The circumstances of the communication, their content and even subsequent acts concerning the privileged communication must be carefully weighed in order to preserve the integrity of the privilege. Another way to reach the same conclusion is to constrain from the point of view of the burden of a subsequent application. The party invoking solicitor-client privilege “is responsible for establishing the preliminary facts necessary to support its exercise, that is to say: A communication that takes place in the context of an attorney-client relationship”. Costco Wholesale Corp. v. Sup. Ct. (2009) 47 Cal.4th 725, 733. It is therefore necessary for the performing party to bear the burden of proof of the existence of a communication, which requires at least the presentation of “evidence” for a date that constitutes an underlying and unprotected fact.
Here too, what is protected, but not who, when and where – the party that wants to hide behind privilege, must prove the last three fundamental questions to live up to its burden. Most recently, in Ambac Assurance Corp., v. Countrywide Home Loans, Inc., 2014 WL 6803006, no. 651612/10 (1st Dep`t 2014), New York Court of Appeals, governed by recent federal decisions and the Delaware Law, completely abandoned the requirement for a trial. In particular, the court found that “solicitors` privilege is not linked to the observation of a dispute”, because “advice is often sought and given precisely to avoid litigation, facilitate compliance with the law or simply to guide the course of a client`s behaviour”. In addition, the Tribunal decided that encouraging parties with common legal interests to seek legal advice “in order to meet legal requirements and plan their conduct accordingly”.. . . .