In Re: 3M Combat Arms Earplug Products Liability Litig.

In this multidistrict litigation, the court addressed the Plaintiffs’ concerns regarding the Defendants’ withholding of documents on the basis of the work product and attorney-client privileges. The court requested each party to select 100 documents from the privilege logs as samples for review. After extensive negotiations, the court was required to address 84 documents that remained in dispute from the 200 selected by the parties. The parties submitted the issue to the court through letter briefs.

The first issue involved the adequacy of the Defendants’ privilege log. The Plaintiffs’ asserted that the Defendants failed to include information in the privilege logs required by Fed. R. Civ. P. 26(b)95)(A) and Pretrial Order No. 9. Specifically, the Plaintiffs argued that the Defendants’ failure to include the length of the “document” in each privilege entry including dividing the email threads into separate, itemized privilege entries made it difficult to evaluate the Defendants’ privilege claims.

The second issue involved attorney-client privilege. The Plaintiffs asserted that Florida’s “heightened level of scrutiny” standard should be applied and that the privilege should not attach to communications when neither the sender nor the recipient is attorneys and the purpose of the communication is most likely for business.

The third issue involved the work product doctrine. The Plaintiffs asserted that the court should apply a “primary motivating test” for work-product protection that is similar to attorney-client privilege and protection should only be limited to documents “closely related” to the litigation.

The motion was denied in part and granted in part after the court conducted in camera review of the 84 documents.

The court held that the Defendants had complied with Rule 26 and Pretrial Order No. 9. The Plaintiffs failed to cite any authority that would require the Defendants to amend their privilege logs to include the length of each entry. Further, the Defendants are not required to itemize each email, since itemization may reveal privileged information.

The court rejected the application of a heightened level of scrutiny test for attorney-client privilege. The court held that under Fed. R. Evid. 501 the federal common law standard for attorney-client privilege applies in federal court despite the applicability of state substantive law to the Plaintiffs’ claims. Further, the court refused to deny privilege protection when neither the sender nor the recipient is not an attorney. The test to determine whether privilege attaches is whether legal advice is sought in the communication. Lastly, a party does not waive privilege when they disclose a document to a third party that shares a common legal interest.

The court denied the application of a primary motivating test to determine work-product protection. The court held that work-product protection applies to documents prepared or obtained because of the prospect of litigation. The purpose of the work product doctrine is to allow attorneys to work freely without unnecessary intrusion. Work product protection is distinct from and broader than, the attorney-client privilege.

The court address numerous legal issues in its opinion.

• Attorney-client privilege. The court noted that the privilege arises when “counsel was participating in the communication primarily for the purpose of rendering legal advice or assistance.” The court noted that federal common law related to privilege is used when the action concerns federal claims and state privilege law is utilized when the federal court is entertaining claims arising from its diversity jurisdiction. The instant case however involved federal defenses and state law claims. The court resolved the issue by noting that Florida has no significant relationship to the privileged communications and therefore Florida’s “heightened level of scrutiny” did not apply. The court also noted that because the instant dispute involved corporate communications, principles advocated by the Florida Supreme Court would be applicable to the analysis in any event. The court next found that corporate communications need not include attorneys for the communications to be privileged. Finally, the court noted that a common interest claim requires a party to show a common legal interest.
• Work Product Protection. The dispute involved the Plaintiffs requested that the court apply a work product test “of whether the primary consideration in the creation of the document was anticipated litigation,” while the defendants advocated for a broader “because of the prospect of litigation” test. The court adopted the Defendants’ position. Finally, the court rejected the Plaintiffs’ claim that work product should be limited to litigation “closely related” to the action. The court determined that work product protection applies to any litigation.

Applying these principles, the court determined that eleven of the 84 documents were not protected or varying reasons. The common interest doctrine did not apply to some of the documents because no ongoing legal enterprise existed between the parties when they were exchanged to a third party to establish a joint venture. An electronic calendar invitation sent to an attorney for a meeting seeking legal advice is not protected because the invitation is a scheduling matter. Attachments to the invitation are not protected when the purpose of the attachments is not related to legal advice. A draft communication exchanged between employees is not protected by the attorney-client privilege when the communication does not contain advice or revision from counsel. An email thread where counsel is carbon copied does is not protected by the attorney-client privilege when the purpose of the email is business-related. Emails between counsel and employees are not protected when the purpose of the emails is business-related.

Pretrial Order No. 9 Governing Confidentiality and Privilege (Doc. 442)

Order (Doc. 1048)