Searching for Privileged Information

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As if searching for privileged information prior to production was not already difficult enough, Jessica A. Huse, Esq., has blogged about a potential complication.  See J. Huse, “Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys” (Gibbons Law Alert Dec. 22, 2020).

Citing Ozgur v. Daimler Trucks N. America, LLC., 2020 WL 2522024 (D. Or. May 18, 2020), the blog describes one court’s expansive definition of what is protected by that privilege.  Ms. Huse explains:

In determining whether the disputed emails were privileged, the court stated that the attorney-client privilege protects not only communications between attorneys and clients when made for the purpose of giving legal advice, but also, in the corporate realm, “communications between non-attorney corporate employees when the communications are made for the purposes of obtaining legal advice from an attorney.”… The court even found that emails between the recruiting manager and the hiring manager prior to outside counsel becoming involved were covered by the attorney-client privilege.

In pertinent part, Ms. Huse concludes:

The decision in Ozgur is helpful to understand how far the attorney-client privilege can extend. While this may be an outlier decision, the court’s finding that communications between non-attorneys may be attorney-client privileged even before counsel is retained certainly provides a basis for non-attorneys to consider marking communications as privileged when the communications are related to pending or potential litigations or are conducted at the direction of and/or for the benefit of counsel. … This decision should also serve as a reminder that when reviewing documents for privilege, it is important in some cases to evaluate documents that may not include attorneys as authors or recipients of a communication. Communications between non-attorneys related to a litigation may refer to discussions with counsel without any mention of a lawyer or law firm name, or perhaps a first name only. These types of communications can be challenging to identify as privileged, when common methods like targeted search terms are utilized to segregate privileged communications involving known attorneys involved in the matter.

Regardless of whether Maryland courts would follow Ozgur, Ms. Huse properly points to the need to carefully craft privilege searches.

Additional protection may be found under Fed.R.Evid. 502 and state analogs.  Appendix D to the Local Rules of the United States District Court for the District of Maryland contains a standard form “Stipulated Order Regarding Non-Waiver of Attorney-Client Privilege and Work Product Protection.”  A form for Maryland State courts may be found in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Appendix C.