In re The Boeing Company Aircraft Securities Litigation

Summary

The court addresses plaintiffs’ motion to compel Boeing defendants to provide a more detailed privilege log and produce documents withheld under the attorney-client privilege and work-product doctrine. The court grants the motion in part, ordering defendants to further amend their privilege log and produce or redact documents determined not to be privileged, while declining at this stage to order production of specified categories of documents. The opinion also discusses confidentiality designations, public access, in camera review, and the required specificity of privilege-log descriptions.

Holdings

1. A privilege log must describe each withheld document with sufficient specificity to permit the opposing party and the court to assess the asserted privilege or protection, including the document's form, subject matter, participants or capacities, purpose, and basis for the claim. Boilerplate and conclusory descriptions are inadequate.
2. Attorney-client privilege protects confidential communications made for the purpose of obtaining legal advice, and work-product protection applies to documents prepared because of the prospect of litigation rather than in the ordinary course of business.
3. An attachment need not have an independent basis for privilege when the act of transmitting it to counsel is part of a communication for purposes of obtaining legal advice. Communications among non-lawyers or communications on which an attorney is merely copied may nevertheless be privileged when they convey or reflect confidential legal advice, but copying an attorney or using legal terminology alone is insufficient.
4. Voluntary disclosure to a third party may waive attorney-client privilege, but disclosure does not automatically waive work-product protection; work-product waiver occurs when disclosure substantially increases the opportunity for potential adversaries to obtain the information.

Questions Presented

1. Whether Defendants' privilege log complied with Federal Rule of Civil Procedure 26(b)(5).
2. Whether boilerplate or conclusory descriptions were sufficient to establish attorney-client privilege or work-product protection.
3. Whether attachments, business records, board materials, communications among non-lawyers, and communications on which attorneys were copied could be withheld or required production or redaction.
4. Whether disclosure of documents to third parties waived attorney-client privilege or work-product protection.
5. Whether the court should conduct in camera review or instead require Defendants to amend the privilege log.

Disposition

other