A recent case in the Northern District of Indiana highlights the limits of the attorney-client privilege. In Valley Forge Ins. V. Hartford Iron & Metal, Inc. et al., the court ruled that an attorney’s email communications with environmental consultants were not protected under the attorney-client privilege. Some of the emails, however, were shielded by the work-product doctrine. The factual and procedural background of the case is complicated (full text of opinion here), but the key takeaway is that not all communications between attorneys and environmental consultants/contractors are confidential, despite the lawyers’ best efforts to preserve confidentiality. The court emphasized that the privilege is to be narrowly applied to communications between attorneys and consultants. For this post, I’ve used this court’s iterations of the two legal standards.
I. Attorney-Client Privilege (The Rule)
The attorney-client privilege protects communications made in confidence by a client to [its] attorney in the attorney’s professional capacity for the purpose of obtaining legal advice. The elements of the attorney-client privilege are “(1) where legal advice was sought; (2) from a professional legal advisor in his capacity as such; (3) the communications relating to that purpose; (4) made in confidence; (5) by the client; (6) are at his instance permanently protected; (7) from disclosure by himself or by the legal advisor; (8) except the protection may be waived.” The party seeking protection of the privilege has the burden to establish all essential elements.
The privilege can extend to consultants hired by the attorney on behalf of the client. Only where the document or communication is “primarily concerned with legal assistance does it come within the attorney-client privilege.” When a client’s “ultimate goal is not legal advice, but is rather accounting, medical, or environmental advice, the privilege is inapplicable.”
II. Application in Valley Forge
In this case, Hartford Iron’s attorney hired environmental consultants to design, build, and install a stormwater remediation plan that would comply with Indiana Department of Environmental Management (IDEM) and the EPA. In so doing, the attorney went beyond simply hiring a consultant for the purpose of translating information obtained from client into usable form. The consultants were retained to formulate a remediation plan, rather than to ‘specifically assist counsel in rendering legal advice.’ As the court put it, Hartford Iron and its attorney’s primary purpose in retaining environmental contractors/consultants was to construct a remedial stormwater management system, not to translate information into usable form so that counsel could render legal advice. Therefore, the court reasoned, the communications with the consultants fell outside the scope of the attorney-client privilege.
III. Work-Product Doctrine
The work product doctrine protects documents prepared by attorneys “in anticipation of litigation for the purpose of analyzing and preparing a client’s case.” The intent of the work-product doctrine is “to protect the adversarial process by providing an environment of privacy in which a litigator may creatively develop strategies, legal theories, and mental impressions outside the ordinary liberal realm of federal discovery provisions, thereby insuring that the litigator’s opponent is unable to ride on the litigator’s wits.” As with the attorney-client privilege, the party invoking the work-product doctrine bears the burden of proof. A party claiming work-product protection must show that the materials sought are (1) documents and tangible things; (2) prepared in anticipation of litigation or for trial; and (3) by or for a party or by or for a party’s representative. A document or communication can have dual purposes, however, if the primary purpose is not litigation, the document is not privileged.
IV. Application in Valley Forge
All of the emails between consultants and Hartford Iron were created after the parties became aware of the IDEM and EPA claims and after the lawsuit was filed. Though the emails served a dual purpose (remediation and anticipation of litigation), the court found the litigation aspect to be the primary purpose. In a lengthy and tedious chart the court enumerated which emails were protected by the work-product doctrine.
In the corporate environmental context, the attorney-client privilege generally does not protect communications between attorneys and environmental consultants. The rule offers limited protection and will be narrowly applied in situations where an attorney is only seeking a consultant’s advice in order to translate client information into usable form so that the attorney can provide competent legal advice. Communications pertaining to information for remedial plans and similar actions are not protected. The work-product doctrine, however, offers broader protection and will be applied so long as the primary purpose is to obtain information in anticipation of litigation.
 Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007).
 Long v. Anderson Univ., 204 F.R.D. 129, 134 (S.D. Ind. 2001) (citing United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997); Lahr v. State, 731 N.E.2d 479, 482 (Ind. Ct. App. 2000)).
 In re Grand Jury Matter, 147 F.R.D. 82, 885 (E.D. Pa. 1992).
 Coltec Indus., Inc., 197 F.R.D. at 371
 Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 190 F.R.D. 532, 537 (S.D. Ind. 1999)