Showing 249 of 249 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 Jurisidction State Cite Checked
2015-11-10 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; "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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2010-01-01 Federal

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2012-11-19 Federal GA B 9/13

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2006-01-01 Federal VA

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 Jurisidction 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. . . . Counsel also told Scheibler that 'the City would be justified in moving forward.'. . . This is not a simple disclosure that a consultation was obtained, but reveals the legal advice rendered. Thus, Defendants voluntary waived the privilege as a result of producing this document in this case, and the Plaintiff's motion is GRANTED on that basis.")

Case Date Jurisidction State Cite Checked
2014-03-19 Federal KS B 8/14

Chapter: 26.307

Case Name: Samaritan Alliance, LLC v. Ken. (In re Samaritan Alliance), Case No. 07-50735, Adv. No. 12-5009, 2013 Bankr. LEXIS 671, at *10 (E.D. Ken. Feb. 20, 2013)
("A party's failure to object to the use of a disclosed document as a deposition exhibit supports a finding of waiver.")

Case Date Jurisidction State Cite Checked
2013-02-20 Federal KY B 2/14

Chapter: 26.307

Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *12-13 (W.D. Va. June 28, 2012)
("Even assuming for the purpose of this Motion that these documents contained privileged information, any privilege was waived by their production to a third party. See Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 257-58 (W.D.Va. 1999); see also In re Grand Jury 83-2, 748 F.2d 871, 875 (4th Cir. 1984).")

Case Date Jurisidction State Cite Checked
2012-06-28 Federal VA

Chapter: 26.308

Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)
("In this case, Chapman voluntarily disclosed the contents of the so-called arbitration documents when, in response to discovery requests, he produced some of the documents, including a summary of the privileged matter, the recorded statement. Any argument by Chapman that this disclosure was inadvertent is unavailing, as Chapman did not notify Young of any purportedly erroneous disclosure or take steps to rectify an error. The Court finds that Chapman impliedly waived the attorney-client privilege attached to the recorded statement and that it would be manifestly unfair to Young were the Court not to require Chapman to produce the statement.")

Case Date Jurisidction State Cite Checked
2016-04-28 Federal KY

Chapter: 26.402

Case Name: Fifth Third Bancorp v. Certain Underwriters at Lloyd's, Case No. 1:14-cv-869, 2017 U.S. Dist. LEXIS 70639 (S.D. Ohio May 9, 2017)
("[T]he Underwriters are not entitled to any information relating to Suspicious Activity Reports ('SARs') that Fifth Third may have filed concerning Ross, because Fifth Third is prohibited from disclosing that type of information under the Annuzio-Wylie Anti-Money Laundering Act (the 'Act'). Under the Act and corresponding regulations, banks "are prohibited from disclosing either that [a] SAR has been filed or the information contained therein.'"; "There is no exception for disclosure of an SAR 'in the context of discovery in a civil lawsuit.'")

Case Date Jurisidction State Cite Checked
2017-05-09 Federal OH

Chapter: 26.402

Case Name: Alaska Elec. Pension Fund v. Bank of Am. Corp., 14-CV-7126 (JMF), 2016 U.S. Dist. LEXIS 158455 (S.D.N.Y. Nov. 16, 2016)
(analyzing but not reaching any conclusions about whether disclosure to the CFTC waived work product protection; acknowledging the effect of specific statutes covering some disclosure to bank regulators; "[T]here is no dispute that many of the materials sought by Defendants' lawyers in connection with the government investigations – constitute work product. Nor is there any contention that Defendants waived the protections of the doctrine by disclosing materials to the FRB, OCC, or DFS, their 'prudential' regulators, as the Financial Services and Regulatory Relief Act of 2006 explicitly provides, in relevant part, that submission 'of any information to . . . any Federal banking agency, State bank supervisor, or foreign banking authority for any purpose in the course of any supervisory or regulatory process of such . . . agency, supervisor, or authority shall not be construed as waiving, destroying, or otherwise affecting any privilege such person may claim with respect to such information under Federal or State law as to any person or entity other than such . . . agency, supervisor, or authority.' 12 U.S.C. § 1828(x)(1). (See Docket No. 290, at 9).")

Case Date Jurisidction State Cite Checked
2016-11-16 Federal NY

Chapter: 26.402

Case Name: Alaska Elec. Pension Fund v. Bank of Am. Corp., 14-CV-7126 (JMF), 2016 U.S. Dist. LEXIS 158455 (S.D.N.Y. Nov. 16, 2016)
(analyzing but not reaching any conclusions about whether disclosure to the CFTC waived work product protection; acknowledging the effect of specific statutes covering some disclosure to bank regulators; "[T]here is no dispute that many of the materials sought by Defendants' lawyers in connection with the government investigations – constitute work product. Nor is there any contention that Defendants waived the protections of the doctrine by disclosing materials to the FRB, OCC, or DFS, their 'prudential' regulators, as the Financial Services and Regulatory Relief Act of 2006 explicitly provides, in relevant part, that submission 'of any information to . . . any Federal banking agency, State bank supervisor, or foreign banking authority for any purpose in the course of any supervisory or regulatory process of such . . . agency, supervisor, or authority shall not be construed as waiving, destroying, or otherwise affecting any privilege such person may claim with respect to such information under Federal or State law as to any person or entity other than such . . . agency, supervisor, or authority.' 12 U.S.C. § 1828(x)(1). (See Docket No. 290, at 9).")

Case Date Jurisidction State Cite Checked
2016-11-16 Federal NY

Chapter: 26.402

Case Name: United States v. Heine, Case No. 3:15-cr-00238-SI-2, 2016 U.S. Dist. LEXIS 44397, at *33 34 (D. Ore. Mar. 31, 2016)
("The Bank responds that any disclosures made to the FDIC do not waive the attorney-client privilege because such disclosures are statutorily protected. The Court agrees based on 12 U.S.C. § 1828. . . . In addition, the FDIC may share otherwise privileged information with other federal government agencies without waiving any applicable privilege. . . . Thus, any statements made by the Bank to the FDIC or any documents provided by the Bank to the FDIC cannot constitute a waiver of the Bank's attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-03-31 Federal OR B 8/16

Chapter: 26.402

Case Name: In Re JPMorgan Chase Bank, N.A., No. 14-8015, 2015 U.S. App. LEXIS 14721 (1st Cir App. Aug. 21, 2015)
(finding that the protection for SARS documents did not apply, because the documents were already in the public domain, and only listed transactions; "Against this backdrop, a body of district court caselaw has emerged, examining the scope of the protections emanating from the Act and related regulations. District courts have extrapolated from the statute and regulations 'an unqualified discovery and evidentiary privilege that . . . cannot be waived.'. . . The trickier task for the district courts has been to define the universe of documents encompassed by this 'privilege.'"; explaining that "[o]ther categories of documents are not shielded, including 'documents produced in the ordinary course of business pertaining to the defendants' banking activities, transactions, and accounts' that do not suggest the existence of a SAR."; "That position is consistent with the regulation quoted above, and other courts have drawn similar distinctions between SARs and supporting documentation."; "[I]t would appear that neither the Act nor the regulations restrict third parties -- that is, parties on neither the financial-institution side nor the government side of a SAR exchange -- from disclosing the existence or non-existence of a particular SAR."; "It is undisputed among the parties that, through a series of events we need not limn, the SAR to which the relevant documents relate was placed into the public record via court filings in prior litigation and that electronic versions of the SAR reside on the internet. As such, even assuming applicability of the Act and regulations, it is doubtful that the name plaintiffs are even capable of exposing the SAR to view or making it known or public because, right or wrong, the SAR already has been exposed to view and has been made public by other actors."; "[B]oth relevant agencies and some courts have suggested that the 'privilege' extends, not just to the SAR itself and documents expressly stating the existence of a SAR, but also to documents that indirectly suggest the existence or non-existence of a SAR. For current purposes, the court will assume the correctness of that position. Even so, Chase's claim of privilege would fail. First, the vast majority of the allegedly privileged documents in this case feature only lists and descriptions of transactions. . . . That leaves the narrow sliver of the fifty-five pages featuring non-transactional information. Under the existing law and guidance previously described, the key query is whether any of those documents suggest, directly or indirectly, that a SAR was or was not filed. . . . Careful de novo in camera review of the documents reveals that none of them do. For example, none of the documents at issue constitute a draft SAR, and none of the documents reflect the decision-making process as to whether a SAR should be filed, the process of preparing a SAR, or an attempt to explain the content of a SAR post-filing.")

