Showing 319 of 319 results

Chapter: 26.1

Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
("The privilege, and by extension the tax practitioner privilege . . . Protects communications between a client and its attorney that are intended to be, and in fact were, kept confidential. A party that shares otherwise privileged communications with an outsider is deemed to waive the privilege by disabling itself from claiming that the communications were intended to be confidential.")

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY

Chapter: 26.7

Case Name: n re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
December 27, 2017 (PRIVILEGE POINT)

"Trump-Related Circuit Court Decision Includes Troubling Waiver Analysis"

Because historical facts do not deserve privilege protection, disclosing those facts does not trigger a privilege waiver. Thus, disclosing historical facts to the government should not waive the disclosing client's privilege protection for communications with her lawyer about those facts.

But some decisions take a different, troubling, approach. In In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017), the court ordered former Trump campaign manager Paul Manafort's lawyer to testify before a grand jury. In addition to applying the crime-fraud exception, the court held that the lawyer waived her clients' privilege protection by making representations about historical facts in submissions to the DOJ. The court noted that the lawyer's submissions "made specific factual representations to DOJ that are unlikely to have originated from sources other than [Manafort and a colleague], and, in large part, were explicitly attributed to one or both [of their] recollections." Id. at *32. The court relied on this unsurprising circumstance in holding that the representations "impliedly waived the privilege as to [the clients'] communications with [their lawyer] to the extent that these communications related to the . . . Submissions' contents." Id.

A lawyer's disclosure of historical facts should not strip away privilege protection from the lawyer's communications with her client about those facts.

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 26.9

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "The Special Master correctly observed that there is a distinction between the results of the investigation and the investigation itself and that reliance on the facts learned in the investigation, when offered from a source other than the investigator, does not put the investigation in issue. . . . When an employer asserts the so-called Faragher/Ellerth defense, the adequacy of its investigation is relevant to the issue of the adequacy of its corrective actions. In this case, however, the adequacy of plaintiff's investigation simply has no relationship to any of the issues in the case.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY

Chapter: 26.9

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "Although Mitre's attaching the products of its investigation to its complaint seems to have been done more for public relations reasons than legal reasons, Mitre's pleading does not put the investigation in issue. The complaint is not evidence, and Mitre cannot offer it as such.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 26.9

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "HBO argues that Mitre waived work-product protection by (1) permitting James Boocock to testify to certain matters concerning Mitre's investigation and designating that testimony as its 30(b)(6) testimony and (2) by attaching the products of its investigation to its complaint."; "Boocock's answering HBO's deposition questions did not put Mitre's investigation in issue for the simple reason that providing such testimony was not an attempt by Mitre to use protected information to influence a decision maker. In many cases, the vast majority of deposition testimony taken in discovery is never put before any decision maker; frequently, only a small fraction of the deposition testimony taken in a case is cited in connection with a summary judgment motion or offered at trial. Thus, the mere fact that a party makes a partial disclosure of privileged or protected information in a deposition does not result in a subject-matter waiver because there is no use of the testimony by the party holding the privilege."; "HBO's second argument concerning Boocock's testimony -- that Mitre has made affirmative use of the testimony by designating portions as Mitre's 30(b)(6) testimony does not alter this result. The authorities cited above teach that the critical inquiry is whether protected information has been partially disclosed to a decision maker in an effort to influence a decision. A party's deposition testimony, whether from an individual witness or a 30(b)(6) witness, does not constitute such a use. Although HBO argues that Mitre is trying to utilize the work-product doctrine as both a sword and a shield, it has not cited any instance in which Mitre affirmatively used Boocock's testimony and has not, therefore, established Mitre's use of the work-product doctrine as a sword."; "'I am aware that subsequent to Boocock's deposition, the parties have submitted voluminous materials in connection with their motions for summary judgment. However, HBO does not cite any instances in which Mitre has made any affirmative use of Boocock's testimony in connection with these motions.'")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 26.302

Case Name: Brownfield v. Hodous and Hodous, L.L.P., 82 Va. Cir. 315, 319 (Va. Cir. Ct. 2011)
("Defendants oppose an in camera review, arguing that such a review itself violates the privilege. Disclosure of allegedly privileged materials to a court for purposes of determining the merits of a claim of privilege, however, does not have the legal effect of terminating the privilege and has been approved by many courts. See United States v. Zolin, 491 U.S. 554, 568-69, 109 S. Ct. 2619, 105 L. Ed. 2d 469 (1989), and cases cited therein.")

Case Date Jurisdiction State Cite Checked
2011-01-01 State VA

Chapter: 26.302

Case Name: United States v. Myers, 593 F.3d 338, 348 & n.15 (4th Cir. 2010)
("She has argued that her closed case files are privileged but has consistently refused to allow the court to evaluate whether the privilege applies. Myers cannot adjudicate her own Fifth Amendment claim. Rather, the district court must evaluate her claim in the first instance. See In re Three Grand Jury Subpoenas, Dated Jan. 5, 1988, 847 F.2d 1024, 1028-29 (2d Cir. 1988) (finding that the Fifth Amendment does not protect refusal to produce documents for in camera inspection). We will not consider her Fifth Amendment claim until the district court has had the opportunity. Myers does not waive her Fifth Amendment privilege or opportunity for review simply by turning over items for privilege review.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal

Chapter: 26.304

Case Name: Zen Design Group, Ltd. v. Scholastic, Inc., Case No. 16-12936, 2018 U.S. Dist. LEXIS 104412 (E.D. Mich. June 22, 2018)
(analyzing the scope of an implied waiver in a patent case in which a litigant intends to rely on advice of counsel; "To defend against a claim of willfulness, a party may present evidence that it sought an opinion of counsel as to the merits of the infringement allegations and received exculpatory advice. . . . This is known as the advice-of-counsel defense and it 'aims to establish that due to reasonable reliance on advice from counsel, [the accused infringer's] continued accused activities were done in good faith.'. . . By voluntarily providing the opinion of counsel as part of its defense, the defendant waives its attorney-client privilege and the confidentiality of the related work product. In re EchoStar Commc'ns Corp., 448 F.3d 1294, 1299 (Fed. Cir. 2006)."; "A little over a year later, the Federal Circuit revisited waiver in the context of the advice-of-counsel defense. See Seagate [In re Seagate Tech., LLC, 497 F.3d 1360, 1369 (Fed. Cir. 2007)]."; "Both Seagate and Echostar [In re EchoStar Commc'ns Corp., 448 F.3d 1294 (Fed.Cir.2006)] guide the court's analysis and opinion today. Seagate explicitly discussed Echostar and clarified that Echostar 'did not consider waiver of the advice of counsel defense as it relates to trial counsel.' Id. at 1370. Therefore, Seagate's holding pertains to trial counsel while Echostar governs waiver as to all other counsel, leaving open the question the parties ultimately present to this court: when is an attorney considered trial counsel, thus shielding his communications and work product from discovery even when his client asserts the advice-of-counsel defense?"; "Both parties present thoughtful research and analysis. Upon a review of the pertinent caselaw, the court concludes that a bright-line rule for waiver of trial counsel's pre-suit communications and documents is not appropriate. . . . The moment at which an attorney's role morphs from pre-suit advisory counsel into pre-trial strategy counsel is not easily defined by a distinct point in time and is better suited to a fact-intensive case-by-case analysis. After considering the 'circumstances of the disclosure [sought here], the nature of the legal advice sought[,] and the prejudice to the parties of permitting or prohibiting further disclosures[,]' the court concludes that disclosure of Siff's pretrial communications and work product regarding infringement is appropriate."; "Plaintiff accuses Defendant of willfully infringing on its '616 Patent. In response, Defendant submitted an exculpatory opinion as to infringement by outside counsel Stimpson. In doing so, Defendant waived its attorney-client privilege and work product confidentiality as to all other communications and documents given to Defendant on the same subject matter as established by Echostar. The court concludes that this waiver, while not extending to trial counsel's communications and work, extends to Siff's presuit communications and work here.")

