On Friday, Judge Andrews issued an opinion adopting a Special Master opinion, which held that certain pre-litigation testing documents were not covered by attorney privilege.
Pre-Litigation Testing Not Protected by Attorney-Client Privilege If Not Provided to Attorneys
The Court found that the pre-litigation scientific testing was not covered by attorney-client privilege, even though they may have been done "at the direction of" a law firm, because the core purpose was for the client's understanding rather than for facilitating legal advice:
I do not think [plaintiff] First Quality has shown that the attorney-client privilege applies to any of the [relevant] disputed . . . documents. Plaintiff's position is that everything [the expert] Dr. Malburg did falls "well within the blanket of privilege." . . . Plaintiff takes this position because of Mr. Sealey's declaration that Dr. Malburg's consulting work was done "[a]t the direction of [plaintiff's attorneys]." . . .
Attorney-client privilege applies to communications involving technical information when they are made for the purpose of providing or obtaining legal advice. . . . It follows that the information must actually be communicated to an attorney to meet this standard. . . . Given that Dr. Malburg's work at issue was not provided to [plaintiff's attorneys], it does not really matter whether an attorney said that such work should be done. As best I understand it, Dr. Malburg's analysis and testing at issue was for the benefit of First Quality's understanding, not for the purpose of obtaining legal advice.
In a footnote, he set forth his views on protection of such reports generally:
I do not think the result in this decision threatens the underlying purpose of the attorney-client privilege, which is "full and frank communication between attorneys and their clients." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). It does not seem to me that, in the usual case, scientific testing that is not provided to an attorney has much of a claim on being buried during discovery on the basis of attorney-client privilege. I do not see the ruling in this case as being at all inconsistent with the goal of protecting "full and frank communication between attorneys and their clients."
Judge Andrews adopted the Special Master's opinion and ordered production of the documents.
Judge Andrews Warns Against Unsolicited New Evidence
Along the way, Judge Andrews offered some thoughts on "unsolicited evidence" offered by the plaintiff in an attempt to shore up their privilege claim:
Belatedly, on January 29, 2021, in response to my request for documentary evidence essentially showing that the attorneys or Dr. Malburg were aware of each other's involvement in the relevant work, Plaintiff submitted two declarations . . . . This, after extensive litigation before the Special Master and objections and responses thereto before me, all filed by November 19, 2020. . . . I issued another oral order requesting certain specific information. . . . Plaintiff responded with the information and the two declarations, explaining that it was submitting the two declarations because the "issue is of great importance to First Quality." . . . The Rules provide that First Quality's opportunity to object was twenty-one days after the Special Master's decision. Fed. R. Civ. P. 53(f)(2). There is no provision in the Rules that permits a party to continue to file pleadings, declarations, etc. simply because the party decides new points are worthy of more attention. New declarations, submitted ex parte and not at my request, under the circumstances, are too late. The two declarations are STRUCK.
Note that while the Court sometimes refers to the declarations as "ex parte," it looks like plaintiff submitted the declarations via a letter on the public docket.
In another footnote, he further criticized the new declarations:
Pretty obviously, submitting new unsolicited evidence while the Court is working on the issue impacts the efficient use of the Court's time.
The opinion as a whole makes clear that submitting this kind of late evidence without permission is—"[p]retty obviously"—a bad idea.
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