Case Date Jurisidction State Cite Checked
2015-04-21 Federal
Comment:

key case


Chapter: 26.402

Case Name: Lesti v. Wells Fargo Bank N.A., 297 F.R.D. 665, 668 (M.D. Fla. 2014)
("The Court will require Wells Fargo to produce all business records made in the ordinary course of business, in its possession, custody or control relating to Fuchs' [third party] accounts including, but not limited to, correspondence, e-mails, facsimiles, account statements, wire transfer records, cancelled checks, deposit slips, and other documents of these types related to Fuchs' accounts only. Wells Fargo shall not produce documents representing drafts of SARs [suspicious activity reports] or other work product or privileged communications that relate to the SAR itself or internal memorandum prepared as part of a financial institution's process for complying with federal reporting requirements. If the attorney-client privilege or the work-product doctrine applies, then Wells Fargo must produce a privilege log.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal FL B 8/14

Chapter: 26.402

Case Name: Lesti v. Wells Fargo Bank N.A., 297 F.R.D. 665, 667 (M.D. Fla. 2014)
("'[S]upporting documentation' giving rise to a SAR [suspicious activity report] that is generated or received in the ordinary course of business is discoverable." (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-01 Federal FL B 8/14

Chapter: 26.403

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 187, 188 (Va. Cir. Ct. 2000)
("Next, the court considers plaintiff's argument that Media General waived the attorney-client privilege by disclosures made in both a letter authored by Media General's representative from the National Employer's Council and written to the VEC and in McDonald's testimony at the VEC hearing. Defendant maintains that the court should not ponder at all the information included in that material as the VEC received the information during a proceeding before that agency."; "The statute unambiguously precludes the use of the letter written to the VEC and the admission of McDonald's testimony in this proceeding for the purpose of considering a waiver of the attorney-client privilege. Thus, the court rejects plaintiff's arguments with regard to any waiver effected by that material.")

Case Date Jurisidction State Cite Checked
2000-01-01 State VA

Chapter: 26.502

Case Name: RMS of Wisconsin, Inc. v. Shea-Kiewit Joint Venture, Case No. 13-CV-1071, 2015 U.S. Dist. LEXIS 74425, at *3 (E.D. Wis. June 9, 2015)
July 29, 2015 (PRIVILEGE POINT)

"Does Sharing Work Product with the Government Always Waive that Protection?"

For decades, companies trying to cooperate with the government have hoped for a change in the general rule that disclosing privileged communications and/or work product to the government waives those protections. In nearly every case, disclosing attorney-client privileged communications to the government waives that fragile protection. But in the work product context, courts sometimes take a more forgiving view.

In RMS of Wisconsin, Inc. v. Shea-Kiewit Joint Venture, Case No. 13-CV-1071, 2015 U.S. Dist. LEXIS 74425, at *3 (E.D. Wis. June 9, 2015), plaintiff RMS disclosed work product to the FBI, "in cooperation with the FBI's investigation of the defendants." The court contrasted this situation with settings where such a disclosure generally waives work product protection: when the disclosing company and the government "are adversaries," and when the company "voluntarily submitted the information to a government agency to incite it to attack the [company's] adversary." Id. The court found that RMS did not waive its work product protection — because the company's "interests were aligned" with the FBI, which was "pursuing an investigation of the defendants on the same issue that RMS is now litigating in this suit." Id. At *4.

In most situations, corporations dealing with the government must treat it as an adversary. But in certain very limited circumstances, corporations and the government share a sufficiently common interest that the former can disclose work product to the latter without waiving that robust protection.

Case Date Jurisidction State Cite Checked
2015-06-09 Federal WI
Comment:

key case


Chapter: 26.503

Case Name: Hunton & Williams LLP v. U.S. Environmental Protection Agency, Civ. A. No. 15-1203 (RC), Civ. A. No. 15-1207 (RC), Civ. A. No. 15-1208 (RC), 2017 U.S. Dist. LEXIS 48907 (D.D.C. March 31, 2017)
("[C]ourts in this district have recognized that the attorney-client privilege may apply between counsel for different agencies.")

Case Date Jurisidction State Cite Checked
2017-03-31 Federal DC

Chapter: 26.503

Case Name: United States v. Heine, Case No. 3:15-cr-00238-SI-2, 2016 U.S. Dist. LEXIS (D. Ore. March 31, 2016)
(rejecting a former Bank executive's effort to obtain privileged Bank documents in his criminal proceeding; holding that the Bank had not waived its privilege by providing facts to the FBI, or by disclosing protected documents to bank regulators; "The Bank also asserts that several of Yates's requests seek large amounts to documents that are protected by the attorney-client privilege or the work product doctrine, which the Bank does not waive."; "Unlike the voluntary disclosure of the Report and Back-up Materials in Bergonzi [United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003)], the Bank produced to the FBI, or in response to grand jury subpoenas, only non-privileged information. Because the information provided to the FBI or the grand jury did not contain the Bank's confidential attorney-client communications, the Bank has not waived its attorney-client privilege."; "The Bank responds that any disclosures made to the FDIC do not waive the attorney-client privilege because such disclosures are statutorily protected. The Court agrees based on 12 U.S.C. § 1828."; "In addition, the FDIC may share otherwise privileged information with other federal government agencies without waiving any applicable privilege. 12 U.S.C. § 1828(t). Thus, any statements made by the Bank to the FDIC or any documents provided by the Bank to the FDIC cannot constitute a waiver of the Bank's attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-03-31 Federal OR

Chapter: 26.503

Case Name: United States v. Heine, Case No. 3:15-cr-00238-SI-2, 2016 U.S. Dist. LEXIS (D. Ore. March 31, 2016)
(rejecting a former Bank executive's effort to obtain privileged Bank documents in his criminal proceeding; holding that the Bank had not waived its privilege by providing facts to the FBI, or by disclosing protected documents to bank regulators; "The Bank also asserts that several of Yates's requests seek large amounts to documents that are protected by the attorney-client privilege or the work product doctrine, which the Bank does not waive."; "Unlike the voluntary disclosure of the Report and Back-up Materials in Bergonzi [United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003)], the Bank produced to the FBI, or in response to grand jury subpoenas, only non-privileged information. Because the information provided to the FBI or the grand jury did not contain the Bank's confidential attorney-client communications, the Bank has not waived its attorney-client privilege."; "The Bank responds that any disclosures made to the FDIC do not waive the attorney-client privilege because such disclosures are statutorily protected. The Court agrees based on 12 U.S.C. § 1828."; "In addition, the FDIC may share otherwise privileged information with other federal government agencies without waiving any applicable privilege. 12 U.S.C. § 1828(t). Thus, any statements made by the Bank to the FDIC or any documents provided by the Bank to the FDIC cannot constitute a waiver of the Bank's attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-03-31 Federal OR

Chapter: 26.503

Case Name: Hoffman v. City & Cnty. of S.F., Case No. 4:11-cv-4016 CW (KAW), 2013 U.S. Dist. LEXIS 77076, at *3 (N.D. Cal. May 31, 2013)
(finding that sending privileged communications to other government employees did not waive the privilege; "[T]he fact that members of the Civil Service Commission and the City's Human Resources department were also recipients of the documents sent to the City Attorney's office does not render the documents unprivileged, because these individuals were the employees of the City that could have been seeking legal advice.")

Case Date Jurisidction State Cite Checked
2013-05-31 Federal CA B 4/14

Chapter: 26.503

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 376-77 (4th Cir. 2009)
("Nor is there any support for R&HW's assertion that attorney-client privilege was waived through disclosure to a third party. . . . The DOJ attorney's e-mail was then forwarded to several employees within the USPTO, who appear to offer their view and opinion on what the USPTO's position should be. Nothing in the e-mail discussion support R&HW's assertion that the redacted information in the e-mails was ever communicated to anyone outside the USPTO.")

Case Date Jurisidction State Cite Checked
2009-01-01 Federal

Chapter: 26.503

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 376-77 (4th Cir. 2009)
("Nor is there any support for R&HW's assertion that attorney-client privilege was waived through disclosure to a third party. . . . [T]he DOJ attorney is seeking the USPTO's opinion on what the DOJ's position on a particular issue should be. The DOJ attorney's e-mail was then forwarded to several employees within the USPTO, who appear to offer their view and opinion on what the USPTO's position should be. Nothing in the e-mail discussion support R&HW's assertion that the redacted information in the e-mails was ever communicated to anyone outside the USPTO.")

Case Date Jurisidction State Cite Checked
2009-01-01 Federal

Chapter: 26.505

Case Name: Roberts v. Clark County School District, Case No. 2:15-cv-00388-JAD-PAL, 2016 U.S. Dist. LEXIS 60995 (D. Nev. May 9, 2016)
(holding that disclosing privileged documents to the EEOC waived the attorney-client privilege, but not the work product doctrine; "Applying these principles the court finds that many of the documents CCSD has withheld on the grounds of attorney-client privilege are not privileged or that CCSD has waived any potential privilege by voluntarily disclosing the advice of its counsel relied upon to support its good-faith defense in this case. It is undisputed that CCSD disclosed some of the documents withheld in its privileged document logs to the EEOC in its response to Plaintiff's administrative claims. CCSD relied upon legal advice of in-house counsel and conveyed that legal advice to the EEOC to explain and justify its decision to deny Roberts' use of the men's restroom associated with his gender identity. Although counsel for CCSD argues that CCSD is not relying on the advice of counsel as a defense to this action, CCSD disclosed the advice of counsel to the EEOC to support its claim that its actions with respect to Bradley were justified and complied with existing law. CCSD has also asserted an affirmative good-faith defense in its answer which claims its actions were justified and complied with existing law.")

