A client’s uncommunicated notes can deserve privilege protection if they (1) represent the client’s description of facts, prepared with the intent to seek legal advice about those facts, or (2) memorialize the lawyer’s legal advice. Beyond that, clients seeking privilege protection for their uncommunicated notes face an uphill battle.
In American Eagle Outfitters, Inc. v. Lyle & Scott Ltd., Civ. A. No. 06-607, 2007 U.S. Dist. LEXIS 71389, at *3 (W.D. Pa. Sept. 26, 2007), a client claimed privilege protection for notes he took “during settlement negotiations with an adverse party.” The client claimed that some of his mental impressions “may have been influenced by prior advice of counsel.” Id. The court rejected the privilege claim, noting that “[i]t is not hard to imagine a party seeking to shield from production potentially damaging meeting notes of any nature by simply claiming they were informed by the prior advice of counsel.” Id. at *4 n.1. The court reviewed the notes in camera before pointing to the absence of “some reasonable indicia that this indeed was the case.” Id.
Lawyers should train their clients to articulate in any uncommunicated notes the extent to which the notes reflect legal advice.