McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 268 of 268 results

Chapter: 15.5
Case Name: Entrata, Inc, v. Yardi Systems, Inc., Case No. 2:15-cv-00102-CW-PMW, 2018 U.S. Dist. LEXIS 104171, at *9 (D. Utah June 20, 2018)
August 29, 2018 (PRIVILEGE POINT)

"The Attorney-Client Privilege Does Not Protect All Lawyer Changes to Draft Documents"

Some courts erroneously fail to extend privilege protection to draft documents prepared by or revised by a lawyer before their final disclosure beyond the attorney-client relationship. Even courts that properly acknowledge the availability of privilege protection for such documents must examine the revisions' primary purpose.

In Entrata, Inc. v. Yardi Systems, Inc., the court rejected defendant's privilege claim for "a draft letter showing edits made by … Yardi's Vice President and General Counsel." Case No. 2:15-cv-00102-CW-PMW, 2018 U.S. Dist. LEXIS 104171, at *9 (D. Utah June 20, 2018). The court: (1) correctly noted that "[t]he mere fact that [defendant's General Counsel] was involved with [the draft letter] does not automatically render it subject to attorney-client privilege protection"; (2) erroneously stated that "documents prepared to be sent to third parties, like [the letter], even when prepared by counsel, are generally not attorney-client privileged"; (3) correctly rejected privilege protection after "conclud[ing] that the types of edits made by [defendant's General Counsel] constitute nothing more than simple editorial changes, which do not qualify for attorney-client privilege protection." Id.

Some lawyers mistakenly assume that the privilege protects all of their changes to clients' draft documents. However, every withheld change in such draft documents must meet the "primary purpose" test to deserve privilege protection. Typographical and stylistic revisions generally do not deserve privilege protection.

Case Date Jurisdiction State Cite Checked
2018-06-20 Federal UT
Comment:

key case


Chapter: 15.5
Case Name: Entrata, Inc. v. Yardi Systems, Inc., Case No. 2:15-cv-00102-CW-PMW, 2018 U.S. Dist. LEXIS 104171 (D. Utah June 20, 2018)
(inexplicably implying that the privilege cannot protect drafts containing lawyer's suggested changes if the final document will be disclosed; also holding that the lawyer's changes in the draft document did not deserve privilege protection; "The court concludes that Yardi's arguments are without merit. After carefully reviewing Exhibit 473, the court concludes that it does not constitute an attorney-client privileged communication. As Yardi has indicated, Exhibit 473 is a draft letter showing edits made by Arnold Brier ('Mr. Brier'), Yardi's Vice President and General Counsel. The mere fact that Mr. Brier was involved with Exhibit 473 does not automatically render it subject to attorney-client privilege protection. . . . Furthermore, documents prepared to be sent to third parties, like Exhibit 473, even when prepared by counsel, are generally not attorney-client privileged. . . . Finally, the court concludes that the types of edits made by Mr. Brier constitute nothing more than simple editorial changes, which do not qualify for attorney-client privilege protection. . . . ('[T]he attorney-client privilege does not attach to simple editing or 'word-smithing' by counsel.').")

Case Date Jurisdiction State Cite Checked
2018-06-20 Federal UT
Comment:

key case


Chapter: 15.5
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("Caselaw provides a wealth of guidance as to what is -- and is not -- protected by the attorney-client privilege. First, it is important to note that 'personal, confidential, [or] private information' is not necessarily privileged. 'As this Court has held repeatedly, 'confidential' does not equate to 'nondiscoverable' or privileged.' Second, it is clear that '[u]nderlying facts are not protected by the privilege.' 'Similarly, neither the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not 'communications.'" Nor are 'general topics of attorney-client discussions' or ultimate 'legal conclusions' of counsel protected. Thus, for example, this court has held that the subject matters of an in-house attorney's discussions with company executives are not privileged. Fourth, where a communication contains both legal advice and business advice, attorney-client protection only applies if the legal advice predominates over the business advice; the privilege does not apply where legal advice is merely incidental to business advice. Fifth, '[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged. Submission of the document to the third party removes any cloak of privilege.' On the other hand, drafts of memoranda prepared for a client are protected Sixth, the attorney-client privilege does not attach to simple editing or 'word-smithing' by counsel.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS
Comment:

key case


Chapter: 15.5
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 44192 (D. Kansas March 24, 2017)
(in an opinion by Special Master, finding that a former Monsanto lawyer and business person did not resist discovery after being designated by defendant as a testifying expert; "Doc. No. 18: Monsanto claims that this document is a draft document regarding Identity Preserved Production and Pollen Movement that contains legal comments and revisions by Mr. Carrato regarding status of approvals and how to deal with identity preserved crop. With the exception of pages 1-6, which shall be redacted, the balance of the document (pages 7-9) shall be produced on the basis that it predominantly concerns non-privileged business information concerning cross-pollination, along with Mr. Carrato's editorial redlines. The attorney-client privilege does not attach to simple editing or 'word-smithing' by counsel.")

Case Date Jurisdiction State Cite Checked
2017-03-24 Federal KS

Chapter: 15.5
Case Name: Father Doe v. Phillips Exeter Academy, Civ. No. 16-cv-396-JL, 2016 U.S. Dist. LEXIS 141877 (D.N.H. Oct. 13, 2016)
(finding that defendant Phillips Exeter Academy could not successfully claim privilege protection for a lawyer's investigation into possible sexual misconduct by a student; noting that defendant called the lawyer an "independent investigator," which meant that the lawyer was not assisting the defendant's lawyer in providing legal advice; also finding an implied waiver because the defendant relied on the investigation report in disciplining a student; also finding that defendant waived any possible privilege protection by disclosing portions of the investigation report to parents; inexplicably failing to deal with the work product doctrine; "There is also a question as to whether Attorney McGintee's reports amount to the provision of legal advice. PEA's representations to the Doe plaintiffs and to this court suggest that any advice provided in the reports advice is more akin to advice rendered to assist in a business decision, which the privilege does not protect, than legal advice, which it does. . . . PEA has described its process for handling cases of sexual misconduct as follows: 'In the reasonable exercise of its reserved discretion, [PEA] has determined that the better process in [cases such as this] is to employ an external investigator to perform an independent investigation and issue a report with factual findings and conclusions on whether a PEA policy has been violated. The investigator applies a preponderance of the evidence standard. The Dean of Students and her team review the report and make a recommendation to the Principal, who makes the final determination on an appropriate disposition, which is precisely how this case proceeded.'"; "As it has been described to the plaintiffs and the court, Attorney McGintee's reports include facts drawn from interviews with three minors who are not party to the attorney-client relationship, as well as Attorney McGintee's conclusions as to their credibility and her ultimate conclusion as to what happened during the encounter between John Doe and Jane Roe. . . . PEA, by its own admission, and as discussed more fully infra Part III.B, used this information to form its decision on whether to suspend or expel John Doe. Advice to a school on whether to discipline a student seems, to this court, to more closely resemble communications to facilitate a business decision than pursuit of legal advice.")

Case Date Jurisdiction State Cite Checked
2016-10-13 Federal NH

Chapter: 15.5
Case Name: Guiffre v. Maxwell, 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)
(holding that a media agent was outside privilege protection New York law, which applied to communications with a public relations consultant in Britain; "[W]ithout an attorney-client communication to facilitate, it cannot be said that Gow's [Media Agent] presence and input was necessary to somehow clarify or improve comprehension of Defendant communications with counsel, as the standard requires. . . . As such, Defendant has not met her burden of demonstrating that the communications fall beneath the umbrella of attorney-client privilege and cannot be rehabilitated by the extension provided by the agency privilege."; "Defendant has sworn that all of her communications with Barden [Defendant's lawyer] were for the purpose of seeking legal advice. However, the content of the communications addresses matters not legal on their face (specifically, a press statement)."; "[T]he Court must consider the communications in their full context. . . . Alone, it would be difficult to deem communications that predominately address a press statement as legal advice. Nevertheless, Defendant's assertion that a press statement is a necessary precursor to litigation 'under the fair comment laws of the UK' changes the context. . . . Considering the legal necessity of a press statement, in the context of the legal issue for which Defendant sought Barden's advice, the communication with Barden is predominately for the purposes of providing legal services. Defendant has therefore met her burden if establishing Documents #1045-46 are privileged.")

Case Date Jurisdiction State Cite Checked
2016-05-02 Federal NY

Chapter: 15.5
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *14-15 (W.D. Wash. Sept. 19, 2014)
("Counsel for Plaintiff may inquire into conversations that took place at SHA legal department staff meetings, including as they related to SHA management decisions and opinions about the decisions of Mr. Chandola and other Hearing Officers, which took place prior to the initiation of this litigation. At deposition, counsel for Defendants may object on the basis of attorney-client privilege only if SHA can show that the dominant purpose of a conversation inquired into was to impart or receive confidential legal advice rather than to make a personnel decision. In no instance are the facts underlying communications with SHA attorneys and relevant to claims and defenses privileged.")

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

Chapter: 15.5
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)
August 13, 2014 (PRIVILEGE POINT)

"Most Courts Focus on the Four Corners of Withheld Documents, Despite Barko: Part I"

The widely publicized Barko decision (In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)) has encouraged corporations hoping to extend privilege protection to their internal corporate investigations. As explained in a previous Privilege Point, perhaps the most important aspect of Barko was the D.C. Circuit's willingness to examine the context of withheld communications — rather than focusing just on the documents' four corners.

However, many courts essentially limit their review to the withheld documents themselves in analyzing both privilege and work product claims. In Tecnomatic, S.P.A. v. Remy, Inc., the court examined withheld documents in camera, ultimately concluding that the attorney-client privilege protection applied — because "the communications withheld explicitly request, render, arrange for, or act in furtherance of rendering legal assistance." No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014). Unfortunately, courts' assessment of withheld documents usually results in bad news. One week later, the Northern District of Illinois rejected a corporation's privilege claim for several emails, using phrases such as "[t]his email is not privileged as it does not ask for legal advice"; "the email does not seek legal advice and is not privileged"; and "[n]either the email nor the attached bill reveals any confidential communications or involves a request for legal advice." Lee v. Chi. Youth Ctrs., No. 12 C 9245, 2014 U.S. Dist. LEXIS 79868, at *24, *23, *26 (N.D. Ill. June 10, 2014). In an even more worrisome conclusion, the court rejected privilege claims for two emails a company employee sent the company's outside lawyer (1) asking for the lawyer's advice about "'the preferred language'" for finance committee minutes, and (2) inviting the lawyer "to make whatever changes she desires to [a] 'Reorganization Plan.'" Id. at *23, *25. The court held that the first email merely sought the outside lawyer's "editorial changes," and that the second email "does not seek legal advice and is not privileged." Id.

Despite the promise of Barko, most courts examining a privilege claim focus almost exclusively on withheld documents' four corners. Clients seeking legal advice should therefore explicitly ask for it in the body of their communications. And lawyers providing legal advice should explain that they are doing so — especially if their legal advice takes the form of suggested language changes in client-prepared draft documents.

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal
Comment:

key case


Chapter: 15.5
Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *10 (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; "A performance review is not 'legal advice of any kind.' It is a quintessential business function, and plaintiff is entitled to probe the factual underpinnings of the Bank's evaluation of her performance.")

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

Chapter: 15.5
Case Name: Wells Fargo & Co. v. United States of America, Case No. 09-CV-2764 (PJS/TNL), 2014 U.S. Dist. LEXIS 81430, at *8-9 (D. Minn. June 16, 2014)
(concluding that a client employee's draft of a memorandum to a lawyer was not an implicit request for legal advice; "Even if Wells Fargo could show that all 21 of the documents were circulated to its in-house attorneys, the Court could not find that the documents were privileged, because Wells Fargo has failed to establish that the documents were circulated for the purpose of obtaining legal advice or services. Wells Fargo argues that the Court can infer that drafts of the memorandum sent to in-house counsel were implicit requests for legal advice or services regarding the memorandum. . . . But Wells Fargo offers no evidence to support these rather vague and abstract assertions. By contrast, the government offers concrete evidence that Wells Fargo's in-house attorneys were involved in non-legal aspects of implementing the STARS transaction. . . . Under these circumstances, it is as likely that these attorneys were being asked to ensure the factual accuracy of the drafts as it is that these attorneys were being asked to provide legal advice.")

Case Date Jurisdiction State Cite Checked
2014-06-16 Federal MN

Chapter: 15.5
Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *23 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; among other things, holding that editorial changes did not deserve privilege protection; "Exhibit 5 is a February 22, 2011 email from Mr. Wells to Ms. Morgan 're: Finance Committee Minutes.' The email does not seek legal advice, but merely asks her to give 'the preferred language' if revisions to the minutes are deemed desirable. The email is not privileged as editorial changes or contributions by a lawyer do not qualify under the attorney/client privilege.")

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

Chapter: 15.5
Case Name: Lee v. Chi. Youth Ctrs., No. 12 C 9245, 2014 U.S. Dist. LEXIS 79868, at *24, *23, *26 (N.D. Ill. June 10, 2014)
August 13, 2014 (PRIVILEGE POINT)

"Most Courts Focus on the Four Corners of Withheld Documents, Despite Barko: Part I"

The widely publicized Barko decision (In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)) has encouraged corporations hoping to extend privilege protection to their internal corporate investigations. As explained in a previous Privilege Point, perhaps the most important aspect of Barko was the D.C. Circuit's willingness to examine the context of withheld communications — rather than focusing just on the documents' four corners.

However, many courts essentially limit their review to the withheld documents themselves in analyzing both privilege and work product claims. In Tecnomatic, S.P.A. v. Remy, Inc., the court examined withheld documents in camera, ultimately concluding that the attorney-client privilege protection applied — because "the communications withheld explicitly request, render, arrange for, or act in furtherance of rendering legal assistance." No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014). Unfortunately, courts' assessment of withheld documents usually results in bad news. One week later, the Northern District of Illinois rejected a corporation's privilege claim for several emails, using phrases such as "[t]his email is not privileged as it does not ask for legal advice"; "the email does not seek legal advice and is not privileged"; and "[n]either the email nor the attached bill reveals any confidential communications or involves a request for legal advice." Lee v. Chi. Youth Ctrs., No. 12 C 9245, 2014 U.S. Dist. LEXIS 79868, at *24, *23, *26 (N.D. Ill. June 10, 2014). In an even more worrisome conclusion, the court rejected privilege claims for two emails a company employee sent the company's outside lawyer (1) asking for the lawyer's advice about "'the preferred language'" for finance committee minutes, and (2) inviting the lawyer "to make whatever changes she desires to [a] 'Reorganization Plan.'" Id. at *23, *25. The court held that the first email merely sought the outside lawyer's "editorial changes," and that the second email "does not seek legal advice and is not privileged." Id.

