Issue Addressed: Whether the attorney/client privilege and the work product doctrine are defenses to a motion to compel.
Short Answer: They can be.
This is one of four Chancery decisions during the month of April, in separate cases, that addressed in a careful and balanced manner both the attorney/client privilege and the work product doctrine as defenses to a motion to compel. Each case of course presented different factual and procedural situations. The other three cases were highlighted on these pages at the following links: see Comverge, JPMorgan and Kalisman.
I selected below some of the most noteworthy aspects of this decision that has widespread practical utility.
● Simply because an attorney created a document does not make it privileged and especially when a lawyer is performing a business function. See footnote 2 and accompanying text.
● An overly-broad designation of documents as privileged may result in the loss of privilege even for those documents within the set that should otherwise have been protected. See footnote 7.
● The court discusses the type of detail that should be in a privilege log and that it should provide a specific description and designation of the basis of the privilege in order to give the court a basis upon which to weigh the application of the privilege. See footnotes 11 and 12, as well as accompanying text.
● “If e-mails are privileged, but the attachments to the e-mails do not independently earn that protection, then the attachments may not be withheld on the ground of privilege emanating from the e-mail which they accompany.” See Slip op. at 10.