In the Eastern District of New York, in one of the numerous pending law suits against the tobacco industry, Judge Weinstein held that the plaintiffs could use in the pretrial discovery process (1) the alleged attorney-client communications ordered disclosed in a pending law suit in Minnesota and (2) the documents that Congress published on the internet after they were voluntarily produced in response to a congressional subpoena. In both instances the confidentiality of all of the communications had been destroyed by the distribution, even though the disclosures arguably were not made with either the consent or acquiescence of the tobacco industry. Falise v. American Tobacco Co., 2000 U.S. Dist. LEXIS 128 (E.D. N.Y. Jan. 4, 2000).

Judge Weinstein put off until trial the question of whether the same communications could be offered into evidence by the plaintiffs at the trial. How is this possible? If confidentiality is an element of the privilege (which it is) and none of the documents remain confidential (which they don’t), how could there even be a question about the use of the documents at trial? Wouldn’t the decision to not suppress the documents in the pretrial process also resolve the privilege question at the trial? Logically yes. But with the attorney-client privilege, and particularly the element of confidentiality, strange things have been happening.

Confidentiality: An Evolving Concept

Under the early common law, when the confidentiality of a communications was destroyed, regardless of the reason, the privilege was destroyed with it. This was even true when confidential communications were stolen or seized by eavesdroppers. See P.R. Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES sec. 9:26, Purloined Communications (West Group 2nd ed. 1999). Over the decades, and without explanation, courts began to limit the actions that would destroy the privilege to actions that could reasonably be attributed to the client, and therefore considered a voluntary relinquishment of the privilege protection--a waiver. Courts have chosen to ignore the loss of confidentiality in all other instances. This has raised serious questions about the need, and therefore continued viability, of the confidentiality requirement itself. P. R. Rice, Attorney-Client Privilege: The Eroding concept of Confidentiality Should be Abolished, 47 Duke L. J. 853 (1998). If confidentiality were a logical necessity, the privilege should not be able to survive without it. As courts increasingly excuse or ignore the absence of this "critical" element, the courts eventually are going to have to revisit the question of why the privilege is ever contingent upon the existence of confidentiality.

We have seen judges ignoring the loss of confidentiality when communications are inadvertently disclosed, when disclosures are made with reservations, and when disclosures are made by former employees who do not have the authority to waive the corporation’s privilege claim. Confidential communications can be shared between parties with a community of legal interest, when joint clients share an attorney, or when multiple parties engage in a joint defense effort. Courts have sanctioned the sharing of confidential communications through protective orders that prevent expedited disclosures from waiving privilege claims. A couple of courts have even overlooked the sharing of confidential communications during negotiations over the sale of a corporation because such disclosures might avoid later litigation. In addition, it is a common practice for courts to permit parties who have lost privilege disputes in previous cases to re-litigate the same claims simply because they are in a different court.
 

At some point, the level of disclosure will become so great courts cannot reason-ably continue the fiction that communications remain confidential, and therefore privileged. This appears to be what has occurred with confidential communications of companies within the tobacco industry. Initially, 37,000 documents were ordered disclosed in a Minnesota state civil action against the tobacco companies because the court found that the companies had sought legal advice for the purpose of committing a crime or fraud. State of Minnesota v. Philip Morris, Inc., Case No. C1-94-8565 (Minn. Dist. Ct.). Therefore, the privilege protection was held to have never attached to those communications. Later, these same companies voluntarily produced hundreds of documents to Congress pursuant to a congressional subpoena, and Congress subsequently posted those documents on the internet. See generally, Commonwealth v. Philip Morris, Inc., Case No. 95-CV-7278 (Mass. Super. Ct. 1998)

In the federal civil action before Judge Weinstein the plaintiff sought to use against the tobacco industry in the pretrial discovery process many of the documents that had been released to the public. Rather than denying the privilege claims since there was no confidentiality because (1) the tobacco industry accepted a settlement of the Minnesota action with a provision in the consent decree that virtually assured the subsequent release of the confidential communications, and (2) the tobacco industry voluntarily complied with the congressional subpoenas when it could have fought it, the magistrate went into a lengthy discussion of the strong public policy reasons for permitting these documents to be used and ultimately disclosed to the factfinder at trial.
 

This country is currently said to be facing a crisis of health care finance. . . . If the allegations are true, the well orchestrated racketeering on the part of the defendants has played a major role in the precipitating this crisis and inflating this nation’s health care costs to their current level.  It is difficult to imagine a sector of the economy, a portion of the nation’s resources, or an aspect of its economic life, which has not been severely affected by the defendants’ alleged racketeering.

