Also known as: holders of the privilege · privilege holder
Written by attorneys — see sources below.
The party entitled to assert or waive the attorney-client privilege or work-product protection. The holder must take reasonable steps to prevent disclosure of protected communications. Failure to do so can result in waiver when an inadvertent production occurs in a federal proceeding or to a federal agency.
Haven Medical hired an outside vendor to review two million emails for a federal agency investigation. The vendor's filters missed a privileged memo from in-house counsel analyzing regulatory risks. Haven Medical immediately demanded return of the memo after the agency flagged it. The court examined whether Haven Medical had taken reasonable steps to prevent the disclosure before deciding if the privilege survived.
Harold Hunt's attorney prepared notes of confidential legal advice before Hunt died. The government subpoenaed the notes in a later criminal investigation. Hunt's estate asserted the privilege to block production. The court determined that the estate, as successor holder, could invoke the protection even after the original client's death.
In July 1993 Vincent W. Foster, Jr., then Deputy White House Counsel, met with attorney James Hamilton of the firm Swidler & Berlin to seek legal representation concerning possible congressional or other investigations of the 1993 dismissal of employees from the White House Travel Office. During the two-hour meeting Hamilton took three pages of handwritten notes, one of the first entries of which was the word "Privileged." Nine days later Foster committed suicide. In December 1995 a federal grand jury at the request of the Office of the Independent Counsel issued subpoenas to Hamilton and Swidler & Berlin for Hamilton's handwritten notes of the meeting with Foster. Petitioners filed a motion to quash the subpoenas. After examining the notes in camera the District Court concluded they were protected by both the attorney-client privilege and the work-product privilege and denied enforcement. The Court of Appeals for the District of Columbia Circuit reversed. It recognized that most courts assume the privilege survives death but concluded that a balancing test should apply in the criminal context. The Court of Appeals also held that the notes were not protected by the work-product privilege. A dissenting judge would have affirmed the District Court's judgment protecting the notes under the attorney-client privilege. Petitioners sought review in the Supreme Court on both the attorney-client privilege and the work-product privilege. The Supreme Court granted certiorari in 1998.
View caseThe corporation itself holds the privilege. In-house counsel and outside counsel act as agents for the corporate holder when screening documents for production.
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Delegation to a qualified vendor with written instructions and privilege filters can constitute reasonable steps. Courts evaluate the overall protocol rather than requiring the holder to perform every review personally.
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The inadvertent disclosure safe harbor does not apply. A court may find waiver because the holder did not take reasonable steps to prevent disclosure even though the production was accidental.
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Yes. The privilege continues after death and may be asserted by the client's estate or successor in interest.
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…California’s statute is exceptional in that it apparently allows the attorney to assert the privilege only so long as a holder of the privilege (the estate’s personal representative) exists, suggesting the privilege terminates when the estate is wound up. See Cal. Code Evid. Ann. §§954, 957 (West 1995). But no other State has…