Case Date Jurisdiction State Cite Checked
2018-06-22 Federal MI

Chapter: 26.304

Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date Jurisdiction State Cite Checked
2017-08-28 Federal MI

Chapter: 26.304

Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date Jurisdiction State Cite Checked
2017-08-28 Federal MI

Chapter: 26.304

Case Name: Doe v. Baylor University, 2017 U.S. Dist. LEXIS 127509 (W.D. Tex. Aug. 11, 2017)
(holding that Pepper Hamilton's internal investigation into Baylor's Title IX compliance issues deserved privilege protection, but that the client waived that privilege, and deserved work product protection which Baylor did not waive and which plaintiffs could not overcome; not explaining in detail what communications or documents would be protected only by the privilege and not also by the work product doctrine, and therefore discoverable; in explaining the court's conclusion about Baylor waiving its privilege protection, not identifying the privileged communications Baylor actually disclosed; "In May 2016, a few months after this amendment, Baylor released two documents summarizing the results of the Pepper Hamilton investigation, a thirteen-page summary of the investigation and its conclusions entitle 'Findings of Fact,' and another ten-page list of recommendations titled 'Report of External and Independent Review, Recommendations.' (quoting Baylor's statement that its interim president 'would like to reiterate that the Findings of Fact fully reflect the themes, core findings and failings identified in the investigation'))"; "In other words, the documents summarize the complete course of previously confidential communications between Baylor and Pepper Hamilton. The Findings of Fact document even connects several specific factual findings to Pepper Hamilton. . . . As just one example, the findings explain that Pepper Hamilton found instances of university administrators 'directly discouraging complainants from reporting or participating in student conduct process' and that, in one instance, an administrator's actions 'constituted retaliation against a complainant for reporting sexual assault. . . .' The Shillinglaw answer includes even more specific details, going so far as to quote text messages and conversations by Baylor personnel about reports of sexual assault [these might have been historical non-privileged communications, not privileged communications involving Pepper Hamilton lawyers] and explain that these conversations were uncovered by Pepper Hamilton in the course of its investigation. . . . The Recommendations document then details over ten pages of guidance and advice provided by legal counsel. . . . These disclosures are far from a generic statement that Baylor sought legal advice on Title IX compliance."; "Plaintiffs argue that three disclosures by Baylor constituted waiver of attorney-client privilege. First, Plaintiffs argue that Baylor waived its attorney-client privilege when it released the Findings of Fact and Recommendations in May 2016. Second, Plaintiffs point to disclosures made in a filing by Baylor regents in Shillinglaw v. Baylor University, et al., No. DC-17-01225 (Dallas Cty. Dist. Ct.), where, for example, the regents quoted text message exchanges and paraphrased conversations in which Baylor personnel discussed an alleged rape by a football player and a gang rape reported to athletic staff. . . . The filing explains that all facts and evidence discussed were revealed by Pepper Hamilton's investigation. . . . Third, Plaintiffs argue that former Baylor regents were also briefed by Pepper Hamilton about details of the investigation that have since been kept confidential. . . . "; "These disclosures were intentional and together provide substantial detail about both what Baylor and its employees told Pepper Hamilton and what advice Baylor received in return. After carefully reviewing the documents disclosed, the Court finds that they are much more akin to those made in cases where waiver was found, than those where no waiver was found. Compare Nguyen, 197 F. 3d at 207 & n.17 (finding waiver where deposition questions to executives 'elicit[ed] information about the substance of [attorney-client] communication, touching on the directions given to counsel and the legal materials reviewed in addressing the question presented'); In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 462 (S.D.N.Y. 1996) (finding waiver where an '85-page report for [a client] summarize[ed] in detail the facts uncovered by the law firm in the course of its investigation'); with YETI Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 8677303, at *1 (W.D. Tex. Dec. 30, 2016) (finding no waiver where a single email produced in discovery stated that '[w]e believe and our attorney has confirmed that we are not infringing'); Nat'l W. Life Ins. Co. v. W. Nat'l Life Ins. Co., No. A-09-CA-711 LY, 2010 WL 5174366, at *7 (W.D. Tex. Dec. 13, 2010) (finding no waiver where 'communications merely note that they have sought advice from their attorneys . . . regarding [a] name change' and 'do not disclose the confidential advice and the opinions of their legal counsel')."; rejecting Baylor's argument that it had disclosed only facts, not privileged communications; inexplicably seeming to equate the disclosure of facts with the disclosure of communications, apparently because the facts must have been disclosed in privileged communications; "Baylor argues that waiver results only from revealing confidential communications, not underlying facts, and asserts that the Findings of Fact and Shillinglaw answer do not reveal the communication themselves. The documents themselves contradict this argument. The Findings of Fact reveal that all findings were the result of Pepper Hamilton's investigation – a 'detailed, thorough and rigorous' investigation based on 'unfettered access to personnel and data.'. . . Contrary to Baylor's assertion, this connection between Pepper Hamilton and the thirteen pages of findings 'reveals' what facts Baylor provided to Pepper Hamilton, not just the underlying facts themselves. In other words, the Findings of Fact are a 'publication of evidence of the communications.'. . . The exact contents of the communications need not be revealed to constitute waiver. See, e.g. In re Kidder, 168 F.R.D. at 468 (finding waiver of the attorney-client privilege where a report made a factual summary and paraphrased interviews conducted by attorneys); Nguyen v, 197 F.3d at 207 (affirming a district court's finding of waiver where executives recounted communications with attorneys in depositions. Similarly, in Shillinglaw, the answer explains that the Pepper Hamilton investigation uncovered the detailed evidence discussed in the answer – again, revealing what was communicated by Baylor and its personnel to Pepper Hamilton."; "Relatedly, Baylor argues that because the Findings of Fact and Recommendations were drafted for the express purpose of public release, they can reveal no confidential communications. This argument is both unconvincing and unsupported by case law. Baylor chose to publicly release a detailed summary of Pepper Hamilton's investigation that disclosed, among other things, attorney-client communications. [the opinion does not identify such privileged communications] While the information contained in these summaries was previously confidential, Baylor's decision to prepare and release a summary of those communications indicates its intentional waiver of that confidentiality. The logical extension of Baylor's argument is that the creation and public release of any document discussing attorney-client communications, no matter how detailed or self-serving, would not constitute waiver. That cannot be the case."; "Next, Baylor argues that generic statements about consulting with an attorney do not constitute waiver. But generic statements are not at issue here. Instead, the thirteen pages of Findings of Fact and ten pages of Recommendations purport to summarize the entire investigation by Pepper Hamilton – both the information provided by Baylor and the factual and legal conclusions that resulted from it.") (emphases added)

