Sending Pre-Existing Historical Documents to a Lawyer Does Not Make Them Privileged, But…

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It should go without saying that sending pre-existing historical documents to a lawyer does not automatically immunize them from discovery as privileged. If it did, clients could box up all of their files and send them to a lawyer ― thus avoiding the documents’ discovery. Many courts repeat this axiomatic principle. For instance, the court in Warren Hill, LLC v. Neptune Investors, LLC, Civ. A. No. 20-452, 2020 U.S. Dist. LEXIS 161106, at *3 (E.D. Pa. Sept. 3, 2020), categorically stated that “[a] document does not magically metamorphose into a document protected by the attorney client privilege simply because a client later sends it to his or her lawyer.”

But other courts properly recognize a more nuanced approach. Several years ago, the court in General Electric Co. v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562, at *5 (D. Conn. Sept. 15, 2015), correctly recognized that the identity of an intrinsically unprotected historical document a client sends to her lawyer could “reveal that it was communicated in confidence to an attorney in connection with the seeking or receipt of legal advice.” That wise court provided a common sense example: an executive’s sending to “the company’s counsel a news article about alleged bid-rigging activities within the company’s industry” would reflect the client’s concern ― explaining that “the fact that the news article is a quintessentially public document would not defeat a claim of privilege.” Id. at *5-6. Not surprisingly, a privilege log would describe such a withheld historical document generically rather than specifically.

So like many seemingly simple privilege principles, this one does not automatically apply in every case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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