Attorney-client privilege has taken a beating this fall.
First, Bank of America put up only a weak fight (or it looked that way from the outside, anyway) against turning over privileged documents.
Then, with little fanfare, it was revealed Weil turned over privileged documents related to the Lehman bankruptcy.
But the California Supreme Court stood up for the privilege protection on Monday when it ruled that factual information included in a lawyer’s opinion letter should receive the same amount of protection as the advice given. The Recorder has the full story.
The focus of the opinion was a letter the firm Sheppard Mullin wrote on wage-and-hour issues to Costco. When Costco was sued for overtime, the plaintiffs eventually asked for the letter.
Two lower courts agreed that the letter should be produced for the factual information, but that the advice could be redacted.
The California Supreme Court disagreed, and said it did not matter whether or not the information would be harmful to Costco, were it produced. “[T]he primary harm in the discovery of privileged material is the disruption of that relationship … not the risk that parties seeking discovery may obtain information to which they are not entitled,” the opinion said.
Had this come out the other way, it would have been a huge blow to the attorney-client privilege.
First, we would argue that revealing the facts included in an opinion letter would go a long way to showing the direction of the advice, and, at the very least, points out which particular facts a lawyer considered important when reviewing a particular issue. Second, any “fact” included in an opinion letter would almost always exist outside the opinion letter in a non-privileged form.
And, on a more minor note, this is a huge victory for legal assistants and young associates. Imagine how much worse the job of redacting would become if you had to do a privilege pull, then review for “facts” and then properly redact and produce. Nightmare.
Zach Lowe, who had steadfastly covered privilege’s recent ups and dows, covered the ruling here.
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