Despite the promise of Barko, most courts examining a privilege claim focus almost exclusively on withheld documents' four corners. Clients seeking legal advice should therefore explicitly ask for it in the body of their communications. And lawyers providing legal advice should explain that they are doing so — especially if their legal advice takes the form of suggested language changes in client-prepared draft documents.

Case Date Jurisdiction State Cite Checked
2014-06-10 Federal IL
Comment:

key case


Chapter: 15.5
Case Name: Tecnomatic, S.P.A. v. Remy, Inc., No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014)
August 13, 2014 (PRIVILEGE POINT)

"Most Courts Focus on the Four Corners of Withheld Documents, Despite Barko: Part I"

The widely publicized Barko decision (In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)) has encouraged corporations hoping to extend privilege protection to their internal corporate investigations. As explained in a previous Privilege Point, perhaps the most important aspect of Barko was the D.C. Circuit's willingness to examine the context of withheld communications — rather than focusing just on the documents' four corners.

However, many courts essentially limit their review to the withheld documents themselves in analyzing both privilege and work product claims. In Tecnomatic, S.P.A. v. Remy, Inc., the court examined withheld documents in camera, ultimately concluding that the attorney-client privilege protection applied — because "the communications withheld explicitly request, render, arrange for, or act in furtherance of rendering legal assistance." No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014). Unfortunately, courts' assessment of withheld documents usually results in bad news. One week later, the Northern District of Illinois rejected a corporation's privilege claim for several emails, using phrases such as "[t]his email is not privileged as it does not ask for legal advice"; "the email does not seek legal advice and is not privileged"; and "[n]either the email nor the attached bill reveals any confidential communications or involves a request for legal advice." Lee v. Chi. Youth Ctrs., No. 12 C 9245, 2014 U.S. Dist. LEXIS 79868, at *24, *23, *26 (N.D. Ill. June 10, 2014). In an even more worrisome conclusion, the court rejected privilege claims for two emails a company employee sent the company's outside lawyer (1) asking for the lawyer's advice about "'the preferred language'" for finance committee minutes, and (2) inviting the lawyer "to make whatever changes she desires to [a] 'Reorganization Plan.'" Id. at *23, *25. The court held that the first email merely sought the outside lawyer's "editorial changes," and that the second email "does not seek legal advice and is not privileged." Id.

Despite the promise of Barko, most courts examining a privilege claim focus almost exclusively on withheld documents' four corners. Clients seeking legal advice should therefore explicitly ask for it in the body of their communications. And lawyers providing legal advice should explain that they are doing so — especially if their legal advice takes the form of suggested language changes in client-prepared draft documents.

Case Date Jurisdiction State Cite Checked
2014-06-03 Federal IN
Comment:

key case


Chapter: 15.5
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *18 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "Document 10 is a letter dated April 27, 2004, from Estreicher [consultant, who was a lawyer, but not acting in the legal capacity] to Barnett [lawyer for the railroad] enclosing a copy of his first preliminary report. No legal advice is provided in the letter and the letter itself must be produced. The document also contains hand-written commentary from Barnett, most of which is factual and not legal advice. . . . Most of Barnett's notations on the report are grammatical or factual and need not be redacted.")

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

Chapter: 15.5
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: 15.5
Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *4 5 (Del. Ch. Dec. 9, 2013
("I further note that the attorney-client privilege protects legal advice only, and not business or personal advice. Where business and legal advice are inseparable in a communication -- or the communication includes individuals serving in both business and legal advisory roles -- the communication will be considered privileged only if the legal aspects predominate. . . . In addition, for communications containing both business and legal advice, in which the business and legal advice can be segregated easily, they 'must be produced with the legal-related portions redacted.' There are circumstances, however, in which legal and business advice cannot be segregated or it is too difficult to determine if the legal issues predominate in a given communication. In those situations, the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced." (citation and footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 15.5
Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162331, at *29 (D. Conn. Nov. 14, 2013)
("'The fact that a lawyer occasionally acts as a lobbyist does not preclude the lawyer from acting as a lobbyist and having privileged communications with a client who is seeking legal advice.'" (citation omitted))

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

Chapter: 15.5
Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 24, 2013)
December 18, 2013 (PRIVILEGE POINT)

"Courts Deny Privilege Protection for Compliance-Related Documents"

Many corporate clients erroneously assume that the attorney-client privilege or the work product doctrine will protect their compliance-related communications. However, such communications face the same impediments to either protection as other internal corporate communications.

For instance, the attorney-client privilege only protects communication primarily motivated by clients' request for legal advice. In United States ex rel. Gale v. Omnicare, Inc., the court found that the privilege did not protect "Compliance Committee meetings and the documents drafted by [the company's CCO]," – because the company's previous agreement with the government required such meetings. Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013). The court concluded that "[t]he meetings and documents sought to comply with its contract with the United States, not to obtain legal advice." Id. The privilege also normally depends on lawyers' involvement. In Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 24, 2013), Judge Scheindlin held that the privilege did not protect documents created during the Bank of China Chief Compliance Officer's investigation into the bank's possible dealings with terrorists. Judge Scheindlin noted that after the Bank's CCO received Plaintiff's demand letter, "'he called outside counsel, then set about performing the investigation within the Compliance Department – without the involvement of any counsel.'" Id. At *35 (citation omitted). Judge Scheindlin cited an earlier case's blunt conclusion that "[p]rivilege does not apply to 'an internal corporate investigation . . . Made by management itself.'" Id. At *36 (citation omitted).

Companies and their lawyers should not assume that the compliance function automatically, or even usually, deserves privilege protection.

Case Date Jurisdiction State Cite Checked
2013-10-24 Federal NY
Comment:

key case


Chapter: 15.5
Case Name: United States ex rel. Gale v. Omnicare, Inc., Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013)
December 18, 2013 (PRIVILEGE POINT)

"Courts Deny Privilege Protection for Compliance-Related Documents"

Many corporate clients erroneously assume that the attorney-client privilege or the work product doctrine will protect their compliance-related communications. However, such communications face the same impediments to either protection as other internal corporate communications.

For instance, the attorney-client privilege only protects communication primarily motivated by clients' request for legal advice. In United States ex rel. Gale v. Omnicare, Inc., the court found that the privilege did not protect "Compliance Committee meetings and the documents drafted by [the company's CCO]," – because the company's previous agreement with the government required such meetings. Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013). The court concluded that "[t]he meetings and documents sought to comply with its contract with the United States, not to obtain legal advice." Id. The privilege also normally depends on lawyers' involvement. In Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 24, 2013), Judge Scheindlin held that the privilege did not protect documents created during the Bank of China Chief Compliance Officer's investigation into the bank's possible dealings with terrorists. Judge Scheindlin noted that after the Bank's CCO received Plaintiff's demand letter, "'he called outside counsel, then set about performing the investigation within the Compliance Department – without the involvement of any counsel.'" Id. At *35 (citation omitted). Judge Scheindlin cited an earlier case's blunt conclusion that "[p]rivilege does not apply to 'an internal corporate investigation . . . Made by management itself.'" Id. At *36 (citation omitted).

Companies and their lawyers should not assume that the compliance function automatically, or even usually, deserves privilege protection.

Case Date Jurisdiction State Cite Checked
2013-10-04 Federal OH
Comment:

key case


Chapter: 15.5
Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 435, 436 (S.D.N.Y. 2013)
(analyzing a situation in which a defamation plaintiff's law firm had first worked with and later represented the plaintiff's public relations firm; holding that the PR agency was not within the privilege as the client's agent, and did not have a common interest with the plaintiff client; also holding that the PR agency could not create work product for the non-party, but that disclosing work product to the PR agency did not waive that protection; "'"[P]ublic relations advice, even if it bears on anticipated litigation, [generally] falls outside the ambit" of the work product doctrine.' . . . [T]he work product doctrine does not extend to public relations activities even if they bear on the litigation strategy because 'the purpose of the rule is to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client's customers, the media, or on the public generally.'" (citation omitted); "There is no evidence that any of these e-mails were generated specifically to assist an attorney in preparing for litigation of this case. Accordingly, Egiazaryan has not met his burden of showing that these documents are within the scope of Fed. R. Civ. P. 26(b)(3).")

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

Chapter: 15.5
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 644-45 (D. Nev. 2013)
(holding that the attorney-client privilege does not protect communication with a public relations firm employee; "The document that follows is a memorandum from Lee Lynch at Hill & Knowlton [P.R. firm] to Holly Glass [defendant's V.P. of Public Relations] regarding the communications plan which states that it provides a guide for implementing an 'immediate communications strategy to ensure C.R. Bard is prepared for any news coverage. . . .' (emphasis added.) Legal counsel is not included as a recipient. The document states that the plan is 'intended to prepare for general or national coverage that may result from a lawsuit being filed, product withdrawal and or general negative stories surrounding Recover Vena Cava Filters.' It does state that 'H&K has begun monitoring for any coverage surrounding a potential lawsuit.'")

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

Chapter: 15.5
Case Name: In United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *11-12 (M.D. Fla. Nov. 6, 2012)
January 2, 2013 (PRIVILEGE POINT)

"Another Court Follows the Troubling Vioxx Approach"

Previous Privilege Points have noted many courts' increasing insistence that a corporate litigant withholding privileged documents prove that every recipient of each document had a "need to know" the document's substance. Some courts take an even narrower view of the privilege in the corporate setting, usually relying on a 2007 decision in the multidistrict litigation against Merck. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007).

In United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, the court cited Vioxx and an earlier Middle District of Florida decision in holding that "when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation 'cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'" Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *11-12 (M.D. Fla. Nov. 6, 2012) (citation omitted). Later in the opinion, the court seemed to back off a bit, noting that the simultaneous transmission of an email to a non-lawyer "weighs against a privilege finding." Id. At *23 n.5. However, throughout the opinion the court took a restrictive view of the privilege in the corporate setting. Distinguishing legal advice from "’compliance advice,’" the court rejected a corporate litigant's argument that the privilege protected compliance department employees' communications because "’the compliance department operates under the supervision and oversight of [the] legal department.’" Id. At *23 (internal citation omitted). The court's response to that position was blunt: "Halifax's organizational structure is of no consequence." Id.

Although there may be essentially no way for most corporations' privilege to survive the nearly per se Vioxx approach, all corporations should try to restrict the internal distribution of emails to those with a "need to know."

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL
Comment:

key case


Chapter: 15.5
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 112 (D.D.C. 2012)
("In the last e-mail, Paula Wittmayer, an attorney with BIPI's in-house counsel, simply says: 'Here were my edits to the last version.' It is impossible to tell from the e mail chain whether her views were sought as to a legal issue, or whether her edits were merely typographical and grammatical. One cannot say, therefore, that her client sought legal advice by a confidential communication. Therefore, the claim of privilege fails as to this e-mail chain and others where confidential communication is not intended.")

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

Chapter: 15.5
Case Name: In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)
January 2, 2013 (PRIVILEGE POINT)

"Another Court Follows the Troubling Vioxx Approach"

Previous Privilege Points have noted many courts' increasing insistence that a corporate litigant withholding privileged documents prove that every recipient of each document had a "need to know" the document's substance. Some courts take an even narrower view of the privilege in the corporate setting, usually relying on a 2007 decision in the multidistrict litigation against Merck. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007).

In United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, the court cited Vioxx and an earlier Middle District of Florida decision in holding that "when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation 'cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'" Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *11-12 (M.D. Fla. Nov. 6, 2012) (citation omitted). Later in the opinion, the court seemed to back off a bit, noting that the simultaneous transmission of an email to a non-lawyer "weighs against a privilege finding." Id. At *23 n.5. However, throughout the opinion the court took a restrictive view of the privilege in the corporate setting. Distinguishing legal advice from "’compliance advice,’" the court rejected a corporate litigant's argument that the privilege protected compliance department employees' communications because "’the compliance department operates under the supervision and oversight of [the] legal department.’" Id. At *23 (internal citation omitted). The court's response to that position was blunt: "Halifax's organizational structure is of no consequence." Id.

Although there may be essentially no way for most corporations' privilege to survive the nearly per se Vioxx approach, all corporations should try to restrict the internal distribution of emails to those with a "need to know."

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal LA
Comment:

key case


Chapter: 15.5
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264 (E.D. Va. 2004)
(although ultimately concluding that it should review the arguably privileged documents in camera, noting that Rambus had produced and allowed testimony regarding its document retention policy thus implying that the document retention policy was privileged)

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 15.201
Case Name: In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY
Comment:

key case


Chapter: 15.201
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)
July 16, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part II"

Last week's Privilege Point described the legal standard and some of the factual bases for the District of Columbia District Court's denial of privilege protection for Kellogg Brown & Root's (KBR) internal corporate investigation. This week’s privilege point tells the good news -- when about three months later, the D.C. Circuit Court of Appeals issued a writ of mandamus reversing the District Court's holding. In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014).

The District of Columbia federal appellate court first rejected the district court's legal standard, holding that the privilege could protect a company's investigation if its need for legal advice was one of the "primary" or "significant" motivating purposes – even if not the only purpose, or the primary purpose. Id. at *13-14. The appeals court also explicitly addressed several factual indicia the district court relied on, holding that (1) KBR's requirement under government regulations to investigate alleged fraud did not preclude KBR's argument that another "significant purpose[]" was seeking legal advice; (2) nonlawyers could conduct privileged employee interviews while "serving as agents of attorneys"; (3) the absence of Upjohn warnings did not prevent privilege protection, because "nothing in Upjohn requires a company to use magic words"; and (4) although the employees' confidentiality agreements did not "expressly" mention KBR's need for legal advice, employees knew the law department was conducting a "sensitive" investigation and were warned not to discuss their interviews without KBR's General Counsel's authorization. Id. at *8-10.

The appeals court's legal standard represents a much more privilege-friendly approach than most courts apply. The standard permits companies to claim privilege protection even for investigations they must undertake pursuant to external requirements -- rather than having to initiate parallel or successive investigations to gain the protection. And the court's analysis of the factual issues provides a much more lenient standard for claiming privilege than most courts would apply. Next week's Privilege Point will discuss what the D.C. Circuit Court of Appeals' decision did not address.

