In Cephalon, Inc. v. Johns Hopkins University, et al., C.A. No. 3505-VCP (Del Ch., Dec. 4, 2009), read letter decision here, Cephalon asked the Delaware Court of Chancery to review in camera certain documents identified in the privilege log of defendant Johns Hopkins University (“JHU”) to determine whether these documents were privileged.

Kevin Brady, a highly regarded Delaware litigator, provided this synopsis.

In a prior order regarding Cephalon’s Motion to Compel, the Court allowed Cephalon to select up to fifteen documents identified in JHU’s Supplemental Privilege Log for in camera review to determine whether the documents were privileged and whether the representations made by JHU in the Privilege Log as to those documents were reasonable and accurate.

Cephalon identified documents where JHU claimed attorney-client privilege despite the absence of any attorney among the authors and recipients listed in the Privilege Log. JHU submitted those documents to the Court with a letter requesting permission to make an additional submission containing background and contextual information about the documents to assist the Court in its review. The Court denied JHU’s request in essence saying that the privilege log had to stand or fall on its own merits. The Court stated that a communication regarding legal advice (not business advice) can qualify for the attorney-client privilege even if no party to the communication is an attorney. Under D.R.E. 502(b):

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative, (2) between the lawyer and the lawyer’s representative, (3) by the client or the client’s representative or the client’s lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

In this case, given that the documents under review included e-mail which often contain a mix of business and legal matters, the Court discussed what should be done where the communication refers to both legal and business matters. The Court said:

If the legal-related aspects of the communication easily can be separated from the business-related aspects, the document must be produced with the legal-related portions redacted. If a communication contains an inseparable combination of business and legal advice, however, the communication may be protected by the attorney-client privilege. Where it is a close call, the party asserting the privilege will be given the benefit of the doubt.

The Court then discussed its decision as to the claim of privilege on the fifteen documents at issue. The results of the review are not relevant for discussion purposes here other than to say that the Court did discuss its basis for analyzing privilege asserted within email chains. Having reviewed in camera the fifteen documents, the Court concluded that JHU’s representations in the privilege log were reasonable and accurate and the privilege was sustained.

As a side note, this is an area of the law and practice that has become very complicated and very expensive for companies with the volume of electronic mail and the susceptibility to post-transmission modification within email chains. Indeed, surveys indicate that privilege review and the preparation of privilege logs are the most expensive components of e-discovery.

For anyone interested in the latest discussion about these topics and some very good suggestions about alternative non-traditional ways to handle privilege review and large privilege logs, I recommend a very recent article by Judge John M. Facciola and Jonathan M. Redgrave entitled Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework" Vol. 4, Issue No. 1, The Federal Courts Law Review, Nov. 2009. A pdf of the article is available here.