Case Date Jurisdiction State Cite Checked
2017-08-11 Federal TX
Comment:

key case


Chapter: 26.304

Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
("The Court begins by noting that attorney-client privilege 'only protects disclosure of communications; it does not protect disclosure of the underlying facts.'. . . Thus, Banneker could, through a well-written interrogatory, request the disclosure of all facts unearthed during the 51 witness interviews and WMATA would have no legitimate basis to refuse to respond. Banneker need not draft such an interrogatory, however, because the Court finds WMATA has waived the attorney-client privilege with respect to the interview memoranda."; "As originally commissioned, the Bondi Report was intended to be an internal document for WMATA's purposes and not slated for public disclosure. Upon receipt of the Bondi Report, the WMATA Board decided to release it to the public in its entirety. By disclosing the Bondi Report, WMATA chose to disclose the legal and factual conclusions that were contained in the report and, therefore, waived any claim of attorney-client privilege that existed with respect to the Bondi Report itself. The Court must now consider whether the public disclosure of the Bondi Report also resulted in subject-matter waiver of the attorney-client privilege covering the interview memoranda used to compile the report."; "The Court finds that the waiver of privilege as to the Bondi Report was intentional. . . . the Bondi Report cites extensively to the interview memoranda throughout the entirety of the document. The Court notes multiple references to at least 23 different witness interviews. Additionally, WMATA has not argued that the interview memoranda contain information outside the scope of the investigation or Bondi Report."; "'Ms. Rockwood notes in her declaration that the references to the interview memoranda in the Bondi Report were intended only for use by Cadwalader. . . . However, WMATA failed to remove the references and citations from the version of the Bondi Report that was made available to the public.'"; "WMATA has not zealously protected the information contained in the interview memoranda. Instead, WMATA has permitted direct citation and reference to confidential communications to be disclosed publically in the Bondi Report. WMATA has also used the Bondi Report to its advantage in this litigation. Fairness dictates that if WMATA is able to use the Bondi Report and facts disclosed in that report to support its claims and defenses, then Banneker is entitled to the remaining facts and information contained in the interview memoranda that were not included in the Bondi Report. The intent of subject matter waiver is to prevent a party from selectively disclosing information and documents that would otherwise be privileged to gain a tactical advantage. WMATA cannot both benefit from the disclosure of the Bondi Report and prevent further disclosure of the remaining information in the interview memoranda.")

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC

Chapter: 26.304

Case Name: Dyson, Inc. v. Sharkninja Operating LLC, Case No. 14-cv-779, 2017 U.S. Dist. LEXIS 14434 (N.D. Ill. Feb. 2, 2017)
("Courts have followed Winbond [Winbond Elecs. Corp. v. Int'l Trade Comm'n, 262 F.3d 1363, 1375 (Fed. Cir.), opinion corrected, 275 F.3d 1344 (Fed. Cir. 2001)] and found waiver of attorney-client privilege when declarations based on attorney advice were submitted to the USPTO to obtain a certificate of correction.")

Case Date Jurisdiction State Cite Checked
2017-02-02 Federal IL

Chapter: 26.304

Case Name: EEOC v. Sterling Jewelers, Inc., 08-CV-0706-RJA-MJR, 2017 U.S. Dist. LEXIS 3011 (W.D.N.Y. Jan. 3, 2017)
(analyzing the waiver implications of defendant's inadvertent production of over 1,000 documents; the Special Master found a waiver because defendant had waited too long to retrieve the documents; also noting that the defendant quoted some of the privileged documents of the subject matter waiver; "Here, the privileged documents themselves were not publically disclosed or filed. However, in the course of appealing the denial of the motion to vacate, Sterling publically filed the Class Determination Award, which contained direct quotations from three of the privileged documents. In doing so, Sterling made no attempt to protect or limit dissemination of that privileged information. Indeed, Sterling has put forth no evidence that it sought leave to file the Class Determination Award under seal or in camera, or that it attempted to redact those portions of the Class Determination Award which quoted directly from the privileged documents. Therefore, even though the initial disclosure of the documents was inadvertent, the subsequent public disclosure of some of the information contained in the documents, during the course of the appeal, was not. That information can no longer be considered confidential. For this reason, and consistent with the case law discussed above, the Court finds that Sterling has waived any privilege with respect to those portions of the July 2006 Compliance Report, the Post-Merit Field Operations EEOC Analysis, and the Merit Payout Alternative Report quoted in the Class Determination Award.")

Case Date Jurisdiction State Cite Checked
2017-01-03 Federal NY

Chapter: 26.304

Case Name: Father Doe v. Phillips Exeter Academy, Civ. No. 16-cv-396-JL, 2016 U.S. Dist. LEXIS 141877 (D.N.H. Oct. 13, 2016)
(finding that defendant Phillips Exeter Academy could not successfully claim privilege protection for a lawyer's investigation into possible sexual misconduct by a student; noting that defendant called the lawyer an "independent investigator," which meant that the lawyer was not assisting the defendant's lawyer in providing legal advice; also finding an implied waiver because the defendant relied on the investigation report in disciplining a student; also finding that defendant waived any possible privilege protection by disclosing portions of the investigation report to parents; inexplicably failing to deal with the work product doctrine; "Even had PEA not put the reports into issue in this litigation, PEA waived any privilege by disclosing their contents to third parties -- specifically, the Does -- and in filings with this court. . . . Dean Mischke disclosed portions of the reports to John Doe's parents before this litigation began. On March 3, 2016, Dean Mischke emailed Father Doe to set up a phone call 'to review the general findings of Ms. McGintee's investigation . . . .' Not 'want[ing] to be cagey about the conclusion' of Attorney McGintee's report, Dean Mischke disclosed Attorney McGintee's conclusion that 'while she has concerns about [John Doe], his attitude and his lack of reading the situation as well as not obtaining expressed consent early on, concludes no malice and no forcible action.' Id. During the ensuing phone call, plaintiffs allege, Dean Mischke also disclosed certain of Jane's allegations. . . . PEA further described the reports' contents -- including Attorney McGintee's conclusions -- in several filings with this court, including Dean Mischke's declaration and its proposed findings of fact and conclusions of law filed in advance of a subsequently-cancelled hearing on the plaintiffs' motion for a preliminary injunction.")

