Massachusetts State House.
Boston Bar Journal

Labeling Documents as Protected from Disclosure: Why Bother?

February 09, 2023
| Winter 2023 Vol. 67 #1

By Philip A. O’Connell Jr. and Tony K. Lu

Most lawyers routinely handle printed and electronic communications marked “Privileged,” “Confidential Attorney-Client Communication,” “Work Product,” etc. Yet case law from across the country indicates that when litigation arises, those labels alone do not protect a document from disclosure. See, e.g., Henderson v. Newport County Regional YMCA, 966 A. 2d 1242, 1248 (R.I. 2009) (“[A] party cannot create work product solely by the nomenclature used to entitle documents.”); Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 15 (2003) (“Whether a document expressly is marked as ‘confidential’ is not dispositive . . .”); Kobluk v. University of Minnesota, 574 N.W. 2d 436, 441 (Minn. 1998) (“[A] document is not cloaked with the privilege merely because it bears the label ‘privileged’ or ‘confidential’”); Spectrum Systems Int’l Corp. v. Chemical Bank, 78 N.Y. 2d 371, 381 (1991) (“A party’s own labels are obviously not determinative of work product . . .”). Nor does the absence of such notations make privileged documents any less privileged. Rico v. Mitsubishi Motors Corp., 68 Cal. Rptr. 3d 758, 767 (Cal. 2007). Accord, McDermott Will & Emery LLP v. Superior Court, 10 Cal. App. 5th 1083, 1106 (2017) (“but the absence of any marking does not require the conclusion the holder waived the privilege”).

So, why bother using such labels? While the utility of this practice may vary based on the type of document at issue (e.g., an email, an internal case analysis, a draft agreement), there are several compelling reasons to use them.

  1. Notice to Recipients Concerning Proper Maintenance of the Document. Once created, a document takes on a life of its own. It may be relevant for years to come.  Persons handling the document in the future may have no direct connection to the author and little knowledge of the context in which the document was created. However, to retain its protectable character, a document must be maintained in confidence. See Cavallaro v. United States, 284 F.3d 236, 246 (1st Cir. 2002). Those who receive or handle such a document need to know whether it should be maintained in confidence. A label included in the document by the author provides such direction and evidences an effort to maintain confidentiality or privilege. See, e.g., McKnight v. Honeywell Safety Prod. USA, Inc., No. CV 16-132WES, 2019 WL 452741, at *3 (D. R. I. Feb. 5, 2019) (“[T]hese [d]ocuments reflect the steps Honeywell took to protect the confidentiality of the privileged communications in them . . .”).
  2. Notice to Others Concerning Production or Withholding of the Document. In addition to informing recipients and others who handle confidential documents, labeling assists those making decisions about their subsequent production in litigation (or inclusion on a privilege log). Persons making production decisions may lack knowledge about the origin of the document, its authors, or its recipients. Labeling a document highlights its potentially protectable character for those persons, making it much less likely they will inadvertently produce a document that should be withheld. This is especially significant in the context of the review and potential production of potentially thousands or millions of pages of documents.
  3. Less-Than-Conclusive Evidence That A Document Is Protected From Disclosure Still Matters. While a label is not conclusive evidence that a document is protectable, it may still serve as some evidence bearing on the protectable character of the document. See, e.g., United States ex rel. Wollman v. Massachusetts General Hospital, 475 F. Supp. 3d 45, 64-65 (D. Mass. 2020) (labels “Confidential Attorney Client Communication,” “confidential” and “privileged” were evidence supporting conclusion that investigation was for purpose of providing legal advice); Jaiyeola v. Garmin Int’l, Inc., No. 20-2068-HLT, 2021 WL 492654, at *4 (D. Kan. Feb. 10, 2021) (“The email was labeled ‘Privileged and Confidential,’ which, while not dispositive, supports the conclusion that the e-mail was prepared as part of the investigation”); Craig v. Rite Aid Corp., No. 4:08-CV-2317, 2012 WL 426275, at *9-11 (M. D. Pa. Feb. 9, 2012) (labeling repeatedly cited as factor in holding documents privileged). In fact, the absence of such labeling has been cited as a factor in holding that a document is not privileged. See, e.g., Wartell v. Purdue Univ., No. 1:13-CV-99 RLM-APR, 2014 WL 4261205, at *7 (N.D. Ind. August 28, 2014).
  4. Triggering Opponent’s Duty Not To Use Privileged Documents. In most jurisdictions, opposing counsel who inadvertently receives a document that is evidently privileged, has, at minimum, a duty to promptly advise the sending party of its receipt. See, e.g., Massachusetts Rule of Professional Conduct 4.4(b); Rico v. Mitsubishi Motors Corp., 68 Cal. Rptr. 3d 758, 766-67 (Cal. 2007). The easiest way to trigger that duty is to conspicuously label documents that are protected from disclosure at the time they are prepared. See, e.g., Alers v. City of Philadelphia, No. CIV. A. 08-4745, 2011 WL 6000602, at *1 (E.D. Pa. Nov. 29, 2011) (magistrate’s opinion) (“[P]laintiff’s counsel had an obligation to do more here, so as to unambiguously inform defense counsel of the inadvertent disclosure, as the document at issue was clearly and emphatically marked ‘PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION’”).
  5. The Rhetorical Benefits of Labeling. As a practical matter, labeling a document as protectable may stack the deck against any party later arguing for disclosure. Every time the judge refers to the privilege log (which would, if properly prepared, note the labeling) or document in dispute (if submitted in camera), that judge is reminded of the labeling. Thus, so long as there is any plausible basis for asserting that the document should be protected from disclosure, the labeling may create a de facto presumption in the mind of the decision-maker that the text is indeed protectable.

