Showing 164 of 164 results

Chapter: 11

Case Name: R.L.R. v. Florida, No. 3D13-1025, 2013 Fla. App. LEXIS 9688 (Fla. 3d Cir. June 19, 2013)
(holding that a pro bono lawyer who was acting as a guardian ad litem could not be ordered to disclose the location of his run-away adolescent client; "The issue presented in the petition is whether a trial court may order attorneys to disclose a minor client's location when the attorneys obtained that information from the client during the course of representation and were instructed that the information was to be kept confidential and was not to be disclosed. We find no exception to the attorney-client privilege that would support the trial court's order to disclose.")

Case Date Jurisidction State Cite Checked
2013-06-19 State FL
Comment:

client's location is privileged


Chapter: 11.6

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)
("The attorney-client privilege does not apply to categorically bar discovery of the third category of materials: emails discussing I-ICCA's fee agreement and the fee agreements themselves. Under Illinois law, attorney retention agreements 'are not covered by the attorney-client privilege unless they disclose confidential communications between the parties who have executed the agreement.'"; "Emails discussing fee agreements are not covered by the privilege unless they discuss legal advice or confidential materials."; "We do not exclude the possibility that confidential communications relating to legal advice may arise in connection with billing matters. . . . we reject plaintiffs broad brush assertion that all of those materials are privileged. We order HCCA to produce the logged fee agreements and emails, but will allow HCCA to redact from them specific portions that it believes would qualify for attorney client privilege protection under our ruling today.")

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

Chapter: 11.6

Case Name: Lightstyles, Ltd. v. Marvin Lumber & Cedar Co., Civ. No. 1:13-cv-1510, 2014 U.S. Dist. LEXIS 69606, at *4 (M.D. Pa. May 21, 2014)
("We believe that the redacted line in the engagement letter should be protected. It is not just a 'generic' description of services.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal PA B 7/16

Chapter: 11.6

Case Name: Sullivan v. Alcatel-Lucent USA, Inc., Case No. 12 C 7528, 2013 U.S. Dist. LEXIS 82407, at *6-7 (N.D. Ill. June 12, 2013)
(applying the Illinois control group test, and analyzing each employee to determine if the employee was inside privilege protection; "[P]ayment of fees and information regarding fees are generally not privileged. . . . Nonetheless, confidential communications relating to legal advice arising in connection with billing matters may be subject to protection.")

Case Date Jurisidction State Cite Checked
2013-06-12 Federal IL B 4/14

Chapter: 11.6

Case Name: Crabtree v. Cent. Fla. Inv., Inc. Deferred Comp. Plan, Case No. 6:12-cv-656-ORL-31TBS, 2013 U.S. Dist. LEXIS 35289, at *14-15 (M.D. Fla. Mar. 14, 2013)
(finding the privilege protects certain fee information; "[I]t is appropriate for the Firm to produce for inspection and copying, its first engagement agreement with Crabtree. The agreement can be redacted to conceal any attorney-client, work product or economic information it may contain. Economic information includes information concerning the nature of the fee as fixed, contingent or otherwise; the amount of any retainer; the amount of the fee; hourly rates; cost deposits; agreements as to costs; and any other information that would inform Defendants of the financial arrangement between Crabtree and his lawyers.")

Case Date Jurisidction State Cite Checked
2013-03-14 Federal FL B 3/14

Chapter: 11.301

Case Name: In re Uehling, Case Nos. 1: 13-mc-00022-BAM & 2: 12-cv-01301-SLG, 2013 U.S. Dist. LEXIS 90867, at *24 (E.D. Cal. June 27, 2013)
("Uehling's assertion of the attorney-client privilege to these questions was improper for two reasons. First, by refusing to answer whether attorneys from Ameritox represented Uehling, Uehling failed to demonstrate the existence of an attorney-client relationship. Second, none of Millennium's [plaintiff] questions inquired into the substance of any potential communications. Millennium's questions inquired if any communications ever took place. Information of this type is not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-06-27 Federal CA B 4/14

Chapter: 11.301

Case Name: Bowman v. Green Tree Servicing, Inc., Civ. A. No. 3:12 CV 31, 2012 U.S. Dist. LEXIS 146473, at *7 (N.D. W. Va. Oct. 11, 2012)
("The authority is unanimous for the proposition that 'in the absence of unusual circumstances, the fact of a retainer, the identity of the client, the conditions of employment and the amount of the fee do not come within the privilege of the attorney-client relationship.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-10-11 Federal WV B 12/13

Chapter: 11.302

Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 153852 (D. Neb. Nov. 13, 2015)
("The attorney-client privilege does not attach to every communication between an attorney and a client. For example, the privilege does not attach to communications that do not contain confidential information and reveal only the relationship between the parties, the reason a law firm was hired, and the steps which the law firm intends to take in discharging its obligation to the client.")

Case Date Jurisidction State Cite Checked
2015-11-13 Federal NE

Chapter: 11.302

Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
(analyzing log entries; "'The fact of representation itself is innocuous and is not subject to the protections of the attorney-client privilege.'")

Case Date Jurisidction State Cite Checked
2014-11-12 Federal IL

Chapter: 11.302

Case Name: Osgood v. Discount Auto Parts, LLC, No. 3:13-cv-1364-J-34PDB, 2014 U.S. Dist. LEXIS 123788 (M.D. Fla. Aug. 27, 2014)
("The fact of the referral is not a privileged attorney/client communication.")

Case Date Jurisidction State Cite Checked
2014-08-27 Federal FL

Chapter: 11.302

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civil Action No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *4-6 n.1 (W.D. Va. July 9, 2014)
("In this case, the parties agree that the existence of the attorney-client relationship is not privileged against disclosure. Furthermore, Gasco's counsel has not asserted that the attorney-client privilege prevents Ratliff from answering questions regarding whether he consulted with an attorney and the timing of the consultations. The issue here is whether Virginia law protects from disclosure the general subject matter of the consultation and whether the questions put to Ratliff call for disclosure of only the general subject matter of the consultation or call for disclosure of the confidential communications. Counsel have not provided the court with, and the court has not found, any Virginia precedent addressing this specific issue. While not binding on this court in this instance, federal precedent in this circuit recognizes that 'the general purpose of the work performed [is] usually not protected from disclosure by the attorney-client privilege . . . Because such information ordinarily reveals no confidential professional communications between attorney and client.' . . . . The questions put to Ratliff ask whether he consulted with counsel 'about' the addendum or the counterclaim. To answer the questions, Ratliff would not be required to reveal any information he conveyed to his counsel. Nor would he be required to reveal any information or advice he received from his counsel. Therefore, I find that these questions seek only the general purpose of the consultations with counsel. I further hold that, since Virginia law protects as privileged only 'communications' with counsel, that it would not protect from disclosure the general subject matter of the consultations.")

Case Date Jurisidction State Cite Checked
2014-07-09 Federal VA

Chapter: 11.302

Case Name: Barnard Pipeline, Inc. v. Travelers Property Casualty Co. of Am., CV 13-07-BU-DLC, 2014 U.S. Dist. LEXIS 64644 (D. Mont. May 2, 2014)
(analyzing privilege issues in a first party insurance case; "The date upon which Barnard [insured] retained outside counsel in this case is not protected by the attorney-client privilege. The retention date is purely factual, would not itself have influenced or informed any advice Barnard received from counsel, and is not a communication 'which might not have been made absent the privilege.' Id.")

Case Date Jurisidction State Cite Checked
2014-05-02 Federal MT

Chapter: 11.302

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *15-16 (D. Nev. June 18, 2013)
("Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2013-06-18 Federal NV B 4/14

Chapter: 11.302

Case Name: United States v. Leonard-Allen, 724 F.3d 780, 784 (7th Cir. 2013)
(upholding a conviction of a defendant convicted of perjury for testifying that her lawyer had not referred her to a bank lawyer; noting that a form indicated that he had referred her to a bank lawyer; "Losey's [defendant's bankruptcy lawyer] form does not meet that description. Leonard-Allen's disclosure of who referred her does not reflect either the lawyer's or the client's thinking, and it was not instrumental to the substance of the bankruptcy advice that Losey provided. The form is more akin to information about attorneys' fees. The latter information falls outside the scope of the privilege because fees are incidental to the substance of representation.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 4/14

Chapter: 11.302

Case Name: Levy v. Senate of Pa., 65 A.3d 361, 370, 371-72 (Pa. 2013)
("Many courts, including the [Pennsylvania] Superior Court and the Court of Appeals for the Third Circuit, have concluded that client identities, while generally not privileged, should be protected in limited circumstances. Courts have applied exceptions to the general rule where, under unusual facts of a specific case, revelation of the client's identity would reveal information otherwise protected by the attorney-client privilege, thus undermining the privilege's purpose of encouraging open communication between attorney and client. The exceptions fall into the overlapping categories of 'confidential communication,' 'legal advice,' and 'last link.'"; "Consistently with many of sister courts, we hold that, while a client's identity is generally not privileged, the attorney-client privilege may apply in cases where divulging the client's identity would disclose either the legal advice given or the confidential communications provided. . . . We do not adopt the 'last link,' or some of the framings of the other categories of exceptions, because of their focus on the potential negative consequences of the disclosure rather than on whether exposing the identity will divulge otherwise protectable information. . . . [T]he exception applies in both civil and criminal cases. Application of the exception, however, will involve case specific determinations of whether revealing the otherwise non-privileged identity will result in the disclosure of privileged information based upon what has been previously disclosed.")

Case Date Jurisidction State Cite Checked
2013-01-01 State PA B 3/14

Chapter: 11.302

Case Name: Bowman v. Green Tree Servicing, Inc., Civ. A. No. 3:12 CV 31, 2012 U.S. Dist. LEXIS 146473, at *7 (N.D. W. Va. Oct. 11, 2012)
("The authority is unanimous for the proposition that 'in the absence of unusual circumstances, the fact of a retainer, the identity of the client, the conditions of employment and the amount of the fee do not come within the privilege of the attorney-client relationship.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-10-11 Federal WV B 12/13

Chapter: 11.302

Case Name: Parsons v. Commonwealth, 154 Va. 832, 849, 152 S.E. 547, 553 (1930)
(finding it proper for a criminal defendant to have been asked "merely to state if he had retained some lawyer to represent another man" and not "to disclose anything which he had said to his own counsel")

Case Date Jurisidction State Cite Checked
1930-01-01 State VA

Chapter: 11.303

Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2017-02-13 Federal NV

Chapter: 11.303

Case Name: Zelen v. United States, No. 14-55657, 2016 U.S. App. LEXIS 17096 (9th Cir. App. Sept. 19, 2016)
(holding that bank records did not deserve privilege protection; "The district court properly concluded that the attorney-client privilege did not apply because 'there is no confidentiality where a third party such as a bank either receives or generates the documents sought by the IRS.' Reiserer v. United States, 479 F.3d 1160, 1165 (9th Cir. 2007). Contrary to his contention, Zelen failed to demonstrate that any exception applied. See id. (attorney-client privilege generally does not protect a client's identity or fee arrangements); United States v. Blackman, 72 F.3d 1418, 1424 (9th Cir. 1995) (limited exception to the attorney-client privilege exists 'where disclosure would compromise confidential communications between attorney and client or constitute the 'last link' in an existing chain of evidence likely to lead to the client's indictment').")

Case Date Jurisidction State Cite Checked
2016-09-19 Federal

Chapter: 11.303

Case Name: Le v. Zuffa, LLC, Case No. 2:15-cv-01045-RFB-PAL, 2016 U.S. Dist. LEXIS 69813 (D. Nev. May 26, 2016)
("Not all communications between an attorney and client are privileged. Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2016-05-26 Federal NV

Chapter: 11.303

Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 U.S. Dist. LEXIS 122955 (D. Kan. Sept. 15, 2015)
(holding that a plaintiff did not have to identify prospective clients; "The Court here declines to address whether the identities or names of potential clients who contacted Plaintiff's counsel about potential representation of their own possible discrimination claims, allegedly after hearing about Plaintiff's claims against Defendant, are themselves privileged information or otherwise protected from disclosure. As the Court previously pointed out to the parties, caselaw in this District suggests that client identities are not protected by the attorney-client privilege. However, given the concerns raised by Plaintiff's counsel and the fact that the purpose of the privilege log can be satisfied in this case without identifying the clients or potential clients, the Court will not require the inclusion of the names of the potential clients in the privilege log. Based upon the other information provided in Plaintiff's privilege log, Defendant can adequately assess the claim of privilege without the potential clients' name.")

Case Date Jurisidction State Cite Checked
2015-09-15 Federal KS

Chapter: 11.303

Case Name: Exobox Technologies Corp. v. Tsambis, Case No. 2:14-cv-501-RFB-VCF, 2014 U.S. Dist. LEXIS 142748 (D. Nev. Oct. 7, 2014)
("The parties agree that the attorney-client privilege protects communications, not facts or the identity of an attorney's client.")

Case Date Jurisidction State Cite Checked
2014-10-07 Federal NV

Chapter: 11.303

Case Name: Libertarian Party of Ohio v. Husted, Case No. 2:13-cv-953, 2014 U.S. Dist. LEXIS 111338 (S.D. Ohio Aug. 12, 2014)
("Typically, the identity of a client is not protected by the attorney-client privilege. . . . Nor is the payment of fees typically protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-08-12 Federal OH

Chapter: 11.303

Case Name: Zelen v. United States, Case. No. CV 13-6430-JFW (JEMx), 2014 U.S. Dist. LEXIS 49225 (C.D. Cal. March 6, 2014)
(proving that trust account information did not deserve privilege protection; "As to documents revealing the identity of clients, the attorney-client privilege generally does not protect client identity or fee arrangements.")

Case Date Jurisidction State Cite Checked
2014-03-06 Federal CA

Chapter: 11.303

Case Name: XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., Civ. A. No. 12-2071 SECTION "R" (2), 2014 U.S. Dist. LEXIS 9598, at *22, *24, *24-25 (E.D. La. Jan. 24, 2014)
(holding that a litigant seeking the recovery of attorney's fees waived any privilege protection that would otherwise cover the lawyer's bills; "The vast majority of the contents of the fee statements are not attorney-client privileged or work product protected in the first instance. 'Inquiry into the general nature of the legal services provided by counsel does not necessitate an assertion of the privilege because the general nature of services is not protected by the privilege.' . . . 'As a general rule, client identity and fee arrangements are not protected as privileged.'" (citation omitted); "[T]o the extent that the attorney-client privilege may arguably protect some portions of invoices, the privilege is waived by seeking reimbursement for attorney's fees."; "The fact that Bollinger's claim for reimbursement of attorneys fees reflected in these statements is a core element of the monetary recovery it seeks in this case necessarily requires Bollinger to place the reasonableness of their attorneys' work and fees at issue. Thus, Bollinger has waived its privilege (if any) as to these invoices under the 'at issue' waiver doctrine.")

