Burton v. R.J. Reynolds Tobacco Co.
1997 U.S. Dist. LEXIS 1566, 170 F.R.D. 481, 1997 WL 45229 (1997)
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Rule of Law:
Attorney-client privilege protects confidential communications made for the purpose of seeking or rendering legal advice, not general business, scientific, or public relations matters; work product immunity protects documents prepared principally for anticipated litigation, not documents created in the ordinary course of business or for public relations, even if attorneys participate in their creation.
Facts:
- R.J. Reynolds Tobacco Co. (RJR) possessed thirty-three Council for Tobacco Research (CTR) special project documents.
- The plaintiff sought to compel the production of these thirty-three documents from RJR.
- RJR claimed that all of these documents were protected by either the attorney-client privilege or work product immunity.
- The plaintiff contended that the crime-fraud exception applied to these documents, making them subject to disclosure.
- The CTR had publicly represented that it would make disclosures to the public regarding its research findings.
- The documents at issue included inter-office memoranda on research and development, letters from outside counsel related to various scientific research proposals, reviews of research project reports, reports from scientific consultants, minutes of industry technical committee meetings, drafts of responses to public health reports, and handwritten notes from industry meetings concerning scientific research and regulatory issues.
Procedural Posture:
- Plaintiff filed a motion to compel R.J. Reynolds Tobacco Co. (RJR) to produce thirty-three Council for Tobacco Research (CTR) special project documents in the United States District Court for the District of Kansas.
- RJR claimed the documents were protected by attorney-client privilege or work product immunity.
- Plaintiff argued that the crime-fraud exception applied, making the documents subject to disclosure.
- United States District Judge John W. Lungstrum initially found that RJR had shown the documents were protected by attorney-client privilege and work product immunity, but also determined that the plaintiff had sustained his burden to establish the applicability of the crime-fraud exception.
- Judge Lungstrum then referred the motion to United States Magistrate Judge Newman to conduct an in camera review of the thirty-three allegedly privileged CTR documents to determine if any indicated RJR knew nicotine was addictive and failed to disclose that information despite CTR’s public representation.
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Issue:
Do documents created by or referencing attorneys, but primarily concerning business, scientific, or public relations activities rather than legal advice or litigation strategy, qualify for protection under attorney-client privilege or work product immunity?
Opinions:
Majority - Newman, United States Magistrate Judge
No, documents primarily concerning business, scientific, or public relations activities, even if created by or referencing attorneys, generally do not qualify for protection under attorney-client privilege or work product immunity unless they directly involve the seeking or rendering of legal advice or are prepared principally in anticipation of litigation. The court conducted an in camera review of thirty-three documents that RJR claimed were privileged. The court affirmed that the attorney-client privilege protects confidential communications between an attorney and client where legal advice is sought, emphasizing that the privilege is narrowly construed and does not protect facts, the act of communication, general descriptions of legal work, business or technical advice where legal advice is merely incidental, or lobbying services. Similarly, the court noted that work product immunity protects documents prepared in anticipation of litigation by or for a party's representative, but does not extend to documents prepared in the ordinary course of business, for dissemination to third parties, or for public relations, even if litigation is a future prospect. Applying these principles, the court found that most of the documents, despite attorney involvement, primarily dealt with scientific research, public relations strategies, or general business operations, rather than the specific provision of legal advice or preparation for litigation. For example, letters from outside counsel discussing scientific studies, memoranda summarizing research or meetings not focused on legal advice, and drafts of public relations responses were deemed not privileged. The court explicitly rejected the notion that merely referencing or involving an attorney automatically cloaks a document with privilege. Only one redaction (in Tab 4), which appeared to report a confidential communication of in-house counsel where legal advice was assumed to be involved, was found to be protected by attorney-client privilege. The court also identified documents in Tabs 21, 23, and 32 that might contain evidence of RJR's knowledge of nicotine's addictiveness, which were ordered to be produced. All other documents, except the specific redaction in Tab 4, were ordered to be produced.
Analysis:
This case significantly clarifies the boundaries of attorney-client privilege and work product immunity, particularly in a corporate context where attorneys may be involved in a wide range of activities. It reinforces that the mere presence of an attorney or the channeling of information through legal departments does not automatically transform business, scientific, or public relations communications into privileged material. The decision emphasizes the narrow construction of these privileges, preventing corporations from using them as a shield for information not directly related to legal advice or litigation preparation. This ruling has a substantial impact on corporate compliance, internal investigations, and discovery in complex litigation, compelling companies to clearly delineate between legal and non-legal functions of their in-house and outside counsel to properly assert privilege.
