Showing 51 of 51 results

Chapter: 12.1

Case Name: Pfizer Inc. v. Lupin Pharms., Inc., Civ. No. 12-808-SLR (Consol.), 2013 U.S. Dist. LEXIS 169837, at *6, *6-7 (D. Del. Dec. 2, 2013)
(in a patent case, finding that materials did not deserve privilege or work product protection; "None of the documents bear any indication that they were shared with, or created under the direction of, an attorney."; "Clearly, these documents are not protected under the attorney-client privilege, as they were neither created with the knowledge of outside counsel, nor were they shared with outside counsel contemporaneously.")

Case Date Jurisidction State Cite Checked
2013-12-02 Federal DE B 5/14

Chapter: 12.1

Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162330, at *20 (D. Conn. Nov. 14, 2013)
("[T]hese do not reflect a distribution list, and only show the substance of the email and the email's author. Again, although Progressive represents that these documents were sent by IAC [Insurance Association of Conn.] counsel to the IAC's members, there is no evidence before the Court as to whom these documents were actually sent. Accordingly, the Court therefore concludes that Progressive has not borne its burden of showing that documents 117 and 119 are protected by the attorney-client privilege. Therefore, Progressive shall produce copies of documents 117, 119-121, 127, 128, and 157.")

Case Date Jurisidction State Cite Checked
2013-11-14 Federal CT B 5/14

Chapter: 12.5

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: 12.302

Case Name: Loop Ai Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2016 U.S. Dist. LEXIS 22656 (N.D. Cal. Feb. 24, 2016)
("The privilege extends to versions of electronic communications and preliminary drafts of communicated documents.")

Case Date Jurisidction State Cite Checked
2016-02-24 Federal CA

Chapter: 12.302

Case Name: Lislewood Corp. v. AT&T Corp.; AT&T Corp. v. Marriott Int'l, Inc., No. 13 CV 1418, 2015 U.S. Dist. LEXIS 43089 (N.D. Ill. March 31, 2015)
("The attorney-client privilege protects verbal and written communications exchanged in confidence between a client and an attorney for the purpose of obtaining legal advice.")

Case Date Jurisidction State Cite Checked
2015-03-31 Federal IL

Chapter: 12.302

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: 12.302

Case Name: REC Software USA, Inc. v. Bamboo Solutions Corp., Case No. C11-0554JLR, 2013 U.S. Dist. LEXIS 12670, at *9 n.6 (W.D. Wash. Jan. 30, 2013)
(holding that the attorney-client privilege did not protect a document that was not communicated to the client; "'REC does not contend that any other privilege, such as the attorney-client privilege, attaches to Report III to protect its disclosure. Based on the privilege log, Report III was never disclosed to the client, Mr. Pickett, and therefore, the attorney-client privilege would not apply.'")

Case Date Jurisidction State Cite Checked
2013-01-30 Federal WA B 7/13

Chapter: 12.302

Case Name: Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 551 (S.D.N.Y. 2013)
(in an opinion by Magistrate Judge James Francis, holding that an employment database deserved privilege but not work product protection; "Privileged information can be communicated in myriad ways: orally, in writing, by e-mail, with text messages, or even through social media.")

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

Chapter: 12.302

Case Name: Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 554-55 (S.D.N.Y. 2013)
(in an opinion by Magistrate Judge James Francis, holding that an employment database deserved privilege but not work product protection; "Communication is very simply 'a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior.' Merriam-Webster's Collegiate Dictionary 251 (11th ed. 2003). In this instance, when the Human Capital Management Division populates the database with information in the Diversity Objects fields, it is taking the initial step in communicating that information to counsel for the purpose of obtaining legal advice. That the information then resides in the database for some period of time before being passed on to the attorneys is of no moment. Likewise, the Diversity Objects fields -- the names of the data categories -- are communications. They are the organizational principles, dictated by counsel, that the client uses to sort and package the information provided to the attorneys. In effect, they are the syntactical structure for the communication of privileged information, and syntax is an indispensable aspect of the way verbal communication transmits meaning. Were the Diversity Objects fields to be disclosed, the ability of the client to seek legal advice would be chilled, which is precisely the result that the privilege is intended to avoid.")