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal
Comment:

key case


Chapter: 15.201
Case Name: United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-11 Federal DC
Comment:

key case


Chapter: 15.201
Case Name: United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-06 Federal DC
Comment:

key case


Chapter: 15.201
Case Name: In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal
Comment:

key case


Chapter: 15.201
Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *4 5 (Del. Ch. Dec. 9, 2013
("I further note that the attorney-client privilege protects legal advice only, and not business or personal advice. Where business and legal advice are inseparable in a communication -- or the communication includes individuals serving in both business and legal advisory roles -- the communication will be considered privileged only if the legal aspects predominate. . . . In addition, for communications containing both business and legal advice, in which the business and legal advice can be segregated easily, they 'must be produced with the legal-related portions redacted.' There are circumstances, however, in which legal and business advice cannot be segregated or it is too difficult to determine if the legal issues predominate in a given communication. In those situations, the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced." (citation and footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 15.201
Case Name: Upjohn v. United States, 449 U.S. 383, 394 (1981)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
1981-01-01 Federal
Comment:

key case


Chapter: 15.202
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: 15.202
Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 6 (W.D. Va. May 31, 2013)
("An otherwise privileged communication does not lose its privilege simply because it is included in a business document.")

Case Date Jurisdiction State Cite Checked
2013-05-31 Federal VA B 9/13

Chapter: 15.202
Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 6 (W.D. Va. May 31, 2013)
("An otherwise privileged communication does not lose its privilege simply because it is included in a business document.")

Case Date Jurisdiction State Cite Checked
2013-05-31 Federal VA B 9/13

Chapter: 15.202
Case Name: In re Chase Bank USA, N.A. "Check Loan" Contract Litig., MDL No. 2032, Case No. 3:09-md-2032 MMC (JSC) (N.D. Cal. July 28, 2011)
("A communication does not become privileged simply because the author mentions a legal issue. Instead the primary purpose of the communication must be analyzed to determine if it is related to legal advice or instead to further a business objective. In the same way that a non-privileged communication does not become privileged by the presence of an attorney, it likewise does not become privileged by the mere suggestion of a legal issue ancillary to the main purpose of the communication.")

Case Date Jurisdiction State Cite Checked
2011-07-28 Federal CA

Chapter: 15.203
Case Name: Basso v. New York University, 16-CV-7295 (VM) (KNF), 2018 U.S. Dist. LEXIS 126149 (S.D.N.Y. July 27, 2018)
("Regardless of the font used to express counsel's comments, none of the paragraphs provide legal advice. In his e-mail message, dated 'Mon, Jan 20, 2014 at 9:30 AM,' Kenneth E. Tabachnick asked counsel to 'take a look and see if we have any comments' on 'the final draft (as I understand it) LOR for the Tisch Asia audit.' Comments are not legal advice, which is clear from counsel's responsive e-mail message, dated 'Tue, 21 Jan 2014 15:35:32:55 -0500.' Counsel's 'Comments below' include phrases reflecting uncertainty and ignorance about business practices and matters: (i) 'we should probably follow [PwC's] instructions'; (ii) 'I am not sure if I am authorized to sign'; (iii) 'Do we need to modify to leave open the possibility it will remain open longer?'; (iv) 'Not sure how to answer this, but would there be any reason to keep the campus open - not the outside production studios?'; (v) 'Not sure why this language is needed'; and (vi) 'I can reach out to PwC to inquire about this.' It is apparent from the content of counsel's 'Comments below' that the comments are business-related communications, including questions and uncertainties about business practices and matters, not legal advice provided based on counsel's legal education and experience. The defendant failed to establish that the attorney-client privilege applies to the e-mail messages contained in the defendant's Exhibit C; thus, they must be disclosed to the plaintiffs.")

Case Date Jurisdiction State Cite Checked
2018-07-27 Federal NY

Chapter: 15.203
Case Name: Wrubleski v. Mary Imogene Bassett Hosp., 526017, 2018 N.Y. App. Div. LEXIS 5161 (N.Y. Sup. Ct. July 12, 2018)
("Upon examination of the notes turned over to Supreme Court for an in camera review, we conclude that they are a mixed collection, some of which are shielded by the attorney-client privilege and some of which are not. The three-page portion labeled 'injury journal' is, as described by decedent's attorney, a seamless report of the incident at the health club and the medical care that decedent received shortly thereafter. The medication log is on a separate page and includes other notes of a personal nature. We agree with Supreme Court that the medication log was made for the purpose of keeping a medical record rather than as a confidential communication made for the purpose of legal services. Accordingly, in the absence of evidence that the medication log constituted a communication of legal character between decedent and Bobrycki, plaintiff may not invoke the attorney-client privilege to shield its disclosure.")

Case Date Jurisdiction State Cite Checked
2018-07-12 State NY

Chapter: 15.203
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: 15.203
Case Name: FTC v. Adept Management, Civ. No. 1:16-cv-00720-CL, 2018 U.S. Dist. LEXIS 111673 (D. Ore. July 3, 2018)
("The attorney client privilege protects confidential communications between attorneys and clients that are made for the primary purpose of giving or receiving legal advice, unless the protection is waived.")

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

Chapter: 15.203
Case Name: AbbVie Inc. v. Boehringer Ingelheim Int'l GMBH, Civ. No. 17-cv-01065-MSG-RL, 2018 U.S. Dist. LEXIS 99809 (D. Del. June 14, 2018)
("AbbVie's burden is to demonstrate that the communications in the Humira IP Discussion are directed to issues which are primarily or predominately legal in nature. . . . Another way of putting the test is that the privilege does not apply unless 'the communication would not have been made but for the client's need for legal advice or services.'")

Case Date Jurisdiction State Cite Checked
2018-06-14 Federal DE

Chapter: 15.203
Case Name: AbbVie Inc. v. Boehringer Ingelheim Int'l GMBH, Civ. No. 17-cv-01065-MSG-RL, 2018 U.S. Dist. LEXIS 99809 (D. Del. June 14, 2018)
(focusing on a withheld document's content in rejecting privilege protection; "The slide has nothing to say about a legal issue, and is certainly not primarily or predominately legal in nature. The slide identifies 11 different projects as falling into '3 categories with distinct value propositions.' Legal services, considerations, and issues are never mentioned. The slide is not subject to the attorney-client privilege because AbbVie has not clearly demonstrated that legal issues predominate. The slide must be turned over unredacted.")

Case Date Jurisdiction State Cite Checked
2018-06-14 Federal DE

Chapter: 15.203
Case Name: AbbVie Inc. v. Boehringer Ingelheim Int'l GMBH, Civ. No. 17-cv-01065-MSG-RL, 2018 U.S. Dist. LEXIS 99809 (D. Del. June 14, 2018)
(focusing on a withheld document's content in rejecting privilege protection; "No legal concerns, questions, or issues are identified on the slide. Certainly none predominate. The slide is a summary of a 'brainstorm meeting' on October 4-5, 2010 designed to 'generate ideas to broaden our Humira patent estate in response to Biosimilars.' The presence of an attorney in a room full of employees brainstorming about new inventions does not convert everything said into privileged communications. Neither is a slide summarizing the results of the brainstorming meeting privileged because an attorney is sitting in on the slide presentation. The question is whether what was said at the conference - or on the slide - would not have been communicated 'but for the client's need for legal advice or services.' Louisiana Mun. Police Employees Retirement System, 253 F.R.D. at 306. The slide does not show this. AbbVie has not otherwise shown this. The slide is not subject to the attorney-client privilege and must be produced unredacted.")

Case Date Jurisdiction State Cite Checked
2018-06-14 Federal DE
Comment:

Key Case


Chapter: 15.203
Case Name: Nadeau v. Wealth Counsel LLC, No. 2:17-cv-00561-MCE-AC, 2018 U.S. Dist. LEXIS 100125 (E.D. Cal. June 14, 2018)
(holding that an employment discrimination investigation was not primarily motivated by legal concerns; "When information is collected to serve a dual purpose, one for transmittal to an attorney and one not related to that purpose, the question is which purpose 'predominates.'. . . These standards would apply to the transmittal and discussion of Ryan's interview notes if defendants were correct that her investigation is presumptively privileged. . . . Plaintiffs have presented evidence that Ryan's purpose in interviewing plaintiffs was to identify any discriminatory practices within WealthCounsel and develop an internal corporate remedial plan if necessary. Nadeau Declaration at ¶ 6; Coffin Declaration at ¶ 7; Magelssen Declaration at ¶ 7. Plaintiff's evidence demonstrates that the internal corporate purposes for the investigation was, if not the sole purpose, at least on par with the intended (and undisclosed to plaintiffs) submission of Ryan's findings to counsel for the purpose of obtaining legal advice. The court cannot conclude on this record that the dominant purpose was to defend Titus's legal claims. Accordingly, the privilege would be defeated here even if defendant had made a prima facie showing of its applicability.")

Case Date Jurisdiction State Cite Checked
2018-06-14 Federal CA

Chapter: 15.203
Case Name: Morris v. Spectra Energy Partners (DE) GP, LP, Civ. A. No. 12110-VCG, 2018 Del. Ch. LEXIS 146 (Del. Ch. May 7, 2018)
("The attorney-client privilege protects legal advice only; it does not shield business advice. . . . Where business and legal advice cannot be separated in a given communication, 'the communication will be considered privileged only if the legal aspects predominate.' On the other hand, where business and legal advice can be easily segregated, the communication 'must be produced with the legal-related portions redacted.' And if 'it is too difficult to determine if the legal issues predominate in a given communication,' 'the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced.'")

Case Date Jurisdiction State Cite Checked
2018-05-07 State DE

Chapter: 15.203
Case Name: Morris v. Spectra Energy Partners (DE) GP, LP, Civ. A. No. 12110-VCG, 2018 Del. Ch. LEXIS 146 (Del. Ch. May 7, 2018)
("Having reviewed the two documents in camera, I find that the redacted portions contain communications protected by the attorney-client privilege. The documents include a series of emails between the Conflicts Committee's counsel, the members of the Committee, and the Committee's financial advisor. The redacted portions of those emails reflect a combination of legal and business advice relating to a draft of the agreement that ultimately effectuated the transaction at issue in this case. It is clear to me that the business and legal aspects of that advice cannot be separated. It is also clear to me that the legal component of the advice predominates over the business component. Thus, the redacted portions of the emails are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2018-05-07 State DE

Chapter: 15.203
Case Name: Jordan v. US Dept. of Labor, Civ. A. No. 16-1868 (RC), 2018 U.S. Dist. LEXIS 53940 (D.D.C. March 30, 2018)
("DOL [Department of Labor] seems to argue that the Huber email [Internal memorandum of DynCorp.] qualifies for protection under the attorney-client privilege because it was sent as part of DynCorp's broader efforts to address a legal issue and because it was sent to an in-house attorney to provide him 'with a complete understanding of the facts relevant to the matter that was being discussed in the email.'. . . The Court disagrees and concludes that, contrary to DOL's contentions, the Huber email is not protected by attorney-client privilege and must be produced."; "Several factors buttress this conclusion. First, it is difficult to say, under the circumstances of this case, that one of the primary purposes of the Huber email was to obtain legal advice. The email is specifically directed to another person – a non-attorney – and the email specifically (and only) seeks information from that person. It is not all apparent from DOL's submissions how Mr. Huber's request that Mr. Powers provide certain information might in any way shape Mr. Bellomy's legal advice on the business contract or any other legal matter. DOL's contention that some broader legal problem existed in the background is insufficient to connect this specific communication to that legal problem existed in the background is insufficient to connect this specific communication to that legal problem or to any prospective legal problem. Second and relatedly, the Huber email does not appear to contain any factual information on which Mr. Bellomy might rely to form a legal judgment. Rather, it appears to contain a discrete request – directed to one person – that exposes little to nothing about the factual circumstances underlying the problem of the 'short paid invoices' or any other legal issue. Third, protection of this document does little to promote the purpose of the attorney-client privilege, which is 'to encourage 'full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'" Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (quoting Upjohn, 449 U.S. at 389). Fourth, the Huber email's topic and distribution list appears to be nearly identical to that of the final email in the chain, which was not withheld on the basis of attorney-client privilege. The only difference between the two emails is that the Huber email was copied to any attorney while the final email in the chain was not. As set forth above, simply copy an attorney on a communication does not make that communication privileged. In sum, DOL's arguments that the attorney-client privilege applies to the Huber email are unavailing. DOL's renewed motion for summary judgment is denied, and DOL is ordered to release the Huber email.")

Case Date Jurisdiction State Cite Checked
2018-03-30 Federal DC

Chapter: 15.203
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(holding that a lawyer-consultant was inside privilege protection; "With respect to the attorney consultant Lacey, the Court finds that his report meets all the elements of attorney-client privilege. Lacey's report is a confidential communication from a professional legal advisor to his client, ESU, relating to legal advice sought by ESU, and there is no indication that ESU has waived any privilege by disclosing the report to third parties.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS

Chapter: 15.203
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
("The court finds that Sutter has not met its burden of establishing that this document is privileged. The court notes as an initial matter that Sutter's original privilege log stated that this document 'reflect[ed] legal advice' from an in-house attorney, but Sutter's revised submission to the court now states that this document was forwarded to the in-house attorney for her legal advice on the contents of the document. Either way, this document relates to business strategies and is not a communication seeking legal advice, and as discussed above, neither vaguely stating that a business document somehow 'reflects' legal advice nor forwarding a preexisting business document to an attorney for her review renders the document a privileged communication.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA
Comment:

key case


Chapter: 15.203
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
(holding that a company's CFO's presentation did not deserve privilege protection under the primary purpose standard; "The court finds that Sutter has not met its burden of establishing that the redacted portion of the document bates-stamped DEF001993743-51, which Sutter provided to the court unredacted as PrivID 00704, is privileged. The redacted portion of the document appears to be a presentation delivered by Sutter's Chief Financial Officer and a regional CFO to general non-lawyer 'Strategy Session Participants' on business matters, as part of a larger day-long strategy meeting on business matters, and does not appear to be related to the rendition of legal (as opposed to business) advice. Nor does Sutter's privilege log entry -- which contains only a vague allusion that the redacted portion of this document somehow 'reflect[s] legal advice' from the 'Legal Department' -- meet its burden of establishing that the redacted portion of this document is privileged.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA

Chapter: 15.203
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
(finding that public relations consultants were inside privilege protection; "[A]s a general proposition Plaintiffs are correct that documents generated for the primary purpose of dealing with business issues and with issues relating to scientific and product safety issues are not privileged even if a lawyer is involved. Where the lawyer is performing a function primarily performed by a corporate employee the communication does not magically become privileged simply because a lawyer is involved."; "Conversely, simply because a lawyer is involved with a business related issue does not necessarily mean the communication is not privileged. Regardless of the subject matter of the communication the test 'is whether counsel was participating in the communications primarily for the purpose of rendering legal advice or assistance.' In re Vioxx, 501 F. Supp. 2d at 798. This applies whether the legal advice is rendered in conjunction with regulatory challenges involving the FDA, global safety issues, pharmacovigilance issues or threatened litigation (whether foreign or in the United States)."; "Because the determination of the primary purpose of the document in the Court's view is very fact and document specific -- and in many cases must be discerned by viewing a chronology of documents -- the Court concluded that it must conduct an in camera inspection of each of the documents on the Defendants' privilege logs. Although the process was very labor intensive and time consuming, the Court concluded that an in camera review of each of the documents was the best available method of determining whether an email or email thread was privileged because it related to the request for or the provision of legal advice or whether the primary purpose of the document was other than for obtaining or providing legal advice. The Court has conducted its review with these principles in mind.")

