Showing 168 of 168 results

Chapter: 13.2

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)
("Not all communications between an attorney and client are privileged.")

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

Chapter: 13.2

Case Name: U.S. Bank Nat'l Ass'n v. PHL Variable Ins. Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *5-6 (D. Minn. Mar. 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; concluding after an in camera review the risk assessment involved business rather than legal concerns; "PHL contends that the Report should be presumed privileged because it was created by attorneys in response to PHL's request for legal advice. . . . However, a document is not automatically privileged merely because it involves an attorney and a client or because it is labeled privileged or confidential.")

Case Date Jurisidction State Cite Checked
2016-03-30 Federal MN B 8/16

Chapter: 13.2

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)
("Both of the e-mails qualify as communications from Defendants' outside counsel to one of Defendants' employees, who works in compliance operations. Outside counsel also carbon copied one of the two e-mails to an in-house paralegal and an in-house attorney of Defendants. Sixth Circuit precedent does not recognize an absolute privilege for communications sent from an attorney to his or her client.")

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

Chapter: 13.2

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: 13.2

Case Name: Chumbley v. Board of Education for Peoria District 150, Case No. 1:14CV01238, 2015 U.S. Dist. LEXIS 99076 (C.D. Ill. July 29, 2015)
("The mere presence of an attorney at a Board meeting does not render everything said at such a meeting subject to the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-07-29 Federal IL

Chapter: 13.2

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: 13.2

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: 13.2

Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *8-9 (W.D. Wash. Sept. 19, 2014)
("Mr. Fearn's status as a lawyer cannot in itself operate to cloak all communications with him or made in his presence in the shroud of secrecy. Were the Court to endorse this outcome, it would incentivize agencies to ensure that all decisions occur in the presence of counsel or run through the hands of an attorney merely to shield against discovery. The Court cannot sanction such an abuse of the discovery process and of the narrowly construed attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-09-19 Federal WA

Chapter: 13.2

Case Name: In the Matter of the Search of Advanced Pain Centers Poplar Bluff v. Ware, Case No. 4:13CV010408AG and Case No. 1:13CV00107 AGF, 2014 U.S. Dist. LEXIS 43177 (E.D. Mo. March 31, 2014)
(finding that a company's Incident Reports reports did not deserve attorney-client privilege protection; "[I]t is undisputed that prior to the execution of the search warrant neither the completed Adverse Incident Reports, nor their contents had ever been communicated to or reviewed by an attorney. Finally, Petitioners apparent argument that the labeling of some of the documents as 'Attorney-Client Privileged' renders those documents privileged is without merit."; "Petitioners do not contend, much less establish, that the forms were completed or reviewed by counsel. . . . Nor have Petitioners asserted that the information on the forms at issue was ever discussed with any attorney. In addition, it has long been established that the mere labeling of a document or the use of a form prepared by an attorney is not sufficient to convey the protection of the attorney-client privilege."; also finding the work product doctrine inapplicable)

Case Date Jurisidction State Cite Checked
2014-03-31 Federal MO

Chapter: 13.2

Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *5-6 (M.D. Ga. Dec. 6, 2013)
("While Stifel's in-house counsel was copied on the email, information that is not otherwise privileged will not become so simply by being communicated to or filtered through an attorney.")

Case Date Jurisidction State Cite Checked
2013-12-06 Federal GA B 5/14

Chapter: 13.2

Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2:08-cv-2141, 2013 U.S. Dist. LEXIS 129472, at *23 (E.D. Pa. Sept. 11, 2013)
("[T]he mere presence of an attorney, or the inclusion of an attorney as one of many recipients of a communication between corporate employees, will not transform a normal business communication into a communication subject to the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-09-11 Federal PA B 4/14

Chapter: 13.2

Case Name: Alomari v. Ohio Dept. of Pub. Safety, Civ. A. 2:11-cv-00613, 2013 U.S. Dist. LEXIS 118754, at *6 (S.D. Ohio Aug. 21, 2013)
("'[T]he mere fact that in-house counsel is present at a meeting does not shield otherwise unprivileged communications from disclosure.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-08-21 Federal OH B 4/14

Chapter: 13.2

Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *18 (Del. Ch. Apr. 10, 2013)
("'[T]he presence of a lawyer at a business meeting called to consider a problem that has legal implications does not itself shield the communications that occur at that meeting from discovery.' Rather, it is 'communications to a lawyer by or on behalf of a client for the purpose of the rendition of legal services or lawyer statements constituting legal service' that are protected.")

Case Date Jurisidction State Cite Checked
2013-04-10 State DE B 3/14

Chapter: 13.2

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("[W]here a communication neither requests nor expresses legal advice, but rather involves the soliciting or giving of business advice, it is not protected by the privilege. See United Shoe Mach. Corp., 89 F. Supp. at 359 [United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950)]. The communication must be with an attorney for the express purpose of securing legal advice. See Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). It is also true, however, that '[t]he mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege.' Coleman v. Am. Broadcasting Cos., Inc., 106 F.R.D. 201, 206 (D.D.C. 1985). 'For the attorney-client privilege to apply, the communication "must be primarily or predominately of a legal character."' ABB Kent-Taylor, Inc., 172 F.R.D. at 55 (citations omitted); see also Henson v. Wyeth Labs., Inc., 118 F.R.D. 584, 587 (W.D.Va. 1987) (communication must be for the primary purpose of soliciting legal, rather than business, advice).")

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

Chapter: 13.2

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("[A]ttorneys employed by corporations serve in many roles, some of which have little to do with being an attorney. Because of this, 'courts and commentators alike have frequently expressed concern that the privilege may be used by corporations to create a large "zone of secrecy" for communications whose probative value could be important to a fair resolution of disputes.' Rush v. Sunrise Sr. Living, Inc., 2008 Va. Cir. LEXIS 12, 2008 WL 1926766 (Va. Cir. Ct. Feb. 12, 2008) (citations omitted). To prevent this, the privilege should not be applied to protect any and all documents routinely routed through corporate counsel for little, if any, legal purpose. In such situations, '"the privilege should be strictly construed to apply only where necessary to protect its underlying policy aims.'" Rush, 2008 Va. Cir. LEXIS 12, 2008 WL 1926766 (quoting Edwards, 370 S.E.2d at 301). Courts should '"cautiously and narrowly" apply the privilege in cases involving corporate staff counsel "lest the mere participation of an attorney be used to seal off disclosure."' ABB Kent-Taylor, Inc., 172 F.R.D. at 55 (internal citations omitted).")

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

Chapter: 13.2

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("'. . . not every document generated by an attorney is protected by work product immunity.' Burton, 175 F.R.D. at 327.")

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

Chapter: 13.2

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("[T]he attorney-client privilege does not attach to a document merely because a client delivers it to an attorney or vice versa. See Va. Elec. & Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319, 526 S.E.2d 750, 755 (Va. 2000)")

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

Chapter: 13.2

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *12-13 (E.D. Va. May 12, 2011)
("Document 7 is written by an employee of AIG whom defendant AIGCEF also claims is in house counsel. On the face of the document, the author does not appear to be acting in his capacity as counsel. His title in the signature line refers to his AIG employee title, rather than legal counsel alone, indicating that this employee has a dual role at the company one business, one legal. Indeed, the subject matter of the communication is limited to a summary of a business meeting and asking a fellow AIG employee about future action to be taken. Although the communication contains a confidentiality notice at the bottom of the email alerting readers that the communication is forwarded by an attorney, the apparent purpose of the communication is neither the solicitation nor the offer of legal advice from a person acting in his capacity as legal counsel. Therefore, Document 7 is not protected by attorney client privilege.")

Case Date Jurisidction State Cite Checked
2011-05-12 Federal VA B 4/13

Chapter: 13.2

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *9-10 (E.D. Va. May 12, 2011)
("Document 1 involves an email chain of communications between various AIG employees and general counsel. The subject of the communications concerns a business meeting. The document makes no reference to any particular legal issue. While general counsel is a recipient of the email chain, the communications do not explicitly ask for legal advice, opinions, or oversight. Furthermore, the attorney's response is limited to clarifying a business issue and scheduling a meeting. Consequently, though the communication is between a client and attorney, Document 1 is not subject to the attorney client privilege because the purpose of the document is not to provide an opinion on law, legal services, or to provide assistance in some legal context.")

Case Date Jurisidction State Cite Checked
2011-05-12 Federal VA B 4/13

Chapter: 13.2

Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *15-16 (W.D. Va. Apr. 16, 2009)
("For example, '[t]he attorney-client privilege does not attach to a document merely because a client delivers it to his attorney.'")

Case Date Jurisidction State Cite Checked
2009-04-16 Federal SC

Chapter: 13.2

Case Name: Washington-Dulles Transp., Ltd. v. Metro. Washington Airports Auth., 87 Fed. Appx. 843, 848 (4th Cir. 2004)
("ordinary facts pertaining to business matters cannot be shielded merely by the presence of an attorney"), cert. denied, 125 S. Ct. 50 (2004)

Case Date Jurisidction State Cite Checked
2004-01-01 Federal BS 10/24/04

Chapter: 13.2

Case Name: Fordham v. Onesoft Corp., Civ. A. No. 00-1078-A, 2000 U.S. Dist. LEXIS 23019, at *8 (E.D. Va. Nov. 6, 2000)
("The mere relationship of attorney-client does not warrant a presumption of confidentiality. See id. at 1356. [In re Grand Jury Proceedings, 727 F.2d 1352 (4th Cir. 1984)]")

Case Date Jurisidction State Cite Checked
2000-11-06 Federal VA

Chapter: 13.2

Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 325 (2000)
("The attorney-client privilege does not attach to a document merely because a client delivers it to his attorney. However, the privilege does attach to a document prepared with the purpose of being sent to counsel for legal advice. Robertson v. Commonwealth, 181 Va. 520, 539-40, 25 S.E.2d 352, 360 (1943).")

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

Chapter: 13.3

Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("[T]echnical information provided to facilitate receiving legal advice during the patent application process is protected.")

Case Date Jurisidction State Cite Checked
2015-12-14 Federal PA

Chapter: 13.3

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 868 (Tex. Ct. App. 2013)
("This privilege attaches to the complete communication between attorney and client. . . . The subject matter of the information communicated is irrelevant when determining whether the privilege applies.")