Those who counsel against labeling of protectable communications generally contend that: (i) such labeling is superfluous because it does not make a document protectable; and (ii) inconsistent or erroneous labeling will harm the chances of protecting truly protectable documents (see, e.g., Chevron Pipe Line Com., v. Pacificorp, No. 2:12-CV-287-TC-BCW, 2016 WL 10520301, at *3 (D. Utah Feb. 22, 2016) (magistrate’s opinion) (inconsistent labeling cited as factor in denying motion for return of allegedly privileged document)).

In our view, and as explained above, even though labeling does not conclusively establish protectable character, labeling may nevertheless be helpful.

First, the argument that labeling is “superfluous” is strongest in the context of emails, which usually automatically identify the sender and recipients, and often include generic notices of potential confidentiality. However, non-generic, additional labels can be helpful for emails. Because some attorney-client emails may contain purely business advice, labeling may clarify that a message was intended to be a confidential legal communication. Labeling may also indicate that the body of the email, even if the sender and recipients are not counsel, contains previously communicated legal advice. Non-generic labels will also assist those subsequently deciding whether to produce it in discovery.

Second, inconsistency and errors in labeling are within the control of the author or sender of a document. Care and attention can help reduce these risks. The potential benefits of consistent labeling, where warranted and not indiscriminate, outweigh the risks of deciding not to label at all. The effort of maintaining a document as confidential, even if upon a later review it is determined to be not protected from disclosure, is worthwhile.

In conclusion, labeling protectable documents as such at the time of preparation can help minimize the risks associated with their subsequent handling. Any risks created by such labeling are generally limited compared to the risks of foregoing such labeling.

Philip A. O’Connell, Jr. is the Managing Partner of the Boston office of Dentons US LLP. He is admitted to practice in Massachusetts, California, Illinois and Nevada. He represents clients primarily in insurance and commercial litigation.

Tony K. Lu is a Senior Managing Associate in the Boston office of Dentons. He is admitted in Massachusetts and Connecticut. He represents clients primarily in trade secret litigation, other commercial litigation and insurance litigation.