Case Date Jurisidction State Cite Checked
2016-05-09 Federal NV

Chapter: 26.505

Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "The Ninth Circuit has plainly held that a party may not selectively waive the attorney-client privilege. It has held that voluntary disclosure to one waives the attorney-client privilege as to the world at large. In re Pac. Pictures Corp., 679 F.3d 1121, 1127 (9th Cir. 2012). There, the court noted that only the Eighth Circuit had adopted the selective waiver doctrine in its decision in Diversified Indus. v. Meredith, 572 F.2d 596 (8th Cir. 1978) (en banc). Id. at 1127. Every other circuit to have addressed the issue had rejected the doctrine of selective waiver. Id. The Ninth Circuit declined to adopt the selective waiver theory finding that, if it was 'to unmoor a privilege from its underlying justification' it would be failing to construe the privilege narrowly.' Id. at 1128. It observed that since the Eighth Circuit decided Diversified, there had been multiple legislative attempts to adopt the theory of selective waiver which had failed. Id. It cited the report of the Advisory Committee on Evidence Rules and portions of the Congressional Record in which Congress declined to adopt a new privilege to protect disclosures of attorney-client privileged materials to the government. Id. As Congress had declined to broadly adopt a new privilege protecting disclosures of attorney-client privileged materials to the government, the Ninth Circuit also declined to do so. Id.")

Case Date Jurisidction State Cite Checked
2016-05-05 Federal NV

Chapter: 26.505

Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "Here, the declaration of counsel supporting the opposition indicates that the DOJ, CFTC and FERC served formal and informal demands for documents and information. The DOJ served a subpoena on Dynegy in May 2002, to testify before a grand jury. As a result, Dynegy hired two outside firms to conduct internal investigations to assist Dynegy in complying with the government demand for information and documents. Dynegy's counsel interviewed employees, summarized the interviews of these employees, analyzed the information gathered to provide legal advice to Dynegy. The federal agencies demanded the interview summaries, as well as Dynegy's counsel's analyses of Dynegy's natural gas trading activities. The documents summarizing or analyzing the data and information reflected Dynegy's counsel's evaluation of the relevant facts and law pertaining to the allegations of misreporting and loss trading. The federal agencies investigating Dynegy demanded these materials, and Dynegy produced them because withholding them would jeopardize its cooperative status under the Holder & Thompson memoranda."; "The court finds Dynegy waived its attorney-client privilege with respect to the disclosure of attorney-client privileged documents to the federal agencies investigating Dynegy.")

Case Date Jurisidction State Cite Checked
2016-05-05 Federal NV

Chapter: 26.505

Case Name: United States v. Kmart Corp., Case No. 3:12-cv-00881-MJR-PMF, 2014 U.S. Dist. LEXIS 73261 (S.D. Ill. May 29, 2014)
(holding that Kmart waived attorney-client privilege protection by disclosing documents to the government, and ordering Kmart to produce the same documents to their relator; "[A]pplication the selective waiver doctrine is not appropriate in this case. It is clear that the Seventh Circuit Court of Appeals does not look favorably upon the selective waiver doctrine."; "K-Mart made a calculated decision to intentionally relinquish work product protection in order to obtain a strategic advantage in the 2009 OIG investigation. This disclosure occurred in California, which is part of the Ninth Circuit. The Ninth Circuit did not have a firm position on selective waiver in 2009 but has since rejected it. . . . The D.C. Circuit, where the OIG of HHS is headquartered, has long rejected selective waiver . . . as has almost every other circuit.")

Case Date Jurisidction State Cite Checked
2014-05-29 Federal IL

Chapter: 26.505

Case Name: United States v. K-Mart, Case No. 3:12-cv-00881-MJR-PMF, 2014 U.S. Dist. LEXIS 73261 (S.D. Ill. May 29, 2014)
(holding that Kmart waived its privilege by providing documents to government agency, and rejecting a selective waiver argument; "The policy reasons for disallowing selective waiver in this case outweigh the reasons for allowing it. In the May 15 discovery dispute conference, K-Mart went to great lengths to emphasize that not allowing selective waiver under these circumstances would discourage corporate cooperation with government investigations. While increased cooperation with the government is most certainly a laudable end, this policy ground for permitting selective waiver has been repeatedly rejected. . . . Most pointedly, the attorney client privilege and work product doctrines do not exist to foster full and frank conversation with the government. . . . Rather, the chief purpose of attorney work product protection is to permit an attorney to prepare a client's case in confidence. . . . Disclosure of protected attorney work product is a strategic litigation decision.")

Case Date Jurisidction State Cite Checked
2014-05-29 Federal IL

Chapter: 26.505

Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 100012, at *23-24, *24 (S.D.N.Y. July 10, 2013)
(rejecting the possibility of a selective waiver upon disclosing work product to the government; "There is no question here that the relationship between Defendants and the SEC was adversarial, regardless of the fact that the disclosures were voluntary. Defendants do not contend otherwise. It is clear that they self-reported the financial irregularities to the SEC in order to escape or limit liability."; "Under Steinhardt [In re Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993)] and its progeny, when a party provides documents to a government adversary under such circumstances, it ordinarily waives both attorney-client privilege and work product protection as to those documents.")

Case Date Jurisidction State Cite Checked
2013-07-10 Federal NY B 4/14

Chapter: 26.505

Case Name: Rivera v. Allstate Ins. Co., No. 10 C 1733, 2013 U.S. Dist. LEXIS 83761, at *9 (N.D. Ill. June 14, 2013)
(holding that Allstate waived both privilege and work product protection by disclosing documents to the SEC and the Department of Labor; "We adopt the Sixth Circuit's reasoning in Columbia/HCA Healthcare [In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002)] here and reject the application of selective waiver. Allstate waived any privilege or protection associated with the documents at issue by producing them to the SEC and DOL; therefore, they must be produced to plaintiffs.")

Case Date Jurisidction State Cite Checked
2013-06-14 Federal IL B 4/14

Chapter: 26.505

Case Name: In re Merck & Co., Inc. Securities, Derivative & ERISA Litigation, No. 05-2367 (SRC), 2012 U.S. Dist. LEXIS 144850 (D.N.J. Oct. 5, 2012)
(rejecting the possibility of a selective waiver, under which a company can share documents with the government but continue to maintain privilege protection if a third party seeks the same documents; upheld by the District of New Jersey District Court, Dec. 12, 2012)

Case Date Jurisidction State Cite Checked
2012-10-05 Federal NJ B 6/13

Chapter: 26.505

Case Name: In re Merck & Co., Inc. Sec. Derivative & "Erisa" Litig., MDL No. 1658 (SRC), Civ. A. Nos. 05 1151 & 2367 (SRC), slip op at 1, 3, 4, 5, 6 (D.N.J. Oct. 5, 2012)
(not for publication) (holding that Merck's disclosure of privileged communications to the federal government caused a waiver, which entitled securities plaintiff access to the privileged communication in their case against Merck relating to Vioxx; "Merck provided the subject documents to the DOJ pursuant to an agreement that provided that the government would maintain the confidentiality of the privileged materials it received from Merck and that Merck's 'limited waiver' of any protection offered by the attorney client privilege and/or work doctrine would not extend to any third party or private entity. Merck argues that the magistrate judge incorrectly applied Third Circuit law concerning the doctrine of selective waiver, which 'permits the client who has disclosed privileged communication to one party to continue asserting the privilege against other parties.' Westinghouse v. Republic of the Philippines, 951 F.2d 1414, 1423 n.7 (3d Cir. 1991). Judge Waldor concluded that, because the Third Circuit had rejected selective waivers in Westinghouse v. Republic of the Philippines, Merck had failed to carry its burden of demonstrating that the subject documents were entitled to protection under the attorney client privilege and/or work product doctrine. She accordingly ordered Merck to turn the documents over the Plaintiffs."; "A district court may reverse a magistrate judge's determination of a non dispositive issue only if it is 'clearly erroneous or contrary to law.'. . . A finding is clearly erroneous 'when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'. . . A ruling is contrary to law if the magistrate judge has misinterpreted or misapplied applicable law. . . . 'The phrase 'contrary to law' indicates plenary review as to matters of law.'. . . ('[T]his Court will conduct a de novo review of a Magistrate Judge's legal conclusions.') . . . The burden is on the party filing the notice of appeal to demonstrate that the magistrate judge's decision was clearly erroneous or contrary to law."; "The controlling law in this jurisdiction on the issue selective waiver is the Third Circuit's opinion in Westinghouse v. Republic of the Philippines. There, the Third Circuit considered whether a party's disclosure of privileged documents for the purpose of cooperating with a government investigation waives the applicable privilege only as against the government or waives it completely, 'thereby exposing the documents to civil discovery in litigation between the discloser and a third party.'" (citation omitted); "Merck points to language in the Westinghouse opinion, in which the Third Circuit observed that the 'agreement between Westinghouse and the DOJ preserved Westinghouse's right to invoke the attorney client privilege only as to the DOJ -- and does not appear in any way to have purported to preserve Westinghouse's right to invoke the privilege against a different entity in an unrelated civil proceeding such as the instant case.' . . . Merck interprets this dicta as a signal from the Third Circuit that had the agreement expressly preserved both the confidentiality of the produced material and the producing party's continuing right to assert the privilege against third parties -- as the agreement between Merck and the DOJ did -- it would have been effective to avoid waiver."; "[T]o the extent Merck's argument that the privilege remains intact may be understood to be predicated on its reliance on an agreement which purported to preserve both confidentiality and the right to assert the privilege as to third parties, such reliance would not be reasonable in light of Westinghouse and the many decisions following its clear holding that selective waiver of the attorney client privilege cannot be endorsed because it goes beyond the scope of the privilege."; "This Court concludes that Judge Waldor correctly applied Third Circuit precedent in concluding that Merck must produce the documents it had previously disclosed to the DOJ, given its waiver of any applicable protection from disclosure.")