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

Chapter: 12.303

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)
(holding that the general counsel did not waive privilege protection for communications with his previous employer by storing them on a password protected site; "Morosoff did not waive the privilege merely by storing the disputed documents on the worksite of his current employer. Morosoff has kept the documents on a password-protected hard drive, and there is no evidence that anyone at CIM other than Morosoff had access to, much less actually accessed, the privileged documents, and Morosoff's uncontradicted, sworn statements establish the contrary. While Morosoff appears to have kept copies of the documents on CIM's network for archival purposes, attorney-client communications do not lose their privileged character 'for the sole reason that [they are] communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communications may have access to the content of the communication[s].' As such, there has been no disclosure and consequently no waiver.")

Case Date Jurisidction State Cite Checked
2014-03-20 Federal CA

Chapter: 12.303

Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *10 (N.D. Cal. Mar. 17, 2014)
("The privilege extends to electronic communications versions and preliminary drafts of communicated documents.")

Case Date Jurisidction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 12.303

Case Name: Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 551 (S.D.N.Y. 2013)
(in an opinion by Magistrate Judge James Francis, holding that an employment database deserved privilege but not work product protection; "Privileged information can be communicated in myriad ways: orally, in writing, by e-mail, with text messages, or even through social media.")

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

Chapter: 12.303

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 626 (D. Nev. 2013)
("The Nevada Supreme Court has also held that 'a documents transmitted by e-mail is protected by the attorney-client privilege as long as the requirements of the privilege are met,' which is determined by looking at the content and recipients of the e-mail.")

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

Chapter: 12.304

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: 12.304

Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
("Such documents are entitled to privilege even if they also contain non-legal communications.")

Case Date Jurisidction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 12.304

Case Name: Bauer v. County of Saginaw, Case No. 14-cv-11158, 2015 U.S. Dist. LEXIS 39098 (E.D. Mich. March 27, 2015)
("[J]ust because the underlying facts may not be confidential, the confidential nature of the communications between an attorney and his client are not destroyed.")

Case Date Jurisidction State Cite Checked
2015-03-27 Federal MI

Chapter: 12.304

Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("[T]he Court concludes that Taxpayer has met its burden and established the claimed privilege. The documents for which Taxpayer claims the tax practitioner privilege either dispense tax planning advice in relation to different transactions . . . Or are necessary in order to obtain such tax planning advice and directly seek such advice.")

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

Chapter: 12.304

Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("[A]s memoranda analyzing legal implications of certain corporate transactions, these documents were made for the purpose of dispensing legal advice and were kept in confidence.")

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

Chapter: 12.304

Case Name: Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968 (D.S.C. May 23, 2013)
August 7, 2013 (PRIVILEGE POINT)

"Courts Apply an Expansive View of Privilege Protection for Corporations' Internal Data"

The attorney-client privilege protects communications between clients and their lawyers involving the former's request for legal advice. Although the privilege can extend to corporations' collections of internal data, most courts conclude that business rather than legal concerns motivated such compilations, and find they are not protected.

On the other hand, some courts take a broad view. In Lopez v. Longs Drug Stores California, Inc., the court upheld privilege protection for a six-page document "listing the names, job titles and employment locations of 139 employees" being considered for a reduction in force. No. A131638, 2013 Cal. App. Unpub. LEXIS 3399, at *36 (Cal. Ct. App. May 14, 2013). The court noted that the Human Resource department prepared the interim list for lawyers' use, and that only they viewed the list. Nine days later, another court took a similarly expansive view. In Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968 (D.S.C. May 23, 2013), the court protected a spreadsheet detailing vehicle certifications. The court cited the general manager's declaration that the company's "attorney requested that particular information be pulled from the files of Starcraft Bus, that certain calculations be made using variables he requested, and that the data be compiled in a certain way to aid his analysis." Id. At *12. The declaration further stated that "the spreadsheets have never been shared with any third party or government agency, were not used in the normal course of business, and were not required by any regulatory agency." Id.

Not all courts would be this expansive, but lawyers should be on the lookout for such helpful cases.

Case Date Jurisidction State Cite Checked
2013-05-23 Federal SC
Comment:

key case


Chapter: 12.304

Case Name: Lopez v. Longs Drug Stores California, Inc., No. A131638, 2013 Cal. App. Unpub. LEXIS 3399, at *36 (Cal. Ct. App. May 14, 2013)
August 7, 2013 (PRIVILEGE POINT)

"Courts Apply an Expansive View of Privilege Protection for Corporations' Internal Data"

The attorney-client privilege protects communications between clients and their lawyers involving the former's request for legal advice. Although the privilege can extend to corporations' collections of internal data, most courts conclude that business rather than legal concerns motivated such compilations, and find they are not protected.