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

Chapter: 13.401

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: 13.401

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)
("[H]ere Gasco, a business entity, can only communicate with its attorney about 'its business.' To answer that it discussed its business with its lawyer is no disclosure at all.")

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

Chapter: 13.401

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("'. . . not every document generated by an attorney is protected by work product immunity.' Burton, 175 F.R.D. at 327.")

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

Chapter: 13.402

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "As with the last document, it does not include or reference an attorney or legal advice."; "Moreover, the mere inclusion of Mr. Moodliar [Lawyer] earlier in the email chain is irrelevant, as merely copying an attorney on an email is insufficient to establish the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 13.402

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)
("[W]hen an attorney is merely communicating information, the communications between the attorney and the client are not privileged.")

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

Chapter: 13.402

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)
("Not all communications between an attorney and client are privileged.")

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

Chapter: 13.402

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
("While Mr. Sawers reports a recent incident and asks for follow-up, he does not seek legal guidance. Not every communication involving a lawyer will meet the definition of a privileged communication. . . . Moreover, a communication does not become privileged simply by including a lawyer in an e-mail chain and noting the communication as 'a request for legal direction.'. . . Indeed, it appears that Mr. Sawers put the header -- indicating that the e-mail was a request for legal advice -- in his March e-mail primarily because the header had appeared on the earlier e-mails discussing similar subject matter.").

Case Date Jurisidction State Cite Checked
2015-09-03 Federal WV

Chapter: 13.402

Case Name: Burns v. Georgetown University Medical Center, Civ. A. No. 13-898 (CKK), 2015 U.S. Dist. LEXIS 68864 (D.D.C. May 28, 2015)
(inexplicably holding the attorney-client privilege protected statements to a third party that reflected privileged communications; "[T]he Court first notes that the email exchange is not privileged simply because the email was sent from Plaintiff's attorney to Plaintiff. Just because Plaintiff's attorney forwarded the email to her does not make the communication, which originated from a third-party, privileged.")

Case Date Jurisidction State Cite Checked
2015-05-28 Federal DC

Chapter: 13.402

Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("Furthermore, the attorney-client privilege does not attach to a document merely because a client delivers it to an attorney or vice versa.").

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

Chapter: 13.402

Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Unwittingly, Mechel may have revealed the reasons for the size of its log and the glaring omissions of basic information from nearly 600 entries. Entry number 227 contained an editorial note that stated: '[T]he signature was cut-off from the email and so the author is unknown. To be safe, I assumed this was from an attorney.". . . Mechel obviously did not intend to produce this telling comment, which confirms what one can infer about how Mechel approached its log. Mechel inverted the law of privilege. Rather than believing that Mechel needed to justify its privilege assertions, Mechel assumed that any document an attorney might have touched would be privileged.")

Case Date Jurisidction State Cite Checked
2014-12-12 State DE

Chapter: 13.402

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: 13.402

Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *8-9 (W.D. Wash. Sept. 19, 2014)
("Mr. Fearn's status as a lawyer cannot in itself operate to cloak all communications with him or made in his presence in the shroud of secrecy. Were the Court to endorse this outcome, it would incentivize agencies to ensure that all decisions occur in the presence of counsel or run through the hands of an attorney merely to shield against discovery. The Court cannot sanction such an abuse of the discovery process and of the narrowly construed attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-09-19 Federal WA

Chapter: 13.402

Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *12 (D. Conn. Sept. 2, 2014)
("The Court finds that these emails are not protected by the attorney-client privilege. Although Attorney Duhl received the February 1 email, there is no implicit request for legal advice apparent from its contents, nor does it appear to have been sent for the purpose of providing factual information for the purposes of future legal advice. Moreover, the email appears solely directed to Ms. Calderon. Just because Attorney Dulh received the February 1 email does not make it privileged. Indeed, what defendant neglects to consider is that the attorney-client privilege does not necessarily attach to all communications between a client and his or her attorney.")

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

Chapter: 13.402

Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
("The mere inclusion of an attorney on a communication does not make it privileged.")

Case Date Jurisidction State Cite Checked
2014-04-01 Federal NJ

Chapter: 13.402

Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *11-12 (D. Conn. Feb. 20, 2014)
("[T]he requests that seek all communications between Attorney Beebe and plaintiff regarding her claims and/or damages in this matter are not automatically cloaked in the protection of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-02-20 Federal CT B 7/14

Chapter: 13.402

Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *15-16, *16 (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; "A document also is not privileged merely because it was sent to or received by an attorney and the client. The document must contain confidential communications regarding legal advice. . . . Documents made at the request of in-house counsel that contain merely business communications are not privileged."; "Additionally, the fact that a document was reviewed by legal counsel does not convert it into a privileged document.")

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

Chapter: 13.402

Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 165210, at *7, *7 8 (S.D.N.Y. Nov. 19, 2013)
(reconsidering an October 24, 2013, opinion, and affirming the court's early conclusions"The October 25 Order does not create a per se rule that any communication where an individual author or recipient is not identified must be produced. However, BOC bears the burden of establishing all of the elements of attorney-client privilege, including that the communication was made with a licensed attorney."; "BOC must also establish that the privilege was not waived -- for example, by disclosure to a third party recipient on the group mailing list. While disclosure to a third party is not an automatic waiver of privilege, BOC must provide enough information on its log to allow plaintiffs and the Court to make a determination as to whether the document is properly withheld. The mere assertion that communications came from a group email address used by a department that included licensed lawyers is not sufficient." (footnotes omitted))

Case Date Jurisidction State Cite Checked
2013-11-19 Federal NY B 5/14

Chapter: 13.402

Case Name: Skepnek v. Roper & Twardowsky, LLC, Case No. 11-4102-KHV, 2013 U.S. Dist. LEXIS 163475, at *9 (D. Kan. Nov. 18, 2013)
("Not every communication between an attorney and client is privileged; only confidential communications made for the purpose of seeking or giving legal advice are protected.")

Case Date Jurisidction State Cite Checked
2013-11-18 Federal KS B 5/14

Chapter: 13.402

Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *11-12, *12 (N.D. Ohio Aug. 8, 2013)
(analyzing a situation in which a bankruptcy trustee sought documents from the debtor's accountant; holding that the privilege protected communications from the accountant to a lawyer, but did not protect communications that were merely copied to the lawyer or were from the accountant to the client; "The Court finds the documents where Scott Snow [accountant] provided information to the attorneys to be subject to attorney-client privilege. In these instances, Scott Snow was acting directly as agent to Debtor and Karen Myers and communicating to their attorneys when Debtor and Karen Myers could have communicated to their attorneys themselves."; "The Court finds the documents where Scott Snow was merely copied by either Debtor, Karen Myers, or their attorneys, and where the subject was discussing litigation plans to be not subject to attorney-client privilege. In these instances, the Court finds Scott Snow was not acting as agent to Debtor and Karen Myers and that the attorney-client privilege was waived because the communications were revealed to a third party. Similarly, communications between only Debtor and Scott Snow or Karen Myers and Scott Snow are not subject to attorney-client privilege because the attorneys were not included in the communications and, therefore, while Scott Snow may have been acting as their agent in those instances, without an attorney included in the communications, the privilege does not apply. Finally, in instances where Scott Snow, Debtor, or Karen Myers, communicated with third parties, those documents are not subject to attorney-client privilege.")

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

Chapter: 13.402

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *15 (D. Nev. June 18, 2013)
("Not all communications between an attorney and client are privileged.")

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

Chapter: 13.402

Case Name: Earthworks v. U.S. Dept. of the Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *2-3 (D.D.C. Apr. 2, 2013)
("Review of privilege logs often discloses that the person doing the log may not understand the intricacies of the privileges being claimed. Perhaps the greatest deficiency is the failure to appreciate that the attorney-client privilege does not operate to insulate from disclosure every possible communication between an attorney and client. It should be obvious that communications from the attorney to client are not ipso facto protected. To the contrary, the privilege operates to shield communications from an attorney to a client 'only if that communication is based on confidential information provided by the client.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-04-02 Federal DC B 3/14

Chapter: 13.402

Case Name: Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-Ftm-99SPC, 2013 U.S. Dist. LEXIS 1458, at *60 (M.D. Fla. Feb. 4, 2013)
("[B]ecause Spiegel is an attorney is not sufficient grounds to impose the attorney client privilege on her communications.")

Case Date Jurisidction State Cite Checked
2013-02-04 Federal FL B 2/14

Chapter: 13.402

Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159 KS MTP, 2012 U.S. Dist. LEXIS 165558, at *7 n.3 (S.D. Miss. Nov. 20, 2012)
(holding that a root cause analysis did not deserve work product protection, because the party did not support the work product claim; "'Without more information, the fact that Balch and Bingham LLP was the recipient of the document does not render it protected by the attorney-client privilege or the work-product doctrine.'")

Case Date Jurisidction State Cite Checked
2012-11-20 Federal MS B 7/13

Chapter: 13.402

Case Name: Quality Time, Inc. v. West Bend Mut. Ins. Co., Case No. 12 1008 JTM GLR, 2012 U.S. Dist. LEXIS 161703, at *22 (D. Kan. Nov. 13, 2012)
(analyzing work product in a first party insurance case; "The mere fact that emails were from or directed to counsel does not make them subject to the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2012-11-13 Federal KS B 7/13

Chapter: 13.402

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("[T]he attorney-client privilege does not attach to a document merely because a client delivers it to an attorney or vice versa. See Va. Elec. & Power Co. v. Westmoreland-LG&E Partners, 259 Va. 319, 526 S.E.2d 750, 755 (Va. 2000)")

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

Chapter: 13.402

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("[A]ttorneys employed by corporations serve in many roles, some of which have little to do with being an attorney. Because of this, 'courts and commentators alike have frequently expressed concern that the privilege may be used by corporations to create a large "zone of secrecy" for communications whose probative value could be important to a fair resolution of disputes.' Rush v. Sunrise Sr. Living, Inc., 2008 Va. Cir. LEXIS 12, 2008 WL 1926766 (Va. Cir. Ct. Feb. 12, 2008) (citations omitted). To prevent this, the privilege should not be applied to protect any and all documents routinely routed through corporate counsel for little, if any, legal purpose. In such situations, '"the privilege should be strictly construed to apply only where necessary to protect its underlying policy aims.'" Rush, 2008 Va. Cir. LEXIS 12, 2008 WL 1926766 (quoting Edwards, 370 S.E.2d at 301). Courts should '"cautiously and narrowly" apply the privilege in cases involving corporate staff counsel "lest the mere participation of an attorney be used to seal off disclosure."' ABB Kent-Taylor, Inc., 172 F.R.D. at 55 (internal citations omitted).")