Case Date Jurisidction State Cite Checked
2012-10-05 Federal NJ B 1/13

Chapter: 26.505

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 376 (4th Cir. 2009)
("[T]he attorney client privilege can be waived if the document is published, or disclosed to private individuals or to nonfederal agencies. Mead Data Cent., Inc., 566 F.2d at 253.")

Case Date Jurisidction State Cite Checked
2009-01-01 Federal

Chapter: 26.505

Case Name: In re Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir. 1988)
(holding that Martin Marietta's submission to a United States Attorney of "a Position Paper describing why the company should not face indictment" means that "the Position Paper as well as the underlying details are no longer within the attorney-client privilege."), cert. denied, 490 U.S. 1011 (1989)

Case Date Jurisidction State Cite Checked
1988-01-01 Federal

Chapter: 26.506

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; finding that GM did not waive the privilege protection for the underlying material by disclosing facts to the government; "'Based on the interviews, and in order to cooperate with the DOJ investigation, Jenner attorneys 'made oral hypothetical proffers' of 'what certain witnesses might say if the DOJ were to speak with them,' a tactic New GM represents is 'in accord with typical practice in DOJ investigations conducted in the Southern District of New York.'. . . Plaintiff makes no argument that those oral proffers -- which 'were not complete or verbatim recitations of what the witnesses said or of the [Interview Materials]' . . . -- or the intention to make those oral proffers, vitiated the attorney-client privilege.'")

Case Date Jurisidction State Cite Checked
2015-01-15 Federal NY

Chapter: 26.602

Case Name: Enea v. Bloomberg, L.P., 12cv4656-GBD-FM, 2015 U.S. Dist. LEXIS 111901 (S.D.N.Y. Aug. 20, 2015)
(initially concluding that there had been no implied waiver, but revisiting the issue and ordering an in camera review of documents that support defendant's good faith defense in an FLSA case; "During a telephone conference on July 30, 2014, I denied the Plaintiffs' motion, relying, in part, on Brackett v. St. Louis Board of Police Commissioners, 12-CV-898-JAR, 2014 U.S. Dist. LEXIS 95899, 2014 WL 3451197, at *2 (E.D. Mo. July 15, 2014). As in that case, I found that the distinction 'between a good faith defense and a potential advice of counsel defense creates a thin line that the party seeking to put forward the privilege through testimony may cross,' but that Bloomberg had yet to cross that line.")

Case Date Jurisidction State Cite Checked
2015-08-20 Federal NY

Chapter: 26.603

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 Jurisidction State Cite Checked
2016-11-17 Federal NY

Chapter: 26.603

Case Name: Botkin v. Donegal Mut. Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *13, *14, *18-19, *20 (W.D. Va. June 15, 2011)
(analyzing privilege and work product issues in a first party insurance case; after citing Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994); analyzing the "at issue" doctrine under the Hearn standard; "The court in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), set forth a framework for determining whether the party asserting a privilege has impliedly waived it through his own affirmative conduct. Courts must determine whether: a) the assertion of privilege was the result of some affirmative act, such as filing suit, by the asserting party; b) through this act, the asserting party put the protected information at issue by making it relevant to the case; and c) application of the privilege would have denied the opposing party access to information vital to his defense. Id. at 581. Although the Hearn framework has not been met with universal acceptance, it remains the most widely accepted approach."; "Plaintiffs . . . contend that Stacey Callahan's deposition testimony, in which she acknowledged that Donegal relied on the advice of counsel in denying the Botkins' claim, is enough to constitute waiver. Stacey Callahan testified as follows: '(Q) Did Mr. Roswell [of Niles Barton], anything that Mr. Roswell or his opinion or anything else -- I'm not asking what it was. I'm just asking you, did that have anything to do with Donegal's decision to deny coverage?' (A) The Niles Barton firm had given us the coverage analysis, and based on their analysis -- partially based on their analysis, we denied coverage.'" (internal citation omitted); "Plaintiffs have offered no evidence other than Stacey Callahan's deposition testimony to suggest that Donegal interjected the advice of counsel into this litigation. And Callaghan's response to a question about whether Niles Barton's advice factored into Donegal's decision to deny coverage is not enough to show that Donegal put its communications with counsel at issue. . . . The mere fact that Donegal relied on the opinion of coverage counsel in denying plaintiffs' claim does not waive the attorney-client privilege. Certainly, when Donegal enlisted the assistance of Niles Barton in this matter, it intended to rely on counsel's advice. There would be little point in retaining coverage counsel to issue an opinion if a party did not intend to rely on it. Likewise, if reliance always gave rise to waiver in this circumstance, no one would seek coverage counsel's advice."; "Donegal has not used the attorney-client privilege as a sword in this litigation. . . . Donegal's reliance on coverage counsel's opinion, without more, is not sufficient enough to show it put the advice of counsel 'at issue.' Thus, the first Hearn factor has not been met.")

Case Date Jurisidction State Cite Checked
2011-06-15 Federal VA B 7/16

Chapter: 26.802

Case Name: One World Foods, Inc. v. Stubb's Austin Restaurant Company LC, Case No. A-15-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016)
(holding that plaintiff had waived privilege protection for a legal opinion by turning it over to McCormick, which insisted on receiving the opinion before purchasing the plaintiff; rejecting plaintiff's argument that it and McCormick shared a common interest, because the court found there was no palpable threat of litigation; "In the spring of 2015, McCormick offered to buy Plaintiff for approximately $100 million. . . . As a prerequisite to finalizing the deal, McCormick required a written license agreement with SARC."; "McCormick nevertheless proceeded with the purchase of Plaintiff, and a Stock Purchase Agreement (SPA) between Plaintiff and McCormick memorialized the transaction. . . . 'McCormick agreed to close instead with the condition that Plaintiff share with it the opinions Plaintiff's counsel had previously prepared regarding the ownership and validity of the STUBB'S trademark.'. . . Those opinions were attached to the SPA as Exhibit B-1 and Exhibit B-2 (the Opinion Exhibits)."; "The SPA describes the conditions governing the purchase and sale of Plaintiff as well as the representations and warranties made by both McCormick and Plaintiff. The only threat of litigation Plaintiff identified at the time of the SPA was a demand for payment related to a terminated software subscription. . . . In fact, the only litigation currently pending to the knowledge of the undersigned was initiated by the Plaintiff."; "[I]n camera review confirms the Opinion Exhibits contain legal memoranda created for the express purpose of providing legal opinions on Plaintiff's intellectual property rights. But Plaintiff notes its attorney had previously prepared these legal memoranda and later Plaintiff shared the memoranda with McCormick as a condition of McCormick's purchase of Plaintiff's stock. . . . Thus, while the legal memoranda were originally communications between Plaintiff and its attorney made for the purpose of securing legal advice, the legal memoranda were disclosed to McCormick as the Opinion Exhibits to support the sale of Plaintiff's stock, a business decision."; "As the party asserting attorney-client privilege, Plaintiff bears the burden of proving the privilege applies and that burden extends to proof of preliminary facts showing the matter is eligible for protection. . . . Plaintiff meets this burden with regard to the initial legal memoranda."; "Consequently, while Plaintiff demonstrates attorney-client privilege applied to the initial version of the legal memoranda, attorney-client privilege does not apply to the disclosure of the legal memoranda to McCormick via the Opinion Exhibits. The remaining inquiry thus focuses on whether the CLI privilege exception applies.")

