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Practice Tip: Sixth Circuit Rules on Privilege in Two Cases
The Sixth Circuit has recently handed down two opinions on attorney-client privilege and attorney work product privilege. These opinions are of special interest to product liability practitioners, experts who testify in product liability matters, and anyone else involved in matters where discovery of documents might be crucial.
In Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, et al., No. 05-5754 (6th Cir., Aug. 17, 2006), the Sixth Circuit held that because communications from the appellant's attorneys did not constitute legal advice, there was no attorney-client privilege. The opinion also held that any attorney work product communicated to testifying experts must be provided to the opposing side ' Rule of Federal Civil Procedure 26(a)(2)(B) creates a 'bright line' requiring all documents relied on by expert witnesses be disclosed to the opposing side.
In U.S. v. Patrick J. Roxworthy, in the capacity of Vice President, Tax, Yum! Brands, Inc., No. 05-5776 (6th Cir., Aug. 10, 2006), the Sixth Circuit found that documents sought from Yum! Brands (Yum!) by the IRS were privileged because they were created in anticipation of litigation. The test as to whether documents were created in anticipation of litigation is: 1) whether the documents in question were created because of a party's subjective anticipation of litigation, and 2) whether that subjective anticipation of litigation was objectively reasonable.
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