Many in the corporate world provide internal training or communicate ideas, plans, guidelines, and the like through PowerPoint presentations. This includes in-house lawyers, who often use PowerPoint or some other presentation aid to advise employees on various legal-related issues. And, of course, lawyers and non-lawyer employees circulate those slide decks to seek feedback and revisions, some legal and some perhaps not so legal.
The question arises whether the corporate attorney–client privilege protects PowerPoint presentations either prepared by in-house counsel or on which an in-house lawyer provided input. One court, in a rather routine situation, said no—the privilege did not protect from discovery an in-house lawyer’s PowerPoint used to train employees on antitrust compliance because the slide deck pertained more to business than legal issues. In re Diisocyanates Antitrust Litig., 2024 U.S. Dist. LEXIS 126413 (W.D. Pa. Mar. 28, 2024) (opinion available here). Let’s discuss the reasons and look for clues for how to increase the chances of protecting those legal PowerPoints.
Antitrust Training Session
In February 2018, a major U.S.-based chemical company tasked its in-house antitrust counsel with providing antitrust compliance training to certain non-lawyer employees, including account managers, sales directors, and production managers. The training specifically focused on antitrust-compliance issues that may arise from the company’s internal pricing program known as Credit Upon Proof of Sale, or “CUPS.”
The antitrust counsel created a PowerPoint to aid in delivering the CUPS training. The PowerPoint, in part, instructed the attendees to “consult counsel” or to engage their supervisor, the company’s legal representatives, or the Office of Ethics and Compliance if they had questions or needed additional guidance. In the PowerPoint’s notes section, typically used to prompt the presenter during the presentation, the antitrust lawyer recorded this—
This training is to raise awareness of the principles and framework in which business decisions will be evaluated by antitrust regulators. It is not a substitute for specific legal guidance in any particular situation or geography.
Motion to Compel
In a later MDL proceeding wherein several plaintiffs alleged that the company, among others, conspired to fix certain prices in violation of antitrust laws, the plaintiffs moved to compel production of the company’s PowerPoint presentation used to conduct the February 2018 training. Relying in part on the company’s privilege-log description of the slide deck as a “general guideline,” the plaintiffs argued that the PowerPoint, while perhaps based on legal advice, was nothing more than general instructional guidelines that were nothing more than business policies.
The company maintained its privilege objection and refuted the plaintiffs’ “general guideline” argument. In support, the company submitted the sworn declaration, available here, of its Associate General Counsel for Corporate Transactions (the antitrust in-house lawyer was no longer with the company). This AGC said the PowerPoint was a “training presentation” that contained the antitrust lawyer’s “legal advice as to how to adhere to” the CUPS program.
In Camera Review and a Ruling
The court could not make a privilege call based on the privilege log, the lawyers’ conferral efforts, and the AGC’s declaration, and therefore reviewed the slide deck in camera. The court noted the attorney–client privilege’s “laudable purposes” but construed the privilege narrowly because it “obstructs the truth-finding process.” In reviewing the PowerPoint presentation, the court looked for a (1) communication (2) made between privileged persons (3) in confidence (4) for the purposes of obtaining or providing legal advice.
And upon review, the court found that the PowerPoint presentation was primarily a “generalized reference or instructional guide akin to a business policy covering its policies and practices such as its Code of Business Conduct.” The court could not determine, either from the slide deck or the company’s supporting evidence, whether the attendees could “pose questions and receive particularized legal advice in return,” but said this—
What is clear is that the PowerPoint slide deck itself, which is the sole subject of this discovery dispute, does not communicate particularized legal inquiries or legal advice.
The nail in the coffin, though, came from the antitrust lawyer’s own presenter notes that the training’s purpose was to raise awareness about making business decisions with government regulators in mind and was not a substitute for “specific legal guidance.”
The court essentially found the privilege’s legal-advice component missing—based on the PowerPoint’s own language—and ordered the company to produce the entire PowerPoint presentation.
POP Analysis
The training session’s subject appears focused on regulatory compliance, which some courts, as described in this post, consider business-related rather than legal-related. Perhaps the court had this question in mind when reviewing the PowerPoint and finding little “legal advice” language.
When creating what should be a privileged communication, let’s “write for tomorrow,” meaning to consider the words you compose today as a judge will view them in camera tomorrow or, more accurately, months or years down the road. If conveying legal advice, say so explicitly within the PowerPoint, and instruct, within the deck, that the audience may not disseminate it without lawyer approval. While labels, such as “privilege and confidential,” certainly help, courts reviewing slide decks in camera search for the request for or delivery of specific legal advice. In short, make the legal advice explicit.