In Re Sealed Case

Majority - Ginsburg, Circuit Judge

The attorney-client privilege does shield C's conversations with P regarding the Company's antitrust compliance during legal affairs reviews and their conversation aboard an airplane discussing legal claims, because these involved legal advice based on prior confidential client disclosures made in a professional capacity and under circumstances implying confidentiality. However, the privilege does not shield C's testimony regarding the report of an overheard conversation at O'Hare Hilton or his 'hunches' based on direct observations, as these were not significantly based on confidential client information. The privilege does shield C's conversation with a Company senior executive at a St. Paul restaurant, as it involved seeking legal advice on confidential Company matters. Regarding the appealability of the order, the court held that the district court’s order compelling C’s testimony was immediately appealable under the Perlman exception. This exception applies because C, as a former attorney, explicitly stated he would not risk a contempt citation to allow immediate review, thus making the contempt route unavailable for the Company to protect its confidences. The court emphasized that the purpose of the privilege is to protect client confidences, which cannot be retrieved once disclosed. On the merits, for the conversation between C and P about the O'Hare Hilton overheard conversation, the court affirmed the district court's ruling that it was not privileged. C testified he did not rely on confidential information from P for his advice, nor did P disclose confidential information during that specific exchange. The Company failed to meet its burden to demonstrate the conversation was underpinned by client confidences. For C’s 'hunches' concerning Company activities, the court affirmed the district court's ruling that they were not privileged. The district court's order specifically directed C to answer questions about opinions formed from direct observations C made in public places (e.g., at airports), coupled with other non-confidential information. Grand juries can consider such information, and these observations were not confidential client disclosures. For the conversation between C and a Company senior executive at a St. Paul restaurant, the court affirmed the district court's finding that it was privileged. The executive sought C's legal advice on confidential Company matters, and the discussion was conducted privately, indicating an intention to preserve confidentiality. The court found no basis to invoke the crime-fraud exception. For the two conversations between C and P in P’s office during legal affairs reviews concerning antitrust compliance, the court reversed the district court's finding and held them privileged. The court found the district court's contrary findings clearly erroneous. C, as general counsel, rendered unsolicited legal advice based, at least in part, on confidential Company information previously disclosed to him by management, even if P did not disclose new confidential information during those specific meetings. The court stressed that unsolicited advice rooted in prior client confidences remains privileged. For the conversation between C and P aboard an airplane, the court reversed the district court's finding and held it privileged. P sought C's professional advice regarding legal claims for an upcoming construction project. Despite the commercial flight setting, C and P were seated in first class, speaking in tones not likely to be overheard, and C implicitly understood P's disclosures as confidential. C's work on the matter relied on company confidential information furnished prior to, and factual information provided during, the conversation. The district court's finding of non-confidentiality was deemed without foundation.