Most Courts Focus on the Four Corners of Withheld Documents, Despite Barko: Part II

August 20, 2014

Last week’s Privilege Point noted that many courts look for evidence of privilege protection on the face of withheld documents. The same is true in the work product context.

In Schaeffler v. United States, Judge Gorenstein rejected a taxpayer’s work product claim for an Ernst & Young memorandum proposing refinancing and restructuring steps — because “the memorandum does not specifically refer to litigation.” No. 13 Civ. 4864 (GWG), 2014 U.S. Dist. LEXIS 72710, at *46 (S.D.N.Y. May 28, 2014). About one month later, another court rejected a litigant’s work product claim, noting both that lawyers only received copies of the withheld emails and that “within the emails themselves there is not a single mention of a forthcoming tribunal.” Hamdan v. Ind. Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *16 (S.D. Ind. June 24, 2014).

Both in the attorney-client privilege and work product contexts, lawyers should train their clients, and discipline themselves, to articulate on the face of their emails the “primary purpose” for their communications: legal advice in the privilege context and litigation preparation in the work product context.