Case Date Jurisdiction State Cite Checked
2016-10-13 Federal NH

Chapter: 26.304

Case Name: Financial Guaranty Insurance Co. v. The Putnam Advisory Co., LLC, 12 Civ. 7372, 2016 U.S. Dist. LEXIS 33352 (S.D.N.Y. March 15, 2016)
(finding that the plaintiff waived any otherwise available attorney-client privilege and work product protection for documents prepared by a consultant, and which the plaintiff referred to and cited in its complaint and in Second Circuit briefing; noting that referring to the consultant's work in the complaint would not have caused a waiver by itself, but that the waiver came from reliance in court; finding that the scope of the waiver can not extend beyond documents referred to in the complaint; "Lastly, Putnam seeks the production of an economic analysis commissioned by FGIC for this litigation. Although expert reports and other such documents prepared for the purpose of litigation are normally covered by the attorney-client and work product privileges, Putnam contends that FGIC waived any such protection when it cited to and quoted from the analysis in the SAC, and when it used the report in its Second Circuit briefing."; "In Paragraph 122 of the SAC, FGIC declares that it retained a firm of economic analysts to assess the likelihood that a suspicious pattern of referenced securities in Pyxis and other related CDOs could have occurred by chance, rather than by design. That paragraph also includes three bullet-pointed quotations from the analysis, concluding that the pattern 'may indicate that the portfolio selection by independent portfolio managers was influenced by an external factor,' that 'the probability of this happening by chance across independent portfolio managers is less than 1 in a billion,' and that the likelihood was similar to that observed in cases involving fraudulent options backdating. The analysis was referenced in order to show that the selection of financial instruments in Pyxis' portfolio was in fact conducted in conjunction with Magnetar Capital LLC ('Magnetar'), a hedge fund with a short position in Pyxis, with the goal of having Pyxis fail, creating a profit for Magnetar. See id. FGIC also referred to the report in its briefing before the Second Circuit."; "'Although FGIC did not directly cite to Paragraph 122 of the SAC in its Second Circuit briefing, it does repeatedly assert that it had independently confirmed without discovery that Pyxis' collateral was not selected independently, but. Rather for Magnetar's Benefit, a clear reference to the economic analysis.'")

Case Date Jurisdiction State Cite Checked
2016-03-15 Federal NY

Chapter: 26.304

Case Name: Hollis v. O'Driscoll, No. 13 Civ. 01955 (AJN), 2013 U.S. Dist. LEXIS 83885, at *8, *8-9, *9-10 (S.D.N.Y. June 11, 2013)
(holding that a pro se respondent waived the possible privilege protection for an attachment to her answer, which was a timeline created after she spoke with a lawyer she ultimately did not hire; rejecting the pro se respondent's privilege claim after she hired a lawyer; "To the extent that Respondent now realizes that she may have made a mistake in choosing to submit her timeline to the Court, such after-the-fact regrets do not alter the analysis regarding whether she waived the privilege. Respondent cites no authority for the proposition that strategic errors committed by a party while proceeding pro se may be corrected nunc pro tunc after the party has obtained counsel to advise them on what, in retrospect, may have been an unwise course of action."; "Respondent argues that she did not waive the attorney-client privilege because she did not know or fully understand the nature of the privilege or know that she was waiving it. Respondent cites no case law -- and the Court has found none -- to support her argument that a party, whether proceeding pro se or represented by counsel, must thoroughly understand the nature of the attorney-client privilege before it can be waived. Indeed, some authority explicitly holds to the contrary. See generally 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 511App.01[2] (2013) ('[K]knowledge or lack of knowledge of the existence of the privilege appears to be irrelevant'); accord In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 468 (S.D.N.Y. 1996) (Waiver may take place even if the disclosing party does not 'intentionally relinquish[] a known right.'); see also Weinstein's § 511.02."; "Respondent quotes the definition of 'waiver' in Black's Law Dictionary, which speaks of 'voluntary relinquishment' of a legal right of which the party has 'knowledge.'. . . But Judge Weinstein's treatise, as well as related case law, makes clear that this 'traditional doctrine' of waiver does not apply in the confidential privilege context.")

Case Date Jurisdiction State Cite Checked
2013-06-11 Federal NY B 4/14

Chapter: 26.304

Case Name: Belmont Holdings Corp. v. SunTrust Banks, Inc., 1:09 cv 1185 WSD, 2012 U.S. Dist. LEXIS 181853, at *13 (N.D. Ga. Nov. 19, 2012)
("[A]ssuming the communications between Torres, Worms, and Plaintiff's counsel were protected, the Court finds that Plaintiff waived the protections provided by the work-product doctrine and attorney-client privilege regarding their investigators' knowledge and notes by intentionally and selectively introducing testimony by Torres and Worms in their pleadings during this litigation regarding (i) how the information in the Amended Complaint was collected, (ii) how it was communicated to Plaintiff's counsel, and (iii) what Plaintiff's investigators communicated to Plaintiff's counsel before the Amended Complaint was drafted.")

Case Date Jurisdiction State Cite Checked
2012-11-19 Federal GA B 9/13

Chapter: 26.305

Case Name: In the Matter of the Estate of Richard L. DeGroat, C.A. No. 12738-MZ, 2017 Del. Ch. LEXIS 762 (Del. Ch. Oct. 2, 2017)
(holding that a litigant who quoted and relied on her lawyer's advice waived the attorney-client privilege protection; "In this estate matter, a child of the decedent's first marriage questions the extent to which the decedent intended to benefit the decedent's second ex-wife. The petitioner alleges that in the decedent's final years, the second ex-wife utilized a power of attorney to name herself beneficiary of several of the decedent's accounts, influenced the decedent to execute a deed to convert co-ownership of real property with the decedent from tenants in common to joint tenants with the right of survivorship, and sold the property and retained all the proceeds while the decedent was still alive."; "In her deposition, Lucinda defended the 2013 deed by asserting she and Decedent were following Mr. Ferry's instructions. Lucinda testified that Mr. Ferry told her and Decedent that their joint ownership of the house 'disappeared' after their divorce, and that upon learning that, she and Decedent agreed to restore joint ownership. Lucinda said Mr. Ferry also explained to her that half the sale proceeds of the house would go to Lucinda and half would go to Decedent's estate. She testified that Mr. Ferry told her that Mr. Ferry could represent both Lucinda and Decedent in the deed preparation so long as Decedent was not otherwise represented by counsel. Lucinda explained, 'Tom Ferry was going to take two people who wanted to do a very simple thing and take care of it. . . . There was nothing nefarious about this.' She stated that Decedent obtained a competency evaluation because Mr. Ferry required it as 'a matter of course for him' for clients 'of a certain age.' Lucinda testified that after Decedent got the competency letter, Lucinda wrote Mr. Ferry and said, 'Richard has it now so we can set an appointment to just correct this issue.'"; "Lucinda's explanation as to how she learned she no longer had an interest in the Property, why Decedent obtained a competency evaluation, and the circumstances under which the January 2013 deed was executed, relies heavily on Mr. Ferry's alleged advice to Lucinda. Lucinda injected Mr. Ferry's representation into the litigation, and the veracity of Lucinda's factual assertions may only be fully understood by examining Mr. Ferry's file. Under the second prong of the 'at issue' exemption, Lucinda may not assert Mr. Ferry's advice and direction as an explanation for her conduct without permitting Michael to inquire into that advice. This is true for any time period preceding execution of the deed. Because Lucinda placed all her communications about the deed with Mr. Ferry at issue, I need not determine the applicability of Delaware Rule of Evidence 502(d)(5) or whether Lucinda waived the privilege by producing some documents. I recommend the Court grant Michael's motion to compel.")

