C. Evan Stewart has published a provocative commentary in the New York Law Journal, arguing that the D.C. Circuit undermined privilege protection with its decision in June. For those of you that have been following this case, that argument might seem a bit counter-intuitive, given the almost-universal praise for the decision by those concerned about the eroding protection for confidential communications in the corporate context. Stewart’s thesis is simple: The D.C. Circuit over-protected privilege (by mis-citing relevant precedent), which will lead to a judicial backlash when companies seek to hide otherwise-relevant communications from prying eyes.
Quite simply, Stewart is wrong about the significance of the appellate decision. Not only does the opinion make clear that the district court’s imposition of a second-class citizen status on in-house counsel is unwarranted and incorrect as a matter of law, it also amply demonstrates that the panel is quite familiar with privilege and work product protection doctrine.
Stewart’s principal complaint is that communications with non-lawyers were wrongly protected. However, he doesn’t mention that the court of appeals only protected communications that were conducted at the direction of a lawyer and for the purpose of seeking legal advice. It is well-settled law that such communications are protected.