District Court Confirms Work-Product Doctrine Privilege Covers Only Certain Documents Exchanged With Third Party Consultants


On April 14, a U.S. Magistrate serving with the U.S. District Court for the Northern District of Indiana issued a ruling in a matter involving the attorney-client and attorney work product privileges. The case is Valley Forge Insurance Company v. Hartford Iron & Metal, Inc. The District Court held that the attorney’s communications with environmental contractors Keramida, Inc. and CH2M Hill, Inc. were not entered into for the purpose of rendering legal advice and, therefore, the attorney-client privilege did not apply. However, the District Court did agree that some of the emails were protected by the attorney work product doctrine.

Hartford Iron & Metal is cleaning up a recycling facility under the auspices of the Indiana Department of Environmental Management (IDEM)—a site that is also a concern of EPA. Valley Forge is Hartford’s insurer and, to resolve their differences, the parties entered into round of settlements. Valley Forge was authorized to appoint defense counsel to represent Hartford in its dealings with EPA and the Indiana Department of Environmental Management (IDEM). The defense counsel exchanged email communications with contractors working on the project, and insisted that these communications are subject to the attorney client and attorney work product privileges. Valley Forge objected, and the Magistrate’s opinion on this case discussed the scope of these privileges.

Here, although Valley Forge’s attorney initially retained Keramida and CH2M, the District Court confirmed that “retention or employment by the attorney alone [was] insufficient to bring the consultant within the scope of the attorney-client privilege.” It confirmed that “it is vital that the communication be made ‘for the purpose of obtaining legal advice from the lawyer.” (Emphasis in original).  The District Court concluded that it is “quite obvious” that Keramida and CH2M were retained for purposes other than “specifically to assist in rendering legal advice.”

With respect to the attorney work-product privileges, the District Court noted that “all of the emails with Keramida and CH2M were created after the parties became aware of the IDEM and EPA claims and after this lawsuit was filed.” The District Court, however, concluded that “some categories of documents generally fall outside the scope of the work-product
privilege,” including “mere transmittal communications” and “communications dealing with merely administrative, logistical, or scheduling matters” Ultimately, the District Court concluded that “only a portion of the emails submitted for in camera review constitute protected work product.” The District Court’s order includes a chart of the documents identified in the privilege log along with a determination as to whether the document appears to be protected by the attorney work-product doctrine.