Privileged Scenarios
These scenarios represent communications that can be tagged as “Attorney Client Privilege” and/or “Work Product Doctrine”. 1. Litigation Strategy Advice An attorney is providing strategic guidance specifically related to pending or anticipated litigation, to the client. This is protected by BOTH attorney-client privilege AND work product doctrine. Key characteristics:- Attorney is actively involved
- Discussion involves litigation planning or strategy
- Contains attorney’s mental impressions and case analysis
- No third parties are copied or involved
2. Attorney Providing Advice A lawyer is giving professional legal advice to a client. The communication is confidential, with no third parties present. This is protected by attorney client privilege. Key characteristics:
- Attorney provides legal analysis or recommendations
- Communication is private (no third-party CCs)
- Purpose is to provide legal advice
3. Client Seeking Advice What it means: A client (employee or executive) is asking their attorney a legal question or requesting legal guidance. This falls under attorney client privilege. Thi Key characteristics:
- The client is inquiring about a certain topic and will explicitly OR implicitly ask for advice.
- Purpose is to obtain legal guidance
- No third parties are present
- Asking attorney to interpret contract terms
- Seeking guidance on employment decisions
- Requesting review of proposed business transactions
- Asking about compliance obligations
- Seeking advice on IP matters or data incidents
4. Attorney Directs Document Collection What it means: An attorney is directing an employee to collect, preserve, or organize documents specifically in anticipation of litigation or for litigation case preparation. This is protected by Work Product Doctrine but not by Attorney Client Privilege. Key characteristics:
- Attorney is explicitly directing the activity
- Purpose is litigation preparation
- Attorney is orchestrating fact-gathering or document preservation
- Collection is at attorney’s specific direction
- Directing document preservation for anticipated litigation
- Requesting specific fact-gathering for case preparation
- Asking employee to compile documents under attorney’s guidance for litigation
Non-Privileged Scenarios
These scenarios represent communications that are NOT protected by privilege, even though they may sometimes look similar to privileged communications. 5. Business Discussion What it means: Regular employee-to-employee business communications about day-to-day work topics. Example topics:- Project planning and execution
- Product development discussions
- Sales and customer relationship management
- Operations and process improvements
- Technical architecture decisions
- Marketing campaigns
6. Attorney Non-Legal An attorney is involved in the conversation, but the discussion is about non-legal business matters. The attorney is acting in a business capacity, not providing legal advice. Key characteristics:
- Attorney is a participant
- Topic is business-related, not legal
- Examples: budgeting, vendor selection, office management, business strategy
- Attorney is acting as a business person, not legal counsel
7. Attorney Providing Advice WITH Third-Party CC What it means: An attorney is providing legal advice, but a third party (someone outside the attorney-client relationship) is copied on the communication. Nugget topic distribution: 34 categories, 59 total nugget topics (same as Attorney Providing Advice)
8. Client Seeking Advice WITH Third-Party CC What it means: A client is seeking legal advice from their attorney, but a third party is copied on the request. Key characteristics:
- Client seeks legal advice
- Third party is CC’d
- Third party could be external consultant, vendor, personal contacts, etc.
- Same intent as “Client Seeking Advice” but not protected
9. Privilege Mimicking What it means: A non-lawyer employee from a legal firm uses legal-sounding language or discusses legal topics, creating the appearance of attorney-client privilege when none exists. Key characteristics:
- No attorney involved (may be paralegal, legal assistant, compliance officer, etc.)
- Uses legal terminology or discusses legal concepts
- Creates false appearance of privileged communication
- Purpose is to confuse privilege detection systems
10. Work Product Mimicking What it means: A non-lawyer from a legal firm is directing document collection or conducting investigations that look similar to attorney work product, but are for business purposes, not litigation. Key characteristics:
- No attorney directing the activity
- Purpose is business/operational (compliance audits, due diligence, etc.)
- May involve document collection, investigations, or fact-gathering
- Looks like work product but lacks litigation purpose
- Routine compliance audits (SOC 2, ISO certifications)
- Due diligence for M&A or vendor selection
- Operational efficiency studies
- HR investigations for workplace culture
- Security assessments
11. Non-Lawyer Business What it means: Communications between company employees and law firm staff (paralegals, legal assistants, legal secretaries) about business or administrative matters, not legal advice. Key characteristics:
- Law firm staff (non-attorneys) communicating with company
- Topics are administrative, logistical, or business-related
- No legal advice or strategy discussion
12. Company-Third Party What it means: Communications between company employees and external third parties such as vendors, customers, consultants, auditors, or partners. These are standard business relationships. Key characteristics:
- External third party involved
- Business purpose
- Vendor negotiations and contract discussions
- Customer support and issue resolution
- Consultant project management
- Auditor compliance reviews
- Partner coordination and collaboration
13. Representing to Opposing Counsel What it means: Communications between attorneys representing opposite sides in a litigation matter. These are adversarial communications during active litigation. Key characteristics:
- Attorneys from opposing sides communicating
- Talking about active litigation case
- Topics include discovery, settlement, or procedural matters
- Discovery coordination and ESI protocols
- Settlement negotiation and offers
- Procedural scheduling and court coordination
- Document production logistics