Showing 131 of 131 results

Chapter: 14.1

Case Name: Slaven v. Great American Ins. Co., No. 13 C 1370, 2015 U.S. Dist. LEXIS 33591 (N.D. Ill. March 18, 2015)
("The in camera review of certain emails that have been withheld on the grounds of privilege and work-product protection confirm the above conclusions. They make clear beyond peradventure of doubt that Mr. Lovato and the Boundas Skarzynski firm were acting purely as legal advisors to Centrum and that they had no authority to make any final decision in connection with the Centrum claim, nor did they attempt to.")

Case Date Jurisdiction State Cite Checked
2015-03-18 Federal IL

Chapter: 14.6

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 Jurisdiction State Cite Checked
2017-02-13 Federal NV

Chapter: 14.6

Case Name: Huntington Chase Condominium Assoc. v. Mid-Century Ins. Co., No. 16 C 4877, 2017 U.S. Dist. LEXIS 14082 (N.D. Ill. Feb. 1, 2017)
("The attorney-client privilege is inapplicable because the emails do not provide legal advice with respect to, or discuss the legal consequences of the factual material within the emails. The transfer of insurance claim information between plaintiff and its insurer through an attorney does not transform otherwise purely factual data into legal analysis warranting privilege protections.")

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

Chapter: 14.202

Case Name: Weinstein v. Univ. of Conn., Civ. No. 3:11CV1906 (WWE), 2013 U.S. Dist. LEXIS 71617, at *18 (D. Conn. May 21, 2013)
(refusing to allow the deposition of a university's in-house lawyer, under the Second Circuit Friedman (In re Subpoena Issued to Friedman), 350 F.3d 65 (2d Cir. 2003)) standard; not addressing the status of the proposed deponent as an in-house lawyer rather than as a trial lawyer; "[I]t cannot be that every e-mail sent to an in-house lawyer is automatically privileged.")

Case Date Jurisdiction State Cite Checked
2013-05-21 Federal CT B 3/14

Chapter: 14.202

Case Name: Glenwood Halsted LLC v. Vill. of Glenwood, No. 11 CV 6772, 2013 U.S. Dist. LEXIS 4471, at *5 (N.D. Ill. Jan. 11, 2013
("[M]erely sending a communication to an attorney does not cloak a document in the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal ND B 7/13

Chapter: 14.202

Case Name: Glenwood Halsted LLC v. Vill. of Glenwood, No. 11 CV 6772, 2013 U.S. Dist. LEXIS 4471, at *5 (N.D. Ill. Jan. 11, 2013)
("[M]erely sending a communication to an attorney does not cloak a document in the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal IL B 7/13

Chapter: 14.203

Case Name: John Ernst Lucken Revocable Trust v. Heritage Bancshares Group, Inc., No. 16-CV-4005-MWB, 2017 U.S. Dist. LEXIS 21299, at *1 (N.D. Iowa Feb. 15, 2017)
April 26, 2017 (PRIVILEGE PONT)

"Can Inactive Lawyers Claim Privilege Protection for their Communications?"

Some lawyers deliberately or inadvertently let their licenses lapse, but still give advice to clients and prepare related documents. What privilege implications come from such a scenario?

In John Ernst Lucken Revocable Trust v. Heritage Bancshares Group, Inc., plaintiffs withheld as privileged their communications with Bill Peterson – who had given them advice "since the late 1990s, but [who] has not held an active attorney's license since 2001" (except for a short period several years earlier). No. 16-CV-4005-MWB, 2017 U.S. Dist. LEXIS 21299, at *1 (N.D. Iowa Feb. 15, 2017). After noting the lack of any Eighth Circuit authority, the court followed the generally accepted rule that the privilege can apply "where the person asserting the privilege had a reasonable but mistaken belief that the person with whom they were communicating was in fact a licensed attorney." Id. at * 3-4. The court ultimately rejected plaintiffs' privilege claim, noting that they had not produced any evidence "demonstrating [that they] had a reasonable belief Peterson was licensed to engage in the practice of law after 2001." Id. at *7. Among other things, the court pointed to Peterson's reference to himself as a "[b]usiness consultant." Id.

As other courts reaching the same conclusion have noted, a different approach would punish "the unsuspecting 'client' when it comes to light the imposter is not actually licensed." Id. at *5.

Case Date Jurisdiction State Cite Checked
2017-02-15 Federal IA
Comment:

key case


Chapter: 14.203

Case Name: City of Houston v. Paxton, No. 03-15-00093-CV, 2016 Tex. App. LEXIS 1811, at *7-8, *8-9 (Tex. App. Feb. 23, 2016)
(finding that the attorney-client privilege did not protect statements given by City employees to the City Attorney's office, because their primary purpose did not involve legal advice; "Our review of the record leads us to conclude that the City did not meet its burden to show that the statements at issue were made by the subject employees for the purpose of effectuating legal representation for the City. Rather than evidence supporting this requirement, we find evidence supporting the opposite in the form of the admonishment pages, which (1) did not refer to the OIG attorney as an 'attorney' or 'lawyer' but merely as being 'of the Office of the Inspector General' and as the 'OIG investigator,' referring only to the 'OIG investigation'; (2) referenced the executive order, in which the OIG is vested with the responsibility to investigate allegations of employee misconduct and supply information to law enforcement authorities (without mention of providing legal services or advice to the City) and in which the purpose of the OIG is identified merely as 'the investigation of allegations of employee misconduct'; (3) informed the employees that they may be subject to the offense of perjury if their sworn statements contained falsehoods and that their duties to cooperate with the OIG investigation flowed from the executive order (rather than from their supervisors); and (4) provided that the investigator 'will have the sole responsibility for making a decision/determination on whether the information will have a bearing on the outcome of this investigation.'"; "Besides the admonishment pages, there is no evidence in the record regarding what the subject employees were told, knew, or believed about the role or capacity in which the OIG attorney was functioning or the purpose of their statements. There is no evidence of a retention letter or other communication indicating the OIG's role or capacity as encompassing the rendering of legal advice. Rather, the only evidence in this record pertaining to the capacity in which the OIG operated supports that of 'investigator' rather than 'attorney' and -- even assuming that the attorney capacity is a reasonable inference from the evidence in the record -- there is no evidence that the employees at issue knew of this capacity or made their statements to the OIG investigator for the purpose of effectuating legal representation for the City.")

Case Date Jurisdiction State Cite Checked
2016-02-23 Federal TX B 7/16
Comment:

key case


Chapter: 14.203

Case Name: Scott v. Chipotle Mexican Grill, Inc., 12-CV-08333 (ALC) (SN), 2015 U.S. Dist. LEXIS 40176 (S.D.N.Y. March 27, 2015)
(finding that defendant's FLSA consultant was not within the privilege; "An in camera review of the documents, however, satisfies the Court that Parcheta's [Lawyer] advice is legal in nature. Briefly stated, Parcheta writes as a lawyer and discusses and analyzes the law, beyond bare recitation of regulations or the giving of non-legal business advice. It is not merely his degree which renders his advice legal, but rather the focus of his attention and the nature of his communication with Chipotle; his correspondence with Moore would not be out of place in the outbox of a major law firm. It would be disingenuous to discount Parcheta's legal advice merely because he or his employer also provides other types of advice. Accordingly, the privilege applies, regardless of MSEC's nontraditional structure.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal NY

Chapter: 14.204

Case Name: Syncora Guarantee Inc. v. EMC Mortg. Corp., No. MC 13-80037 SI, 2013 U.S. Dist. LEXIS 82102, at *7-8, *8 (N.D. Cal. June 10, 2013)
(finding ordinary business documents did not deserve privilege protection just because they came from a lawyer; "Privilege requires that the 'dominant purpose' of the communication be in furtherance of the attorney-client relationship; if the communications could have been transacted by a non-attorney, then the attorney-client privilege does not apply. . . . Here, the dominant purpose of these communications is the analysis of repurchase demands. Not only could this analysis have been conducted by non-attorneys, but it was conducted by an entire department of non-attorneys, who were performing their regular business functions."; "The fact that these documents were eventually sent to GreenPoint [third-party defendant] counsel is not enough to create an attorney-client privilege.")

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

Chapter: 14.204

Case Name: AM Gen. Holdings LLC v. Renco Grp., Inc., C.A. Nos. 7639- & 7668-VCN, 2013 Del. Ch. LEXIS 102, at *4-5 (Del. Ch. Apr. 18, 2013)
("Part of the problem traces to the seemingly inevitable cryptic nature of document descriptions in a privilege log. It is not easy to discern whether a lawyer was seriously engaged in legal analysis when the document was being prepared. If a contract calls for a particular calculation, then, as a general matter, reviewing the contract would be necessary. Is following the directions in a contract legal analysis, if performed by a lawyer? When does the process of gaining an understanding of a contract transform into legal analysis? Defining the line is not easy; figuring out where the preparation of a contractually-required document falls on a continuum between performance of a basic contractual function and performing legal analysis is not an easy one, especially where the descriptions of the documents are meager.")

Case Date Jurisdiction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 14.204

Case Name: United States v. Under Seal (In re Grand Jury Subpoena), 204 F.3d 516, 523 (4th Cir. 2000)
("A client may not 'buy' a privilege by retaining an attorney to do something that a non-lawyer could do just as well" (quoting 2 Saltzberg, et al., Federal Rules of Evidence Manual 698 (7th ed. 1998)))

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

Chapter: 14.302

Case Name: Anderson v. SoftwareONE, Inc., Case No. 16-CV-1181, 2018 U.S. Dist. LEXIS 126812 (E.D. Wis. July 30, 2018)
(analyzing privilege and work product protection for an internal investigation into alleged sexual harassment and discrimination; finding both the attorney-client privilege and the work product inapplicable, because the investigation was not primarily motivated by legal concerns or litigation; "As for the second point -- that SoftwareONE's counsel provided legal advice and direction so as to ensure that the QTI investigation moved forward in an adequate way -- if SoftwareONE is attempting to suggest that its in-house counsel entered into an attorney-client relationship with QTI, it falls far short of establishing that."; "Only if QTI's investigators were 'professional legal adviser[s],' SoftwareONE sought their legal advice, and made confidential communications for the purpose of obtaining legal advice, would the communications plausibly be privileged.")

Case Date Jurisdiction State Cite Checked
2018-07-30 Federal WI
Comment:

key case


Chapter: 14.302

Case Name: Exxon Mobil Corp. v. Northwestern Corp., Case No. 1:16-cv-00005-BLG-BMM, 2017 U.S. Dist. LEXIS 159143 (D. Mt. Sept. 27, 2017)
(finding that the work product doctrine did not protect what was prepared a nonlawyer Exxon Mobil employee who investigated a refinery power outage, but that the attorney-client privilege could protect communications about the investigation; "[A]ttempting to delegate a business activity to legal counsel does not shield an investigation from discovery.")

Case Date Jurisdiction State Cite Checked
2017-09-27 Federal MT

Chapter: 14.302

Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson about an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "The scant deposition testimony of Kleinfeld CEO Ronnie Rothstein provided by plaintiff also fails to demonstrate that defense counsel had a non-legal purpose in the aftermath of the April 29 incident. The only testimony tying defense counsel to an investigatory role is a portion of Rothstein's deposition where counsel asked, 'So Rosanne [Clerkin], Terry [sic] [Solomon] and Bert [Pogrebin] conducted an investigation?,' and Rothstein answered, 'Yes'. . . . The Court does not consider this testimony, without more, sufficient to establish that Littler's attorneys acted as investigators without a primarily legal purpose.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY
Comment:

key case


Chapter: 14.302

Case Name: Rattner v. Chubb National Ins. Co., Civ. No. 1:17-cv-00136-GBL-MSN, 2017 U.S. Dist. LEXIS 70141 (E.D. Va. May 8, 2017)
("Plaintiff's argument is contrary to law. Information and communications with an attorney retained to conduct an investigation may still be privileged when the investigation is 'related to the rendition of legal services.'"; "Upon in camera review of the ten sample documents, the Court finds that Defendant Chubb properly withheld the documents on the basis of attorney-client privilege and the work product doctrine because Ms. Bernstiel was retained to conduct an investigation using her legal expertise.")

