United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
DENISE COTE, District Judge.
The parties in these coordinated litigations dispute whether documents have properly been withheld on the ground of attorney-client or work-product privilege. Following letters of March 5 and 14, the parties submitted the challenged documents for review in camera on March 21. After a recitation of the governing legal standards, each party's challenged privilege claims that pertain to an invocation of the attorney-client or work-product privileges are considered in turn. Orders in this Opinion appear in each of these sections, as well as at the end of this Opinion.
I. Legal Standards
A. Attorney-Client Privilege
The standard for invocation of the attorney-client privilege is well established. It protects communications "(1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal assistance." Brennan Ctr. for Justice at NYU School of Law v. U.S. Dep't of Justice , 697 F.3d 184, 207 (2d Cir. 2012) (citation omitted).
The mere fact that attorneys are involved in a communication does not cloak it with privilege. To qualify for the privilege, a communication must be "generated for the purpose of obtaining or providing legal advice as opposed to business advice." In re County of Erie , 473 F.3d 413, 419 (2d Cir. 2007) (emphasis added). In determining the purpose of a communication, courts consider "whether the predominant purpose... is to render or solicit legal advice." Id. at 420. "[L]egal advice involves the interpretation and application of legal principles to guide future conduct or to assess past conduct." Id. at 419.
Attorney-client privilege may encompass those who assist a lawyer in representing a client. Where communications from a client to a consultant are made in confidence and "for the purpose of obtaining legal advice from the lawyer, " the communication is privileged. United States v. Kovel , 296 F.2d 918, 922 (2d Cir. 1961). But, "if the advice sought is the [consultant]'s rather than the lawyer's, no privilege exists." Id . As the attorney-client privilege is to "be narrowly construed and expansions cautiously extended, " United States v. Weissman , 195 F.3d 96, 100 (2d Cir. 1999) (per curiam), this extension of the privilege "has always been a cabined one." United States v. Mejia , 655 F.3d 126, 132 (2d Cir. 2011).
B. Attorney Work-Product Doctrine
The work-product doctrine grants qualified protection to "materials prepared by or at the behest of counsel in anticipation of litigation or for trial." In re Grand Jury Subpoena Dated July 6 , 2005, 510 F.3d 180, 183 (2d Cir. 2007) (citation omitted); see Fed.R.Civ.P. 26(b)(3)(A). A document is prepared "in anticipation of litigation" if, "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." United States v. Adlman , 134 F.3d 1194, 1202 (2d Cir. 1998) (citation omitted). The work-product doctrine does not protect documents "prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation." Id. at 1202. There are two varieties of work product: fact work product, which includes "factual material, including the result of a factual investigation, " and opinion work product, which would "reveal counsel's thought processes in relation to pending or anticipated litigation." In re Grand Jury Subpoena , 510 F.3d at 183-84. (citation omitted) Fact work-product protection can be overcome by a showing that the requesting party has "substantial need for the materials to prepare its case and cannot, without undue hardship, obtain the substantial equivalent by other means." Fed.R.Civ.P. 26(b)(3)(A)(ii).
II. The Challenged Privilege Claims
A. RBS's Privilege Claim
RBS Securities, Inc. ("RBS") has asserted that the attorney-client privilege protects from disclosure the document identified as RBS-Priv-000283. It is an e-mail chain with communications among RBS, its outside counsel McKee Nelson LLP ("McKee"), and employees of accounting firm Deloitte & Touche LLP ("Deliotte") concerning edits to a draft prospectus supplement. In a letter, RBS asserts that McKee was involved in the preparation of the supplement, and that Deloitte was providing accounting expertise to assist McKee in its representation of RBS. Decision is reserved pending a further submission by RBS. It is hereby
ORDERED that RBS may provide an affidavit that explains McKee's role in connection with the draft supplement and any basis to find that it was providing legal advice to RBS in that work, explains who retained Deloitte in connection with the work on the draft supplement, and ...