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

Chapter: 13.402

Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *4 (W.D. Va. Oct. 6, 2011)
("'[t]he attorney-client privilege does not attach to a document merely because a client delivers it to his attorney.' Va. Elec. & Power Co. v. Westmoreland-LG & E Partners, 259 Va. 319, 526 S.E.2d 750, 755 (Va. 2000).")

Case Date Jurisidction State Cite Checked
2011-10-06 Federal VA

Chapter: 13.402

Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *15-16 (W.D. Va. Apr. 16, 2009)
("For example, '[t]he attorney-client privilege does not attach to a document merely because a client delivers it to his attorney.'")

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

Chapter: 13.402

Case Name: Washington-Dulles Transp., Ltd. v. Metro. Washington Airports Auth., 87 Fed. Appx. 843, 848 (4th Cir.)
("ordinary facts pertaining to business matters cannot be shielded merely by the presence of an attorney"), cert. denied, 125 S. Ct. 50 (2004)

Case Date Jurisidction State Cite Checked
2004-01-01 Federal BS 10/24/04

Chapter: 13.402

Case Name: Fordham v. Onesoft Corp., Civ. A. No. 00-1078-A, 2000 U.S. Dist. LEXIS 23019, at *8 (E.D. Va. Nov. 6, 2000)
("The mere relationship of attorney-client does not warrant a presumption of confidentiality. See id. at 1356. [In re Grand Jury Proceedings, 727 F.2d 1352 (4th Cir. 1984)]")

Case Date Jurisidction State Cite Checked
2000-11-06 Federal VA

Chapter: 13.402

Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 325 (2000)
("The attorney-client privilege does not attach to a document merely because a client delivers it to his attorney. However, the privilege does attach to a document prepared with the purpose of being sent to counsel for legal advice. Robertson v. Commonwealth, 181 Va. 520, 539-40, 25 S.E.2d 352, 360 (1943).")

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

Chapter: 13.403

Case Name: Fox Paine & Co., LLC v. Houston Cas. Co., No. 52607/2014, 2016 NY Slip Op 50635(U), at 16 (N.Y. Sup. Ct. Apr. 21, 2016)
("To qualify as a privileged attorney-client communication, the communication must concern legal rights and obligations and evidence counsel's professional skills such as counsel's judgment and recommended legal strategies.")

Case Date Jurisidction State Cite Checked
2016-04-21 Federal NY B 8/16

Chapter: 13.403

Case Name: Alomari v. Ohio Dept. of Public Safety, 15a0630n.06, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
("But the privilege protects communications 'necessary to obtain legal advice.'. . . No caselaw suggests that communications are privileged only when they are utilized to dispense legal advice.").

Case Date Jurisidction State Cite Checked
2015-09-09 Federal OH

Chapter: 13.403

Case Name: Alomari v. Ohio Dept. of Public Safety, 15a0630n.06, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
("When a communication involves both legal and non-legal matters, we 'consider whether the predominant purpose of the communication is to render or solicit legal advice.'. . . This predominant purpose 'should be assessed dynamically and in light of the advice being sought or rendered, as well as the relationship between advice that can be rendered only by consulting the legal authorities and advice that can be given by a non-lawyer.").

Case Date Jurisidction State Cite Checked
2015-09-09 Federal OH

Chapter: 13.403

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("Both D.C. and Maryland also recognize that the privilege does not apply to communications whose primary purpose is to solicit or provide business, rather than legal, advice.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal DC

Chapter: 13.403

Case Name: United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 100238 (M.D. La. July 31, 2015)
("[M]any of the email communications do not involve any attorneys, do not otherwise suggest the presence of any attorney-client relationship, and were not made for the purpose of obtaining legal advice. These emails likewise do not contain the mental impressions or trial strategies of counsel. Rather, they consist of communications between DHH employees made for the purpose of carrying out the Department's day-to-day operations. As such, there is no reasonable basis for DHH to withhold these emails pursuant to the attorney client privilege or the work product doctrine.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal LA

Chapter: 13.403

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("[T]he communication referenced in Privilege Log Number 13 is an email from defendant to Sunrise regarding various loans taken by plaintiff. The email has nothing to do with the provisioning or seeking of legal advice; instead, it is merely a request for clerical information from the client. The primary purpose of the communication is the conduct of defendant's debt-collection business, not providing legal advice. Applying a similar predominant-purpose rule, several federal courts have required that the claimant 'demonstrate that the communication would not have been made but for the client's need for legal advice or services.'")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal DC

Chapter: 13.403

Case Name: Cardinal Aluminum Company v. Continental Casualty Company, Case No. 3:14-CV-857-TBR-LLK, 2015 U.S. Dist. LEXIS 95361 (W.D. Ky. July 22, 2015)
("Plaintiff's chief financial officer submitted an affidavit related to this motion. . . . In that affidavit, the CFO testified that Plaintiff 'asked [its [insurance] broker] to submit a claim to [Defendant] seeking coverage for the cost to repair the machine.' . . . Moreover, the broker negotiated on Plaintiff's behalf and advised Plaintiff concerning the claims process. . . . These specific actions do not amount to legal advice. Had an officer or employee of Plaintiff done the same, the internal communications of Plaintiff would not become privileged from discovery. The privilege only applies to communications seeking legal advice, not business advice."; "Plaintiff did not argue that its broker acted to effectuate legal representation for Plaintiff. Ky. R. Evid. 503(a)(2)(B)(iii). Based on the record before it, the Court cannot determine that the broker qualifies as a representative of Plaintiff for the purposes of Rule 503 for each or any document sought by the subpoena.")

Case Date Jurisidction State Cite Checked
2015-07-22 Federal KY
Comment:

key case


Chapter: 13.403

Case Name: Roberts Technology Group, Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015)
("[T]he presently withheld communications with counsel not referencing legal advice but updating business initiatives, such as past billing history, are not privileged. Based on this record, we cannot preclude production of internal communications between employees relating to collection activities and discussions with Plaintiff's business persons simply because counsel claims they relate to some unidentified legal advice not evident on the documents.")

Case Date Jurisidction State Cite Checked
2015-07-20 Federal PA

Chapter: 13.403

Case Name: Agility Public Warehousing Company K.S.C. v. DOD, Civ. A. No. 14-1064 (JDB), 2015 U.S. Dist. LEXIS 81071, at *23-24 (D.D.C. June 23, 2015)
("There is no analysis of the GAO opinion, no commentary on the outcome (aside from Poling's 'Good news!' opening sentence, which was never redacted and therefore never the subject of a privilege claim . . .), and no request for advice or legal opinion from the email's recipients. It is, instead, merely a summary of the key points from a separate agency's adjudication. It is therefore doubtful whether this email fits the attorney-client-privilege mold at all. If it is not privileged, Agility of course cannot use its revelation to 'justify the forced disclosure of additional privileged information,' because '[t]he disclosure of non-privileged information can never do that.'")

Case Date Jurisidction State Cite Checked
2015-06-23 Federal DC

Chapter: 13.403

Case Name: Burns v. Georgetown University Medical Center, Civ. A. No. 13-898 (CKK), 2015 U.S. Dist. LEXIS 68864 (D.D.C. May 28, 2015)
(inexplicably holding the attorney-client privilege protected statements to a third party that reflected privileged communications; "Defendants seek to compel Plaintiff's testimony regarding an email that she sent to another medical professional, in which she wrote, '[t]here may be some things to clean up with MedStar, as they own Georgetown.' Relying on attorney-client privilege, Plaintiff's counsel instructed Plaintiff not to answer Defendants' questions about the reasons she made that written statement. Plaintiff now argues that the answers to Defendants' questions regarding this statement were derived from advice from her attorney and are, therefore, privileged."; "[T]he Court agrees with Plaintiff that the response to Defendants' question was subject to attorney-client privilege and that Plaintiff was entitled to refuse to answer the question on that basis. During a break in the deposition -- off the record -- Plaintiff's counsel consulted with his client about what her answer to Defendants' question would be, if it were not privileged. He determined that the content of that answer is privileged because it pertained to advice received from counsel, and he instructed Plaintiff not to answer the question."; "It is a reasonable inference from the colloquy at the deposition, together with counsel's express representation that Plaintiff's response to the question would entail revealing communications between Plaintiff and her attorney, that the underlying communications are privileged. Therefore, the Court concludes that Plaintiff was within her rights to refuse to answer the Defendants' questions about her statement that '[t]here may be some things to clean up with MedStar.' Accordingly, Defendants' request to compel Plaintiff's deposition testimony on this matter is denied.")

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

key case


Chapter: 13.403

Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924 (S.D. Fla. April 8, 2015)
("Under Florida Statute § 90.502(2), a client possesses the privilege to refuse disclosure of confidential communications made during the rendition of legal services to the client. That statute applies to both communications from the client to the attorney and from the attorney to the client. A communication is confidential if it is not intended to be disclosed to third persons.")

Case Date Jurisidction State Cite Checked
2015-04-08 Federal FL

Chapter: 13.403

Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)
(in an opinion by Judge Gorenstein, finding that a compliance-initiated investigation into a defendant's possible tie with terrorists did not deserve privilege or work product protection; "[W]e are unaware of any case law suggesting that a person's collection of information is protected merely because the person harbors a plan to provide the information later to an attorney -- particularly where there is no proof that the attorney sought to have the individual collect the information at issue. Indeed, case law holds just the opposite. . . . Nor is it of any importance that this information may have ultimately been used by Loughlin for the purpose of advising BOC."; "Neither Geng nor Loughlin ever assert that specific documents sought by plaintiffs here formed part of a communication between them at the time the documents were created. Rather, BOC's argument is that because it made a 'request for legal advice' to counsel and because outside counsel ultimately received this request and 'rendered advice in response,' the 'communications' at issue are necessarily protected. . . . But this argument elides the critical issue: why the specific documents sought by plaintiffs are 'communications' that were made to an attorney given that plaintiffs are not seeking any 'communications' with counsel."; "[H]owever, provides no evidence -- let alone evidence sufficient to meet its burden of proof -- that any of the documents at issue in this motion were produced at the 'direction' of an attorney in order to allow the attorney to render legal advice. To the extent that BOC is arguing that investigations conducted without the direction of an attorney necessarily form part of an attorney-client communication as long as a corporate employee who received an order to conduct the investigation harbored an 'expectation,'. . . That he would share the information with an attorney at some future date, we reject this argument as unsupported by logic or case law.")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal NY

Chapter: 13.403

Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("Virginia law recognizes that '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure[.]'")

