December 19, 2018
Last week's Privilege Point described a court's recognition that the work product doctrine can protect lawyers' communications with third party witnesses. Five days later, another court dealt with lawyers' reports to their clients about such third party communications.
In Finjan, Inc. v. SonicWall, Inc., Case No. 17-cv-04467-BLF (VKD), 2018 U.S. Dist. LEXIS 177061 (N.D. Cal. Oct. 15, 2018), defendant sought discovery of what apparently were plaintiff's lawyer's reports to his client about the lawyer's communications with third parties. Although its opinion contained several redactions, the court held that some of the emails deserved privilege protection because they were "not merely a neutral recording" of the lawyer's communications with those third parties. Id. at *8. The court also noted that even defendant acknowledged that such reports deserved privilege protection if they were "so interwoven with legal advice [they] may be considered privileged as a whole." Id. The court also found work product protection, because the reports "reflect counsel's mental processes and reveal the information he considered significant" – rather than "merely verbatim summaries." Id. at *9.
Lawyers' reports of their communications with third parties can deserve privilege protection if: (1) they infuse their summaries with their legal advice or opinion; or (2) their recitation of certain portions of those communications reflects their legal advice or opinion. Some courts' statements that "verbatim reports" cannot deserve privilege or work product protection seems incorrect – if those verbatim reports memorialize legal opinions, or reflect lawyers' series of opinion-revealing specific questions to the third parties, and the third parties' responses.