Last week’s Privilege Point described a court’s initial rejection but later acceptance of a county’s claim of privilege and work product protection for internal employee training. Hipschman v. Cnty. of San Diego, Case No. 3:22-cv-0903 AJB (BLM), 2024 U.S. Dist. LEXIS 224472 (S.D. Cal. Dec. 11, 2024).
Lawyers should remember the factors that support a privilege or work product assertion for such training, which include: (1) their intensive involvement in preparing the training materials (while being careful what they write, because a court may review them in camera); (2) the focused and individualized nature of the training (courts have rejected privilege claims for simple textbook-type advice, even presented by a lawyer); (3) their personal involvement in the presentation (although that is not dispositive); and (4) their mention of possible specific types of litigation that might be a factor (although that might trigger the duty to preserve pertinent documents).
Lawyers hoping to succeed in protecting their or their clients’ internal employee training should involve themselves early and assiduously in the preparation of the materials’ content and usually in the presentation itself.