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

Chapter: 13.403

Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("Because the privilege is an exception to the general rule of disclosure, 'an obstacle to investigation of the truth,' it must be strictly construed.")

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

Chapter: 13.403

Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("For the privilege to apply, the communication must be made for the purpose of 'procuring or providing legal advice.'")

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

Chapter: 13.403

Case Name: McNamee v. Clemens, 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 162063 (E.D.N.Y. Nov. 19, 2014)
("Document Clemhen000357 is described by Defendant as a confidential e-mail among MLB baseball player Andy Pettitte's lawyers and Hendricks. Defendant claims both attorney-client privilege and work-product privilege. However, the document itself is a list of contacts at the firm of Davis Polk Documents, the law firm retained by Pettitte.")

Case Date Jurisidction State Cite Checked
2014-11-19 Federal NY

Chapter: 13.403

Case Name: Pierce v. Wyndham Vacation Resorts, Inc., No. 3:13-CV-641-PLR-CCS, 2014 U.S. Dist. LEXIS 133370 (E.D. Tenn. Sept. 23, 2014)
(holding that attorney-client privilege did not cover a law firm's recording of potential plaintiffs discussing whether they were interested in joining a potential class action; "The Court finds that the Plaintiffs have failed to demonstrate the essential elements of the attorney-client privilege because they have not demonstrated that the recordings at issue contain communications by clients made for the purposes of seeking legal advice."; "The only communications between counsel and the attendees are brief introductions -- i.e., 'Hellow, I'm Martin Holmes' -- and statements about contact information and anticipated phone calls. These communications certainly do not seek or provide legal advice. The Court finds that there were few communications from the attendees/potential plaintiffs to counsel, and those communications that were made appear to be either inaudible or they did not seek legal advice. Thus, the Court finds that the Plaintiffs have failed to demonstrate essential elements of attorney-client privilege."; "The Court finds that counsel's inclusion on the sign-in sheet of a statement that by attending the meeting the persons were acknowledging that they were present to receive legal advice is not controlling or instructive in this case. The essential elements of the attorney-client privilege do not direct the court to examine any acknowledgements that a client may have made; instead, they direct the court to consider the communication and the circumstances of its making. Though Plaintiffs discuss the sign-in sheet extensively, they have failed to cite the Court to any case in which a court in the Sixth Circuit found such an acknowledgment to be a substitute for actually fulfilling the eight essential elements . . . And the Court finds that it would be inappropriate to so rule in this case.")

Case Date Jurisidction State Cite Checked
2014-09-23 Federal TN

Chapter: 13.403

Case Name: Fay Avenue Properties, LLC v. Travelers Prop. Cas. Co. of Am., Case No. 3:11-cv-02389-GPC-WVG, 2014 U.S. Dist. LEXIS 82688, at *17 (S.D. Cal. June 17, 2014)
(explaining that under California law the key to privilege protection was the "dominant purpose" of the relationship, not the dominant purpose of each communication; "Cases have similarly held that in determining whether communications are privileged, the focus of the inquiry is the dominant purpose of the relationship between the parties to the communication and not to determine whether each communication meets the privilege standard.")

Case Date Jurisidction State Cite Checked
2014-06-17 Federal CA

Chapter: 13.403

Case Name: In re CV Therapeutics, Inc. Sec. Litig., No. C-03-3709 SI (EMC), 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2014)
(adopting a "but for" privilege standard; "The privilege is limited to 'only those disclosures -- necessary to obtain informed legal advice -- which might not have been made absent the privilege.'")

Case Date Jurisidction State Cite Checked
2014-06-16 Federal CA

Chapter: 13.403

Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *9 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "The protection of the privilege extends to confidential communications made by a client to his lawyer in order to obtain legal advice.")

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

Chapter: 13.403

Case Name: In re: Fundamental Long Term Care, Inc. v. GECC, Case No. 8:11-bk-22258-MGW, Ch. 7, Adv. No. 8:13-ap-00893-MGW, 2014 Bankr. LEXIS 1945 (M.D. Fla. Apr. 30, 2014)
("There is one common theme underlying FAS's privilege objections: communications, according to FAS, are privileged so long they were made between FAS's in-house attorneys or conveyed information Anderson learned while serving as in-house counsel for FAS. In actuality, not all communications with or between in-house counsel are protected under the attorney-client privilege or work product doctrine. Only those communications made for the purpose of securing legal advice or made in anticipation of litigation are protected. Here, FAS has failed to demonstrate that any of the communications it objects to disclosing were made for either purpose. Accordingly, the Court will overrule FAS's privilege objections."; "[C]ontrary to FAS's argument, not all internal communications with in-house counsel are privileged. . . . a communication must have been made for the purpose of securing legal advice for it to be privileged.")

Case Date Jurisidction State Cite Checked
2014-04-30 Federal FL

Chapter: 13.403

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)
("Under the attorney-client privilege, confidential communications made between a client and an attorney in an effort to obtain legal services are protected from disclosure.")

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

Chapter: 13.403

Case Name: Arfa v. Zionist Org. of Am., Case No. CV 13-2942 ABC (SS), 2014 U.S. Dist. LEXIS 26970, at *26-27 (C.D. Cal. Mar. 3, 2014)
("[E]mails or portions of emails involving Tuchman [defendant's in-house lawyer] that do not involve the solicitation or provision of legal advice, or on which Tuchman is merely copied along with other Board members, are not privileged and must be produced.")

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

Chapter: 13.403

Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162331, at *4-5, *25 (D. Conn. Nov. 14, 2013)
("The IAC [trade association] is a voluntary trade association that represents insurers conducting business in Connecticut."; "The attorney-client privilege protects confidential communications between client and counsel made for the purpose of obtaining or providing legal assistance.")

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

Chapter: 13.403

Case Name: Jemsek v. Jemsek Clinic, P.A. (In re Jemsek Clinic, P.A.), Ch. 11 Case No. 06-31760, Adv. No. 07-03008, 2013 Bankr. LEXIS 3120, at *44-45 (W.D.N.C. Aug. 2, 2013)
("The attorney-client privilege protects communications between a lawyer and a client on issues relating to legal representation.")

Case Date Jurisidction State Cite Checked
2013-08-02 Federal NC B 4/14

Chapter: 13.403

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *13 (D. Nev. June 18, 2013)
("The attorney-client privilege protects confidential disclosures made by a client to an attorney to obtain legal advice and an attorney's advice in response to such disclosures.")

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

Chapter: 13.403

Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *6 (N.D. Cal. June 10, 2013)
("Plaintiff need not have actually hired Williams [a lawyer who is also a personal friend of plaintiff]; it is enough that she sought legal advice from Williams in her capacity as an attorney. According to Plaintiff, the only reason Williams did not represent her in this litigation is the conflict rule against serving as both an attorney and a witness.")

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

Chapter: 13.403

Case Name: Spread Enters., Inc. v. First Data Merch. Servs. Corp., No. CV 11 4743 (ADS) (ETB), 2013 U.S. Dist. LEXIS 22307, at *5 (E.D.N.Y. Feb. 19, 2013)
("[I]n order to qualify as privileged, the communication must be 'primarily or predominantly of a legal character.'" (citation omitted))

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

Chapter: 13.403

Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *17 (E.D. Va. Feb. 14, 2013)
(finding that the following emails did not deserve privilege or work product protection; "'E mails to the Bank's in-house attorney, in which a meeting or telephone call is being scheduled.'")

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

Chapter: 13.403

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 592 (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 communication would not have been made 'but for' the provision of legal services, etc.).")

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

Chapter: 13.403

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 629 (D. Nev. 2013)
("[G]iven that the Ninth Circuit has not expressly ruled that the 'because of' test has supplanted the 'primary purpose' test in the attorney-client privilege context, the court will continue to adhere to the 'primary purpose' test as other judges in this district have done."; "Whether or not the court applies the 'primary purpose' test or the 'because of' test, it is clear that the court's main focus is to look at the extent to which the communication solicits or provides legal advice.")

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

Chapter: 13.403

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: 13.403

Case Name: Harrier Techs., Inc. v. CPA Global Ltd., Civ. No. 3:12CV167 (WWE), 2012 U.S. Dist. LEXIS 177119, at *3 (D. Conn. Dec. 14, 2012)
("A party invoking the attorney-client privilege must show (1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal CT B 9/13

