Commercial Litigation and Arbitration

Transmittal of Letter Drafted by Counsel Does Not Waive Privilege as to Investigation and Communications Leading up to Letter — Lawyer’s Testimony as to Process Insufficient

Le v. City of Wilmington, 480 Fed. Appx. 678 (3d Cir. 2012):

c) Attorney-client privilege

Finally, Le asserts that the District Court erred in refusing to compel testimony from a former lawyer working in Wilmington's legal department, Mr. Mili. During a pre-trial deposition, Le asked Mili specific questions about his process and role in preparing the two August 2007 letters from Wilmington to Le's counsel. In the letters, Wilmington stated that Le did not have a copyright interest in the Instant Ticketing source code and that it would not contest his continued possession of the source code because it was developing its own higher-quality program. During the deposition, Le's counsel asked Mili whether he had conducted an investigation in preparing the letters, what his opinion was of the letter and if he could identify personnel who had provided information for the letters. Mili declined to answer these questions, invoking attorney-client privilege, and the District Court concluded that this was a proper invocation of the privilege. Le now appeals the District Court's ruling arguing that the application of the privilege was overly broad and that the substance of the information that he requested was not covered by the privilege.

We hold that attorney-client privilege was properly applied here. We will affirm the District Court's ruling. See In re Teleglobe Commc'ns Corp., 493 F.3d 345, 359 (3d Cir. 2007) ("[Attorney-client privilege] applies to . . . (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client." (internal quotation marks and citation omitted)).

Le, invoking the disclosure rule, argues that Wilmington waived its attorney-client privilege by disclosing the letters prepared by Mili to Le and his counsel. The disclosure rule applies when a client "shares a privileged communication with a third party." Id. at 361. Here, the letters themselves were the result of communications between a client and lawyer. Any waiver of the attorney-client privilege must be invoked by the client. While Wilmington shared the information and views stated in the letter, it did not share the privileged information requested during the deposition (i.e., the nature of the investigation and conversations that led up to the drafting of the letters or the names of the information sources). Therefore, Wilmington engaged in no activity from which one could infer a waiver of the privilege.

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