Case Date Jurisdiction State Cite Checked
2017-05-08 Federal VA

Chapter: 14.302

Case Name: Buck v. Indian Mountain School, 15 CV 123 (JBA), 2017 U.S. Dist. LEXIS 13348 (D. Conn. Jan. 31, 2017)
(analyzing work product protection for an investigation into alleged sexual abuse at a school; holding that witness interview notes and memorandum deserve work product protection; holding that the investigating law firm's document deserved work product protection; "[T]he court must examine the role of the Shipman & Goodwin [law firm hired to investigate the abuse claims] attorneys in this case, considering the duties they performed, and must determine whether they were providing legal advice or were serving as independent investigators."; "This case, however, differs from Zimmerman [Zimmerman v. Poly Prep Country Day Sch., No. 09-CV-4586(FB), 2011 U.S. Dist. LEXIS 40704, 2011 WL 1429221 (E.D.N.Y. Apr. 13, 2011)] in at least four important respects. In this case, Shipman & Goodwin was retained in October 2014 'by a Special Committee on the Board of Trustees of IMS to conduct a comprehensive investigation of allegations of sexual molestation against the school[.]'"; "First, Attorney Sheridan's [lawyer retained to investigate alleged abuse in the Zimmerman case] role was limited merely to fact-finding, without any indication that he was going to make any recommendations, legal or otherwise, to the defendant school, unlike Shipman & Goodwin, whose retention included advising defendant IMS 'how best to respect and support any alumni who may have been harmed[,]' and which law firm specifically was retained in connection with ongoing and anticipated litigation. Second, Attorney Sheridan apparently did not reveal to the people that he interviewed that he was an attorney, nor he did indicate that he was there for the purpose of trying to defend the school in future litigation, whereas the alumni notice in this case clearly spells out that Ruekert and Bergenn are attorneys. At the time the letter was sent to the IMS community, defendant had been defending lawsuit for twenty-one years, from 1993 through 2014, so that litigation clearly was anticipated. Third, there apparently was no expectation of privacy or confidentiality in the fact-gathering interviews conducted by Attorney Sheridan; while the words 'privacy' or 'confidentiality' do not appear in the November 5, 2014 mass mailing, the insertion of the words 'integrity' and 'sensitivity' in describing Attorneys Ruekert and Bergenn's experience to this field the same impression that the communications to them will not be revealed. And lastly, the people interviewed by Attorney Sheridan were all prominent representatives of the defendant school, individuals who clearly were going to be deposed in the anticipated litigation in Zimmerman and whose alleged failure to respond was apparent, or soon would be, and whose credibility was going to loom large at trial, whereas the individuals targeted here for interview were other potential victims, or witnesses, that is, people whose identities had not yet been revealed in the anticipated litigation."; "There are multiple parallels between this lawsuit and Sandra T.E. [Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612, 619 (7th Cir. 2010)]. The communications in the instant case between the Head of School and the Shipman & Goldwin attorneys were confidential, as were the communications with the alumna and alumnus who responded to defendant's letter. Second, in both cases, the law firms were retained specifically to develop the defendants' response to the claims of sexual abuse. Third, the attorneys were retained in the midst of ongoing litigation. At the time the letter was sent to the IMS Community, defendant was aware, and 'deeply concerned[,] with allegations of sexual abuse brought forth by alumni[,]'. . . and as defendant notes in its brief in opposition, IMS has been defending these suits since 1993. . . . Additionally, the fact that defendant had retained different litigation counsel 'is not dispositive[,]' and 'does not remove the investigation from the protection of the work product doctrine.'. . .'")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal CT
Comment:

key case


Chapter: 14.302

Case Name: Ambrose-Frazier v. Herzing Inc., Civ. A. No. 15-1324 Section: "E" (3), 2016 U.S. Dist. LEXIS 30174 (E.D. La. March 9, 2016)
(holding that an investigation into alleged racial discrimination conducted by the HR director who also happened to be a lawyer did not deserve work product protection, because it was undertaken in the ordinary course of business pursuant to an internal requirement to investigate all such claims; also finding the company's Faragher-Ellerth defense waived any privilege and work product protection that would have existed; "At the time she made her notes, Baiocchi was the director of human resources at Herzing, and, although she also happened to be a lawyer, she was acting in her capacity as the human resources director when conducting the investigation in accordance with Herzing's employee policy. Considering this, and in light of the Court's analysis above, the Court finds that the attorney-client privilege does not apply to Baiocchi's redacted notes from her May 10, 2013, interviews.")

Case Date Jurisdiction State Cite Checked
2016-03-09 Federal LA

Chapter: 14.302

Case Name: City of Houston v. Paxton, No. 03-15-00093-CV, 2016 Tex. App. LEXIS 1811, at *7-8, *8-9 (Tex. App. Feb. 23, 2016)
(finding that the attorney-client privilege did not protect statements given by City employees to the City Attorney's office, because their primary purpose did not involve legal advice; "Our review of the record leads us to conclude that the City did not meet its burden to show that the statements at issue were made by the subject employees for the purpose of effectuating legal representation for the City. Rather than evidence supporting this requirement, we find evidence supporting the opposite in the form of the admonishment pages, which (1) did not refer to the OIG attorney as an 'attorney' or 'lawyer' but merely as being 'of the Office of the Inspector General' and as the 'OIG investigator,' referring only to the 'OIG investigation'; (2) referenced the executive order, in which the OIG is vested with the responsibility to investigate allegations of employee misconduct and supply information to law enforcement authorities (without mention of providing legal services or advice to the City) and in which the purpose of the OIG is identified merely as 'the investigation of allegations of employee misconduct'; (3) informed the employees that they may be subject to the offense of perjury if their sworn statements contained falsehoods and that their duties to cooperate with the OIG investigation flowed from the executive order (rather than from their supervisors); and (4) provided that the investigator 'will have the sole responsibility for making a decision/determination on whether the information will have a bearing on the outcome of this investigation.'"; "Besides the admonishment pages, there is no evidence in the record regarding what the subject employees were told, knew, or believed about the role or capacity in which the OIG attorney was functioning or the purpose of their statements. There is no evidence of a retention letter or other communication indicating the OIG's role or capacity as encompassing the rendering of legal advice. Rather, the only evidence in this record pertaining to the capacity in which the OIG operated supports that of 'investigator' rather than 'attorney' and -- even assuming that the attorney capacity is a reasonable inference from the evidence in the record -- there is no evidence that the employees at issue knew of this capacity or made their statements to the OIG investigator for the purpose of effectuating legal representation for the City.")

Case Date Jurisdiction State Cite Checked
2016-02-23 Federal TX B 7/16
Comment:

key case


Chapter: 14.302

Case Name: Segway, Inc. v. Special Olympics Connecticut, Inc., CV116022089S, 2015 Conn. Super. LEXIS 2711 (Conn. Super. Ct. Oct. 29, 2015)
(holding that even the attorney-client privilege nor the work product doctrine protected a post-accident investigation involving a Segway; "In the present case, the plaintiff has failed to sustain its burden that all of Lamonde's investigation of the incident that occurred on and after September 16, 2009, is subject to the attorney/client privilege. Plaintiff's counsel argues that the gathering of information regarding the subject accident by Lamonde is within the attorney/client privilege simply because she was employed by the plaintiff's legal department at the time and supervised by legal counsel. The gathering of information in this capacity does not automatically subject that information to the attorney/client privilege. . . . Lamonde is not an attorney and she cannot give legal advice. . . . Counsel for the plaintiff has not persuaded this court by any evidence or an affidavit, that Lamonde's investigation of the accident right after the accident occurred was for the purpose of providing legal advice or for providing such information in connection with legal advice to be given to the corporate client.")

Case Date Jurisdiction State Cite Checked
2015-10-29 Federal CT
Comment:

key case


Chapter: 14.302

Case Name: Wartell v. Purdue University, Case No. 1:13-cv-00099RLM-APR, 2014 U.S. Dist. LEXIS 100855 (N.D. Ind. July 24, 2014)
(analyzing privilege for an investigation conducted by a lawyer acting as an "independent investigator" with the approval of a professor and the university; "The attorney-client privilege is not applicable solely because Trimble was an attorney. Rather, the court must examine his role to determine whether he was providing legal advice or acting as an independent investigator. . . . Tasks such as interviewing, inspecting, and engaging in conversations prior to the imminent prospect of litigation generally remove the attorneys activities from the purview of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-07-24 Federal IN

Chapter: 14.302

Case Name: Wartell v. Purdue University, Case No. 1:13-cv-00099RLM-APR, 2014 U.S. Dist. LEXIS 100855 (N.D. Ind. July 24, 2014)
(analyzing privilege for an investigation conducted by a lawyer acting as an "independent investigator" with the approval of a professor and the university; "[I]t is apparent that Trimble acted in the role of an independent investigator rather than as an attorney. Generally, Purdue selected an employee to conduct investigations. Trimble filled this role and performed the functions that the non-attorney employee generally would have completed. He interviewed employees and prepared a report for the trustee panel with his recommendations. At this time, Wartell had not filed a lawsuit, and there is no evidence that the present lawsuit was imminent. In fact, if Purdue would have decided in Wartell's favor upon receipt of the report, the lawsuit likely would have been avoided. Moreover, Wartell and Cordova had agreed that the investigation would be conducted by an 'independent investigator.' The term 'independent' suggests that the investigator would not be working on behalf of either party, but rather would be neutral. Trimble also understood that he 'owed it to everyone involved to do a thorough, competent, and fair investigation.'")

Case Date Jurisdiction State Cite Checked
2014-07-24 Federal IN

Chapter: 14.302

Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *15-16 (D. Ore. June 20, 2014)
(analyzing a situation in which plaintiff was interviewed by a bank's in house lawyer when her superior sued the bank, after which the bank fired her for helping the superior; holding that the plaintiff owned any privilege protection that covered her interview; "The Bank moves to quash plaintiff's subpoena of Jill Goldsmith (seeking the production of her entire report) on the asserted basis that Rick Smith, a Bank board member, hired Goldsmith, an attorney, to conduct an independent investigation into workplace complaints made by then employee Janice Becker and did so with an understanding that an attorney-client relationship was created. . . . The Bank, however, fails to sustain its burden of establishing that Goldsmith was hired in her capacity as an attorney for purposes of giving legal advice to the Bank. To the contrary, the evidence conclusively demonstrates that Goldsmith was hired as a fact-finder, not in her capacity as an attorney.")

Case Date Jurisdiction State Cite Checked
2014-06-20 Federal OR

Chapter: 14.302

Case Name: Keith v. Clatskanie People's Util. Dist., Case No. 3:13-cv-01332-ST, 2014 U.S. Dist. LEXIS 83304, at *9 (D. Ore. June 18, 2014)
(holding that a lawyer conducting an investigation was acting in a legal capacity not just a fact-finding capacity; "[T]he Ninth Circuit and other circuits hold that the attorney-client privilege includes a factual investigation by an attorney in connection with the provision of legal services to a client.")

Case Date Jurisdiction State Cite Checked
2014-06-18 Federal OR

Chapter: 14.302

Case Name: Hawker v. Bancinsurance, Inc., Case No. 1:12-cv-01261-SAB, 2013 U.S. Dist. LEXIS 180831, at *14 (E.D. Cal. Dec. 27, 2013)
("[T]o the extent that, in providing his legal opinion on the issue of coverage, Mr. Donahue [defendant's lawyer] engaged in factual investigations[,] the attorney-client privilege is not destroyed. While the privilege is not applicable if the attorney is retained for a purpose other than offering legal advice, that the attorney was required to engage in some fact finding in order to render a legal opinion does not destroy the privilege.")

Case Date Jurisdiction State Cite Checked
2013-12-27 Federal CA B 5/14

Chapter: 14.302

Case Name: FDIC v. Fid. & Deposit Co., No. 3:11-cv-00019-RLY-WGH, 2013 U.S. Dist. LEXIS 167833, at *10 (S.D. Ind. Nov. 26, 2013)
(finding that an insurance company could not depose a lawyer who had represented a bank for which the FDIC was acting as receiver; noting that the lawyer had represented the bank in several matters, but no longer represented the bank after it was taken over by the FDIC; "The court finds that Mr. Rifken's [lawyer] investigation is protected by the attorney-client privilege and work product privilege. . . . [T]he court finds that the attorney-client privilege applies to his conduct as an investigator.")

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal IN B 5/14

Chapter: 14.302

Case Name: Nat'l Union Fire v. TransCanada Energy USA, Inc., Index No. 650515/10, 2013 N.Y. Slip Op. 31967(U), at 7 (N.Y. Sup. Ct. Aug. 15, 2013)
("Similarly, documents prepared in the ordinary course of business are not privileged, even if drafted by an attorney. Rather, for the privilege to attach, the communication must be made primarily for the purpose of furnishing legal advice, although the privilege does not disappear merely because the communication includes non-legal matters. . . . Insurance companies investigate claims and decide whether to accept or deny coverage as part of their regular business activities, and consequently, courts have consistently held that the use of attorneys to perform such work does not cloak the documents in privilege.")

Case Date Jurisdiction State Cite Checked
2013-08-15 State NY B 7/14

Chapter: 14.302

Case Name: In re Behr Dayton Thermal Prods., LLC, Case No. 3:08-cv-326, 2013 U.S. Dist. LEXIS 81069, at *14 (S.D. Ohio June 10, 2013)
(holding that a litigant claiming work product protection had to specify the exact date on which it first anticipated litigation; rejecting defendant Aramark's claim that it anticipated litigation when plaintiff filed its complaint, because Aramark denied the allegations; "The privilege applies to factual investigations conducted by counsel at a corporate client's request (to provide legal advice to that client), and also to agents of an attorney who are assisting in rendering legal advice to the client.")