On the other hand, some courts take a broad view. In Lopez v. Longs Drug Stores California, Inc., the court upheld privilege protection for a six-page document "listing the names, job titles and employment locations of 139 employees" being considered for a reduction in force. No. A131638, 2013 Cal. App. Unpub. LEXIS 3399, at *36 (Cal. Ct. App. May 14, 2013). The court noted that the Human Resource department prepared the interim list for lawyers' use, and that only they viewed the list. Nine days later, another court took a similarly expansive view. In Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968 (D.S.C. May 23, 2013), the court protected a spreadsheet detailing vehicle certifications. The court cited the general manager's declaration that the company's "attorney requested that particular information be pulled from the files of Starcraft Bus, that certain calculations be made using variables he requested, and that the data be compiled in a certain way to aid his analysis." Id. At *12. The declaration further stated that "the spreadsheets have never been shared with any third party or government agency, were not used in the normal course of business, and were not required by any regulatory agency." Id.

Not all courts would be this expansive, but lawyers should be on the lookout for such helpful cases.

Case Date Jurisidction State Cite Checked
2013-05-14 State CA
Comment:

key case


Chapter: 12.304

Case Name: DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1190 (Colo. 2013)
September 18, 2013 (PRIVILEGE POINT)

"Colorado Supreme Court Explains the "Confidentiality" Component of Attorney-Client Privilege Protection"

Every court holds that the attorney-client privilege rests on confidentiality. However, that element focuses on client-lawyer communications, not on the subject matter about which they communicate.

In DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1190 (Colo. 2013), the trial court held that title opinions could never deserve privilege protection, "because they were based on public information." The Colorado Supreme Court rejected that conclusion – noting that it "would render the attorney-client privilege meaningless in many circumstances." Id. At 1199. The Court noted that lawyers "regularly base legal advice on public information," such as "statutes and case law that inform most legal advice" that are "publicly available at law libraries and on the Internet." Id. The Court emphasized that "[w]hat matters is that the legal advice is given in response to a confidential client communication, irrespective of whether that advice is informed by publicly available information." Id.

The Colorado Supreme Court properly recognized that the attorney-client privilege can protect confidential communications between clients and their lawyers, even if those communications involve publicly available information or non-confidential issues.

Case Date Jurisidction State Cite Checked
2013-01-01 State CO
Comment:

key case


Chapter: 12.304

Case Name: DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1199 (Colo. 2013)
(finding that a title opinion can deserve privilege protection; "From the general information provided to us, attorney-authored title opinions, insofar as they contain legal advice based on a confidential client communication, appear to fall within that doctrine's ambit. According to one commentator, 'title opinions are much more than just a recitation of that which appears in the public records. They constitute the attorney's opinion concerning title to the property.' . . . [A] particular title opinion, like any document sought in discovery, may contain privileged attorney-client communications if the parameters of that doctrine are met. To make this determination, the particular title opinions must be examined." (footnote omitted))

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

Chapter: 12.304

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 104 (Fed. Cl. 2013)
("Just as an attorney's interpretation of a statute, regulation, or contract may be privileged, even though the information underlying the attorney's interpretation is in the public domain, the privilege may apply to defendant's internal requests for legal advice regardless of whether the information that serves as the basis for those requests is confidential.")

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

Chapter: 12.304

Case Name: DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1199 (Colo. 2013)
(finding that a title opinion can deserve privilege protection; "To conclude that legal advice loses its privileged character when based on public information, as the court here appears to reason, would render the attorney-client privilege meaningless in many circumstances. Attorneys regularly base legal advice on public information. Indeed, the statutes and caselaw [sic] that inform most legal advice are publicly available at law libraries and on the Internet. What matters is that the legal advice is given in response to a confidential client communication, irrespective of whether that advice is informed by publicly available information. Accordingly, because the trial court's reasoning is without legal support, we hold that the court abused its discretion by compelling production of title opinions.")

