Had the communications been made between the plaintiff and its U. The Court finds that, given the purpose of the attorney-client privilege to encourage full and frank communication between attorneys and their clients, the communications made between [plaintiff], through its patent agent, and its U. The communications involved in this case were made in furtherance of the rendition of professional legal services to the client and were reasonably necessary for adequate legal assistance.
FOURTH, the determination whether there exists an attorney-client relationship depends on the understanding of the client. Wylie v. Marley Co. Accordingly, the privilege applies to confidential communications between an individual and a person he reasonably believes to be his attorney, even if the attorney ultimately elects not to represent the client, and even if the attorney is not a member of the bar.
See U. Mullen, F. Tyler, F. Boffa, F. FINALLY, it is important to note that t he attorney-client privilege affords absolute protection to privileged communications. District Court, F. The attorney-client privilege cannot be vitiated by a claim that the information sought is unavailable from any other source. The privilege applies to confidential communications between government attorneys and their clients in the same manner in which it applies to communications between private counsel and their clients.
The "common interest" privilege enables counsel for clients with a common interest "to exchange privileged communications and attorney work product in order to adequately prepare a defense without waiving either privilege. Liggett Group Inc.
The privilege encompasses notes and memoranda of statements made at meetings among counsel and their clients with a common interest, as well as the statements themselves. In re Grand Jury Subpoena, F. The rationale for this well-accepted privilege is readily apparent:. See also 2 Stephen A. Saltzberg, et al. So, to encourage information-pooling, the common interest rule treats all involved attorneys and clients as a single attorney-client unit, at least insofar as a common interest is pursued.
Thus, the common interest privilege may be asserted with respect to communications among counsel for different parties if:. Holland v. Island Creek Corn. Bav State Ambulance, F. It is not necessary for actual litigation to have commenced at the time of the meeting for the privilege to be applicable.
Schwimmer, F. If these circumstances are present, the communications are protected. Indeed, the privilege covers communications not only among counsel for clients with common interests but also between an individual and an attorney for a different party with a common interest.
Of course, no two individuals or entities' interests will be totally congruent, and it is not necessary for every party's interest to be identical for the common interest privilege to apply; rather, the parties must have a "common purpose. McPartlin, F. The question my of whether the parties share a 'common interest' "must be evaluated as of the time that the confidential information is disclosed. While it is conceivable that that interest could diverge --indeed, that is one reason for separate counsel -- the possibility of a future divergence in no respect undermines the privilege.
And it is settled that private and government counsel may share a common interest. American Tel. It is "broader than the attorney-client privilege; it protects materials prepared by the attorney, whether or not disclosed to the client, and it protects material prepared by agents for the attorney.
Unlike the attorney-client privilege, which "is not limited to communications made in the context of litigation, or even a specific dispute," Coastal States Gas Comm. Church of Scientology Int'l, F. Since privileged material is exempt from discovery, we could simply allow a party to produce whatever the party considered nonprivileged and withhold from production whatever the party considered privileged.
FRCP 26 b 5 requires a party to provide a list the privilege log of the information being withheld from a discovery production as privileged.
FRCP 26 b 5 states:. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:. If a party wants to assert privilege to protect documents from production, creation of some sort of privilege log is often considered necessary.
Of course, litigants also may decide to trust each other to withhold only what is privileged, without a privilege log, and avoid the burden of creating a log. If you choose to pursue this course, we strongly suggest that you memorialize the agreement, so that a change in counsel, circumstances, or relationships does not result in subsequent arguments regarding what agreement was reached.
Normally a privilege log will identify: a basic information to describe the documents or electronically stored information withheld; and b a clear statement of which privileges the responding party believes cover those documents.
A responding party often creates a chart—with a word processor, a spreadsheet, or litigation management software—that lists the document Bates number, date the document was created, the author, all recipients, the privileges that apply, and a description of the document that suffices to explain why the party withholding the document believes it is privileged.
Sometimes it is good to include author and recipient titles or employers, and privileges are often abbreviated. A simple log may appear as follows:. General Counsel Atty-Client Portion of email to in-house counsel seeking advice on contract negotiations redacted.
In preparing descriptions, the party withholding records as privileged should try to provide a coherent explanation of what is being withheld from discovery due to privilege and why, without actually disclosing the privileged information. There can be a fine line in providing enough details as to the claim of privilege to appease opposing counsel and ensuring the privilege is not disclosed. We find the best practice is often to prepare descriptions that clearly indicate why the privileges apply.
The descriptions above identify or reiterate that the author and recipient were corporate officials or counsel, and suggest why the two privileges would be applicable. Sometimes only part of a document should be retained as privileged. The first document on the sample privilege log, for example, may have had a series of questions, some for the CEO and some for the general counsel. The parties have indicated it has redacted those questions seeking legal advice in the document description.
The magnitude of a production may render preparation of a document-by-document description impracticable. In such circumstances, a party may want to seek guidance from a court regarding what type of privilege log the court will deem sufficient. Some courts may allow a party to use a less-detailed privilege log, and couple it with in camera or special master review of privileged materials.
In other instances, categorical descriptions of withheld materials may suffice. When creating a log, we believe the best approach ordinarily is to identify those records that are responsive to discovery and then prepare them for production, with the privileged records still in place.
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