Case Date Jurisdiction State Cite Checked
2017-10-02 State DE

Chapter: 26.305

Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 3:17-cv-00939-WHA (JSC), Dkt. No. 1060 (N.D. Cal. Aug. 14, 2017)
(holding that Uber cannot disclaim privilege protection for an obviously privileged communication, so its disclosure of that communication resulted in a subject matter waiver under Rule 502; "In a case stuffed with surprising scenarios yet another has arisen: the party that would normally assert that a conversation between its in-house litigation counsel and its top executives regarding ongoing litigation is protected by the attorney-client privilege is denying any such protection. The Court is thus in the unusual situation of having to adjudicate whether a conversation is privileged notwithstanding the purported privilege holder's insistence that it is not."; "The question remains whether that conversation, or at least the communications regarding why Mr. Levandowski took Google's information and his decision to invoke the Fifth Amendment, were protected by Uber's attorney-client privilege. Waymo, as the party asserting that the privilege applies, bears the burden of proof. . . . the Court finds that the record overwhelmingly compels the finding that Mr. Kalanick's testimony regarding that conversation was protected by Uber's attorney-client privilege."; "Further, during that conversation Ms. Padilla actually advised Mr. Levandowski (as an Uber executive) and Mr. Kalanick (as Uber's CEO) as to what Uber wanted him to do in this litigation; namely, testify. This, too, supports the Court's finding that the communications during that meeting were for the purpose of enabling Uber to obtain legal advice."; "Ms. Padilla's testimony that she did not believe the conversation to be privileged (although, again, she does not then explain why she was present) does not make the conversation not privileged. If that was all it took to make a communication that has all the hallmarks of a privileged communication not privileged then the rule about not using the privilege as a shield and a sword would be meaningless. Under Uber's theory all a party would have to do is cherry pick the communications they want the opposing party to see and identify those as not privileged, all the while being able to shield other not so favorable communications from disclosure even if they are about the very same topic by claiming those communications privileged. The law of privilege is not that unfair."; "By electing to disclose Uber's communications between Mr. Levandowski, Mr. Kalanick and Ms. Padilla Uber deliberately waived its attorney-client privilege with respect to those communications. . . . The waiver extends to undisclosed communications regarding the subject matter of the disclosed communications. See Fed. R. Evid. 502(a)."; "Uber nonetheless insists that the Court should not apply a subject matter waiver because its disclosure of privileged communications (if any) was inadvertent as it had a good faith belief that the communications were not privileged. The Court disagrees."; "Even if the Court found that Uber had a good faith belief that Mr. Levandowski's communications with Ms. Padilla and Mr. Kalanick were not privileged (and the Court does not so find), Uber offers no support for its assertion that a lawyer's incorrect advice on whether communications are privileged constitutes inadvertence for purposes of Rule 502(b). Moreover, as Uber did not take any reasonable steps to prevent the disclosure, the second required element of Rule 502(b) is also not met. Finally, at oral argument the Court offered Uber the opportunity to withdraw its waiver and assert the privilege over the communications, in other words, 'to rectify the error.' Uber declined. Thus the third element of Rule 502(b) is not satisfied. Subject matter waiver applies."; "The next step is for the parties to provide supplemental briefing on the scope of Uber's waiver. As Mr. Kalanick's deposition demonstrates, however, it appears that the scope of the waiver may extend to communications made by and to Mr. Levandowski while his personal attorneys were present. He thus may have an individual attorney-client privilege in those communications, although he did not assert such a privilege as to the communications at issue on this motion. The parties must therefore address whether (1) Mr. Levandowski has an individual attorney-client privilege in communications that would be swept within the scope of Uber's subject matter waiver, (2) Uber can waive the privilege with respect to those communications if Mr. Levandowski has an individual attorney-client privilege, and (3) if Uber cannot, whether in fairness Uber should be allowed to waive the privilege with respect to the communications in which Mr. Levandowski does not claim an individual privilege. The parties, including counsel for Mr. Levandowski, shall meet and confer, with the assistance of the Special Master if necessary, and propose a process for addressing these questions.")

Case Date Jurisdiction State Cite Checked
2017-08-14 Federal CA

Chapter: 26.305

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 16, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part II"

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017). Another court dealt with a similar situation about two weeks later.

In Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017), Title VII plaintiffs sought to discover an outside lawyer’s report produced after that lawyer investigated an earlier sexual harassment claim against defendant's managing partner. The court found that the report deserved privilege protection, but that the managing partner waived that protection in deposition testimony describing the report's recommendations and his compliance with them. As the court put it, "[b]y discussing [the investigating lawyer's] specific recommendations – that [the managing partner] stay away from [the company] for six months, pay a $10,000 fine, and see a therapist – [he] revealed [the lawyer's] key conclusions and thus disclosed the 'gist' of the report." Id. at *11-12. Based on this waiver, the court ordered the report produced.

Most courts are more forgiving when considering the waiver implications of fast-paced deposition testimony. But the managing partner defendant presumably could have avoided a waiver risk by declining to testify about the report's recommendations – and instead simply describing what he did after the company received the report. Corporations' lawyers should educate their clients' executives and employees about the dispositive distinction between (1) describing the companies' or their own past actions or future intended actions (without attributing them to lawyers' advice), and (2) disclosing privileged communications' content. The former does not waive anything, while the latter waives privilege protection and may trigger a subject matter waiver. Next week's Privilege Point discusses subject matter waiver issues.

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 26.305

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 23, 2017 (PRIVILEGE PONT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 26.305

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 16, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part II"

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017). Another court dealt with a similar situation about two weeks later.

In Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017), Title VII plaintiffs sought to discover an outside lawyer’s report produced after that lawyer investigated an earlier sexual harassment claim against defendant's managing partner. The court found that the report deserved privilege protection, but that the managing partner waived that protection in deposition testimony describing the report's recommendations and his compliance with them. As the court put it, "[b]y discussing [the investigating lawyer's] specific recommendations – that [the managing partner] stay away from [the company] for six months, pay a $10,000 fine, and see a therapist – [he] revealed [the lawyer's] key conclusions and thus disclosed the 'gist' of the report." Id. at *11-12. Based on this waiver, the court ordered the report produced.