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

Chapter: 12.304

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 901 (N.D. Ill. 2013)
("TMC [Plaintiff] is correct -- technical information does not make the document privileged. The inclusion of technical information also does not, however, 'render the document discoverable, because requests for legal advice on patentability or for legal services in preparing a patent application necessarily require evaluation of technical information such as prior art.'" (citation omitted))

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

Chapter: 12.304

Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008)
("Nor does the fact that Cintas' attorneys are carbon copied on the emails, nor do the various blanket 'privileged and confidential' labels attached without apparent regard to content.")

Case Date Jurisidction State Cite Checked
2008-01-01 State VA

Chapter: 12.304

Case Name: In re Grand Jury Subpoena United States v. Under Seal, No. 03-1269, 2003 U.S. App. LEXIS 16918 (4th Cir. Aug. 19, 2003)
("[W]e reject the Government's 'public document' argument because it misconstrues the nature of the asserted privilege. The underlying communications between Counsel and Appellant regarding his submission of Form I-485 are privileged, regardless of the fact that those communications may have assisted him in answering questions in a public document. Adopting the Government's reasoning would lead to the untenable result that any attorney-client communications relating to the preparation of publicly filed legal documents -- such as court pleadings -- would be unprotected.")

Case Date Jurisidction State Cite Checked
2003-08-19 Federal

Chapter: 12.304

Case Name: United States of America v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 336 (4th Cir. 2003)
("Further, we reject the Government's 'public document' argument because it misconstrues the nature of the asserted privilege. The underlying communications between Counsel and Appellant regarding his submission of Form I 485 are privileged, regardless of the fact that those communications may have assisted him in answering questions in a public document. Adopting the Government's reasoning would lead to the untenable result that any attorney-client communications relating to the preparation of publicly filed legal documents -- such as court pleadings -- would be unprotected."), cert. denied, 541 U.S. 982 (2004)

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

Chapter: 12.401

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: 12.401

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: 12.401

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 Sutton what the large loss committee did in connection with the underlying claim, post-verdict, and whether Crum & Forster took any action at the direction of the committee. Sutton again was instructed not to answer on the basis of privilege. First Mercury contends that what Crum & Forster did as a result of obtaining legal advice is protected by privilege. . . . First Mercury cites no authority for the proposition that an entity's actions after obtaining legal advice are protected by privilege. Indeed, such a result would be nonsensical: every person or company could protect its actions by talking with a lawyer about it beforehand. First Mercury improperly instructed Sutton not to answer these questions. I again note that privilege may apply to other questions resulting from these answers."; "First Mercury also argues that the information sought by these questions is protected by the attorney work product doctrine. . . . These questions, however, do not seek the opinions or mental impressions of counsel. They only ask what actions the large loss committee and the company took. Accordingly, the work product doctrine does not apply. Sutton must answer these questions.")

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

Chapter: 12.401

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: 12.401

Case Name: Anderson v. E. CT Health Network, Inc., Case No. 3:12CV785(RNC), 2014 U.S. Dist. LEXIS 2970, at *12-13 (D. Conn. Jan. 10, 2014)
("Each decision maker's basis for deciding to terminate plaintiff's employment is not privileged . . ., and he certainly can discover this without asking what legal advice was sought and received from outside counsel.")

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

Chapter: 12.401

Case Name: Tighe v. Buschak, No. 1:11-cv-224, 2013 U.S. Dist. LEXIS 172527, a t *13 (W.D. Pa. Dec. 9, 2013)
(holding that a client's actions do not deserve privilege protection; "Any decision reached by the Board is not itself privileged, even if it was based on advice received from McDonald in his capacity as solicitor. . . . Stating whether a decision was reached would not necessarily reveal the content of any advice McDonald provided. Nor would it reveal the content of any of the communications between Scaletta [school superintendent], Fox [school district business manager], and McDonald. Thus, McDonald will be directed to respond to the two questions set forth above in writing.")

Case Date Jurisidction State Cite Checked
2013-12-09 Federal PA B 5/14

Chapter: 12.401

Case Name: The Flexible Benefits Council v. Feldman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *12 (E.D. Va. Oct. 8, 2008)
("Upon review of the documents at issue in camera, the Court finds that, while an attorney-client relationship may exist between Hawks and Feldman, the documents Plaintiff seeks do not relate to this representation, but rather to the acts Hawks and Feldman undertook in their roles as business partners in the formation of ECFC Ltd. Given the narrow limits of the attorney-client privilege in this Circuit, that privilege does not apply here. Defendants' Objection will be denied.")

