Can the Attorney-Client Privilege Protect Corporate Executives’ Notes of Their Conversations with a Lawyer?

April 19, 2017

The attorney-client privilege protects communications between lawyers and their clients, primarily motivated by the latter’s need for legal advice. Some corporations’ adversaries challenge privilege protection for withheld documents whose log entries do not include a lawyer author or recipient. Fortunately for corporations, courts universally protect such communications in which one corporate employee passes along a lawyer’s advice to another employee who needs it.

Fewer courts deal with corporate employees’ contemporaneous notes prepared during their conversations with a company lawyer. In Bailey v. Oakwood Healthcare, Inc., Case No. 15-11799, 2017 U.S. Dist. LEXIS 13667 (E.D. Mich. Feb. 1, 2017), defendant claimed privilege protection for two handwritten pages of notes a human resources employee made during his conversation with an in-house lawyer. The court initially acknowledged that for privilege purposes “[n]otes on a privileged conversation that reflect the substance of that conversation can amount to ‘communications.'” Id. at *2. The court then relied on the employee’s affidavit and deposition testimony in concluding that his notes reflected his request for, and the in-house lawyer’s providing of, legal advice.

Thus, the privilege can protect (1) contemporaneous memorializations of privileged conversations, and (2) post-conversation communications relaying legal advice to employees who need it. In some limited circumstances, the privilege can even extend to (3) employees’ communications compiling facts or composing questions that they will later present to their company’s lawyer.