Portfolio 22-4th: Attorney-Client Privilege and Work-Product Doctrine: Corporate Applications

I. Introduction
A. The Tension
B. Attorney-Client Privilege: Historical Development and Basic Elements
C. Work-Product Doctrine: Historical Development and Basic Elements
D. Relationship Between Attorney-Client Privilege and Work-Product Doctrine
E. Other Protections for Confidential Corporate Information
1. Trade secrets
2. Statutory protection
3. Self-critical analysis

II. Availability of Privilege to Corporations

III. Client Identity

IV. Communications Covered by the Corporation’s Privilege
A. Directors, Officers, and Employees
1. Control-group test
2. Subject-matter test
3. Rejection of previous tests: Upjohn Co. v. United States
4. Continued relevance of control-group and subject-matter tests
B. Multiple Representation

V. ‘Attorney' for Purposes of Privilege
A. ‘Acting as Attorney'
B. Inside Counsel
C. Inside Patent Counsel
D. Outside Counsel
E. Effect of Non-Membership in Local Bar
F. Associates, Paralegals, Secretaries, Consultants
G. Effect of Termination of Litigation
H. Posthumous Application of the Privilege

VI. ‘Communications': Definitional Problems
A. Communications Versus Underlying Facts
B. Communications Between Attorney and Client
C. Existence of Attorney-Client Relationship
D. Inter-Attorney Communications
E. Communications Made in Confidence

VII. Waiver of Privilege
A. Introductory Material
B. Voluntary Waiver; Failure to Claim Privilege
C. Who May Waive
D. Scope of Waiver
E. Appeal of Order Requiring Disclosure
F. Inadvertent Disclosure
G. Rule 502
H. Required Disclosures
I. Waiver—Patent Law and ‘Adverse Inference'
J. DOJ Corporate Waiver Guidelines
K. Corporate Internal Investigations
L. Selective Waiver in Government Investigations

VIII. E-Mail Communications and the Attorney-Client Privilege

IX. Traditional Exceptions to Privilege
A. Prospective Crime or Fraud
B. Impact of the Sarbanes-Oxley Act and the Amendments to the Ethics Rules
C. Intentional Torts
D. Joint Attorney
E. Joint Defense/Common Interest
F. Joint Prosecution Privilege
G. Attorney’s Defense Against Accusation of Wrongful Conduct
H. Rejection of Unavailability Exception
I. DHS Policy on Border Searches of Electronic Devices

X. Attorney-Client Privilege in Shareholder Suits
A. Introductory Material
B. Good Cause
C. Fiduciary Obligations
D. Pre-Merger and Post-Merger Legal Advice

XI. Applications in the Partnership Context
A. Access to Privileged Materials by General Partners
B. Access to Privileged Materials by Limited Partners

XII. Attorney-Client Privilege and Special Committees of Boards of Directors

XIII. Choice of Law

XIV. IRS Investigations/Tax Shelters
A. Taxpayer Privileged Communications
1. Statutes
2. Identities of taxpayers
B. The Section 7525 and Attorney-Client Privilege

XV. Availability of Doctrine to Corporations

XVI. Scope of Work-Product Protection
A. Federal Rule of Civil Procedure 26(b)(3)
B. Attorney’s Mental Impressions and Opinions
C. Materials Prepared in Anticipation of Litigation
1. Prepared in anticipation of litigation
2. Protection in subsequent litigation
a. Witness statements
b. Test results
c. Other materials
3. Protection after settlement
D. Materials Prepared by or for Party or Party’s Representative
E. Non-Tangible Work Product
F. Work Product and Experts/Problems With Dual Roles

XVII. Waiver of Work-Product Protection
A. In General
B. Decisions Endorsing the Selective Waiver Doctrine
1. Common interest
2. Selective versus partial waivers
3. Expectation of privacy
C. The Trend Today—Rejection of Selective Waiver Doctrine
1. Waiver where there is no confidentiality agreement
2. Waiver even with a confidentiality agreement
3. Waiver/Standing

XVIII. Exceptions to Doctrine
A. Prospective Crime or Fraud
B. Joint Attorney

XIX. Showing Required to Obtain Disclosure
A. Tangible Work Product
1. Showing of substantial need and undue hardship
a. Upjohn Co. v. United States
b. Witness statements
c. Test results
d. Other materials
e. Effect of case management techniques
2. Protection of attorney’s mental impressions, conclusions, opinions, or legal theories
a. In camera inspection
b. Activities of attorney directly in issue
B. Non-Tangible Work Product

XX. Subsequent Counsel