Where Do Courts Look When Determining Whether A Litigant Has Proven Attorney Client Privilege Or Work Product Protection?: Part II

Last week's Privilege Point described some courts' reliance on affidavits or some other extrinsic evidence when assessing a protection claim – rather than a review of the documents themselves. Other courts takes exactly the opposite position.

In County of San Mateo v. CSL Ltd. (In re Plasma-Derivative Protein Therapies Antitrust Litig.), the court dealt with defendant Baxter's withholding of a document described as a "'draft set of key messages for an upcoming investor conference.'" Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *10 (N.D. Ill. Nov. 7, 2012) (internal citation omitted). In support of its privilege claim, Baxter supplied a declaration from the company's Corporate Vice President of Investor Relations. She stated that she prepared the document at the General Counsel's request "'for the purpose of seeking legal advice from and discussing legal issues with senior in-house counsel about the messages we could convey to investors.'" Id. at