“Why” Matters
Litigation Section leaders agree that Nelson was correctly decided. “There is no difference between telling the lawyer what happened and writing down what happened and turning the notes over to the lawyer; they are both communications to get legal advice,” notes John M. Barkett, cochair of the Section’s Ethics & Professionalism Committee. “As the judge found that the notes were prepared to be given to the lawyer to obtain legal advice, they were correctly found to be privileged,” he adds.
“Merely passing notes along to a lawyer is not what made the ‘diary’ at issue privileged,” explains John P. Hutchins, cochair of the Section’s Trial Practice Committee. “Rather, it is that the diary was prepared by the plaintiff in anticipation of retaining counsel, with the idea that the future client would pass the notes onto his counsel, whenever he retained a lawyer, in order to aid in seeking advice,” he continues. “It is not correct to say that the notes in Nelson were ‘otherwise not privileged’ and they somehow magically became privileged at the time they were passed to counsel,” adds Hutchins.
In the same vein, Section leaders do not find it relevant that the only available version of the notes was the one revised and given to the lawyer. “The result should be the same as long as the purpose of the notes was to retain legal advice; once that is found to be the reason behind the creation of the notes, they are privileged,” states Barkett. Likewise, Hutchins thinks that “the court’s comments about the previous versions of the diary is mostly dicta, because even if the previous versions exist, the court would likely have considered them privileged as well.”
The End Game
“The attorney-client privilege should not be undermined, especially in this case where the city can discover the facts underlying this claim,” opines Barkett. In other words, the city did not need access to the notes to investigate the facts. The plaintiff was still obligated to disclose witnesses who had knowledge about the case and the relevant documents that may be used to support the claims, under Federal Rule of Civil Procedure 26(a)(1)’s initial disclosure requirements. “All the information would come out through the plaintiff’s deposition if defense counsel asks the relevant questions about the facts underlying plaintiff’s allegations,” explains Barkett.
However, if the plaintiff’s testimony differs from what he told his lawyer through the notes and the information was material, the plaintiff’s counsel would have an ethical duty to take reasonable remedial measures under Model Rule of Professional Conduct 3.3, Barkett notes. Additionally, if the plaintiff’s diary was used to prepare him for his deposition, Barkett advises the city could ask to see it under Federal Rule of Evidence 612, which entitles a party to review a writing used to refresh a witness’s memory. In other words, the city can obtain still obtain all the facts within the notes even though it lost the battle over the privileged status of those notes.