Case Date Jurisdiction State Cite Checked
2013-06-10 Federal OH B 4/14

Chapter: 14.302

Case Name: Farzan v. Wells Fargo Bank, No. 12 Civ. 1217 (RJS) (JLC), 2012 U.S. Dist. LEXIS 183623, at *4 (S.D.N.Y. Dec. 28, 2012)
(holding that communications to and from a bank's EEO consultant working under the supervision of the law department deserved privilege protection, because the consultant was working as the lawyer's agent; "[I]t is well-settled that '[f]actual investigations conducted by an agent of the attorney, such as 'gathering statements from employees, clearly fall within the attorney-client rubric.'"; "Although Defendant Bernard [EEO consultant working under supervision of defendant's legal department] is not an attorney, it is undisputed that she conducted the internal investigation on behalf of Wells Fargo's in-house counsel for the purpose of representing Wells Fargo in its proceedings before the EEOC. Thus, her conversations with Wells Fargo employees are plainly protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2012-12-28 Federal NY B 5/13

Chapter: 14.302

Case Name: 7 Mile & Keystone, LLC v. Travelers Cas. Ins. Co. of Am., Case No. 11-12930, 2012 U.S. Dist. LEXIS 177276, at *10, *10-11 (E.D. Mich. Dec. 14, 2012)
(analyzing a first party insurance situation in which the insurance company concluded that insured had engaged in arson; "Here, as stated above, the communications are not the routine kind of legal advice a lawyer provides to a client. Rather, unlike Leibel [Leibel v. Gen. Motors Corp., 646 N.W.2d 179 (Mich. Ct. App. 2002)], defendant's lawyer was acting as an investigator, not as a lawyer. The advice given by defendant's lawyer was that routinely provided by a claims investigator. The lawyer-client privilege, therefore, does not apply."; "In addition, the emails here were not made in anticipation of litigation, and, therefore are not protected by the work-product doctrine. The emails were part of a normal investigation to decide whether to approve an insurance claim. This is an ordinary business purpose. Thus, the emails were made in anticipation of making a claim decision as opposed to preparation for litigation.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal MI B 0/13

Chapter: 14.302

Case Name: 7 Mile & Keystone, LLC v. Travelers Cas. Ins. Co. of Am., Case No. 11-12930, 2012 U.S. Dist. LEXIS 177276, at *8-9 (E.D. Mich. Dec. 14, 2012)
(analyzing a first party insurance situation in which the insurance company concluded that insured had engaged in arson; "The unredacted emails between defendant's lawyer and defendant's investigators prior to the denial of plaintiff's claim are not privileged. These emails reveal that defendant's lawyer was acting in the capacity of an investigator, and not a lawyer. Defendant's lawyer clarifies in some of these emails that the information relayed is in furtherance of the investigation. Defendant cannot simply delegate investigative work to a lawyer and claim it is protected by the lawyer-client privilege or work-product doctrine. Accordingly, the pre-denial emails must be disclosed to plaintiff.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal MI B 9/13

Chapter: 14.302

Case Name: Schlicksup v. Caterpillar, Inc., No. 09 CV 1208, 2011 U.S. Dist. LEXIS 75299, at *5, *9 (C.D. Ill. July 13, 2011)
(analyzing an internal corporate investigation; finding that both the attorney client privilege and the work product doctrine applied to documents created during an investigation by Howrey into possible illegal activity and retaliation, harassment and other "improper and illegal conduct by Caterpillar employees"; "Even if Howrey's investigation could have been conducted by in house counsel, that does not, by itself render unavailable the protections of the attorney client privilege. . . . The focus is on the purpose and confidentiality of the communications, not on whether the attorney was in house or out. Here, the purpose of the communications was to obtain legal advice.")

Case Date Jurisdiction State Cite Checked
2011-07-13 Federal IL B 1/13

Chapter: 14.302

Case Name: Zimmerman v. Poly Prep Country Day Sch., 09 CV 4586 (FB), 2011 U.S. Dist. LEXIS 40704 (E.D.N.Y. April 13, 2011)
(analyzing privilege protection and an investigation into alleged sexual abuse at a college preparatory school; addressing plaintiffs' spoliation claim based on the destruction of documents related to an investigation – and therefore necessarily addressing possible privilege protection for the documents that had been destroyed; finding that a lawyer had acted as an investigator and not as a legal advisory during the investigation, which meant that privilege did not apply to his documents; "In 2002, after receiving Paggioli's settlement demand, Poly Prep consulted with their outside counsel Menaker & Herrmann LLP, and also hired Peter T. Sheridan, Esq., a sole practitioner, to conduct what they claim was a privileged and confidential investigation regarding Foglietta's alleged conduct, to be performed 'in collaboration with Poly Prep's counsel, Menaker & Herrmann LLP.'. . . Sheridan interviewed faculty and staff, including: Williams, Parker, Ruck, Andersen, Petchesky, Ralph Dupree, a former faculty member and coach, and Joan Wright, a former Dean and Assistant Head of School. . . . Sheridan claims to have determined during his investigation that there was no firsthand or secondhand knowledge of alleged sexual abuse at Poly Prep, other than the accusations made by Hiltbrand and Paggioli. . . . However, Sheridan's notes from his investigation have since been destroyed, resulting in the current motion for spoliation sanctions."; "Sheridan admits that he asked benign questions of each interviewee, 'about his or her background and role(s) at the school, and the nature, extent, and duration of his or her relationship with Mr. Foglietta.' . . . The purpose of Sheridan's retention by Poly Prep was to investigate and learn 'the extent, if any, to which members of the school's faculty or administration knew of sexual misconduct or sexual abuse by Mr. Foglietta,' not to advise Poly Prep on how to proceed. . . . Indeed, although Sheridan was engaged in September 2002 to conduct the investigation, a month later, in October 2002, Poly Prep engaged Greenberg Traurig to advise the school regarding its response to the allegations. . . . Plaintiffs' counsel also notes that 'according to th[e] documentation, [Sheridan] did not tell any of the people he interviewed that he was an attorney. He did not tell them that he was there for the purpose of trying to defend Poly Prep in a potential litigation. He did not tell them anything of that nature. So, the attorney-client privilege, burden, the initial threshold burden is not met.'"; finding in contrast that work product doctrine probably applied to the documents; but not really finding spoliation)

Case Date Jurisdiction State Cite Checked
2011-04-13 Federal NY
Comment:

key case


Chapter: 14.302

Case Name: Sandra T.E. v. S. Berwyn Sch. Dist. 100, No. 08-3344, 2009 U.S. App. LEXIS 28983 (7th Cir. App. Feb. 25, 2009)
(reversing the lower court's denial of privilege protection, and holding that Sidley Austin lawyers were hired as legal advisors to conduct an investigation into possible sexual abuse at the school – so their investigation-related documents deserved privilege and work product protection; "[T]he School Board retained the law firm of Sidley Austin LLP (then Sidley Austin Brown & Wood LLP) to conduct an internal investigation. The School Board wanted Sidley to review the criminal charges filed against Sperlik, investigate the actions of school administrators in response to the allegations of sexual abuse, examine whether any district employees had failed to comply with district policies or federal or state law, and analyze the effectiveness the effectiveness of the District's existing compliance procedures. According to the February 4, 2005 engagement letter between Sidley and the School Board, Sidley was to 'investigate the response of the school administration to allegations of sexual abuse of students' and to 'provide legal services in connection with' the investigation. Scott Lassar, a partner at Sidley and a former U.S. Attorney for the Northern District of Illinois, spearheaded the investigation."; "On the same day the engagement letter was issued, the School Board president and superintendent of schools sent a joint letter to parents announcing the District's retention of Lassar to conduct the investigation. Ten days later the superintendent sent another more detailed letter to parents explaining that the investigation had begun and would be completed as soon as possible. As the investigation proceeded, attorneys from Sidley interviewed many school-district employees, including current and former principles, social workers, administrative employees, and members of the School Board. Sidley also interviewed a handful of third parties who had never been employed by the School District. None of the interviews were recorded. Instead, the attorneys took notes of the witnesses' answers and later prepared written memoranda memorializing the interviews for future use in Sidley's legal advice to the Board. These notes and memoranda are the subject of the present discovery dispute."; "Lassar and a Sidley colleague delivered an oral report of the firm's findings at a closed executive session of the Board in April 2005, and later that month delivered a written 'Executive Summary' – marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product' – to the Board. This concluded Sidley's engagement; other lawyers have represented the defendants throughout this litigation."; "[T]he judge all but ignored the engagement letter, which should have been the most important piece of evidence. The engagement letter between Sidley and the School Board explained that Sidley had been hired to 'investigate the response of school administration to allegations of sexual abuse of students' and 'provide legal services in connection with the specific representation.' There is no indication that the judge actually considered the engagement letter when it was brought to the court's attention in these later proceedings; rather, the judge simply reiterated his earlier rulings that Sidley had been hired as an investigator and the privilege therefore did not apply."; "This oversight was a mistake; the engagement letter brings this case squarely within the Supreme Court's decision in Upjohn."; "Following Upjohn, other circuits have concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."; "The same is true here. The engagement letter spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response to Sperlik's sexual abuse of his students. Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond. . . . the conduct of Sidley attorneys during the investigation confirms that they were acting in their capacity as attorneys. During the confidential interviews with school-district employees, the attorneys provided so-called 'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged. No third parties attended the interviews, the School Board received Lassar's report of the firm's findings during an executive session not open to the public, and the written executive summary that Sidley turned over to the Board was marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product.' If more were needed, affidavits submitted into the record by Lassar, his Sidley colleagues, and the School Board president emphasized that Sidley had been hired to provide legal advice in the context of the facts it uncovered during the internal investigation. Because the Sidley lawyers were hired in their capacity as lawyers to provide legal services – including a factual investigation – the attorney-client privilege applies to the communications made and documents generated during that investigation." (emphases added))

Case Date Jurisdiction State Cite Checked
2009-02-25 Federal
Comment:

key case


Chapter: 14.302

Case Name: SEC v. Brady, 238 F.R.D. 429, 2006 U.S. Dist. LEXIS 74979, Civ. A. No. 3:05-CV-1416-M, 67 Fed. R. Serv. 3d (Callaghan) 26 (N.D. Tex. Oct. 16, 2006)
(analyzing attorney-client privilege and work product issues in an action by the SEC against a former corporate officer, who sought discovery of his former company's investigation into improper accounting and revenue recognition; explaining that the company's Audit Committee hired the law firm of Baker Botts to conduct an internal investigation with the assistance of KPMG, after which Baker Botts met with the company's new auditor Deloitte; holding that Baker Bott's investigation deserved privilege protection; "Brady [former director unsuccessfully seeking discovery] alleges that the Phase I Report was prepared in the context of rendering business advice, rather than legal advice."; "In asserting the privilege, i2 [former employer] and Baker Botts claim that i2 hired Baker Botts to deliver legal advice regarding the former officers' allegations of accounting improprieties and threats of litigation. They rely on Diversified Indus., Inc. v. Meredith, which quotes Wigmore on Evidence and states that '[i]t is not easy to frame a definite test for distinguishing legal from nonlegal advice. . . . [T]he most that can be said by way of generalization is that a matter committed to a professional legal adviser is prima facie so committed for the sake of the legal advice which may be more or less desirable for some aspect of the matter, and is therefore within the privilege unless it clearly appears to be lacking in aspects requiring legal advice.' 572 F.2d 596, 610 (8th Cir. 1977) (quoting 8 Wigmore, Evidence §2296 (McNaughton rev. 1961)). Additionally, i2 and Baker Botts contend that even though the Phase I Report includes some business considerations, the primary source of the Report was to provide legal advice."; "An in camera review of the Phase I Report revealed that it is laced with underlying facts, legal opinions, and business advice. Additionally, the fact that the Report was the result of many i2 officer and director interviews with Baker Botts leads the court to conclude that the interviews were confidential communications between the corporate client and its counsel. The court also finds that the presentation of the Phase I Report from Baker Botts to the i2 Audit Committee was, in essence, a written communication and the equivalent of a confidential communication between an attorney and his client.")

Case Date Jurisdiction State Cite Checked
2006-10-16 Federal TX
Comment:

key case


Chapter: 14.302

Case Name: In re Allen, 106 F.3d 582, 602 (4th Cir. 1997)
("Of course, not all communications between an attorney and client during attorney-conducted investigations constitute legal work entitled to attorney-client privilege. For example, no privilege attaches when an attorney performs investigative work in the capacity of an insurance claims adjuster, rather than as a lawyer."), cert. denied, 522 U.S. 1047 (1998)

Case Date Jurisdiction State Cite Checked
1997-01-01 Federal

Chapter: 14.302

Case Name: In re Allen, 106 F.3d 582, 602-03 (4th Cir. 1997)
(recognizing "the great body of law holding that confidential communications made to attorneys 'hired to investigate through the trained eyes of an attorney' are privileged" (citing In re Int'l Sys. & Controls Corp. Sec. Litig., 91 F.R.D. 552, 557 (S.D. Tex. 1981), vacated on other grounds, 693 F.2d 1235 (5th Cir. 1982)); rejecting the lower court's conclusion that "the attorney-client privilege does not apply . . . simply because [the lawyer's] assigned duties were investigative in nature"), cert. denied, 522 U.S. 1047 (1998)

Case Date Jurisdiction State Cite Checked
1997-01-01 Federal

Chapter: 14.303

Case Name: United States of Am. for the Use of Donald B. Murphy Contractors v. Travelers Casualty and Surety Co. of Am., 8:15CV48, 2017 U.S. Dist. LEXIS 115874 (D. Neb. July 25, 2017)
(holding that plaintiff's in-house lawyer acted in a legal capacity, not just a risk management capacity; also noting that he acted as a testifying expert, and therefore was required to disclose documents under that rule; "The Court previously ordered DBM to submit the documents at issue to the Court for in camera review. The Court has carefully reviewed the documents and concludes that they are, in most instances, attorney-client privileged communications. Generally speaking, the documents deal with legal issues that arose during the construction project. The documents reveal that Stylos was acting in his capacity as DBM's attorney--not risk manager--at the time of the communications, and was included in the correspondence for the purpose of securing and facilitating legal advice."; "Additionally, the email communications in which Stylos was only copied pertain to legal advice and, under the circumstances here, remain privileged.")

