Protecting “Unlabeled” Attorney Work Product

By Christine McInerney, Esq.


Production of documents is a major element in commercial litigation cases and counsel is often confronted with requests that call for the production of documents covered by the attorney work product doctrine.  The work product doctrine is a common and valid basis to object and withhold production of documents that are otherwise relevant and responsive.  However, the party asserting the work product doctrine bears the burden of establishing that the privilege applies. In a recent case, the court finds that the work product doctrine applies, but requires that counsel provide a supporting affidavit.

Under Federal Rule of Civil Procedure 26(b)(3), the work product doctrine extends to documents or other tangible things, prepared in anticipation of litigation by or for a party or by or for its representative.  The doctrine is an important one, permitting the development of litigation strategy and preparation, without the risk of discovery that otherwise accompanies documents relevant to a given case.  But the protection the work product doctrine affords can be waived.  In the recent decision of Tilberg v. Next Management Co.,the defendant narrowly avoided waiving the privilege for certain documents designated in its privilege log.  Tilberg is noteworthy because the Court determined that the documents in question were protected by the doctrine, despite the fact that they did not contain virtually any obvious identifiers of work product, such as labels in bold claiming “Attorney Work Product”, or other recitals claiming the existence of the work product or privilege.

In Tilberg, the Plaintiff brought suit against her former-modeling representatives.  Discovery in the action included a forensic search of the defendant-company’s computer files, which in turn yielded certain documents that the defendant-company claimed as privileged.  The documents in contention were all emails, exchanged between a defendant-individual (an employee of the defendant-company), and another of the defendant-company’s employees.  The defendant-individual had also exchanged emails claimed as privileged with the defendant-company’s Information Technology consultant.  As described by Magistrate Judge Ellis, “[t]he e-mails, in large part are brief discussions between the employees apparently responsible for preparing documents for release in discovery.”  Only one of the e-mails indicated that counsel had asked for the documents mentioned.  It appears that none of the other emails had any reference to counsel.

The Court specifically noted that the defendant-company submitted nothing to attempt to meet its burden besides the conclusory claim of privilege and the documents themselves.  Similarly, plaintiff failed to submit anything to counter the claim of privilege.  Fortunately for defendant-company, the Court reviewed the documents in camera to determine whether the work product doctrine applied.

Based on his review of the documents, Judge Ellis was persuaded that the emails were prepared in anticipation of litigation, and specifically, “upon the request of counsel.”  In so holding, he observed that the fact that they were exchanged between third parties, does not in and of itself, vitiate the protection afforded by the work-product doctrine.  He observed that, “‘[u]nlike the attorney-client privilege, where the rules of waiver are rather well defined and where privilege is lost if a privileged item is shared with a third party . . . work product protection is not necessarily waived by disclosures to third persons.’  In particular, sharing litigation strategy does not waive the privilege where experts, such as an accountant, are engaged to assist with some aspect of the litigation.  . . .  Only ‘where the third party to whom the disclosure is made is not allied in interest with the disclosing party or does not have litigation objectives in common, the protection of the doctrine will be waived.’”  Perhaps because of the lack of express indications that the emails were prepared in anticipation of litigation, Judge Ellis required that the defendant-company’s counsel submit an affidavit confirming that the information contained in the emails “was requested ‘in anticipation of litigation.’”

Tilberg has a number of lessons to teach.  First, counsel should take affirmative steps to protect the privilege both when documents are created and later when the privilege is challenged.  As Judge Ellis pointed out, “[t]he party claiming a privilege bears the burden of establishing the privilege.”  The practitioner therefore should take all steps necessary to see that communications that are entitled to be treated as privileged explicitly contain information reflecting that they are privileged.  For instance, information prepared at the request of an attorney should specifically reflect that it is prepared at the attorney’s request.  Also, captioning something as “Attorney Work Product Prepared in Anticipation of Litigation,” while not determinative, can bolster a claim of privilege.

Second, once faced with a challenge to a designation of work product, counsel should be prepared to submit an affidavit describing the circumstances under which the documents were created.  In Tilberg, the court directed counsel to do so following his review.  A better practice would be to offer such an affidavit prior to the court’s review of the challenged documents.  Indeed, a well-crafted affidavit substantiating that the documents were prepared in anticipation of the litigation may well forestall the need for an in camera review by the court.

Third, the practitioner should not abandon the defense of a document as privileged work product, simply because it is not properly identified as such.  Clearly, judges will consider the content of the document in ascertaining whether privilege attaches.  As one Court has stated, “‘[W]hether a particular document is or is not protected [by the attorney-client privilege or work product doctrine] is necessarily a fact specific determination … most often requiring in camera review’ …  This determination cannot responsibly be based on generalized descriptions or labels designed by the parties, but rather on complete information as to content and context.”

In summary, while the practitioner should never abandon a claim of privilege, based on the absence of a label or other identifying information on the document denoting privilege, it is better practice to make certain that privileged material is clearly identified as such.  By taking the time to properly instruct clients on the preservation of privilege through both marking and controlling the distribution and contents of communications, the practitioner can more easily meet an adversary’s challenge to claims of privilege.  In so doing, the practitioner often will avoid the need to engage in extensive proceedings seeking a judicial determination that a document is privileged.

[1] Christine McInerney is a Member of Ruskin Moscou Faltischek, P.C. and practices in the Firm’s Litigation Department.  She is a Vice Chair of the Nassau County Bar Association’s Commercial Litigation Committee. 

[i] The work product doctrine is more properly identified as a qualified protection, rather than as a privilege.  However, we will informally refer to it as a privilege for purposes of this article.

[ii] An exception is also built into Fed. R. Civ. P. 26(b)(3).  The exception provides that work product is discoverable “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

[iii] 04 Civ. 7373 (SDNY 2006) (published in the New York Law Journal, “Decisions of Interest”, Friday, January 6, 2006, p. 22.

[iv] Quoting, Medinol, Ltd. v. Boston Scientific Corp., 214 F.R.D. 113, 114-15 (S.D.N.Y. 2002).

[v] See, Atronic Int’l, GMBM v. SAI Semispecialists of America, Inc., 232 FRD 160, 164 (EDNY 2005) (noting, in holding that the inadvertent disclosure of two privileged emails constituted a waiver, that “counsel failed to label the documents ‘confidential’ or ‘privileged’ so as to put others on notice of their privileged nature.”).

[vi] Geary v. Hunton & Williams, 245 AD2d 936, 939 (3d Dep’t 1997) (citation omitted).