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal FL

Chapter: 15.203
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: 15.203
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)
("Document 417 consists of PowerPoint slides discussing jacket pricing, various proposals for defining the term 'high-end,' and strategies for contract negotiations with Uretek. Each slide also says 'Confidential - for Settlement Discussion Purposes Only.' Defendants argue that the slides are privileged because they discuss the position the company should take in a negotiation and are informed by prior legal advice given by attorneys. But the slides bear no relation to legal advice from attorneys. Instead, the slides simply discuss how Defendants should approach the contract negotiations with Uretek, without analyzing or applying legal principles. In-house counsel's communications concerning the negotiation of a contract generally fall in the category of business advice. . . . Therefore, Document 417 is not protected by attorney-client privilege and must be produced.")

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

Chapter: 15.203
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: 15.203
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: 15.203
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)
(defendant to depose plaintiff's lawyer in a patent case; "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: 15.203
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
(finding that the following email communication purely motivated by business rather than legal concerns; "'Peter, in order to make sure we retain as much leverage as possible, I think you should make it clear to Sandoz that we are waiting to see what their reaction is to our comments before we make a decision as to whom we will go with. In other words, they should remain under the impression that we still have an alternative AG. Thank you for all your help with this very important matter. Regards, Andrew.'"; "[I]n the above-quoted paragraph, Koven suggested that Ciano take a particular negotiating stance so as to retain leverage over Sandoz. On its face, that is business advice, and AbbVie has not articulated any explanation of how it could be construed as legal advice. AbbVie has failed to meet its burden of proving that the above-quoted paragraph provides primarily legal advice.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 15.203
Case Name: Nucap Industries Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 U.S. Dist. LEXIS 135288 (N.D. Ill. Aug. 23, 2017)
("The court recognizes that distinguishing between business and legal advice can be difficult, but it appears Nucap adopted an overly cautious view of what constitutes privileged information. . . . For example, Nucap redacted portions of an email thread discussing contract terms in which general counsel, Jonathan Kielb, was copied. . . . It appears Kielb was included in the correspondence because the sender, Vince Butera, wanted his 'input,' along with the input of other non-attorney employees. However, copying an attorney does not make a communication privileged, and it is not apparent that the purpose of the email was to solicit legal advice as opposed to business advice. . . . In fact, as Bosch points out in its motion, Butera himself later characterized his email as one involving 'business issues' rather than legal issues.")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal IL
Comment:

key case


Chapter: 15.203
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)
("The attorney-client privilege only applies to confidential communications made to facilitate legal services, and does not apply where a lawyer acts as a business advisor.")

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

Chapter: 15.203
Case Name: Nalco Co., Inc. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127 (S.D. Tex. July 18, 2017)
(holding that the attorney-client privilege can protect employee-to-employee communications under certain circumstances; "Communications between employees may be privileged in two circumstances. First, communications may be privileged when a corporate client shares information with non-attorney employees 'to relay information requested by attorneys.'"; "Second, communications between non-attorney corporate employees may be privileged when they were made 'for the purpose of securing legal advice.'"; "When the communication involves a document, for the court to find that the attorney-client privilege applies, the court must inspect the document and find that the primary purpose of the communication was to secure legal advice."; "A party can prove that the purpose of a communication was to seek legal advice by offering evidence that the communication was relayed to an attorney.")

Case Date Jurisdiction State Cite Checked
2017-07-18 Federal TX

Chapter: 15.203
Case Name: Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017)
(holding that employee-to-employee communication can be privileged under the circumstance; "The BOP has failed, however, to establish the asserted privilege as to EMAIL00032796 and EMAIL00032836. This is because 'the Court cannot assume that simply adding an attorney to an email via CC creates an expectation that legal services will be rendered.'. . . While Attorney Oben is 'CC'ed' on these emails, neither the documents themselves nor the privilege log provides a basis for the asserted privilege. An attorney did not solicit the information in these emails and, while the emails may have sought legal advice, they also clearly sought nonlegal advice from nonlawyers. At no point did Attorney Oben actually respond to the inquiries with legal advice. Thus, the Court finds that these emails are not privileged and must be produced.")

Case Date Jurisdiction State Cite Checked
2017-07-10 Federal IN

Chapter: 15.203
Case Name: United States v. Owensboro Dermatology Assoc., P.S.C., Civ. A. No. 4:16-mc-00003-JHM, Civ. A. No. 4:16-mc-00004-JHM, Civ. A. No. 4:16-mc-00005-JHM, 2017 U.S. Dist. LEXIS 105099 (D. Ky. July 7, 2017)
("[T]he undersigned finds that each document predominantly involves legal advice within the retention of the counsel involved and is properly restricted to persons within the privilege sphere.")

Case Date Jurisdiction State Cite Checked
2017-07-07 Federal KY

Chapter: 15.203
Case Name: Boltz v. United Process Controls, Civ. A. No. 1:16-cv-703, 2017 U.S. Dist. LEXIS 102913 (S.D. Ohio June 23, 2017)
(in connection with employees claim that he was wrongfully terminated, finding that the communications did not deserve attorney-client privilege protection; "Here, the in camera review of the emails does not indicate that the primary purpose and/or dominant intent of the communication was to seek legal advice. . . . As noted above, the emails were written by and sent to non-attorney corporate employees relating to questions surrounding Eric Boltz' injury, health insurance, short and long term disability coverage."; "The fact that such information was later shared with counsel does not invoke the privilege.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal OH
Comment:

key case


Chapter: 15.203
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("[T]his court has ruled that communications by third-party consultants 'working at the direction of' attorneys, may be protected by the attorney-client privilege if the communications are 'for the purpose of assisting [the] attorneys in rending legal advice.'"; "Plaintiffs argue Syngenta's privilege assertions are belied by documents showing Syngenta retained Informa to help Syngenta develop business strategy, not to provide legal advice. The court agrees. Although Nadel states in his declaration that the Informa analysis was for the purpose of formulating legal strategy, this assertion is unsupported by any documents in the record. The analysis itself contains no legal analysis. And Syngenta has submitted no documents indicating that anyone on Syngenta's legal team worked with Informa on the analysis."; "Syngenta has failed to satisfy its burden of proving the applicability of the attorney-client privilege to the Informa analysis. The fact that Syngenta's 'Market Insight' group, rather than legal group, appears to have sought and used the analysis suggests the analysis was commissioned and communicated primarily for business, rather than legal, purposes. The sentence in Sandlin's May 16, 2014 e-mail directing non-attorney employees to discuss distribution of the related documents with Nadel does not change the business nature of the documents. Even if the court were to find some legal purpose in the communication, the attorney-client privilege would not protect the document because the legal purpose would not predominate over the business purpose. Syngenta's privilege assertion over PRIV003591 is overruled, and Syngenta shall produce this document.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS

Chapter: 15.203
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("Caselaw provides a wealth of guidance as to what is -- and is not -- protected by the attorney-client privilege. First, it is important to note that 'personal, confidential, [or] private information' is not necessarily privileged. 'As this Court has held repeatedly, 'confidential' does not equate to 'nondiscoverable' or privileged.' Second, it is clear that '[u]nderlying facts are not protected by the privilege.' 'Similarly, neither the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not 'communications.'" Nor are 'general topics of attorney-client discussions' or ultimate 'legal conclusions' of counsel protected. Thus, for example, this court has held that the subject matters of an in-house attorney's discussions with company executives are not privileged. Fourth, where a communication contains both legal advice and business advice, attorney-client protection only applies if the legal advice predominates over the business advice; the privilege does not apply where legal advice is merely incidental to business advice. Fifth, '[d]rafts of documents to be submitted to third parties, although prepared by counsel, are not generally privileged. Submission of the document to the third party removes any cloak of privilege.' On the other hand, drafts of memoranda prepared for a client are protected Sixth, the attorney-client privilege does not attach to simple editing or 'word-smithing' by counsel.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS
Comment:

key case


Chapter: 15.203
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: 15.203
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: 15.203
Case Name: Nalco Company LLC v. Pall Corporation, 16-cv-6755 (PKC), 2017 U.S. Dist. LEXIS 63122 (S.D.N.Y. April 13, 2017)
(holding that the work product doctrine did not protect documents required by a contract; "The claim of privilege fails because Nalco has not sustained its burden of showing that the elements of the attorney-client privilege are met. Nalco elected to meet its burden solely by reference to the Silberberg [a Dorsey & Whitney partner] declaration and exhibits thereto. In that declaration, Nalco has disclosed the only piece of legal advice it claims: that Silberberg and an in-house lawyer told Anderson to check the accuracy of the July 2016 Spreadsheet before he and others testified at their depositions. . . . There is no claim in the declaration that any lawyer told Anderson how to go about checking the accuracy of the figures. Nor is there a claim that Anderson had questions of a lawyer about whether certain sales or other data should be included in the Year Two calculation. There is no claim that any lawyer provided legal advice about the revised spreadsheet after being shown a draft thereof. The claim of attorney-client privilege fails because there was no confidential communication for the purpose of obtaining or giving legal advice other than arguably the one disclosed in the declaration.")

Case Date Jurisdiction State Cite Checked
2017-04-13 Federal NY

Chapter: 15.203
Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "Log Entry 1592 is not privileged and should be produced in an unredacted version. The section of the email chain that is redacted copies an attorney (Jennifer McCabe), but does not discuss any legal issues. The subject matter being discussed relates to the performance of certain SharkNinja products, and no legal issues are mentioned at all.")

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

Chapter: 15.203
Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "Log Entry 2480 is not privileged and should be produced in an unredacted version. The section of the email chain that is redacted copies an attorney (Jennifer McCabe), but does not discuss any legal issues. The email seeks 'initial reactions' for what appears to be a thirty second video (likely an advertisement), but it does not request legal advice from McCabe or discuss any legal issues. The main purpose of the email appears to be marketing SharkNinja products.")

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

Chapter: 15.203
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 44192 (D. Kansas March 24, 2017)
(in an opinion by Special Master, finding that a former Monsanto lawyer and business person did not resist discovery after being designated by defendant as a testifying expert; "Doc. No. 18: Monsanto claims that this document is a draft document regarding Identity Preserved Production and Pollen Movement that contains legal comments and revisions by Mr. Carrato regarding status of approvals and how to deal with identity preserved crop. With the exception of pages 1-6, which shall be redacted, the balance of the document (pages 7-9) shall be produced on the basis that it predominantly concerns non-privileged business information concerning cross-pollination, along with Mr. Carrato's editorial redlines. The attorney-client privilege does not attach to simple editing or 'word-smithing' by counsel.")

Case Date Jurisdiction State Cite Checked
2017-03-24 Federal KS

Chapter: 15.203
Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs also argue that Wells Fargo improperly designated as confidential documents containing only factual information. Plaintiffs cite as exemplars three charts . . . to demonstrate that many of the allegedly privileged documents are spreadsheets summarizing trust data and are therefore factual business documents that should be disclosed."; "The relevant inquiry with respect to Exhibits 11 (and the related chart in Exhibit 14), 15, and 16 is whether these charts were created for the purpose of obtaining legal advice or whether they were otherwise created in the ordinary course of Wells Fargo's business. . . . Based on the current record, Wells Fargo has not met its burden of establishing that these charts should be withheld. Exhibit 11 (and Exhibit 14) appears to be a chart that was prepared in the ordinary course of Wells Fargo's business. Indeed, the Court suspects that this document (at least in large part) was generated by Wells Fargo as part of its management of the trusts, not by counsel. It would be surprising that a lawyer would have been responsible for inputting this sheer volume of data into a spreadsheet. Similarly, Exhibit 15 is a compilation of repurchase and loan file review information that appears to have been extracted from a database. In its February 7, 2017 submission, Wells Fargo represented that it has already produced the non-privileged portions of Exhibit 15 but does not indicate what those portions were. Regarding Exhibit 16, Wells Fargo asserts that it consists of documents and communications shared between Wells Fargo and its attorneys in order for counsel to determine whether and EOD had occurred. But it is not clear what the role of counsel was in preparing Exhibit 16."; "[T]he Court will reserve decision pending further submission by Wells Fargo."; "Wells Fargo shall submit a declaration of a person with knowledge to show that these charts were created for the purpose of obtaining legal advice, not for the purpose of conducting its ordinary business. The declarant should describe, in detail, each column in each of the charts and explain whether the information in each column reflected attorney advice or was compiled for the purpose of obtaining legal advice.")

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

Chapter: 15.203
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "Although the email is written to counsel asking him to approve something, it is not an attorney-client privileged communication for a couple of reasons. First, the request seems more business in nature as opposed to legal."; "Second, there are multiple parties to the conversation that remove it from any privileged protection that might otherwise exist. Defendant has not established that any of the copied recipients are necessary to the privileged communication. This especially applies to Ms. Weston, an employee of XEROX, a copy company. A critical element of the attorney-client privilege is the concept of confidentiality; an intention to keep the communication closely-held. Parties cannot have an expectation of confidentiality -- at least not to the level that the communication could be privileged – when a non-Hertz employee is involved in the communication, and there is no treatment of the document as confidential.")

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

key case


Chapter: 15.203
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: 15.203
Case Name: Doe v. Tippecanoe School Corp., Cause No.: 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)
("The pages at issue here are part of a larger document that was created for the purpose of training TSC employees. The document's title and deposition testimony by TSC employees indicate that the training was meant to enable the employees to investigate and prevent inappropriate relationships between TSC's students and staff. Though the document may not have been created if the instant litigation had not been initiated, the primary motivating purpose behind the creation of the document was to train staff to identify or avoid future incidents, not for use in defending the instant lawsuit or any future theoretical lawsuit.")

Case Date Jurisdiction State Cite Checked
2017-01-10 Federal ID

Chapter: 15.203
Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2016)
(acknowledging that a public relations agent can be within privilege protection, but finding that the public relations consultant in this case was providing independent public relations advice in some of the withheld documents rather than assisting a lawyer in giving legal advice; "[I]t is unquestionably the case that communications between and amongst Riddell and MSL [Public relations firm], et al., for the purpose of securing legal advice are privileged. It is clear, however, that not all communications with an attorney's agent are protected. To be protected communications with a third-party agent must be made in confidence for the purpose of obtaining legal advice from the lawyer. Id. If the communication would have been made in the normal course of business even if the attorney did not need the information to give legal advice, the communication is not privileged."; "Having reviewed the 62 documents at issue, the Court finds that most of the documents are not privileged. At bottom, most of the challenged documents address corporate 'messaging' concerns and not legal issues or advice. This accounts for why most of the documents were prepared by sales personnel and communications managers. Without summarizing each document, the documents generally concern non-legal business issues such as communications between and about high schools and colleges, comments on competitors' helmets and literature, responses to media inquiries, content of press releases, marketing slides, and content of marketing documents. These are all business and not legal topics.")

