A few of your bloggers just lately attended the American Convention Institute’s annual Drug and Medical Machine Litigation Convention in New York. One of many convention panels addressed a current unsettling ruling in a non-drug-device case that held communications coaching supplied by protection counsel for his or her consumer’s workers was not solely discoverable however admissible at trial. In re Google Play Retailer Antitrust Litigation, 664 F. Supp.3d 981, 983 (N.D. Cal. 2023). Furthermore, among the “practices” that discovered their approach into the opinions appeared to us not solely privileged however completely unobjectionable:
Plaintiffs additionally level out that, for years, [defendant] has directed its workers to keep away from utilizing sure [legal] buzzwords of their communications. . . . Eight years later, [defendant] nonetheless was telling workers . . . “[a]ssume each doc you generate … can be seen by regulators.”
United States v. Google LLC, ___ F. Supp.3d ___, 2024 WL 3647498, at *113 (D.D.C. Aug. 5, 2024) (quotation omitted). That’s solely good sense, and no completely different than the opposite facet (a minimum of if they’ve good attorneys) tells its personal particular person plaintiffs earlier than they must testify.
However why are these supplies being cited in any respect? By all rights, the main points of this program ought to be privileged data, for the reason that defendant’s “workers obtain[d]” “reside group trainings” that have been “offered by attorneys.” 664 F. Supp.3d at 983. Provided that the defendant’s attorneys have been instructing company workers, these classes appear to us slightly clearly privileged.
We have been disturbed sufficient to analysis this topic. Certain sufficient, most courts reject discovery into coaching classes for company workers performed by both in-house or outdoors counsel, not to mention their use at trial. We discovered just one appellate determination, State ex rel. Montpelier U.S. Insurance coverage Co. v. Bloom, 757 S.E.2nd 788 (W. Va. 2014), an insurance coverage unhealthy religion motion. The decrease courtroom had ordered the defendant’s legislation agency to supply “all seminar or coaching supplies it ready for any insurer or trade group involving protection interpretation or extra-contractual legal responsibility.” Id. at 798. The state’s excessive courtroom reversed as a result of this materials was protected by the attorney-client privilege.
We’ve got reviewed all the paperwork submitted below this discovery request. All the paperwork mirror [defense counsel’s] authorized opinion on particular subjects. The paperwork clarify authorized ideas and procedures and particular coverage points. . . . [T]hese paperwork clearly show particular requests by [the firm’s] shoppers for authorized opinions on particular topics. Additional, . . . we discover these paperwork are protected by the attorney-client privilege.
Id. at 799 (citations omitted),
Montpelier U.S. relied largely on Santer v. Lecturers Insurance coverage & Annuity Ass’n, 2008 WL 821060 (E.D. Pa. March 25, 2008), one other insurance coverage unhealthy religion case, the place the plaintiff sought “supplies associated to coaching that defendant . . . supplied to its claims division representatives regarding unhealthy religion insurance coverage practices, insurance coverage litigation usually, and privateness rights.” Id. at *1. Santer held these supplies privileged:
After cautious and meticulous in digital camera assessment of the supplies plaintiff seeks, the Court docket finds that the paperwork are privileged. [Defendant’s] in-house attorneys ready the supplies for the aim of answering their shoppers’ questions regarding how statutes and courtroom choices within the areas of unhealthy religion, insurance coverage litigation, and privateness have an effect on the best way [defendant] handles claims. [The] attorneys then offered these supplies to [defendant’s] claims representatives throughout coaching classes in a query and reply format. The contents of the supplies, usually talking, embody explanations of fundamental authorized ideas and course regarding the place claims representatives match into the authorized course of when [defendant] is sued. The supplies are thus communications from an lawyer to a consumer that mirror communications from the consumer to the lawyer for the aim of securing an opinion of legislation.
Id.
Santer and Montpelier U.S. have been just lately cited in Willis v. Progressive Direct Insurance coverage Co., 2023 WL 4305130 (W.D. Okla. June 30, 2023), one other unhealthy religion case the place the defendant had engaged an lawyer to “conduct[] annual formal coaching relaying recommendation to [defendant’s] workers regarding how [they] ought to correctly deal with first and third occasion claims.” Id. at *3. Once more, the fabric (together with a PowerPoint presentation) was held privileged. “[T]he PowerPoint slides include authorized recommendation and are squarely protected by attorney-client privilege.” Id. at *4. “The slides, which ‘clarify authorized ideas and procedures and particular coverage points,’ clearly mirror [the attorney’s] ‘authorized opinion on particular subjects.’” Id. (quoting Montpelier U.S.). They “have been ready by outdoors counsel for [defendant], and [he] by no means even supplied a replica of the information to [the defendant]. Id.
