Article by Mark Browne

Kovel Privilege

What is the Kovel Privilege? In order to better understand Kovel Privilege, we first need to understand attorney-client privilege. Attorney- Client Privilege protects communication between a client and their attorney and are intended to be confidential for the purpose of obtaining or providing legal advice.  The Kovel Privilege is an extension of the Attorney-Client Privilege. The rule takes its name from Louis Kovel, an IRS agent who later joined a law firm that specialized in tax cases. He lent his expertise in tax accounting to case preparation and client representation. In 1961, Kovel was sentenced to prison for refusing to answer questions in court about discussions he had with a client. He believed that those conversations were protected by the principle of lawyer-client privilege, and an appeals court agreed with him. His conviction was overturned.  The extension applies to third parties and subject matter experts who could be hired by the attorney or the client directly for trial and trial preparation. The attorney becomes the client of the third party in a Kovel Privilege. 

Jessel, M. R. in Anderson v. Bank, 2 Ch.D. 644, 649 (1876). Nothing in the policy of the privilege suggests that attorneys, simply by placing accountants, scientists or investigators on their payrolls and maintaining them in their offices, should be able to invest all communications by clients to such persons with a privilege the law has not seen fit to extend when the latter are operating under their own steam. On the other hand, in contrast to the Tudor times when the privilege was first recognized, see 8 Wigmore, Evidence, § 2290, the complexities of modern existence prevent attorneys from effectively handling clients' affairs without the help of others; few lawyers could now practice without the assistance of secretaries, file clerks, telephone operators, messengers, clerks not yet admitted to the bar, and aides of other sorts. "The assistance of these agents being indispensable to his work and the communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney's agents." 8 Wigmore, Evidence, § 2301; Annot., 53 A.L.R. 369 (1928). 

What is the work product doctrine? The work-product doctrine originated in the 1947 case of Hickman vs. Taylor  in which the Supreme Court affirmed a United States Court of Appeals for the Third Circuit decision which excluded from discovery of oral and written statements made by witnesses to a defendant's attorney. The Supreme Court, acting at the recommendation of the Advisory Committee of the Judicial Conference, later enshrined this doctrine formally in the Federal Rules of Civil Procedure as Rule 26(b)(3).[5]

The work product doctrine specifically in American civil procedure, protects materials prepared in anticipation of litigation from discovery by opposing counsel. It preserves and protects the assistance of attorneys and others employed (investigator) to help prepare for litigation, especially privacy in the development of legal theories, opinions, and strategies. This doctrine was intended to promote the effectiveness of the help received by the attorney and third parties. How does this apply to the investigator? Simply put, this means that all materials used by the investigator cannot be used or forced into reciprocal discovery by the prosecution. This would include all materials to include reports, notes taken during interviews, diagrams, witness lists. The work-product doctrine is more inclusive than attorney-client privilege.  Basically, it means that reciprocal discovery is not allowed as it is protected by the workplace doctrine. As stated in the following paragraph, however, the courts distinguish two types of workplace doctrine, “fact” and “opinion”. 

Florida’s rules were heavy incorporated heavily due to the above-mentioned Hickman vs. Taylor case and is how the Florida work-product rule is patterned. In Florida, there are two separate distinctions with reference to the work product doctrine. The state recognizes a fact work-product and opinion work-product, though the rule uses neither term.  “Fact” work product is comprised of documents and tangible items that are prepared for litigation or for trial by a representative, including that party’s attorney, investigator, or consultant. “Opinion” work product consists of the attorney’s mental opinions or impressions. Fla. R. Civ.P. 1.280(b). “A third party may obtain discovery of documents and tangible items prepared by another party (fact work product items) upon showing a need and inability to obtain such materials without undue hardship.” Further, with regards to the opinion work-product, “the court shall protect against disclosure”. Of course, there are separate degrees of protection between both work-products with opinion having a much greater protection which means that opinion is almost never discoverable according to some federal courts, while others claim that it is entitled only to special protection. The primary reason for such a high level of protection for opinion work product is to protect the attorney’s privacy interests and to protect our disputatious system of justice. As a result of the opinion work doctrine being almost always undiscoverable, the focus is typically focused on the fact-based work doctrine. Once it is determined that the requested material falls under the work product doctrine, the privilege is then utilized to prevent discovery. The only way for counsel to obtain the materials is to establish the following difficult requirements.

1.) The material is needed to prepare the party’s case;

2.) The party in unable without undue hardship to obtain the substantial equivalent of the materials by other means;

3.) The documents and tangible things fall within the general scope of discovery found in Fla. R. Civ. P. 1.280(b)(I), which, in essence, means that the material must be relevant.

The above requirements serve two purposes…

1.) It keeps the work private

2.) It protects against other parties who may try and use the information to obtain a successful conclusion to their case.

If the three requirements are met, a party is then allowed to review and discover the information, but this only entitles them to the fact-based doctrine. The court is still required to protect against the revealing of the “opinion-based doctrine” (mental impressions, conclusions, opinions, or legal theories) of the attorney or other parties involved in the litigation. If the materials are not relevant or if the party seeking the information is not diligent then the need for the information cannot be established and is the therefore, denied. Some court decisions have decided that the need for work product materials may be established by showing the following.

1.) The underlying evidence has been damaged, dismantled, changed, or is inaccessible to the same examination by the party seeking discovery.

2.) Withholding the materials would defeat the interest of justice.

3.) The materials are not as readily available to the party seeking discovery.

“Similarly, the work product doctrine applies in criminal cases and is incorporated into Florida Rule of Criminal Procedure 3.220(g)(1). Although the cases applying the doctrine in a criminal context are few, they usually apply the same principles as are applied in civil actions.”

All information obtained by the investigator qualifies under the fact work determined by the courts. These include statements taken from witnesses, witness statements, research reports generated to assist in the defense of cases, and photographs. Florida statutes also define hospital incident and medical reports to be work product. According to Florida courts, work product does not include names and addresses of persons having relevant information concerning the specific cases. Investigator information retrieved may fall under “fact” or “opinion” work product. It is important for the investigator to understand which falls into which category and if the information is being obtained for possible litigation. Another consideration for investigators is whether counsel is government or private. The work product doctrine does not protect materials for attorneys employed by the state of Florida because of the Public Records Act. It is important as an investigator to make this distinction with regards to the counsel with whom he is working. Anything the investigator collects, or manufactures could be discovered if all the above-mentioned circumstances are met. It would be important for the investigator to produce accurate and organized reports in case they are discovered by the prosecution. Most likely it would only be the “fact “based work-doctrine that is discoverable but then investigators really only deal with facts, not opinions. 

By Mark Browne

Criminal Investigations Director at Foxtrot1 LLC.