Case Date Jurisdiction State Cite Checked
2017-07-25 Federal NE

Chapter: 14.303

Case Name: United States v. Sanmina Corp., Case No.: 5-15-cv-00092-PSG, 2015 U.S. Dist. LEXIS 66123 (N.D. Cal. May 20, 2015)
(rejecting the IRS's discovery of two documents mentioned in a report that DLA Piper sent to the IRS on behalf of its client; "Sanmina sufficiently shows the memoranda constituted tax advice from lawyers to Sanmina -- not merely preparation of tax returns or number crunching -- such that the attorney client privilege attaches. The attorney client privilege protects communications between a client and its attorney related to the purpose of securing legal advice, as well as legal advice provided by the attorney that would reveal the content of the confidential communications. The privilege applies equally to communications from the client to its attorney and from the attorney to its client. It also applies in proceedings to enforce IRS summonses, and specifically to legal advice relating to a tax claim. Sanmina has shown that both memos contain legal analysis, were prepared by Sanmina's tax department lawyers, and were provided confidentially to company personnel who had a need for legal advice.")

Case Date Jurisdiction State Cite Checked
2015-05-20 Federal CA

Chapter: 14.303

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; "But when an attorney acts in other capacities, such as a conduit for a client's funds, as a scrivener, or as a business advisor, the privilege does not apply. . . . In one case, this court held that when an attorney prepared a client's income tax returns, the attorney's function was that of 'a scrivener,' and no attorney-client relationship was established.")

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

Chapter: 14.304

Case Name: Mondis Technology Ltd. v. LG Electronics, Inc., Civ. A. No. 15-CV-4431 (SRC) (CLW), 2017 U.S. Dist. LEXIS 151418 (D.N.J. Sept. 19, 2017)
("Patent prosecutions present a different set of difficulties regarding the application of attorney-client privilege because of the technical nature of much of the communications and each decision is considered on a case-by-case basis. . . . Attorney-client privilege applies to documents if the overall purpose of the documents indicates that it is a request of legal advice or services.")

Case Date Jurisdiction State Cite Checked
2017-09-19 Federal NJ

Chapter: 14.304

Case Name: Medline Indus., Inc. v. C.R. Bard, Inc., No. 14 CV 3618, 2016 U.S. Dist. LEXIS 9767, at *8-9, *11-12, *12 (N.D. Ill. Jan. 26, 2016)
(holding that the privilege protected an employee inventor's draft affidavit even though the final version was filed; also holding that a non-employee's draft affidavit was not protected by the privilege despite that person's claim that the lawyer also represented him; "In Spalding [In re Spalding Sports Worldwide, Inc., 203 F.3d 800 (Fed. Cir. 2000)], the Federal Circuit found that 'invention records' -- documents including information such as the names of inventors, descriptions of the invention, closest prior art, and dates of publication -- constitute privileged communications as long as they are provided to an attorney for purposes of securing legal services or assisting in a legal proceeding."; "[P]rivilege analysis in the context of patent suits no longer turns on whether a document is technical in nature or whether it was submitted, in its final form, to the USPTO. . . . Rather, privilege depends on whether 'the overall tenor of the document indicates that it is a request for legal advice or services.'" (citation omitted); "Based on the descriptions in Medline's privilege log and this court's in camera review, the court finds that drafts of the Tomes declarations are privileged. Medline asserts that Tomes, an inventor of record and a Medline employee at the time the documents were created, worked closely with Burrus [lawyer] to write the drafts for ultimate submission to the USPTO. . . . And the draft documents appear to reflect 'communications involved in the strategizing process' during which the attorney 'attempts to shape the [patent] application for presentation to the patent office.'. . . In crafting the final declarations, Burrus and Tomes likely had to make judgment calls, both technical and legal, to persuade the USPTO to issue the patent.")

Case Date Jurisdiction State Cite Checked
2016-01-26 Federal IL B 7/16

Chapter: 14.362

Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson about an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "As to plaintiff's contention that the notes are not privileged because defense counsel functioned as an investigator and provided business (rather than legal) advice . . . that claim is not borne out of what is before the Court. Plaintiff argues that documents produced by Kleinfeld during discovery 'directly implicate[] Littler in the 'investigation,' and that deposition testimony from Kleinfeld's employees 'unequivocally place[s] Littler in the center of the so-called 'investigation.'. . . However, the documents submitted by plaintiff do not implicate defense counsel in an investigation. Rather, the documents, which are not titled but seem to be summaries of conversations Kleinfeld management had with Martinez and another employee, refer to the party carrying out the investigation with the pronoun 'we,' and refer to defense counsel as 'the labor attorneys' or 'the attorneys.'")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY
Comment:

key case


Chapter: 14.403

Case Name: McNamee v. Clemens, 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 162063 (E.D.N.Y. Nov. 19, 2014)
("Another document, Document Clemhen000366, is also described as a confidential e-mail among Andy Pettite's lawyers and Hendricks regarding a proposed statement made by Andy Pettite to the press. . . . Such statements were prepared in anticipation of a publicly issued statement, and not in anticipation of any pending litigation or with the desire to seek legal advice. Judge Pollak found that the documents from the previous production were primarily public relations communications, and were not provisions of legal advice . . . . The Court finds the same is true of the Davis Polk Documents. All documents claimed privilege within the Davis Polk Documents pertain primarily to public relation strategies and are thus not afforded rights under the attorney-client privilege.")

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

Chapter: 14.403

Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162330, at *15 (D. Conn. Nov. 14, 2013)
("[T]hese documents generally do not provide analysis or interpretation of legislation, and are more in the nature of general lobbying updates, progress reports, and summaries of legislative meetings. . . . To the extent the communications reflect conversations with public officials and offer no analysis, these are likewise unprotected. Accordingly, the Court finds that the following documents cannot validly claim attorney-client privilege or work-product protection.")

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

Chapter: 14.404

Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)
(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "The emails with Bates Nos. 0169, 0170, 1262, 1267-69, 1270-73, 1278-82, 1283-90, and 1297-99 are described in Memphis Zoo's privilege log as protected by the attorney-client privilege because they contain communications with Maria Leggett, a member of Memphis Zoo's Board of Directors, who is also Assistant General Counsel for AutoZone. . . . Dr. Terrell argues that these emails are not privileged because there is no indication that Memphis Zoo was Leggett's client and, even if it was, when participating in these emails she was acting in a business capacity, not a legal capacity. Memphis Zoo argues that Leggett played multiple roles when dealing with this matter, but her primary role was that of legal advisor."; "Memphis Zoo proposes that, because Leggett's role on the Board of Directors was to provide 'legal advice and legal guidance to the other members of the board,' she should be treated as Memphis Zoo's attorney. . . . However, providing legal advice, by itself, does not make the communication privileged -- there must also be an attorney client relationship -- and Memphis Zoo has not demonstrated the existence of the required relationship. Therefore, the court finds that communications between Leggett and Memphis Zoo are not privileged.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal TN
Comment:

key case


Chapter: 14.404

Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
(overruling a Magistrate Judge, and quashing plaintiff's motion to compel production of documents related to a teacher's employment discrimination claim against a school board; "As part of his duties, he may have attempted to facilitate a resolution with Colley on behalf of the School Board, but Mullins [School Board lawyer] was clearly providing legal services to the School Board regarding the claim, and not acting purely as a non-attorney negotiator.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 14.404

Case Name: Wendt v. City of Denison, No. 16-CV-4130-LTS; No. 16-CV-4131-LTS, 2018 U.S. Dist. LEXIS 52550 (N.D. Iowa March 29, 2018)
(holding that City witnesses did not waive the City's attorney-client privilege by testifying that he consulted with the City's lawyer; concluding that the City's lawyer was not a decision-maker in connection with the plaintiff's firing; "[T]he Court finds that based on the record provided to the Court, City Attorney Franck was not the decision-maker and he consulted and obtained legal advice from the City Attorney. The City Attorney may have told the Mayor whether he had the authority to act and when the Mayor could or should legally allow an employee to return from leave, but there is nothing in the record to indicate that the City Attorney made the alleged adverse employment decisions. The portions of the transcript upon which plaintiffs rely are replete with speculation that the City Attorney was involved in making the decision, but not with fact.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal IA
Comment:

key case


Chapter: 14.404

Case Name: Erickson v. Hocking Technical College, Case No. 2:17-cv-360, 2018 U.S. Dist. LEXIS 50075 (S.D. Ohio Mar. 27, 2018)
May 30, 2018 (PRIVILEGE POINT)

"Federal Court Applies Privilege Axioms That Many Clients Misunderstand"

Some clients who have not been adequately advised by their lawyers think that writing "privileged" on a document makes it so, or that copying a lawyer will assure privilege protection. These and other similar misunderstandings can doom protection for damaging documents whose authors have jumped to conclusions, needlessly self-criticized or engaged in harmful hyperbole – because they erroneously thought the privilege would protect those documents' from adversaries' access.

In Erickson v. Hocking Technical College, Case No. 2:17-cv-360, 2018 U.S. Dist. LEXIS 50075 (S.D. Ohio Mar. 27, 2018), plaintiff sought to depose a lawyer who had acted as defendant's General Counsel, HR Director and Risk Management Vice President. Among other things, defendant claimed that the privilege protected communications during meetings that the lawyer attended. The court rejected defendant's privilege claim, noting that the privilege did not protect the communications simply because the lawyer "subjectively believed that she was at the meeting in her capacity as counsel to gather information." Id. at *7. The court bluntly concluded that "the record contains no evidence reflecting that [the lawyer] was asked to attend in her capacity as a legal advisor rather than in her [other capacities]" (id. at *9); or that she provided or "was asked to provide legal advice" at the key meeting. Id. at *10. The court also held that a meeting participant's "Attorney-Client Privileged Information" label on an email "drafted three days after the at-issue meeting . . . does not operate to retroactively render the earlier, otherwise-unprivileged discussions subject to the attorney-client privilege." Id. at *6, *8.

As with other widely held but erroneous misconceptions, lawyers should advise their clients that asking a lawyer to participate in meetings does not assure privilege protection. If such lawyers provide legal advice, all the related documents should clearly reflect that – in their substantive content, not merely with a header or label.

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OH
Comment:

key case


Chapter: 14.404

Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("Turning to attorney-client privilege, the Court notes that all of these documents contain communications from in-house counsel. Nevertheless, Attorney Moeller does not provide legal advice of any kind -- she simply transmits markups to company employees. As previously discussed, in-house counsel's communications regarding the negotiation of a contract generally constitute business advice, rather than legal advice. . . . Accordingly, Documents 4039, 4139, 4146, and 4193 are not privileged and must be produced.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY

Chapter: 14.404

Case Name: In re Residential Capital, LLC v. Certain Underwriters at Lloyd's of London, Ch. 11, Case No. 12-12020 (MG), Jointly Administered, Adv. No. 15-01025 (SHL), 2017 Bankr. LEXIS 1951 (S.D.N.Y. July 14, 2017)
("Under New York law, an insurance company's claim handling activities are generally subject to discovery even if they were performed by an attorney.")

Case Date Jurisdiction State Cite Checked
2017-07-14 Federal NY

Chapter: 14.404

Case Name: In re Residential Capital, LLC v. Certain Underwriters at Lloyd's of London, Ch. 11, Case No. 12-12020 (MG), Jointly Administered, Adv. No. 15-01025 (SHL), 2017 Bankr. LEXIS 1951 (S.D.N.Y. July 14, 2017)
("As the Court had previously suggested, the record here reflects that Sedgwick wore two hats: that of claims handler and legal counsel."; "Sedgwick's role as counsel is also supported by other contemporaneous evidence and sworn statements. For example, there was a specific request for legal advice.")

Case Date Jurisdiction State Cite Checked
2017-07-14 Federal NY

Chapter: 14.404

Case Name: United States v. BAE Systems Tactical Vehicle Systems, LP, Case No. 15-12225, 2017 U.S. Dist. LEXIS 62301 (E.D. Mich. April 25, 2017)
("Consistent with that principle, many courts have decided that the privilege does not apply when lawyers either act as fact-finders or provide information without the purpose of providing legal advice.")