Case Date Jurisidction State Cite Checked
2014-01-24 Federal LA B 6/14

Chapter: 11.303

Case Name: Elan Microelectronics Corp. v. Pixcir Microelectronics Co., Case No. 2:10-cv-00014-GMN-PAL, 2013 U.S. Dist. LEXIS 114788, at *12 (D. Nev. Aug. 14, 2013)
("Not all communications between an attorney and client are privileged. Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2013-08-14 Federal NV B 4/14

Chapter: 11.303

Case Name: R.L.R. v. State, 116 So. 3d 570, 573 n.5 (Fla. Dist. Ct. App. 2013)
(holding that a pro bono lawyer who was acting as a guardian ad litem could not be ordered to disclose the location of his run-away adolescent client; "Those cases cited by the lower court for the proposition that the attorney-client privilege does not apply to an address are inapplicable. . . . R.L.R.'s is not a debtor-creditor case and there is more at stake here than mere financial interests. R.L.R. gave his location to his attorneys with the intent and instruction that his location remain confidential and not be disclosed.")

Case Date Jurisidction State Cite Checked
2013-01-01 State FL B 4/14

Chapter: 11.303

Case Name: United States v. Under Seal (In re Grand Jury Subpoena), 204 F.3d 516, 519-21, 523 (4th Cir. 2000)
(finding that a client who authorized his lawyer (Rochon) to write a letter to a third party (Davies) regarding the client's intentions in connection with profit allegedly involving drug dealings could not thereafter claim that the attorney-client privilege protected his identity; "[d]espite his authorization of Rochon's letter to Davies, the client claims that he never intended for Rochon to reveal his identity. It follows, he argues, that since Rochon's letter reveals his motives or purposes in seeking legal advice, matters that are ordinarily privileged, the court must extend that privilege to his identity, which is not ordinarily privileged. We conclude that the client cannot create a privilege that protects his identity by voluntarily disclosing a confidential communication. If we extended the privilege to the client's identity in this case, we would be allowing him to do just that. Therefore, the client's identity is not protected."; noting that the Fourth Circuit followed a stricter test than other Circuits involving the issue of client identity; "[s]ince deciding Harvey, we have consistently held that a client's identity is privileged only if disclosure would in essence reveal a confidential communication. Although other circuits have, at times, indicated a willingness to protect a client's identity or fee information because disclosure would either implicate the client in the very criminal activity for which legal advice was sought, or supply the 'last link' in an existing chain of incriminating evidence likely to lead to the client's indictment. Instead, we have insisted that the client demonstrate that disclosure would reveal a confidential, privileged communication." (citations omitted); upholding a district court's refusal to quash a subpoena seeking the identity of a client, despite the lawyer's argument that the client's identity would not be revealed during the course of the lawyer's representation; holding that "'we know of no authority . . . holding that a client's beliefs, subjective or objective, about the law of privilege can transform an otherwise unprivileged conversation into a privileged one.'" (quoting In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 923 (8th Cir.), cert. denied, 521 U.S. 1105 (1997))

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

Chapter: 11.303

Case Name: United States v. Under Seal (In re Grand Jury Subpoena), 204 F.3d 516, 520-21 (4th Cir. 2000)
("Since deciding Harvey [NLRB v. Harvey, 264 F. Supp. 770, 772 (W.D. Va. 1966)], we have consistently held that a client's identity is privileged only if disclosure would in essence reveal a confidential communication. . . . Although other circuits have, at times, indicated a willingness to protect a client's identity or fee information because disclosure would either implicate the client in the very criminal activity for which legal advice was sought, . . . , or supply the 'last link' in an existing chain of incriminating evidence likely to lead to the client's indictment, . . . . Instead, we have insisted that the client demonstrate that disclosure would reveal a confidential, privileged communication. Here, the client asserts that disclosure would reveal the following confidential motives or purposes: (1) that he 'was concerned with the allegations raised by Mr. Davies' letters'; (2) that he 'sought Mr. Rochon's legal advice and assistance in avoiding the possibility of impending litigation concerning 37 Forrester Street'; and (3) that he 'wanted Mr. Rochon to potentially help him re-title the property in his name and remedy the drug trafficking and other problems occurring on the property.' All of these, however, are motives or purposes that the client voluntarily disclosed and, as such, are no longer confidential.")

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

Chapter: 11.303

Case Name: NLRB v. Harvey, 349 F.2d 900, 904-05 (4th Cir. 1965)
("Generally, the identity of the attorney's client is not considered privileged matter."; however, "[t]he privilege may be recognized when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication"; remanding for an evidentiary hearing; holding that a retainer agreement was not protected by the attorney-client privilege)

Case Date Jurisidction State Cite Checked
1965-01-01 Federal

Chapter: 11.304

Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Exhibit E contains a DRC and SPS Watchlist Meeting Agenda for a February 4, 2014 meeting, which lists the names of all employees involved, and the memoranda for the issues discussed at the meeting. Again, the four-page Agenda cover sheet should be produced in its entirety, while the memoranda should be produced but with the 'Updates SPS' sections redacted. Where appropriate to protect privileged information, Wells Fargo may also redact additional information, including that contained under the columns 'Expense Amt,' 'Litigation Stage,' and 'Lit Status.'")

Case Date Jurisidction State Cite Checked
2017-03-09 Federal NY

Chapter: 11.304

Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 25694 (N.D. Ill. March 3, 2015)
("Request 44 to Carnival and Request 43 to Royal Caribbean and Norwegian seeks the identity of attorneys retained to provide representation in regards to these allegations. . . . The identity of attorneys, even those who have not filed a formal appearance in this matter, is not privileged.")

Case Date Jurisidction State Cite Checked
2015-03-03 Federal IL

Chapter: 11.304

Case Name: Osgood v. Discount Auto Parts, LLC, No. 3:13-cv-1364-J-34PDB, 2014 U.S. Dist. LEXIS 123788 (M.D. Fla. Aug. 27, 2014)
("The fact of the referral is not a privileged attorney/client communication.")

Case Date Jurisidction State Cite Checked
2014-08-27 Federal FL

Chapter: 11.304

Case Name: Barnard Pipeline, Inc. v. Travelers Property Casualty Co. of Am., CV 13-07-BU-DLC, 2014 U.S. Dist. LEXIS 64644 (D. Mont. May 2, 2014)
(analyzing privilege issues in a first party insurance case; "The date upon which Barnard [insured] retained outside counsel in this case is not protected by the attorney-client privilege. The retention date is purely factual, would not itself have influenced or informed any advice Barnard received from counsel, and is not a communication 'which might not have been made absent the privilege.' Id.")

Case Date Jurisidction State Cite Checked
2014-05-02 Federal MT

Chapter: 11.304

Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *13-14 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "Additionally, the attorney-client privilege does not foreclose inquiry into the general nature of the lawyer's activities on behalf of a client, conditions of the lawyer's employment or any other external trappings of the relationship. The privilege is concerned only with confidential communications, not with the structural framework within which they are uttered.")

Case Date Jurisidction State Cite Checked
2014-02-04 Federal CT B 6/14

Chapter: 11.304

Case Name: Chimney Rock Pub. Power Dist. v. Tri-State Generation & Transmission Ass'n., Civ. A. No. 10-cv-02349-WJM-KMT, 2013 U.S. Dist. LEXIS 67714, at *11 (D. Colo. May 13, 2013)
("The engagement letter contains a limited amount of privileged information because it reflects the lawyer's understanding of Tri-State's 'motive in seeking representation' and some information which could be characterized as 'litigation strategy.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-05-13 Federal CO B 3/14

Chapter: 11.305

Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("While the email is a communication between client and counsel, a billing document such as an invoice that does not itself contain legal advice is not privileged, much like a retainer agreement.")

Case Date Jurisidction State Cite Checked
2016-11-18 Federal NY

Chapter: 11.305

Case Name: Wellin v. Wellin, C.A. No. 2:13-CV-1831-DCN, C.A. No. 2:13-CV-3595-DCN, C.A. No. 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
("The document concerns the execution of the engagement letter, a subject which is generally not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-12-04 Federal SC

Chapter: 11.305

Case Name: United States v. Leonard-Allen, 724 F.3d 780, 784 (7th Cir. 2013)
(upholding a conviction of a defendant convicted of perjury for testifying that her lawyer had not referred her to a bank lawyer; noting that a form indicated that he had referred her to a bank lawyer; "Losey's [defendant's bankruptcy lawyer] form does not meet that description. Leonard-Allen's disclosure of who referred her does not reflect either the lawyer's or the client's thinking, and it was not instrumental to the substance of the bankruptcy advice that Losey provided. The form is more akin to information about attorneys' fees. The latter information falls outside the scope of the privilege because fees are incidental to the substance of representation.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 4/14

Chapter: 11.306

Case Name: In re Ryan Uehling, Case No. 1: 13-mc-00022-BAM, Case No. 2: 12-cv-01301-SLG, 2013 U.S. Dist. LEXIS 90867 (E.D. Cal. June 27, 2013)
("Uehling's assertion of the attorney-client privilege to these questions was improper for two reasons. First, by refusing to answer whether attorneys from Ameritox represented Uehling, Uehling failed to demonstrate the existence of an attorney-client relationship. Second, none of Millennium's questions inquired into the substance of any potential communications. Millennium's questions inquired if any communications ever took place. Information of this type is not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-06-27 Federal CA

Chapter: 11.402

Case Name: Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966, 2016 Fla. App. LEXIS 9575 (Fla. Dist. Ct. App. June 22, 2016)
September 7, 2016 (PRIVILEGE POINT)

"Drawing the Line Between Unprotected Logistics About Privileged Communications and Their Protected Content"

Courts agree that in nearly every situation the attorney-client privilege does not protect the logistics of privileged communications — such as when and where clients and lawyers communicate. Similarly, the privilege normally does not protect clients' or lawyers' identities, or the general subject matter of their communications. But of course the privilege can protect such communications' content.

In Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966, 2016 Fla. App. LEXIS 9575 (Fla. Dist. Ct. App. June 22, 2016), defendant hospital wanted to depose a sick child's mother, whose lawsuit arguably missed the statute of limitations. The appellate court allowed questions about "the names of attorneys and dates of [the mother's] consultation[s]" — concluding that "these questions do not require her to disclose any communication she had with any attorney [but] merely require her to disclose the occurrence of a consultation with a lawyer regarding a general topic." Id. at *7. Nevertheless, the court reversed the trial court order requiring the mother to answer questions about "'the reasons why she first sought out legal counsel.'"Id. at *9. The court gave an example of an improper question: "'after consulting the first lawyer, why did you seek out a second lawyer?'" Id. at *10.

Most deposing lawyers know that they cannot explicitly seek the substance of adversaries' privileged communications. But the issue can sometimes be more subtle in a deposition setting. One simple way to draw the line between appropriate questions about privileged communications' logistics and improper questions that might invade the privilege is to distinguish between permissible "who, what, when, where" questions and improper "why" questions.

Case Date Jurisidction State Cite Checked
2016-06-22 State FL B 9/16
Comment:

key case


Chapter: 11.402

Case Name: Le v. Zuffa, LLC, Case No. 2:15-cv-01045-RFB-PAL, 2016 U.S. Dist. LEXIS 69813 (D. Nev. May 26, 2016)
("Not all communications between an attorney and client are privileged. Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2016-05-25 Federal NV

Chapter: 11.402

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)
("Nor may RPI redact sentences that merely identify the topic discussed by the board, for example: 'JS raises the topic on [sic] the litigations.'")

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

Chapter: 11.402

Case Name: Sprint Comm. Co. L.P. v. Comcast Cable Comm. LLC, Case No. 11-2684-JWL, 2014 U.S. Dist. LEXIS 154346 (D. Kansas Oct. 31, 2014)
("[I]n essence, defendants contend that any communication made by the attorney to the client during the course of the client's engagement of the attorney for legal advice is privileged, whatever the content. The Court concludes, however, that the Magistrate Judge did not err in refusing to apply such a standard, as the law is clear that the privilege does not protect all attorney-client communications during the course of such an engagement."; "It is black-letter law -- and defendants have not disputed -- that not every communication between attorney and client is privileged, and attorneys have always had to bear that fact in mind in communicating with their clients. Defendants make the puzzling argument that, even if particular communications do not reveal legal advice or strategies or confidences, their disclosure 'in the aggregate' could reveal confidences that the privilege is intended to protect. As the Tenth Circuit has noted, however, if a communication tends to reveal confidential information, it is protected. If it does not, then it should not be protected, regardless of how many such innocuous communications there are. Indeed, in the most absurd example, under defendants' standard, communications stating no more than 'yes' or 'let's talk about that at the golf course' would be privileged if they were made in the course of a legal engagement; such communications are clearly not privileged, however, as the privilege does not protect the mere fact of a communication or of the relationship between the attorney and client, or the general description of the attorney's work."; "The communication does not reveal any legal analysis performed by the attorney, who merely listed all references to cable companies in the transcript (and who thus did not, as defendants argue, make some analytical decision about what to list). The document reveals that the attorney was merely acting as a conduit for information from another source (a public transcript). Moreover, the e-mail does not tend to reveal any client confidences or legal advice or strategy; the most it reveals is that the clients asked the attorney to review the transcript for references to cable companies, and such a general description of work performed or requested is not privileged.")

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

Chapter: 11.402

Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *13 (D. Conn. Sept. 2, 2014)
("Bates No. 38 is an Outlook calendar entry noting a cancelled conference call with Attorney Duhl 'to discuss FedEx package.' The Court finds that this document is not protected by the attorney-client privilege because it does not reveal confidential legal advice, the specific nature of the services provided, or the motive of defendant in seeking representation.")

