In a ruling that may puzzle in-house legal departments, the Arizona USDC ruled that the attorney–client privilege did not cover in-house attorneys’ handwritten notations on non-privileged documents. The court’s primary reason was that the notations “were [n]ever communicated to anyone.” Greyhound Lines, Inc. v. Viad Corp., 2016 WL 4703340 (D. Ariz. Sept. 8, 2016). You may read the decision here.
In this federal-question case, Greyhound claims that Viad is responsible for environmental clean-up costs on properties that Viad sold to Greyhound. During discovery, Viad produced a set of non-privileged documents, but redacted notations on these documents made by one or more of its in-house lawyers.