Case Date Jurisdiction State Cite Checked
2017-04-25 Federal MI

Chapter: 14.404

Case Name: United States v. BAE Systems Tactical Vehicle Systems, LP, Case No. 15-12225, 2017 U.S. Dist. LEXIS 62301 (E.D. Mich. April 25, 2017)
("Because the Government has not established that KFLD [Contract & Fiscal Law Division] was acting in its capacity as legal adviser when it supplied the facts that formed the basis of Ms. Jones' decision, the attorney-client privilege does not protect the discovery sought by BAE.")

Case Date Jurisdiction State Cite Checked
2017-04-25 Federal MI

Chapter: 14.404

Case Name: Price v. Jarett, 8:15CV200, 2017 U.S. Dist. LEXIS 61066 (D. Neb. Apr. 21, 2017)
(allowing the deposition of a Union Pacific in-house lawyer who sat on a panel that addressed possible employee terminations; noting that the panel required unanimity, so that the lawyer might have been playing a business role; "From the emails produced by Union Pacific, it appears that Union Pacific does, in fact, have a 'panel,' consisting of individuals who have to approve employee termination requests. At least in Plaintiff's case, the approval process was seemingly accomplished through a series of emails, each with the subject line: 'Your Legal Assistance Request.' Seven of the eight emails produced only deal with the panel's termination approval process and do not appear to directly relate to the rendition of legal advice. Therefore, these documents must be provided to Plaintiff. However, the email dated March 27, 2014 from Winkler to Hughes is clearly related to the solicitation of legal advice, and is protected by the attorney-client privilege."; "The problem in this case is that it remains entirely unclear whether Hughes was acting entirely in a legal capacity while serving on the review panel. Frankly, the documents produced by Union Pacific for in camera review shed very little light on this issue. It is possible that a portion of the information held by Hughes could be subject to the attorney-client privilege. It is also possible that the information obtained from Hughes would be cumulative or could be obtained from other sources. However, Winkler's testimony regarding the need for unanimous consent for termination indicates that Winker may have some, non-cumulative, non-privileged factual information relevant to the case."; ". . . a number of courts have found that Shelton does not apply where the lawyer to be deposed acts as a business advisor to the party, rather than its counsel. . . . based on the limited information before it, the Court is unable to conclude that Hughes was acting solely in a legal capacity in connection with Plaintiff's termination. Given the uncertainty surrounding the 'hat' Hughes was wearing while serving on the panel, the Court finds that an order entirely precluding Hughes's deposition is not warranted in this case.")

Case Date Jurisdiction State Cite Checked
2017-04-21 Federal NE
Comment:

key case


Chapter: 14.404

Case Name: Price v. Jarett, No. 8:15CV200, 2017 U.S. Dist. LEXIS 61066 (D. Neb. Apr. 21, 2017)
June 28, 2017 (PRIVILEGE POINT)

"In-House Lawyers Should Avoid Being Employment Decision-Makers"

In-house lawyers obviously can play an important role when their corporate clients decide whether to terminate employees. But they should avoid being the ultimate decision-makers, or playing a business role in any termination decisions.

In Price v. Jarett, No. 8:15CV200, 2017 U.S. Dist. LEXIS 61066 (D. Neb. Apr. 21, 2017), terminated employee plaintiff sought to depose a Union Pacific in-house lawyer. The lawyer had served on a panel that another witness testified "would have to come to a 'unanimous consensus to move forward on [a] termination.'" Id. at *2 (alteration in original) (internal citation omitted). Union Pacific claimed that the panel did not meet as a group to decide on terminations, and that the lawyer's "role in evaluating Plaintiff's termination was solely to review whether there were legal implications of concern for Union Pacific." Id. But the court allowed the deposition to proceed, noting that the testimony "regarding the need for unanimous consent for termination indicates that [the lawyer] may have some[] non-cumulative, non-privileged factual information relevant to the case." Id. at *6.

In-house lawyers should assure that their clients do not face a similar circumstance – in which there is (as the Price court put it) "uncertainty surrounding the 'hat' [they are] wearing while serving" on such panels or in some other way involved in termination decisions. Id. at *7.

Case Date Jurisdiction State Cite Checked
2017-04-21 Federal NE
Comment:

key case


Chapter: 14.404

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)
("[T]he mere fact of communication with someone who was doing claims adjustment work does not mean that Carroll was doing claims adjusting work. Instead, the relevant entries on the privilege log for the purposes of the present motion demonstrate that most of the communications between Carroll and Morgan involved strategic discussions, and providing legal advice or documents requested by counsel. . . . Therefore, the Court is not convinced that there is any evidence in the record indicating that Carroll performed pure claims adjusting work for Fluidmaster."; "Even where there are facts suggesting that an attorney performed some claims adjusting functions -- which the Court is not saying is the case here--courts have accepted a party's representations accompanied by declarations from a claims adjuster and the attorney as sufficient to establish the dominant purpose of the relationship. . . . On the current record in this case, the Court finds that the dominant purpose of Carroll's relationship with Fluidmaster was attorney-client.")

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

Chapter: 14.404

Case Name: U.S. Bank National Association v. PHL Variable Insurance Company, Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670 (D. Minn. March 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; including after an in camera review the risk assessment involved business rather than legal concern; "PHL has not convinced the Court that they retained Bracewell & Guiliani primarily for the purpose of obtaining legal advice. Rather, the majority of the Report suggests improvements to PHL's business practices aimed at resolving what the first page of the Report refers to as the 'clear economic risk' presented by STOLI policies. Thus, to the extent that there is a presumption that communications between an attorney and client are in pursuit to legal advice, U.S. Bank has shown evidence rebutting that presumption. Accordingly, the Court will not find the Report as a whole protected by attorney-client privilege."; "For example, a November 7, 2007, email states that PHL retained 'an outside firm 'Bracewell and Giuliani' to review our current procedures and provide recommendations to us on how to improve the detection and prevention of life insurance sales intended to be investor owned. They have provided this type of service to others serious about ensuring the quality of business and bring to [PHL] expertise in this field.'. . . Another email referred to the firm's activities with PHL as 'consulting.' (Id., Ex. P) A presentation given at a risk management meeting stated, 'Bracewell and Guiliani recommendations -- majority implemented from business plan.' Finally, another presentation stated that PHL '[e]ngaged Bracewell & Guiliani law firm to assess and recommend STOLI prevention tactics.'. . .")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN
Comment:

key case


Chapter: 14.404

Case Name: Slaven v. Great American Ins. Co., No. 13 C 1370, 2015 U.S. Dist. LEXIS 33591 (N.D. Ill. March 18, 2015)
("But, also in Illinois, as in many other states, 'to the extent that an attorney acts as a claims adjuster, claims process supervisor, or claims investigation monitor, and not as a legal advisor, the attorney/client privilege does not apply.'")

Case Date Jurisdiction State Cite Checked
2015-03-18 Federal IL

Chapter: 14.404

Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *10 n.2 (D. Ore. June 20, 2014)
(analyzing a situation in which plaintiff was interviewed by a bank's in house lawyer when her superior sued the bank, after which the bank fired her for helping the superior; holding that the plaintiff owned any privilege protection that covered her interview; "There is a fundamental difference between counsel informing corporate officers that 'I interviewed employee Smith and he will give favorable testimony for the plaintiff in her lawsuit against the Company so we should consider settling the case' and counsel informing officers in connection with the Company's performance evaluation of Smith that the employee would have given testimony that was detrimental to the Company. The former is legal advice and is privileged. The latter (without more of a showing) is not legal advice and is beyond the scope and purpose of the privilege.")

Case Date Jurisdiction State Cite Checked
2014-06-20 Federal OR

Chapter: 14.404

Case Name: Amerisure Mutual Ins. Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12-cv-443-FtM-29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. April 29, 2014)
("[T]o the extent that an attorney acts as a claims adjuster or claims processor and not as a legal advisor, the attorney-client privilege does not apply.")

Case Date Jurisdiction State Cite Checked
2014-04-29 Federal FL

Chapter: 14.404

Case Name: State ex rel. State v. Burnside, 757 S.E.2d 803, 812 (W. Va. Ct. App. 2014)
(finding admissible a recording of a conversation in which a lawyer sold cocaine to a police informant in the lawyer's offices; "Lawyer Hardison was not acting in his capacity as a lawyer during his April 6, 2012, conversation with the confidential informant. The confidential informant was not seeking legal advice from Lawyer Hardison; he was allegedly only seeking to purchase cocaine from him. Further, the confidential informant, having agreed to wear a recording device, did not intend that this conversation be kept confidential. Finally, the attorney-client privilege 'belongs to the client.' State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 372, n.21, 508 S.E.2d 75, 89, n. 21 (1998). The confidential informant, as the putative client in this case, has not asserted the privilege. Because the conversation was not attorney-client in nature, the circuit court erred by suppressing the audio recording under W.Va. Code § 62-1D-9(d).")

Case Date Jurisdiction State Cite Checked
2014-01-01 State WV B 9/14

Chapter: 14.404

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 Jurisdiction State Cite Checked
2013-06-10 Federal CA B 4/14

Chapter: 14.404

Case Name: Woodruff v. Am. Family Mutual Ins. Co., No. 1:12-cv-00859-TWP-MJD, 2013 U.S. Dist. LEXIS 56883 (S.D. Ind. April 22, 2013)
(analyzing a first party bad faith claim pursued by the trustee of a bankrupt insured; "Where, as here, an attorney is performing the non-attorney role of claims adjuster, his communications are not privileged.")

Case Date Jurisdiction State Cite Checked
2013-04-22 Federal SD

Chapter: 14.404

Case Name: Woodruff v. Am. Family Mut. Ins. Co., 291 F.R.D. 239, 246 (S.D. Ind. 2013)
(analyzing a first party bad faith claim pursued by the trustee of a bankrupt insured; "Where, as here, an attorney is performing the non-attorney role of claims adjuster, his communications are not privileged.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IN B 3/14

Chapter: 14.404

Case Name: R.L.R. v. State, 116 So. 3d 570, 572 (Fla. Dist. Ct. App. 2013)
(holding that a pro bono lawyer who was acting as a guardian ad litem could not be ordered to disclose the location of his run-away adolescent client; "The Attorneys Ad Litem are independent of the GAL [Guardian Ad Litem] program and were appointed to provide legal representation to R.L.R.")

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

Chapter: 14.404

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; "But when an attorney acts in other capacities, such as a conduit for a client's funds, as a scrivener, or as a business advisor, the privilege does not apply. . . . In one case, this court held that when an attorney prepared a client's income tax returns, the attorney's function was that of 'a scrivener,' and no attorney-client relationship was established.")

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

Chapter: 14.404

Case Name: In re Allen, 106 F.3d 582, 602 (4th Cir. 1997)
("Of course, not all communications between an attorney and client during attorney-conducted investigations constitute legal work entitled to attorney-client privilege. For example, no privilege attaches when an attorney performs investigative work in the capacity of an insurance claims adjuster, rather than as a lawyer."), cert. denied, 522 U.S. 1047 (1998)

Case Date Jurisdiction State Cite Checked
1997-01-01 Federal

Chapter: 14.500

Case Name: Johnson v. Ford Motor Co., Case Nos. 3:13-cv-06529, -14207, & -20976, 2015 U.S. Dist. LEXIS 119886, at *152-53 (S.D.W. Va. Sept. 3, 2015)
("The law is well-settled that '`the attorney-client privilege applies to 'in-house' counsel just as it would to any other attorney.' . . . Nonetheless, because a corporation's in-house counsel often wears more than one hat, courts look closely at claims of privilege asserted by corporate employees involving communications with in-house counsel.").

Case Date Jurisdiction State Cite Checked
2015-09-03 Federal WV B 2/17

Chapter: 14.501

Case Name: Tucker v. Jefferson Operator, LLC, No. 3:13-CV-200, 2013 U.S. Dist. LEXIS 175905, at *7-8 (E.D. Tenn. Dec. 16, 2013)
("Moreover, it is well-established that the mere fact that an attorney serves as general counsel for an entity will not, without more, establish that any knowledge he or she may have with regard to the entity is protected by the attorney-client privilege. It is 'generally accepted that communications between an attorney and client of primarily a business nature are outside the scope of the privilege.' . . . Stated differently, 'the participation of general counsel in the business of the corporation [] does not automatically cloak the business activity with the protection of the attorney-client privilege.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal TN B 5/14

Chapter: 14.502

Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; "Many of the documents submitted for in camera review are not communications with Motus [Client agent/consultant], but rather internal PJI [Papa John's] communications or communications between PJI and its outside counsel. . . . Those communications are protected by the attorney-client privilege, in whole or in part, to the extent they were made in confidence between client and counsel for the purpose of obtaining or providing legal advice. . . . in general, the internal PJI e-mails contained in PJI's in camera submission reflect a predominantly legal function performed by PJI's in-house counsel. Therefore, PJI may continue to withhold the internal PJI communications (or communications between PJI and its outside counsel) contained within the in camera submission, to the extent those communications were made in connection with obtaining or providing legal advice and were kept confidential (for example, not shared with Motus employees).")