Case Date Jurisidction State Cite Checked
2014-09-02 Federal CT

Chapter: 11.402

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794 (W.D. Va. Aug. 14, 2014)
("Gasco makes a half-hearted argument that Virginia forbids the disclosure of the subject matter of any communication under the privilege, but I find its reading of the Virginia authority to be faulty."; "The overwhelming authority from around the country is that the subject matter of an attorney-client communication is not privileged. Indeed, numerous aspects of the attorney-client relationship are subject to disclosure.")

Case Date Jurisidction State Cite Checked
2014-08-14 Federal VA

Chapter: 11.402

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civil Action No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *4-6 n.1 (W.D. Va. July 9, 2014)
("In this case, the parties agree that the existence of the attorney-client relationship is not privileged against disclosure. Furthermore, Gasco's counsel has not asserted that the attorney-client privilege prevents Ratliff from answering questions regarding whether he consulted with an attorney and the timing of the consultations. The issue here is whether Virginia law protects from disclosure the general subject matter of the consultation and whether the questions put to Ratliff call for disclosure of only the general subject matter of the consultation or call for disclosure of the confidential communications. Counsel have not provided the court with, and the court has not found, any Virginia precedent addressing this specific issue. While not binding on this court in this instance, federal precedent in this circuit recognizes that 'the general purpose of the work performed [is] usually not protected from disclosure by the attorney-client privilege . . . Because such information ordinarily reveals no confidential professional communications between attorney and client.' . . . . The questions put to Ratliff ask whether he consulted with counsel 'about' the addendum or the counterclaim. To answer the questions, Ratliff would not be required to reveal any information he conveyed to his counsel. Nor would he be required to reveal any information or advice he received from his counsel. Therefore, I find that these questions seek only the general purpose of the consultations with counsel. I further hold that, since Virginia law protects as privileged only 'communications' with counsel, that it would not protect from disclosure the general subject matter of the consultations.")

Case Date Jurisidction State Cite Checked
2014-07-09 Federal VA

Chapter: 11.402

Case Name: Yarberry v. Gregg Appliances, Inc., Case No. 1:12-cv-611, 2013 U.S. Dist. LEXIS 117198, at *8-9, *12, *12-13 (S.D. Ohio Aug. 19, 2013)
("hhgregg [defendant's parent company] asserts that the Ms. Bush's [Associate Relations Manager] notes are not privileged information and, thus, cannot support Plaintiff's waiver argument. The notes contained on the email concerning Plaintiff's proposed termination letter state, in toto: 'advised 2 proceed w/term but HR will send revised verbiage' and 'TT Stuart...proceed w/term.'"; "Thus, the fact that an attorney has examined a matter or a release of the findings of a special report does not result in waiver of the privilege. As such, a mere acknowledgment that an attorney has looked into a particular question which does not divulge the subject matter of the attorney's whole line of inquiry does not waive attorney-client privilege. . . . Likewise, a release of a report's findings, without revealing the facts that led to the findings does[] not divulge the subject matter of that report and does not waive attorney-client privilege."; "Under the standards set forth in Grand Jury Proceedings October 12, 1995, [78 F.3d 251 (6th Cir. 1996),] the undersigned finds that Ms. Bush's handwritten notes on the email chain do not operate to waive hhgregg's attorney-client privilege. Ms. Bush's notes do not reveal the substance of Mr. Buttrick's advice, any facts upon which Mr. Buttrick's[sic] based his advice upon, nor his reasoning behind his advice.")

Case Date Jurisidction State Cite Checked
2013-08-19 Federal OH B 4/14

Chapter: 11.402

Case Name: Elan Microelectronics Corp. v. Pixcir Microelectronics Co., Case No. 2:10-cv-00014-GMN-PAL, 2013 U.S. Dist. LEXIS 114788, at *12 (D. Nev. Aug. 14, 2013)
("Not all communications between an attorney and client are privileged. Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2013-08-14 Federal NV B 4/14

Chapter: 11.402

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *15-16 (D. Nev. June 18, 2013)
("Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2013-06-18 Federal NV B 4/14

Chapter: 11.402

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 100 (Fed. Cl. 2013)
("Although information may be privileged as it appears in an attorney-client communication, the broad subject matter or general nature of the communication or the attorney-client relationship generally is not.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal Other B 3/14

Chapter: 11.402

Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *17 (W.D. Va. April 16, 2009)
(analyzing privilege and work product issues in a first party insurance case; "[T]he court finds that . . . some documents for which Lloyd's asserts the attorney-client privilege are not appropriately withheld (consisting largely of communications between members of Lloyd's and/or its agents that merely mention an attorney)")

Case Date Jurisidction State Cite Checked
2009-04-16 Federal VA B 7/16

Chapter: 11.403

Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2017-02-13 Federal NV

Chapter: 11.403

Case Name: Fish v. Kobach, Case No. 16-2105-JAR-JPO, Case No. 15-9300-JAR-JPO, 2016 U.S. Dist. LEXIS 29628 (D. Kansas March 8, 2016)
("[N]either the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not 'communications.' Nor are 'general topics of attorney-client discussions' or ultimate 'legal conclusions' of counsel protected.")

Case Date Jurisidction State Cite Checked
2016-03-08 Federal KS

Chapter: 11.403

Case Name: Wit v. United Behavioral Health, Case Nos. 14-cv-02346- & -05337-JCS, 2016 U.S. Dist. LEXIS 7242, at *33 (N.D. Cal. Jan. 21, 2016)
("[A]ny privilege that might have been afforded the redacted material in this document has been waived by UBH. In particular, Easterday [defendant's in-house counsel] states in his declaration that the redacted portions of the document in Exhibit H.3 'reflect a request that counsel, my in-house attorney colleague Melissa Brettingen and I, provide legal advice regarding potential litigation exposure relating to utilization management activities.' Because UBH has disclosed in the Easterday Declaration all of the information contained in the redacted portion of UBH-0083 (which contains no substantive legal advice or any specific questions), this material is subject to disclosure. . . . Therefore, UBH must produce this document (UBH-0083) in unredacted form.")

Case Date Jurisidction State Cite Checked
2016-01-21 Federal CA B 7/16

Chapter: 11.403

Case Name: Epic Systems Corp. v. Tata Consultancy Services Ltd., 14-cv-748-wmc, 2015 U.S. Dist. LEXIS 166438 (W.D. Wis. Dec. 10, 2015)
(analyzing privilege and work product issues in connection with internal corporate investigations conducted by Loeb & Loeb; finding the privilege inapplicable and concluding that the plaintiff could overcome any possible work product protection; finding that the privilege did not apply because (among other things) "the report contains no legal advice."; inexplicably concluding that the investigation's focus might have deserve privilege protection; "Perhaps, the subject of the report -- that Attorney La Mar asked TCS to explore inappropriate usage of EPIC's UserWeb and inappropriate adoption of EPIC IP into TCS's Med Mantra product -- would be entitled to privilege, but TCS freely disclosed that Loeb & Loeb, and specifically Attorney La Mar, conducted an investigation into Guionnet's allegations, so that is no basis to claim privilege.")

Case Date Jurisidction State Cite Checked
2015-12-10 Federal WI
Comment:

key case


Chapter: 11.403

Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 153852 (D. Neb. Nov. 13, 2015)
("The attorney-client privilege does not attach to every communication between an attorney and a client. For example, the privilege does not attach to communications that do not contain confidential information and reveal only the relationship between the parties, the reason a law firm was hired, and the steps which the law firm intends to take in discharging its obligation to the client.")

Case Date Jurisidction State Cite Checked
2015-11-13 Federal NE

Chapter: 11.403

Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *13 (D. Conn. Sept. 2, 2014)
("Bates No. 38 is an Outlook calendar entry noting a cancelled conference call with Attorney Duhl 'to discuss FedEx package.' The Court finds that this document is not protected by the attorney-client privilege because it does not reveal confidential legal advice, the specific nature of the services provided, or the motive of defendant in seeking representation.")

Case Date Jurisidction State Cite Checked
2014-09-02 Federal CT

Chapter: 11.403

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794 (W.D. Va. Aug. 14, 2014)
("Gasco makes a half-hearted argument that Virginia forbids the disclosure of the subject matter of any communication under the privilege, but I find its reading of the Virginia authority to be faulty."; "The overwhelming authority from around the country is that the subject matter of an attorney-client communication is not privileged. Indeed, numerous aspects of the attorney-client relationship are subject to disclosure.")

Case Date Jurisidction State Cite Checked
2014-08-14 Federal VA

Chapter: 11.403

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civil Action No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *4-6 n.1 (W.D. Va. July 9, 2014)
("In this case, the parties agree that the existence of the attorney-client relationship is not privileged against disclosure. Furthermore, Gasco's counsel has not asserted that the attorney-client privilege prevents Ratliff from answering questions regarding whether he consulted with an attorney and the timing of the consultations. The issue here is whether Virginia law protects from disclosure the general subject matter of the consultation and whether the questions put to Ratliff call for disclosure of only the general subject matter of the consultation or call for disclosure of the confidential communications. Counsel have not provided the court with, and the court has not found, any Virginia precedent addressing this specific issue. While not binding on this court in this instance, federal precedent in this circuit recognizes that 'the general purpose of the work performed [is] usually not protected from disclosure by the attorney-client privilege . . . Because such information ordinarily reveals no confidential professional communications between attorney and client.' . . . . The questions put to Ratliff ask whether he consulted with counsel 'about' the addendum or the counterclaim. To answer the questions, Ratliff would not be required to reveal any information he conveyed to his counsel. Nor would he be required to reveal any information or advice he received from his counsel. Therefore, I find that these questions seek only the general purpose of the consultations with counsel. I further hold that, since Virginia law protects as privileged only 'communications' with counsel, that it would not protect from disclosure the general subject matter of the consultations.")

Case Date Jurisidction State Cite Checked
2014-07-09 Federal VA

Chapter: 11.403

Case Name: In re Weatherford Int'l Secs. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 110928, at *17-18 (S.D.N.Y. Aug. 5, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing a topic for a Rule 30(b)(6) deposition; requiring the Rule 30(b)(6) deponent to disclose facts about the logistics of an investigation (such as the number of interviews, etc.); holding that the witness did not have to answer what amounted to "why" questions going to motive; "Questions 34 and 35 seek information about why Weatherford's Director of Internal Audit retained counsel, and questions 43 and 44 seek information as to the purpose of counsel's representation of Weatherford's Audit Committee. "[C]ommunications revealing the client's motive in seeking representation . . . are within the attorney-client privilege." . . . Accordingly, the defendants do not need to answer these questions.")

Case Date Jurisidction State Cite Checked
2013-08-05 Federal NY B 4/14

Chapter: 11.403

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 655 (D. Nev. 2013)
("[T]he meeting minutes merely reference an action item related to what an attorney was going to discuss in the future. It provides no details regarding the discussion, other than the topic, and does not reflect the actual solicitation or provision of legal advice. Accordingly, the court cannot conclude that Joint Selection 34 comes within the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 11.404

Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 153852 (D. Neb. Nov. 13, 2015)
("And documents that do not disclose the substance of the attorney-client communications, but merely indicate that discussions occurred, legal services were rendered, and documents were provided to the client are not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-11-13 Federal NE

Chapter: 11.502

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)
("The attorney-client privilege does not apply to categorically bar discovery of the third category of materials: emails discussing I-ICCA's fee agreement and the fee agreements themselves. Under Illinois law, attorney retention agreements 'are not covered by the attorney-client privilege unless they disclose confidential communications between the parties who have executed the agreement.'"; "Emails discussing fee agreements are not covered by the privilege unless they discuss legal advice or confidential materials."; "We do not exclude the possibility that confidential communications relating to legal advice may arise in connection with billing matters. . . . we reject plaintiffs broad brush assertion that all of those materials are privileged. We order HCCA to produce the logged fee agreements and emails, but will allow HCCA to redact from them specific portions that it believes would qualify for attorney client privilege protection under our ruling today.")

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

Chapter: 11.502

Case Name: L.W. v. Lackawanna County, Pa., Civ. A. No. 3:14-CV-01610, 2015 U.S. Dist. 65103 (M.D. Pa. May 19, 2015)
("[A]ttorney-client privilege does not protect fee agreements in most circumstances.")

Case Date Jurisidction State Cite Checked
2015-05-19 Federal PA

Chapter: 11.502

Case Name: Lucas v. Gregg Appliances, Inc., Case No. 1:14-cv-70, 2014 U.S. Dist. LEXIS 168751 (S.D. Ohio Dec. 5, 2014)
("Plaintiff also argues that the fee agreement and progress invoices are protected by the attorney-client privilege and work product doctrine. 'In discovery disputes, a blanket assertion of privilege regarding attorney fee bills is typically not appropriate.'. . . Even if these documents contained information protected by the attorney-client privilege, Plaintiff waived this privilege by forwarding them to Hoerst. However, this does not result in a waiver of the work product doctrine because Hoerst is not an adversary.")

Case Date Jurisidction State Cite Checked
2014-12-05 Federal OH

Chapter: 11.502

Case Name: Zelen v. United States, Case. No. CV 13-6430-JFW (JEMx), 2014 U.S. Dist. LEXIS 49225 (C.D. Cal. March 6, 2014)
(proving that trust account information did not deserve privilege protection; "As to documents revealing the identity of clients, the attorney-client privilege generally does not protect client identity or fee arrangements.")

Case Date Jurisidction State Cite Checked
2014-03-06 Federal CA

Chapter: 11.502

Case Name: XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., Civ. A. No. 12-2071 SECTION "R" (2), 2014 U.S. Dist. LEXIS 9598, at *22, *24, *24-25 (E.D. La. Jan. 24, 2014)
(holding that a litigant seeking the recovery of attorney's fees waived any privilege protection that would otherwise cover the lawyer's bills; "The vast majority of the contents of the fee statements are not attorney-client privileged or work product protected in the first instance. 'Inquiry into the general nature of the legal services provided by counsel does not necessitate an assertion of the privilege because the general nature of services is not protected by the privilege.' . . . 'As a general rule, client identity and fee arrangements are not protected as privileged.'" (citation omitted); "[T]o the extent that the attorney-client privilege may arguably protect some portions of invoices, the privilege is waived by seeking reimbursement for attorney's fees."; "The fact that Bollinger's claim for reimbursement of attorneys fees reflected in these statements is a core element of the monetary recovery it seeks in this case necessarily requires Bollinger to place the reasonableness of their attorneys' work and fees at issue. Thus, Bollinger has waived its privilege (if any) as to these invoices under the 'at issue' waiver doctrine.")