Case Date Jurisidction State Cite Checked
2016-12-02 Federal TX
Comment:

key case


Chapter: 26.802

Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *9 (S.D. Cal. Mar. 6, 2014)
(analyzing a claim by plaintiffs, who sold their stock in the Neology to Smarttrac, after which the defendant eliminated plaintiffs' liquidation preferences; "Here, Neology, not Defendant[,] is the client. Defendant is not Neology's guardian or representative and, therefore, cannot claim the attorney-client privilege on behalf of Neology. In addition, the fact that Defendant is in possession of Neology's allegedly attorney-client privileged communications indicates that the communications are not privileged as the communications have been shared with individuals or entities not covered by the privilege.")

Case Date Jurisidction State Cite Checked
2014-03-06 Federal CA B 8/14

Chapter: 26.802

Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *9 n.3 (S.D. Cal. Mar. 6, 2014)
(analyzing a claim by plaintiffs, who sold their stock in the Neology to Smarttrac, after which the defendant eliminated plaintiffs' liquidation preferences; "If a communication between Neology's counsel and Mr. Diez Barroso regarding Mr. Diez Barroso's duties as a Neology director was found in the possession of Mr. Diez Barroso and the communication was not shared with other employees of Defendant, the communication would retain its privilege. If, however, the communication was shared with other employees of Defendant and/or was found in the possession of another employee of Defendant, including Mr. Elias-Calles, then the confidentiality of the privilege has not been maintained and the document must be produced.")

Case Date Jurisidction State Cite Checked
2014-03-06 Federal CA B 8/14

Chapter: 26.802

Case Name: In re Alexandria Priftis West, Case No. 11-15594-BFK, Ch. 7, 2012 Bankr. LEXIS 1673 (E.D. Va. April 17, 2012)
(holding that a client waived her attorney-client privilege protection by disclosing a communication from her lawyer, but concluding that the waiver did not cause a subject matter waiver; "On the same day, July 29, 2011, in response to an e-mail from Ms. West, Ms. Holme advised Ms. West that 'I'm doing everything I can -- see e-mail from our Attorney,' and she forwarded to Ms. West an e-mail from C. Thomas Ebel (hereinafter, 'Ebel e-mail'), of the law firm of Sands Anderson, dated July 28, 2011.")

Case Date Jurisidction State Cite Checked
2012-04-17 Federal VA

Chapter: 26.803

Case Name: RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc., Case Nos. 2:14-cv-01232-APG-GWF, 2:15-cv-01446-APG-GWF, 2017 U.S. Dist. LEXIS 80436 (D. Nev. May 25, 2017)
(holding that defendant Tropicana waived its privilege protection but not its work product protection by sharing due diligence material in an ongoing litigation to its ultimate acquirer; noting that plaintiff RKF sued Tropicana in 2014, and that Penn Gaming acquired Tropicana in 2015; creating a privilege waiver; "Courts are somewhat divided on whether the disclosure of confidential attorney-client communications to a prospective purchaser or investor is protected from a finding of waiver by the common interest doctrine. A majority of courts have rejected application of the doctrine where the disclosure was made for business purposes rather than for the purpose of pursuing a common legal effort. . . . Nidec [Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575 (N.D. Cal. 2007)] notes that even if the parties to the disclosure have a common legal interest, the communication at issue must be designed to further that common legal effort. It must be made in the course of formulating a common legal strategy."; "A majority of federal courts have not adopted Hewlett-Packard's [Hewlett-Packard v. Bausch & Lomb, Inc., 115 F.R.D. 308 (N.D.Cal. 1987)] expansive application of the common interest doctrine to protect disclosures made primarily for business purposes. There is no indication that the Nevada Supreme Court would interpret NRS § 49.095.3 to protect from waiver disclosures made primarily for business purposes. This Court therefore declines to interpret NRS § 49.095.3 in a manner that is not called for by the statutory language itself, and which is contrary to the majority view regarding the scope of the common interest doctrine."; "Tropicana has shown only that representatives and lawyers for Tropicana and Penn Gaming discussed this litigation. This, however, indicates nothing more than that Tropicana provided information about the lawsuit so that Penn Gaming could make a business decision whether to proceed with the acquisition. Tropicana has failed to show that its pre-merger communications with Penn Gaming are protected from disclosure by the attorney-client privilege. RKF's motion to compel will therefore be granted as to those pre-merger documents to which only the attorney-client privilege and common interest doctrine are asserted.")

Case Date Jurisidction State Cite Checked
2017-05-25 Federal NV
Comment:

key case


Chapter: 26.804

Case Name: Cooper v. Meritor, Inc., Civ. A. No. 4:16-cv-052 DMB-JMV Consolidated with Civ. A. No. 4:16-cv-053 DMB-JMV, Civ. A. No. 4:16-cv-054 DMB-JMV, CIV. A. No. 4:16-cv-055-DMB-JMV, CIV. A. No. 4:16-cv-056-DMB-JMV, 2017 U.S. Dist. LEXIS 4727 (N.D. Miss. 1/12/17)
(analyzing the waiver impact of fifteen documents Textron created when it owned a Mississippi facility from 1989 to 1996; explaining that Textron sold assets of the company in 1999; disagreeing with Textron's assertion that the asset purchase agreement excluded the privileged environmental documents; noting that Textron left the documents at the facility without any restrictions on access, and did not object when the asset purchaser went bankrupt in 2004 and all of its assets were sold to another company out of bankruptcy; finding that Textron waived privilege protection for the fifteen documents, even though Textron claims to have forgotten that the documents were left at the facility; "In the instant case, Textron asserts a privilege over fifteen (15) documents created from 1989 to 1996 during a period of time it owned and operated a wheel cover manufacturing facility in Grenada, Mississippi. In 1999, Textron entered and subsequently consummated an asset sale agreement with Grenada Manufacturing, LLC (hereinafter sometimes 'the APA'). According to Textron, it did not transfer ownership of documents related to environmental matters, including the subject 15 documents, to Grenada Manufacturing, LLC as part of that sale. It is Textron's positon that it retains ownership of all such documents and any affiliated privilege with respect thereto."; "According to an affidavit supplied by Textron, boxes of these environmental documents, together with other business records of Textron's operations prior to the 1999 sale, were left by Textron at the Grenada facility after the sale. Indeed, Textron contracted for a right to access the documents for a period of time following the sale. APA 14.1. In the court's view, Textron's claim of retained ownership of the documents, even if it were convincing, does not satisfactorily answer whether its treatment of those assets waived any privilege that might be claimed with regard to any of them."; "Textron is faced with the fact that it intentionally left documents that it must acknowledge (because it is material to its claim of retained ownership of the documents in the first instance) it knew concerned environmental matters related to releases from the business prior to 1999. These documents were intentionally left unattended and unrestricted in the hands of yet another party -- this time, Ice Industries, Inc. Though Textron was given notice of the asset transfer to Ice Industries, Inc., it made no effort to retrieve the environmental documents or to even review them for privilege."; "In other words, Textron plainly waived any privilege that would have otherwise been retained if the documents had, in fact, been excluded from the purchase and asset sale."; "Textron argues that unless it realized that the documents concerning environmental matters that it freely gave possession of to others for decades did in fact contain privileged documents, that disclosure could not waive any privilege attendant to the document(s)."; "The court is unpersuaded."; "[T]here is nothing about the 'practical consequences doctrine' that dictates a different outcome. The practical outcome of leaving -- for decades -- documents a company contends it owns in possession of another, with no provision for protection of any privileged communications therein, not to mention permitting the subsequent transfer of possession to others on additional occasions, all without any effort to retrieve them prior to the instant litigation, or to otherwise review them to remove privileged materials has the obvious practical and legal consequence of waiver of any associated privileges.")

