Attorney-Client Privilege in DC
The attorney-client privilege “exists to encourage ‘full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice.” Jones, 2018 U.S. Dist. LEXIS 67400, at *8, quoting Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). “It protects confidential communications between clients and their attorneys made for the purpose of securing or providing legal advice or services.” Id., citing Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). The privilege also extends to communications between corporate employees who are working together to compile facts for attorneys to use in rendering legal advice. FTC v. Boehringer Ingelheim Pharms., Inc. (Boehringer II), 180 F. Supp. 3d 1, 34 (D.D.C. 2016), citing Neuder v. Battelle Pac. Nw. Nat’l Lab., 194 F.R.D. 289, 295 (D.D.C. 2000); see also Jones, 2018 U.S. Dist. LEXIS 67400, at *50 (“[C]ourts have held ‘that communications among non-lawyer corporate personnel are protected if the dominant intent is to prepare the information in order to get legal advice from the lawyer.”), quoting In re N.Y. Renu with Moistureloc Prod. Liab. Litig., No. CA 2:06-MN-77777-DCN, 2008 U.S. Dist. LEXIS 88515, *28 (D.S.C. May 8, 2008); AT&T Corp. v. Microsoft Corp., No. 02-0164 MHP (JL), 2003 U.S. Dist. LEXIS 8710, *7 (N.D. Cal. Apr. 18, 2003) (“Communications between non-lawyer employees about matters which the parties intend to seek legal advice are likewise cloaked by attorney-client privilege”). Indeed, as this Court has explained, “[i]t is well established that a ‘document need not be authored or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds.” Jones, 2018 U.S. Dist. LEXIS 67400, at *50, quoting Boehringer II, 180 F. Supp. 3d at 34; see also Santrade, Ltd. v. G.E., 150 F.R.D. 539, 545 (E.D.N.C. 1993) (same). Thus, communications between corporate personnel are protected by the attorney-client privilege if they reflect matters about which the client intends to seek legal advice. U.S. v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1077 (N.D. Cal. 2002).
Sean Griffin litigates contract and fraud cases in Virginia, Maryland, and the District of Columbia. He may be reached by email at sgriffin@dykema.com or by phone at (202) 906-8703.