The Federal Rules of Civil Procedure protect privileged documents from being discovered. Fed. R. Civ. P. 26(b)(1). A common example of a privilege is that between an attorney and client. “The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice . . . as well as an attorney’s advice in response to such disclosures.” In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir. 1992) (citations omitted). “Whether a privileged attorney-client relationship exists rests upon the client’s intent to seek legal advice and the client’s belief that he is consulting an attorney, i.e., someone who will keep the communications confidential.” EEOC v. Johnson & Higgins, Inc., 1998 U.S. Dist. LEXIS 17612, at *11 (S.D. N.Y. 1998) (citation omitted).
This inquiry can be a rather simple one. For example, an individual client walks into an attorney’s office for a consultation. The individual then speaks with the attorney about his case. The attorney agrees to represent the individual. As long as the privilege has not been waived in any way, it can generally be assumed that it would extend to the attorney and his client. Where it gets tricky is when the “attorney” is a government agency, such as the Equal Opportunity Employment Commission (EEOC). When the EEOC communicates with potential claimants, could those communications be covered under the attorney-client privilege? The answer depends on the desire of the claimants to be represented by the EEOC.
In E.E.O.C. v. ABM Industries Incorp., et al., Case No. 1:07-cv-01428-LJO-BAK GSA, at *1 (E.D. Cal. 2009), the court answered this question in the negative, compelling the EEOC to produce documents that it sent to the defendant’s employers in the form of cover letters and questionnaires.
In ABM, the defendants requested the EEOC to produce the “form of cover letter and the form of questionnaire it sent to current and former janitorial employees of ABM.” The EEOC objected on the basis of attorney-client privilege. According to the EEOC, these communications were made to potential claimants and disclosing these communications would reveal key litigation strategy.
The court got right down to the heart of the issue: the professional relationship between the EEOC and the ABM janitorial employees. In this case, the ABM janitorial employees had not expressed a desire to be represented by the EEOC. Also, the cover letter sent to the janitorial employees did not make it clear it wanted responses only from people who wanted to be represented by the EEOC. In other words, the ABM court emphasizes the objective behavior of the “potential claimants” to determine whether they wanted an attorney-client relationship to exist in the first place. “The mere fact that the letter and questionnaire was sent to a group of potential claimants (and/or witnesses) does not suffice to create the privileged professional relationship.”
This case appears to make it clear the importance of whether a potential claimant actually wants to be represented by the EEOC. For instance, the court cited to Bauman v. Jacobs Suchard, 136 F.R.D. 460 (N.D. Ill. 1990), noting its distinction from the ABM matter in that the potential claimants in Bauman had expressed a desire to be represented by the EEOC.
It is the burden of the party asserting the privilege to show that one exists. See In re Grand Jury Witness (Salas and Waxman), 695 F.2d 359 (9th Cir. 1982). Based on the ABM opinion, if the EEOC claims that communications between it and its potential claimants are privileged, then the EEOC has the burden of proving the potential claimants wanted to be represented by the EEOC. The EEOC cannot unilaterally designate these communications to be privileged without doing so.
—Mallory Schneider Ricci, Constangy Brooks & Smith, LLP, Nashville, TN