In an opinion yesterday, Judge Castel denied in part a motion to compel certain drafts of sales and marketing documents withheld as privileged in an antitrust case. The plaintiff argued that the attorneys were not providing legal advice but, instead, “‘scrubbing’ or ‘vetting’ these documents ‘to avoid having a jury see the unvarnished truth.” Judge Castel disagreed, and emphasized that it is perfectly appropriate for lawyers to review documents before any wider circulation:
Concern by managers of a corporation that its conduct not run afoul of the law is a worthy consideration. Providing business people with ready access to lawyers to ensure that their business activities are in compliance with the law is not a nefarious activity. Prudent lawyers counsel against, and thus often prevent, unlawful actions by a client. In a suit against a corporation, it is the actions and statements of the corporation, through its employees, that are to be judged and not bad ideas that are presented by its employees to a lawyer and never see the light of day because of the lawyer’s legal advice. The act of “vetting” a proposed strategy with a lawyer is what an honest client may choose to do before implementing a strategy.
After reviewing the documents in camera, Judge Castel concluded that, where the privilege was upheld, the documents reflected a “bona fide request for legal advice and not a subterfuge to evade discovery obligations.”