Case Date Jurisidction State Cite Checked
2017-01-12 Federal MS
Comment:

key case


Chapter: 26.804

Case Name: Chemeon Surface Technology, LLC v. Metalast International, Inc., Case No. 3:15-CV-0294-MMD (VPC), 2016 U.S. Dist. LEXIS 125610 (D. Nev. Sept. 15, 2016)
(holding that the purchaser of an LLC from a receiver purchased all privileged documents in LLC's position; inexplicably seeming to hold that the waiver occurred when the plaintiff purchased the LLC; "When plaintiff acquired the LLC's assets, it acquired all of the LLC and INC legal files, which were intermingled and contained in the LLC's database . . . . There were voluminous legal files, including attorney correspondence, draft and final legal documents, and there was no segregation of the documents on the basis of the LLC or the INC. . . . The documents ranged from hard copy documents to electronic files, and the legal files in electronic format were all stored in LLC's document database, which the LLC created, paid for and maintained. . . . The legal files include numerous communications to and from Mr. Burns, and, as a result, many communications to and from Mr. Burns were included in the legal documents which are in plaintiff's possession."; "It is undisputed that at no time has INC, or any of its former or current principals, stated that plaintiff should not be in possession of the legal documents that plaintiff obtained in connection with LLC acquisition, nor has INC or it its current or former principals requested that any legal documents be returned. . . . During discovery, plaintiff produced responsive legal documents in its possession, which included many attorney-client communications involving Mr. Burns . . . . Neither INC nor its former or current principals objected to this production, sought to claw back the materials on the basis of attorney-client privilege or attorney work product, or made any other complaints about this production."; "The analysis in In-Store [In re In-Store Advertising Sec. Litig., 163 F.R.D. 452 (S.D.N.Y. 1995)] is persuasive in this case. Here, when plaintiff purchased the Metalast assets out of receivership, the co-mingled legal files of the LLC and the INC were included. Plaintiff admits that it has many LLC and INC legal documents in its possession, yet defendants never sought return of the documents, nor did they attempt to claw back materials based on attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-09-15 Federal NV
Comment:

key case


Chapter: 26.804

Case Name: Newspring Mezzanine Capital II, L.P. v. Hayes, Jr., Civ. A. No. 14-1706, 2014 U.S. Dist. LEXIS 169900 (E.D. Pa. Dec. 9, 2014)
(holding that a company owned the privilege when it sold the stock of a company, because the law firm assisting the company did not represent the individual selling shareholders as personal clients; "The Baxter Parties insist that they retain the right to assert attorney-client privilege over communications with Wishart Norris pre-merger because they were the sellers of a controlling interest in Old Utilipath. In support of this position, they analogize the current situation to Tekni-Plex v. Meyner and Landis, 89 N.Y.2d 123, 674 N.E.2d 663, 651 N.Y.S.2d 954 (Ct. Ap. N.Y. 1996)."; "The most useful point of departure is the contract of representation whereby Wishart Norris was retained. The retention letter stated that it related to 'this Firm's representation of Utilipath, LLC ('the Company').' The letter also cautioned, 'The advice and communications which we render on the Company's behalf are not intended to be disseminated to or relied upon by any other parties without our written consent' (emphasis added). The signature line identified Utilipath LLC and identified Jarrod Hayes as a 'manager.' Jarrod Hayes did not separately sign as an individual, and neither did his father, Baxter Hayes, Jr., or brother, Baxter Hayes, III."; "I also find nothing in Wishart Norris' actions that indicate it was representing any of the Baxter Parties as individuals in addition to representing the corporations. Further supporting my conclusion is the fact that Baxter, Jarrod, and Lindon Hayes had retained their own personal counsel."; "In contrast, in the situation before me, Wishart Norris was explicitly retained by Old Utilipath to carry out the Utilipath transaction, and other lawyers were retained to personally represent the parties in the transaction. Under Bevill [In re Bevill, Bresler & Schulman Asset Management Corporation, 805 F.2d 120 (3d Cir. 1986)], the individuals asserting the privilege have a specific burden, which they have failed to meet."; "Because Wishart Norris represented the corporation, the corporation's post-merger owners took control of the corporation's attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-12-09 Federal PA

Chapter: 26.804

Case Name: Newspring Mezzanine Capital II, L.P. v. Hayes, Jr., Civ. A. No. 14-1706, 2014 U.S. Dist. LEXIS 169900 (E.D. Pa. Dec. 9, 2014)
("In reaching this conclusion, I do not decide whether the Baxter Parties waived their attorney client privilege with respect to documents left on Utilipath servers after the Sale of Control.")

Case Date Jurisidction State Cite Checked
2014-12-09 Federal PA

Chapter: 26.804

Case Name: In re Grand Jury Subpoenas, 734 F. Supp. 1207 (E.D. Va. 1990)
(a parent corporation waives any attorney-client privilege applicable to documents by leaving those documents with the spun subsidiary), aff’d in part, vacated in part, 902 F.2d 244 (4th Cir. 1990).

Case Date Jurisidction State Cite Checked
1990-01-01 Federal VA B 3/16

Chapter: 26.804

Case Name: United States v. Under Seal (In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129), 902 F.2d 244, 247, 247-48, 248, 249, 250 (4th Cir. 1990)
(holding that a parent and subsidiary corporation could enter into a valid common interest agreement although the subsidiary was not a named party -- because the subsidiary was the "real party in interest"; concluding that the valid common interest agreement prevented the subsidiary from unilaterally waiving the attorney-client privilege and protected documents relating to the common interest participants' prosecution of a claim against the Army and defense of the Army's counterclaim; agreeing with the district court that the subsidiary could unilaterally control its own privilege once it had been sold to another company, and that the parent had no control over documents created by the subsidiary after it was sold; assessing a situation described more fully in the district court's opinion (In re Grand Jury Subpoenas 89-3, 89-4 & 89-129, 734 F. Supp. 1207 (E.D. Va. 1990)) in which a government grand jury subpoenaed documents relating to possible fraud in connection with a government contract; explaining a company ["Movant"] objected to the grand jury subpoena on attorney-client privilege and work product grounds; explaining that the district court had divided the subpoenaed documents into three categories: (1) documents created by one of Movant's divisions while it was undertaking the contractual work; (2) documents created by the division after it had become a Subsidiary of Movant; and (3) documents created by Subsidiary after Movant had sold controlling interest in Subsidiary to independent investors; noting that the Subsidiary had advised Movant and the government that it wished to cooperate with the grand jury and to produce the responsive documents; [Although not described fully in the Fourth Circuit opinion, the district court found that: (1) as to the Category 1 documents, generated by the division that was then part of Movant, it was "unclear" whether the Subsidiary gained ownership of any privilege covering those documents when the division became a subsidiary, but that it was unnecessary to resolve "this somewhat metaphysical issue" because Movant "permitted at least some of these documents to remain in the Subsidiary's custody and control" after selling the Subsidiary, and therefore "effectively waived its privilege with respect to these documents" meaning that the now-independent Subsidiary could waive the privilege and work product protections as to those documents (734 F. Supp. at 1213); (2) as to the Category 2 documents, generated by Subsidiary when it was owned by Movant, Movant could not block Subsidiary's waiver of those documents in its possession because the "joint defense privilege" did not give both Movant and Subsidiary veto power over the other's waiver the joint defense doctrine did not cover documents created while Movant and Subsidiary were merely "cooperating to assert [Movant's] claim" against the Army in seeking to recover under the underlying government contract; acknowledging that Subsidiary would have received a portion of whatever amount was ultimately recovered from the Army in connection with that claim, but that "[t]o extend the joint defense privilege to non-parties simply because they are financially interested in the litigation stretches the rationale for the privilege beyond its reach" (734 F. Supp. at 1212); and (3) as to the Group 3 documents, created by the newly-independent Subsidiary, finding that Movant had no control over those documents, and Subsidiary could produce them to the government.]; affirming the district court's analysis as to any document not related to what the Fourth Circuit described as "prosecution of the claim against the Army for an equitable adjustment and those prepared for the defense of the counter-claim" which involved "joint efforts on the part of Movant and Subsidiary"; agreeing with Movant that such "claim-related documents are subject to a joint defense privilege that Subsidiary cannot waive without Movant's consent"; acknowledging that Subsidiary "was not named as party in either the civil claim against the Army or in the Army's counter-claim," but finding that "persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims," and thus the common interest doctrine applied to Movant's and Subsidiary's "joint prosecution of a claim against the Army, as well as in the joint defense of the Army's counterclaim. Although Subsidiary was not a named party, it was the real party in interest. Recovery would inure to it."; holding that the district court's ruling was in error because it was "apparently based on the notion that the joint defense privilege is limited to codefendants" [although the district court's opinion instead was based on the fact that Subsidiary was not a party to any litigation, not on the fact that the Subsidiary was not a co-defendant]; in analyzing the Category 1 documents, rejecting the government's argument that the joint defense privilege could not apply because the creating entity was then a division of Movant rather than a separate entity; holding that "[t]he rationale underlying the joint defense privilege focuses not on when documents were generated, but on the circumstances surrounding the disclosure of privileged documents to a jointly interested third party"; explaining that here the disclosure "occurred on the day Movant incorporated Subsidiary as a separate entity," and was made to allow Subsidiary "to continue to participate in the ongoing litigation"; ultimately holding that "all documents that relate to the prosecution of the claim against the Army or to the defense of the Army's counterclaim, and which are subject to the attorney-client or work-product privilege, are subject to a joint defense privilege that Subsidiary may not waive unilaterally"; reversing the district court's opinion to that extent)

Case Date Jurisidction State Cite Checked
1990-01-01 Federal

Chapter: 26.805

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017)
(holding that a businessman waived privilege protection by sending an email to an investor that attributed his lawyer the actions that he intended to take in the future; inexplicably finding a subject matter waiver, although the disclosure occurred in a non-judicial setting; "Siras proffers an email dated March 24, 2016 from Dai to a third-party investor, Lou Ceruzzi, concerning the UBS loan: 'I was about to write, to you this email last Friday but I decided to 'wait until we all sit down with attorneys this morning. It is concluded by legal counsels that we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'"; "I find that Dai waived the attorney-client privilege as to any communications and documents dealing with his counsel's advice that 'we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'. . . Contrary to the cases defendants' 'rely upon, Dai's communication to Ceruzzi goes beyond a client conveying to a third-party the decision to settle an action or withdraw a claim based on advice of counsel. . . . Dai's communication provided a detailed description of specific legal advice and the course of action given to him by his attorneys, which he voluntarily divulged to a third party. Accordingly, defendants are directed to produce any communications and documents 'pertaining to the subject matter of the email.'")