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY

Chapter: 14.502

Case Name: In re Methyl Tertiary Butyl Ether "MTBE" Prods. Liab. Litig., 180 F. Supp. 3d 273, 282-83 (S.D.N.Y. 2016)
("The communications at issue involved the general counsel of LAC [defendant] and GPMI [wholly owned subsidiary of LAS] giving legal advice to employees of LAC and GPMI about how best to protect the attorney-client privilege. Lewis was acting in his role as general counsel and providing specific advice to his clients on a clear legal issue. The Commonwealth asserts that the emails are primarily of a business character because they mention payment to a consultant. It is well established, however, that 'the privilege is not lost merely by reason of the fact that it also refers to certain nonlegal matters' This is particularly true here where the specific legal advice -- preservation of privilege -- related directly to the GPMI restructuring transaction discussed by Lewis." (citation omitted))

Case Date Jurisdiction State Cite Checked
2016-04-04 Federal NY B 8/16, 2/17

Chapter: 14.502

Case Name: Cue, Inc. v. GM LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)
("In this case, however, there is no reason to believe that Attorney Gorbatoff was acting in any capacity other than in his capacity as GM's in-house trademark attorney. The undisputed facts show that Attorney Gorbatoff was not a member of the ad hoc team responsible for the launch of GM's HMI system and the selection of a name for the company's new product. . . . They also show that Attorney Gorbatoff was working in GM's legal department and acting in his capacity as an attorney at the time the ad hoc team requested his assistance. . . . In short, there is no evidence showing that Attorney Gorbatoff held any position other than that of the defendant's in-house trademark counsel or provided any services other than in his capacity as the defendant's attorney.")

Case Date Jurisdiction State Cite Checked
2015-08-10 Federal MA

Chapter: 14.502

Case Name: Skansgaard v. Bank of America, Case No. C11-0988 RJB, 2013 U.S. Dist. LEXIS 48176, at *6 (W.D. Wash. Mar. 6, 2013)
("The court acknowledges that communications made by an attorney performing a dual role of providing legal advice as well as advising on business affairs poses a challenge in determining whether the communication was of a legal nature and thus privileged. A review of the document reveals that counsel was assessing the legal risks of instituting the change and thus, the document is subject to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-03-06 Federal WA B 3/14

Chapter: 14.502

Case Name: One Place Condo. LLC v. Travelers Prop. Cas. Co. of Am., No. 11 C 2520, 2013 U.S. Dist. LEXIS 28257, at *5 (N.D. Ill. Mar. 1, 2013)
("The privilege covers communications with corporate in-house counsel, except those that address 'business matters, management decisions, or business advice.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-01 Federal IL B 3/14

Chapter: 14.502

Case Name: One Place Condominium LLC v. Travelers Property Casualty Co. of Am., No. 11 C 2520, 2013 U.S. Dist. LEXIS 28257 (N.D. Ill. March 1, 2013)
("The privilege covers communications with corporate in-house counsel, except those that address 'business matters, management decisions, or business advice.'")

Case Date Jurisdiction State Cite Checked
2013-03-01 Federal ND

Chapter: 14.502

Case Name: Schlicksup v. Caterpillar, Inc., No. 09 CV 1208, 2011 U.S. Dist. LEXIS 75299, at *5, *9 (C.D. Ill. July 13, 2011)
(analyzing an internal corporate investigation; finding that both the attorney client privilege and the work product doctrine applied to documents created during an investigation by Howrey into possible illegal activity and retaliation, harassment and other "improper and illegal conduct by Caterpillar employees"; "Even if Howrey's investigation could have been conducted by in house counsel, that does not, by itself render unavailable the protections of the attorney client privilege. . . . The focus is on the purpose and confidentiality of the communications, not on whether the attorney was in house or out. Here, the purpose of the communications was to obtain legal advice.")

Case Date Jurisdiction State Cite Checked
2011-07-13 Federal IL B 1/13

Chapter: 14.502

Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *33 (N.D.N.Y. Dec. 13, 2006)
("And there can be no dispute that a corporation's 'in-house counsel' is afforded the same protection as an outside counsel with respect to this privilege . . ., nor is the privilege waived just because he or she is no longer employed as such.")

Case Date Jurisdiction State Cite Checked
2006-12-13 Federal NY B 7/16

Chapter: 14.503

Case Name: FTC v. Adept Management, Civ. No. 1:16-cv-00720-CL, 2018 U.S. Dist. LEXIS 111673 (D. Ore. July 3, 2018)
("Simpson Defendants challenge Mr. Lennon's [Third party witness] invocation of attorney-client privilege during his deposition. Given that it appears that Mr. Lennon had a number of different roles in defendants operations, it is certainly appropriate to view any claim of attorney-client privilege Mr. Lennon with a critical eye. Mr. Lennon however is also a member of the bar and is entitled, if not required, to invoke the attorney client privilege where in his professional judgement it should be invoked.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal OR

Chapter: 14.503

Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
(overruling a Magistrate Judge, and quashing plaintiff's motion to compel production of documents related to a teacher's employment discrimination claim against a school board; "As part of his duties, he may have attempted to facilitate a resolution with Colley on behalf of the School Board, but Mullins [School Board lawyer] was clearly providing legal services to the School Board regarding the claim, and not acting purely as a non-attorney negotiator.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 14.503

Case Name: Wendt v. City of Denison, No. 16-CV-4130-LTS; No. 16-CV-4131-LTS, 2018 U.S. Dist. LEXIS 52550 (N.D. Iowa March 29, 2018)
(holding that City witnesses did not waive the City's attorney-client privilege by testifying that he consulted with the City's lawyer; concluding that the City's lawyer was not a decision-maker in connection with the plaintiff's firing; "[T]he Court finds that based on the record provided to the Court, City Attorney Franck was not the decision-maker and he consulted and obtained legal advice from the City Attorney. The City Attorney may have told the Mayor whether he had the authority to act and when the Mayor could or should legally allow an employee to return from leave, but there is nothing in the record to indicate that the City Attorney made the alleged adverse employment decisions. The portions of the transcript upon which plaintiffs rely are replete with speculation that the City Attorney was involved in making the decision, but not with fact.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal IA
Comment:

key case


Chapter: 14.503

Case Name: Wendt v. City of Denison, No. 16-CV-4130-LTS; No. 16-CV-4131-LTS, 2018 U.S. Dist. LEXIS 52550 (N.D. Iowa March 29, 2018)
(holding that City witnesses did not waive the City's attorney-client privilege by testifying that he consulted with the City's lawyer; concluding that the City's lawyer was not a decision maker in connection with the plaintiff's firing; "In this case, the City has not claimed an advice of counsel defense. An advice of counsel defense does not arise merely as a result of City employees stating that they consulted an attorney before making decisions. The City has not claimed that it was justified in taking adverse employment actions against plaintiffs because the City relied in good faith upon the advice of counsel. The City has not, as plaintiffs assert . . . divulged favorable information and then asserted the privilege to bury detrimental facts. Moreover, Mayor Leinen discussed consulting with the City Attorney only in response to questioning by plaintiffs' counsel; Mayor Leinen did not assert advice from the City Attorney as a justification for his actions."; "Plaintiffs allege that Mayor Leinen 'repeatedly indicated he completely abdicated his authority to Mr. Franck, or at the very least relied solely upon Mr. Franck's recommendation.' (Id.). The record does not, however, support this broad assertion. Mayor Leinen testified that he consulted the City Attorney and obtained advice from the City Attorney in making the decisions to fire the officers. It is to be expected that a decision-maker may consult an attorney regarding whether the decision-maker has the legal authority to terminate an employee or obtain advice on how best to terminate the employee. That does not make the attorney the decision-maker. To the extent that plaintiffs believe the City will mention the consultation at trial and thus allow the jury to unfairly infer that the City is claiming advice of counsel as a defense, plaintiffs can address the issue by filing a motion in limine.")

Case Date Jurisdiction State Cite Checked
2018-03-02 Federal IA

Chapter: 14.503

Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("Turning to attorney-client privilege, the Court notes that all of these documents contain communications from in-house counsel. Nevertheless, Attorney Moeller does not provide legal advice of any kind -- she simply transmits markups to company employees. As previously discussed, in-house counsel's communications regarding the negotiation of a contract generally constitute business advice, rather than legal advice. . . . Accordingly, Documents 4039, 4139, 4146, and 4193 are not privileged and must be produced.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY

Chapter: 14.503

Case Name: In re Residential Capital, LLC v. Certain Underwriters at Lloyd's of London, Ch. 11, Case No. 12-12020 (MG), Jointly Administered, Adv. No. 15-01025 (SHL), 2017 Bankr. LEXIS 1951 (S.D.N.Y. July 14, 2017)
("As the Court had previously suggested, the record here reflects that Sedgwick wore two hats: that of claims handler and legal counsel."; "Sedgwick's role as counsel is also supported by other contemporaneous evidence and sworn statements. For example, there was a specific request for legal advice.")

Case Date Jurisdiction State Cite Checked
2017-07-14 Federal NY

Chapter: 14.503

Case Name: In re Residential Capital, LLC v. Certain Underwriters at Lloyd's of London, Ch. 11, Case No. 12-12020 (MG), Jointly Administered, Adv. No. 15-01025 (SHL), 2017 Bankr. LEXIS 1951 (S.D.N.Y. July 14, 2017)
("Under New York law, an insurance company's claim handling activities are generally subject to discovery even if they were performed by an attorney.")

Case Date Jurisdiction State Cite Checked
2017-07-14 Federal NY

Chapter: 14.503

Case Name: United States v. Microsoft Corporation, Case No. C15-102RSM, 2017 U.S. Dist. LEXIS 69223 (W.D. Wash. May 5, 2017)
(holding that Microsoft could reasonably have anticipated litigation based on various factors; and ordering an in camera review of withheld documents; "Whether the attorney-client privilege applies to these emails depends on the role Microsoft's attorneys played in these communications. This is the case given that 'unlike outside counsel, in-house attorneys can serve multiple functions within the corporation.'. . . Because the Court cannot determine the extent to which Microsoft's counsel acted in a legal, as opposed to a business, capacity in advising Microsoft on its transaction structures, the Court finds that in camera review of eight internal communications withheld based on the attorney-client privilege is warranted.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal WA

Chapter: 14.503

Case Name: Price v. Jarett, No. 8:15CV200, 2017 U.S. Dist. LEXIS 61066 (D. Neb. Apr. 21, 2017)
June 28, 2017 (PRIVILEGE POINT)

"In-House Lawyers Should Avoid Being Employment Decision-Makers"

In-house lawyers obviously can play an important role when their corporate clients decide whether to terminate employees. But they should avoid being the ultimate decision-makers, or playing a business role in any termination decisions.

In Price v. Jarett, No. 8:15CV200, 2017 U.S. Dist. LEXIS 61066 (D. Neb. Apr. 21, 2017), terminated employee plaintiff sought to depose a Union Pacific in-house lawyer. The lawyer had served on a panel that another witness testified "would have to come to a 'unanimous consensus to move forward on [a] termination.'" Id. at *2 (alteration in original) (internal citation omitted). Union Pacific claimed that the panel did not meet as a group to decide on terminations, and that the lawyer's "role in evaluating Plaintiff's termination was solely to review whether there were legal implications of concern for Union Pacific." Id. But the court allowed the deposition to proceed, noting that the testimony "regarding the need for unanimous consent for termination indicates that [the lawyer] may have some[] non-cumulative, non-privileged factual information relevant to the case." Id. at *6.

In-house lawyers should assure that their clients do not face a similar circumstance – in which there is (as the Price court put it) "uncertainty surrounding the 'hat' [they are] wearing while serving" on such panels or in some other way involved in termination decisions. Id. at *7.

Case Date Jurisdiction State Cite Checked
2017-04-21 Federal NE
Comment:

key case


Chapter: 14.503

Case Name: Price v. Jarett, 8:15CV200, 2017 U.S. Dist. LEXIS 61066 (D. Neb. Apr. 21, 2017)
(allowing the deposition of a Union Pacific in-house lawyer who sat on a panel that addressed possible employee terminations; noting that the panel required unanimity, so that the lawyer might have been playing a business role; "From the emails produced by Union Pacific, it appears that Union Pacific does, in fact, have a 'panel,' consisting of individuals who have to approve employee termination requests. At least in Plaintiff's case, the approval process was seemingly accomplished through a series of emails, each with the subject line: 'Your Legal Assistance Request.' Seven of the eight emails produced only deal with the panel's termination approval process and do not appear to directly relate to the rendition of legal advice. Therefore, these documents must be provided to Plaintiff. However, the email dated March 27, 2014 from Winkler to Hughes is clearly related to the solicitation of legal advice, and is protected by the attorney-client privilege."; "The problem in this case is that it remains entirely unclear whether Hughes was acting entirely in a legal capacity while serving on the review panel. Frankly, the documents produced by Union Pacific for in camera review shed very little light on this issue. It is possible that a portion of the information held by Hughes could be subject to the attorney-client privilege. It is also possible that the information obtained from Hughes would be cumulative or could be obtained from other sources. However, Winkler's testimony regarding the need for unanimous consent for termination indicates that Winker may have some, non-cumulative, non-privileged factual information relevant to the case."; ". . . a number of courts have found that Shelton does not apply where the lawyer to be deposed acts as a business advisor to the party, rather than its counsel. . . . based on the limited information before it, the Court is unable to conclude that Hughes was acting solely in a legal capacity in connection with Plaintiff's termination. Given the uncertainty surrounding the 'hat' Hughes was wearing while serving on the panel, the Court finds that an order entirely precluding Hughes's deposition is not warranted in this case.")

