Burton v. R.J. Reynolds Tobacco Co.

170 F.R.D. 481, 1997 U.S. Dist. LEXIS 1566, 1997 WL 45229
CourtDistrict Court, D. Kansas
DecidedFebruary 3, 1997
DocketNo. 94-2202-JWL
StatusPublished
Cited by46 cases

This text of 170 F.R.D. 481 (Burton v. R.J. Reynolds Tobacco Co.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 1997 U.S. Dist. LEXIS 1566, 1997 WL 45229 (D. Kan. 1997).

Opinion

MEMORANDUM AND ORDER

NEWMAN, United States Magistrate Judge.

Before the court is the plaintiff's motion to compel the defendant R.J. Reynolds Tobacco Co. (“RJR”) to produce thirty-three Council for Tobacco Research (“CTR”) special project documents. (Doc. 214) RJR claims that all of the documents are protected by either the attorney-client privilege or work product immunity. Plaintiff claims that the crime-fraud exception applies making the documents subject to disclosure, notwithstanding the claim of privilege. United States District Judge John W. Lungstrum originally found, based upon the memoranda of the parties, that the documents were protected by the attorney-client privilege and attorney work product immunity, but referred the motion to the undersigned United States Magistrate Judge after finding that plaintiff had sustained his burden to establish the applicability of the crime-fraud exception to the privilege and that it was necessary to conduct an in camera review of the thirty-three allegedly privileged CTR documents to determine whether any of them indicates that the defendant knew during the relevant time period that nicotine was addictive and failed to disclose that information despite the CTR’s public representation that it would make such disclosures to the public. The court has now completed the in camera review and is prepared to rule on the motion.

Preliminarily, the court notes that Judge Lungstrum specifically held that, based upon the evidence available to him at the time of his consideration, the defendant had made the necessary showing to assert the attorney-client privilege and the work product immunity as to the CTR documents. The court has now had the opportunity to review the documents and to make a determination of the applicability of the attorney-client privilege and attorney work product immunity based upon a review of the documents rather than the statements by counsel. The court relies on the statement of the law as to attorney-client privilege and work product immunity set forth in Judge Lungstrum’s Memorandum and Order, filed May 1, 1996, and supplements that as necessary for the court’s rulings herein.

The court has been furnished and has reviewed, in addition to the subject documents, a memorandum submitted by RJR, in camera, explaining the nature of each of the thirty-three documents and arguing RJR’s position on the scope of the court’s review at this time. While the court has considered the information provided by RJR in the in camera memorandum as to the nature of the thirty-three documents, the court has also reviewed the privilege log prepared and at[484]*484tached to the response to the motion to compel. There are inconsistencies in the various submissions by RJR, and when found, the court has looked first to the subject documents, second to the privilege log and third to the in camera memorandum, in descending order. The court has also considered the memoranda filed by the parties in support of and opposition to the motion to compel.

The court has carefully reviewed all thirty-three documents. RJR seems to believe and argues that when an attorney is somehow referenced within a document or generates a document, attorney-client privilege or work product immunity must protect disclosure of the subject document. Such is simply not the law.

The attorney-client privilege protects confidential communications between an attorney and client where legal advice is sought. K.S.A. 60-426(a). State v. Maxwell, 10 Kan.App.2d 62, 691 P.2d 1316 (1984). It is “the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). Its purpose is to encourage complete and candid communication between a client and his attorney and “thereby promote broader public interests in the observance of law and administration of justice.” Id. It protects “communications” between an attorney and client, not facts. Id. Not every communication between an attorney and client is privileged. Rather, the privilege exists only for those confidential communications which necessarily occur in the course of requesting or giving legal advice. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). See also United States v. Olano, 62 F.3d 1180 (9th Cir.1995). The privilege protects communications with in-house counsel as well as outside attorneys. Upjohn, 449 U.S. at 390, 101 S.Ct. at 683. The privilege is to be narrowly construed. University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 110 S.Ct. 577, 107 L. Ed.2d 571 (1990); Matter of Grand Jury Subpoena Duces Tecum Issued on June 9, 1982, to Custodian of Records, 697 F.2d 277 (10th Cir.1983).

The privilege does not apply to the fact of communication between a client and attorney. It is the substance of the communication which is protected, not the fact that there has been communication. United States v. Kendrick, 331 F.2d 110, 113 (4th Cir.1964); Howell v. United States, 442 F.2d 265 (7th Cir.1971). Protection is afforded only to confidential communications seeking or rendering legal advice. United States v. Defazio, 899 F.2d 626, 635 (7th Cir.1990). Only when an attorney is giving advice concerning the legal implications of conduct, whether past or proposed, is the privilege properly invoked. Hercules Incorporated v. Exxon Corporation, 434 F.Supp. 136 (D.C.Del.1977). A distinction is made between a lawyer providing business or technical advice rather than legal advice. Oil Chemical and Atomic Workers International Union v. American Home Products, 790 F.Supp. 39 (D.P.R.1992). Legal advice must predominate for the communication to be protected. Leonen v. Johns-Manville, 135 F.R.D. 94 (D.N.J.1990). The privilege does not apply where the legal advice is merely incidental to business advice. In re Brand Name Prescription Drugs Antitrust Litigation, 1995 WL 354268 (N.D.Ill.1995). Lobbying services performed by an attorney on behalf of a client do not constitute legal services for purposes of the attorney-client privilege. United States Postal Service v. Phelps Dodge Refining Corporation, 852 F.Supp. 156 (E.D.N.Y.1994). There is also a distinction between a conference with counsel and a conference at which counsel is present. The mere presence of counsel at a meeting does not make all communications during the meeting privileged. Oil Chemical and Atomic Workers International Union v. American Home Products, 790 F.Supp. 39 (D.P.R.1992).

A general description of the work performed by the attorney is not protected by the privilege.

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170 F.R.D. 481, 1997 U.S. Dist. LEXIS 1566, 1997 WL 45229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-rj-reynolds-tobacco-co-ksd-1997.