All courts agree that litigants asserting attorney-client privilege or work product protection must establish the protection’s applicability. But courts take different positions on whether any presumptions guide their analysis.
In Urban 8 Fox Lake Corp. v. Nationwide Affordable Housing Fund 4, LLC, No. 18 C 6109, 2020 U.S. Dist. LEXIS 5650, at *5 (N.D. Ill. Jan. 13, 2020), the court could not have been more blunt: “[i]t cannot be stressed enough that there is no presumption in favor of finding a document to be immune from discovery under either the attorney-client privilege or the work product doctrine.” Ten days later, in BMM North America, Inc. v. Illinois Gaming Board, 2020 IL App (1st) 190910-U, ΒΆ 72, an Illinois state appellate court quoted the Illinois Supreme Court in taking exactly the opposite position: “when there is an attorney-client relationship in which an attorney and client have communicated in a professional capacity . . . there is a rebuttable presumption that their communication is privileged” (quoting In re Marriage of Decker, 606 N.E.2d 1094, 1108-09 (Ill. 1992). Interestingly, the BMM court found that presumption inapplicable, because the withheld communications “pertain to [the litigant’s] business efforts and were not made within the confines of an attorney-client relationship.” Id.
Corporations and their lawyers should always check the applicable jurisdiction’s law for any legal boost to a privilege or work product assertion. Next week’s Privilege Point will address another presumption — that should worry in-house lawyers.