work product doctrine

Ten Things: Ten Questions To Ask Yourself Before Hitting Send (Lessons From the Trenches)

I was cleaning out some old files in a filing cabinet (yes, that’s still a thing) and I came across some plastic cards we had made up when I was head of litigation at a large technology company many moons ago.  My team and I created the cards to help the business focus on key compliance issues, i.e., providing them cards with lists of easy-to-remember rules that could help keep them – and the company – out of trouble.  They were about the size of a business card (that may not be a thing anymore…)[1] and were laminated so they would last forever.[2]  And here in front of me were several different cards we had prepared close to twenty years ago.  They included tips on competition law compliance, how to report a violation of the company handbook, and (my personal favorite) how to write smart emails that won’t end up as Exhibit A at trial.  I remembered why we created these in the first place, especially the email card:  If you have ever lived through big litigation (or any litigation for that matter), you understand just how deadly a poorly drafted email can be.

And deadly is right.  I lived through several painful and protracted litigated disputes, and I can attest that emails (ours and theirs) were front and center, blowing up in faces like Wile E. Coyote-endorsed ACME product.  The only thing missing was a sign for free birdseed. There were lots of lessons learned by unfortunate executives (and yours truly).  Back then, I decided to take those lessons and create something useful to showcase basic rules to help the business – and the lawyers – write smarter emails (and other documents).  As I read through the card, I realized that I had forgotten some of the lessons.  And, yes, that failure has bitten me in the ass more than a few times.  So, I decided it would be a good idea to write them out here for you – and for me.  This edition of “Ten Things” sets out questions you should ask yourself about the email before you hit send:

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Ten Things: A Primer on the Work Product Privilege

[I realized too late after my last post that I have surpassed 100 blogs.  Wow.  No celebration but, to be honest, I never imagined I’d write that many when I started “Ten Things” back in November 2014.  But, here we are, all dressed up and lots of places still to go.  So, thanks for reading and keep those emails and suggestions coming!]  

As an in-house lawyer, I was always interested in any legitimate way I could keep information generated by the company or the legal department confidential.  Or, more importantly, out of the hands of our adversaries.  All of which meant I needed to stay on top of many things, from trade secret protection to teaching the business to write smart.  But, as a lawyer, I had a particular interest in how privilege might apply to the materials I – or my team – was working on.  The most obvious was the attorney-client privilege, something I have written about in a past blog and which ranks first on my list in terms of protecting information.  Somewhat less obvious, and not as sexy as its cool, buff older brother, is the work product privilege.   While more limited in the circumstances in which it applies, it is pretty powerful and can save the day when something happens to make the attorney-client privilege fall away.  Kind of how Batman can curb-stomp some villains when Superman’s having an off day.  I think it’s time we gave the work product privilege some love and this edition of “Ten Things” discusses what in-house lawyers need to know about our new, best buddy:[1]

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