July 29, 2020 Book Review

The Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality, Seventh Edition, Edited by Oscar Rey Rodriguez & Vincent Steven Walkowiak

Reviewed by Mario S. Russo

The attorney-client privilege and work product doctrine remain two of the most important discovery-challenging tools in an attorney’s arsenal. Although both doctrines appear relatively straightforward in definition, increasing legal challenges to their interpretation and application have rendered the principles significantly less clear-cut, if not entirely confusing. The creation of new legal entities and the development and use of modern technology has served only to exacerbate the issue. Does the attorney-client privilege apply when the client is a corporation? What about communications involving affiliated corporations, putative class members, or public relations firms? How do courts apply the work product doctrine to nonparties?

The Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality, Seventh Edition, tackles these and other issues head-on, helping attorneys understand, handle, and navigate the numerous nuances and complexities of attorney-client privilege and work product issues arising in the corporate context. Written for the legal practitioner, and consistent with prior editions, this revised edition provides a current and insightful overview of the attorney-client privilege, the work-product doctrine, and other important privileges. Though certainly, no shortage exists of treatises providing similar overviews, not all cover the full-range of privilege-related issues that can arise during representation or provide enough detail to assist practitioners needing answers to the numerous nuanced and often complex privilege issues encountered in practice. This practical guide checks all the boxes, first by ensuring that readers receive a baseline understanding of the various privileges, and then by identifying, explaining, and proposing solutions to many of the problems and concepts involving these fundamental principles.

The book consists of 19 well-written and annotated chapters authored by a team of diverse and experienced legal professionals, each of whom approaches the subject matter practically and to the point. The book’s first chapter provides an examination of the attorney-client privilege when the client is a corporation. By the end of the first chapter, the reader will have gained a basic understanding of the privilege itself and whether and when uncensored information may flow freely between a corporation and its counsel. The book thereafter addresses nearly every aspect of the attorney-client privilege, the work product doctrine, other privileges that may limit or altogether preclude the disclosure of sensitive information, and exceptions to these principles.

Chapters two through 19 address other key topics, including perspectives on the attorney-client and work-product privileges, the relationship between confidentiality and the attorney-client privilege, preserving candor between lawyers and clients, the dangers posed by exceptions to the attorney-client privilege, application of the various privileges to different types of communications, including those between counsel and putative class members, counsel and related corporations, counsel and company employees, and policyholders and their insurers; federal courts’ application of the work-product doctrine to nonparties; privilege issues arising during internal investigations and in bankruptcy and patent litigation; privilege-waiver issues potentially arising when attorneys take the witness stand and/or put their advice “at issue”; the joint-defense privilege; and more. As a bonus, several chapters include helpful appendices, including sample letters and memoranda, and a 50-state survey on the attorney-client privilege.

The Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality, Seventh Edition, remains a useful resource for practitioners needing guidance on and, in many instances, quick answers to challenging and often nuanced privilege issues likely to arise in practice. I recommend it to all practitioners—novice and experienced, especially those working in the corporate context—because you simply never know when an unfamiliar or difficult privilege issue might arise, and when it inevitably does, this book will help counsel navigate the ever-evolving waters of discovery and privilege law.

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Mario S. Russo

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Mario S. Russo is an associate in the Insurance Recovery, Litigation & Counseling practice group at McCarter & English, LLP, where he represents corporate policyholders. The views expressed in this review are those of the author and not necessarily those of the firm or its clients.