And When and How

The above-set-forth is not a question, but an essential guideline for establishing client-attorney privilege, as STJ Zachary S. (“Highrise”) Fried judge-‘splains in Amgen Inc. & Subsidiaries, et al., Docket No. 16017-21, filed 12/1/24.

Y’all will recollect that back on 11/14/24 STJ Fried tossed Amgen’s claim that a PowerPoint slideshow from some attorney to a bunch unnamed Amgens (hi, Judge Holmes) was privileged. What, no? See my blogpost “A Note of Sympathy,” 11/14/24*.

Amgen tries a Rule 161 reconsideration motion, with declaration attached from Jacqueline (a/k/a Jackie) Samuels, wherein is asserted “‘the audience for such documents was limited to individuals within Amgen,’ and references the Declaration of Jacqueline Samuels which ‘provides additional context for these documents[,] . . . including an explanation of how these documents . . . were kept confidential within Amgen.’” Order, at p. 3.

OK, but what is missing from this picture? STJ Highrise Fried will tell us.

“…we conclude that the PowerPoint presentations and spreadsheets do not specify their audience or the individuals who had access to the documents. Neither the documents themselves nor petitioner’s privilege logs sufficiently identify the recipients of the legal advice or demonstrate that the communications were made in confidence between an attorney and a client. This omission is critical, as the attorney-client privilege is only applicable to communications made for the purpose of providing legal advice to specific, identifiable clients or their representatives.

“We note that petitioner’s motion for reconsideration, along with the Declaration of Jacqueline Samuels, provides additional information regarding certain withheld documents. This new information offers further details about the subject matter of the documents, explains the legal purpose they serve, and addresses their confidential nature. Had the additional information been included in petitioner’s privilege logs we expect that the scope of respondent’s motion might have been narrowed. The failure to identify the audience in the privilege logs or within the documents themselves waives the claim of attorney-client privilege as to the documents.” (Emphases added).

Not only is the importance of who, but also the importance of when and how, front-and-center when client-attorney is on the cards. Who sought advice, who provided the advice, when and how was the privilege asserted.

I suggest that Section 7525 FATPs (and maybe so USTCPs) should assure these particulars be explicitly set forth in the document itself, stating authorized recipients, with warnings to inadvertent readers or recipients to return or destroy on every page or slide. Moreover, the privilege log should reiterate the identities of the authorized addressees-recipients and recite warnings given as to each document.

* https://taishofflaw.com/2024/11/14/a-note-of-sympathy/