Most courts are more forgiving when considering the waiver implications of fast-paced deposition testimony. But the managing partner defendant presumably could have avoided a waiver risk by declining to testify about the report's recommendations – and instead simply describing what he did after the company received the report. Corporations' lawyers should educate their clients' executives and employees about the dispositive distinction between (1) describing the companies' or their own past actions or future intended actions (without attributing them to lawyers' advice), and (2) disclosing privileged communications' content. The former does not waive anything, while the latter waives privilege protection and may trigger a subject matter waiver. Next week's Privilege Point discusses subject matter waiver issues.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 26.305

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 26.305

Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)
(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; holding that the former employee waived privilege protection by disclosing the logistics of the meeting; "[T]he Court finds that Virgen's testimony did not constitute a voluntary waiver of the attorney-client privilege. It was unclear whether Virgen was stating that he had a hard time explaining himself to Defendant's attorney present at the deposition or whether he was referring to his prior conversation with Driscoll [Café's lawyer]. This statement is not equivalent to disclosing the substance of what he communicated to Driscoll. Virgen's statements regarding the circumstances of his conversation with Driscoll also do not waive the privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal OR

Chapter: 26.305

Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)
(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; also holding that the former employee's testimony that he had not disclosed to his lawyer some fact did not result in a waiver; "the Court agrees with Defendant that its counsel immediately objected to Plaintiff's attorney's question and that Virgen's single word response did not constitute a waiver. Defendant's attorney's timely objection constitutes a reasonable step to prevent and rectify inadvertent disclosure under Federal Rule of Evidence 502(b). Accordingly, the Court finds that Virgen's disclosure did not operate as a waiver.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal OR

Chapter: 26.305

Case Name: Sprint Communications Co., L.P. v. Comcast Cable Communications, LLC, Case No. 11-2684-JWL, 2017 U.S. Dist. LEXIS 26271 (D. Kan. Feb. 23, 2017)
("A party waives the attorney-client privilege if it discloses the substance of an otherwise-privileged communication. Comcast makes no serious argument that it did not waive privilege by its January 2017 production or by allowing Finnegan's recent testimony. Comcast does note that the judge in the Pennsylvania case affirmatively determined that he need not -- and did not -- decide the question of waiver, but that fact has no bearing on the waiver question which has now come before this court."; "Sprint also argues Finnegan's recent deposition testimony concerning Comcast's due diligence in acquiring defensive patents revealed attorney-client communications. Comcast (again) does not address this assertion in its response brief. The court agrees with Sprint."; "The court has little trouble concluding Comcast's recent disclosure of information in the Pennsylvania case waived the attorney-client privilege. Perhaps the more significant question, however, is the scope of the waiver. Sprint asserts the disclosures waive privilege for all 'information concerning the same subject matter.' Specifically, Sprint argues Comcast must produce all documents it possesses that (1) mention Sprint and concern 'Comcast's patent acquisition[s],' or (2) reflect 'the timing and nature of any Comcast employee's belief that Comcast was preparing for or otherwise anticipated litigation with Sprint.'"; "Comcast has asserted privilege over information on the same subjects, during both depositions and discovery responses. Fairness requires Comcast to disclose all documents on these two subjects 'in order to prevent a selective and misleading presentation of evidence' in this case."; "The court therefore concludes Comcast waived privilege over, and must immediately produce, unredacted copies of all documents not previously produced that (1) mention Sprint and also Comcast's patent acquisitions or (2) reflect the timing and nature of any Comcast employee's belief that Comcast was preparing for or otherwise anticipated litigation with Sprint. As earlier indicated, Sprint has asked that such documents be produced to the court for in camera review. But as Comcast notes, caselaw requires the court to 'have some bases or grounds for conducting an in camera review.' Although the decision to review documents in camera is within the court's sound discretion, such review is not 'to be routinely undertaken.' The court finds no basis on which to conduct an in camera review over all the documents affected by Comcast's subject-matter waiver. Thus, at this time (though without foreclosing the future possibility if issues arise as to specific documents), the court declines to review any documents in camera.")

Case Date Jurisdiction State Cite Checked
2017-02-23 Federal KS

Chapter: 26.305

Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640 (D. Ariz. Dec. 21, 2016)
("In contrast to these cases, the delay on which Plaintiffs rely with respect to Exhibits A and B was a matter of hours. Objections were made while the deposition was still underway. With respect to Exhibits D and E, a reservation of the privilege objection was immediately lodged and Plaintiffs' counsel stated that a later objection would be fine. Given these facts, the Court cannot conclude that Defendants delayed unreasonably in raising their privilege objections. Other cases have held that objections made during a deposition, even if after some questioning on privileged documents, do not waive the privilege.")

Case Date Jurisdiction State Cite Checked
2016-12-21 Federal AZ

Chapter: 26.305

Case Name: Certain Underwriters at Lloyd's London v. National Railroad Passenger Corp., 14-CV-4717 (FB), 2016 U.S. Dist. LEXIS 164204 (E.D.N.Y. Nov. 17, 2016)
(using Federal Rule of Evidence 502; holding that a Rule 502 order indicating that a litigant would not waive its privilege by producing privileged communications to the adversary did not allow the producing party to claw-back documents about which witness testified without an objection; "In 2015, pursuant to Rule 502(d) of the Federal Rules of Evidence ('FRE'), the Court entered a protective order, which provides, among other things, that the parties will not 'waive[] or forfeit[] . . . any claim of privilege or work-product protection' by 'disclos[ing] or mak[ing] available information' that is 'later identified to be subject to [such a claim],' unless the producing party affirmatively uses that information in the litigation by 'motion, pleading or otherwise[.]'; "This Court thereafter construed the non-waiver provision in the protective order to provide that, regardless of the degree of care taken, a party does not waive its privilege merely by producing documents in discovery."; "By their terms, Rules 502(d) and (e) apply only to waiver in connection with disclosures, and say nothing of waiver by other means. Accordingly, while an appropriately worded protective order may prevent waiver due to a producing party's disclosure of privileged information, that party's subsequent failure to timely and specifically object to the use of that information -- during a deposition, for example -- can waive any applicable privilege."; "Amtrak has waived privilege and work-product protection for Exhibits 26 and 44 by failing to seek to preclude their introduction and use at the Noonan deposition. Though Amtrak is arguably correct that the protective order does not provide for waiver based on the mere disclosure of privileged information, nothing in the protective order speaks to the situation at issue here, where Amtrak failed to timely and specifically object to a party's use of privileged material. LMI introduced both exhibits at the Noonan deposition and questioned Noonan about them for several pages of transcript."; "That Amtrak removed Exhibit 26 from its privilege log after a detailed review also counsels in favor of finding waiver. This was no mere inadvertence at work, brought on by the constraints of high-volume document productions; to the contrary, Amtrak's decision to withdraw its claim of privilege for Exhibit 26 was an explicit waiver after considered legal analysis."; "Amtrak seems to argue that the non-waiver provision in the instant case permits the parties to assert and retract claims of privilege at will . . . but this goes too far. Case law and commentary make clear that Rule 502(d) was intended to make discovery issues relating to privilege and waiver more predictable, not insulate parties entirely from the possibility of waiver . . . Amtrak's reading of the non-waiver provision would yield an absurd result, permitting Amtrak to claw back documents, even those used by LMI in depositions and court filings, at any time -- conceivably, even through the close of litigation. The protective order, which was entered by this Court, does not countenance such gamesmanship.")

