Construction Analogies to Describe the Scope of Privilege
Why the discussion of a construction project in a case concerning Facebook? The judge was making an analogy in a dispute as to whether communications between Mark Zuckerberg and Goldman Sachs, channeled through counsel, were privileged. Using a construction project analogy, the judge ruled that most of the communications originally withheld are not privileged.
It appears that counsel for Zuckerberg served as the point of communications between their client and the investment bankers, and those communications were withheld in a lawsuit. The ostensibly-privileged documents were produced for in camera review by the court. After that review, the judge issued a decision, including the following:
A major home renovation can involve many professionals: an architect, a general contractor, subcontractors, an interior decorator, and perhaps a real estate lawyer to advise on compliance with zoning codes, deed restrictions, permitting regulations, and the like. Envision, however, that because of concern about litigation (perhaps with a disputatious neighbor), the homeowner makes the lawyer the point person for the project. The lawyer conveys all of the questions to architect, general contractor, subcontractors, and interior decorator, coordinates their responses for the owner, and re-conveys the owner's instructions to the professionals. That maneuver does not transmute the architect's plans into legal advice, nor the contractors' notes and observations, nor the interior decorator's design insights. It likewise does not turn the lawyers' observations about architecture, construction, or interior design into legal advice, simply because a lawyer utters them. Making the lawyer the point person creates a pretext for invoking the attorney-client privilege, but it is only a pretext.
Thus, the analysis and advice being conveyed to Zuckerberg by Goldman Sachs was not legal advice, nor did it become legal advice by being transmitted through counsel. A cautionary note for parties hoping to cloak their communications with a privilege when the underlying purpose is not to seek or act on legal advice. The case is In re Facebook, Inc., 2016 Del. Ch. LEXIS 193 (Del. Chancery Ct., Dec. 12, 2016) (LEXIS subscription required).