Academic journal article Defense Counsel Journal

Privilege Claims for the "Bliley" Documents: Mixed Rulings Imperil Basic Principles: When a Congressional Committee Compels Production of Documents and Places Them on the Internet, Is the Claimed Privilege Lost Forever?

Academic journal article Defense Counsel Journal

Privilege Claims for the "Bliley" Documents: Mixed Rulings Imperil Basic Principles: When a Congressional Committee Compels Production of Documents and Places Them on the Internet, Is the Claimed Privilege Lost Forever?

Article excerpt

RECENT rulings by courts in the cigarette product liability litigation address a novel issue concerning the limits of attorney-client privilege and work product protection--the extent to which claims of privilege survive the compelled production of documents in response to a Congressional subpoena.

In 1998, in response to a subpoena from the Commerce Committee of the U.S. House of Representatives, the major tobacco companies produced thousands of documents for which the companies claimed attorney-client privilege and work product protection. The companies produced the documents only after the chairman of the committee, Rep. Thomas Bliley of Virginia, declared that he would not recognize the companies' claims of attorney-client privilege and work product protection and after he threatened to initiate contempt proceedings if the companies failed to produce the documents.

Rep. Bliley later published the documents on the Internet. Plaintiffs in civil litigation against the tobacco companies since then have sought to use the documents in discovery and trial proceedings, arguing that the companies waived or otherwise lost any privileges by producing the documents to Congress.

THE BACKGROUND

The privileged documents the tobacco companies eventually produced to Congress in 1998 were first placed at issue in the State of Minnesota's third party "cost recovery suit" brought in Minnesota state court against the major tobacco companies. In that case, the state and Blue Cross/Blue Shield of Minnesota sought the recovery of Medicaid and other health care expenses spent in treating smoking-related illnesses. The plaintiffs in the case served hundreds of document requests. The companies eventually produced millions of pages of documents but withheld more than 200,000 documents for which they asserted claims of attorney-client privilege and/or work product protection. (1)

After the plaintiffs challenged all of the companies' claims of privilege, the court undertook an unprecedented "sampling" procedure to resolve the privilege challenges. It directed the companies to organize their documents under 14 subject categories, and it appointed a special master to review sample documents from each category and on that basis make category-wide conclusions as to the merits of the privilege claims. After reviewing less than 2 percent of the documents at issue, the special master upheld the privilege claims for 10 of the 14 categories and found that documents in the remaining four categories should be produced. The court thereafter affirmed the special master's findings. (2)

Ultimately, the court ordered the companies to produce approximately 39,000 of these documents to the plaintiffs, affirming the finding that these documents either were not privileged in the first instance or that they should be produced under the crime-fraud exception to the attorney-client privilege. (3) The companies pursued review through the Minnesota appellate courts and the U.S. Supreme Court, but the appeals were unavailing. (4)

The companies produced the documents to the plaintiffs on April 6, 1998, after the expiration of several court-ordered stays, subject to a ruling barring the public release of the documents. (5)

In February 1998, the House Commerce Committee had subpoenaed the 37,000 documents the Minnesota court had ordered produced. The companies responded by asserting claims of attorney-client privilege and work product protection, and the committee deferred enforcing its subpoena while the companies exhausted their appellate remedies in the State of Minnesota case. On April 6, the same day that the companies produced the documents to the plaintiffs in the case, Rep. Bliley stated in a letter to Meyer Koplow of Wachtell, Lipton, Rosen & Katz:

      The claim of privilege for the documents requested in the subpoenas will
   not be recognized. Further, unless the documents in question are produced
   immediately, I intend to proceed with a contempt resolution for enforcement
   of the subpoenas by the House of Representatives. … 
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