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Corporate Counsel Docs Not Protected

Deborah Elkins//December 14, 2012

Corporate Counsel Docs Not Protected

Deborah Elkins//December 14, 2012

An Abingdon U.S. District Court need not accept former in-house counsel’s view that documents listed in defendant corporation’s Privilege Log are protected by the attorney-client privilege because of his wide-ranging role in providing legal counsel, and the court orders the bulk of the documents cited produced in this litigation over royalty payments for coal bed methane gas.

Plaintiffs are suing EQT Production seeking payment of royalties and other relief as lessors of coal bed methane (CBM) taken from CBM wells operated by EQT Production of Southwest Virginia. The present motions seek to compel the production of certain emails to or from Kevin West. The specific emails are listed on defendant EQT Production Company’s privilege log. Each of the privilege log entries at issue asserts that the documents are protected by the attorney-client privilege and the work product doctrine.

According to West’s affidavits, he is licensed to practice law in Kentucky and has served in various capacities with EQT Production and affiliated entities. In particular, West served as vice president and general counsel of EQT Production from June 2007 to August 2008. From August 2008 to March 2009, West served as vice president of legislative and regulatory affairs of EQT Production. From March 2009 to September 2011, West served as managing director of external affairs for EQT Production’s parent company. From September 2011 to February 2012, West served as deputy general counsel for EQT. In each of these roles, West reported to EQT’s general counsel.

According to West, from March 2009 until he left EQT in February 2012, he “was designated as EQT’s company spokesperson for any matter that might have legal implications.” He stated he continued to be consulted with regard to legal matters in each of his roles. His affidavits do not address any of the specific communications withheld from production.

While the attorney-client privilege is available to corporations, the determination of whether the attorney-client privilege applies becomes more difficult when the sender or recipient of that document is in-house counsel for a corporate entity. As is the case here, attorneys employed by corporations serve in many roles, some of which have little to do with being an attorney. The privilege should not be applied to protect any and all documents routinely routed through corporate counsel for little, if any, legal purpose.

Where a communication neither requests nor expresses legal advice, but rather involved the soliciting or giving of business advice, it is not protected by the privilege. However, the mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege.

Based on the court’s review of the Privilege Log and West’s affidavits, the court finds that EQT Production has failed to meet its burden to establish that all but five of these documents were prepared primarily for the purpose of giving and receiving legal advice. The documents withheld from production can be placed into four categories: 1) document pertaining to responding to requests for information from the Virginia Department of Mines, Minerals and Energy; 2) documents pertaining to reporter Daniel Gilbert’s request for information about royalty payment calculations; 3) documents relating to escrow issues, escrow summaries, interest rates on escrow payments or disbursements from escrow, but make no reference to any inquiries; and 4) emails to schedule telephone calls and emails acknowledging other emails. None of these entries makes any reference to seeking or providing legal advice.

Also, West’s affidavits did not offer any evidence that the emails related to requests for or the rendering of legal advice.

The court orders production for in camera review of five documents that reference information received from outside counsel, advice from West and liability for interest on internal suspense accounts.

Finally, the Privilege Log entries for documents withheld do not support the application of the work-product doctrine. EQT Production has failed to show that withheld emails were created “because of” litigation.

Adair v. EQT Production Co. (Jones) (Published) No. 1:10cv00037, Sept. 14, 2012; USDC at Abingdon, Va. VLW 012-3-594, 11 pp.

VLW 012-3-594

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