Can the Attorney-Client Privilege Protect Notes a Client Makes at a Lawyer’s Direction?

November 18, 2009

The attorney-client privilege normally protects communications between clients and their lawyers. The privilege only rarely covers documents that a client prepares but does not send to a lawyer.

In In re TFT-LCD (Flat Panel) Antitrust Litigation, No. M 07-1827 SI, 2009 U.S. Dist. LEXIS 86351 (N.D. Cal. Sept. 10, 2009), the court analyzed two pages of typewritten notes prepared by a company’s employee, which memorialized his recollection of an FBI interview. Noting that the company’s lawyer had asked the employee to prepare the document, and conceding that “it is a close question,” the court ultimately concluded that the attorney-client privilege protected the employee’s notes. Id. at *8. The court explained that the employee “created the notes of the FBI interview upon the instruction of counsel, and in order to facilitate his communication with [the company’s] attorneys.” Id. at *8-9.

Although privilege protection almost always depends on a communication, lawyers should be looking for those rare occasions when an uncommunicated client document might deserve protection.