Privilege Point described a husband’s probable loss of attorney-client privilege protection
when using his employer’s email system for communications with his personal
lawyer. Because he had only raised the alternative work product protection
argument at the end of his appellate reply brief, he missed the chance to
claim that broader and more robust protection. Even large and
well-represented corporations sometimes make the same mistake.
In Naumoski v. Costco Wholesale Corp., No. 2:19-cv-491, 2020 U.S.
Dist. LEXIS 97026, at *3 (N.D. Ind. June 3, 2020), an ADA plaintiff claimed
that defendant Costco waived its attorney-client privilege when its
regional operations manager forwarded to her several privileged
communications between Costco’s manager and Costco’s “internal and external
employment counsel.” Fortunately for Costco, the court found that the
operations manager’s “disclosure [to plaintiff] of the email communications
was a mistake,” and ordered plaintiff to return them. Id. at *11.
But the court was more sympathetic to plaintiff’s motion to strike Costco’s
parallel work product claim -- noting that “Costco, for the first time, in
its reply argued that the email communications were protected by the work
product doctrine.” Id. at *4. The court emphasized that “Costco’s
motion for protective order . . . failed to raise the work product
doctrine,” and “[i]n fact, neither party even mentioned the work product
doctrine nor presented any argument or case authority based upon it.” Id. at *5. The court therefore granted plaintiff’s “Motion to
Strike the Portions of Defendant’s Reply that Assert Work Product
Communications and documents created before anyone anticipated litigation
can either be privileged or not – but they generally will not deserve work
product protection. In contrast, documents or communications created during
or in anticipation of litigation, but involving or shared with outsiders,
may be protected work product -- but generally will not deserve the
narrower and more fragile privilege protection. Litigation-related
communications between lawyers and their clients may deserve both, and
lawyers owe it to their clients to consider both.