Gold Standard, Inc. v. American Barrick Resources Corp., 890393
| Decision Date | 08 November 1990 |
| Docket Number | No. 890393,890393 |
| Citation | 801 P.2d 909 |
| Parties | GOLD STANDARD, INC., Plaintiff and Appellant, v. AMERICAN BARRICK RESOURCES CORPORATION; Barrick Resources (USA), Inc.; Texaco, Inc.; Getty Oil Company; and Getty Mining Company, Defendants and Appellees. |
| Court | Utah Supreme Court |
James S. Lowrie, Christopher L. Burton, George W. Pratt, James W. Peters, Barry G. Lawrence, and Deno G. Himonas, Salt Lake City, for Gold Standard.
Stephen G. Crockett, Robert S. Clark, Jill N. Parrish, and Brian J. Romriell, Salt Lake City, for Texaco and Getty.
Gordon L. Roberts, Francis M. Wikstrom, John B. Wilson, and J. Michael Bailey, Salt Lake City, for Barrick.
Gold Standard, Inc., brings this interlocutory appeal from the trial court's denial of its motion to compel production of a document which the trial judge found to be privileged. We reverse.
In December 1986, Gold Standard filed the lawsuit from which this appeal arises against several entities, including appellees. One of Gold Standard's claims in the suit is that appellees, who were all involved in the sale of property known as the Mercur Mine, structured the sale in derogation of Gold Standard's interests in the mine. On May 10, 1989, Gold Standard filed a motion to compel discovery of a letter dated June 11, 1985, addressed to Parsons, Behle & Latimer (attorneys in this appeal for American Barrick Resources Corporation and Barrick Resources (USA), Inc.) and signed by representatives of each appellee. Appellees resisted production of the letter, claiming that it was protected by the attorney-client privilege and the work product doctrine. Gold Standard maintains, and argued below, that the June 11 letter is a commercial agreement containing terms regarding the sale of the Mercur Mine and is therefore not protected by either privilege. The trial judge, after an in camera inspection, held that the letter was "privileged" and denied Gold Standard's motion to compel. 1 Having reviewed the letter, we hold that it is not protected by either the work product doctrine or the attorney-client privilege.
The work product doctrine is outlined in Utah Rule of Civil Procedure 26(b)(3). There are three essential requirements for materials to be protected by the work product doctrine under rule 26(b)(3): (1) the material must consist of documents or tangible things, (2) prepared in anticipation of litigation or for trial, (3) by or for another party or by or for that party's representative. 2
The June 11 letter satisfies the first and third requirements for work product protection, but it does not satisfy the second requirement. It was not prepared "in anticipation of litigation or for trial." This court recently outlined the contours of this second requirement in another interlocutory appeal involving the parties to this action. Gold Standard, Inc. v. American Barrick Resources Corp., 144 Utah Rep. 3 (September 21, 1990). In order to satisfy the second requirement for protection, the primary purpose behind the creation of a document must be "to assist in pending or impending litigation." Id. (quoting United States v. Gulf Oil Corp., 760 F.2d 292, 296 (5th Cir.1985)). This means that the document must have been either created for use in pending or impending litigation or intended to generate ideas for use in such litigation.
Although it was prepared because of a threatened suit by Gold Standard against appellees, the primary prupose behind creating the June 11 letter was not "to assist in pending or impending litigation." Id. There is no indication that the letter or ideas generated by the letter were intended for use in litigation brought by Gold Standard. It outlines a retainer agreement and sets up a plan for allocating costs and burdens among appellees in the event Gold Standard should involve any of them in litigation. The letter does not contain any legal strategies, theories, or conclusions of appellees or their attorneys designed to assist in litigation brought by Gold Standard. 3
The attorney-client privilege, codified at Utah Code Ann. § 78-24-8(2) (Supp.1990), provides:
An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given regarding the communication in the course of his professional employment. An attorney's secretary, stenographer, or clerk cannot be examined, without the consent of his employer, concerning any fact, the knowledge of which has been acquired in his capacity as an employee.
The United States Supreme Court has stated that the purpose of the privilege is to "encourage clients to make full disclosure to their attorneys." Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976). The Court cautioned, however, that Id. This court has taken a similar view of the privilege, describing it as "necessary in the interest and administration of justice," but noting that the privilege should be "strictly construed in accordance with its object." Jackson v. Kennecott Copper Corp., 27 Utah 2d 310, 495 P.2d 1254, 1257 (1972).
The attorney-client privilege is intended to encourage candor between attorney and client and promote the best possible representation of the client. However, the mere existence of an attorney-client relationship "does not ipso facto make all communications between them confidential." Anderson v. Thomas, 108 Utah 252, 262, 159 P.2d 142, 147 (1945); see also Evans v. Evans, 8 Utah 2d 26, 327 P.2d 260 (1958). Each case must be considered individually to determine whether the communication can be properly considered confidential. Id. at 28, 327 P.2d at 261. This court described two common scenarios where the privilege applies in Jackson v. Kennecott Copper Corp. These are where the information is given to the attorney (1) "for the purpose of forming an opinion as to the legality of a contemplated legal action" or (2) for "legal analysis and advice as to the particular prospective litigation...." 495 P.2d at 1257.
The June 11 letter has essentially two parts: First, it outlines the terms for retaining Parsons, Behle & Latimer by appellees. Second, it...
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