Chapter: 13.403

Case Name: United States v. ISS Marine Services, Inc., Misc. A. No. 12-481 (BAH), 905 F. Supp. 2d 121, 2012 U.S. Dist. LEXIS 166088 (D.D.C. Nov. 21, 2012)
("If a communication would have been made even if legal advice were not explicitly being sought, then it is difficult to say that that communication's primary purpose was to seek legal advice."; "In applying these principles, the Government argues that the Audit Report was not created for the purpose of seeking legal advice. The Government posits that 'nothing about the March 2008 Audit Report indicates that it was part of a request for legal advice,' the Report was 'not directed to any attorney or a person employed by an attorney,' it 'does not contain any legends indicating that it is privileged,' and 'Inchcape's CEO waited nearly two months after it was completed to forward the Audit Report to its outside counsel.'. . . In support of this argument, the Government offers the sworn declaration of Larry Cosgriff, who served as the Senior Vice President of Inchcape Government Services during the relevant time period. As discussed above, Cosgriff states that it was his understanding that Hyldager and Tory 'undertook this internal audit to obtain information to enable Messrs. Hyldager and Tory, the Inchcape audit committee and the Inchcape Board of Directors to make a business decision as to what further action, if any, Inchcape would take to address' the allegations raised by the two Inchcape employees."; "At bottom, the respondent's claim to privilege appears to be premised on a gimmick: exclude counsel from conducting the internal investigation but retain them in a watered-down capacity to 'consult' on the investigation in order to cloak the investigation with privilege. Unfortunately for the respondent, this sort of 'consultation lite' does not qualify the Audit Report for the protections of the attorney-client privilege. First and foremost, the fact that Inchcape purposefully eschewed the involvement of outside counsel – or any attorneys whatsoever – in the internal investigation and audit militates strongly against applying the attorney-client privilege. When a company fails to involve lawyers directly in an internal investigation, the company faces a higher burden to demonstrate that the attorney-client privilege applies to the results of that investigation. The Tory Declaration indicates that, at most, A&P generically 'recommended initiating an internal investigation' and drafted a memorandum that 'framed' the issues relating to 'potential criminal and civil liability implicated by the activities as reported.'. . . The Tory Declaration also states that A&P 'prepared a list of documents necessary to more fully assess the issues identified,'. . . though Tory notably does not specify that A&P would be the ones 'more fully assess[ing] the issues identified.' Although Tory states that he pursued the internal investigation 'in consultation with outside counsel,'. . . the record is devoid of any evidence to suggest that A&P provided any consultation to ISS Marine while the investigation was actually being conducted. A&P's framing of the issues related to potential liability and its guidance about the types of documents that would be helpful all took place before the investigation began. As Cosgriff explains: "A&P did not participate in the interview process or the review of documentary evidence.'. . . Even when Inchcape took steps to verify the information in the Audit Report, Tory indicates that Hyldager performed this 'follow up,' rather than an attorney."; "This sort of arms-length coaching by counsel, as opposed to the direct involvement of an attorney, undercuts the purposes of the attorney-client privilege in the context of an internal investigation."; "Thus, the Audit Report memoralizing the contents of the documents and information gathered from this investigation and audit does not justify the protection of the attorney-client privilege. For the results of an internal investigation to enjoy the attorney-client privilege, the company must clearly structure the investigation as one seeking legal advice and must ensure that attorneys themselves conduct or supervise the inquiries and, at the very least, the company must make clear to the communicating employees that the information they provide will be transmitted to attorneys for the purpose of obtaining legal advice.")

Case Date Jurisidction State Cite Checked
2012-11-21 Federal DC
Comment:

key case


Chapter: 13.403

Case Name: United States v. Spencer, 700 F.3d 317, 320 (8th Cir. 2012)
(holding that a potential witness had acted as a tax preparer rather the lawyer, so the privilege did not apply; "The attorney-client privilege protects confidential communications between a client and his attorney made for the purpose of facilitating the rendering of legal services to the client.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal B 7/13

Chapter: 13.403

Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 108 (D.D.C. 2012)
("[T]he attorney-client privilege applies only to communications from a client to an attorney made in confidence for the purpose of securing legal advice.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 13.403

Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 128 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "In evaluating whether the primary purpose of a communication is to seek legal advice, some courts require a showing that the communication would not have been made 'but for' the fact that legal advice was sought. . . . Other courts have taken a broader view, extending the privilege to any 'communications intended to keep the attorney apprised of business matters' if those communications 'embody an implied request for legal advice based thereon.'. . . The Court concludes, however, that the 'but for' formulation of the primary purpose standard is most faithful to this Circuit's guidance that 'the 'attorney-client privilege must be strictly confined within the narrowest possible limits consistent with the logic of its principle.'. . . If a communication would have been made even if legal advice were not explicitly being sought, then it is difficult to say that that communication's primary purpose was to seek legal advice.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 13.403

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("Virginia law recognizes that '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure. . . .' Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (Va. 1988) (internal quotation marks and citations omitted).")

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

Chapter: 13.403

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("For the privilege to apply, the communication must be made for the purpose of 'procuring or providing legal advice.' SNC-Lavalin Am., Inc. v. Alliant Techsystems, Inc., 2011 U.S. Dist. LEXIS 115535, 2011 WL 4716225, at *1 (W.D.Va. Oct. 6, 2011); see also Burton v. R.J. Reynolds Tobacco, Co., Inc., 175 F.R.D. 321, 327 (D. Kan. 1997)")

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

Chapter: 13.403

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("[W]here a communication neither requests nor expresses legal advice, but rather involves the soliciting or giving of business advice, it is not protected by the privilege. See United Shoe Mach. Corp., 89 F. Supp. at 359 [United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950)]. The communication must be with an attorney for the express purpose of securing legal advice. See Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). It is also true, however, that '[t]he mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege.' Coleman v. Am. Broadcasting Cos., Inc., 106 F.R.D. 201, 206 (D.D.C. 1985). 'For the attorney-client privilege to apply, the communication "must be primarily or predominately of a legal character."' ABB Kent-Taylor, Inc., 172 F.R.D. at 55 (citations omitted); see also Henson v. Wyeth Labs., Inc., 118 F.R.D. 584, 587 (W.D.Va. 1987) (communication must be for the primary purpose of soliciting legal, rather than business, advice).")

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

Chapter: 13.403

Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 108 (D.D.C. 2012)
("[T]he attorney-client privilege applies only to communications from a client to an attorney made in confidence for the purpose of securing legal advice.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 13.403

Case Name: Wierciszewski v. Granite City Ill. Hosp. Co., Case No. 11-cv-120-GPM-SCW, 2011 U.S. Dist. LEXIS 128772, at *4 (S.D. Ill. Nov. 7, 2011)
("[I]n this case it is clear from the content of the emails that counsel was not directing the investigation. Contrary to the arguments of Defendant, it appears from the emails presented in the privilege log that these emails constituted communications between Ron Payton and his supervisor, Bud Wood, regarding the investigation of and determination to ultimately terminate Plaintiff's employment. The context and content of the emails suggest that Bud Wood was directing the investigation, not attorney Rhea Garrett as argued by Defendant. While Defendant's general counsel was carbon copied (CC'd) on some of the emails, it appears from the context of the emails that Ron Payton and others were merely making attorney Garrett aware of the situation and were not emailing him for the purpose of seeking legal advice from counsel.")

Case Date Jurisidction State Cite Checked
2011-11-07 Federal IL B 7/16

Chapter: 13.403

Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *4-5 (W.D. Va. Oct. 6, 2011)
("[T]he communication must be for the purpose of procuring or providing legal advice. Id. [Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (Va. 1998)] see also Henson v. Wyeth Laboratories, Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987) ('[I]t is important to note . . . that in order for the privilege to apply, the attorney receiving the communication must be acting as an attorney and not simply as a business advisor.'); Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., No. 3:10CV00825, 2011 U.S. Dist. LEXIS 51028, at *8 (E.D. Va. May 12, 2011) (holding that although general counsel was privy to certain documents, the attorney-client privilege did not apply since 'the purpose of the communications was not the solicitation or provision of legal advice on any specified legal issue'); Rush v. Sunrise Senior Living, Inc., No. 07-11322, 2008 Va. Cir. LEXIS 12, at *12 (Va. Cir. Ct. Feb. 12, 2008) (emphasizing that the privilege 'does not shield from discovery communications generated or received by an attorney acting in some other capacity, or communications in which an attorney is giving business advice rather than legal advice') (internal citation and quotation marks omitted).").

Case Date Jurisidction State Cite Checked
2011-10-06 Federal VA

Chapter: 13.403

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *12-13 (E.D. Va. May 12, 2011)
("Document 7 is written by an employee of AIG whom defendant AIGCEF also claims is in house counsel. On the face of the document, the author does not appear to be acting in his capacity as counsel. His title in the signature line refers to his AIG employee title, rather than legal counsel alone, indicating that this employee has a dual role at the company one business, one legal. Indeed, the subject matter of the communication is limited to a summary of a business meeting and asking a fellow AIG employee about future action to be taken. Although the communication contains a confidentiality notice at the bottom of the email alerting readers that the communication is forwarded by an attorney, the apparent purpose of the communication is neither the solicitation nor the offer of legal advice from a person acting in his capacity as legal counsel. Therefore, Document 7 is not protected by attorney client privilege.")

Case Date Jurisidction State Cite Checked
2011-05-12 Federal VA B 4/13

Chapter: 13.403

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *9-10 (E.D. Va. May 12, 2011)
("Document 1 involves an email chain of communications between various AIG employees and general counsel. The subject of the communications concerns a business meeting. The document makes no reference to any particular legal issue. While general counsel is a recipient of the email chain, the communications do not explicitly ask for legal advice, opinions, or oversight. Furthermore, the attorney's response is limited to clarifying a business issue and scheduling a meeting. Consequently, though the communication is between a client and attorney, Document 1 is not subject to the attorney client privilege because the purpose of the document is not to provide an opinion on law, legal services, or to provide assistance in some legal context.")

Case Date Jurisidction State Cite Checked
2011-05-12 Federal VA B 4/13

Chapter: 13.403

Case Name: Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv00030, 2010 U.S. Dist. LEXIS 95668, at *5 (W.D. Va. Sept. 14, 2010)
("The privilege 'protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.' Fisher, 425 U.S. at 403.")

Case Date Jurisidction State Cite Checked
2010-09-14 Federal VA

Chapter: 13.403

Case Name: Northern Virginia Real Estate, Inc. v. Martins, 80 Va. Cir. 478, 484 (Va. Cir. Ct. 2010) `
("Confidential communications between an attorney and a client concerning matters for which the attorney has been engaged by that client are privileged from disclosure. Seventh District Committee v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (1971).")

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

Chapter: 13.403

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; "As a general rule, confidential communications between an attorney and his or her client made in the course of that relationship and concerning the subject matter of the attorney's representation are privileged from disclosure. Bette L. Banks v. Mario Indus., 274 Va. 438, 453, 650 S.E.2d 687, 695 (2007); Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988).")

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

Chapter: 13.403

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605 n.2 (E.D. Va. 2010)
("[T]he privilege has limits. It does not shield from discovery the facts underlying the communication; it applies only to communications made in confidence; it covers only communications made with a view toward obtaining legal advice; and it may be waived. Hawkins, 148 F.3d at 383 [Hawkins v. Stables, 148 F.3d 379, 382-83 (4th Cir. 1998)]")

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

Chapter: 13.403

Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *14-15 (W.D. Va. Apr. 16, 2009)
("In this diversity case, the court will apply Virginia state law to resolve attorney-client privilege issues. See, e.g., In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006) ('In a diversity case, the court applies federal law to resolve work product claims and state law to resolve attorney-client claims.') (citations omitted). In Virginia, '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment "are privileged from disclosure, even for the purpose of administering justice."' Commonwealth of Virginia, et rel., etc. v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988) (quotations omitted).")

