The Rhode Island Supreme Court has held that an in-house counsel's Powerpoint slides respecting insurance coverage for a lawsuit created for a presentation for the company's board of directors are factual work-product and that the company did not waive its privilege through accidental disclosure of the slides to third-parties.
The issue arose in the course of long-running litigation respecting the State of Rhode Island's public nuisance lawsuit against manufacturers of lead pigment and their trade association. State of Rhode Island v. Lead Industries Association, Inc., 951 A.2d 428 (R.I. 2008) [Disclosure: this firm has been local counsel for the LIA when it was not in bankruptcy]. During the litigation, in-house counsel for one of the manufacturers made a presentation to the company's board of directors about its available insurance coverage for the lawsuit. The presentation included three Powerpoint slides listing what counsel considered to be the relevant policies and their amounts of coverage. Those slides found their way into the hands of the State's counsel through means not publicly known.
After the Supreme Court rendered its opinion in 2008 holding the State did not have a basis for public nuisance claims against the manufacturers, they moved for an award of their costs and attorney's fees. The State attached the slides as one of numerous exhibits to its objection, arguing, in part, that the company had not suffered economic losses from the litigation because it had insurance coverage. Apparently, before it realized that the slides were an exhibit, the manufacturer sent the objection to a blogger and a legal publisher. [I note the Supreme Court felt constrained to explain what a blog was and cite to a dictionary for a definition]. The manufacturer moved for a protective order arguing that the slides were protected from discovery by the attorney-client privilege and the work-product doctrine. It supported its motion with an affidavit from the in-house counsel about the purpose of the slides and his intention to keep them confidential.
The Superior Court held the slides were not an attorney-client communication because they did not contain the attorney's legal advice, just factual information about the policies. The court did not address the work-product argument. It subsequently denied the defendants' motion for costs but did not refer to the parties' financial status as a basis for its decision.
The Supreme Court did not decide whether the slides were an attorney-client communication because it found them to be factual work-product. It distinguished them from opinion work-product which contains "the mental impressions of the attorney or his or her legal theories" and which is entitled to "absolute immunity" from discovery. Rather, the slides were factual work-product because they were created in anticipation of litigation. An opposing party may obtain discovery of factual work-product only if it has a substantial need for the materials in preparation of its case and the information is not available by other means without undue hardship.
The Court said the slides were clearly created in anticipation of litigation. Moreover, the State acknowledged that it could have obtained the information set forth in the slides through discovery.
The Court also rejected the State's arguments that the manufacturer had waived the work-product protection because third-parties were present during the board of directors meeting, the manufacturer sent the objection including the slides as an exhibit to a blogger and a legal publisher, and it failed to list the slides in its privilege log. The Court said the "third parties" that attended the directors meeting were all company officers who were not going to disclose the information to others. The disclosure to the media was inadvertent and the manufacturer asked them not to circulate the slides as soon as it realized it had sent the slides to them. Finally, the Court said a good-faith failure to include the slides in the very lengthy privilege log was not a grounds for waiver, particularly were it was doubtful that the State's discovery requests covered the slide. State v. Lead Industries Association, Inc., No. 2010-288, 2013 WL 1932151 (R.I. May 10, 2013).