Litigants challenging an adversary’s privilege claim might be tempted to argue that documents that were neither written by nor received by a lawyer could not possibly be protected by the attorney-client privilege. Like many other simple arguments, this would be wrong.
In Seibu Corp. v. KPMG LLP, No. 3-00-CV-1639-X, 2002 U.S. Dist. LEXIS 906 (N.D. Tex. Jan. 18, 2002), the Court noted that communications among corporate non-lawyer employees could be protected by the attorney-client privilege. This holding makes perfect sense when one considers a memo from a business person to another business person paraphrasing a lawyer’s advice. A recent New York State case found precisely this. Charter One Bank v. Midtown Rochester, L.L.C., 738 N.Y.S.2d 179 (N.Y. 2002).
Lawyers preparing privilege logs should be prepared to defend an attorney-client privilege claim that might apply to documents neither written by nor received by lawyers. The log itself could help with this argument, by indicating (where appropriate) that such a memorandum paraphrases legal advice.