Case Date Jurisdiction State Cite Checked
2016-11-17 Federal NY

Chapter: 26.305

Case Name: Regions Bank v. Kaplan, Case No. 8:12-CV-1837-T-17MAP, 2016 U.S. Dist. LEXIS 65650 (M.D. Fla. May 18, 2016)
(analyzing the following deposition questions and answers: "(Q) In speaking with Mr. Parrish, were you seeking legal advice? Again, not telling me what was talked about, but in speaking with him, were you seeking legal advice?"; "(A) No."; "(Q) Okay. What did Mr. Parrish tell you?"; "(A) He said -- I was telling him about the deal, and he said it sounded too good to be true."; finding that plaintiff sought protected legal advice; "Defendant Kaplan's brief testimony reveals the mental impression of the attorney Defendant Kaplan was consulting. In light of the overall purpose of the meeting, Defendant Kaplan's knowledge that Mr. Parrish was a lawyer, the fact that Defendant Kaplan was charged a fee for the meeting, what Mr. Parrish said in that meeting arguably constitutes legal advice rather than business advice."; "In the context of an attorney-client privilege issue arising at deposition, it is not unusual for an individual client to have an opinion different from his counsel as to the same communication. Given the context, with Defendant's counsel immediately interposing a privilege objection that overrides an individual's testimony, the Court views the objection as providing appropriate guidance on an arguable issue.")

Case Date Jurisdiction State Cite Checked
2016-05-18 Federal FL

Chapter: 26.305

Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
("[T]he Court's Civil Chambers Rules do not require counsel to call Chambers when a privilege dispute arises during a deposition. The parties may call Chambers, but they are not required to do so.")

Case Date Jurisdiction State Cite Checked
2016-02-02 Federal CA

Chapter: 26.305

Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
(analyzing defendant's instructions to various witnesses not to answer deposition questions; "During Chris Bennett's September 2, 2015 deposition, Plaintiffs asked the witness, "As you sit here today as General Manager of Real Estate Solutions for CoreLogic, does CoreLogic have a position with respect to whether or not metadata for photographs uploaded through its software should be preserved?'. . . 'I want to caution the witness with respect to the disclosure of attorney-client communications, but the witness can answer the question with that in mind.'. . . Mr. Bennett then responded, 'Other than what I've been told by legal counsel, I have no knowledge.'"; "Plaintiffs' Motion is denied on the basis it would be improper for Mr. Bennett, who was noticed for deposition in his individual capacity and not as a Rule 30(b)(6) representative of CoreLogic."; "It may have been proper for Mr. Bennett to answer the questions, 'Do you believe CoreLogic has a position with respect to whether or not metadata for photographs uploaded through its software should be preserved?'")

Case Date Jurisdiction State Cite Checked
2016-02-02 Federal CA
Comment:

key case


Chapter: 26.305

Case Name: Terrell v. Central Washington Asphalt, Inc., Case No. 2:11-cv-00142-APG-VCF, 2015 U.S. Dist. LEXIS 94047 (D. Nev. July 20, 2015)
("The CW defendants allowed questioning about the draft answers at the Simon and Davis depositions without any objection based on a privilege, even though the Rule 26(b)(5)(B) letter was mailed the day of the Simon deposition and the day before the Davis deposition. The CW defendants' counsel also questioned Davis on the draft answers. As a result, the CW defendants waived any privilege relating to the draft answers.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal NV

Chapter: 26.305

Case Name: Trustees of Boston University v. Everlight Electronics Co., Ltd., Consolidated Civ. A. No. 12-11935-PBS, Civ. A. No. 12-12326-PBS, Civ. A. No. 12-12330-PBS, 2015 U.S. Dist. LEXIS 68281 (D. Mass. May 27, 2015)
("Kuo chose to disclose information about Epistar's communications with Finnegan (1) in a deposition (2) in the presence of a Finnegan attorney (3) after speaking to a Finnegan attorney about whether the questions implicated privilege. All of these circumstances indicate that Epistar did not intend to keep these communications private.")

Case Date Jurisdiction State Cite Checked
2015-05-27 Federal MA

Chapter: 26.305

Case Name: John Wiley & Sons, Inc. v. Book Dog Books, LLC, 13 Civ. 816 (WHP) (GWG), 2014 U.S. Dist. LEXIS 63168 (S.D.N.Y. May 7, 2014)
(holding that disclosing privileged communication in a deposition caused a waiver; "In addition, even if defendants had shown that the communications between Smyres and Mooney were privileged, Smyres waived the privilege by testifying repeatedly and without objection about those conversations."; "The selective disclosure waiver doctrine is reflected in Rule 502(a) of the Federal Rules of Evidence."; "Here, the requirements of a Rule 502(a) waiver are satisfied. First, Smyres 'intentional[ly]' disclosed privileged information when he testified at his deposition about the communications that he had with Mooney regarding the Disclosure.")

Case Date Jurisdiction State Cite Checked
2014-05-07 Federal NY

Chapter: 26.305

Case Name: John Wiley & Sons, Inc. v. Book Dog Books, LLC, 13 Civ. 816 (WHP) (GWG), 2014 U.S. Dist. LEXIS 63168 (S.D.N.Y. May 7, 2014)
(holding that disclosing privileged communication in a deposition caused a waiver)

Case Date Jurisdiction State Cite Checked
2014-05-07 Federal NY

Chapter: 26.305

Case Name: Gardner v. Major Automobile Co., Inc., 11 Civ. 1664 (FB) (VMS), 2014 U.S. Dist. LEXIS 44877 (E.D.N.Y. March 31, 2014)
(addressing a general counsel's testimony as a Rule 30(b)(6) witness that he relied on an outside lawyer, but noting the defendant's disclaimer of any reliance on advice of counsel defense in finding that there had not been waiver; "Defendants counter that whatever Defendant Keltz's [General Counsel] deposition testimony, Defendants have no intention of asserting an advice-of-counsel defense or similar claim in this action such that Plaintiffs' allegation of an at-issue waiver is wrong. . . . Instead, Defendants explain that Defendant 'Major's defense here is that they did nothing wrong.'"; "Defendants' representation regarding its approach to this litigation is integral to the resolution of this dispute, and the Court finds no implied privilege waiver here in light of Defendants' representation. . . . Defendants' representation in this case that they will make no reliance defense assures . . . . Plaintiffs will not be disadvantaged before any factfinder by a lack of information relating to this topic.")