Case Date Jurisidction State Cite Checked
2014-01-24 Federal LA B 6/14

Chapter: 11.502

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 138 (D.D.C. 2013)
(analyzing the impact of plaintiff Feld seeking reimbursement from an insurance company of fees he spent in successfully handling underlying litigation; "[F]or example, the following categories of communications are not shielded from disclosure by the privilege: communications from Fulbright [law firm which represented Feld in the underlying litigation] to Feld about FFIC's position that did not rest on any confidential information obtained from Feld . . .; information on rates relayed by Feld to Fulbright with the intent that it then be conveyed to FFIC . . .; and communications regarding 'fees, costs and invoices,' including any fee arrangement between Feld and Fulbright, that do not reveal litigation strategy or other confidences about the Underlying Action." (internal citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal DC B 4/14

Chapter: 11.502

Case Name: Dudley v. Cash, 82 Va. Cir. 1, 18 n.6 (Va. Cir. Ct. 2010)
("[A]n engagement letter dated March 23, 2006, from Cherokee to Mr. Graves This letter clearly is privileged.")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal VA

Chapter: 11.502

Case Name: Patel v. Allison, 54 Va. Cir. 155, 158 (Va. Cir. Ct. 2000)
("It is generally held that the attorney-client privilege generally does not protect disclosure of information about, inter alia, attorney billing records, attorney fees, and fee arrangements.") [Weckstein, J.]

Case Date Jurisidction State Cite Checked
2000-01-01 State VA nsvb 2/23/04

Chapter: 11.502

Case Name: NLRB v. Harvey, 349 F.2d 900, 904-05 (4th Cir. 1965)
("Generally, the identity of the attorney's client is not considered privileged matter."; however, "[t]he privilege may be recognized when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication"; remanding for an evidentiary hearing; holding that a retainer agreement was not protected by the attorney-client privilege)

Case Date Jurisidction State Cite Checked
1965-01-01 Federal

Chapter: 11.503

Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2017-02-13 Federal NV

Chapter: 11.503

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)
("The attorney-client privilege does not apply to categorically bar discovery of the third category of materials: emails discussing I-ICCA's fee agreement and the fee agreements themselves. Under Illinois law, attorney retention agreements 'are not covered by the attorney-client privilege unless they disclose confidential communications between the parties who have executed the agreement.'"; "Emails discussing fee agreements are not covered by the privilege unless they discuss legal advice or confidential materials."; "We do not exclude the possibility that confidential communications relating to legal advice may arise in connection with billing matters. . . . we reject plaintiffs broad brush assertion that all of those materials are privileged. We order HCCA to produce the logged fee agreements and emails, but will allow HCCA to redact from them specific portions that it believes would qualify for attorney client privilege protection under our ruling today.")

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

Chapter: 11.503

Case Name: Le v. Zuffa, LLC, Case No. 2:15-cv-01045-RFB-PAL, 2016 U.S. Dist. LEXIS 69813 (D. Nev. May 26, 2016)
("Not all communications between an attorney and client are privileged. Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2016-05-26 Federal NV

Chapter: 11.503

Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(analyzing protection for the identity of a person paying a witness's attorney's fees; "During the depositions of Trump University's ('TU') former Controller, Mr. Steven Matejek, and TU's former President, Mr. Michael Sexton, Defendant did not allow questioning about who was responsible for paying the witnesses' attorneys' fees."; "The Court agrees with Plaintiff that with respect to Mr. Matejek and Mr. Sexton, the identity of the fee-payer is not protected by the attorney-client privilege, and therefore, Defendant improperly foreclosed this line of questioning during both depositions.")

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

Chapter: 11.503

Case Name: Libertarian Party of Ohio v. Husted, Case No. 2:13-cv-953, 2014 U.S. Dist. LEXIS 111338 (S.D. Ohio Aug. 12, 2014)
("Typically, the identity of a client is not protected by the attorney-client privilege. . . . Nor is the payment of fees typically protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-08-12 Federal OH

Chapter: 11.503

Case Name: Libertarian Party of Ohio v. Husted, Case No. 2:13-cv-953, 2014 U.S. Dist. LEXIS 111338 (S.D. Ohio Aug. 12, 2014)
("In almost every situation where one person pays the legal fees of another, the fact of that arrangement is fair game for disclosure and no privilege to withhold that fact exists."; "True, revealing the identity of the Unidentified Client allows the public to infer that the client stated to counsel, 'I will pay Mr. Felsoci's legal fees if he files a protest,' or words to that effect. But if that one statement is deemed privileged, the identity of a third-party payer (who, presumably, always makes that type of statement) could never be disclosed. That is just not the law.")

Case Date Jurisidction State Cite Checked
2014-08-12 Federal OH

Chapter: 11.503

Case Name: In re Sherrod, Case No. 14-bk-08950, Ch. 11, 2014 Bankr. LEXIS 2743, *7-8 (N.D. Ill. June 20, 2014)
("[F]or a communication between an attorney and client to obtain privilege, it must concern a fact communicated to the attorney by the client for the purpose of receiving an opinion on law or legal services. . . . Financial information regarding the fact and source of payment of Former Counsel's retainer fee exceeds this narrow scope of privileged communication as, in and of itself, it involves neither legal advice nor services.")

Case Date Jurisidction State Cite Checked
2014-06-20 Federal IL

Chapter: 11.503

Case Name: In re Sherrod, Case No. 14-bk-08950, Ch. 11, 2014 Bankr. LEXIS 2743, *7 (N.D. Ill. June 20, 2014)
("[I]t is well established that payment information is not a 'communication' protected by attorney-client privilege. . . . Rather, the Bankruptcy Code requires attorneys to disclose payment information. Section 329(a) indicates that an attorney representing a debtor must disclose any payments received, and must include 'the source of such compensation.'")

Case Date Jurisidction State Cite Checked
2014-06-20 Federal IL

Chapter: 11.503

Case Name: Teal Bay Alliances, Inc. v. Southbound One, Inc., Case No. MJG-13-2180, 2014 U.S. Dist. LEXIS 55378 (D. Md. April 21, 2014)
("Exhibit 1 of Southbound's ex parte submission for the Court's in camera review is an email from Mr. Pelton dated October 16, 2012 transmitting a fee agreement to Mr. Robinson. Southbound states that the fee agreement itself has been produced to Teal Bay, but the communication in the body of the email concerning the fee agreement has been redacted (along with Mr. Robinson's credit card payment information). I find that this communication is not protected by the attorney-client privilege in the first place.")

Case Date Jurisidction State Cite Checked
2014-04-21 Federal MD

Chapter: 11.503

Case Name: Zelen v. United States, Case. No. CV 13-6430-JFW (JEMx), 2014 U.S. Dist. LEXIS 49225 (C.D. Cal. March 6, 2014)
(proving that trust account information did not deserve privilege protection; "[T]he attorney-client privilege protects confidential communications between an attorney and his client; there is no confidentiality for checks written by a client and deposited with a third party bank whose employees see the information. Nor is there any confidentiality where a third party bank receives or generates records sought by the U.S.")

Case Date Jurisidction State Cite Checked
2014-03-06 Federal CA

Chapter: 11.503

Case Name: Elan Microelectronics Corp. v. Pixcir Microelectronics Co., Case No. 2:10-cv-00014-GMN-PAL, 2013 U.S. Dist. LEXIS 114788, at *12 (D. Nev. Aug. 14, 2013)
("Not all communications between an attorney and client are privileged. Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2013-08-14 Federal NV B 4/14

Chapter: 11.503

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *15-16 (D. Nev. June 18, 2013)
("Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2013-06-18 Federal NV B 4/14

Chapter: 11.503

Case Name: Sullivan v. Alcatel-Lucent USA, Inc., Case No. 12 C 7528, 2013 U.S. Dist. LEXIS 82407, at *6-7 (N.D. Ill. June 12, 2013)
(applying the Illinois control group test, and analyzing each employee to determine if the employee was inside privilege protection; "[P]ayment of fees and information regarding fees are generally not privileged. . . . Nonetheless, confidential communications relating to legal advice arising in connection with billing matters may be subject to protection.")

Case Date Jurisidction State Cite Checked
2013-06-12 Federal IL B 4/14

Chapter: 11.503

Case Name: Chimney Rock Pub. Power Dist. v. Tri-State Generation & Transmission Ass'n., Civ. A. No. 10-cv-02349-WJM-KMT, 2013 U.S. Dist. LEXIS 67714, at *12-13 (D. Colo. May 13, 2013)
("An attorney generally may not refuse to answer questions about the identity of a client and fee arrangements. . . . In general, billing records are not accorded privileged status unless specific entries contain privileged communications. For instance, information on an attorney's billing statement which shows the fee amount, the general nature of the services performed, and the case on which the services were performed is not considered privileged.")

Case Date Jurisidction State Cite Checked
2013-05-13 Federal CO B 3/14

Chapter: 11.503

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 138 (D.D.C. 2013)
("And it does not generally protect communications relating solely to the payment and amount of attorneys' fees.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal DC B 4/14

Chapter: 11.503

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 138 (D.D.C. 2013)
(analyzing the impact of plaintiff Feld seeking reimbursement from an insurance company of fees he spent in successfully handling underlying litigation; "[F]or example, the following categories of communications are not shielded from disclosure by the privilege: communications from Fulbright [law firm which represented Feld in the underlying litigation] to Feld about FFIC's position that did not rest on any confidential information obtained from Feld . . .; information on rates relayed by Feld to Fulbright with the intent that it then be conveyed to FFIC . . .; and communications regarding 'fees, costs and invoices,' including any fee arrangement between Feld and Fulbright, that do not reveal litigation strategy or other confidences about the Underlying Action." (internal citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal DC B 4/14

Chapter: 11.503

Case Name: United States v. Leonard-Allen, 724 F.3d 780, 784 (7th Cir. 2013)
(upholding a conviction of a defendant convicted of perjury for testifying that her lawyer had not referred her to a bank lawyer; noting that a form indicated that he had referred her to a bank lawyer; "Losey's [defendant's bankruptcy lawyer] form does not meet that description. Leonard-Allen's disclosure of who referred her does not reflect either the lawyer's or the client's thinking, and it was not instrumental to the substance of the bankruptcy advice that Losey provided. The form is more akin to information about attorneys' fees. The latter information falls outside the scope of the privilege because fees are incidental to the substance of representation.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 4/14

Chapter: 11.503

Case Name: Bowman v. Green Tree Servicing, Inc., Civ. A. No. 3:12 CV 31, 2012 U.S. Dist. LEXIS 146473, at *7 (N.D. W. Va. Oct. 11, 2012)
("The authority is unanimous for the proposition that 'in the absence of unusual circumstances, the fact of a retainer, the identity of the client, the conditions of employment and the amount of the fee do not come within the privilege of the attorney-client relationship.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-10-11 Federal WV B 12/13

Chapter: 11.503

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 278 (Va. Cir. Ct. 2002)
("'It is generally held that attorney-client privilege . . . does not protect disclosure of information about, inter alia, attorney's billing records, attorney's fees, and fee arrangements.' Patel v. Allison, 54 Va. Cir. 155, 158 (Va. Beach 2000).")

Case Date Jurisidction State Cite Checked
2002-01-01 State VA
Comment:

key case


Chapter: 11.503

Case Name: United States v. Under Seal (In re Grand Jury Proceedings), 33 F.3d 342, 354 (4th Cir. 1994)
("The attorney-client privilege normally does not extend to the payment of attorney's fees and expenses.")

Case Date Jurisidction State Cite Checked
1994-01-01 Federal

Chapter: 11.701

Case Name: Los Angeles County Board of Supervisors v. The Superior Court of Los Angeles County, S226645, 2016 Cal. LEXIS 9629 (Cal. Sup. Ct. Dec. 29, 2016)
("This case implicates both the public's interest in transparency and a public agency's interest in confidential communications with its legal counsel. The specific question we must resolve is whether invoices for work on currently pending litigation sent to the County of Los Angeles by an outside law firm are within the scope of the attorney-client privilege, and therefore exempt from disclosure under the California Public Records Act (PRA; Gov. Code, § 6250 et seq.). What we hold is that the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure. But invoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege. The privilege therefore protects the confidentiality of invoices for work in pending and active legal matters."; "But while billing invoices are generally not 'made for the purpose of legal representation,' the information contained within certain invoices may be within the scope of the privilege. To the extent that billing information is conveyed 'for the purpose of legal representation' -- perhaps to inform the client of the nature or amount of work occurring in connection with a pending legal issue -- such information lies in the heartland of the attorney-client privilege. And even if the information is more general, such as aggregate figures describing the total amount spent on continuing litigation during a given quarter or year, it may come close enough to this heartland to threaten the confidentiality of information directly relevant to the attorney's distinctive professional role. The attorney-client privilege protects the confidentiality of information in both those categories, even if the information happens to be transmitted in a document that is not itself categorically privileged. When a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees. This is because, even though the amount of money paid for legal services is generally not privileged, an invoice that shows a sudden uptick in spending 'might very well reveal much of [a government agency]'s investigative efforts and trial strategy.'. . . Midlitigation swings in spending, for example, could reveal an impending filing or outsized concern about a recent event.")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal CA
Comment:

key case


Chapter: 11.701

Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("While the email is a communication between client and counsel, a billing document such as an invoice that does not itself contain legal advice is not privileged, much like a retainer agreement.")

Case Date Jurisidction State Cite Checked
2016-11-18 Federal NY

Chapter: 11.701

Case Name: U.S. Bank Nat'l Ass'n v. Lightstone Holdings LLC, No. 651951/2010, 2016 NY Slip Op 30644(U), at 10-11 (N.Y. Sup. Ct. Apr. 12, 2016)
("The general rule is when bills, invoices and records of payment are created primarily for a business purpose they are not immune from disclosure because these records are not legal advice . . . . On the other hand, fee statements can be privileged if they contain detailed accounts of the legal services rendered.")

