Protecting The Attorney-Client Privilege In The Digital Age

The digital age has rendered formal memoranda explicitly requesting or reflecting legal advice nearly obsolete. Instead, employees and counsel send and receive hundreds or thousands of informal e-mails that implicitly request or reflect legal advice. The result is a corresponding increase in the volume of documents withheld based on the attorney-client privilege during litigation. Unfortunately, courts have reacted to the increase in privilege claims by increasingly raising the bar required to establish the privilege.

Drug and medical device companies, as well as their litigation counsel, are well-positioned to shape the changing landscape of the attorney-client privilege. With minor adjustments to how employees communicate with counsel, to how privileged communications are presented during litigation, and to how arguments about privilege are made to the court, companies can protect the privilege and help to reverse its recent erosion.

1. Narrowing of the Attorney-Client Privilege in Drug and Medical Device Litigation

   Historically, courts and state legislatures have adopted various definitions of the attorney-client privilege, which generally can be distilled to five elements: (1) a communication (2) made in confidence, between (3) an attorney and (4) a client, for (5) the purpose of obtaining or providing legal advice or assistance. See Weinstein & Berger, Weinstein's Evidence Manual §18.03 (2d ed. 2009); see also In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789, 795 (E.D. La. 2007). In the context of drug and medical device litigation, the first four elements are easy to satisfy. The trouble arises when courts analyze the fifth element regarding whether the purpose of the communication was to obtain or provide legal advice or assistance, as opposed to business advice, for instance. In instances where the communications appear to have a mixed business-legal purpose, courts have applied the attorney-client privilege only when the communication is "primarily" or "predominantly" legal in nature. See, e.g., Vioxx, 501 F. Supp. 2d at 796.

   The dramatic rise of e-mails claimed as privileged in drug and medical device litigation has led courts to narrow the attorney-client privilege for fear that upholding privilege would encourage companies to funnel communications through their legal departments. The upshot of these courts' rulings is as follows:

   Held To Be Privileged: E-mails and attachments addressed solely to an attorney with...