Case Date Jurisdiction State Cite Checked
2016-12-05 Federal NJ

Chapter: 15.203
Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2016)
("In instances of mixed communications the Court must determine 'whether the primary purpose and content of the [communication] is predominantly legal.'"; "'Rather than using a 'primary purpose' test for mixed communications, some courts use a 'but for' test.'"; "The test for the application of the attorney-client privilege to communications with legal counsel in which a mixture of services are sought is whether counsel was participating in the communications primarily for the purpose of rendering legal advice or assistance. Therefore, merely because a legal issue can be identified that relates to on-going communications does not justify shielding the communications from discovery. The lawyer's role as a lawyer must be primary to her participation.")

Case Date Jurisdiction State Cite Checked
2016-12-05 Federal NJ

Chapter: 15.203
Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2016)
(acknowledging that a public relations agent can be within privilege protection, but finding that the public relations consultant in this case was providing independent public relations advice in some of the withheld documents rather than assisting a lawyer in giving legal advice; "To be sure, however, some of MSL's documents are privileged. These are instances where MSL's documents indicate actual legal advice was conveyed or where this is apparent.")

Case Date Jurisdiction State Cite Checked
2016-12-05 Federal NJ

Chapter: 15.203
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: 15.203
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("[T]he Court will uphold Boehringer's assertion of the attorney-client privilege. Only a few documents reflect express requests for or provision of legal advice. Rather, as might be surmised from the discussion above, most of the documents are mere compilations of facts. Yet factual material compiled during a corporation's internal investigations is analyzed differently under the work-product doctrine and the attorney-client privilege. For the attorney-client privilege, unlike the work-product doctrine, facts collected at counsel's request for later use in providing legal advice are protected. Moreover, the Court of Appeals has endorsed a liberal standard for finding that a communication falls within the attorney-client privilege, finding that a communication should be protected if 'obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.' In re Kellogg, 756 F.3d at 756 [In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757-60, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)]. While Boehringer's documents may have had some business purposes, it is equally clear that one of their significant purposes was to enable Persky and her co-counsel to give Boehringer legal advice.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 15.203
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("[T]he Court of Appeals held that the 'primary purpose' test for the attorney-client privilege is not a but-for test, in contrast to the work-product context. . . . Instead, the test for attorney-client communications asks whether 'obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.'. . . The D.C. Circuit rested its conclusion on two related principles. . . . First, contemporary corporate life means that many in-house investigations serve both business and legal purposes. . . . Second, given that these purposes may overlap, it does not make sense for courts to try and draw a bright line between the two. . . . All that is required is that obtaining or providing legal advice be a primary purpose of the communication, not the primary purpose.")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal DC
Comment:

key case


Chapter: 15.203
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; "F&D asserts Mr. Rush of F&D's Corporate Law Department functioned at all times as an attorney counseling F&D on its decision to rescind the Bank's D&O policy. In contrast, F&D acknowledges Ms. Sherrod, Ms. Cavey, Mr. Schoenhaar, and Mr. Real engaged in claims handling or underwriting. My in camera review of the privileged documents confirms Mr. Rush does not have relevant, non-privileged, information regarding F&D's decision to rescind the policy in question. There is no evidence Mr. Rush performed anything but legal work for F&D in relation to its rescission of the Bank's D&O policy. He did not act as a claims investigator or a business advisor. My review found that his sole function was legal in nature, primarily acting as a liaison with outside counsel.")

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

Chapter: 15.203
Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)
("Truscott's purported instruction to her lawyer not to disclose the Heartland report was not given for the purpose of seeking legal advice and therefore is not protected by the attorney-client privilege. . . . Consequently, Truscott's testimony about the contents of that instruction, or the fact that Truscott gave it, did not waive the attorney-client privilege regarding other, privileged communications. And because the instruction was not privileged, Truscott's objection to testimony concerning it was not well-founded.")

Case Date Jurisdiction State Cite Checked
2016-05-23 Federal MN

Chapter: 15.203
Case Name: Thomas v. Kellogg Company, Case No. C13-5136-RBL, 2016 U.S. Dist. LEXIS 66881 (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

Chapter: 15.203
Case Name: Thomas v. Kellogg Company, Case No. C13-5136-RBL, 2016 U.S. Dist. LEXIS 66881 (W.D. Wash. May 20, 2016)
(finding that work prepared by a consulting firm or Kellogg did not deserve privilege or work product protection; noting that plaintiff's Rule 30(b)(6) witness did not know who commissioned the report; also noting that the court realized the engagement letter between Kellogg and the consultant and the consultant's report itself; "A review of the report confirms that it was not prepared for Kellogg's attorneys so they could provide legal advice; it was patently prepared to assist Kellogg's in making its workforce more efficient and 'effective in growing sales' -- quintessential business advice."; "The engagement letter (sent by Willard Bishop to a Mr. Martin at 'DSD cost control'), the agreement, and the Report itself all confirm what the 30(b)(6) witness explained: the Report was a study of the efficiencies or 'effectiveness' of the RSRs."; "[N]one of the documents references any legal issue or litigation. And while virtually all business decisions can or do have 'legal implications' that does not mean that every business decision run through an in-house attorney is attorney-client privileged."; also finding the work product doctrine inapplicable)

Case Date Jurisdiction State Cite Checked
2016-05-20 Federal WA
Comment:

key case


Chapter: 15.203
Case Name: U.S. Bank Nat'l Ass'n v. Lightstone Holdings LLC, No. 651951/2010, 2016 NY Slip Op 30644(U), at 7 (N.Y. Sup. Ct. Apr. 12, 2016)
("Ultimately, which party had the priority to the 100 million dollar guaranty, is a factual business term rather than an invitation for legal advice. At the time the subject email chain was generated, the ICA [Inter-creditor Agreement] was a living and breathing document that was subject to revisions. In the scope of the broader business transaction, Cadwalder's [non-party law firm] clients were presenting terms of the ICA to potential purchasers and asking for their comments upon it. The communication was intended 'to assist counsel in performing other services, such as the provision of business advice or the performance of such functions as negotiating purely commercial aspects of a business relationship.' . . . Accordingly, the communication in the subject email chain was not predominately legal advice and therefore not privileged.")

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

Chapter: 15.203
Case Name: In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liability Litig., Master File No. 1:00-1898, MDL 1358 (SAS), 2016 U.S. Dist. LEXIS 46294, at *17-18 (S.D.N.Y. Apr. 4, 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

Chapter: 15.203
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding that the attorney-client privilege did not protect documents about how a company could prevent generic pharmaceutical companies from entering a market; "In general, it appears that defendants have taken an overly expansive view of which documents are privileged simply because Ms. Manogue and other attorneys (either at PWR, whose role is discussed more in-depth below, or at Teikoku) drafted them or were copied on them. Some of the documents submitted for in camera review are devoid of legal advice, but concern business matters. For example, Exhibit 3 is a chain of emails attaching a draft of the Citizen Petition amendment. The emails concern the purpose of a Citizen Petition and the timing for filing, which read in context are business matters not legal advice or communications seeking legal advice. Exhibits 5, 6 & 7 consist of a cover email and identical 'Citizen Petition Timeline' slides. There is no legal advice contained or sought in the email or slides, and the slides themselves appear to be based on publicly available information, plus what may be an internal plan or suggestion on timing for an additional Citizen Petition amendment. These documents are devoid of legal advice. While they may have been prepared for a discussion between Endo, Teikoku, and PWR as to the timing of a Citizen Petition amendment or whether to file a new Citizen Petition, that does not make the contents of the emails and identical slides protectable as attorney-client information. Exhibit 8 . . . Is a cover email from Caroline Manogue to board members and others at Endo attaching the response from the FDA denying the Citizen Petition. That email was forwarded by Endo's former CFO Levin to additional people at Endo seeking input on various business matters, and an email response to Levin from one of the subsequent recipients about expected financial reporting in response to the FDA's action. These documents are concerned with the business implications of the FDA's actions. Other than the first sentence at the top of the email chain (regarding a conversation with Manogue), there is no legal advice provided or sought. Other than that one sentence, this communication is not protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-07 Federal CA

Chapter: 15.203
Case Name: Moore v. Lowe's Home Centers, LLC, Case No. 14-1459 RJB, 2016 U.S. Dist. LEXIS 20630 (W.D. Wash. Feb. 19, 2016)
(analyzing work product protection for an employment discrimination investigation; "If communications or documents are not created for the predominant purpose of legal advice, but rather for business or HR advice, they are not privileged.")

Case Date Jurisdiction State Cite Checked
2016-02-19 Federal WA

Chapter: 15.203
Case Name: Bowman v. Washington County Kennel Club, Inc., Case No. 5:15cv257-RH/GRJ, 2016 U.S. Dist. LEXIS 18948 (N.D. Fla. Feb. 17, 2016)
(noting that the defendant had abandoned a Faragher-Ellerth defense, and therefore did not trigger a waiver; "In its answer to the complaint in this action, the Club apparently invokes Faragher and Ellerth as the ninth defense."; "Ms. Bowman says Ms. Faragasso's March 5 letter and related communications are relevant to the ninth defense and that a party who asserts such a defense waives the attorney-client privilege for communications like these. In response, the Club has explicitly abandoned the ninth defense. The defense apparently would fail anyway, because Ms. Bowman asserts discrimination only in tangible employment actions -- actions to which the Faragher and Ellerth defense does not apply."; "Ms. Faragasso's letter fits squarely within the attorney-client privilege. The letter sets out the attorney's opinion responding to the client's request for advice on a legal matter, and the letter almost certainly includes factual information provided by the client. The advice was provided in confidence and has not been disclosed to others."; "In addition, these circumstances illustrate the utility of the attorney-client privilege when functioning as intended. One of the most important tools for bringing about corporate compliance with governing laws is free communication between a corporate decision maker and an attorney who will speak truth to power. The privilege exists to promote free communication of that kind. This record includes only allegations; nothing has been proved. But one assertion is that after this investigation, Ms. Bowman's hours were restored. It is at least possible that Ms. Faragasso's report caused the restoration of hours that had been discriminatorily reduced. If that is what happened, it is also possible that without an effective attorney-client privilege, the Club would not have consulted Ms. Faragasso, and the discriminatory reduction of hours would not have ended. Bringing about compliance with governing laws is one goal of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-02-17 Federal FL
Comment:

key case


Chapter: 15.203
Case Name: Bowman v. Washington County Kennel Club, Inc., Case No. 5:15cv257-RH/GRJ, 2016 U.S. Dist. LEXIS 18948 (N.D. Fla. Feb. 17, 2016)
(noting that the defendant had abandoned a Faragher-Ellerth defense, and therefore did not trigger a waiver; "In its answer to the complaint in this action, the Club apparently invokes Faragher and Ellerth as the ninth defense."; "Ms. Bowman says Ms. Faragasso's March 5 letter and related communications are relevant to the ninth defense and that a party who asserts such a defense waives the attorney-client privilege for communications like these. In response, the Club has explicitly abandoned the ninth defense. The defense apparently would fail anyway, because Ms. Bowman asserts discrimination only in tangible employment actions -- actions to which the Faragher and Ellerth defense does not apply."; "Ms. Faragasso's letter fits squarely within the attorney-client privilege. The letter sets out the attorney's opinion responding to the client's request for advice on a legal matter, and the letter almost certainly includes factual information provided by the client. The advice was provided in confidence and has not been disclosed to others."; "In addition, these circumstances illustrate the utility of the attorney-client privilege when functioning as intended. One of the most important tools for bringing about corporate compliance with governing laws is free communication between a corporate decision maker and an attorney who will speak truth to power. The privilege exists to promote free communication of that kind. This record includes only allegations; nothing has been proved. But one assertion is that after this investigation, Ms. Bowman's hours were restored. It is at least possible that Ms. Faragasso's report caused the restoration of hours that had been discriminatorily reduced. If that is what happened, it is also possible that without an effective attorney-client privilege, the Club would not have consulted Ms. Faragasso, and the discriminatory reduction of hours would not have ended. Bringing about compliance with governing laws is one goal of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-02-17 Federal FL
Comment:

key case


Chapter: 15.203
Case Name: United States v. Glaxosmithkline LLC, No. 15-1434, 2016 U.S. App. LEXIS 2694 (1st Cir. App. Feb. 17, 2016)
(upholding the trial court's refusal to conduct an in camera review, and agreeing with the trial court that a company's internal communications about a possible dangerous employee would necessarily involve legal advice as well as business advice; "Hamrick's primary argument for in camera review of these communications focuses on the supposed role of the GSK lawyers involved. He alleges that the lawyers were acting not as lawyers, but as decision-makers on the business side."; "The principal weakness in Hamrick's argument arises out of the nature of the business decision at issue: How to deal with an employee who was threatening workplace violence, who might be a qui tam relator, and who may be suffering from a mental disorder? Common sense says that a sophisticated employer would invariably consult closely with legal counsel on such a matter, and that the line between legal advice about what to do and business advice about whether to do it is more abstract than concrete. Indeed, in a case such as this, the legal advice GSK received could well have been to remove Hamrick from the workplace in light of the liability risk he posed."; "This is all to say that the circumstances out of which the assertion of privilege arises here present no particular reason to doubt that the lawyers were giving legal advice. The record testimony aligns with this conclusion: GSK witnesses testified that several individuals in management made the decision to terminate Hamrick, and that they did so after soliciting recommendations from legal counsel. In other words, GSK proceeded precisely as one would have expected it to proceed.")