Case Date Jurisidction State Cite Checked
2016-04-12 Federal NY B 8/16

Chapter: 11.701

Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 93580 (D. Neb. July 17, 2015)
("This privilege log entry does not state whether the billing records list anything which could reasonably be interpreted as 'legal advice' or from which the parties' legal strategy in preparation or litigation could be ascertained. If the entries simply state, e.g., 'reviewing correspondence from client,' 'drafting cover letter to client with forwarded draft discovery responses,' or 'conferring with client regarding options going forward,' absent some unusual circumstances not revealed in the record before this court, such entries cannot be interpreted as privileged. No legal advice or legal strategy is disclosed in the billings. In contrast, if the billings state, e.g., 'conferring with client re: option of filing a change of venue motion to limit exposure to punitive damages,' the entry may include confidential information.")

Case Date Jurisidction State Cite Checked
2015-07-17 Federal NE

Chapter: 11.701

Case Name: Los Angeles County Bd. of Supervisors v. The Superior Ct. of Los Angeles Cty., No. B257230, 2015 Cal. App. LEXIS 308 (Cal. Ct. 2nd App. 3d April 13, 2015)
(in a California Public Records Act action, finding that a government agency's law firm's billing records were confidential even if it did not deserve privilege protection; "The question we resolve in this writ proceeding is whether billing invoices sent by an attorney to a client must be disclosed pursuant to the California Public Records Act (CPRA; Gov. Code, § 6250 et seq.), or whether they are protected by the attorney-client privilege. Both the CPRA and the attorney-client privilege advance public policies of the highest order: the CPRA fosters transparency in government, and the attorney-client privilege enhances the effectiveness of our legal system. In the instant matter, these two interests collide. We conclude that, because the CPRA expressly exempts attorney-client privileged communications from the CPRA's reach, the tension must here be resolved in favor of the privilege. Because the invoices are confidential communications within the meaning of Evidence Code section 952, they are exempt from disclosure under Government Code section 6254, subdivision (k). Accordingly, we grant the writ petition.")

Case Date Jurisidction State Cite Checked
2015-04-13 State CA

Chapter: 11.701

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)
(analyzing effective joint representation; "[A] written fee contract between an attorney and a client is itself a privileged communication.")

Case Date Jurisidction State Cite Checked
2015-01-30 State CA
Comment:

key case


Chapter: 11.701

Case Name: Lucas v. Gregg Appliances, Inc., Case No. 1:14-cv-70, 2014 U.S. Dist. LEXIS 168751 (S.D. Ohio Dec. 5, 2014)
("Plaintiff also argues that the fee agreement and progress invoices are protected by the attorney-client privilege and work product doctrine. 'In discovery disputes, a blanket assertion of privilege regarding attorney fee bills is typically not appropriate.'. . . Even if these documents contained information protected by the attorney-client privilege, Plaintiff waived this privilege by forwarding them to Hoerst. However, this does not result in a waiver of the work product doctrine because Hoerst is not an adversary.")

Case Date Jurisidction State Cite Checked
2014-12-05 Federal OH

Chapter: 11.701

Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *7-8 (D. Conn. Sept. 2, 2014)
("The Court finds that with the exception of two billing entries, these documents are not subject to the attorney-client privilege because they do not reveal the specific nature of the services provided, but rather only reveal the general nature of work performed. For example, many of the billing entries reference telephone conferences or correspondence 're employment issues and reduction in force', 're employment downsizing', 'confidential information protections,' and 'business issues.' Other entries merely reference '[r]eview summary of personnel issues' and '[r]eview documents re downsizing.' These entries do not reveal the motive of defendant in seeking representation, litigation strategy, or the specific nature of the services provided. With respect to the entry reflecting 'Research re National Labor Relations Act,' the Court does not find this protected by the attorney-client privilege for these same reasons.")

Case Date Jurisidction State Cite Checked
2014-09-02 Federal CT

Chapter: 11.701

Case Name: Libertarian Party of Ohio v. Husted, Case No. 2:13-cv-953, 2014 U.S. Dist. LEXIS 111338, at *24, *24-25 (S.D. Ohio Aug. 12, 2014)
(ordering a lawyer to disclose to a client and to third parties who is paying a lawyer's bills; "Here, Mr. Felsoci and his counsel have stated that Mr. Felsoci and the Unidentified Client share 'an interest in ensuring the integrity of Ohio's election process . . .'. . . That is, ordinarily, a matter not deemed to be confidential; it is something to which every good citizen should aspire. There is no evidence that any communication of any kind between the Unidentified Client and counsel will be revealed simply because its identity is disclosed; beyond knowing the simple fact that the Unidentified Client agreed to pay Mr. Felsoci's legal bills, the identity of that client cannot be tied to any communications made in confidence between that client and its attorneys."; "True, revealing the identity of the Unidentified Client allows the public to infer that the client stated to counsel, 'I will pay Mr. Felsoci's legal fees if he files a protest,' or words to that effect. But if that one statement is deemed privileged, the identity of a third-party payer (who, presumably, always makes that type of statement) could never be disclosed. That is just not the law. Consequently, since Mr. Felsoci, to the extent that he has not otherwise been told who the Unidentified Client is who has agreed to pay his legal fees, has an enforceable right to demand a document showing that person or organization's identity, and because such information is not privileged, the Court will grant the motion to compel.")

Case Date Jurisidction State Cite Checked
2014-08-12 Federal OH B 8/15

Chapter: 11.701

Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *26 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "Exhibit 14 is a February 17, 2011 email from Mr. Wells to Ms. Lusk-Basick referencing and attaching an invoice from Ms. Morgan's law office for services rendered. Neither the email nor the attached bill reveals any confidential communication or involves a request for legal advice.")

Case Date Jurisidction State Cite Checked
2014-06-10 Federal IL

Chapter: 11.701

Case Name: Olaoye v. Wells Fargo Bank NA, Civ. A. No. 3:12-CV-4873-M-BH, 2013 U.S. Dist. LEXIS 181358, at *7, *8 (N.D. Tex. Dec. 30, 2013)
("Only when attorney's fees invoices contain 'confidential' client information may a privilege be invoked."; "[D]espite referencing the attorney-client privilege and the work product doctrine . . . Defendant fails to assert or demonstrate that either doctrine applies to the unredacted attorney's fees invoices at issue. Accordingly, even if Rule 502(d) could be utilized in this context, a protective order under Rule 502(d) is unwarranted given Defendant's failure to show that the invoices are privileged.")

Case Date Jurisidction State Cite Checked
2013-12-30 Federal TX B 5/14

Chapter: 11.701

Case Name: Larson v. One Beacon Ins. Co., Civ. A. No. 12-cv-03150-MSK-KLM, 2013 U.S. Dist. LEXIS 81181, at *12 (D. Colo. June 10, 2013)
("The Court has examined each page of the billing records submitted by Defendant for in camera review. The Court finds that the records are relevant and merely show the general nature of the services performed and do not demonstrate litigation strategy or other privileged matters. Accordingly, the portion of Plaintiff's Motion seeking to compel discovery of billing records is granted.")

Case Date Jurisidction State Cite Checked
2013-06-10 Federal CO B 4/14

Chapter: 11.701

Case Name: Sipes v. Allstate Indemnity Co., Civ. A. No. 11-cv-02369-PAB-KMT, 2013 U.S. Dist. LEXIS 67715, at *5 (D. Colo. May 12, 2013)
(holding that most of an insurance company's claims diary did not deserve privilege or work product protection; "[I]nformation on an attorney's billing statement that shows the fee amount, the general nature of the services performed, and the case on which the services were performed is not considered privileged. . . . However, billing statement entries that reflect the client's motive in seeking representation, litigation strategy, or the specific nature of services provided, such as researching particular areas of the law, are privileged.")

Case Date Jurisidction State Cite Checked
2013-05-12 Federal CO B 3/14

Chapter: 11.701

Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *55 (S.D. Ohio Feb. 19, 2013)
("This Court is not persuaded that Little Hocking's blanket refusal to produce attorney invoices during discovery is appropriate.")

Case Date Jurisidction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 11.701

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 593 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "[T]he Court notes that approximately two dozen entries in the privilege log are related to invoices or billing, or scheduling, or service of process and, as such, evidently were not communications made for the purpose of legal advice (i.e., these specific communications arguably would have been made even absent the provision of legal advice)." (footnotes omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 11.701

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 591 n.170 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "The attorney-client privilege is not absolute, nor does it cover every communication between an attorney and her client -- a particularly important observation in a world in which communications are immediate and, often, may be made directly by the attorney instead of by her administrative assistant. For example, communications between an attorney and her client may include e-mails, text messages, or other immediate methods of communicating as to topics which may have little to do with the obtaining of 'legal advice or assistance,' and may simply relate to routine scheduling matters or billing invoices -- items which clearly are not protected by a privilege.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 11.701

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 138 (D.D.C. 2013)
(analyzing the impact of plaintiff Feld seeking reimbursement from an insurance company of fees he spent in successfully handling underlying litigation; "[F]or example, the following categories of communications are not shielded from disclosure by the privilege: communications from Fulbright [law firm which represented Feld in the underlying litigation] to Feld about FFIC's position that did not rest on any confidential information obtained from Feld . . .; information on rates relayed by Feld to Fulbright with the intent that it then be conveyed to FFIC . . .; and communications regarding 'fees, costs and invoices,' including any fee arrangement between Feld and Fulbright, that do not reveal litigation strategy or other confidences about the Underlying Action." (internal citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal DC B 4/14

Chapter: 11.701

Case Name: Turner v. Digital Broad. Corp., Civ. A. No. 7:10 cv 00559, 2012 U.S. Dist. LEXIS 1416, at *3-4 n.2 (W.D. Va. Jan. 5, 2012)
("[T]he attorney client privilege does not normally extend to attorney billing records. United States v. (Under Seal), 33 F.3d 342, 354 (4th Cir. 1994) (citing United States v. (Under Seal), 774 F.2d 624, 628 (4th Cir. 1985), cert. denied, 475 U.S. 1108, 106 S. Ct. 1514, 89 L. Ed. 2d 913 (1986)); see also RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 2002 WL 32075213, at *7 (2002) (relying on Patel v. Allison, 54 Va. Cir. 155, 2000 WL 33650022 (2000)). . . . Billing records revealing the date and amount of payment and the identity of the persons making the payments are not privileged because these facts do not reveal anything about the advice sought or given. United States v. In re Grand Jury Matter, 789 F. Supp. 693, 695 (D. Md. 1992).")

Case Date Jurisidction State Cite Checked
2012-01-05 Federal VA

Chapter: 11.701

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 278 (Va. Cir. Ct. 2002)
("'It is generally held that attorney-client privilege . . . does not protect disclosure of information about, inter alia, attorney's billing records, attorney's fees, and fee arrangements.' Patel v. Allison, 54 Va. Cir. 155, 158 (Va. Beach 2000).")

Case Date Jurisidction State Cite Checked
2002-01-01 State VA

Chapter: 11.701

Case Name: Patel v. Allison, 54 Va. Cir. 155, 158 (Va. Cir. Ct. 2000)
("It is generally held that the attorney-client privilege generally does not protect disclosure of information about, inter alia, attorney billing records, attorney fees, and fee arrangements.")

Case Date Jurisidction State Cite Checked
2000-01-01 State VA nsvb 2/23/04

Chapter: 11.702

Case Name: Los Angeles County Board of Supervisors v. The Superior Court of Los Angeles County, S226645, 2016 Cal. LEXIS 9629 (Cal. Sup. Ct. Dec. 29, 2016)
("This case implicates both the public's interest in transparency and a public agency's interest in confidential communications with its legal counsel. The specific question we must resolve is whether invoices for work on currently pending litigation sent to the County of Los Angeles by an outside law firm are within the scope of the attorney-client privilege, and therefore exempt from disclosure under the California Public Records Act (PRA; Gov. Code, § 6250 et seq.). What we hold is that the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure. But invoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege. The privilege therefore protects the confidentiality of invoices for work in pending and active legal matters."; "But while billing invoices are generally not 'made for the purpose of legal representation,' the information contained within certain invoices may be within the scope of the privilege. To the extent that billing information is conveyed 'for the purpose of legal representation' -- perhaps to inform the client of the nature or amount of work occurring in connection with a pending legal issue -- such information lies in the heartland of the attorney-client privilege. And even if the information is more general, such as aggregate figures describing the total amount spent on continuing litigation during a given quarter or year, it may come close enough to this heartland to threaten the confidentiality of information directly relevant to the attorney's distinctive professional role. The attorney-client privilege protects the confidentiality of information in both those categories, even if the information happens to be transmitted in a document that is not itself categorically privileged. When a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees. This is because, even though the amount of money paid for legal services is generally not privileged, an invoice that shows a sudden uptick in spending 'might very well reveal much of [a government agency]'s investigative efforts and trial strategy.'. . . Midlitigation swings in spending, for example, could reveal an impending filing or outsized concern about a recent event.")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal CA
Comment:

key case


Chapter: 11.702

Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("The fact that the redacted information relates to tasks for which the expert was compensated does not alter that information's privileged status. Of course, details of work revealed in the expert's work description would relate to tasks for which she was compensated, but Plaintiffs have established that this description itself reveals protected communications with counsel. This situation is analogous to protecting attorney-client privileged information contained in counsel's bills describing work performed. An attorney's description of work performed for a client in an invoice itself reflects privileged information that is routinely protected as privileged, despite the fact that it appears in a bill."; "Plaintiffs disclosed all required information relating to the expert's compensation. As Plaintiffs note in their Appendix, they produced Ms. Ryan's [Testifying expert] engagement letter, retainer, fee arrangement, and emails discussing her compensation. Further, in her expert report, Ms. Ryan notes that she is being paid $725 per hour. . . . These disclosures comport with the exception to the work-product protection for expert compensation. Additional disclosures of privileged communications on the invoices are not required.")

Case Date Jurisidction State Cite Checked
2016-09-29 Federal Other

Chapter: 11.702

Case Name: Davita Healthcare Partners, Inc. v. United States, No. 11-297C, 2016 U.S. Claims LEXIS 1427 (Fed. Cl. Sept. 29, 2016)
("The fact that the redacted information relates to tasks for which the expert was compensated does not alter that information's privileged status. Of course, details of work revealed in the expert's work description would relate to tasks for which she was compensated, but Plaintiffs have established that this description itself reveals protected communications with counsel. This situation is analogous to protecting attorney-client privileged information contained in counsel's bills describing work performed. An attorney's description of work performed for a client in an invoice itself reflects privileged information that is routinely protected as privileged, despite the fact that it appears in a bill."; "Plaintiffs disclosed all required information relating to the expert's compensation. As Plaintiffs note in their Appendix, they produced Ms. Ryan's [Testifying expert] engagement letter, retainer, fee arrangement, and emails discussing her compensation. Further, in her expert report, Ms. Ryan notes that she is being paid $725 per hour. . . . These disclosures comport with the exception to the work-product protection for expert compensation. Additional disclosures of privileged communications on the invoices are not required.")