Case Date Jurisidction State Cite Checked
2008-10-08 Federal VA

Chapter: 12.402

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, after reviewing deposition excerpts provided to him in advance of his own deposition, he viewed any of the prior testimony as being inaccurate. Eisenmann answered that everything he learned about the handling of the underlying claims was after the verdict and through discussions with counsel. Thus, his opinion on the accuracy of the prior deposition testimony was entirely a result of his communications with counsel. Eisenmann need not answer this question.")

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

Chapter: 12.402

Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *12-13 (D.S.C. May 1, 2013)
(holding that a paralegal's list of earlier cases involving the company was work product, and that the lawyer's list of important earlier cases deserved opinion work product protection; "This is an email from Chris Risberg to Bill Bezubic sending attached information that is not itself privileged. While the underlying information is not privileged, the fact of the transmission is itself a communication about an identifiable subject matter. And that communication was a confidential one between a lawyer (specifically a paralegal who is within the attorney-client unit) and the client (specifically the point person for the company on legal matters) on a legal matter. Accordingly, the email is protected under the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-05-01 Federal SC B 3/14

Chapter: 12.403

Case Name: Estate of Tigani, C.A. No. 7339 ML, 2013 Del. Ch. LEXIS 73, at *11 (Ct. Ch. Del. Mar, 20, 2013)
(holding that a lawyer's knowledge about an executor's mental state was not privileged if the lawyer gained the knowledge in working as a business advisor rather than a lawyer; "Any information regarding, or impressions of, Josephine's [executrix] mental state that Mr. Fournaris [one of the executrix's lawyers] may have gathered while serving in that role also is not protected by privilege. For these reasons, Bruce [son of deceased] is permitted to conduct discovery into the contents of the March 19, 2011 e-mail Mr. Fournaris sent him, as well as Mr. Fournaris's knowledge of Josephine's mental capacity to the extent that such knowledge was obtained from Mr. Fournaris's work as a business advisor to Josephine." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-03-20 State DE B 3/14

Chapter: 12.403

Case Name: United States v. Nelson, 732 F.3d 504, 519 (5th Cir. 2013)
(analyzing a criminal defendant's lawyer's testimony about his client's signing of a document; finding that the testimony violated the criminal defendant's attorney-client privilege, but amounted to harmless error; "Pierson's [lawyer] testimony, however, was not confined to observations about Nelson's [criminal defendant] demeanor that could have easily been made by a layperson; nor was it offered outside the presence of a trial jury on a narrow issue like competency or voluntariness. . . . Called by the government, defense counsel Pierson testified that her former client in this case, Nelson, read the plea agreement admitting to federal criminal offense conduct with her, that he 'understood' and 'agreed with' it, and that he signed it only after a 'lengthy discussion' with his experienced attorney. Such information reveals more than the plain fact of the voluntariness of Nelson's signature on a guilty plea attestation and document inclusive of the offense's factual basis, and we conclude that it is protected by the attorney-client privilege."; "Although Pierson's testimony falls under the attorney-client privilege, we nonetheless conclude that its admission in this case was harmless error.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal

Chapter: 12.403

Case Name: Polanco v. McNeil, Case No. 09-60448-Civ.-COHN, 2010 U.S. Dist. LEXIS 77716, at *75-76, *76 (S.D. Fla. Apr. 19, 2010)
(in a criminal case, finding that a lawyer could testify about a client's demeanor without violating the attorney-client privilege; "Review of the record in this case reveals that the petitioner's divorce attorney, Gerard Cutrone, Esquire, and the mediator, Diane Blank, testified regarding their observations, not privileged communications with the petitioner. As previously noted in this Report, Attorney Cutrone recalled that there was nothing unusual in the petitioner's behavior on the day of the mediation, which was the day prior to the murder. . . . Likewise, the divorce mediator, Diane Blank, also testified at trial regarding her observations of the petitioner during the mediation. . . . Blank also explained that if she had perceived there was an observable threat that someone might be in danger to themselves or others, she would immediately have stopped the mediation. . . . In this case, Blank recalled that the petitioner was dressed appropriately and spoke properly during the proceedings."; "Under the circumstances present here, it was not error to admit the testimonies of these witnesses concerning their observations of the petitioner on the day before the murder.")

