One Way to Waive an Attorney-Client Communication
The judge’s decision on an injunction hearing provides a cautionary tale for attorneys preparing a privilege log. The underlying case arose when Lockton accused Alliant of enticing soon-to-be-former Lockton managers and others into breaching their employment agreements with Lockton. Pending a more detailed process, a Delaware Chancery Court judge has issued an injunction against solicitation of Lockton clients by Alliant.
The point here concerns the source of communications, many by Alliant in-house or outside attorneys, quoted and referenced in the judge’s decision to issue an injunction. In referring to a legal analysis for Alliant obtained and used by Lockton, the judge dropped a footnote, which included:
Lockton obtained the legal memoranda in which Alliant's counsel analyzed the Member Agreements because Alliant prepared a grossly defective privilege log during the course of expedited discovery leading up to the preliminary injunction hearing. The expedited schedule did not permit do-overs, and the serious problems with Alliant's log suggested that Alliant had not made a good-faith effort when preparing its log but instead was attempting to invoke privilege expansively to hide problematic documents. For example, Alliant used two virtually identical and generic descriptions for 98% of the documents on its log, and Alliant combined the recipient, copy recipient, and blind copy recipient fields into a single column, so that Lockton had no way to know whether a lawyer was a primary or secondary recipient of a document. The latter maneuver also suggested that Alliant was invoking privilege broadly whenever a lawyer appeared on a document, regardless of whether the document contained legal advice, and had copied lawyers on documents to generate a basis for claiming privilege.
As a result, and even though some of the documents should have been protected from disclosure, the court issued its edict: “By failing to assert its privilege claims properly, Alliant waived them.” A cautionary note for attorneys preparing privilege logs, even in an expedited manner. The case is Mt. W. Series of Lockton Cos. v. Alliant Ins. Servs., 2019 Del. Ch. LEXIS 231 (June 20, 2019). Cited text is from footnote 6.