Case Date Jurisidction State Cite Checked
2016-09-29 Federal

Chapter: 11.702

Case Name: U.S. Bank Nat'l Ass'n v. Lightstone Holdings LLC, No. 651951/2010, 2016 NY Slip Op 30644(U), at 10-11 (N.Y. Sup. Ct. Apr. 12, 2016)
("The general rule is when bills, invoices and records of payment are created primarily for a business purpose they are not immune from disclosure because these records are not legal advice . . . . On the other hand, fee statements can be privileged if they contain detailed accounts of the legal services rendered.")

Case Date Jurisidction State Cite Checked
2016-04-12 Federal NY B 8/16

Chapter: 11.702

Case Name: National Sur. Corp. v. Dustex Corp., No. C13-2004, 2014 U.S. Dist. LEXIS 1096, at *10, *12-13 (N.D. Iowa Jan. 6, 2014)
("While the Court has not found any Iowa case directly on point, the overwhelming majority of cases from other jurisdictions hold that an attorney's billings and invoices are protected by the attorney-client privilege only to the extent they contain confidential information."; "If Dustex claims that specific entries on the billings contain confidential information, then they may redact that entry, and submit an appropriate privilege log. The Court notes, however, that entries that describe only generally the work performed will not be considered 'confidential information.' For example, entries that state 'reviewed discovery' or 'drafted brief' do not constitute privileged confidential information.")

Case Date Jurisidction State Cite Checked
2014-01-06 Federal IA B 6/14

Chapter: 11.702

Case Name: Chimney Rock Pub. Power Dist. v. Tri-State Generation & Transmission Ass'n., Civ. A. No. 10-cv-02349-WJM-KMT, 2013 U.S. Dist. LEXIS 67714, at *13 (D. Colo. May 13, 2013)
("The court reviewed in camera billing statements containing individual time keeping entries between Sherman & Howard [defendant's lawyers] and Tri-State from July 21, 2008 to August 20, 2009. The billing entries were, almost without exception, very detailed and contained the specific nature of services provided, such as researching particular areas of the law. Each entry in the billing statements contained privileged information which reveals a great deal of information about litigation strategy.")

Case Date Jurisidction State Cite Checked
2013-05-13 Federal CO B 3/14

Chapter: 11.702

Case Name: Sipes v. Allstate Indemnity Co., Civ. A. No. 11-cv-02369-PAB-KMT, 2013 U.S. Dist. LEXIS 67715, at *5 (D. Colo. May 12, 2013)
(holding that most of an insurance company's claims diary did not deserve privilege or work product protection; "[I]nformation on an attorney's billing statement that shows the fee amount, the general nature of the services performed, and the case on which the services were performed is not considered privileged. . . . However, billing statement entries that reflect the client's motive in seeking representation, litigation strategy, or the specific nature of services provided, such as researching particular areas of the law, are privileged.")

Case Date Jurisidction State Cite Checked
2013-05-12 Federal CO B 3/14

Chapter: 11.702

Case Name: Chaudhry v. Gallerizzo, 174 F.3d 394, 402-03 (4th Cir. 1999)
("Typically, the attorney-client privilege does not extend to billing records and expense reports. See [In re Grand Jury Proceedings, 33 F.3d 342,] at 353-54 [4th Cir. 1994]. In Clarke v. American Commerce National Bank, 974 F.2d 127 (9th Cir. 1992), however, the Ninth Circuit distinguished between privileged and discoverable information contained in an attorney's billing records: '[T]he identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege. However, correspondence, bills, ledgers, statements, and time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law, fall within the privilege. Id. at 129 (citations omitted).' . . . In the instant case, the legal bills revealed the identity of the federal statutes researched. Since the records would divulge confidential information regarding legal advice, they constitute privileged communications and, as such, should not be disclosed."), cert. denied, 120 S. Ct. 215 (1999)

Case Date Jurisidction State Cite Checked
1999-01-01 Federal

Chapter: 11.802

Case Name: Meade v. General Motors, LLC, Civ. A. No. 1:16-cv-00991-AT, 2017 U.S. Dist. LEXIS 61455 (N.D. Ga. April 21, 2017)
(finding that defendant's deficient log waived privilege protection; "The fact that a client is meeting with an attorney for the purposes of obtaining legal advice, and the general subject matter of such meeting, is not necessarily privileged.")

Case Date Jurisidction State Cite Checked
2017-04-21 Federal GA

Chapter: 11.802

Case Name: Meade v. General Motors, LLC, Civ. A. No. 1:16-cv-00991-AT, 2017 U.S. Dist. LEXIS 61455 (N.D. Ga. April 21, 2017)
(finding that defendant's deficient log waived privilege protection; "[T]he fact that a communication occurred (or a request for communication, i.e. a request for a meeting or conference call) is not privileged as long as the content of the communication is not disclosed.")

Case Date Jurisidction State Cite Checked
2017-04-21 Federal GA

Chapter: 11.802

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("I agree with AAIC that whether Sluga developed some writing as a result of her work at Crum & Forster, and whether Sutton knew about it, is not a 'communication' subject to the attorney-client privilege. Additionally, whether Sutton reviewed any writings or reports written by Sluga is an action, not a 'communication.' Accordingly, First Mercury's claims of privilege are unsubstantiated and overruled."; "First Mercury also contends that counsel's questions as to whether Sluga developed some writing as a result of her work for Crum & Forster and whether Sutton reviewed that writing invades the work product protections. I disagree. The existence of writings and whether Sutton reviewed them are not protected by the work product doctrine, even if First Mercury would not be required to disclose the writings themselves or their content. Sutton is directed to answer these questions."; "Counsel asked Sutton about the business purpose of her meeting with Sluga, and Sutton was directed not to answer. First Mercury argues that AAIC knows Sluga was hired as outside counsel to Crum & Forster to perform an after-verdict review of the underlying claim, and that any additional inquiry about the purpose of the meeting invades the attorney-client privilege. I agree. AAIC is entitled to know the general purpose -- to facilitate Sluga's after-verdict review, but any further information would veer into protected communication. Sutton need not answer this question."; "Counsel asked Sutton whether the pre-verdict standard operating procedure of Crum & Forster's 'large loss committee' also applied to the committee's post-verdict work. First Mercury instructed Sutton not to answer on the basis of attorney-client privilege because Kraus was present at the large loss committee meetings and provided legal advice. But whether the committee continued to follow the standard operating procedure is an action, not a communication with counsel for the purpose of receiving legal advice. Accordingly, the attorney-client privilege does not apply. Sutton is directed to answer the question."; "Counsel asked Sutton if she knew whether the large loss committee reviewed any writings or written materials during its post-verdict work. Sutton was instructed not to answer on the basis of privilege. This appears to be a yes or no question asking about what the large loss committee did, not the content of the communications. Again, what the committee did is not protected by privilege. Sutton is directed to answer. I note that privilege may apply to the materials themselves and/or their contents."; "First Mercury also argues that this information is protected by the work product doctrine. I disagree. While the content of the documents may be protected by the work product doctrine, the fact of their existence is not. Sutton is directed to answer this question."; "Counsel asked Sutton a series of questions about the large loss committee's post-verdict meeting, beginning with who made presentations, if Sutton spoke, and if others spoke during the meeting. She was instructed not to answer on the basis of attorney-client privilege. First Mercury maintains that the committee's post-verdict meeting 'was held for the purpose of obtaining legal advice from Mr. Kraus,' rendering its activities protected by privilege and the work product doctrine. . . . The identity of who made presentations and who spoke, however, is not a communication, and therefore is not protected by the attorney-client privilege. Sutton is instructed to answer all three questions. I note, however, that privilege may apply to the substance of these presentations or remarks.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 11.802

Case Name: Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966, 2016 Fla. App. LEXIS 9575 (Fla. Dist. Ct. App. June 22, 2016)
September 7, 2016 (PRIVILEGE POINT)

"Drawing the Line Between Unprotected Logistics About Privileged Communications and Their Protected Content"

Courts agree that in nearly every situation the attorney-client privilege does not protect the logistics of privileged communications — such as when and where clients and lawyers communicate. Similarly, the privilege normally does not protect clients' or lawyers' identities, or the general subject matter of their communications. But of course the privilege can protect such communications' content.

In Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966, 2016 Fla. App. LEXIS 9575 (Fla. Dist. Ct. App. June 22, 2016), defendant hospital wanted to depose a sick child's mother, whose lawsuit arguably missed the statute of limitations. The appellate court allowed questions about "the names of attorneys and dates of [the mother's] consultation[s]" — concluding that "these questions do not require her to disclose any communication she had with any attorney [but] merely require her to disclose the occurrence of a consultation with a lawyer regarding a general topic." Id. at *7. Nevertheless, the court reversed the trial court order requiring the mother to answer questions about "'the reasons why she first sought out legal counsel.'"Id. at *9. The court gave an example of an improper question: "'after consulting the first lawyer, why did you seek out a second lawyer?'" Id. at *10.

Most deposing lawyers know that they cannot explicitly seek the substance of adversaries' privileged communications. But the issue can sometimes be more subtle in a deposition setting. One simple way to draw the line between appropriate questions about privileged communications' logistics and improper questions that might invade the privilege is to distinguish between permissible "who, what, when, where" questions and improper "why" questions.

Case Date Jurisidction State Cite Checked
2016-06-22 State FL B 9/16
Comment:

key case


Chapter: 11.802

Case Name: Le v. Zuffa, LLC, Case No. 2:15-cv-01045-RFB-PAL, 2016 U.S. Dist. LEXIS 69813 (D. Nev. May 26, 2016)
("Not all communications between an attorney and client are privileged. Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2016-05-26 Federal NV

Chapter: 11.802

Case Name: Plaza Insurance Company v. Lester, Civ. A. No. 14-cv-01162-LTB-CBS, 2015 U.S. Dist. LEXIS 72438, 2015 U.S. Dist. LEXIS 72438 (D.D.C. June 4, 2015)
("The attorney-client privilege protects the substance of a communication between counsel and client; it does not apply to the fact that such communications took place. See Kemp v. Hudgins, No. 12-2739-JAR-KGG, 2015 U.S. Dist. LEXIS 24994, 2015 WL 866905, at *2 (D. Kan. Mar. 2, 2015). Yet, Plaintiff's privilege logs include multiple communications between Plaza, NARS and the Treece Firm that are devoid of any legal content. Often these 'privileged' communications merely reflect the scheduling of a telephone call or conference, with no hint of the topic(s) to be discussed and no legal advice requested or given.")

Case Date Jurisidction State Cite Checked
2015-06-04 Federal DC

Chapter: 11.802

Case Name: United States v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 162680 (D.D.C. Nov. 20, 2014)
("The underpinning of this holding is that the mere fact of consultation with a lawyer about an issue is generally neither privileged nor protected.")

Case Date Jurisidction State Cite Checked
2014-11-20 Federal DC

Chapter: 11.802

Case Name: United States v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 162680 (D.D.C. Nov. 20, 2014)
("Thus, documents that show one corporate employee telling another to consult a lawyer on a general topic without conveying the specific content of the desired communication are no more immune to production than a witness's statement that he discussed that broad topic with his or her attorney prior to testifying at a trial. By the same token, documents that reflect only that a nonattorney spoke to or received advice from an attorney and then acted are discoverable because they do not reflect privileged communications. Neither the fact of the consultation nor the eventual action taken are protected from disclosure, and the fact that clients sometimes choose not to follow their attorneys' advice prevents such documents from implicitly disclosing any more than the general nature of the confidential communications sheltered by the attorney-client privilege. Thus, these types of documents must be disclosed.")

Case Date Jurisidction State Cite Checked
2014-11-20 Federal DC

Chapter: 11.802

Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("For that reason, it is worth emphasizing here that the mere existence of an attorney-client relationship 'does not create a cloak of protection which is draped around all occurrences and conversations which have any bearing, direct or indirect, upon [that] relationship.'")

Case Date Jurisidction State Cite Checked
2014-11-12 Federal IL

Chapter: 11.802

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 redactions sought by MasterCard here would render all meetings attended by an in-house attorney off-limits for discovery purposes due to the attorney-client privilege. For example, the Status Update section for the 11/09/12 entry on page M0102062 contains redacted information that is very similar to the non-redacted information in other entries, such as those for 11/02/12 and 10/26/12. The basis for the redaction thus appears to be the language, 'Call with Franchise, Legal, CRM, Business including the Asst. Treasurer, scheduled on 07th Nov[.]' There is no justification for applying a blanket privilege to every portion of a communication that mentions the Legal Department.")

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

Chapter: 11.802

Case Name: Anderson v. E. CT Health Network, Inc., Case No. 3:12CV785(RNC), 2014 U.S. Dist. LEXIS 2970, at *12, *3, *4, *5 (D. Conn. Jan. 10, 2014)
(inexplicably concluding that the following questions were inappropriate, because they "would tend to invade the protected area"; "'Who spoke at the May 31 meeting?"; "'Who made a recommendation at the May 31 meeting, such as whether Dr. Anderson should be continued?'"; "'Did anyone make a presentation of the facts at the May 31 meeting?'"; "'Did Lisa Boyle [defendant's lawyer] convey the contents of a May 31 email from plaintiff's lawyer Mary Alice Moore Leonhardt?'"; "'Were the following subjects discussed at the May 31 meeting?'"; "'Were David Neuhaus [defendant's Medical Director] or Deborah Gogliettino [defendant's Senior V.P.] consulted about defendants' answer to plaintiff's allegation at ¶ 18 of his CHRO [Conn. Comm'n on Human Rights & Opportunities] affidavit?'"; "'Was it Gogliettino's or Dr. Neuhaus's idea to use the words 'essential functions' in a letter signed by Dr. Neuhaus?'"; "'Why did Attorney Boyle ask Deborah Gogliettino to attend a meeting with Maureen Dinnan from HAVEN [third party evaluator] concerning plaintiff?'")

