Last week’s Privilege Point described an S.D.N.Y. opinion rejecting privilege and work product claims for a document that on its face did not contain legal advice or any allusion to or analysis of anticipated litigation. Export Dev. Canada v. E. Coast Power & Gas, LLC, No. 21-CV-3758 (NRB) (RWL), 2024 U.S. Dist. LEXIS 106651 (S.D.N.Y. June 12, 2024).
In Malherbe v. Oscar Gruss & Son, Inc., No. 21-CV-10903 (MMG), 2024 U.S. Dist. LEXIS 105625 (S.D.N.Y. June 12, 2024), Judge Garnett analyzed documents defendant had claimed as privileged because they came from a folder previously possessed by its former owner’s lawyer. Although acknowledging that “privilege can be established by circumstantial evidence,” the court rejected defendant’s privilege claim — noting that “[n]othing on the face of the . . . documents clearly indicates that these documents reflect attorney-client communication, were prepared by or at the direction of an attorney, or were prepared in anticipation of litigation.” Id. at *6-7.
Lawyers should keep in mind these and similar cases making the same commonsense point. Most importantly, lawyers should remind their clients that a judge reviewing withheld documents will review the face of the documents for clear indicia of privilege or work product protection.
