Court Acknowledges that the Privilege Hides the Truth, but Nevertheless Applies It

October 12, 2005

The attorney-client privilege benefits society by allowing clients to freely share facts with their lawyers (who in turn guide the clients in the direction of lawful conduct, help resolve disputes, etc.). On the other hand, the privilege hampers the search for truth, and courts therefore apply it very narrowly.

In United States v. Mallinckrodt, Inc., 227 F.R.D. 295 (E.D. Mo. 2005), the United States inadvertently produced a privileged document. The court applied the standard factual analysis in determining whether the inadvertent production had caused a waiver – focusing on such issues as the thoroughness of the review, the number of documents that slipped through (only one document out of 61,000 pages), how quickly the government asked for the document back, etc. The government’s adversary argued “that suppressing the report threatens to suppress the truth and that it deprives the [adversary] of an effective means to cross-examine government witnesses who testify contrary to it.” Id. at 299. The court rejected this argument, finding that “the attorney-client privilege is designed to protect exactly the kind of communication at issue here. The report was intended to be an honest evaluation of the case for the eyes of the Department of Justice only.” Id.

It is comforting to see some courts continuing to recognize that the privilege cannot be overcome with such policy arguments.