Civil Procedure I

Privilege

Attorney Client Privilege

Attorney client privilege requires it to be:

  1. A client
    • Or someone seeking to become a client
  2. asking an attorney for legal advice
  3. and no third party is present.
    • And the advice is not later shared with a third party.

If attorney client privilege exists, the lawyer's advice is protected, but can later be waived.

For a corporation the courts are split.

  1. Some say information can only be shared with "members of the corporate control group."
  2. Some say information can only be shared with those that need to know of it.
  3. A few allow it to be shared with every employee without waiving the privilege.

For in-house attorneys, it is required that it be legal advice that is sought, not simply business advice.

Attorney Work Product

The attorney work product doctrine is a "qualified immunity from discovery" for trial preparation, i.e. efforts by the attorney to investigate and prepare a case.

Technically, it is not a doctrine, not a privilege, but it can still prevent disclosure.

Trial preparation can only be obtained if a party has a substantial need, it can be obtained without undue hardship, and they are unable to obtain substantial equivalent info. Even then, they are not entitled to mental impression of the attorney.

Rule 26(b)(3).