Many if not most clients and even some ill-informed lawyers think they can “make” something privileged through some logistical step — such as marking it as “privileged,” copying a lawyer, inviting a lawyer to a meeting, etc. This is dangerously wrong.

In Export Development Canada v. East Coast Power & Gas, LLC, No. 21-CV-3758 (NRB) (RWL), 2024 U.S. Dist. LEXIS 106651 (S.D.N.Y. June 12, 2024), Magistrate Judge Lehrburger analyzed a document that defendant had withheld as privileged and work product. He acknowledged that the document was marked as “Attorney Client Privilege,” “Attorney Work Product,” “Prepared At The Request Of Counsel,” “Prepared In Anticipation Of Litigation” — and that both protections were supported by defendant’s in-house lawyer’s declaration. Id. at *1-2. The court nevertheless: (1) rejected defendant’s privilege claim, noting that the document “contains no legal advice, discussion or analysis”; instead discusses “risks [that] are financial ones, not legal ones”; “‘does not reflect communications of a legal nature between an attorney or his agents'”; and (2) rejected defendant’s work product claim, noting that “the Document contains no legal analysis, no allusion to any looming legal case, or any other indicia of preparation in anticipation of litigation.” Id. at *3 (internal citation omitted).

In any privilege analysis, content is king. Work product protection is based more on context, but courts also examine withheld work product’s content. Next week’s Privilege Point describes another decision issued the same day by the same court making the same point.