Review of Attorney-Client Privilege, Work Product Doctrine, and the Crime-Fraud Exception

Attorney-Client privilege

The Court in La Liberte rightly began by assessing the non-parties’ claims of attorney-client privilege under New York law.⁵ In particular, the Court assessed the availability of attorney-client privilege with respect to communications between employees and their in-house counsel.⁶

Generally speaking, attorney-client privilege arises in New York, and in most other jurisdictions, where there is “an attorney-client relationship, a communication made within the context of that relationship for the purpose of obtaining legal advice, and the intended and actual confidentiality of that communication.”⁷ A sub-issue arises in the context of employees’ communications with their in-house counsel, particularly where the in-house counsel serves a dual role of attorney and business advisor. Despite this privilege’s limitations, New York state and federal courts have upheld its assertion in numerous contexts.⁸ For instance, in the recent New York Court of Appeals case, Matter of Appellate Advocates v. New York State Department of Corrections & Community Supervision, the Court held that training materials prepared by counsel were privileged, where the training materials “contain[ed] counsel’s advice regarding compliance with legal requirements concerning parole interviews and parole determinations; summarize[d] recent court decisions and advise[d] on how to apply statutes, regulations, and case law; and include[d] guidance on drafting parole decisions that accord with the law.”⁹ Further, simply disseminating communications from in-house counsel within the organization is not enough to destroy privilege.¹⁰ However, this privilege has its limitations. Where in-house counsel acts as a business person or a lobbyist, for example, privilege will not lie.¹¹ And in federal court, there is a strict requirement that the primary reason for a communication be the receipt or delivery of legal advice, even if a request for advice is implicit.¹² So, attorney-client privilege may attach where a request for legal advice is implicit, but that request for advice must be the primary purpose of the disputed communication.¹³

In La Liberte, the Court held that communications between NBCU in-house counsel and employees had been sent “for the purpose of giving legal advice regarding the social media posts giving rise to this litigation, including a response to plaintiff’s threat of litigation[.]”¹⁴ Because the “involved attorneys were clearly acting in their roles as in-house counsel and providing advice to their clients on a legal issue”, there was no issue regarding the privileged nature of many of the documents at issue.¹⁵ While it might seem elementary, it bears repeating that, for a communication to be protected, an attorney-client relationship must exist, the communication must be made within the context of that relationship for the purpose of obtaining legal advice, and there must be intended and actual confidentiality of that communication.¹⁶ To that end, the Court had a different view on “transmittal emails that enclose or attach other documents, without providing substantive comment.”¹⁷ The Court found that these communications were discoverable, given that these “transmittal” emails conveyed no real legal advice.¹⁸ For practitioners, then, this holding serves as a valuable reminder that certain courts will hold that only emails explicitly requesting or conveying legal advice are protected by attorney-client privilege. Simply sending a client a document without substantive comment may not be considered legal advice, and may not be protected as such.

Work Product Doctrine

Just as your law professor would have expected you to do, the Court in La Liberte next addressed the separate, but related Work Product Doctrine, under federal law.¹⁹ As the Court noted, “work product doctrine protects documents and tangible things prepared by a party or their attorney in anticipation of litigation.”²⁰ Such materials will be protected, depending on “whether [they] were prepared ‘with an eye toward’ or ‘in anticipation of’ or ‘because of the prospect of litigation.’”²¹ “A claim of work-product has three elements: [t]he material must (1) be a document or a tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for his representative.”²² The burden of establishing work product protection lies with the party claiming it applies.²³ When it does exist, work product is generally more protected than attorney client privileged material, and is only disclosed “in rare and extraordinary circumstances.”²⁴

In La Liberte, the Court found that work product protection was available to protect many of the communications at issue, but not all of them, for the same reasons as described above. As for the attorney client privilege analysis, the Court reasoned that the “vast majority of the communications at issue [were] undoubtedly privileged or protected work product, as they constitute[d] confidential communications between attorney and client for the purpose of rendering legal advice and because of potential litigation.”²⁵ Also helpful was the fact that said communications were exchanged “the same day that plaintiff’s counsel sent a letter to defendant and NBCU threatening litigation.”²⁶ As with attorney client privilege, practitioners should keep in mind that communications or materials sent between attorney and client are not automatically protected by the work product doctrine. Such communications need to be prepared in anticipation of litigation, and the burden is on the attorney claiming the privilege to create their record with respect to the privilege’s applicability.

The Crime Fraud Exception

Finally, the Court in La Liberte addressed plaintiff’s argument that even if the materials at issue were protected by attorney-client privilege or work product protection, they should be discoverable regardless, because the crime-fraud exception applied under New York law. The crime-fraud exception works to make discoverable materials that would otherwise have been protected by privilege, where there is a “factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.”²⁷

One mechanism that is sometimes used in cases involving the assertion of the crime-fraud exception, is that of in camera review. This approach was endorsed by the Supreme Court in the case United States v. Zolin.²⁸ There, the Court held that the appropriate standard for determining whether in camera review in the crime-fraud exception context is that “the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person, that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.”²⁹ Then, “the decision whether to engage in in camera review rests in the sound discretion of the district court”, which considers “the volume of materials the district court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply.”³⁰

The Court engaged in in camera review in La Liberte, related to the issues of attorney-client privilege, work product protection, and the crime-fraud exception. Ultimately, the Court found “no factual support for the allegation that NBCU lawyers engaged in a scheme to delete and destroy social media analytics associated with the subject posts.”³¹ While in camera review of the communications at issue saved the day for NBCU, it is important to note that this is not always the case. In this age of vicious litigation, accusations such as this are leveled, and in some cases, are sustained.³² Being aware that this exception may be raised, and understanding the law and procedures associated with defending (or asserting) such a claim are the best preparation.

