Advice provided by in-house lawyers too often is at risk of being stripped of the protection of the attorney-client privilege. The recent case of Exxon Mobil Corp. v. Hill (EMC) illustrates those risks. C.A. No. 13-236, 2013 WL 3293496 (E.D. La. June 28, 2013), reversed, 751 F.3d 379 (5th Cir. 2014).
The document at issue in EMC was known as the “Stein Memorandum.” Exxon Mobil was in contract negotiations with another company—ITCO—to clean and store oilfield tubulars. Some of those tubulars were contaminated with radioactive material. ITCO claimed to have a device designed to contain the radioactive dust generated during the cleaning process. Exxon Mobil sent an industrial hygienist to test the device’s performance and efficacy. The hygienist generated a report that had four tables (Table I–Table IV) showing the results of her testing. She gave her report to John Guidry, an Exxon Mobil employee.