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

Chapter: 13.403

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 444-45 (W.D. Va. 2009)
("For the privilege to apply, certain elements are required. An attorney-client relationship must exist, and the communication must be for the purpose of seeking legal advice. See United States v. Tedder, 801 F.2d 1437, 1442 (4th Cir. 1986).")

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

Chapter: 13.403

Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *13-15 (W.D. Va. Apr. 15, 2008)
("The only information provided by the United States in support of its contention that the attorney client privilege applies to the physician and nursing peer review documents is that 'these reviews and reports were prepared at the request of Kathleen Oddo, Attorney, Office of VA Regional Counsel, for use in the performance of her duties as an attorney for the DVA. Should the Court require more information regarding these documents, the United States requests the opportunity to have Ms. Oddo provide that information directly to the Court.' Letter dated April 10, 2008 accompanying material for in camera review. There is no indication from this brief assertion or from the materials themselves that they were communicated to an attorney for the purposes of seeking legal advice. Hawkins, 148 F.3d at 383 (holding that the privilege only applies when the communication between counsel and client is for the purpose of securing either an opinion on law, legal services, or assistance in some legal proceeding). The United States' bald assertion that certain documents were 'prepared at the request' of counsel 'for use in the performance of her duties as an attorney for the DVA' does not meet its burden of establishing that these documents are privileged from discovery under the attorney client privilege. The mere fact that counsel requested certain documents to be prepared does not, in and of itself, meet the government's burden of establishing that the attorney client privilege applies. For the privilege to apply, there must be a communication between the client and its counsel for the purpose of seeking legal advice. While the United States asserts that Ms. Oddo was counsel for the VA and that she requested these documents for use in the performance of her duties, there has been no assertion, much less any showing sufficient to meet its burden, that these documents were communicated to counsel for the purposes of seeking legal advice. As such, the United States has not demonstrated that they are protected from discovery under the attorney client privilege."; finding that the documents deserved work product protection)

Case Date Jurisidction State Cite Checked
2008-04-15 Federal B 5/09

Chapter: 13.403

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 826 (E.D. Va. 2005)
("While recognizing the fundamental importance of the privilege, courts have nonetheless been careful not to stretch its application to circumstances beyond its rationale. This is so because the attorney-client privilege, like all privileges, 'impedes [the] full and free discovery of the truth,' and is 'in derogation of the public's "right to every man's evidence."' In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984) (quoting Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981). Accordingly, courts carefully construe the privilege to apply only to those situations in which the party invoking the privilege consulted an attorney for the purpose of securing a legal opinion or services, and in connection with that consultation, communicated information intended to be kept confidential. See In re Grand Jury Proceedings, 727 F.2d at 1355; United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA

Chapter: 13.403

Case Name: Under Seal v. United States (In re Grand Jury Subpoena Under Seal), 415 F.3d 333, 338 (4th Cir. 2005)
("[T]he privilege applies only to 'confidential disclosures by a client to an attorney made in order to obtain legal assistance.' Fisher v. United States, 425 U.S. 391, 403, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976)."), cert. denied, 126 S. Ct. 1114 (2006)

Case Date Jurisidction State Cite Checked
2005-01-01 Federal

Chapter: 13.403

Case Name: Fordham v. Onesoft Corp., Civ. A. No. 00-1078-A, 2000 U.S. Dist. LEXIS 23019, at *7 (E.D. Va. Nov. 6, 2000)
("The attorney-client privilege applies only when a client claiming the privilege has consulted an attorney for the purpose of securing a legal opinion or services. See In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984).")

Case Date Jurisidction State Cite Checked
2000-11-06 Federal VA

Chapter: 13.403

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1305 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "[T]he privilege is narrowly construed to apply only to those situations in which the party invoking the privilege consulted an attorney for the purpose of securing a legal opinion or services and in connection with that consultation communicated information intended to be kept confidential."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisidction State Cite Checked
1992-01-01 Federal VA N 3/10

Chapter: 13.403

Case Name: First Chicago International v. United Exchange Co., Ltd., No. 87 Civ. 1587 (WCC), 1989 U.S. Dist. 3077 (S.D.N.Y. Mar. 30, 1989)
(adopting a "but for" privilege standard; "A corollary to limiting the privilege to circumstances where protection furthers the policy behind it is that a communication between a corporation's employee and counsel should only be shielded if the communication would not have been made but for the client's need for legal advice or services. . . . ('to invoke the privilege, the claimant must demonstrate that the communication would not have been made but for the pursuit of legal services'). This requirement is analogous to the rule that 'pre-existing' documents are not privileged.")

Case Date Jurisidction State Cite Checked
1989-03-30 Federal NY

Chapter: 13.403

Case Name:


Case Date Jurisidction State Cite Checked

Chapter: 13.404

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "The privilege log refers to this document as an email forwarding legal advice. However, the actual document contains little to no substance. Nor has Defendant established that it is to or from an attorney. Nor are any of the recipients employees of the sole Defendant in this case. Nor has Defendant established that all individuals copied are necessary intermediaries such that they fall within the small group in the company that 'needs to know' of an attorney's legal advice. Defendant has not carried its burden to show that this document is privileged.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ

Chapter: 13.404

Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
("'Six emails dated February 24, April 10, April 11, and May 14, 2014 are described as communications 'regarding scheduling [a] conference call' on discovery, Rule 26 disclosures, or other activities. This fails to explain why any legal advice was sought or given in these emails. Plaintiffs' descriptions only suggest administrative matters that are not protected by the attorney-client privilege.'")

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

Chapter: 13.404

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: 13.404

Case Name: Transcontinental Refrigerated Lines, Inc. v. New Prime, Inc., Civ. No. 1:13-CV-2163, 2014 U.S. Dist. LEXIS 75320, at *26 n.10 (M.D. Pa. June 3, 2014)
(addressing a situation in which a liquidation trustee sought documents from a law firm, which argued that it had represented the CEO personally rather than a company; concluding that the required analysis involved a document-by-document analysis; ultimately concluding that the representation had started as a personal representation but then became a representation of the company -- which had the only interest in asset transaction the law firm handled; "HTD 1372 is a stock, out-of-office email response from Attorney Kalnis to Hrobuchak and does not contain confidential material.")

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

Chapter: 13.404

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)
("[W]hen an attorney is merely communicating information, such as an order to appear in court, the communications between the attorney and the client are not privileged.")

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

Chapter: 13.404

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *16 (D. Nev. June 18, 2013)
("[W]hen an attorney is merely communicating information, such as an order to appear in court, the communications between the attorney and the client are not privileged.")

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

Chapter: 13.404

Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *18-19 (E.D. Va. Apr. 22, 2013)
("This email chain includes a discussion about the result of the Federal Circuit's opinion, but the only communication from DVSI counsel is one that informs DVSI that it had prevailed on part of its appeal. This alert does not amount to confidential communications and is not privileged.")

Case Date Jurisidction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 13.404

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: 13.404

Case Name: In re Republic of Ecuador, Case No. 4:11mc73 RH/WCS, 2012 U.S. Dist. LEXIS 157497, at *4 5 (N.D. Fla. Nov. 2, 2012)
("Many of the communications dealt with logistical matters such as when a flight would arrive or when an expert would have time to work on the case. The documents are not privileged or protected by the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2012-11-02 Federal FL B 5/13

Chapter: 13.405

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)
("[W]hen an attorney is merely communicating information, such as an order to appear in court, the communications between the attorney and the client are not privileged.")

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

Chapter: 13.405

Case Name: United States v. Bey, No. 13-2810, 2014 U.S. App. LEXIS 22665 (7th Cir. Dec. 2, 2014)
(holding that a defendant's lawyer could testify that he told his client about the date the client was supposed to surrender to prison; "[O]ther circuits have held consistently that the attorney-client privilege does not apply to communications of the date that a defendant is required to appear in court or to serve a sentence. These courts reason that a lawyer's communication to a client of the terms of a public court order is simply not con-fidential [sic] advice.; "We agree with the reasoning of our colleagues in these circuits and conclude that admitting the portion of Anderson's letter and his testimony authenticating it did not invade the attorney-client privilege. Anderson merely forwarded from the court to his client the public information in a court order. The fact that Anderson was Bey's lawyer did not transform the transmission of this information into confidential legal advice.")

Case Date Jurisidction State Cite Checked
2014-12-02 Federal

Chapter: 13.405

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *16 (D. Nev. June 18, 2013)
("[W]hen an attorney is merely communicating information, such as an order to appear in court, the communications between the attorney and the client are not privileged.")

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

Chapter: 13.405

Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *17 (E.D. Va. Apr. 22, 2013)
("This email chain discusses the status of Plaintiff's preparation for oral argument before the Federal Circuit. These communications are simply status updates and no legal advice is given by counsel. Therefore, these communications are not privileged.")

Case Date Jurisidction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 13.405

Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *17 (E.D. Va. Apr. 22, 2013)
("This email chain is not protected because it deals with rescheduling oral argument before the Federal Circuit. Scheduling matters do not amount to legal advice and do not deal with strategy or motives. Therefore, the content of this chain is not protected by attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-04-22 Federal VA B 3/14

Chapter: 13.406

Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 U.S. Dist. LEXIS 157752 (D. Kansas Nov. 23, 2015)
("With regard to Plaintiff's argument that Defendant's log fails to show that litigation was imminent, the Court agrees with Defendant that this is not an element of attorney-client privilege, but rather is required to establish the documents are protected work product.")

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

Chapter: 13.406

Case Name: Panattoni Constr., Inc. v. Travelers Prop. Cas.y Co. of Am., Case No. C11-1195RSM, 2012 U.S. Dist. LEXIS 178273, at *2 (W.D. Wash. Dec. 14, 2012)
(analyzing a first party bad faith claim; "The attorney-client privilege '[i]s not dependent whatsoever upon the anticipation of litigation, but instead depends upon the nature of the relationship involved.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-12-14 Federal WA B 9/13

Chapter: 13.406

Case Name: Collins v. Braden, 384 S.W.3d 154, 160 (Ky. 2012)
("The attorney-client privilege is not contingent on actual or threatened litigation.")

Case Date Jurisidction State Cite Checked
2012-01-01 State KY B 1/14

Chapter: 13.406

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 377 (4th Cir. 2009)
("Because the attorney-client privilege extends beyond communications in contemplation of particular litigation to communications regarding 'an opinion on the law,' e.g., United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982), these communications can still be afforded protection under the attorney-client privilege.")

