In Greyhound Lines, Inc. v. Viad Corp., Greyhound claims that Viad should pay for environmental cleanup costs on properties that Viad sold to Greyhound. In a recent ruling on the case, the court reminded in-house counsel that more care needs to be taken when marking documents as privileged.
The specific documents in privileged question were those containing notations of unidentified individuals. Viad claims that the documents’ location in the law department’s files establishes attorney authorship of the notations. Viad acknowledged, however, that it could not identify the specific authors because the department employed up to 35 lawyers. The court found that even if Viad could show that lawyers made the notations, it had failed to show that the notations were ever communicated to anyone. It also found that Viad didn’t make any effort to show that the notations were made in anticipation of litigation.
Therefore, the defendant had not established that either attorney-client privilege or work-product doctrine protected the annotated documents from disclosure.
So the friendly reminder here is: Don’t assume that privilege applies to handwritten notes. Instead, consider whether the notes are in anticipation of litigation or relate to client communications. If so, properly mark them as privileged, subject to the work-product doctrine, and keep them confidential.