For The Defense, July 2010 - DRI Today

pation of litigation or for use at trial maynot be discovered, unless they would beotherwise discoverable, and the adversaryseeking disclosure can demonstrate “substantialneed for the materials to prepareits case and cannot, without undue hardship,obtain their substantial equivalent byother means.” By definition, work productprotection extends beyond attorneys to anyqualifying document prepared by a partyor its representative.The dual purpose of the work productdoctrine is to protect an attorney’s thoughtprocesses and mental impressions and preventa lazy adversary from obtaining thebenefit of the work performed by a morediligent adversary. See Gergacz, Attorney-Corporate Client Privilege §7.04:7-5–7-6,§7.10:7-12N7-13 (3rd ed. 2001). Accordingly,even if an adversary meets its burden ofsubstantial need, Fed. R. Civ. P. 26(b)(3)(B) requires that a court must protectagainst disclosure of the attorney’s “mentalimpressions, conclusions, opinions, orlegal theories….”As with attorney- client privilege, courtsmore carefully scrutinize the application ofwork product protection to in-house counsel’swork than to outside counsel work. Inhousecounsel’s multiple roles weakens theassumption that in-house counsel’s documentswere prepared in anticipation of litigation,rather than in another capacity. SeeGergacz, Attorney- Corporate Client Privilege§7.20:7-27–7-26 (3rd ed. 2001).Recent DevelopmentsA recent Supreme Court decision about appellatereview of adverse privilege orders,the 2008 amending of the Federal Rulesof Evidence, and a change to Fed. R. Civ.P. 26(b)(5)(B) are important for counsel tounderstand when considering the attorneycorporate-client privilege.Appellate Review of AdversePrivilege OrdersRecently, the Supreme Court reaffirmed“the importance of the attorney- client privilege,which ‘is one of the oldest recognizedprivileges for confidential communications.’”Mohawk Industries, Inc. v. NormanCarpenter, 130 S. Ct. 599, 606 (Oct. 5, 2009)(citing Swidler & Berlin v. United States, 524U.S. 399, 403 (1998)). It stated, “By assuringconfidentiality, the privilege encouragesclients to make ‘full and frank’ disclosureto their attorneys, who are then betterable to provide candid advice and effectiverepresentation.” Mohawk Industries, 130S. Ct. at 606 (citing Upjohn, 499 U.S. at 389(1981)). Elaborating further, the SupremeCourt wrote, “This in turn, serves ‘broaderpublic interests in the observance of lawand administration of justice.’” Id. Despitethis ostensibly enthusiastic endorsement ofthe policy rationales for the attorney- clientprivilege, the Supreme Court’s decisionfunctionally relegated it in favor of efficientjudicial administration.In Mohawk Industries, the SupremeCourt addressed a conflict among the circuitsabout whether a litigant could immediatelyappeal an adverse ruling concerningthe attorney- client privilege under the“collateral- order doctrine.” The Court concludedthat a litigant could not because thedisclosure of arguably privileged materialcould be adequately redressed on appeal ofthe final judgment, at which time the courtcould exclude the material from a retrialof the case.In the underlying case, defendant Carpenterclaimed that he had been wrongfullydischarged as a result of an email thathe sent to a Mohawk human resources employee,alleging that Mohawk employedundocumented workers, and his refusal torecant that claim during his meeting withMohawk’s counsel concerning an unrelatedclass action that alleged that the companyhired undocumented workers to artificiallydeflate prevailing wages. In the class action,Mohawk disclosed facts concerning Carpenter’stermination, including the resultof Mohawk’s lawyer’s investigation, demonstratingthat Carpenter had been fired becausehe had, himself, attempted to hire anundocumented worker, as well as the company’sconclusion that Carpenter’s claimswere “pure fiction.” Carpenter sought discoveryin his wrongful termination litigationconcerning his meeting with Mohawk’scounsel and the company’s termination de-MICHAEL B. BUCKLEY(Formerly of Buckley & Fudge, P.A.)A.V. Rated by Martindale Hubbell(Also “Of Counsel” to Fowler White Burnett, P.A., Miami, Fl.)AndLAUREN STITT CURTIS(Formerly of Buckley & Fudge, P.A.)A.V. Rated by Martindale HubbellARE VERY PROUD TO ANNOUNCE THE FORMATION OF THEIR NEW FIRM,240 First Avenue SouthSuite 200St. Petersburg, FL 33701Tel: 727-822-4800Fax: 727-488-4855BUCKLEY & CURTIS, P.A.And225 BroadwaySuite 2600New York, NY 10007Tel: 212-514-7400Fax: 212-514-7404The Firm Has Significant Experience Handling a Wide Variety of Litigation in State andFederal Courts throughout the States of Florida and New York, with Emphasis on ComplexCommercial Litigation, Commercial Torts and Fraud, Aviation, Construction Defect,Insurance Coverage, Bad Faith/Excess Liability, Medical Malpractice, Products Liability,Debt Collection Practices-Related Litigation and Employment Practices-Related MattersFor The Defense n July 2010 n 71