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

Chapter: 13.406

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 375 (4th Cir. 2009)
("It 'is not limited to communications made in the context of litigation or even a specific dispute, but extends to all situations in which an attorney's counsel is sought on a legal matter.' Coastal States Gas Corp., 617 F.2d at 862.")

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

Chapter: 13.407

Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *7 (N.D. Ohio Aug. 8, 2013)
("The attorney-client privilege protects only confidential communications between the attorney and client and does not protect communications that the attorney or client has with a third party.")

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

Chapter: 13.407

Case Name: Bilyeu v. Johanson Berenson LLP, Civ. A. No. 1:08-2006, 2013 U.S. Dist. LEXIS 67226, at *4-5 (W.D. La. May 10, 2013)
(finding that the privilege did not protect a law firm's communications with shareholders with whom the law firm communicated in a marketing effort; "The reason the Johanson Defendants spoke to the corporations' shareholders was to encourage them to sell stock to their clients' ESOPs. It was not to gather information in anticipation of litigation as was the case in Upjohn [Upjohn v. United States, 449 U.S. 383 (1981)]. It wasn't to provide legal advice regarding strategic moves the corporation should make. Rather, it was a discussion regarding an investment opportunity. While the Johanson Defendants labeled the form memoranda provided to potential investors 'privileged and confidential' and cited to cases related to tax deferral strategies, the Johanson Defendants also clearly set forth on the memorandum and supplemental memorandum that neither was an opinion letter.")

Case Date Jurisidction State Cite Checked
2013-05-10 Federal LA B 3/14

Chapter: 13.407

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *30 (S.D. Ohio Nov. 13, 2012)
(holding that some documents prepared during a third party consultant's audit deserved privilege protection; "[T]his document, the 'retainer' letter from SunCoke's outside counsel seeking advice and opinions from URS, is also protected by the attorney-client privilege. The letter from Mr. Sullivan explains URS's role as a consultant to SunCoke's attorneys for the purpose of providing legal advice to SunCoke.")

Case Date Jurisidction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 13.501

Case Name: Callaway v. Cofield (In re Cofield), Case No. 11-02034-8-SWH, Adv. No. 12-00270-8-SWH-AP, 2013 Bankr. LEXIS 1555, at *12-13 (E.D.N.C. Apr. 11, 2013)
("[T]he deposition should be allowed to proceed during the course of which Mr. Gilreath, the debtor or Juan Cofield may assert the attorney-client privilege in response to specific questions asked by the trustee. The objecting parties must set out the basis for such privilege sufficient to satisfy their burden without divulging the privileged information. Although a potentially tedious exercise, a question-by-question method allows for a more precise determination of whether the attorney-client privilege applies to the specific subject matter of each question asked by the trustee. This will better protect the debtor's and Juan Cofield's attorney-client privilege while ensuring that the trustee obtains information to which he is entitled." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-04-11 Federal NC B 3/14

Chapter: 13.502

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 GE has improperly asserted privilege for attachments to otherwise privileged email communications between attorneys and GE personnel. This argument is problematic for the Government to pursue because its very own privilege logs lay claim to privilege for multiple attachments to the Government's own email communications. Moreover, the Government's objection runs contrary to well-established law that information communicated to an attorney in connection with obtaining or rendering legal advice is properly subject to a claim of privilege, even if the information standing alone would not otherwise be subject to a claim of privilege.").

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

key case


Chapter: 13.502

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 GE has improperly asserted privilege for attachments to otherwise privileged email communications between attorneys and GE personnel. This argument is problematic for the Government to pursue because its very own privilege logs lay claim to privilege for multiple attachments to the Government's own email communications. Moreover, the Government's objection runs contrary to well-established law that information communicated to an attorney in connection with obtaining or rendering legal advice is properly subject to a claim of privilege, even if the information standing alone would not otherwise be subject to a claim of privilege.").

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

Chapter: 13.502

Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("Document No. 4 is privileged only in part. Document No. 4-A, the facsimile cover sheet, is protected by the attorney-client privilege, but Document No. 4-B, the Letter attached to the cover sheet, is not privileged. Although Document No. 4-B is attached to an attorney-client communication, an attachment does not become privileged merely by virtue of being attached to a privileged communication.")

Case Date Jurisidction State Cite Checked
2015-08-07 Federal IL

Chapter: 13.502

Case Name: Roberts Technology Group, Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015)
("A closer question arises in attachments or additional emails attached to communications sent by Curwood employees to in-house counsel. Curwood argues e-mail attachments, otherwise not privileged, cross the threshold and become privileged because they are attached to privileged emails."; "We disagree. The attachment sent to counsel must also be prepared at counsel's request and evidence a privileged communication. Not all data sent to counsel to inform legal advice is privileged. . . . Instead, the privilege must be asserted on a document by document basis. The communication must be confidential and with the goal of furthering counsel's provision of legal advice. . . . Where the attached communication is not confidential but merely contains readily available or pre-existing information not prepared for counsel, it is not privileged.")

Case Date Jurisidction State Cite Checked
2015-07-20 Federal PA

Chapter: 13.502

Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("The email attachments . . . Are properly redacted as protected by privilege. The attachments are timelines of the preparation of the Citizen's Petitions and extensively reflect the timing of legal work and legal consultations.")

Case Date Jurisidction State Cite Checked
2015-05-20 Federal FL

Chapter: 13.502

Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *10-11 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "Thus, merely communicating with a lawyer or copying a lawyer on an otherwise non-privileged communication, will not transform the non-privileged communication or attachment into a privileged one. And that is so even if the otherwise non-privileged communication was at the behest of the lawyer.")

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

Chapter: 13.502

Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *13 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "From these fundamental principles, it inexorably follows that sending an otherwise non-privileged document to a lawyer in connection with a request for legal advice will not make the attached document independently privileged and immune from discovery, even though the communication seeking legal advice is privileged.")

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

Chapter: 13.502

Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *18 (N.D. Cal. June 10, 2013)
("With regard to attachments, they should be produced unless Plaintiff can articulate a valid reason that the document should be withheld, and the document is included in an appropriate privilege log entry.")

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

Chapter: 13.503

Case Name: Harris Management, Inc. v. Coulombe, Dkt. BCD-15-363, 2016 Me. LEXIS 185 (Me. Nov. 8, 2016)
January 11, 2017 (PRIVILEGE POINT)

"Two Decisions Issued the Same Day Highlight Choice of Laws Issues: Part II"

Last week's Privilege Point described a Maine case applying the narrow pre-Upjohn "control group" standard for corporate communications. Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, ---A.3d---. Illinois is by far the largest state that still follows the worrisome "control group" standard. Illinois federal courts sitting in diversity frequently apply that state's "control group" standard to strip away corporations' privilege protection.

But sometimes Illinois federal courts look elsewhere for privilege law. In In re Fluidmaster, Inc., the court noted that "[t]he parties agree that California law governs the attorney-client privilege issues now before the Court." Case No. 1:14-cv-05696, MDL 2585, 2016 U.S. Dist. LEXIS 154618, at *5 (N.D. Ill. Nov. 8, 2016). The court therefore applied several favorable California statutory law principles to the defendant corporation's privilege protection, including (1) communications "made in the course of an attorney-client relationship" are "presumed to have been made in confidence"; (2) the privilege's opponent must carry the burden of proving that the privilege does not apply; (3) "the privilege may extend to 'communications that merely transmit documents,' even if those documents are publicly available"; and (4) "no heightened [privilege] scrutiny exception [for in-house lawyers] exists in California's statutory regime." Id. at *6, *12, *46 (citations omitted). All of these positions represent a much more corporate-friendly privilege approach than the majority of case law nationally – and obviously much more favorable than Illinois' own harsh "control group" standard.

The Harris Management case should remind lawyers that pockets of unfavorable "control group" privilege law still exist, and the Fluidmaster case should prompt lawyers to look for ways to apply more favorable privilege law wherever they litigate.

Case Date Jurisidction State Cite Checked
2016-11-08 State ME
Comment:

key case


Chapter: 13.503

Case Name: In re Fluidmaster, Inc., Case No. 1:14-cv-05696, MDL 2585, 2016 U.S. Dist. LEXIS 154618, at *5 (N.D. Ill. Nov. 8, 2016)
January 11, 2017 (PRIVILEGE POINT)

"Two Decisions Issued the Same Day Highlight Choice of Laws Issues: Part II"

Last week's Privilege Point described a Maine case applying the narrow pre-Upjohn "control group" standard for corporate communications. Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, ---A.3d---. Illinois is by far the largest state that still follows the worrisome "control group" standard. Illinois federal courts sitting in diversity frequently apply that state's "control group" standard to strip away corporations' privilege protection.

But sometimes Illinois federal courts look elsewhere for privilege law. In In re Fluidmaster, Inc., the court noted that "[t]he parties agree that California law governs the attorney-client privilege issues now before the Court." Case No. 1:14-cv-05696, MDL 2585, 2016 U.S. Dist. LEXIS 154618, at *5 (N.D. Ill. Nov. 8, 2016). The court therefore applied several favorable California statutory law principles to the defendant corporation's privilege protection, including (1) communications "made in the course of an attorney-client relationship" are "presumed to have been made in confidence"; (2) the privilege's opponent must carry the burden of proving that the privilege does not apply; (3) "the privilege may extend to 'communications that merely transmit documents,' even if those documents are publicly available"; and (4) "no heightened [privilege] scrutiny exception [for in-house lawyers] exists in California's statutory regime." Id. at *6, *12, *46 (citations omitted). All of these positions represent a much more corporate-friendly privilege approach than the majority of case law nationally – and obviously much more favorable than Illinois' own harsh "control group" standard.

The Harris Management case should remind lawyers that pockets of unfavorable "control group" privilege law still exist, and the Fluidmaster case should prompt lawyers to look for ways to apply more favorable privilege law wherever they litigate.

Case Date Jurisidction State Cite Checked
2016-11-08 Federal IL
Comment:

key case


Chapter: 13.503

Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("California's attorney-client privilege simply does not differentiate 'between 'factual' and 'legal' information.'. . . The 'privilege equally attaches to both 'legal' and 'factual' information or advice exchanged between the attorney and client.'. . . In fact, the privilege may extend to 'communications that merely transmit documents,' even if those documents are publicly available. . . . All of this means that the privilege protects the transmission of information 'regardless of their content.'")

