How Do Courts Apply the “Primary Purpose” Privilege Standard?: Part II

March 2, 2016

Last week’s Privilege Point described a court’s rejection of an in-house lawyer’s affidavit swearing that a client’s employees’ communications to him sought legal advice. FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015). The obvious lesson is that corporate employees should explicitly seek legal advice in their communications. A similar principle applies when lawyers communicate to their corporate clients.

Also in FTC v. AbbVie, Inc., the court assessed a company’s privilege claim for its outside lawyer’s report about his meeting with a patent examiner. The court correctly noted that the privilege does not protect lawyers’ communications to their clients simply reciting government officials’ statements. The company argued that the redacted portion of its lawyer’s report was “not a direct quote” from the patent examiner, and that the redacted portion “succinctly incorporated [the lawyer’s] mental impressions.” Id. at *13. But the court concluded that it “cannot plausibly read the [redacted portion] in this way.” Id. The court then noted that “[t]here are no accompanying legal conclusions or perceptions, and the redacted [portion] does not include qualifying language such as ‘I believe’ or ‘my opinion is.'” Id. at *12-13.

Corporations’ lawyers should discipline themselves to explicitly state whether their communications to their client’s employees contain their legal advice or reflect their legal judgment through their selection of excerpts from conversations with government officials, and leave no room for conjecture.