Case Date Jurisdiction State Cite Checked
2017-04-21 Federal NE
Comment:

key case


Chapter: 14.503

Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("When examining 'communications to or from in-house counsel, many courts have found that in order for a communication that pertains to both business and legal advice to be considered privileged, the 'primary purpose' must be to obtain or give legal advice. . . . Although in-house attorneys are often very involved in a company's business, 'the attorney-client privilege does not apply when the attorney is providing strictly business advice.'")

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

Chapter: 14.503

Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("'. . . we note that in-house counsel has a 'dual role' as business and legal advisor. . . . AbbVie has not provided any information to demonstrate that these documents concern legal rather than business advice.'")

Case Date Jurisdiction State Cite Checked
2016-08-25 Federal PA

Chapter: 14.503

Case Name: Fidelity and Deposit Company of Maryland v. First National Community Bankcorp, Civ. A. No. 12-1784, 2016 U.S. Dist. LEXIS 130911 (M.D. Pa. Aug. 8, 2016)
(during in camera review, concluding that an insurance company lawyer had acted as a legal advisor rather than a business advisor; "Because in-house counsel performs a dual role of legal advisor and business advisor, counsel's communications 'are privileged only where the communication's primary purpose is to gain or provide legal assistance.'")

Case Date Jurisdiction State Cite Checked
2016-08-08 Federal PA

Chapter: 14.503

Case Name: Ambrose-Frazier v. Herzing Inc., Civ. A. No. 15-1324 SECTION: "E" (3), 2016 U.S. Dist. LEXIS 30174, at *11-13 (E.D. La. Mar. 9, 2016)
(holding that an investigation into alleged racial discrimination conducted by the HR director who also happened to be a lawyer did not deserve work product protection, because it was undertaken in the ordinary course of business pursuant to an internal requirement to investigate all such claims; also finding the company's Faragher-Ellerth defense waived any privilege and work product protection that would have existed; "At the time she made her notes, Baiocchi was the director of human resources at Herzing, and, although she also happened to be a lawyer, she was acting in her capacity as the human resources director when conducting the investigation in accordance with Herzing's employee policy. Considering this, and in light of the Court's analysis above, the Court finds that the attorney-client privilege does not apply to Baiocchi's redacted notes from her May 10, 2013, interviews." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2016-03-09 Federal LA B 2/17

Chapter: 14.503

Case Name: Wit v. United Behavioral Health, Case Nos. 14-cv-02346- & -05337-JCS, 2016 U.S. Dist. LEXIS 7242, at *11-12 (N.D. Cal. Jan. 21, 2016)
("[A] client seeking to protect communications between a corporate client and in-house counsel must 'make a clear showing that in-house counsel's advice was given in a professional legal capacity.'" (citation omitted))

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

Chapter: 14.503

Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
(concluding that the attorney-client privilege did not protect a memorandum from an outside lawyer to a client relaying information that the lawyer obtained during a communication with a USPTO examiner; "To the extent that MacAllister's [an in-house lawyer who also had a business title] "Litigation" paragraph discussed pending litigation and estimated the likelihood that that litigation will settle, MacAllister did nothing more than provide context for his business colleagues to understand the significance of his earlier discussions. Besins has not met its burden to prove otherwise.")

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

Chapter: 14.503

Case Name: Cue, Inc. v. GM LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)
("In this case, however, there is no reason to believe that Attorney Gorbatoff was acting in any capacity other than in his capacity as GM's in-house trademark attorney. The undisputed facts show that Attorney Gorbatoff was not a member of the ad hoc team responsible for the launch of GM's HMI system and the selection of a name for the company's new product. . . . They also show that Attorney Gorbatoff was working in GM's legal department and acting in his capacity as an attorney at the time the ad hoc team requested his assistance. . . . In short, there is no evidence showing that Attorney Gorbatoff held any position other than that of the defendant's in-house trademark counsel or provided any services other than in his capacity as the defendant's attorney.")

Case Date Jurisdiction State Cite Checked
2015-08-10 Federal MA

Chapter: 14.503

Case Name: In re Lululemon Athletica Inc. 220 Litig., Consol. C.A. No. 9039-VCP, 2015 Del. Ch. LEXIS 127 (Del. Ct. Chan. April 30, 2015)
(analyzing the Garner doctrine and a common interest doctrine in connection with a retailer's investigation into the sale of its stock by the company's founder and CEO; "Plaintiffs argue that the Nicholas Email is not privileged because Nicholas, who is both the company's in-house counsel and its corporate secretary, was not acting as an attorney when she sent it. In her email, Nicholas apparently answered an inquiry from Director Stritzke regarding whether Wilson's trades complied with Wilson's Trading Plan. Generally, when an attorney has more than a legal role with the company, her communications will be privileged only if the legal aspects of the communication predominate. Based on the description in the privilege log, I conclude that the Nicholas Email is privileged. Stritzke emailed Nicholas asking her to review a legal document (the Trading Plan) and tell him whether certain acts complied with it. No non-attorney employees of the Company were involved in the email chain, nor is there any reason based on the log's description to think that Stritzke or Nicholas were discussing anything.")

Case Date Jurisdiction State Cite Checked
2015-04-30 State DE
Comment:

key case


Chapter: 14.503

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)
(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "[I]t is clear to the Court after conducting an in camera review of Ford's Exhibit D that the communications contained in the Logel document constitute legal advice. At the time Mr. Logel was asked to review the Q&A sheet, Ford was already involved in litigation related to unintended accelerations. In addition, the massive Toyota recall had the real potential of expanding litigation exposure to Ford, while creating an industry-wide liability issue. Exhibit D corroborates Ford's assertion that Mr. Logel was consulted in his role as an attorney because of ongoing and potential litigation, and his comments were intended to convey the legal perils and liabilities to Ford associated with making certain statements in light of the litigation.")

Case Date Jurisdiction State Cite Checked
2015-04-14 Federal WV
Comment:

key case


Chapter: 14.503

Case Name: Casey v. Unitek Global Svcs., Inc., Civ. A. 14-2671, 2015 U.S. Dist. LEXIS 15715, at *11 (E.D. Pa. Feb. 9, 2015)
(in a former employee's discrimination case against her former employer, finding that the plaintiff did not act as a lawyer, and therefore was not barred from pursuing a wrongful termination claim; "In-house counsel play a dual role of legal advisor and business advisor.")

Case Date Jurisdiction State Cite Checked
2015-02-09 Federal PA B 2/17

Chapter: 14.503

Case Name: Exxon Mobil Corp. v. Hill, 751 F.3d 379, 382 (5th Cir. 2014)
("When ITCO requested internal data prepared by and on behalf of Exxon Mobil, it is no surprise that Exxon Mobil would seek advice from its attorney as to how to respond. All of this is to say that the context in which the Stein Memo [prepared by Exxon Mobil's in-house lawyer] was produced even before we say anything of the memorandum itself strongly suggests that Exxon Mobil was approaching its in-house counsel for just the sort of lawyerly thing one would expect of an in-house lawyer: advice on transactional matters. Though we recognize that in-house counsel can often play a variety of roles within an organization, this record is devoid of any indication that Stein was providing business advice divorced from its legal implications.")

Case Date Jurisdiction State Cite Checked
2014-05-06 Federal B 2/17

Chapter: 14.503

Case Name: Vidal v. Metro-N. Commuter Ry. Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *14 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "[A]ttorney-client privilege may attach to communications to and from Barnett in her role as in-house counsel to Metro-North. With respect to in-house counsel communications, in-house counsel often fulfill dual roles of legal consultant and business advisor. Communications that principally involve the performance of non-legal functions by in-house counsel are not protected.")

Case Date Jurisdiction State Cite Checked
2014-02-04 Federal CT B 6/14, 2/17

Chapter: 14.503

Case Name: Swift Spindrift, Ltd. v. Alvada Ins., Inc., No. 09 Civ. 9342 (AJN) (FM), 2013 U.S. Dist. LEXIS 104296, at *24-25 (S.D.N.Y. July 24, 2013)
("It is undisputed that, in addition to his role as in-house counsel, Cumming also handled certain operational and business matters for Swift. It follows that Cumming would have generated emails or other documents that related principally to his role as a business advisor, rather than his role as counsel. Swift concedes that the attorney-client privilege does not apply to communications if Cumming's predominant purpose was to render operational or business advice. Thus, to the extent that it has not done so already, Swift must disclose any communications, or portions thereof, that were sent or received primarily for purposes other than providing legal advice.")

Case Date Jurisdiction State Cite Checked
2013-07-24 Federal NY B 4/14

Chapter: 14.503

Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *11 (S.D. Ind. June 3, 2013)
("For attorney-client privilege, only communications where Devine [in-house lawyer] was transmitting legal advice 'as an attorney' are protected. All communications in which Devine was not wearing his 'legal advisor hat' are not protected.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 14.503

Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *36 (S.D. Ga. May 8, 2013)
(in an employment discrimination case against celebrity Paula Deen and her brother "Bubba" Hiers, ultimately concluding that Deen's three outside consultants were outside the attorney-client privilege protection; "That is enough evidence, despite Gerard's [outside counsel, who had both law-related and human resources responsibilities] denials . . ., to show that he maintained a 'fused' lawyer/H.R. role, so the Court reaffirms the attorney-client and work-product privilege waiver analysis set forth in its April 3, 2013 Order . . . even with the Ellerth/Faragher defense [Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998)] gone from the case.")

Case Date Jurisdiction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 14.503

Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *9-10 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "It does not appear that Astellas's [defendant] Senior Director Michael Ruggiero functioned in the capacity of counsel in providing legal advice to Astellas with respect to the drafting and filing of the citizen petition. Therefore, such communications and materials being withheld or redacted by Astellas on the sole basis of Ruggiero's alleged status as counsel are not privileged and should be produced. . . . To the extent that Astellas can demonstrate that Ruggiero did act as a lawyer in giving legal advice on matters other than the citizen petition, those communications may be privileged.")

Case Date Jurisdiction State Cite Checked
2013-05-03 Federal MA B 8/13, 2/17

Chapter: 14.503

Case Name: Skansgaard v. Bank of America, Case No. C11-0988 RJB, 2013 U.S. Dist. LEXIS 48176, at *6 (W.D. Wash. Mar. 6, 2013)
("The court acknowledges that communications made by an attorney performing a dual role of providing legal advice as well as advising on business affairs poses a challenge in determining whether the communication was of a legal nature and thus privileged. A review of the document reveals that counsel was assessing the legal risks of instituting the change and thus, the document is subject to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-03-06 Federal WA B 3/14

Chapter: 14.503

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 Jurisdiction State Cite Checked
2011-05-12 Federal VA B 4/13, 2/17

Chapter: 14.503

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *8 (E.D. Va. May 12, 2011)
("On the face of Documents 9 and 10, attorney client privilege applies to protect the communications therein. Document 9 is written from in house counsel/AIG employee to in house counsel and carbon copies three AIG employees. The face of the document demonstrates that it is for the purpose of providing an attorney's opinion on a particular legal issue. The subject of the document, 'ATTORNEY WORK PRODUCT,' supports the legal nature of the communication between attorney and client, despite the author's signature as both an AIG employee and general counsel.")

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

Chapter: 14.503

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
("Internal communications between a company's officers and directors and its general counsel may be privileged depending upon whether the communications are legal or business in nature. This principle will be applied regardless of the general counsel's role in a particular transaction or negotiation, although that role may very well inform the nature of the communication. 3Com claims that it only withheld those portions of communications involving Mr. Goldman where he provided legal service or advice so intertwined with legal issues that it, 'as a whole was primarily legal in nature.' Nonetheless, given Mr. Goldman's prominent business role in the transaction, the Court is of the view that in camera review is appropriate here to determine whether Mr. Goldman was acting in primarily a legal or business capacity at the time that the challenged communications were made.")

