“A request for discovery that constitutes an attempt to invade the attorney-client relationship or to discover the mental impressions and strategies generally employed by opposing counsel must be rejected.”¹

The general rule governing the scope of discovery is MCR 2.302(B)(1), which states that parties may obtain discovery regarding (i) any non-privileged matter that is (ii) relevant to any party’s claims or defenses and (iii) proportional to the needs of the case. So, even assuming the relevance and proportionality requirements are satisfied, only non-privileged matters are discoverable. This article focuses on identifying and asserting the attorney-client privilege and work product doctrine to protect matters from disclosure. It also addresses strategy considerations affecting the decision to request an in-camera review or privilege log.

PURPOSES OF ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE

The attorney-client privilege promotes thorough and sincere communication between attorneys and their clients by protecting it from disclosure. It encourages clients to share all necessary information with their attorneys so lawyers can provide competent advice and clients can be fully informed. The primary purpose of this privilege is ensuring that legal advice is based on precise and thorough information.²

Similarly, the work product doctrine is designed to preserve the sanctity of the attorney-client relationship by protecting from disclosure the attorney’s impressions and thought processes.³ It promotes the attorney’s freedom to generate documents and records to facilitate work on legal matters.⁴

ATTORNEY-CLIENT PRIVILEGE: ITS SCOPE, ASSERTING IT, AND WAIVING IT

The attorney-client privilege is one of the “oldest of the privileges for confidential communications known to the common law.”⁵

The scope of the attorney-client privilege is narrow, attaching only to confidential communications by the client to his advisor made for the purpose of obtaining legal advice.⁶ This includes communications made through agents to attorneys for the purpose of obtaining legal advice.⁷ When an attorney’s client is an organization or the attorney is part of a law firm, the privilege extends to all communications by and between the law firm and all agents or employees of the client organization authorized to speak on its behalf.⁸

Merely asserting that the attorney-client privilege exists is insufficient in and of itself to avoid discovery. Rather, the party claiming the privilege has the burden of explaining how it applies in each context in which it’s asserted.⁹

One way the privilege can be lost is through waiver. Waiver is judged by stringent standards to ensure client confidences are preserved wherever possible, even in the face of inadvertent disclosures.¹⁰ And since the attorney-client privilege is personal to the client, only the client can waive it.¹¹

WORK PRODUCT DOCTRINE: ITS SCOPE, ASSERTING IT, AND WAIVING IT

Aside from the attorney-client privilege, Michigan law “recognize[s] the common-law privilege protecting the disclosure of attorney work product.”¹²

In Augustine v. Allstate Insurance Co., the Michigan Court of Appeals explained that the work product doctrine “protects from discovery the notes, working documents, and memoranda that an attorney prepares in anticipation of litigation.”¹³ The trigger to apply it is whether “notes, working papers, memoranda, or similar materials” were prepared in anticipation of litigation.¹⁴

Work product is prepared “‘if the prospect of litigation is identifiable, either because of the facts of the situation or the fact that claims have already arisen.’”¹⁵ Only “mental impressions, conclusions, opinions, or legal theories” are protected by the doctrine.¹⁶ It should also be noted that “[f]actual work product receives less protection than work product that reveals the opinions, judgments, and thought process of counsel.”¹⁷

The attorney work product doctrine isn’t absolute. Under MCR 2.302(B)(3)(a), attorney work product becomes discoverable “only on a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” If the party seeking discovery makes the required showing of substantial need and undue hardship, there are still limits on what becomes discoverable. That’s because “in ordering discovery of such materials ... the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.¹⁸

Like the attorney-client privilege, “the party asserting a work product privilege has the burden of proving its application.”¹⁹ But then the burden shifts to the party seeking to demonstrate substantial need and undue hardship to provide an exception to the general rule against disclosure.²⁰

STRATEGY: REQUEST AN IN-CAMERA REVIEW OR PRIVILEGE LOG?

Once a party claims that a document is privileged, there are important considerations to make when requesting or deciding to stipulate to an in-camera review or a privilege log.

Considerations For In-Camera Review

The Michigan Court of Appeals has repeatedly held that trial courts abuse discretion by denying discovery of documents “without first conducting an in-camera inspection to determine whether they contain relevant, nonprivileged material subject to discovery by plaintiff.”²¹

For example, the Court of Appeals has held:

[T]he trial court’s blanket refusal to require defendants to justify their asserted privilege constituted an abuse of discretion [where it] did not conduct an in camera review of the documents and did not have sufficient information regarding the documents to determine whether they were privileged.²²

The panel explained that “[w]ithout information regarding a particular document’s author, recipients, and subject matter, the court was unable to assess the applicability of the attorney-client privilege or work product doctrine in a principled way.”²³

Thus, Michigan law requires that “to determine the extent to which the documents are protected, the court must first conduct an in-camera review of the challenged documents.”²⁴

Considerations For Privilege Log

The Court of Appeals has recognized the burden that in-camera reviews place on trial courts in determining claims of work product or attorney-client privilege, especially in cases of complex litigation.²⁵ As a result, the Court of Appeals has “pointed to procedures used in the federal courts to alleviate the burden and assist the trial court in evaluating such claims, procedures that include identifying each document by number, date, author, addressee, recipients of copies, and the general nature of the documents” — i.e., generating a privilege log.²⁶ The court has also recognized that “use of such procedures would facilitate ‘adversarial input on the appropriateness of disclosure while protecting disclosure of the privileged contents.’”²⁷

As a result, while a party isn’t sua sponte required to produce a privilege log, there’s nothing stopping them from voluntarily doing so — or the court from ordering them to do so — to avoid the hassle and expense of an in-camera review.²⁸ Further, because “exchanging privilege logs ... is more convenient and less costly” than in-camera reviews, “the concept of the privilege log has taken root as a means for saving time and money.”²⁹

Michigan law “does not require a privilege log to accompany” discovery responses for documents withheld based on privilege or work product.³⁰ Instead, privilege logs are only required if ordered by the court.³¹

CONCLUSION

There are many important considerations surrounding privilege which must be carefully asserted to protect the interests of clients.

While Michigan does not have a specific process for identifying a privileged document or identifying the type of privilege, a blind assertion of privilege is “woefully inadequate”³² and could potentially lead to the privilege being waived.³³

The main purpose surrounding the attorney-client privilege and work product doctrine deal with protecting the sanctity of the attorney-client relationship by keeping from disclosure pertinent information to the representation. While the attorney-client privilege deals with communications made for purposes of the representation, the work product doctrine deals with the attorney’s mental impressions and work made to further the representation.

Once a party asserts something is protected from disclosure by privilege or the work product doctrine, there are important strategic considerations regarding whether an in-camera review or a privilege log may be appropriate given the circumstances.