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

key case


Chapter: 26.806

Case Name: Cooper v. Meritor, Inc., Civ. A. No. 4:16-cv-052 DMB-JMV Consolidated with Civ. A. No. 4:16-cv-053 DMB-JMV, Civ. A. No. 4:16-cv-054 DMB-JMV, CIV. A. No. 4:16-cv-055-DMB-JMV, CIV. A. No. 4:16-cv-056-DMB-JMV, 2017 U.S. Dist. LEXIS 4727 (N.D. Miss. 1/12/17)
(analyzing the waiver impact of fifteen documents Textron created when it owned a Mississippi facility from 1989 to 1996; explaining that Textron sold assets of the company in 1999; disagreeing with Textron's assertion that the asset purchase agreement excluded the privileged environmental documents; noting that Textron left the documents at the facility without any restrictions on access, and did not object when the asset purchaser went bankrupt in 2004 and all of its assets were sold to another company out of bankruptcy; finding that Textron waived privilege protection for the fifteen documents, even though Textron claims to have forgotten that the documents were left at the facility; "In the instant case, Textron asserts a privilege over fifteen (15) documents created from 1989 to 1996 during a period of time it owned and operated a wheel cover manufacturing facility in Grenada, Mississippi. In 1999, Textron entered and subsequently consummated an asset sale agreement with Grenada Manufacturing, LLC (hereinafter sometimes 'the APA'). According to Textron, it did not transfer ownership of documents related to environmental matters, including the subject 15 documents, to Grenada Manufacturing, LLC as part of that sale. It is Textron's positon that it retains ownership of all such documents and any affiliated privilege with respect thereto."; "According to an affidavit supplied by Textron, boxes of these environmental documents, together with other business records of Textron's operations prior to the 1999 sale, were left by Textron at the Grenada facility after the sale. Indeed, Textron contracted for a right to access the documents for a period of time following the sale. APA 14.1. In the court's view, Textron's claim of retained ownership of the documents, even if it were convincing, does not satisfactorily answer whether its treatment of those assets waived any privilege that might be claimed with regard to any of them."; "Textron is faced with the fact that it intentionally left documents that it must acknowledge (because it is material to its claim of retained ownership of the documents in the first instance) it knew concerned environmental matters related to releases from the business prior to 1999. These documents were intentionally left unattended and unrestricted in the hands of yet another party -- this time, Ice Industries, Inc. Though Textron was given notice of the asset transfer to Ice Industries, Inc., it made no effort to retrieve the environmental documents or to even review them for privilege."; "In other words, Textron plainly waived any privilege that would have otherwise been retained if the documents had, in fact, been excluded from the purchase and asset sale."; "Textron argues that unless it realized that the documents concerning environmental matters that it freely gave possession of to others for decades did in fact contain privileged documents, that disclosure could not waive any privilege attendant to the document(s)."; "The court is unpersuaded."; "[T]here is nothing about the 'practical consequences doctrine' that dictates a different outcome. The practical outcome of leaving -- for decades -- documents a company contends it owns in possession of another, with no provision for protection of any privileged communications therein, not to mention permitting the subsequent transfer of possession to others on additional occasions, all without any effort to retrieve them prior to the instant litigation, or to otherwise review them to remove privileged materials has the obvious practical and legal consequence of waiver of any associated privileges.")

Case Date Jurisidction State Cite Checked
2017-01-12 Federal MS
Comment:

key case


Chapter: 26.902

Case Name: Airport Fast Park-Austin, L.P. v. John Hancock Life Ins. Co., Case No. 1:15-cv-245, 2016 U.S. Dist. LEXIS 125931, at *4, *8-9, *9-10 (S.D. Ohio Sept. 15, 2016)
(holding that affiliate corporations with common ownership could communicate within privilege protection; "In the corporate context, it is well-settled that the 'attorney-client privilege is not waived merely because the communications involved extend across corporate structures to encompass parent corporations, subsidiary corporations, and affiliated corporations.' Crabb v. KFC Nat. Management Co., No. 91-5474, 1992 U.S. App. LEXIS 38268, 1992 WL 1321, at *3 (6th Cir. 1992) (citing United States v. American Tel. & Tel. Co., 86 F.R.D. 603, 616 (D.D.C. 1979)."; "The communications AFP seeks to protect from disclosure are privileged communications AFP sent to PCA, which is an affiliated entity by virtue of the entities' common ownership and the overlap in their operations, or that the affiliates' joint counsel exchanged with PCA employees. Cf. Ohio Valley Coal Co. v. Pleasant Ridge Synfuels, LLC, 54 F. App'x 610, 614 (6th Cir. 2002) (upholding a finding that companies were affiliates where one individual served as the CEO of one company and owned and controlled another company)."; "'Chavez Properties' is the name 'loosely use[d] to describe a family of affiliated entities,' including AFP and PCA. . . . The vast majority of Chavez Properties are single-asset entities that are limited liability companies which own parking real estate assets. . . . PCA is a management company which manages the vast majority of the affiliates of Chavez Properties. . . . Manuel Chavez, Robert Chavez and Martin Chavez are the common owners of both Austin Airport Fast Park, LLC, which is the managing partner of AFP, and of PCA, the entity which manages AFP's business. . . . AFP and PCA, though separate entities, share a common attorney and common legal interests. There is nothing in the documentation before the Court or about the parties' relationship that suggests AFP waived the confidentiality of its privileged communications when outside counsel for AFP communicated with employees of PCA on the JHLIC loan transaction or when AFP copied employees of PCA on emails it sent to the parties' joint counsel. Accordingly, the same result reached in Crabb [Crabb v. KFC Nat'l Mgmt. Co., No. 91-5474, 1992 U.S. App. LEXIS 38268 (6th Cir. Jan. 6, 1992)] and Roberts [Roberts v. Carrier Corp., 107 F.R.D. 678 (N.D. Ind. 1985)] is warranted under the facts of this case.").

Case Date Jurisidction State Cite Checked
2016-09-15 Federal OH
Comment:

key case


Chapter: 26.902

Case Name: Total Recall Technologies v. Luckey, Case No. 15-cv-02281-WHA (SK), 2016 U.S. Dist. LEXIS 65673 (N.D. Cal. May 17, 2016)
(holding that two general partners who were in a dispute did not waive any privilege by talking to the general partnership's lawyer; "Whether Seidl and Igra have a dispute between them and whether Seidl actually consents to the lawsuit brought by TRT is an issue to be resolved between them either informally or through the pending Hawaii action. However, Seidl and Igra are still the two general partners of TRT, and thus any communications between them, as agents of TRT, regarding TRT's counsel's advice do not waive the privilege."; "Here, Igra and Seidl communicated about the merits of this litigation and the advice from TRT's counsel regarding this litigation, and thus the common interest doctrine encompasses their communications. Accordingly, the Court finds that communications between Igra and Seidl that discuss TRT's counsel's advice did not waive TRT's privilege.")

Case Date Jurisidction State Cite Checked
2016-05-17 Federal CA

Chapter: 26.902

Case Name: IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, Dkt. No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223 (W.D. La. March 29, 2016)
(inexplicably finding that a direct subsidiary did not have a common interest with its parent, and that the common interest therefore did not apply to communications between them; also finding plaintiff's disclaimer of any intent to sue the subsidiary meant the subsidiary could not be a common interest participant; "The February 2, 2016, email was written by Mike Dees, in house counsel for the Port and Port Rail, Inc., on the advice of outside counsel and was distributed to various Port employees and an employee of the non-party Port Rail, Inc. The Port argues that since Port Rail, Inc. is a direct subsidiary of the Port, it shares a common legal interest with the Port. We disagree. At the time the email was written the Port and Port Rail, Inc. were not co-clients being jointly represented in the ongoing litigation. Further, Port Rail, Inc. was not a potential client facing 'a palpable threat of litigation at the time of the communication.' Id. At 711. The privilege applies when the parties share a common legal interest, not a commercial or financial interest and it does not extend to communications about joint business strategy. FSP Stallion 1, LLC v. Luce, 2010 U.S. Dist. LEXIS 110617, 2010 WL 3895914 *18 (U.S.D.C Nev. Sept. 30, 2010). IFG candidly admits that it has no intention of ever making Port Rail, Inc. a party to this litigation. Doc. 44, p. 5. Thus, if the email was in fact protected by the attorney-client privilege, we find that the privilege was waived by disclosing the communication to an employee of a non-party.")