Case Date Jurisdiction State Cite Checked
2016-02-17 Federal

Chapter: 15.203
Case Name: Wit v. United Behavioral Health, Case Nos. 14-cv-02346- & -05337-JCS, 2016 U.S. Dist. LEXIS 7242, at *11 (N.D. Cal. Jan. 21, 2016)
("[T]o qualify for protection under the attorney-client privilege, the party asserting the privilege must demonstrate that the communications were made 'primarily for the purpose of generating legal advice.'" (citation omitted))

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

Chapter: 15.203
Case Name: In re Lumber Liquidator S Chinese-Manufactured Flooring Products, MDL No. 1:15-md-02627, 2015 WL 947286 (E.D. Va. Dec. 28, 2015) (unpublished)
(finding that defendant's crisis management consultant met the "functional equivalent" standard, but that many of the withheld documents did not intrinsically deserve privilege protection; "Defendant hired Mercury to provide various and expanding services described in summary as 'crisis management' as the events leading to litigation unfolded. Defendant contends that Mercury was so tightly integrated into defendant's damage control operation that Mercury's personnel became 'the functional equivalent of employees,' so that it meets the standard for inclusion within the attorney-client privilege. The court agrees that Mercury's relationship with defendant meets that standard, so that its personnel would not be privilege-negating 'outsiders,' and any communication involving Mercury that otherwise met the standard for invocation of the privilege would qualify for non-disclosure."; "[T]he court finds that counsel engaging with Mercury personnel were assisting defendant only in the business activity of managing a public/customer relations crisis, with no observable interface, much less overlap, between that effort and one to plan the defense of claims made in litigation."; "There are a few communications involving Mercury that relate to possible administrative proceedings before CARB or another agency and how to deal with that agency in that context. When Mercury personnel participated in communication about interaction with an agency (e.g. the redacted portion of Exhibit 5) as distinguished from public relations efforts, then that material may be redacted or withheld. All the rest of the material tendered for review (e.g. beginning with 'Second . . .' in the redacted portion of Exhibit 7) relates to counsel involved in quintessential business advice as distinguished from legal advice or strategy, and it and all similar material must be produced."; "If defendant contends that other, dissimilar material relating to Mercury's work is privileged or protected, defendant may log and produce it for in camera review.")

Case Date Jurisdiction State Cite Checked
2015-12-28 Federal VA
Comment:

key case


Chapter: 15.203
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; "The second redacted portion in the 'AndroGel 1.62% BE' paragraph contemplated a business decision which had legal implications. Although this redacted portion 'examined the legal implications of some of those concerns'. . . It ultimately sought to prevent a product launch delay because be harmful to its business interests. MacAllister [an in-house lawyer who also had a business title] asked his senior management colleagues 'WILL YOU PLEASE LET ME KNOW YOUR THOUGHTS ON THIS POINT?,' thereby eliciting business advice from business colleagues rather than providing legal advice.")

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

key case


Chapter: 15.203
Case Name: Wellin v. Wellin, C.A. No. 2:13-CV-1831-DCN, C.A. No. 2:13-CV-3595-DCN, C.A. No. 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
("To be privileged, the communication must relate to a fact of which the attorney was informed by her client, outside the presence of strangers, for the purpose of securing primarily an opinion on law, legal services, or assistance in some legal proceeding.")

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

Chapter: 15.203
Case Name: EEOC v. Texas Roadhouse, Inc., Civ. A. No. 11-cv-11732-DJC, 2015 U.S. Dist. LEXIS 161929 (D. Mass. Dec. 2, 2015)
("The attorney-client privilege extends to communications between corporate officers and in-house counsel, but the communications must relate to legal matters, not business strategy or negotiation. . . . Distinctions between legal work and business matters can be hard to draw.")

Case Date Jurisdiction State Cite Checked
2015-12-02 Federal MA

Chapter: 15.203
Case Name: Turubchuk v. E.T. Simonds Construction Co., Case No. 3:12-cv-594-SMY-DGW, 2015 U.S. Dist. LEXIS 133512 (S.D. Ill. Sept. 30, 2015)
(analyzing privilege issues in connection with a joint venture against who the plaintiff made a personal injury claim; "ETS argues that communications with Bituminous Insurance Company ('BIC') is privileged because it represented the joint venture in the 2007 Case. Defendant does not explain, however, how BIC's communications with a joint venture are subject to a privilege that ETS can assert as an individual entity. While '[j]oint ventures are not distinct legal entities'. . . ETS does not provide any explanation or legal authority that a privilege that inures to the joint venture can also extend to ETS as a member of that joint venture. In light of the strict construction of this privilege, ETS must do more than just assert that the privilege applies. As noted above, the privilege applies when the dominant purpose of the communication is made to secure an attorney to protect the interests of the insured. In the 2007 case, the dominant purpose of any communication was to protect the joint venture, not ETS. Any communication regarding ETS as an individual company, then, would not be protected. Second, it appears that ETS had an individual policy with BIC, separate from BIC's joint venture policy. There is no claim that communications as to that separate policy are privileged. And, ETS makes no showing that there was a duty to defend ETS in the 2007 Case such that its communications with BIC would be privileged. Finally, ETS' communications with other insurance companies are not privileged because there has been no showing (by ETS) that they had a duty to defend."; "'ETS has not provided the Court with a copy of the Joint Venture agreement or any case authority that states that a member of the joint venture could unilaterally assert a privilege on behalf of the joint venture (especially since Southern Illinois Asphalt Company, Inc. has seemingly waived such a privilege).'")

Case Date Jurisdiction State Cite Checked
2015-09-30 Federal IL

Chapter: 15.203
Case Name: Obeid v. La Mack, 14 cv. 6498 (LTS) (MHD), 2015 U.S. Dist. LEXIS 127327 (S.D.N.Y. Sept. 16, 2015)
("[T]he privilege does not protect communications designed to facilitate the performance by the attorney of services not of a legal nature, such as the provision of business advice or the performance of such functions as negotiating purely commercial aspects of a business relationship.").

Case Date Jurisdiction State Cite Checked
2015-09-16 Federal NY

Chapter: 15.203
Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("The facsimile cover sheet that accompanied Document No. 2 included a request by Tamblyn [School district superintendent] for legal advice from Gerner [School district's outside counsel] in his capacity as an attorney. . . . The typed portion of Document No. 2 drafted by Tamblyn was expressly designated as a 'Confidential Draft.'. . . Gerner in turn designated his marked-up version of the draft Letter as both 'Privileged and Confidential.'. . . And there is no evidence of waiver. Accordingly, Tamblyn's confidential statements sent to Gerner for the purpose of seeking legal advice and Gerner's confidential handwritten comments made in response qualify for protection under the attorney-client privilege.")

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

Chapter: 15.203
Case Name: Beachfront North Condominium Assoc., Inc. v. Lexington Ins. Co., Civ. No. 14-6706 (RBK/JS), 2015 U.S. Dist. LEXIS 102917 (D.N.J. Aug. 5, 2015)
(analyzing work product issues in a first party insurance context; "[N]ot all communications between BNCA [Condominium association] and its counsel are privileged. . . . The only communications that are privileged are those that are made for the purpose of securing legal advice.")

Case Date Jurisdiction State Cite Checked
2015-08-05 Federal NJ

Chapter: 15.203
Case Name: BEW Parking Corp. v. Apthorp Associates LLC, 601155/09, 2015 N.Y. Misc. LEXIS 857 (N.Y. Sup. Ct. March 24, 2015)
(finding that defendant's agents were within the privilege, because the defendant did not have any employees of its own; "Apthorp [Owner and landlord of a parking garage in New York] did not waive privilege by making a selective production of privileged documents. The documents produced by Apthorp between its lawyer and its agents were unprivileged communications because they primarily concerned business matters, not legal matters. The communications were made to provide updates about the garage closure, pass information about bids, and coordinate the DOB's inspection of the garage.")

Case Date Jurisdiction State Cite Checked
2015-03-24 State NY

Chapter: 15.203
Case Name: Casey v. Unitek Global Svcs., Inc., Civ. A. 14-2671, 2015 U.S. Dist. LEXIS 15715 (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."

Case Date Jurisdiction State Cite Checked
2015-02-09 Federal PA

Chapter: 15.203
Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("The Privilege Log prepared by Allstate describes many documents that are plainly not communications between attorney and client for the purpose of procuring or providing legal advice. For example, '6. Adjuster evaluation notes created based in part on attorney reports' does not describe a communication to or from an attorney created for the primary purpose of soliciting legal advice. Allstate argues in its Memorandum filed July 29, 2015, with no citation to authority, 'the privilege protects the direct communications, and documents and opinions created using these communications, and the privilege protects reports, analysis, and conclusions based on the attorneys' impressions, thoughts, and analysis.'. . . The Court finds that this declaration does not accurately recite Virginia law regarding the attorney-client privilege.")

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

Chapter: 15.203
Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("For the privilege to apply, the communication must be made for the purpose of 'procuring or providing legal advice.'")

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

Chapter: 15.203
Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("'For the attorney-client privilege to apply, the communication 'must be primarily or predominately of a legal character.'")

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

Chapter: 15.203
Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. 2015)
("[T]he communication referenced in Privilege Log Number 1 is an email from defendant to Sunrise regarding various loans taken by plaintiff. The email has nothing to do with the provisioning or seeking of legal advice; instead, it is merely a request for clerical information from the client. The primary purpose of the communication is the conduct of defendant's debt-collection business, not providing legal advice. Applying a similar predominant-purpose rule, several federal courts have required that the claimant 'demonstrate that the communication would not have been made but for the client's need for legal advice or services". . . Here, this communication would have been made regardless of the client's need for legal advice. . . As such, this communication does not fall within the privilege.")

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal DC

Chapter: 15.203
Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. 2015)
(focusing on the four corners of a document in denying privilege protection; "Privilege Log Number 2 involves the discussion of a settlement of plaintiff's debts. Like Privilege Log Number 1, this communication is not protected by the privilege because it does not involve a request for, or provision of, legal advice. Rather, it constitutes a part of defendant’s ordinary debt collection activities.")

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal DC

Chapter: 15.203
Case Name: In re McDonald, Case No. 13-10663C-7G, Case No. 13-10664C-7G, Jointly Administered in Case No. 13-10661, 2014 Bankr. LEXIS 3780, at *11 (M.D.N.C. Sept. 3, 2014)
("[T]here are various types of communications between attorney and client that are not privileged, as for example: communications made to an attorney seeking business judgment or advice, . . . Communications in which an attorney conveys to the client facts acquired from other persons or sources, . . . ; and pre-existing documents furnished by the client to the attorney that could have been obtained by court process while they were in the possession of the client")

Case Date Jurisdiction State Cite Checked
2014-09-03 Federal NC

Chapter: 15.203
Case Name: International Cards Co., Ltd. v. MasterCard International Inc., 13-CV-02576 (LGS) (SN), 2014 U.S. Dist. LEXIS 125370 (S.D.N.Y. Aug. 27, 2014)
("This email was sent from a businessperson to 11 businesspeople and one in-house attorney. It concerns a future meeting at which the participants planned to discuss items including 'business strategy in regards to ICC' and the 'financials of ICC.' Document 105 is predominantly a business document that does not evince any legal advice or legal matters. Therefore, Document 105 is not privileged and must be produced in its entirety.")

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

Chapter: 15.203
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *14-15 (D.C. Cir. June 27, 2014)
(granting petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "In this case, there can be no serious dispute that one of the significant purposes of the KBR internal investigation was to obtain or provide legal advice. In denying KBR's privilege claim on the ground that the internal investigation was conducted in order to comply with regulatory requirements and corporate policy and not just to obtain or provide legal advice, the District Court applied the wrong legal test and clearly erred.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 15.203
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *10 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation and even if the investigation was mandated by regulation rather than simply an exercise of company discretion.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 15.203
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, *13-14 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "[I]t is clearer, more precise, and more predictable to articulate the test as follows: Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication? . . . Sensibly and properly applied, the test boils down to whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication. In the context of an organization's internal investigation, if one of the significant purposes of the internal investigation was to obtain or provide legal advice, the privilege will apply. That is true regardless of whether an internal investigation was conducted pursuant to a company compliance program required by statute or regulation, or was otherwise conducted pursuant to company policy.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 15.203
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *11-12 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "The District Court erred because it employed the wrong legal test. The but-for test articulated by the District Court is not appropriate for attorney-client privilege analysis. Under the District Court's approach, the attorney-client privilege apparently would not apply unless the sole purpose of the communication was to obtain or provide legal advice. That is not the law.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 15.203
Case Name: AU Electronics, Inc. v. Harleysville Group, Inc., Case No. 13 C 5947, 2014 U.S. Dist. LEXIS 72862 (N.D. Ill. May 28, 2014)
(analyzing whose in a third party insurance coverage dispute; "Lawyers may play a number of roles in the decision to deny a claim, which, for an insurance company, is a business decision. As a general proposition, the fact that a lawyer is part of a business decision does not, by itself, cloak the communications relating to that decision with privilege. That does not mean, however, that there can be never be any privilege for a communication with a lawyer during the course of the decision. It depends on the facts, including the nature of the communication and the role of the lawyer. In Illinois, communications between an insurer and its coverage counsel generally are privileged.")

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

Chapter: 15.203
Case Name: Federal Housing Finance Agency v. HSBC North America Holdings Inc., 11 Civ. 6189 (DLC),11 Civ. 6190 (DLC),11 Civ. 6193 (DLC),11 Civ. 6198 (DLC),11 Civ. 6200 (DLC),11 Civ. 6201 (DLC),11 Civ. 7010 (DLC), 2014 U.S. Dist. LEXIS 46519 (S.D.N.Y. April 3, 2014)
("[T]o the extent an attorney is making a judgment about the probability of a loan requiring repurchase, it is not clear from the submissions why the exercise of that judgment constitutes legal advice. Accordingly, it is hereby" ORDERED that Nomura may make a supplemental submission to support a finding of privilege.")

Case Date Jurisdiction State Cite Checked
2014-04-03 Federal NY

Chapter: 15.203
Case Name: McAdam v. State Nat'l Ins. Co., Case No. 12-cv-1333 BTM-MDD, 2014 U.S. Dist. LEXIS 37808, at *8 (S.D. Cal. Mar. 21, 2014)
(analyzing documents in a first party insurance context; "Sometimes it is difficult to determine whether the attorney-client privilege attaches to a communication, particularly if there was ostensibly more than one purpose for the correspondence. If it served a dual purpose, one for transmittal to an attorney in the course of professional employment and one not related to that purpose, the question is which purpose predominates.")

Case Date Jurisdiction State Cite Checked
2014-03-21 Federal CA B 8/14

Chapter: 15.203
Case Name: McAdam v. State Nat'l Ins. Co., Case No. 12-cv-1333 BTM-MDD, 2014 U.S. Dist. LEXIS 37808, at *9-10 (S.D. Cal. Mar. 21, 2014)
(analyzing documents in a first party insurance context; "It follows that, when an insurer hires an attorney both to provide a legal opinion and to serve as a claims adjuster, 'the court must make a determination of which purpose was primary.' . . . The objectors argue that the predominant purpose test must be applied on a document-by-document basis. . . . The Court disagrees. '[I]t is not the dominant purpose of a particular communication that dictates whether the attorney-client privilege is applicable; rather the issue is what was the dominant purpose of the relationship.' . . . If the dominant purpose of the relationship was attorney-client at the time of the communications, they are privileged. If not, they are generally discoverable, though the producing party may request an in camera inspection of a particular communication to support a claim that it should be protected nonetheless.")

