In Craig v. Rite Aid Corp., No. 08-CV-2317, 2012 WL 426275 (M.D. Pa. Feb. 9, 2012), the court found that the defendant had failed to meet its burden of establishing privilege over an internal corporate restructuring review when it provided only vague assertions that the entire project was conducted at the direction of in-house counsel. In this FLSA case, defendant withheld a large number of documents related to a “multi-faceted” internal restructuring analysis that involved many non-attorneys and included “on occasion” in-house counsel. The court reviewed in camera a sample of 30 documents selected by plaintiff from defendant’s privilege log, and supporting information provided by defendant, including an affidavit from in-house counsel. Although the court found that some of the documents were clearly privileged based on a review of the documents themselves, others did not appear to be privileged unless the entire restructuring review was deemed legal in nature. For its proof that the entire review was privileged, defendant relied on two paragraphs of an affidavit provided by in-house counsel, which merely asserted that the review was conducted at the direction of in-house counsel “in large part” because of existing or anticipated litigation. The court found that the affidavit lacked specificity regarding any of the particular documents in issue, and instead provided “sweeping generalities” that were insufficient to establish privilege. Because in-house counsel can act in both legal and business capacities, in-house counsel must make a “clear showing” that they made the communications for a legal purpose. Where documents do not involve attorneys, a party must establish the elements of privilege with specificity.
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Blanket privilege assertion over project insufficient to establish privilege
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