An Essential Guide to Attorney-Client Privilege ... - the Missouri Bar

on the client’s behalf by his or herattorney. 26Where information believed to beprivileged is sought during litigation,the party that asserts the privilegebears the burden of showing that itapplies. 27 Once the party establishesthat a particular communication isprivileged, that communication isabsolutely privileged and may not berevealed even if there is a substantialneed for it. 28B. The Work Product DoctrineGenerallyThe work product doctrine isdistinguishable from the attorneyclientprivilege. It is not a privilege.Rather, “[t]he work product [doctrine]precludes an opposing party fromdiscovering materials createdor commissioned by counsel inpreparation for [actual or anticipated]litigation.” 29 “While the attorneyclientprivilege protects disclosuresby the client to the attorney and isabsolute in” most situations, the workproduct doctrine is much less absolutein that it “‘is designed to prevent aparty from reaping the benefits of hisopponent’s labors . . . for the same ora related cause of action.’” 30A majority of courts have adopteda “because of” test for determiningwhether materials were “prepared inanticipation of litigation.” 31 Underthis approach, courts will find thework product doctrine applicableif, “in light of the nature of thedocument and the factual situation ofa particular case, the document canfairly be said to have been preparedor obtained because of the prospect oflitigation.” 32Rule 56.01(b), governing the scopeof discovery, codifies the work productdoctrine in Missouri. It provides inrelevant part: “Parties may obtaindiscovery regarding any matter, notprivileged, that is relevant to thesubject matter involved in the pendingaction.” 33 Blanket assertions of workproduct are insufficient to invokeits protection. 34 “The party seekingdiscovery has the burden of showing”that the sought after materials arerelevant. 35 Once that has been done,the party claiming the protections ofthe work product doctrine has theburden of showing that the doctrineis applicable. 36 “To invoke [workproduct] protection . . ., the partyopposing discovery must establish,through competent evidence, thatthe materials sought to be protectedare documents or tangible thingsprepared in anticipation of litigationor for trial, and were prepared by orfor a party or a representative of thatparty.” 37 “Competent evidence” mayinclude a privilege log and affidavitsfrom counsel. 38 The mere possibilityof litigation is also “not sufficientto invoke the doctrine”, 39 but it canbe invoked to prevent disclosure ofmaterials that relate to litigation thathas not been actually commenced. 40The doctrine does not encompasscommunications between an attorneyand opposing counsel. 41“The doctrine generally protectsboth tangible work product(consisting of trial preparationdocuments such as written statements,briefs, and attorney memoranda) andintangible work product (consistingof mental impressions, conclusions,opinions, and legal theories of anattorney . . . – sometimes called‘opinion work product’) fromdisclosure.” 42 “Protection of [opinion]work product exists independentlyof Rule 56.01(b)(3).” 43 The workproduct doctrine provides absoluteimmunity against the disclosure ofopinion work product, both tangibleand intangible. 44Non-opinion trial preparationmaterials may be discovered only ifthe party seeking discovery shows asubstantial need for the material inthe preparation of the case and aninability to obtain the substantialequivalent without undue hardship. 45Substantial need exists when thematerial for which discovery is soughthas a material influence on thelitigation. 46C. The Attorney-Client Privilegeand Work Product Doctrine in theCorporate SettingIt is now well-established thatthe attorney-client privilege appliesto corporations as well as toindividuals. 47 “In a corporate context,in-house counsel can serve as theclient when communicating withoutside counsel, or as ‘attorney-legaladvisor’ when communicating withpersonnel within the organization.” 48Communications with in-housecounsel in the role of attorney-advisorare afforded the same protection asoutside counsel, but communicationsconveying business (as opposed tolegal) advice are not protected bythe privilege. 49 Courts often requirethat in-house counsel make a “clearshowing” that communications weremade for a legal purpose, rather than abusiness purpose. 501. The Control Group Test,Upjohn and VariantsNot only must the communicationregard legal versus business advice,it must be made to a person withinthe company who is deemed a clientby the law. Historically, courtsapplying the attorney-client privilegeto corporations have struggledto determine which corporateemployees should be consideredthe client. Courts often have foundthe interaction between high-levelofficers and corporate counsel tobest resemble a traditional attorneyclientrelationship deserving ofprotection. These courts applied atest known as the “control group”test that designates only upper-levelmanagement as the client of thecorporate counsel, and thus only84 / Journal of the MISSOURI BAR