Case Date Jurisidction State Cite Checked
2010-04-19 Federal FL B 8/16

Chapter: 12.403

Case Name: United States v. Kendrick, 331 F.2d 110, 113-14 (4th Cir. 1964)
("Communications made in confidence by a client to his attorney are protected by the attorney-client privilege. It is the substance of the communications which is protected, however, not the fact that there have been communications. Excluded from the privilege, also, are physical characteristics of the client, such as his complexion, his demeanor, his bearing, his sobriety and his dress. Such things are observable by any one who talked with the client, and there is nothing, in the usual case, to suggest that the client intends his attorney's observations of such matters to be confidential. In short, the privilege protects only the client's confidences, not things which, at the time are not intended to be held in the breast of the lawyer, even though the attorney-client relation provided the occasion for the lawyer's observation of them.")

Case Date Jurisidction State Cite Checked
1964-01-01 Federal

Chapter: 12.403

Case Name: Eason v. Eason, 203 Va. 246, 254, 123 S.E.2d 361, 367 (1962)
("assuming, but not deciding" that the trial court had properly permitted a decedent's former lawyers "to testify as to any papers they may have prepared for [the decedent], as to any transactions or conversations they may have had with her in the presence of others, and to give their opinions of her mental competency based upon such contacts with her" but not "as to any transactions conducted in private with her, nor to give their opinions concerning her competency, based upon these private matters")

Case Date Jurisidction State Cite Checked
1962-01-01 State VA B 3/16
Comment:

key case


Chapter: 12.404

Case Name: Worley v. Central Fla. Young Men's Christian Ass'n, Inc., No. SC15-1086, 2017 Fla. LEXIS 812 (Fla. Sup. Ct. April 13, 2017)
(holding that the attorney-client privilege protected the fact of plaintiff's lawyer's possible referral of plaintiff to a medical specialist; "At Worley's initial deposition, YMCA asked if she was referred to her specialists by her attorneys, to which Worley's counsel objected on the ground of attorney-client privilege. Id. YMCA then propounded to Worley three sets of Boecher [Allstate Ins. Co. v. Boecher, 733 So. 2d 993 (Fla. 1999)] interrogatories, directed to specific doctors employed by Sea Spine, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia, and a supplemental request to produce, directed to Morgan & Morgan, in an effort to establish the existence of a referral relationship between Worley's attorneys and her treating physicians. . . . These efforts were based on YMCA's suspicions that there was a 'cozy agreement' between Morgan & Morgan and the physicians, due to the amounts of Worley's medical bills."; "Respondent argues that the lawyer's act of referring a client to a treating physician is an underlying fact, not a communication. We disagree. That the plaintiff was treated by a particular doctor is an underlying fact. That the plaintiff received a referral to see a particular doctor is also an underlying fact. However, whether the plaintiff's attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and attorney, and we resist any attempts to separate the contents of communications to distinguish 'facts' from privileged information. To hold otherwise would severely undermine the purpose of the privilege, which is to encourage the free flow of information between attorneys and their clients. Accordingly, we find that the supplemental request to produce requires the production of privileged materials."; "Even in cases where a plaintiff's medical bills appear to be inflated for the purposes of litigation, we do not believe that engaging in costly and time-consuming discovery to uncover a 'cozy agreement' between the law firm and a treating physician is the appropriate response. We are concerned that this type of discovery would have a chilling effect on doctors who may refuse to treat patients who could end up in litigation out of fear of becoming embroiled in the litigation themselves. Moreover, we worry that discovery orders such as the one in this case will inflate the costs of litigation to the point that some plaintiffs will be denied access to the courts, as attorneys will no longer be willing to advance these types of costs. Finally, attempting to discover this information requires the disclosure of materials that would otherwise be protected under the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2017-04-13 Federal FL

Chapter: 12.404

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 Sutton what the large loss committee did in connection with the underlying claim, post-verdict, and whether Crum & Forster took any action at the direction of the committee. Sutton again was instructed not to answer on the basis of privilege. First Mercury contends that what Crum & Forster did as a result of obtaining legal advice is protected by privilege. . . . First Mercury cites no authority for the proposition that an entity's actions after obtaining legal advice are protected by privilege. Indeed, such a result would be nonsensical: every person or company could protect its actions by talking with a lawyer about it beforehand. First Mercury improperly instructed Sutton not to answer these questions. I again note that privilege may apply to other questions resulting from these answers."; "First Mercury also argues that the information sought by these questions is protected by the attorney work product doctrine. . . . These questions, however, do not seek the opinions or mental impressions of counsel. They only ask what actions the large loss committee and the company took. Accordingly, the work product doctrine does not apply. Sutton must answer these questions.")