Case Date Jurisidction State Cite Checked
2014-01-10 Federal CT B 6/14

Chapter: 11.802

Case Name: Americus Mortg. Corp. v. Mark, Civ. A. No. 12-10158-GAO, 2013 U.S. Dist. LEXIS 148820, at *21-22 (D. Mass. Oct. 16, 2013)
("Emails to and from Belli [defendant's partial owner] and Attorney Hadlock on July 30, 2008, to schedule a meeting are not made for the purpose of seeking legal advice. A reference in an email sent by Attorney Hadlock about the subject matter of the meeting is not made for the purpose of seeking legal advice and there is no indication that Mark, the client, was copied on any of the emails. Accordingly, the email is subject to production.")

Case Date Jurisidction State Cite Checked
2013-10-16 Federal MA B 5/14

Chapter: 11.802

Case Name: MediaTek Inc. v. Freescale Semiconductor, Inc., Case No. 4:11-cv-05341 YGR (JSC), 2013 U.S. Dist. LEXIS 147032, at *16-17, *18-19 (N.D. Cal. Oct. 10, 2013)
(finding that the privilege did not protect documents created by a consultant hired by plaintiff's lawyer, even assuming that the agent was the "functional equivalent" of an employee; "The confidentiality agreement between MediaTek and the third-party consultant further suggests that the report was not made because of, or at least primarily because of, a legal purpose. If MediaTek intended for the reports to be privileged attorney-client communications, the confidentiality agreement would likely reflect such, or, at a minimum, make some reference to the purportedly privileged purpose of the report. The confidentiality agreement, however, fails to even mention that the work performed by the consultant is being done primarily to assist counsel."; "Even if the technical report was privileged, however, the confidentiality agreement does not involve any legal advice or request for legal advice. . . . The purpose of the confidentiality agreement is to control the dissemination of sensitive technological information during a venture between two parties. The attorney-client privilege does not protect procedures used to secure the rendering of legal advice; it protects the substance of confidential communications of legal advice or requests between the client and attorney. The result does not change merely because Mr. Hsu [plaintiff's General Counsel] signed the confidentiality agreement on behalf of MediaTek -- the 'mere fact that a document was sent to an attorney does not make it a privileged communication.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-10-10 Federal CA B 5/14

Chapter: 11.802

Case Name: Elan Microelectronics Corp. v. Pixcir Microelectronics Co., Case No. 2:10-cv-00014-GMN-PAL, 2013 U.S. Dist. LEXIS 114788, at *12 (D. Nev. Aug. 14, 2013)
("Not all communications between an attorney and client are privileged. Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2013-08-14 Federal NV B 4/14

Chapter: 11.802

Case Name: Grayson Consulting, Inc. v. Cathcart, Nos. 2:07-cv-02992- & -00593-DCN, 2013 U.S. Dist. LEXIS 107218, at *16, *16-17 (D.S.C. July 31, 2013)
(analyzing the effect of deposition answers in a Rule 30(b)(6) deposition; "During the deposition, Grayson's counsel and Mr. Piona engaged in the following colloquy: Q: 'So did Mr. Jarvis come back to the company to Cyprus to help [Ms. Papacosta] gather the documents [in response to litigation pending in this court]?' A: 'No.' Q: 'How did he assist?' A: 'Sorry? Yes, sure, they speak each other so that Ms. Papacosta can take all the document that are required by Mr. Paul Jarvis.' Q: 'Did Ms. Papacosta tell you about her conversations with Mr. Jarvis?' Q: 'Do you know if Ms. Papacosta interviewed Mr. Jarvis?'"; "Grayson's questions go to conversations that Ms. Papacosta, in her role as Vision's in-house counsel, had with Mr. Jarvis, Vision's former CEO, about collecting information for this pending litigation. The answers to these two specific questions are not privileged, but if Mr. Piona had answered these questions in the affirmative, then any further information about Ms. Papacosta's discussions with Mr. Jarvis would undoubtedly be privileged. If Mr. Piona had answered these questions in the negative, then there would be no further information at all. As a result, no harm has arisen from Vision's improper objections to these questions.")

Case Date Jurisidction State Cite Checked
2013-07-31 Federal SC B 12/13

Chapter: 11.802

Case Name: Moore v. Dan Holdings, Inc., No. 1:12CV503, 2013 U.S. Dist. LEXIS 61378, at *18-19 (M.D.N.C. Apr. 30, 2013)
(holding that an employment discrimination plaintiff was not entitled to details about a company lawyer's investigation of alleged employment discrimination, such as the identity of the witnesses, etc.; "Finally, Plaintiff asserts that 'Defendants still must be [sic] produce a corporate designee to testify about factual information relating to [the] internal investigations . . . . In particular, Defendants' designee should be required to testify about the identities of the witnesses interviewed; the length of each witness interview; facts conveyed during the interview; the length of each internal investigation; and the like.'" (internal citation omitted))

Case Date Jurisidction State Cite Checked
2013-04-30 Federal NC B 7/13

Chapter: 11.802

Case Name: R.L.R. v. State, 116 So. 3d 570, 572 (Fla. Dist. Ct. App. 2013)
(holding that a pro bono lawyer who was acting as a guardian ad litem could not be ordered to disclose the location of his run-away adolescent client; "The issue presented in the petition is whether a trial court may order attorneys to disclose a minor client's location when the attorneys obtained that information from the client during the course of representation and were instructed that the information was to be kept confidential and was not to be disclosed. We find no exception to the attorney-client privilege that would support the trial court's order to disclose.")

Case Date Jurisidction State Cite Checked
2013-01-01 State FL B 4/14

Chapter: 11.802

Case Name: Starr Indem. & Liab. Co. v. Cont'l Cement Comp., Case No. 4:11CV809 JAR, 2012 U.S. Dist. LEXIS 170988, at *7 (E.D. Mo. Dec. 3, 2012)
(analyzing privilege and work product issues in a first party insurance context; "The Court will not compel Starr [insurance company] to identify the author(s) of the reservation of rights and declination letters because it appears those responses would reveal attorney-client communications.")

Case Date Jurisidction State Cite Checked
2012-12-03 Federal MO B 9/13

Chapter: 11.802

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *18-19 (E.D. Va. Dec. 3, 2012)
("[H]e has provided a privilege log that includes only a general description of each document, but little if any explanation as to why each document is privileged. This places the burden on the Court to surmise the basis for privilege as best as it can glean from its in camera review. On their face, a number of these documents appear to contain no privileged material. These include communications between counsel and third parties, emails scheduling appointments or discussing administrative matters, and communications regarding the scope of representation. Without further explanation, evidence, or authority, the Court concludes that none of these documents are privileged." (footnotes omitted))

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

Chapter: 11.802

Case Name: United States v. Smith, Crim. A. No. 3:07CR433, 2008 U.S. Dist. LEXIS 64174, at *6-8 (E.D. Va. Aug. 21, 2008)
("The Government seeks to call Mr. Said as a witness to testify that he showed the video to the Defendant. As noted, the attorney-client privilege applies only to 'confidential communications' between a client and an attorney. . . . In this case, Mr. Said obtained the video through discovery related to the state criminal charge from the Richmond Commonwealth's Attorney's Office a source outside of Mr. Said's attorney-client relationship with the Defendant. The simple act of displaying the video to the Defendant involved no protected communication since its contents were derived from a third party. Thus, the attorney-client privilege is inapplicable and does not protect from disclosure the fact that Mr. Said showed the video to the Defendant during his representation of the Defendant in relation to the state criminal charge.")

Case Date Jurisidction State Cite Checked
2008-08-21 Federal VA

Chapter: 11.802

Case Name: Monroe v. City of Charlottesville, Civ. No. 3:05cv00074, 2007 U.S. Dist. LEXIS 63013, at *12 nn.4, 5 (W.D. Va. Aug. 27, 2007)
(assessing whether the plaintiff was an adequate class representative; ultimately finding that the plaintiff was not adequate; noting that "'[d]uring the deposition, Plaintiff's attorney objected and Plaintiff never stated when he first considered filing a lawsuit or when he first authorized the filing of the lawsuit. Inasmuch as the first question does not contemplate a communication between Plaintiff and his attorney and the second question does not seem to contemplate a confidential communication between Plaintiff and his attorney, it would seem as though the privilege would not apply. Even if it did apply, it is unclear why Plaintiff's attorney would invoke the privilege for seemingly benign information, especially considering the burden is on the Plaintiff to prove that he meets the Rule 23(a) requirements."; also noting that plaintiff's lawyer objected to the defendants' question about whether the plaintiff knew a lawsuit had been filed before the filing; "Plaintiff's attorney again objected on the basis of attorney client privilege, but Defendants are not seeking a [sic] information from a communication made between Plaintiff and his attorney; instead, the question merely inquires whether Plaintiff knew that a lawsuit had been filed in his name before the time that his attorneys actually filed the lawsuit. As such, it would not appear that Plaintiff's answer to this question would be protected by the attorney client privilege. Regardless, Plaintiff did not answer the questions.")

Case Date Jurisidction State Cite Checked
2007-08-27 Federal VA

Chapter: 11.802

Case Name: Sharer v. Tandberg, Inc., No. 1:06cv626 (JCC), 2007 U.S. Dist. LEXIS 22391, at *3, *4-*6 (E.D. Va. Mar. 27, 2007)
("The attorney client privilege 'protects only the communications themselves, not underlying facts.' X-Corp. v. Doe, 805 F. Supp. 1298, 1305 (E.D. Va. 1992) (citing Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). The mere fact of legal consultation also falls outside the protection of the privilege. See, e.g., In Re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983); Howell v. Jones, 516 F.2d 53, 58 (5th Cir. 1975). It is clear that the substance of any communications between Law and his attorney are protected by the attorney-client privilege, while the fact that he met with an attorney which he has openly admitted during the course of this litigation is not (footnote omitted). Thus, Plaintiffs do not seek to protect the fact of legal consultation under the guise of the attorney-client privilege, but instead seek to protect against a negative inference about the substantive information sought during such consultations namely whether Law was advised by counsel in writing the emails to Tandberg. The issue for this Court to resolve is whether an inference regarding assertion of the privilege intrudes upon that privilege or is irrelevant under Rule 402 of the Federal Rules of Evidence. . . . The Fourth Circuit examined the issue of whether a negative inference may be drawn by invocation of the attorney-client privilege in Parker v. Prudential Ins. Co. of America, 900 F.2d 772 (4th Cir. 1990). In that case, the Fourth Circuit held that 'a client asserting the privilege should not face a negative inference about the substance of the information sought.' Id. at 775. The Court's decision was based upon the finding that the testimony was only probative if one infers that the attorney advised the client to act as she did. . . . The fact that Law met with an attorney prior to the email exchange with Smith, Ricci, and Kent is only relevant to the extent that an inference may be drawn as to the substance of legal communications between attorney and client. As the Fourth Circuit held in Parker, 'any such inference would intrude upon the protected realm of the attorney-client privilege.' Id. Accordingly, Defendant may not refer to Plaintiff's legal consultation prior to the April emails to draw an inference about the substance of legal advice. In concordance with the Fourth Circuit precedent established in Parker, because the fact of legal consultation is only relevant in order to draw this improper inference, the danger of unfair prejudice to the Plaintiff greatly outweighs any probative value under Rule 403 of the Federal Rules of Evidence. Accordingly, this Court sees no reason to allow Defendants to question Law regarding his consultations with counsel prior to the sending of the emails.")

Case Date Jurisidction State Cite Checked
2007-03-27 Federal VA

Chapter: 11.803

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("I agree with AAIC that whether Sluga developed some writing as a result of her work at Crum & Forster, and whether Sutton knew about it, is not a 'communication' subject to the attorney-client privilege. Additionally, whether Sutton reviewed any writings or reports written by Sluga is an action, not a 'communication.' Accordingly, First Mercury's claims of privilege are unsubstantiated and overruled."; "First Mercury also contends that counsel's questions as to whether Sluga developed some writing as a result of her work for Crum & Forster and whether Sutton reviewed that writing invades the work product protections. I disagree. The existence of writings and whether Sutton reviewed them are not protected by the work product doctrine, even if First Mercury would not be required to disclose the writings themselves or their content. Sutton is directed to answer these questions."; "Counsel asked Sutton about the business purpose of her meeting with Sluga, and Sutton was directed not to answer. First Mercury argues that AAIC knows Sluga was hired as outside counsel to Crum & Forster to perform an after-verdict review of the underlying claim, and that any additional inquiry about the purpose of the meeting invades the attorney-client privilege. I agree. AAIC is entitled to know the general purpose -- to facilitate Sluga's after-verdict review, but any further information would veer into protected communication. Sutton need not answer this question."; "Counsel asked Sutton whether the pre-verdict standard operating procedure of Crum & Forster's 'large loss committee' also applied to the committee's post-verdict work. First Mercury instructed Sutton not to answer on the basis of attorney-client privilege because Kraus was present at the large loss committee meetings and provided legal advice. But whether the committee continued to follow the standard operating procedure is an action, not a communication with counsel for the purpose of receiving legal advice. Accordingly, the attorney-client privilege does not apply. Sutton is directed to answer the question."; "Counsel asked Sutton if she knew whether the large loss committee reviewed any writings or written materials during its post-verdict work. Sutton was instructed not to answer on the basis of privilege. This appears to be a yes or no question asking about what the large loss committee did, not the content of the communications. Again, what the committee did is not protected by privilege. Sutton is directed to answer. I note that privilege may apply to the materials themselves and/or their contents."; "First Mercury also argues that this information is protected by the work product doctrine. I disagree. While the content of the documents may be protected by the work product doctrine, the fact of their existence is not. Sutton is directed to answer this question."; "Counsel asked Sutton a series of questions about the large loss committee's post-verdict meeting, beginning with who made presentations, if Sutton spoke, and if others spoke during the meeting. She was instructed not to answer on the basis of attorney-client privilege. First Mercury maintains that the committee's post-verdict meeting 'was held for the purpose of obtaining legal advice from Mr. Kraus,' rendering its activities protected by privilege and the work product doctrine. . . . The identity of who made presentations and who spoke, however, is not a communication, and therefore is not protected by the attorney-client privilege. Sutton is instructed to answer all three questions. I note, however, that privilege may apply to the substance of these presentations or remarks.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 11.803

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he knew whether anyone at Crum & Forster assessed whether the claims handling process of the underlying claim complied with Crum & Forster's expectations. First Mercury instructed Eisenmann to exclude conversations with general counsel, but to answer. Eisenmann then said that there were no discussions outside the presence of counsel. While the content of those discussions may be privileged, whether Eisenmann knew if someone made such an assessment is not. Eisenmann will answer the question. I again note that questions flowing from this answer may be subject to a valid assertion of privilege.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 11.803

Case Name: Albritton v. CVS Caremark Corp., Case No. 5:13-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 157730 (W.D. Ky. Nov. 23, 2015)
("The Court requested an in camera review of two case-status notes because the privilege log stated they were '[r]egarding [c]orrespondence with Sheila Bowe, Legal Coordinator,' a non-attorney member of Defendants' in-house legal team. Upon in camera inspection, the note reveals only that the employee sent a copy of a file to Defendants' legal department. Not only does this note not amount to a communication with an attorney, but it in no way reveals the content of any communications to the legal department."; "To claim privilege concerning a communication, Defendants must, at a minimum, reveal that they sent the communication to their attorneys. . . . It would belie the discovery rules and law of attorney-client privilege if a party's internal note that he made an arguably privileged communication was itself privileged but the party had to reveal the same facts when claiming the privilege as to the communication itself.")

