Assessing Privilege Waiver When Clients Make Disclosures to the PressBy Henry R. Chalmers, Litigation News Associate Editor – June 6, 2011
A federal district judge recently concluded that a party does not necessarily waive attorney-client privilege or work-product protection simply by disclosing the results of its attorney’s investigation to the press. Sullivan v. Warminster Township [PDF]. In the course of reaching its decision, the court provides a helpful primer on the law of privileges and protections.
The story begins with the shooting death of the plaintiffs’ son by Warminster Township police officers. Within a week, the township’s insurance company engaged a law firm to investigate the incident. The investigation’s findings were captured in an internal report.
The township publically announced “that the investigation had revealed no improprieties in either their behavior or their policies.” The township’s police chief told the press that “[w]e’ve gotten a clean bill of health on everything.” He also told the press that the finding was based on police reports, witness interviews, physical evidence, and a computer-generated reenactment of the event.
The plaintiffs later sued the township in the U.S. District Court for the Eastern District of Pennsylvania. They requested the report in discovery, but the defendants refused, citing their attorney-client privilege and the work-product doctrine.
The district court held that the report was covered by the attorney-client privilege, despite the police chief’s testimony that he did not believe the investigator was acting as the defendants’ attorney in conducting the investigation. The client’s subjective belief, without more, is not determinative, the court determined. The court advised, however, that the underlying facts and outside documents considered by the attorneys were discoverable.
The district court also rejected the plaintiffs’ claim that the report was undeserving of work-product protection. In determining whether a document was prepared in anticipation of litigation—and therefore entitled to protection—the court noted that courts look to “the state of mind of the party preparing the document [or] the party ordering preparation of the document.”
A party’s anticipation of litigation must be objectively reasonable and documents prepared in the regular course of business are ineligible for protection, “even if the prospect of litigation exists.” The district court ruled that the underlying engagement letter clearly indicated an anticipation of litigation, and no evidence existed to suggest that the township routinely retained counsel to conduct investigative reports.
The plaintiffs argued, under Federal Rule of Civil Procedure 26(b)(3)(A)(ii), that they still were entitled to the report because they had a substantial need for it and could not obtain its equivalent without substantial hardship due to the passage of time because the defendants interviewed key witnesses. The court, however, held that fear that time may have faded a witness’s memories, without demonstrating actual loss of memory, is not sufficient.
The court perpetuates a common misperception, says Ian H. Fisher, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee, that a document can be covered by both the attorney-client privilege and the work-product protection. “An element of work-product protection—found in its definition—is that the document is otherwise discoverable,” Fisher reminds, “and a privileged document is not.”
It is on the issue of waiver, though, that the district court’s decision draws the most heated commentary. As an initial matter, the court noted that disclosure to a third party “waives the attorney-client privilege as to the world,” but waives a work-product protection only if it “permits an adversary to gain access to the information.”
The court ruled that the police chief’s statements to the press about the conclusion of the report before the plaintiffs filed their lawsuit resulted only in a partial waiver. The court distinguished such “extrajudicial partial waivers” from waivers that occur during judicial proceedings. “Courts generally hold that disclosures that occur outside the context of judicial proceedings do not implicitly waive the privilege as to all communications on the same subject matter,” the court stated. The court did not “perceive any prejudice or unfairness” to plaintiffs from the police chief’s disclosure, so disclosure of the conclusion of the report did not “effect an implied waiver” for the remainder of the report.
Loren Kieve, cochair of the Section of Litigation’s Attorney-Client Privilege Task Force, doesn’t buy it. The defendants “clearly intended to obtain an advantage—touting to the public at large, and presumably the jury pool, that the report found no wrongdoing,” he says. Kieve concludes that the defendants “prejudiced the plaintiffs by doing so.”
“I think that the defendants’ comments were not intended merely to be a nice little political announcement,” agrees Kent A. Lambert, cochair of the Section’s Pretrial Practice and Discovery Committee. Instead, Lambert opines, “they were intended to sway public sentiment.”
Fisher sees the case as a good reminder “to carefully guard against accidental waiver of the attorney-client privilege or work-product protections.” “I tell my clients that if they hear themselves saying the words ‘my attorney said,’ they should shut up,” he says.
Keywords: litigation, attorney-client privilege, work-product doctrine, privilege waiver, client disclosure
- » Sullivan v. Warminster Township, Case No. 07-4447, 2011 U.S. Dist. LEXIS 22379 (E.D. Pa. Mar. 4, 2011).
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