In Dewitt v. Walgreen Co., No. 11-00263 (D. Idaho Sept. 4, 2012), the court rejected in-house counsel’s blanket assertion of attorney-client privilege and work product protection in an employment discrimination matter brought by a pharmacist, who refused to comply with a company Policy.  During a 30(b)(6) deposition, plaintiff asked questions about the creation and revision of the Policy.  Walgreens’ counsel objected, asserting that the drafting was done with the aid of in-house counsel, who was intimately involved in all aspects of drafting and revising the Policy, and therefore all communications concerning the drafting and revising were privileged.  The court disagreed.  Unlike communications with outside counsel, communications between in-house counsel and corporate representatives are not presumed to be made for the purpose of obtaining legal advice.  In-house counsel must make a “clear showing” that the “speaker” made the communications for the purpose of obtaining or providing legal advice, rather than business advice.  The court also found the work product protection inapplicable to drafts of the Policy.  At best, Walgreens had a remote concern about possible litigation, and the drafts were not created “because of” litigation, that is, it could not be said that “but for” the fear of litigation the drafts would not have been created.  Rather, the drafts would have been created in substantially similar form even without the prospect of litigation, and thus, they were not protected work product.  However, a separate document-by-document analysis was necessary to determine whether the drafts were protected by the attorney-client privilege.