Case Date Jurisdiction State Cite Checked
2014-03-31 Federal NY

Chapter: 26.305

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 168187, at *9 (S.D.N.Y. Nov. 21, 2013)
("[T]his is a classic case in which the defendants seek to use privilege both as a sword and a shield and thus implicitly have waived any privilege that might have existed in other circumstances. By producing the Fajardo [member of legal team in underlying suit] email, discussing the January 15 Assembly meeting and vote at the sanctions hearing, by exploring the same subject during the trial testimony of Javier Piaguaje [defendant], by their motion for reconsideration of the sanctions ruling, and by their stated intention to offer testimony of Humberto Piaguaje [witness] and part of the minutes on the same subject, defendants have placed in issue exactly what happened on that occasion.")

Case Date Jurisdiction State Cite Checked
2013-11-21 Federal NY B 5/14

Chapter: 26.305

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *31 (E.D. Va. Dec. 3, 2012)
("[D]uring the 2009 hearing, Moazzeni described Krumbein's advice, complaining that Krumbein 'forced' him to seek a Chapter 13. While Moazzeni characterizes this as mere 'criticism' of Krumbein, that is an overgeneralization. By his description of the events, he has disclosed that Krumbein advised him to seek a Chapter 13 conversion. This is sufficient to waive the privilege as to Krumbein's advice during and leading up to those proceedings.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA

Chapter: 26.305

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *30-31, *31 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "While Moazzeni did not disclose any particular communication with Krumbein, he has several times disclosed such communications generally. When he asserts that Krumbein 'forced' him to seek conversion to Chapter 13, he is describing Krumbein's advice."; "[D]uring the 2009 hearing, Moazzeni described Krumbein's advice, complaining that Krumbein 'forced' him to seek a Chapter 13. While Moazzeni characterizes this as mere 'criticism' of Krumbein, that is an overgeneralization. By his description of the events, he has disclosed that Krumbein advised him to seek a Chapter 13 conversion. This is sufficient to waive the privilege as to Krumbein's advice during and leading up to those proceedings.")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 26.305

Case Name: Belmont Holdings Corp. v. SunTrust Banks, Inc., 1:09 cv 1185 WSD, 2012 U.S. Dist. LEXIS 181853, at *13 (N.D. Ga. Nov. 19, 2012)
("[A]ssuming the communications between Torres, Worms, and Plaintiff's counsel were protected, the Court finds that Plaintiff waived the protections provided by the work-product doctrine and attorney-client privilege regarding their investigators' knowledge and notes by intentionally and selectively introducing testimony by Torres and Worms in their pleadings during this litigation regarding (i) how the information in the Amended Complaint was collected, (ii) how it was communicated to Plaintiff's counsel, and (iii) what Plaintiff's investigators communicated to Plaintiff's counsel before the Amended Complaint was drafted.")

Case Date Jurisdiction State Cite Checked
2012-11-19 Federal GA B 9/13

Chapter: 26.305

Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Lawson waived its privilege during the depositions of Mr. Christopherson, Mr. Hager, and Mr. Lohkamp."; "The record thus establishes that Lawson has waived the attorney-client privilege with respect to the communications from Lawson's attorneys to Lawson concerning the development of RQC because it has allowed extensive, detailed questions on that subject." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 26.305

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 268-69 (E.D. Va. 2006)
("Whitehurst informed the other Council Members and the City Attorney as well as some persons who were not among the original recipients of the letter that he was going to reveal some of the contents of the letter more than twenty-four hours in advance. In the email, Whitehurst included passages from the letter, indicated what he was going to say at the meeting, and disputed the conclusions made by the City Attorney in the letter. At the public meeting, Whitehurst read statements from the letter and not one Council Member nor the City Attorney attempted to stop hi, cut him off, or otherwise note that the information was supposed to be privileged and confidential. '[I]f a client wishes to preserve the privilege . . ., he must take some affirmative action to preserve confidentiality . . . . Taking or failing to take precautions may be considered as bearing on intent.' FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 482 (E.D. Va. 1991). Despite the City's arguments that Whitehurst cannot alone waive the privilege for the City, the Council Members and the City Attorney should have acted to at least try and prevent the disclosure of the contents of the letter. Whether Whitehurst quoted from only two footnotes or not, the failure to object to his statements either before or at the meeting is highly prejudicial to the City's position on the existence of privilege. . . . An objection would have been a reasonable step to ensure confidentiality. Absent any such attempt, the Court cannot allow the defendants to shield this letter under the doctrine of attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2006-01-01 Federal VA

Chapter: 26.305

Case Name: In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal
Comment:

key case


Chapter: 26.307

Case Name: International Cards Co., Ltd. v. MasterCard International Inc., 13-CV-02576 (LGS) (SN), 2014 U.S. Dist. LEXIS 125370 (S.D.N.Y. Aug. 27, 2014)
("The next two sentences describe the substance of the two letters drafted by the Legal Department. While these sentences may constitute legal advice and thus may be privileged, the Court finds that MasterCard has waived any potential privilege. In the redacted version of Document 645 that MasterCard produced to ICC, MasterCard did not redact any text from the 'Actions Planned and Timeline' section of the October 26, 2012 entry on page M0102062. The first action point contains identical information regarding the substance of the two letters drafted by the Legal Department that MasterCard seeks to redact in Document 246. Thus, while the attorney-client privilege may apply here, it has been waived by MasterCard's disclosure of the communication to ICC.")

Case Date Jurisdiction State Cite Checked
2014-08-27 Federal NY

Chapter: 26.307

Case Name: Heglet v. City of Hays, Case No. 13-2228-KHV/KGG, 2014 U.S. Dist. LEXIS 35738, at *4, *7 8 (D. Kan. Mar. 19, 2014)
(holding that the defendant city waived its attorney-client privilege by producing notes regarding a discussion with a lawyer, because the notes reflected the substance of the conversation, not just the fact of the conversation; "The referenced document that had been placed in Plaintiff's personnel file and voluntarily produced in discovery was titled 'Time Line With Firma' and included an entry for May 10, 2012, written by Defendant Scheibler, which stated in part: 'I was contacted . . . by Peter Maharry and was questioned about an affidavit that Firma had signed in the Dryden lawsuit. . . . . I spoke with [attorney] John Bird and he agreed with concerns about confidentiality. John Bird spoke with Peter and then called me back and he stated that the City would be justified in moving forward.'. . . . The time line also indicates that Scheibler met with John Bird the next day and confirmed that Bird was 'ok' with Defendant City terminating Plaintiff's employment."; "The Court finds that the disclosure in this case included the substance of the attorney's conclusions. Although the time line entry is brief, there is a substantive recitation of the legal advice given to Defendants. . . . The entry indicates that Scheibler spoke with counsel regarding 'concerns about confidentiality,' and counsel agreed. .