Can the Privilege Ever Protect Historical Documents?

November 11, 2015

The attorney-client privilege normally does not protect pre-existing historical documents, even if clients convey those to their lawyers. In the work product context, lawyers’ selection of certain intrinsically unprotected historical documents can deserve opinion work product protection — but few courts have recognized a parallel protection for clients’ selection of historical documents they consider important. This is one of the most mysterious gaps in privilege jurisprudence.

In GE v. United States, the government challenged GE’s privilege assertion for “attachments to otherwise privileged email communications between [GE] attorneys and GE personnel.” No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562, at *4 (D. Conn. Sept. 15, 2015). The court refreshingly acknowledged that an intrinsically unprotected historical document the client sends a lawyer could “reveal that it was communicated in confidence to an attorney in connection with the seeking or receipt of legal advice.” Id. at *5. The court even offered an example: an executive’s sending to “the company’s counsel a news article about alleged bid-rigging activities within the company’s industry” — explaining that “the fact that the news article is a quintessentially public document would not defeat a claim of privilege.” Id. at *5-6. Perhaps not surprisingly, the court cited no case law for this proposition.

Lawyers’ selection of intrinsically unprotected documents can deserve opinion work product protection only if the adversary also has the documents. Although the GE court did not address this issue, presumably privilege protection would apply to clients’ selection only if those intrinsically unprotected historical documents were otherwise produced to the adversary (not in conjunction with the privileged communication). Otherwise, clients could withhold responsive intrinsically unprotected historical documents just by giving them to their lawyers.