Case Date Jurisidction State Cite Checked
2016-11-08 Federal IL

Chapter: 13.503

Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("'This is a covering email from one attorney to another conveying attached documents. The email contains no language of a legal nature and only references the transmission of documents. The Court finds that this email is not protected by any privilege and must be produced to Plaintiff within ten (10) days of this Order.'")

Case Date Jurisidction State Cite Checked
2016-09-27 Federal NY

Chapter: 13.503

Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("Document Nos. 1 and 4-A are facsimile cover sheets to and from Tamblyn and Gerner, which qualify as privileged attorney-client communications. The cover sheets consist of the typical form of privileged documents -- confidential communications from a client to an attorney for the purpose of receiving legal advice. . . . Indeed, both documents include a request by Tamblyn for legal advice . . . or a reference to Tamblyn's request for legal advice . . . from Gerner in his capacity as an attorney with the communication relating to that purpose under the express condition of confidentiality and there is no evidence of waiver. . . . Document Nos. 1 and 4-A are therefore privileged and protected from disclosure.")

Case Date Jurisidction State Cite Checked
2015-08-07 Federal IL

Chapter: 13.503

Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("The facsimile cover sheet that accompanied Document No. 2 included a request by Tamblyn [School district superintendent] for legal advice from Gerner [School district's outside counsel] in his capacity as an attorney. . . . The typed portion of Document No. 2 drafted by Tamblyn was expressly designated as a 'Confidential Draft.'. . . Gerner in turn designated his marked-up version of the draft Letter as both 'Privileged and Confidential.'. . . And there is no evidence of waiver. Accordingly, Tamblyn's confidential statements sent to Gerner for the purpose of seeking legal advice and Gerner's confidential handwritten comments made in response qualify for protection under the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-08-07 Federal IL

Chapter: 13.503

Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("Document No. 5 consists of a facsimile transmission report. This document is merely a report generated by a facsimile machine showing that '[t]his transmission is completed.' This document does not satisfy any part of the legal standard for establishing the attorney-client privilege. . . . Although the transmission report shows other factual information, such as the time and date, the information shown is at a basic level comparable to what must be provided in a privilege log.")

Case Date Jurisidction State Cite Checked
2015-08-07 Federal IL

Chapter: 13.503

Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("The facsimile cover sheet that accompanied Document No. 2 included a request by Tamblyn [School district superintendent] for legal advice from Gerner [School district's outside counsel] in his capacity as an attorney. . . . The typed portion of Document No. 2 drafted by Tamblyn was expressly designated as a 'Confidential Draft.'. . . Gerner in turn designated his marked-up version of the draft Letter as both 'Privileged and Confidential.'. . . And there is no evidence of waiver. Accordingly, Tamblyn's confidential statements sent to Gerner for the purpose of seeking legal advice and Gerner's confidential handwritten comments made in response qualify for protection under the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-08-07 Federal IL

Chapter: 13.503

Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("Document No. 5 consists of a facsimile transmission report. This document is merely a report generated by a facsimile machine showing that '[t]his transmission is completed.' This document does not satisfy any part of the legal standard for establishing the attorney-client privilege. . . . Although the transmission report shows other factual information, such as the time and date, the information shown is at a basic level comparable to what must be provided in a privilege log.")

Case Date Jurisidction State Cite Checked
2015-08-07 Federal IL

Chapter: 13.503

Case Name: Community Assoc. Underwriters of America, Inc. v. Queensboro Flooring Corp., Civ. A. No. 3:10-CV-1559, 2014 U.S. Dist. LEXIS 115847 (M.D. Pa. Aug. 20, 2014)
("These documents are either fax cover sheets, cover letters, or e-mails that served as transmittal messages forwarding litigation documents without any comment at all, or with a brief note stating 'please advise' or 'see attached.' While some of the attached documents may themselves be protected by the attorney-client privilege or the work-product doctrine, the transmittal messages are not.")

Case Date Jurisidction State Cite Checked
2014-08-20 Federal PA

Chapter: 13.503

Case Name: Transcontinental Refrigerated Lines, Inc. v. New Prime, Inc., Civ. No. 1:13-CV-2163, 2014 U.S. Dist. LEXIS 75320, at *26 n.10 (M.D. Pa. June 3, 2014)
(addressing a situation in which a liquidation trustee sought documents from a law firm, which argued that it had represented the CEO personally rather than a company; concluding that the required analysis involved a document-by-document analysis; ultimately concluding that the representation had started as a personal representation but then became a representation of the company -- which had the only interest in asset transaction the law firm handled; "HTD 1372 is a stock, out-of-office email response from Attorney Kalnis to Hrobuchak and does not contain confidential material.")

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

Chapter: 13.503

Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "Emails from Ms. Caporusso [Attorney] that merely transmit court orders or information received from the FOP or a court or agency: These are not privileged and must be produced")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 13.503

Case Name: Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 U.S. Dist. LEXIS 69257 (E.D. Cal. May 20, 2014)
(analyzing privilege and work product protection for a consultant's report following an anonymous complaint about discrimination; "'Of course, the communication of the report to the Board of Supervisors, assuming it was communicated, would be privileged, but not the report itself.'")

Case Date Jurisidction State Cite Checked
2014-05-20 Federal CA

Chapter: 13.503

Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *22 (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; "Bates Nos. 1399 and 1400 are emails from Barnett [lawyer for the railroad] to Marya Gromley-O'Connor regarding the Workplace Diversity's 2006 Annual Policy Statements and her response. It is not clear whether Gromley-O'Connor is in the Legal Department at Metro-North, but even assuming that she is, these transmittal emails with nothing attached and containing no legal advice or request for legal advice is [sic] not privileged and should be produced.")

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

Chapter: 13.503

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 336 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "A few are merely transmittal messages, forwarding non-confidential email messages without any comment or discussion of confidential information.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 13.503

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 335-36 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Document No. 71 is a collection of email messages exchanged between members of the Dempsey family, primarily concerning the criminal charges and student conduct proceedings against Reed Dempsey. . . . Many are just chatter among family members and references to news articles or blog posts of interest in light of Reed Dempsey's experience. Several are transmittal messages forwarding litigation documents without any comment at all --some of the attached documents may themselves be protected by the attorney-client privilege or the work-product doctrine, but the transmittal messages are not.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 13.504

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)
("In the first category of documents that the Court concludes are subject to disclosure, KBR attorneys were merely copied on or were added recipients of emails that were not sent for the purpose of seeking or providing legal advice. As noted above, in order for a communication to be sheltered by the attorney-client privilege, it must have a 'primary purpose' defined as 'one of the significant purposes' of either obtaining or providing legal advice. Parties, including corporations, may not shield otherwise discoverable documents from disclosure by including an attorney on a distribution list. Thus, the fact that an attorney either is copied on or is one of multiple recipients of an email does not on its own support a claim of attorney-client privilege.")

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

Chapter: 13.505

Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *18 (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; "[M]inutes of meetings attended by an attorney or directed by an attorney are not automatically privileged as a result of the attorney's presence. The question is whether the document in question reveals the substance of a confidential attorney-client communication or whether the document is essentially a business communication.")

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

Chapter: 13.505

Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *18 (Del. Ch. Apr. 10, 2013)
("'[T]he presence of a lawyer at a business meeting called to consider a problem that has legal implications does not itself shield the communications that occur at that meeting from discovery.' Rather, it is 'communications to a lawyer by or on behalf of a client for the purpose of the rendition of legal services or lawyer statements constituting legal service' that are protected.")

Case Date Jurisidction State Cite Checked
2013-04-10 State DE B 3/14

Chapter: 13.601

Case Name: Callaway v. Cofield (In re Cofield), Case No. 11-02034-8-SWH, Adv. No. 12-00270-8-SWH-AP, 2013 Bankr. LEXIS 1555, at *12-13 (E.D.N.C. Apr. 11, 2013)
("[T]he deposition should be allowed to proceed during the course of which Mr. Gilreath, the debtor or Juan Cofield may assert the attorney-client privilege in response to specific questions asked by the trustee. The objecting parties must set out the basis for such privilege sufficient to satisfy their burden without divulging the privileged information. Although a potentially tedious exercise, a question-by-question method allows for a more precise determination of whether the attorney-client privilege applies to the specific subject matter of each question asked by the trustee. This will better protect the debtor's and Juan Cofield's attorney-client privilege while ensuring that the trustee obtains information to which he is entitled." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-04-11 Federal NC B 3/14

Chapter: 13.602

Case Name: Alomari v. Ohio Dept. of Public Safety, 15a0630n.06, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
("When a communication involves both legal and non-legal matters, we 'consider whether the predominant purpose of the communication is to render or solicit legal advice.'. . . This predominant purpose 'should be assessed dynamically and in light of the advice being sought or rendered, as well as the relationship between advice that can be rendered only by consulting the legal authorities and advice that can be given by a non-lawyer.").

Case Date Jurisidction State Cite Checked
2015-09-09 Federal OH

Chapter: 13.602

Case Name: United States v. Christensen, No. 08-50531, No. 08-50570, No. 09-50115, No. 09-50125, No. 09-50128, No. 09-50159, No. 10-50434, No. 10-50462, No. 10-50464, No. 10-50472, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015)
("An entire document or set of documents may be privileged when it contains privileged portions that are 'so inextricably intertwined with the rest of the text that they cannot be separated.'. . . In contrast, '[i]f the nonprivileged portions of a communication are distinct and severable, and their disclosure would not effectively reveal the substance of the privileged legal portions, the court must designate which portions of the communication are protected and therefore may be excised or redacted (blocked out) prior to disclosure.")

Case Date Jurisidction State Cite Checked
2015-08-25 Federal

Chapter: 13.1403

Case Name: United States es rel. Gale v. Omnicare, Inc., Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013)
("Omnicare does not show that the Compliance Committee meetings and the documents drafted by Mathis were for the purpose of obtaining legal advice. Instead, the meetings were scheduled meetings to comply with Corporate Integrity Agreements that Omnicare reached with the United States. Indeed, the Corporate Integrity Agreements appear to have been mandated the Compliance Committee. The meetings and documents sought to comply with its contract with the United States, not to obtain legal advice." (footnotes omitted))

Case Date Jurisidction State Cite Checked
2013-10-04 Federal OH B 5/14