Case Date Jurisdiction State Cite Checked
2010-05-31 State DE

Chapter: 14.504

Case Name: FTC v. Adept Management, Civ. No. 1:16-cv-00720-CL, 2018 U.S. Dist. LEXIS 111673 (D. Ore. July 3, 2018)
("Simpson Defendants challenge Mr. Lennon's [Third party witness] invocation of attorney-client privilege during his deposition. Given that it appears that Mr. Lennon had a number of different roles in defendants operations, it is certainly appropriate to view any claim of attorney-client privilege Mr. Lennon with a critical eye. Mr. Lennon however is also a member of the bar and is entitled, if not required, to invoke the attorney client privilege where in his professional judgement it should be invoked.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal OR

Chapter: 14.504

Case Name: Wendt v. City of Denison, No. 16-CV-4130-LTS; No. 16-CV-4131-LTS, 2018 U.S. Dist. LEXIS 52550 (N.D. Iowa March 29, 2018)
(holding that City witnesses did not waive the City's attorney-client privilege by testifying that he consulted with the City's lawyer; concluding that the City's lawyer was not a decision maker in connection with the plaintiff's firing; "In this case, the City has not claimed an advice of counsel defense. An advice of counsel defense does not arise merely as a result of City employees stating that they consulted an attorney before making decisions. The City has not claimed that it was justified in taking adverse employment actions against plaintiffs because the City relied in good faith upon the advice of counsel. The City has not, as plaintiffs assert . . . divulged favorable information and then asserted the privilege to bury detrimental facts. Moreover, Mayor Leinen discussed consulting with the City Attorney only in response to questioning by plaintiffs' counsel; Mayor Leinen did not assert advice from the City Attorney as a justification for his actions."; "Plaintiffs allege that Mayor Leinen 'repeatedly indicated he completely abdicated his authority to Mr. Franck, or at the very least relied solely upon Mr. Franck's recommendation.' (Id.). The record does not, however, support this broad assertion. Mayor Leinen testified that he consulted the City Attorney and obtained advice from the City Attorney in making the decisions to fire the officers. It is to be expected that a decision-maker may consult an attorney regarding whether the decision-maker has the legal authority to terminate an employee or obtain advice on how best to terminate the employee. That does not make the attorney the decision-maker. To the extent that plaintiffs believe the City will mention the consultation at trial and thus allow the jury to unfairly infer that the City is claiming advice of counsel as a defense, plaintiffs can address the issue by filing a motion in limine.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal IA

Chapter: 14.504

Case Name: Exxon Mobil Corp. v. Hill, No. 13-30830, 2014 U.S. App. LEXIS 8495 (5th Cir. May 6, 2014)
("When ITCO requested internal data prepared by and on behalf of Exxon Mobil, it is no surprise that Exxon Mobil would seek advice from its attorney as to how to respond. All of this is to say that the context in which the Stein Memo [prepared by Exxon Mobil's in-house lawyer] was produced even before we say anything of the memorandum itself strongly suggests that Exxon Mobil was approaching its in-house counsel for just the sort of lawyerly thing one would expect of an in-house lawyer: advice on transactional matters. Though we recognize that in-house counsel can often play a variety of roles within an organization, this record is devoid of any indication that Stein was providing business advice divorced from its legal implications.")

Case Date Jurisdiction State Cite Checked
2014-05-06 Federal

Chapter: 14.504

Case Name: Estate of Jackson v. GE Capital Corp.(In re: Fundamental Long Term Care, Inc.), 509 B.R. 387, 390, 395 (M.D. Fla. 2014)
("There is one common theme underlying FAS's [defendant] 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 Jurisdiction State Cite Checked
2014-04-30 Federal FL B 2/17

Chapter: 14.504

Case Name: Tucker v. Jefferson Operator, LLC, No. 3:13-CV-200, 2013 U.S. Dist. LEXIS 175905, at *7-8 (E.D. Tenn. Dec. 16, 2013)
("Moreover, it is well-established that the mere fact that an attorney serves as general counsel for an entity will not, without more, establish that any knowledge he or she may have with regard to the entity is protected by the attorney-client privilege. It is 'generally accepted that communications between an attorney and client of primarily a business nature are outside the scope of the privilege.' . . . Stated differently, 'the participation of general counsel in the business of the corporation [] does not automatically cloak the business activity with the protection of the attorney-client privilege.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal TN B 5/14

Chapter: 14.504

Case Name: Weinstein v. Univ. of Conn., Civ. No. 3:11CV1906 (WWE), 2013 U.S. Dist. LEXIS 71617, at *15 (D. Conn. May 21, 2013)
(refusing to allow the deposition of a university's in-house lawyer, under the Second Circuit Friedman (In re Subpoena Issued to Friedman), 350 F.3d 65 (2d Cir. 2003)) standard; not addressing the status of the proposed deponent as an in-house lawyer rather than as a trial lawyer; "While the standard for determining whether a communication is protected by the attorney-client privilege is straightforward, the application of that standard sometimes requires nuance. The line between legal advice and non-legal advice is hazy. In particular, the line between business advice and legal advice is blurry when an attorney work [sic] in-house for a corporate client.")

Case Date Jurisdiction State Cite Checked
2013-05-21 Federal CT B 3/14

Chapter: 14.504

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; "As others have also observed, the 'advent of email has added to the difficulty of determining the purpose and intent of communications that involve corporate legal counsel.")

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

Chapter: 14.505

Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09 cv 1002 Orl 31TBS, 2012 U.S. Dist. LEXIS 158944, at *8 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "Communication between corporate client and outside litigation counsel are cloaked with a presumption of privilege. . . . Communications between corporate client and corporate counsel -- on the other hand -- involve a much different dynamic and require the proponent to satisfy a 'purpose and intent' threshold test.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 14.506

Case Name: FTC v. Adept Management, Civ. No. 1:16-cv-00720-CL, 2018 U.S. Dist. LEXIS 111673 (D. Ore. July 3, 2018)
("Simpson Defendants challenge Mr. Lennon's [Third party witness] invocation of attorney-client privilege during his deposition. Given that it appears that Mr. Lennon had a number of different roles in defendants operations, it is certainly appropriate to view any claim of attorney-client privilege Mr. Lennon with a critical eye. Mr. Lennon however is also a member of the bar and is entitled, if not required, to invoke the attorney client privilege where in his professional judgement it should be invoked.")

Case Date Jurisdiction State Cite Checked
2018-07-03 Federal OR

Chapter: 14.506

Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("Here, BDO's privilege log does not provide sufficient detail to meet its burden of allowing opposing counsel or the trial court to determine whether entries merely described as 'legal advice,' or that included or courtesy copied attorneys, actually contained privileged legal advice. . . . Furthermore, not only does the log include conclusory descriptions of 'legal advice,' it does so in the context of communications with in-house counsel -- an area courts have acknowledged presents unique challenges when it comes to establishing attorney-client privilege."; "The privilege log's lack of description, coupled with Bower's sworn declaration that many of the communications described as 'legal advice' were not made for the purpose of seeking and imparting legal advice, compels the conclusion that the log entries warranted closer scrutiny than the trial court provided. The district court therefore erred when it determined, on the showing made, that these entries sufficed to prove BDO's prima facie case of privilege.")

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

Chapter: 14.506

Case Name: La. Municipal Police Employees Retirement Sys. v. Green Mountain Coffee Roasters, Inc., Case No. 2:11-cv-289, 2017 U.S. Dist. LEXIS 165151 (D. Vt. April 7, 2017)
("[C]ourts must at times recognize 'the unique role that an in-house attorney brings to bear in imparting [legal] advice that may incidentally also involve business advice.'. . . That role necessarily includes drafting language for public statements with respect to regulated transactions . . . and advising on potential litigation."; "Plaintiffs submit that Defendants' assertions of privilege are unreliable. For support, they observe that some of the documents Defendants at first withheld, then later produced as non-privileged, bear the same description as documents that remain undisclosed. While Defendants stand by their privilege determinations, they have also invited the Court to undertake an in camera review of any challenged documents."; "The parties have been disputing attorney-client privilege for months, and Defendants have amended their disclosures as many as nine times. With a document production of over one million documents, such revisiting and revision is perhaps understandable. It is also evidence of Defendants' good faith, as they have repeatedly acknowledged errors and made amends. At this point, Defendants assert that their disclosures are complete, and the Court is reticent to undertake yet another review of the documents in question. . . . Plaintiffs' motion to compel additional documents, based upon the suspicion that they contain business rather than legal advice, is denied.")

Case Date Jurisdiction State Cite Checked
2017-04-07 Federal VT
Comment:

key case


Chapter: 14.506

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)
("[I]t does not matter whether Carroll is in-house counsel or outside counsel. The case that Plaintiffs cite in support of their assertion that in-house counsel are subject to heightened scrutiny does not apply California law. . . . The Court has not found any case applying California law that subjected in-house counsel to heightened scrutiny. . . . And no heightened scrutiny exception exists in California's statutory regime.")

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

key case


Chapter: 14.506

Case Name: Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, A.3d (11/8/2016)
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 Jurisdiction State Cite Checked
2016-11-08 Federal ME
Comment:

key case


Chapter: 14.506

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 Jurisdiction State Cite Checked
2016-11-08 Federal IL
Comment:

key case


Chapter: 14.506

Case Name: Thomas v. Kellogg Company, Case No. C13-5136-RBL, 2016 U.S. Dist. LEXIS 66881, at *3 (W.D. Wash. May 20, 2016)
("There is a heightened concern where the attorney is 'in house,' because his non-legal business or administrative communications are not privileged.")

Case Date Jurisdiction State Cite Checked
2016-05-20 Federal WA B 2/17

Chapter: 14.506

Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924, at *14 n.6 (S.D. Fla. April 8, 2015)
(finding that corporations' privilege claims "are treated with more suspicion")

Case Date Jurisdiction State Cite Checked
2015-04-08 Federal FL B 2/17

Chapter: 14.506

Case Name: Casey v. Unitek Global Svcs., Inc., Civ. A. 14-2671, 2015 U.S. Dist. LEXIS 15715, at *11 (E.D. Pa. Feb. 9, 2015)
(in a former employee's discrimination case against her former employer, finding that the plaintiff did not act as a lawyer, and therefore was not barred from pursuing a wrongful termination claim; "When a corporation claims privilege over communications with in-house counsel, they 'must clearly demonstrate that the communication in question was made for the express purpose of securing legal not business advice.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2015-02-09 Federal PA B 2/17

Chapter: 14.506

Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)
(in an action by a wife against her former husband for fraud in connection with assets, analyzing the wife's communications to and from a litigation funder; finding that the funder did not meet the Kovel doctrine; "Because Ms. Napp [Funder] is neither necessary to facilitate Plaintiff's communications with counsel nor in possession of a legal claim against Defendants, her communications with Plaintiff are not privileged. With regard to her Kovel argument, Plaintiff has made no showing that Ms. Napp is 'indispensable or serve[s] some specialized purpose in facilitating the attorney client communications.'. . . Rather, her primary purpose appears initially to be making a decision as to whether her company will fund Plaintiff's legal team and thereafter reviewing and commenting on legal strategy presumably to maximize the chances of a return on her investment. These functions cannot be analogized to the interpreters or accounts of the Kovel line, who serve a specific function necessary to effectuate legal representation.")

Case Date Jurisdiction State Cite Checked
2015-01-30 Federal NY

Chapter: 14.506

Case Name: Chandola v. Seattle Housing Authority, Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193 (W.D. Wash. Sept. 19, 2014)
November 19, 2014 (PRIVILEGE POINT)

“In-House Lawyers Face a Greater Challenge than Outside Lawyers When Claiming Privilege Protection”

The attorney-client privilege began in Roman times, and serves a grand societal purpose — encouraging clients to frankly disclose facts that their lawyers need, by assuring their communications' perpetual protection from third-party intrusion. However, the law has always disliked the privilege, because it hides the truth. Among other things, courts extend privilege protection only to communications whose "primary purpose" involves legal advice.

In the corporate context, clients and their lawyers must establish that their communications' "primary purpose" involved legal rather than business concerns. Nearly every court imposes a higher burden on in-house lawyers attempting to meet this standard. In Chandola v. Seattle Housing Authority, Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193 (W.D. Wash. Sept. 19, 2014), the court held that "[e]xtra scrutiny is required where in-house counsel is involved, as they often act in both a legal and non-legal business capacity." Id. at *5. The court warned that in-house lawyers must make a "'clear showing'" that their communications related primarily to legal rather than business concerns. Id. at *6 (citation omitted). The court ultimately decided to review withheld communications in camera.

Some courts take an even more hostile approach — presuming that in-house lawyers' communications do not meet the "primary purpose" standard. In-house lawyers should assure that communications they receive and send will help them make the commonly required "clear showing" that those communications primarily related to legal advice — keeping in mind that courts frequently review those communications in camera.

Case Date Jurisdiction State Cite Checked
2014-09-19 Federal WA B 2/17
Comment:

key case


Chapter: 14.506

Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *8 (S.D. Ind. June 3, 2013)
("In Indiana, privilege is applied narrowly, especially to communications with in-house counsel.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 14.506

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; "As others have also observed, the 'advent of email has added to the difficulty of determining the purpose and intent of communications that involve corporate legal counsel.")

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

Chapter: 14.507

Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(finding that a company's report about alleged failures of a medical device did not deserve attorney-client privilege protection; "[T]he Court finds that Defendants have not met their burden to prove that they commissioned the Lehmann Report primarily in anticipation of litigation. Rather, the Court concludes that the Lehmann Report served primarily general business and regulatory compliance functions. The fact that Defendants used their legal department to serve as an intermediary between Dr. Lehmann and their other employees does not alter this conclusion."; also finding that the report did not deserve work product protection)

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 14.507

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 380 (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 [Commonwealth v.] Edwards, 370 S.E.2d [296,] 301[(Va. 1988)]). 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. v. Stallings & Co.], 172 F.R.D. [53,] 55 [(W.D.N.Y. 1996)] (internal citations omitted).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 3/16
Comment:

key case