An October 20 decision by the Southern District of New York in the Martha Stewart case highlights some of the principles that litigators frequently face when dealing with the attorney-client privilege and the work product doctrine. United States v. Stewart, No. 03 Cr. 717 (MGC), 2003 U.S. Dist. LEXIS 18502 (S.D.N.Y. Oct. 20, 2003).
A year before being indicted, Martha Stewart sent an unsolicited e-mail to her Wachtell, Lipton lawyer providing her account of the circumstances under which she sold her ImClone stock. One day later, she forwarded a copy of that e-mail to her daughter Alexis. Martha Stewart claimed that the e-mail to her daughter was protected by the attorney-client privilege and the work product doctrine. The government challenged both assertions, and also argued that she had waived both protections. The court handling her case held that Stewart’s e-mail to her lawyer was privileged (although unsolicited), but that Stewart had waived the privilege by sending a copy to her daughter—despite Stewart’s statement that she did not intend to waive the privilege, and her reference to the “sanctity of the family.” Id. at *8. The court also found that the e-mail deserved work product protection, citing the broad Second Circuit approach that protects more than just documents to be used in litigation, or which reveal lawyers’ strategies or thought processes. Although Stewart’s daughter Alexis did not share a “litigation” interest with her mother, their common familial interest meant that Stewart did not waive the work product protection by sharing the e-mail with her daughter. The court therefore denied the government’s request to use the e-mail at trial.
Litigators should remember that cases arise every day involving the sometimes subtle differences between the privilege and the work product doctrine, including the different waiver analysis.