Sending Pre-Existing Historical Documents to a Lawyer Does Not Make Them Privileged, But…

December 16, 2020

It should go without saying that sending pre-existing historical documents to a lawyer does not automatically immunize them from discovery as privileged. If it did, clients could box up all of their files and send them to a lawyer ― thus avoiding the documents’ discovery. Many courts repeat this axiomatic principle. For instance, the court in Warren Hill, LLC v. Neptune Investors, LLC, Civ. A. No. 20-452, 2020 U.S. Dist. LEXIS 161106, at *3 (E.D. Pa. Sept. 3, 2020), categorically stated that “[a] document does not magically metamorphose into a document protected by the attorney client privilege simply because a client later sends it to his or her lawyer.”

But other courts properly recognize a more nuanced approach. Several years ago, the court in General Electric Co. v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562, at *5 (D. Conn. Sept. 15, 2015), correctly recognized that the identity of an intrinsically unprotected historical document a client sends to her lawyer could “reveal that it was communicated in confidence to an attorney in connection with the seeking or receipt of legal advice.” That wise court provided a common sense example: an executive’s sending to “the company’s counsel a news article about alleged bid-rigging activities within the company’s industry” would reflect the client’s concern ― explaining that “the fact that the news article is a quintessentially public document would not defeat a claim of privilege.” Id. at *5-6. Not surprisingly, a privilege log would describe such a withheld historical document generically rather than specifically.

So like many seemingly simple privilege principles, this one does not automatically apply in every case.