City of Philadelphia v. Westinghouse Electric Corp.
| Decision Date | 19 October 1962 |
| Docket Number | 30015,29925-29931,29817,30017,30020-30023.,Civ. A. No. 29810,29920,30018 |
| Citation | 210 F. Supp. 483 |
| Parties | CITY OF PHILADELPHIA, a Municipal Corporation v. WESTINGHOUSE ELECTRIC CORPORATION et al., and related cases. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Harold E. Kohn, Dilworth, Paxson, Kalish, Kohn & Dilks, Philadelphia, Pa., for plaintiff.
Henry W. Sawyer, III, Patrick T. Ryan, Drinker, Biddle & Reath, Philadelphia, Pa., for defendant General Elec. Co.
This matter comes before the Court on a motion by the defendant, General Electric Company, for modification of certain statements appearing in a memorandum opinion entered July 19, 1962, and for the clarification of other portions of the opinion. The only matter which requires any extended comment is a request for clarification of a statement to the effect that the defendant's claim of privilege with respect to information acquired by its general counsel in the course of his investigation of facts relating to the pending indictment of the company is without any valid basis.
The matter of privilege claimed for communications or statements obtained from various employees of another defendant (Allis-Chalmers) came up recently in the course of depositions taken before me and most of what was said there represents my present views. In the present case the claim was made in connection with a motion by the plaintiffs for penalties against the defendant for refusal to answer interrogatories. In the Allis-Chalmers case the matter came up on a motion to produce a document containing a statement made by an employee of the corporation to its lawyer.
In both cases the privilege was asserted not only on behalf of the corporation but also on behalf of the employee who was the source of the information sought by the plaintiffs. It is clear in this case (as it was in the other) that the claim of a privilege personal to the employee, claimed in his behalf, is without merit. He was definitely advised by the lawyer that, although his disclosures were "privileged," if it should turn out that they revealed a violation of written company policy directives, the lawyer would "report that fact to management." This disposes of any possible claim that the communications were confidential.
Turning to the claim asserted in behalf of the corporation, preliminarily I may say that I find myself unable to follow Judge Campbell's decision to the effect that the attorney-client privilege is not available to corporations. His opinion is supported by a good deal of history and sound logic, but the availability of the privilege to corporations has gone unchallenged so long and has been so generally accepted that I must recognize that it does exist.
Now in order that the attorney-client privilege can protect a communication made to a lawyer by any person or corporation, it is a first essential that it be made for the purpose of securing legal advice or assistance, and that means advice or assistance for the person or corporation making the communication. If the communication is made to enable the lawyer to advise someone else or if it is made by someone other than the client (the corporation) it is not privileged.
The rule, as stated by Wigmore, is in substance that where legal advice of any kind is sought, communications and so forth made in confidence by the client are privileged. 97 C.J.S. Witnesses § 276, states the rule as follows: "the privilege applies only if * * * the communication relates to a fact of which the attorney was informed by his client * * * for the purpose of securing primarily either an opinion on law or legal services or assistance in some legal proceeding." This basic requirement, namely, that the communication must be made by the client to enable the lawyer to advise him, appears in every statement of the rule which has come to my attention.
Now, in cases where an employee of a corporation in an executive or managerial position communicates a fact relative to pending litigation...
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