success, lions of the Supreme Court Bar, and three (yes three) Chief Justices. The case has aged well and is worth a re-read for a host of reasons. You can read my summary in Happy 40th Anniversary, Upjohn!.

Justice Barrett’s First Opinion is a Privilege One!

Judge Amy Coney Barrett became an Associate Justice of the Supreme Court on October 20, 2020 and authored her first opinion on May 4, 2021. The case involved the deliberative-process privilege, and Justice Barrett ruled that this privilege protected a governmental agency’s non-final opinion even though that opinion caused an EPA rule change. This ruling solidifies the privilege for non-final agency decisions, and you may read more about it in First Opinion: Justice Barrett Upholds Deliberative Process Privilege for Agency’s Draft—But Effectively Final—Decision.

Privileges in Insurer–Insured Disputes

Application of the attorney–client privilege in the insurance-claims world remains inconsistent and tricky.  In 2021, the NFL won a privilege dispute in a lawsuit with its insurers over coverage for former players’ CTE claims.  The case involved cooperation clauses and the common-interest doctrine, and you may read about it in Protecting the Shield: NFL Wins Privilege Dispute with Insurers over Defense of CTE Litigation.

Internal Investigations

The year 2021 once again brought privilege issues arising from a company’s internal investigations.  For example, in a trade-secrets case, Tesla successfully used the privilege to prevent its adversary from obtaining notes and interview summaries from its internal investigators. But later, Tesla unsuccessfully sought to pierce the privilege of its adversary’s internal investigation. Lots of lessons here, as you can read about in A Tale of Two Tesla Investigation-Privilege Decisions.

Facebook, too, dealt with privileges and internal investigations.  Facebook appeared to take all the right steps to protect its internal investigation, but the court nevertheless allowed the Massachusetts Attorney General to “borrow” the investigation for a criminal investigation, as discussed in Authorized Piggybacking: Mass.’s Top Court Allows AG a Partial Review of Facebook’s Internal Investigation.

And Sea Ray thought it had protected its internal investigation, but ultimately lost all protections for the reasons described in Capsized! Sea Ray Wins—Then Loses—Work Product Protection Over Investigator’s Report.

In-House Lawyers

As always, courts saw challenges to privilege assertions from in-house counsel.  One court answered an interesting question on whether the privilege applies to an in-house lawyer’s advice found in business documents, as you can read about in In-House Lawyer Quandary: Business Advice or Implementation of Legal Advice as Part of a Business Decision?.

Does it trouble you in-house lawyers when a business type copy you on email?  How does the privilege apply, if at all? In my article, To CC, or Not to CC, That is the In-House Privilege Question, published in Today’s General Counsel, I explore how courts address the legal-advice component of the privilege in these situations.

And just because an in-house lawyer asks for something doesn’t always mean that it’s privileged.  Explore why one company lost privilege protection in just that situation in Heightened Scrutiny? Court Rejects Marathon’s Oil’s Privilege Claim for Spreadsheet Created at In-House Lawyer’s Request.

Privileges and Depositions

Are privilege objections during depositions increasing? Or are courts just addressing the issue more often?  Either way, 2021 saw a few important deposition-privilege issues.  For instance, in Sanctions Imposed for Lawyer’s “Repeated, Improper” Privilege Objections, you can learn how not to assert privilege objections.  One court rejected a lawyer’s instruction to his client not to answer a question for reasons explained in Inextricably Linked? Court Rejects Lawyer’s Instructions Not to Answer Deposition Question about Co-Client Communications.

In what some may say is a form-over-substance ruling, a court rejected Fitbit’s attempt to depose an attorney as can see in Misstep: Fitbit Thwarted from Deposing Attorney—But Not for Privilege Reasons.  And before you claim that the company CEO knows nothing other than privileged information received from the in-house legal department, read “All I know is What the GC Told Me!” Court Allows CEO’s deposition but With Some Privilege Protections.

Choice of Privilege Law

Try as we do, we cannot forget the importance of conflicts of privilege laws in determining whether a privilege ultimately protects certain communications from disclosure. You can see how this issue arises—and how it may play out for you in the future—in Deep Dish! Illinois Court Rejects New York Privilege Law in Interstate Subpoena Scuffle.

Consultants

Does the privilege cover a corporate lawyer’s communications with a third-party consultant? Well, it depends of course. One company failed to secure privilege protection through an inadequate engagement letter, as detailed in Court Rejects Privilege Protections for Bank’s Communications with Navigant Consulting.  Yet, a different court protected a lawyer’s communications with a consultant helping with an investigation for the reasons described in A Derivative Privilege: Court Protects Counsel’s Use of Consultant During Internal Investigation.  A compare-and-contrast here provides a few practice tips.

Privilege Protection for Email Attachments

Are attachments to privileged emails privileged? After you decipher that question, you may read about two federal courts that reach completely opposite conclusions on how to answer this question in Courts Duel over Privilege Protection for Email Attachments.  And from this point forward, you’ll think twice about clicking the “Attachment” button on those emails.

Blanket Privilege Objections

We see these decisions every year, so lawyers must learn that asserting blanket privilege objections comes with some risk of peril.  You will learn a few lessons by reading Blanket Privilege Objection with No Privilege Log Constitutes Waiver—and Bad Faith, Court Rules.

DOJ Filter Teams

Due to criminal investigations into news-attracting types like Michael Cohen and Rudy Guiliani, over the last couple of years the DOJ’s use of filter teams to make privilege decisions over seized documents has entered the mainstream news. While less high-profile, the 11th Circuit approved a filter-team privilege protocol that could serve as a model for other corporations that see authorities raid their lawyers’ offices. Read about it in “Not Even Close”! 11th Circuit Approves DOJ Filter-Team Protocol for Review of In-House Lawyer’s Emails.

So, there it is—important highlights on evidentiary privileges that arose in 2021.  Thanks for joining me this year, and all the best in 2022.

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