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(District of New Jersey D.C. 01-cv-04183) - page 15 / 30





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Upjohn, 449 U.S. at 389.

For centuries, the common law has also recognized “as a fundamental maxim that the public . . . has a right to every man’s evidence” and “that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.” 8 WIGMORE at § 2192. Because the attorney-client privilege has this effect of withholding relevant information from fact-finders, federal courts must apply it only where necessary to achieve its purpose. Fisher, 425 U.S. at 403. As a result, the well-established limitations which have been developed under the common law all are consistent with the purpose of encouraging clients to speak fully with their lawyers without concern that what they say to the lawyer will be

disclosed. See Swidler & Berlin v. United States, 524

409-10 (1998).

Where this purpose

ends, so too

U.S. 399, does the

protection of the privilege.

For example, because the purpose of the privilege is to promote the dissemination of sound legal advice, the privilege will extend only to advice which is legal in nature. Where a lawyer provides non-legal business advice, the communication is not privileged. 8 WIGMORE at § 2303; In re Lindsey, 158 F.3d at 1270. Similarly, the protections of the privilege are restricted to those communications which are made in confidence, since a client who speaks openly or in the presence of a third party needs no promise of confidentiality to induce disclosure. 8 WIGMORE at § 2311; Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991). As for two clients having a common legal interest who are represented by the same attorney, the confidentiality requirement means that,


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