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

Chapter: 12.404

Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. Cir. Ct. 2015)
("The Privilege Log prepared by Allstate describes many documents that are plainly not communications between attorney and client for the purpose of procuring or providing legal advice. For example, '6. Adjuster evaluation notes created based in part on attorney reports' does not describe a communication to or from an attorney created for the primary purpose of soliciting legal advice. Allstate argues in its Memorandum filed July 29, 2015, with no citation to authority, 'the privilege protects the direct communications, and documents and opinions created using these communications, and the privilege protects reports, analysis, and conclusions based on the attorneys' impressions, thoughts, and analysis.'. . . The Court finds that this declaration does not accurately recite Virginia law regarding the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-01-01 State VA

Chapter: 12.404

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: 12.404

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: 12.404

Case Name: Safety Dynamics Inc. v. Gen. Star Indem. Co., No. CV-09-00695-TUC-CKJ (DTF), 2014 U.S. Dist. LEXIS 9045, at *6, *7, *12-13, *12 n.3 (D. Ariz. Jan. 24, 2014)
(finding that a litigant claiming good faith as a defense to a bad faith claim did not trigger an at issue waiver under Hearn (Hearn v. Rhay, 68 F.R.D. 574 (1975)); "While Defendant raised an affirmative defense of good faith in response to the claim of bad faith brought by Plaintiff, the mere filing of a bad faith action or the affirmative claim of good faith do not by themselves constitute an implied waiver of the attorney client privilege."; "While Mr. Fanelli's deposition testimony indicates that he sought the advice of counsel during the claims process, the fact that he conferred with counsel about an issue arising in an ongoing litigation does not waive the privilege. . . . The mere fact that a litigant confers with counsel and takes actions based on counsel's advice does not waive the attorney client privilege."; "This Court disagrees with Magistrate Judge Ferraro's conclusion that Defendant does not have to produce a privilege log unless its non-privilege based objections are unfounded. . . . This Court has not identified any authority in the Ninth Circuit that creates an exception to this rule for parties that raise multiple objections in addition to privilege to a single request for documents."; "'Defendants argues that since it objected to the scope of some discovery requests, it should not be required to log all privileged documents that may fall within the objectionable scope of the request. However, in situations where it may be unduly burdensome to specifically identify each privileged document, due to the amount of documents claimed to be privileged, a party may identify privileged documents by categories as long as it's still consistent with federal law.'")

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

Chapter: 12.404

Case Name: Hofman v. City & Cnty. of San Francisco, Case No. 4:11-cv-4016 CW (KAW), 2013 U.S. Dist. LEXIS 118989, at *1, *2-3 (N.D. Cal. Aug. 20, 2013)
(holding that the reason a city implemented certain "selection procedures and tools in promoting police officers" amounted to discoverable facts; "The reasons that the City chose particular selection tools are facts -- unless the only reason that the City chose the selection tools was because its attorneys advised it to do so. Because the reasons are facts, not communications, they are not privileged. This is so even if those reasons were articulated in, or even stemmed from, communications between the City and its attorneys.")

Case Date Jurisidction State Cite Checked
2013-08-20 Federal CA B 4/14

Chapter: 12.404

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: 12.1204

Case Name: Minter v. Liberty Mutual Fire Ins. Co., Civil Action No. 3:11CV-249-S, 2014 U.S. Dist. LEXIS 86989, at *2-3 (W.D. Ky. June 26, 2014)
(finding that a litigant's boilerplate "compliance with the law" affirmative defense did not trigger an implied waiver; "Nevertheless, attorney-client privilege may be impliedly waived if a party relies on 'advice of counsel' as a defense, regardless of whether any privileged documents or information have already been disclosed. . . . Yet, while it is true that Liberty Mutual's answer to the complaint contains many statements that it acted in accordance with the law, those are boilerplate contentions common to many answers that cannot reasonably be construed as an express or implied 'advice of counsel' defense, particularly since Liberty Mutual explicitly stated in its response to Ms. Minter's motion to compel that 'advice of counsel' is not one of its defenses. . . . Accordingly, the court determines that Liberty Mutual has not waived its attorney-privilege.")

Case Date Jurisidction State Cite Checked
2014-06-26 Federal KY