Blue Cross & Blue Shield of N.J. v. Philip Morris, 36 F. Supp.2d 560, 573 (E.D. N.Y. 1999). The documents in question play a central role in this litigation. They have already been characterized by public officials as providing a detailed picture of the tobacco industry’s actions. . . . The very fact that the United States Congress undertook to post the documents in question on the internet, making them available to the public, is an additional indication of their public significance.

The significant public interests at stake, and the degree of media attention tobacco litigation in general has already received, make it clear that these cases will garner a great deal of public attention. In light of the public attention that will doubtlessly be given to these cases, as well as the availability of these documents to the general public, a trial at which these plainly critical documents are unavailable to the finder of fact could seriously undermine the public’s confidence in the integrity of the court’s processes. Indeed, it would be understandably difficult for the public to accept a verdict where the finders of fact did not have access to documents that have been characterized by public officials as "clearly a smoking howitzer" . . .

In sum, while the policy bases for preserving confidentiality have been rendered virtually nonexistent as a result of public disclosure of the documents, the policy considerations supporting disclosure are substantial.

Public Policy is Not a Justification for Abandoning the Privilege

The Supreme Court has rejected any attempt to balance away the privilege protection based on public policy. Disclosures sanctioned on the basis of public policy injects uncertainty into the life of the privilege. More importantly, no court prior to this decision has ever attempted to distinguish confidentiality vis-a-vis pretrial use from confidentiality vis-a-vis trial use. While confidentiality destroyed in one case has been ignored in another, the concept has not been parsed in this way, particularly in the same action.

At some point the facade of confidentiality being an imperative of the privilege protection is going to have to be abandoned. Until that point, however, the district judges, like Jack Weinstein, who are hearing these tobacco cases need to find a basis for their decisions that are more consistent with the history and rationale of the privilege. Alternatively, the first, and most obvious solution might be to declare the privilege destroyed because the confidentiality upon which it depends has been destroyed. If that basis is too 'retro,' a second alternative might be to conclude that the tobacco industry has waived its privilege protection because it failed to exercise all available measures to preserve the confidentiality of its communications. A third, and perhaps the most logical, option might be to examine the documents in camera, as the judge did in Minnesota, and decide that the privilege was inapplicable because of the crime/fraud exception. If this is unpalatable, because the time commitment in conducting such an examination is so great, a final solution is to expand the doctrine of collateral estoppel and declare that the tobacco companies, having had their day in court, will not be heard on the privilege issue again.

In the magistrate’s decision, that was incorporated into Judge Weinstein’s opinion, he correctly noted that under current legal principles "[t]he Special Master’s determination [in Minnesota] and the subsequent court order adopting his report may not have collateral estoppel effect in the law suits pending in this [federal] court." Nevertheless, the magistrate judge used the factors that drive the doctrine of collateral estoppel -- the fact that the tobacco companies "had ample opportunity to litigate the issue of privilege before the Minnesota court," and had a fair hearing because the documents were examined by the judge in camera -- to justify the public policy conclusion that was reached. If Judge Weinstein waits until the appellate decision has been rendered in Minnesota, this would be an excellent time to explore the expansion of the concept of collateral estoppel to include decisions that are short of final dispositions of a cause of action. This is particularly true with lower court decisions that destroy the basis for subsequently claiming the privilege -- confidentiality.

Since all state and federal jurisdictions employ the same definition of the attorney-client privilege, perhaps courts should revisit the wisdom of permitting parties to unsuccessfully assert the attorney-client privilege in one jurisdiction after another. If the same principles have been applied, and the party has been given an adequate opportunity to factually establish his claim, every successive hearing is the same as the first. Fairness and judicial efficiency should justify barring parties from singing the same song, second, third and fourth verse. If the absence of confidentiality is not a sufficient basis for denying the privilege claim once its assertion has been lost, surely the fact that the party has received his day in court should be sufficient.

After abandoning the privilege in the pretrial discovery process, Judge Weinstein will be breaking new (albeit ill-advised) ground to suppress those same communications at trial on the basis of public policy. If he is inclined to break new ground with the attorney-client privilege it should be in the opposite direction. Unwilling to declare the privilege destroyed, he should explore an expanded interpretation of the doctrine of collateral estoppel -- a doctrine that could annually save hundreds of thousands of man-hours for both lawyers and judges and tens of millions of dollars in litigation costs.