Case Date Jurisidction State Cite Checked
2016-03-29 Federal LA

Chapter: 26.902

Case Name: IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223, at *4 (W.D. La. Mar. 29, 2016)
May 18, 2016 (PRIVILEGE POINT)

"Court Issues a Surprising Common Interest Doctrine Decision"

The common interest doctrine can sometimes allow separately represented clients to avoid the normal waiver implications of disclosing privileged communications to each other. However, courts take widely varying views of the doctrine's reach, and reject its applicability in about half of the reported cases — after the participants have already shared privileged communications, and therefore waived their respective privileges.

In IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, plaintiff claimed that defendant's in-house lawyer (who jointly represented the defendant and its "direct subsidiary") waived privilege protection by sending an email to several of defendants employees — and one subsidiary employee. No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223, at *4 (W.D. La. Mar. 29, 2016). Defendant argued that such disclosure did not waive defendant's privilege, because the defendant shared a common interest with its own subsidiary. The court found the common interest doctrine inapplicable — because the subsidiary did not face any litigation threat. The court quoted plaintiff, which indicated that "it has no intention of ever making [the subsidiary] a party to this litigation." Id. At *5. Thus, the court held that defendant waived its privilege by disclosing the communication "to an employee of a non-party" — its own subsidiary. Id. Fortunately for defendant, the court also found the work product doctrine applicable, and held that disclosing the email to the subsidiary did not waive that separate protection.

This is a remarkable decision. The common interest doctrine should never have become an issue, because the in-house lawyer jointly represented the parent and its subsidiary. And the court's apparent insistence that every common interest participant must itself anticipate litigation could reward some obvious mischief — plaintiffs could threaten a number of possible defendants, but later disclaim any intent to sue one of them. All in all, cases like this highlight the risk of relying on the common interest doctrine.

Case Date Jurisidction State Cite Checked
2016-03-29 Federal LA
Comment:

key case


Chapter: 26.902

Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
August 5, 2015 (PRIVILEGE POINT)

"Court Confirms that Corporations do not Waive Their Privilege by Communicating with Their Affiliates"

The attorney-client privilege provides such a fragile protection that disclosure to nearly any third party waives the protection. Does that general rule apply to communications among corporate affiliates? Surprisingly few decisions have addressed this issue.

In Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015), the plaintiff claimed that a Trump entity waived its privilege by including in its communication an employee of another Trump entity. The court rejected plaintiff's waiver argument — confirming that "if a corporation with a legal interest in an attorney-client communication relays it to another related corporation, the attorney-client privilege is not thereby waived." Id. At *39. Interestingly, the court primarily relied on a 41-year-old District of South Carolina case. Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1184-85 (D.S.C. 1974). The most recent case cited by the court was nearly 20 years old. Id. At *39-40. One might have expected the court to rely on more recent case law.

Corporations should take comfort in this latest articulation of a principle that many lawyers think goes without saying.

Case Date Jurisidction State Cite Checked
2015-06-09 Federal CA
Comment:

key case


Chapter: 26.902

Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(holding that an executive of a corporate affiliate was within the privilege, so his presence did not destroy the privilege protection, and disclosing privileged communications that did not waive the privilege; "Corporations can claim an attorney-client privilege over their own communications with attorneys, and courts have extended the privilege to communications between a parent corporation and its attorneys which are also communicated to a subsidiary."; "Thus, if a corporation with a legal interest in an attorney-client communication relays it to another related corporation, the attorney-client privilege is not thereby waived."; "The Ninth Circuit has observed in dicta that 'communications between employees of a subsidiary corporation and counsel for the parent corporation, like communications between former employees and corporate counsel, would be privileged if the employee possesses information critical to the representation of the parent company and the communications concern matters within the scope of employment.'. . . Moreover, the clear implication of this dictum -- that a parent corporation and its wholly owned subsidiary should be treated as a single entity for purposes of applying the attorney-client privilege doctrine -- has found support in a number of district court decisions applying federal common law privilege rules.")

Case Date Jurisidction State Cite Checked
2015-06-09 Federal CA
Comment:

key case


Chapter: 26.902

Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("The Court finds that the privilege attaching to these documents has not been waived. The presence of a third party does not waive the attorney-client privilege if that presence is 'essential to and in furtherance of the communication.'. . . To the extent that these documents were shared within the corporate family, such as those sent to or from VE [parent corporation], such involvement was essential to and in furtherance of the communications with the attorneys involved.")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal DE

Chapter: 26.902

Case Name: Crabb v. KFC Nat'l Mgmt. Co., No 91-5474, 1992 U.S. App. LEXIS 38268, at *7-8 (6th Cir. Jan. 6, 1992)
("It is well settled that attorney-client privilege is not waived merely because the communications involved extend across corporate structures to encompass parent corporations, subsidiary corporations, and affiliated corporations.")

Case Date Jurisidction State Cite Checked
1992-01-06 Federal B 8/13

Chapter: 26.903

Case Name: Huntington Chase Condominium Assoc. v. Mid-Century Ins. Co., No. 16 C 4877, 2017 U.S. Dist. LEXIS 14082 (N.D. Ill. Feb. 1, 2017)
("However, if a control group member communicates with someone outside of the control group, the privilege is lost.")

Case Date Jurisidction State Cite Checked
2017-02-01 Federal IL

Chapter: 26.903

Case Name: Thomas v. Kellogg Company, Case No. C13-5136-RBL, 2016 U.S. Dist. LEXIS 66881 (W.D. Wash. May 20, 2016)
("Documents disseminated beyond those with a 'need to know' for legal advice purposes are not privileged.")

Case Date Jurisidction State Cite Checked
2016-05-20 Federal WA

Chapter: 26.903

Case Name: EEOC v. Texas Roadhouse, Inc., Civ. A. No. 11-cv-11732-DJC, 2015 U.S. Dist. LEXIS 161929 (D. Mass. Dec. 2, 2015)
("Communications retain their privileged status if relayed to other employees or officers of the corporation who need to know the information. When the communications are repeated to employees who do not need the information to carry out their work or make decisions, the privilege is lost.")

Case Date Jurisidction State Cite Checked
2015-12-02 Federal MA
Comment:

key case


Chapter: 26.903

Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
(finding that a company president fell within the Illinois control group, but that the company's controller did not; "Illinois applies the control group test to determine if communications between a corporation and its counsel are protected. . . . The Court is satisfied that Bloom meets this test by virtue of his position as the Agency's President."; "Corporate employees qualify as the 'client' for purposes of the attorney-client privilege under Illinois law only when they satisfy the control group test. . . . Plaintiffs must show that Ms. Whitney [Company's controller] is part of the Agency's 'top management who have the ability to make a final decision' rather than only advisory decisions."; "Plaintiffs do not rely on her position as the Agency's controller to support their claim. They appear to assume that Whitney's employee status confers a common legal interest per se. If that were the case, corporations could routinely disseminate privileged communications with all of their employees and hide beneath the broad cloak of the common interest doctrine. Clearly, that is not the case. Thus Plaintiffs have failed to carry their burden of showing that emails that included her did not waive the attorney-client privilege. Assertions of the work product doctrine are waived for the same reasons.").

Case Date Jurisidction State Cite Checked
2015-06-18 Federal IL

Chapter: 26.903

Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
(inexplicably holding that intra-corporate disclosure of work product to an employee outside the control group waived the work product protection; "Plaintiffs do not rely on her position as the Agency's controller to support their claim. They appear to assume that Whitney's employee status confers a common legal interest per se. If that were the case, corporations could routinely disseminate privileged communications with all of their employees and hide beneath the broad cloak of the common interest doctrine. Clearly, that is not the case. Thus Plaintiffs have failed to carry their burden of showing that emails that included her did not waive the attorney-client privilege. Assertions of the work product doctrine are waived for the same reasons.")

Case Date Jurisidction State Cite Checked
2015-06-18 Federal IL

Chapter: 26.903

Case Name: AU Electronics, Inc. v. Harleysville Group, Inc., Case No. 13 C 5947, 2014 U.S. Dist. LEXIS 72862 (N.D. Ill. May 28, 2014)
(explaining that disclosing privileged communications under the control group standard to those outside the control group waived attorney-client privilege protection; "Under Illinois law, privileged communications lose their privileged status if disseminated to person not in the control group.").

Case Date Jurisidction State Cite Checked
2014-05-28 Federal IL

Chapter: 26.903

Case Name: AU Electronics, Inc. v. Harleysville Group, Inc., Case No. 13 C 5947, 2014 U.S. Dist. LEXIS 72862 (N.D. Ill. May 28, 2014)