¹No. 18-CV-5398-DLI-JRC, 2024 WL 22781, at *1 (E.D.N.Y. Jan. 2, 2024).
²Id. For a detailed background on the facts of this case, see La Liberte’s Amended Complaint, filed November 27, 2018, ECF 16. In brief, Reid posted images of La Liberte seemingly haranguing a teenage student at a city council meeting. Reid claimed that La Liberte had been shouting racist remarks at the student at the time, and “openly compared La Liberte’s alleged conduct to racism during the Jim Crow era”. Id. ¶ 56. When Reid learned that her statements were inaccurate, she later posted, “It appears I got this wrong. My apologies to Mrs. La Liberte and [the student].” Id. ¶ 58. La Liberte filed suit nonetheless. See also Erik Wemple, Trump supporter’s libel case against MSNBC’s Joy Reid lives on, The Washington Post (July 16, 2020, 12:27 PM EDT) https://www.washingtonpost.com/opinions/2020/07/16/trump-supporters-libel-case-against-msnbcs-joy-reid-lives/ [https://perma.cc/8ZSB-4NAG].
³Id.
⁴Id.
⁵Id.
⁶Id. at *2.
⁷Id. (quoting Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 264 (S.D.N.Y. 1995)).
⁸As a general note, federal courts will apply state privilege law when sitting pursuant to diversity jurisdiction. Id. (“In cases brought pursuant to [the E.D.N.Y.’s] diversity jurisdiction, the Court looks to state privilege law.”). 
⁹Id. at *2.
¹⁰Strougo v. BEA Assocs., 199 F.R.D. 515, 519–20 (S.D.N.Y. 2001); but see Robbins & Myers, Inc. v. J.M. Huber Corp., 274 F.R.D. 63, 93 (W.D.N.Y. 2011) (where privilege was found to have been waived through excessive dissemination). 
¹¹See Georgia-Pacific Corp. v. GAF Roofing Mfg. Corp., 1996 WL 29392 (S.D. N.Y. 1996); Swift Spindrift, Ltd. v. Alvada Ins., Inc., 2013 WL 3815970 (S.D. N.Y. 2013); In re Grand Jury Subpoenas dated March 9, 2001, 179 F. Supp. 2d 270 (S.D. N.Y. 2001).
¹²In re Aenergy, S.A., 451 F. Supp. 3d 319, 324 (S.D.N.Y. 2020).
¹³Id.
¹⁴Id. at *3. 
¹⁵Id.
¹⁶See supra note 7.
¹⁷Id. (citing Securities Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec. LLC, 319 F.R.D. 100, 104-05 (S.D.N.Y. 2017); Shih v. Petal Card, Inc., 565 F. Supp. 3d 557, 568 n.4 (S.D.N.Y. 2021)).
¹⁸Id.
¹⁹Id. at *2 (“Unlike the attorney-client privilege, the work product protection in diversity cases is governed by federal law.”) (quoting Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 264 (S.D.N.Y. 1995)).
²⁰Id. at *2. 
²¹Id. (quoting Pearlstein v. Blackberry Ltd., No. 13-CV-7060, 2019 WL 1259382, at *5 (S.D.N.Y. Mar. 19, 2019)).
²²BNP Paribas v. Bank of N.Y. Trust Co., N.A., No. 11-CV-00350 (PGG) (HBP), 2013 WL 2434686, at *3 (S.D.N.Y. June 5, 2013) (quotation marks and citations omitted); see also Bennett v. Cuomo, No. 22CIV7846VSBSLC, 2024 WL 80271, at *5 (S.D.N.Y. Jan. 8, 2024).
²³Pilkington N. Am., Inc. v. Mitsui Sumitomo Ins. Co. of Am., 341 F.R.D. 10, 13 (S.D.N.Y. 2022).
²⁴John F. Wagner, Jr., Protection from discovery of attorney’s opinion work product under Rule 26(b)(3), Federal Rules of Civil Procedure, 84 A.L.R. Fed. 779 (originally published in 1987). 
²⁵La Liberte, 2024 WL 22781, at *3.
²⁶Id.; see supra note 20. 
²⁷Id.
²⁸491 U.S. 554 (1989).
²⁹Id. at 572 (quoting Caldwell v. District Court, 644 P.2d 26, 33 (Colo. 1982)).
³⁰Id.
³¹Id. at *4. 
³²See, e.g., United States Sec. & Exch. Comm’n v. Collector’s Coffee Inc., 338 F.R.D. 309, 320 (S.D.N.Y. 2021) (applying crime-fraud exception to conversations between former company employee and her attorneys, “that were in furtherance of her efforts to cause the attorneys to give false statements to the SEC”.); Securities Investor Protection v. Bernard L. Madoff Investment Securities, Nos. 08-01789 (SMB), 10-04216 (SMB), 2017 Bankr. LEXIS 519, at *23 (Bankr. S.D.N.Y. Feb. 17, 2017) (the crime-fraud exception did apply and warranted production of otherwise privileged materials; the fact that the other defendant “may not have been involved in the fraudulent scheme d[id] not alter th[e] result”); Amusement Indus., Inc. v. Stern, 293 F.R.D. 420, 439 (S.D.N.Y. 2013) (reasoning that “[b]ecause we have found the transactions on which these attorneys worked to each constitute illegal schemes devised by [defendant], [defendant’s] communications with his attorneys to effectuate them were necessarily ‘in furtherance of’ his illegal conduct.”).