Courts must sometimes examine the context of documents in determining whether they deserve privilege or work product protection. For instance, copying a lawyer on email correspondence does not by itself bring privilege protection, but an affidavit can explain that the sender copied the lawyer as a request for legal advice. In the work product context, a document might be primarily motivated by litigation even if it does not mention litigation on its face.
Unfortunately, many courts tend to simply look at the withheld documents in analyzing privilege and work product claims. In Lightguard Systems, Inc. v. Spot Devices, Inc., No. 3:10-cv-00737-LRH (WGC), 2012 U.S. Dist. LEXIS 32470 (D. Nev. Mar. 9, 2012), the court rejected most of the defendant’s privilege and work product assertions. In rejecting a privilege claim for one document, the court held that “[d]espite Spot’s various representations and promises of reliable evidence,” the “document’s four corners do not demonstrate that it is entitled to protection.” Id. at *26. The court similarly rejected a work product claim for another document, noting that the document “makes no mention of impending litigation.” Id. at *27.
Company lawyers should warn their clients, and remind themselves, that their chances of successfully asserting privilege and work product protection increase dramatically if the protected documents themselves articulate the basis for the protection.