Case Date Jurisdiction State Cite Checked
2014-03-21 Federal CA B 8/14

Chapter: 15.203
Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2014 U.S. Dist. LEXIS 31330, at *10-11 (S.D. Ohio Mar. 11, 2014)
("Plaintiffs are off-kilter: in camera review of the documents reveals that the legal advice provided by outside counsel in the documents predominates over other information. Indeed, it is impossible to glean any substantive business advice given by outside counsel on the face of the documents. The documents do not contain communications with outside legal counsel concerning the type of business -- regional bus transportation/public transit -- Defendant engages in. Outside counsel is not advising Defendant about how to operate a bus company or a public-transit service. The documents do not contain business advice on strategic topics, such as marketing, planning, or operational strategies or goals. The documents are similarly silent on operational tactics, such as what routes Defendant should offer, what schedule its buses should run on, or what fares it should charge. Contrary to Plaintiff's view, the fact that the documents are informative about routine human resources issues does not transform the legal advice outside counsel provided on those matters into business advice.")

Case Date Jurisdiction State Cite Checked
2014-03-11 Federal OH B 8/14

Chapter: 15.203
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *12 (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; "[N]o attorney-client privilege is afforded by virtue of Estreicher's [consultant] status as an attorney. . . . The lawyer must not only be functioning as an advisor, but the advice given must be predominantly legal, as opposed to business, in nature).")

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

Chapter: 15.203
Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *15-16, *16 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "A document also is not privileged merely because it was sent to or received by an attorney and the client. The document must contain confidential communications regarding legal advice. . . . Documents made at the request of in-house counsel that contain merely business communications are not privileged."; "Additionally, the fact that a document was reviewed by legal counsel does not convert it into a privileged document.")

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

Chapter: 15.203
Case Name: Vector Capital Corp. v. Ness Techs., Inc., No. 11 Civ. 6259 (PKC), 2014 U.S. Dist. LEXIS 7694, at *5-6, *6, *6-7, *7 (S.D.N.Y. Jan. 8, 2014)
(analyzing privilege issues in a lawsuit brought by a potential acquiring company which alleged that the potential target did not adequately disclose documents during a due diligence process; noting that the potential target sought discovery of the potential acquiring company's lawyer's notes prepared during the due diligence process; concluding that purely factual portions of the notes could be separated from the acquiring company's lawyer's opinions, and should be produced; "Here, the documents at issue are communications between Vector and Vector's outside counsel in the course of a due diligence investigation of Ness. They contain factual information acquired from Ness and from third parties by Vector's counsel and updates regarding the status of receipt of factual information from Ness and third parties, hi [sic] obtaining information from the acquisition target, Ness, Vector's counsel was acting as agent and principally for the business purpose of determining whether the acquisition was a sound investment."; "This fact-acquisition process in the course of a business transaction is no more protected by privilege when conducted by an attorney than if conducted by an accountant, engineer or head of a business unit. The factual information presented is not privileged merely by the use of an attorney as a conduit for the information."; "The documents also contain analysis of that factual information and legal advice based upon the information. This analysis and advice by an attorney qualifies for protection under the attorney-client privilege. But unlike in Spectrum [Spectrum Sys. Int'l Corp. v. Chem. Bank, 581 N.E.2d 1055 (N.Y. 1991)], the factual information can be severed from the analysis and legal advice."; "References in the documents such as the following reflect factual information, not legal advice, and must be produced: 'The due diligence material in the Data Room includes a list . . . .' 'S&S has requested the Company to provide the following . . . .' (BER-E-00003352), 'I spoke with [Ness employee] . . . .' (AME-E-00004231), and 'The Company further provided . . . .' (BER-E-00008490).")

Case Date Jurisdiction State Cite Checked
2014-01-08 Federal NY B 6/14

Chapter: 15.203
Case Name: Meighan v. Transguard Ins. Co. of Am., Inc., 298 F.R.D. 436, 444 (N.D. Iowa 2014)
(finding that an insurance company's reserve information deserved both privilege and work product protection; "Many courts have found an insurer's reserve information is privileged.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal IA B 8/14

Chapter: 15.203
Case Name: Freescale Semiconductor, Inc. v. Maxim Integrated Prods., Inc., A-13-CV-075-LY, 2013 U.S. Dist. LEXIS 155391, at *11-12, *12-13 (W.D. Tex. Oct. 30, 2013)
(concluding that a company could not claim privilege protection for the first call it received from a whistleblowing employee about possible misconduct within the corporation, but that the privilege could protect later communications between the anonyomous whistleblower and the company's lawyer; "[T]he anonymous whistleblower made three submissions via the EthicsPoint portal used by Maxim. An initial submission was made on December 14, 2011, and two follow-up communications were submitted on December 20, 2011, and February 24, 2012. Maxim's Chief Compliance Officer and General Counsel, Ed Medlin, communicated with the anonymous whistleblower twice via EthicsPoint -- once on December 14, 2011, in response to the initial submission and again on February 27, 2012, in response to the whistleblower's submission on February 24, 2012. Upon review of the documents containing these discussions, the Court determines that the initial submission made by the anonymous whistleblower on December 14, 2011, is not protected by the attorney-client privilege and should be produced. The initial submission is distinguishable from the questionnaires at issue in Upjohn [Upjohn Co. v. United States, 449 U.S. 383 (1981)] because it was made prior to the start of any investigation by Maxim into the specific allegations that Freescale's software was being improperly used at Maxim. There is also insufficient evidence to demonstrate that the anonymous whistleblower was seeking legal advice or that this information was somehow solicited by Maxim in order for Maxim's legal counsel to render legal advice to the company. Consequently, the Court concludes that the initial submission by the anonymous whistleblower is not protected by the attorney-client privilege and must be produced."; "However, the subsequent communications between Ed Medlin and the anonymous whistleblower via EthicsPoint are protected by the attorney-client privilege. . . . In the initial communication the whistleblower identifies him or herself as a Maxim employee. The content of the subsequent communications show that more specific information was being solicited from the anonymous whistleblower -- a Maxim employee -- in order for Maxim's General Counsel, Ed Medlin, to investigate the allegations and render legal advice to Maxim. Additionally, the content of the follow-up communications also clarifies that the messages were exchanged after Maxim had started its investigation into the anonymous whistleblower's claims.")

Case Date Jurisdiction State Cite Checked
2013-10-30 Federal TX B 5/14

Chapter: 15.203
Case Name: MediaTek Inc. v. Freescale Semiconductor, Inc., Case No. 4:11-cv-05341 YGR (JSC), 2013 U.S. Dist. LEXIS 147032, at *8 (N.D. Cal. Oct. 10, 2013)
("[T]he question is whether the privilege applies to so-called 'dual purpose' communications, documents which serve both legal and business purposes. Although courts occasionally state that the client's communications to the attorney must be 'solely' for the purpose of seeking legal advice for the privilege to apply, there is general agreement that the privilege applies where the primary or predominant purpose of the attorney-client consultation is to seek legal advice or assistance.")

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

Chapter: 15.203
Case Name: MediaTek Inc. v. Freescale Semiconductor, Inc., Case No. 4:11-cv-05341 YGR (JSC), 2013 U.S. Dist. LEXIS 147032, at*12-13, *13-14, *14, *15-16, *16 (N.D. Cal. Oct. 10, 2013)
(finding that the privilege did not protect documents created by a consultant hired by plaintiff's lawyer, even assuming that the agent was the "functional equivalent" of an employee; "For purposes of this Order, the Court will assume that the third-party consultant qualifies as an 'agent of the attorney' or a 'functional employee.' But even assuming the third-party consultant is an 'agent' or 'functional employee' of MediaTek for purposes of the privilege, MediaTek has not carried its burden of demonstrating that the documents are privileged, that is, that they were created primarily or predominantly to facilitate legal advice."; "First, there is no evidence that MediaTek's counsel ever received or reviewed the reports. According to MediaTek's own privilege log, the reports were not sent to counsel; rather, they were distributed only to Mr. Yang [plaintiff's IP manager] and MediaTek's Intellectual Property Division. . . . [T]here is no evidence that MediaTek's general counsel or any attorney had possession of the report, reviewed it, or relied upon it. In addition, although there are multiples drafts of the report, there is no evidence that counsel reviewed any of the drafts."; "Mr. Yang's conclusory testimony that the 'report was necessary to enable MediaTek's attorneys to render effective legal advice' and that the legal team --'supported by' the third-party consultant -- evaluated the patents, is insufficient given that the privilege log demonstrates that the report was never disseminated to counsel."; "Second, the context in which the report was prepared and the language found in the report itself do not support a finding that the report was prepared because of a need for legal advice or primarily to facilitate legal advice. The report was commissioned in the context of MediaTek's decision as to whether to purchase certain patents, a business purpose. That such a decision always involves legal as well as business considerations, and that such considerations are intertwined, does not mean that every document prepared to assist with that decision is protected by the attorney-client privilege, especially where, as here, there is no evidence that the report was shared with counsel. . . . [T]he Court does not find that the report was actually reviewed by legal counsel in light of the failure of the privilege log to identify even one attorney as a recipient."; "There is also nothing in the language of the report, or any of the drafts, which even hints that it is intended to be relied upon by counsel to render legal advice. Instead, it is a brief, technical document prepared by non-attorneys that identifies key claim elements of the patents under consideration and identifies additional areas for research.")

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

Chapter: 15.203
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: 15.203
Case Name: Exxon Mobil Corporation v. Hill, Civ. A. No. 13-236 SECTION "L" (3), 2013 U.S. Dist. LEXIS 91378, at *20 (E.D. La. June 28, 2013)
(finding that a document prepared by an in-house lawyer did not deserve privilege protection because it was primarily business-related; "[T]hese assertions are not enough to demonstrate that the 'primary or predominant' purpose of Guidry's [Exxon employee] consultation with Stein [Exxon's in-house lawyer] was for Stein to provide legal advice, particularly in light of the fact that the Stein Memorandum itself does not contain any reference to a legal justification for Stein's advice, or legal concerns prompting Guidry to seek such advice. When Guidry's consultation with Stein occurred, Exxon was in the process of negotiating a contract with ITCO [non-party]. Thus, it appears from the face of the document that the primary purpose of Stein's advice to Guidry was to help secure more favorable contract terms, and Exxon's submitted affidavits are not sufficiently persuasive to compel a different conclusion.")

Case Date Jurisdiction State Cite Checked
2013-06-28 Federal LA B 4/14

Chapter: 15.203
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: 15.203
Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *132 (D. Minn. June 4, 2013))
("The attorney-client privilege applies to communications made by corporate employees to counsel to secure legal advice and to legal advice from corporate counsel to their clients. . . . The privilege is limited to circumstances in which communications are made for the purpose of legal advice.")

Case Date Jurisdiction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 15.203
Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 5 (W.D. Va. May 31, 2013)
("It is well settled that a corporation may be a 'client' with standing to assert the privilege. [Upjohn Co. v. United States, 449 U.S. 383, 394 (1981)]. Thus, communications from K-C's legal counsel to its employees may fall within the privilege. However, the confidential communication 'must be for the primary purpose of soliciting legal, rather than business, advice.' Henson By and Through Mawyer v. Wyeth Laboratories, Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987) (citing N.C. Elec. Membership Corp. v. Carolina Power, 110 F.R.D. 511, 514 (M.D.N.C. 1986)).")

Case Date Jurisdiction State Cite Checked
2013-05-31 Federal VA B 9/13

Chapter: 15.203
Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 5 (W.D. Va. May 31, 2013)
("It is well settled that a corporation may be a 'client' with standing to assert the privilege. [Upjohn Co. v. United States, 449 U.S. 383, 394 (1981)]. Thus, communications from K-C's legal counsel to its employees may fall within the privilege. However, the confidential communication 'must be for the primary purpose of soliciting legal, rather than business, advice.' Henson By and Through Mawyer v. Wyeth Laboratories, Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987) (citing N.C. Elec. Membership Corp. v. Carolina Power, 110 F.R.D. 511, 514 (M.D.N.C. 1986)).")

Case Date Jurisdiction State Cite Checked
2013-05-31 Federal VA B 9/13

Chapter: 15.203
Case Name: Weinstein v. Univ. of Conn., Civ. No. 3:11CV1906 (WWE), 2013 U.S. Dist. LEXIS 71617, at *15-16 (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; "In the specific context of communications to and from corporate in-house lawyers, courts therefore typically hold that a communication is privileged only if it was generated for the predominant purpose of rendering or soliciting legal advice.")

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

Chapter: 15.203
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: 15.203
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: 15.203
Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *18 (Del. Ch. Apr. 10, 2013)
("'[A]ttorney-client privilege protects legal advice, as opposed to business or personal advice.'" (citation omitted))

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

Chapter: 15.203
Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *18-19 (Del. Ch. Apr. 10, 2013)
("'[C]ommunications that contain an inseparable combination of business and legal advice may be protected by the attorney-client privilege.'" (citation omitted))

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

Chapter: 15.203
Case Name: Spread Enters., Inc. v. First Data Merch. Servs. Corp., No. CV 11 4743 (ADS) (ETB), 2013 U.S. Dist. LEXIS 22307, at *9 (E.D.N.Y. Feb. 19, 2013)
("It is well-settled that '[c]ommunications from an attorney to a client dealing with the substance of imminent litigation generally will fall into the area of legal rather than business or personal matters.'" (citation omitted))

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

Chapter: 15.203
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 220 (N.D. Ill. 2013)
("Documents that were created during the normal course of business and do not contain confidential legal advice are not protected by either the attorney-client privilege or the work product doctrine.")

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

Chapter: 15.203
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 645 (D. Nev. 2013)
(finding that documents prepared by public relations consultant did not deserve work product protection; "[T]he court cannot conclude that the 'primary purpose' of this document was to obtain legal advice.")