Equally, In re Forex Conversion Antitrust Litigation, 2010 WL 4365548 (S.D.N.Y. Nov. 3, 2010), thought-about whether or not “coaching supplies and details about the arbitration provisions that was to be conveyed to shoppers,” have been protected by the attorney-client privilege. Id. at *3. After in digital camera assessment, Forex Conversion decided that the paperwork all handled the decision-making course of and implementation of [a defendant’s] determination to undertake an arbitration provision, and that in-house and outdoors counsel had been deeply concerned. Id. “[A]lthough massive teams of enterprise folks have been, at occasions, events to the communications, standing alone that truth doesn’t undermine the privileged standing of the paperwork.” Id. at *6. The coaching supplies had been authored by an lawyer, had been despatched to a different lawyer for revisions, and supplied recommendation to “customer support representatives as to what the arbitration provision means and entails, and the way to reply to buyer questions concerning the arbitration provision.” Id. Thus, they have been “supplies for which a company would select to depend on an lawyer’s recommendation and authorized experience,” and “[w]right here interactions with clients can fairly be anticipated to have authorized penalties, recommendation from an lawyer on how to reply to buyer inquiries is authorized recommendation.” Id.
Coaching and coverage supplies for the defendant’s workers have been additionally discovered privileged in Valassis Communications, Inc. v. Information Corp., 2018 WL 4489285 (S.D.N.Y. Sept. 19, 2018). “The paperwork . . . present[d] confidential authorized recommendation regarding advertising and marketing techniques to [defendant’s] workers who’re ready to behave on the data.” Id. at *3. Such coaching plainly had a legitimate function:
A company can solely act by way of its workers and brokers. Concern by managers of a company that its conduct not run afoul of the legislation is a worthy consideration. Offering enterprise folks with prepared entry to attorneys to make sure that their enterprise actions are in compliance with the legislation will not be a nefarious exercise. Prudent attorneys counsel in opposition to, and thus typically stop, illegal actions by a consumer. In a go well with in opposition to a company, it’s the actions and statements of the company, by way of its workers, which might be to be judged and never unhealthy concepts which might be offered by its workers to a lawyer and by no means see the sunshine of day due to the lawyer’s authorized recommendation. The act of “vetting” a proposed technique with a lawyer is what an sincere consumer might select to do earlier than implementing a method.
Id. at *2.
McKnight v. Honeywell Security Merchandise USA, Inc., 2019 WL 452741 (D.R.I. Feb. 5, 2019), held {that a} “Wage-Hour Compliance Coaching doc” was privileged.
[T]he coaching Doc proffered for in digital camera assessment is plainly a protected attorney-client communication. Its content material is pure authorized recommendation, which was communicated to an worker who has testified that she was “looking for authorized recommendation,” associated to her job, by an lawyer who has averred that she was “offering authorized recommendation.” The Doc is labeled as confidential and there’s no proof of waiver. No extra want be stated. The privilege objection is sustained.
Id. at *2 (document citations omitted).
Extra instances reaching the identical consequence embody: Insignia Programs, Inc. v. Information Corp., 2021 WL 5086385, at *1 (D. Minn. Could 20, 2021) (“the doc − described as a authorized coaching presentation – . . . is an attorney-client privileged doc. Defendants have sufficiently proven that the staff who have been supplied the doc (although this was a whole lot of workers) have been within the ‘must know’ class.”); Friedman v. Bloomberg LP, 2019 WL 9089585, at *1 (Magazine. D. Conn. Jan. 14, 2019) (presentation by defendant’s “in-house counsel to workers supplied authorized recommendation to [them] relating to authorized points, similar to libel and privateness”; thus “its ‘predominant function’ . . . was to render authorized recommendation to advertise compliance with the legislation, shielding such trainings with the lawyer consumer privilege”); Nationwide Safety Counselors v. CIA, 206 F. Supp.3d 241, 286 (D.D.C. 2016) (coaching paperwork exempt from FOIA manufacturing as privileged; “the fabric redacted from these paperwork is comprised of authorized recommendation and examples supplied by [defendant’s] attorneys to help within the preparation of coaching supplies for [government] workers liable for processing FOIA requests for company information”).
So let the current Google litigation be a cautionary story. You would possibly suppose that, when you find yourself known as in by your consumer to offer attorney-led recommendation and coaching, that data is privileged – and most courts agree. However some instances on the market don’t see issues that approach, a minimum of within the antitrust context. Notably, we didn’t come throughout any instances involving prescription medical product legal responsibility litigation. However, watch out.
And in doing this analysis, we discovered one other fascinating privilege determination. For those who’re like us, each time you signal on to your agency’s/firm’s laptop system you obtain a discover that features phrases like “there is no such thing as a expectation of privateness” in something you do on that laptop system. Properly, guess what, these notices work. In Sickels v. McDonough, 2023 WL 7406161 (E.D. Mo. Nov. 9, 2023), the plaintiff, who had introduced an employment discrimination go well with in opposition to her employer, nonetheless used her employer’s laptop system to speak together with her lawyer about that go well with. Dangerous transfer, the employer’s warnings established that none of these communications have been privileged:
Defendant additionally supplied proof that it requires workers to acknowledge that their exercise will not be personal by way of a safety warning banner each time they login and entry their account. . . . It supplies annual coaching about these insurance policies. [Plaintiff] has undergone this coaching since she started her employment. . . . And [plaintiff] was warned . . . to not use Defendant’s immediate messaging system for something that she wished to maintain personal. This proof exhibits that [plaintiff] had no expectation of privateness on her electronic mail account and server. The disputed communications are subsequently not protected by the attorney-client privilege. Any electronic mail attachments will not be protected by work product doctrine both.
Id. at *2 (citations omitted).
So that’s at this time’s ethics CLE, solely you’ll have needed to attend the ACI convention to obtain credit score.