Case Date Jurisidction State Cite Checked
2015-11-23 Federal KY

Chapter: 11.803

Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 153852 (D. Neb. Nov. 13, 2015)
("And documents that do not disclose the substance of the attorney-client communications, but merely indicate that discussions occurred, legal services were rendered, and documents were provided to the client are not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-11-13 Federal NE

Chapter: 11.803

Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *11 (C.D. Cal. Sept. 11, 2014)
("[T]he 'mere transmission' of documents by the attorney to a client would be covered by California's attorney-client privilege to the extent that the fact of transmission itself merits protection as attorney-client communication.")

Case Date Jurisidction State Cite Checked
2014-09-11 Federal CA

Chapter: 11.804

Case Name: Waymo LLC, Plaintiff, v. Uber Technologies, Inc., No. C 17-00939 WHA, 2017 U.S. Dist. LEXIS 54662 (N.D. Cal. April 10, 2017)
(rejecting an effort by a former Waymo employee to avoid log requirements for any documents related to his alleged theft of Waymo material used to assist Uber; "[T]he identity of the third party that prepared the report is a fact known to Uber, not a communication between Levandowski and his attorney, much less a communication made for the purpose of obtaining legal advice. As such, it cannot be concealed by any attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2017-04-10 Federal CA

Chapter: 11.804

Case Name: S.S. v. Leatt Corp., Case No. 1:12 CV 483, 2014 U.S. Dist. LEXIS 12192, at *18 (N.D. Ohio Jan. 31, 2014)
("Plaintiff is permitted to ask defendant why it made certain changes. It is very possible that some changes were made independently of defendant's attorneys. Moreover, the attorney client-privilege does not protect the fact that an individual sought legal advice. Rather, it protects the substance of the communications. Thus, plaintiff can ask defendant why he made certain changes. In the event plaintiff responds that he made changes based solely upon advice of counsel, the Court will revisit this issue after hearing specific testimony regarding the changes.")

Case Date Jurisidction State Cite Checked
2014-01-31 Federal OH B 6/14

Chapter: 11.804

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 101 (Fed. Cl. 2013)
("[A]lthough the privilege may not extend to all actions that a client takes in response to an attorney's advice . . . disclosure of the fact that 'the client takes that advice to heart and acts upon it' is privileged if it indirectly reveals the substance the client's request for legal advice.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal Other B 3/14

Chapter: 11.901

Case Name: General Electric v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
(holding that even non-protected historical documents can serve privilege protection if a client sends those documents to a lawyer in order to obtain legal advice about an issue raised in those documents; "The Government claims that only confidential or secret facts that may have been communicated in an attachment to an otherwise privileged communication may be subject to a claim of privilege. This argument, however, conflates the requirement that an attorney-client communication be confidential, with a non-existent requirement that the underlying information that is transmitted be non-public or confidential.")

Case Date Jurisidction State Cite Checked
2015-09-15 Federal CT
Comment:

key case


Chapter: 11.901

Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *13-14 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "Additionally, the attorney-client privilege does not foreclose inquiry into the general nature of the lawyer's activities on behalf of a client, conditions of the lawyer's employment or any other external trappings of the relationship. The privilege is concerned only with confidential communications, not with the structural framework within which they are uttered.")

Case Date Jurisidction State Cite Checked
2014-02-04 Federal CT B 6/14

Chapter: 11.901

Case Name: XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., Civ. A. No. 12-2071 SECTION "R" (2), 2014 U.S. Dist. LEXIS 9598, at *22, *24, *24-25 (E.D. La. Jan. 24, 2014)
(holding that a litigant seeking the recovery of attorney's fees waived any privilege protection that would otherwise cover the lawyer's bills; "The vast majority of the contents of the fee statements are not attorney-client privileged or work product protected in the first instance. 'Inquiry into the general nature of the legal services provided by counsel does not necessitate an assertion of the privilege because the general nature of services is not protected by the privilege.' . . . 'As a general rule, client identity and fee arrangements are not protected as privileged.'" (citation omitted); "[T]o the extent that the attorney-client privilege may arguably protect some portions of invoices, the privilege is waived by seeking reimbursement for attorney's fees."; "The fact that Bollinger's claim for reimbursement of attorneys fees reflected in these statements is a core element of the monetary recovery it seeks in this case necessarily requires Bollinger to place the reasonableness of their attorneys' work and fees at issue. Thus, Bollinger has waived its privilege (if any) as to these invoices under the 'at issue' waiver doctrine.")

Case Date Jurisidction State Cite Checked
2014-01-24 Federal LA B 6/14

Chapter: 11.901

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 100 (Fed. Cl. 2013)
("Although information may be privileged as it appears in an attorney-client communication, the broad subject matter or general nature of the communication or the attorney-client relationship generally is not.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal Other B 3/14

Chapter: 11.902

Case Name: Meade v. General Motors, LLC, Civ. A. No. 1:16-cv-00991-AT, 2017 U.S. Dist. LEXIS 61455 (N.D. Ga. April 21, 2017)
(finding that defendant's deficient log waived privilege protection; "The fact that a client is meeting with an attorney for the purposes of obtaining legal advice, and the general subject matter of such meeting, is not necessarily privileged.")

Case Date Jurisidction State Cite Checked
2017-04-21 Federal GA

Chapter: 11.902

Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("Information such as the identity of the client, the amount of the fee, the identification of payment by case file name, the general purpose of the work performed, and whether an attorney coached a client in his testimony is not privileged.")

Case Date Jurisidction State Cite Checked
2017-02-13 Federal NV

Chapter: 11.902

Case Name: In re Syngenta AG Mir 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 11749 (D. Kansas Jan. 27, 2017)
("Caselaw in this district provides a wealth of guidance as to what is -- and is not -- protected by the attorney-client privilege. First, it is important to note that 'personal, confidential, [or] private information' is not necessarily privileged. 'As this Court has held repeatedly, 'confidential' does not equate to 'nondiscoverable' or privileged.' Second, it is clear that '[u]nderlying facts are not protected by the privilege.' 'Similarly, neither the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not 'communications.' Nor are 'general topics of attorney-client discussions' or ultimate 'legal conclusions' of counsel protected. Thus, for example, this court has held that the subject matters of an in-house attorney's discussions with company executives are not privileged.")

Case Date Jurisidction State Cite Checked
2017-01-27 Federal KS
Comment:

key case


Chapter: 11.902

Case Name: Loop AI Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2017 U.S. Dist. LEXIS 4254 (N.D. Cal. Jan. 11, 2017)
("Sternberg stated in a declaration that 'while [he was] at Orrick, he did not advise anyone about implications arising from Anna Gatti's employment with Loop AI because he was not aware of Ms. Gatti's employment with Loop AI at that time.'. . . Plaintiff cites no authority to support its extraordinary position that an attorney's description of the scope of his work, and the knowledge (or lack thereof) that informed that work, somehow results in waiver of all privileged communications. Sternberg's statement did not waive the attorney-client privilege between Orrick and the Almawave Defendants.")

Case Date Jurisidction State Cite Checked
2017-01-11 Federal CA

Chapter: 11.902

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he recalled any discussions about the performance of the adjustors in the presence of counsel, if he had an opinion about the performance of the adjustors, if anyone had ever told him that the adjustors' performance was unsatisfactory, if he ever expressed the opinion that the adjustors' performance was unsatisfactory, and if he had an opinion about whether the claims handling team's performance was satisfactory. First Mercury objected to the first two questions and instructed Eisenmann not to answer, purportedly based on privilege, and instructed Eisenmann to answer the remaining questions only to the extent that such discussions occurred outside the presence of counsel."; "First Mercury's objection to the first question is well-founded: the question clearly addresses conversations in the presence of counsel, presumably for the purpose of receiving legal advice. Accordingly, Eisenmann need not answer this question.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 11.902

Case Name: Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966, 2016 Fla. App. LEXIS 9575 (Fla. Dist. Ct. App. June 22, 2016)
September 7, 2016 (PRIVILEGE POINT)

"Drawing the Line Between Unprotected Logistics About Privileged Communications and Their Protected Content"

Courts agree that in nearly every situation the attorney-client privilege does not protect the logistics of privileged communications — such as when and where clients and lawyers communicate. Similarly, the privilege normally does not protect clients' or lawyers' identities, or the general subject matter of their communications. But of course the privilege can protect such communications' content.

In Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966, 2016 Fla. App. LEXIS 9575 (Fla. Dist. Ct. App. June 22, 2016), defendant hospital wanted to depose a sick child's mother, whose lawsuit arguably missed the statute of limitations. The appellate court allowed questions about "the names of attorneys and dates of [the mother's] consultation[s]" — concluding that "these questions do not require her to disclose any communication she had with any attorney [but] merely require her to disclose the occurrence of a consultation with a lawyer regarding a general topic." Id. at *7. Nevertheless, the court reversed the trial court order requiring the mother to answer questions about "'the reasons why she first sought out legal counsel.'"Id. at *9. The court gave an example of an improper question: "'after consulting the first lawyer, why did you seek out a second lawyer?'" Id. at *10.

Most deposing lawyers know that they cannot explicitly seek the substance of adversaries' privileged communications. But the issue can sometimes be more subtle in a deposition setting. One simple way to draw the line between appropriate questions about privileged communications' logistics and improper questions that might invade the privilege is to distinguish between permissible "who, what, when, where" questions and improper "why" questions.

Case Date Jurisidction State Cite Checked
2016-06-22 State FL B 9/16
Comment:

key case


Chapter: 11.902

Case Name: Fish v. Kobach, Case No. 16-2105-JAR-JPO, Case No. 15-9300-JAR-JPO, 2016 U.S. Dist. LEXIS 29628 (D. Kansas March 8, 2016)
("[N]either the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not 'communications.' Nor are 'general topics of attorney-client discussions' or ultimate 'legal conclusions' of counsel protected.")

Case Date Jurisidction State Cite Checked
2016-03-08 Federal KS

Chapter: 11.902

Case Name: Anderson v. E. CT Health Network, Inc., Case No. 3:12CV785(RNC), 2014 U.S. Dist. LEXIS 2970, at *12, *3, *4, *5 (D. Conn. Jan. 10, 2014)
(inexplicably concluding that the following questions were inappropriate, because they "would tend to invade the protected area"; "'Who spoke at the May 31 meeting?"; "'Who made a recommendation at the May 31 meeting, such as whether Dr. Anderson should be continued?'"; "'Did anyone make a presentation of the facts at the May 31 meeting?'"; "'Did Lisa Boyle [defendant's lawyer] convey the contents of a May 31 email from plaintiff's lawyer Mary Alice Moore Leonhardt?'"; "'Were the following subjects discussed at the May 31 meeting?'"; "'Were David Neuhaus [defendant's Medical Director] or Deborah Gogliettino [defendant's Senior V.P.] consulted about defendants' answer to plaintiff's allegation at ¶ 18 of his CHRO [Conn. Comm'n on Human Rights & Opportunities] affidavit?'"; "'Was it Gogliettino's or Dr. Neuhaus's idea to use the words 'essential functions' in a letter signed by Dr. Neuhaus?'"; "'Why did Attorney Boyle ask Deborah Gogliettino to attend a meeting with Maureen Dinnan from HAVEN [third party evaluator] concerning plaintiff?'")

Case Date Jurisidction State Cite Checked
2014-01-10 Federal CT B 6/14

Chapter: 11.902

Case Name: Burlage v. Summerville Senior Living, Inc., Civ. A. No. 1:07cv352, 2007 U.S. Dist. LEXIS 79551, at *2-3 (E.D. Va. Oct. 25, 2007)
("Plaintiff asserts she wants to know only facts-the dates and times-regarding the decision to consult counsel and that communication with counsel about the eviction letter. But defendants have already produced a privilege log setting forth the dates of the communications protected by the attorney-client privilege or work product doctrine. If communications between defendants and counsel took place regarding the eviction letter, presumably they are there included. Therefore, plaintiff already has the facts to which she is entitled. Requiring defendants to provide greater specificity as to their communications with counsel on particular issues would necessarily reveal the nature of the communications. The nature of communications between 'attorney and client made because of that relationship and concerning the subject matter of attorney employment' is precisely what the privilege protects. If and when defendants decided to consult with counsel about his drafting an eviction letter, and if and when they did so consult are issues that go to the nature of defendants' communications with counsel. Such information is therefore privileged and protected. Plaintiff is not entitled to it.")

Case Date Jurisidction State Cite Checked
2007-10-25 Federal VA B 3/16
Comment:

key case


Chapter: 11.902

Case Name: United States v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 335 (4th Cir. 2003)
("The Government contends that the first question-whether Appellant 'consulted with [Counsel] on questions involving the filling out of the I-485,' . . . was not intended to disclose the substance of Counsel's communications with Appellant but rather to establish the 'general purpose of the work performed.' . . . This question, however, seeks more than just the 'general purpose' of the work performed (for example, providing advice regarding an immigration matter); it specifically asks whether Appellant consulted with Counsel about the preparation of the Form I 485. Thus, the question impermissibly seeks disclosure of the specific nature of the legal advice sought by Appellant."), cert. denied, 541 U.S. 982 (2004)

Case Date Jurisidction State Cite Checked
2003-01-01 Federal N 12/08