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

Chapter: 15.203
Case Name: United States v. ISS Marine Services, Inc., Misc. A. No. 12-481 (BAH), 905 F. Supp. 2d 121, 2012 U.S. Dist. LEXIS 166088 (D.D.C. Nov. 21, 2012)
("If a communication would have been made even if legal advice were not explicitly being sought, then it is difficult to say that that communication's primary purpose was to seek legal advice."; "In applying these principles, the Government argues that the Audit Report was not created for the purpose of seeking legal advice. The Government posits that 'nothing about the March 2008 Audit Report indicates that it was part of a request for legal advice,' the Report was 'not directed to any attorney or a person employed by an attorney,' it 'does not contain any legends indicating that it is privileged,' and 'Inchcape's CEO waited nearly two months after it was completed to forward the Audit Report to its outside counsel.'. . . In support of this argument, the Government offers the sworn declaration of Larry Cosgriff, who served as the Senior Vice President of Inchcape Government Services during the relevant time period. As discussed above, Cosgriff states that it was his understanding that Hyldager and Tory 'undertook this internal audit to obtain information to enable Messrs. Hyldager and Tory, the Inchcape audit committee and the Inchcape Board of Directors to make a business decision as to what further action, if any, Inchcape would take to address' the allegations raised by the two Inchcape employees."; "At bottom, the respondent's claim to privilege appears to be premised on a gimmick: exclude counsel from conducting the internal investigation but retain them in a watered-down capacity to 'consult' on the investigation in order to cloak the investigation with privilege. Unfortunately for the respondent, this sort of 'consultation lite' does not qualify the Audit Report for the protections of the attorney-client privilege. First and foremost, the fact that Inchcape purposefully eschewed the involvement of outside counsel – or any attorneys whatsoever – in the internal investigation and audit militates strongly against applying the attorney-client privilege. When a company fails to involve lawyers directly in an internal investigation, the company faces a higher burden to demonstrate that the attorney-client privilege applies to the results of that investigation. The Tory Declaration indicates that, at most, A&P generically 'recommended initiating an internal investigation' and drafted a memorandum that 'framed' the issues relating to 'potential criminal and civil liability implicated by the activities as reported.'. . . The Tory Declaration also states that A&P 'prepared a list of documents necessary to more fully assess the issues identified,'. . . though Tory notably does not specify that A&P would be the ones 'more fully assess[ing] the issues identified.' Although Tory states that he pursued the internal investigation 'in consultation with outside counsel,'. . . the record is devoid of any evidence to suggest that A&P provided any consultation to ISS Marine while the investigation was actually being conducted. A&P's framing of the issues related to potential liability and its guidance about the types of documents that would be helpful all took place before the investigation began. As Cosgriff explains: "A&P did not participate in the interview process or the review of documentary evidence.'. . . Even when Inchcape took steps to verify the information in the Audit Report, Tory indicates that Hyldager performed this 'follow up,' rather than an attorney."; "This sort of arms-length coaching by counsel, as opposed to the direct involvement of an attorney, undercuts the purposes of the attorney-client privilege in the context of an internal investigation."; "Thus, the Audit Report memoralizing the contents of the documents and information gathered from this investigation and audit does not justify the protection of the attorney-client privilege. For the results of an internal investigation to enjoy the attorney-client privilege, the company must clearly structure the investigation as one seeking legal advice and must ensure that attorneys themselves conduct or supervise the inquiries and, at the very least, the company must make clear to the communicating employees that the information they provide will be transmitted to attorneys for the purpose of obtaining legal advice.")

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

key case


Chapter: 15.203
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *79 (S.D. Fla. Oct. 18, 2012)
("[W]hile the Plaintiffs are correct that advice from counsel related to the business determinations for purposes of ensuring regulatory compliance likely would not be protected by either the attorney-client or work product doctrine, when that advice is dispensed, not in the regular course of business, but in response and/or in contemplation of litigation, the protection may apply. Such a conclusion is wholly consistent with the holdings in Seroquel [In re Seroquel Prods. Liab. Litig., Case No. 06-md-1769-Orl-22DAB, 2008 U.S. Dist. LEXIS 39467 (M.D. Fla. May 7, 2008)] and Vioxx." [In re Vioxx, 501 F. Supp. 2d 789 (E.D. La. 2007)])

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 15.203
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *8 n.3 (E.D. Va. July 12, 2012)
("Even if the defendant had established that the privilege could be extended to communications with Patriarch lawyers, it would still have to show that the Patriarch lawyers' advice was more likely 'legal' than 'business' in nature. . . . No such showing has been made.")

Case Date Jurisdiction State Cite Checked
2012-07-12 Federal VA

Chapter: 15.203
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("[W]here a communication neither requests nor expresses legal advice, but rather involves the soliciting or giving of business advice, it is not protected by the privilege. See United Shoe Mach. Corp., 89 F. Supp. at 359 [United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950)]. The communication must be with an attorney for the express purpose of securing legal advice. See Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). It is also true, however, that '[t]he mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege.' Coleman v. Am. Broadcasting Cos., Inc., 106 F.R.D. 201, 206 (D.D.C. 1985). 'For the attorney-client privilege to apply, the communication "must be primarily or predominately of a legal character."' ABB Kent-Taylor, Inc., 172 F.R.D. at 55 (citations omitted); see also Henson v. Wyeth Labs., Inc., 118 F.R.D. 584, 587 (W.D.Va. 1987) (communication must be for the primary purpose of soliciting legal, rather than business, advice).")

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

Chapter: 15.203
Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *4-5 (W.D. Va. Oct. 6, 2011)
("[T]he communication must be for the purpose of procuring or providing legal advice. [Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (Va. 1998)] see also Henson v. Wyeth Laboratories, Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987) ('[I]t is important to note . . . That in order for the privilege to apply, the attorney receiving the communication must be acting as an attorney and not simply as a business advisor.'); Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., No. 3:10CV00825, 2011 U.S. Dist. LEXIS 51028, at *8 (E.D. Va. May 12, 2011) (holding that although general counsel was privy to certain documents, the attorney-client privilege did not apply since 'the purpose of the communications was not the solicitation or provision of legal advice on any specified legal issue'); Rush v. Sunrise Senior Living, Inc., No. 07-11322, 2008 Va. Cir. LEXIS 12, at *12 (Va. Cir. Ct. Feb. 12, 2008) (emphasizing that the privilege 'does not shield from discovery communications generated or received by an attorney acting in some other capacity, or communications in which an attorney is giving business advice rather than legal advice') (internal citation and quotation marks omitted).").

Case Date Jurisdiction State Cite Checked
2011-10-06 Federal VA B 3/16

Chapter: 15.203
Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *5-7 (W.D. Va. Oct. 6, 2011)
("The burden is on the proponent of the privilege "to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' Edwards, 370 S.E.2d at 301. . . ."; "[T]he party withholding the document must specifically and factually support its claim of privilege 'by way of evidence, not just argument.' Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust, 230 F.R.D. 398, 410 (D. Md. 2005)."; "Applying these principles, and having reviewed each of the documents withheld from production, the court concludes that ATK has failed to demonstrate that the documents are protected by the attorney client privilege. The documents were prepared by employees of WGI and ATK, and include no communications from ATK's legal counsel. While ATK has submitted emails indicating that each of the documents was intended to be shared with legal counsel, neither the documents themselves, nor any other evidence presented by ATK, establishes that the documents were 'prepared primarily in a legal capacity,' as opposed to a 'business capacity.' Henson, 118 F.R.D. at 588.").

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

Chapter: 15.203
Case Name: In re Chase Bank USA, N.A. "Check Loan" Contract Litig., MDL No. 2032, Case No. 3:09-md-2032 MMC (JSC) (N.D. Cal. July 28, 2011)
("A communication does not become privileged simply because the author mentions a legal issue. Instead the primary purpose of the communication must be analyzed to determine if it is related to legal advice or instead to further a business objective. In the same way that a non-privileged communication does not become privileged by the presence of an attorney, it likewise does not become privileged by the mere suggestion of a legal issue ancillary to the main purpose of the communication.")

Case Date Jurisdiction State Cite Checked
2011-07-28 Federal CA

Chapter: 15.203
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

Chapter: 15.203
Case Name: Akzo Nobel Chems. Ltd. v. Comm'n of European Comtys., Nos. T-125/03 & T-253/03 (Ct. First Instance Sept. 17, 2007) (available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= CELEX:62003A0125:EN:HTML)
(assessing privilege claims for documents created in connection with an investigation conducted by Akzo Nobel and its affiliate; holding that internal documents would deserve privilege protection only if they were "exclusively" created for purposes of receiving legal advice, and their "sole aim" was to seek legal advice; also holding that Akzo's in-house lawyers based in Holland did not engage in privileged communications with Akzo employees, because the in-house lawyers were not independent; holding that the privilege did not protect documents sent by the general manager of an Akzo subsidiary to his supervisor; noting that the documents did not mention legal advice and were not sent to or from an outside lawyer; likewise finding that the privilege did not protect a business person's notes and communications with an in-house lawyer based in Holland)

Case Date Jurisdiction State Cite Checked
2007-09-17 Other

Chapter: 15.203
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: 15.203
Case Name: Gruss v. Zwirn, 276 F.R.D. 115, 126 (S.D.N.Y. 2001)
(upholding privilege and work product claims for documents created during an internal corporate investigation undertaken by Gibson Dunn into accounting irregularities; finding that the primary purpose of the investigation was the need for legal advice; "[I]t is irrelevant that both firms' reports 'were prepared in part, for the business purpose of gaining advice on what to communicate to investors and other interested business parties, rather than legal purposes.'. . . There can be little question that both firms were engaged to investigate the accounting irregularities at the Zwirn Entities and advise management how to resolve those irregularities. . . . Their advice included instructions not only how to communicate with investors, but also on the legal ramifications of the accounting irregularities within the heavily-regulated world of investment contracts, the decision as to which employees should be held responsible and how those employees should be disciplined – advice with clear legal implications when the employee in question was party to a partnership agreement, as was Gruss . . . and both the possibility of, and strategies for future litigation. . . . Based on our review of the portions of the law firms' findings that have already been produced, it is clear that their communications with the Zwirn Entities were predominantly made with the purpose of giving legal advice. The fact that some of this advice resides in the gray area where legal advice shades into business advice does not change that conclusion.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2001-01-01 Federal NY

Chapter: 15.203
Case Name: Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987)
("In fact for the privilege to apply, the client's confidential communication 'must be for the primary purpose of soliciting legal, rather than business, advice.'" (quoting North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M.D.N.C. 1986); finding it "remarkabl[e]" that the documents claimed to be privileged "do not contain specific requests for legal advice or services"))

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 15.203
Case Name: Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587-588 (W.D. Va. 1987)
(holding that the lawyer "must be acting as an attorney and not simply as a business advisor" for communications to be privileged; finding that memoranda claimed to be privileged by Wyeth instead related to a business transaction and primarily contained business advice; "Remarkably, [the memoranda] do not contain specific requests for legal advice of services, and Wyeth has done little to show this court how these documents primarily could be tied to legal advice as opposed to business advice. . . . The court finds the documents to have been prepared primarily in a business capacity and not primarily in a legal capacity. Business advice is not privileged.")

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal VA

Chapter: 15.204
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 16-5356 Consolidated with 16-5357, 2018 U.S. App. LEXIS 16403 (D.C. App. June 19, 2018)
(adopting the D.C. Circuit Court "one significant purpose" standard for privilege protection; "The attorney-client privilege applies to a communication between attorney and client if at least 'one of the significant purposes' of the communication was to obtain or provide legal advice.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal DC
Comment:

Key Case


Chapter: 15.204
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 16-5356 Consolidated with 16-5357, 2018 U.S. App. LEXIS 16403 (D.C. App. June 19, 2018)
(adopting the D.C. Circuit Court "one significant purpose" standard for privilege protection; "In the corporate context, the attorney-client privilege applies to communications between corporate employees and a corporation's counsel made for the purpose of obtaining or providing legal advice. The privilege applies regardless of whether the attorney is in-house counsel or outside counsel."; "The application of the attorney-client privilege can become more complicated when a communication has multiple purposes — in particular, a legal purpose and a business purpose. In this case, for example, the communications had a legal purpose: to help the company ensure compliance with the antitrust laws and negotiate a lawful settlement. But the communications also had a business purpose: to help the company negotiate a settlement on favorable financial terms."; "In a situation like this where a communication has multiple purposes, courts apply the 'primary purpose' test to determine whether the communication is privileged. . . . In Kellogg [In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)], this Court recently explained that courts applying the primary purpose test should not try 'to find the one primary purpose' of a communication. Attempting to do so 'can be an inherently impossible task' when the communications have 'overlapping purposes (one legal and one business, for example).' Id. 'It is often not useful or even feasible to try to determine whether the purpose was A or B when the purpose was A and B.' Id. Rather, courts applying the primary purpose test should determine 'whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.'"; "The relevant communications consist primarily of the transmission of factual information from Boehringer's employees to the general counsel, at the general counsel's request, for the purpose of assisting the general counsel in formulating her legal advice regarding a possible settlement. Other communications were between the general counsel and the corporation's executives regarding the settlement. All of those communications are protected by the attorney-client privilege because one of the significant purposes of the communications was 'obtaining or providing legal advice' — namely, settlement and antitrust advice. . . ."; "To be sure, the communications at issue here also served a business purpose. The decision whether and at what price to settle ultimately was a business decision as well as a legal decision for Boehringer. But as we stated in Kellogg, what matters is whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communications. Here, as the District Court correctly concluded, one of the significant purposes of these communications was to obtain or provide legal advice. It follows that Boehringer's general counsel was acting as an attorney and that the communications are privileged."; "[T]he attorney-client privilege did not and does not prevent the FTC's discovery of the underlying facts and data possessed by Boehringer and its employees. Nor did it prevent the FTC's discovery of pre-existing business documents. But the attorney-client privilege does protect the communication of facts by corporate employees to the general counsel when, as here, the communications were for the purpose of obtaining or providing legal advice.")

Case Date Jurisdiction State Cite Checked
2018-06-19 Federal DC
Comment:

Key Case


Chapter: 15.204
Case Name: Pitkin v. Corizon Health, Inc., Case No. 3:16-cv-02235-AA, 2017 U.S. Dist. LEXIS 208058 (D. Ore. Dec. 18, 2017)
(finding that the attorney-client privilege protected an investigation undertaken by a jail health services contractor into the death of an inmate; adopting the one "primary purpose" privilege standard from the D.C. circuit court case in Kellogg Brown & Root; "I am persuaded by the Kellogg [In re Kellogg Brown & Root, Inc., 756 F.3d 754, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)] court's reasoning, and I adopt it here. Because the Ninth Circuit has not adopted a characterization of the 'primary purpose' test that aids in categorizing the kinds of mixed-motive investigations specifically at issue here, I will apply the gloss provided by the D.C. Circuit Court of Appeals in Kellogg."; "Accordingly, the attorney-client privilege protects the results of the Sentinel Event investigation undertaken by Corizon in the aftermath of Ms. Pitkin's untimely and unfortunate death. Corizon has satisfied each element of the attorney-client privilege standard, showing that it sought factfinding and advice at the direction of Corizon's in-house legal team. Moreover, it showed that at least one primary purpose of the investigation was to 'assess the situation from a legal perspective, provide legal guidance, and prepare for possible litigation and/or administrative proceedings.'. . . That Corizon was fulfilling its obligations under its own corporate policies or its contract with Washington County -- or both -- is of no moment. As the Kellogg court explained, '[i]t is often not useful or even feasible to try to determine whether the purpose was A or B when the purpose was A and B.'. . . Common sense suggests that the death of an inmate would trigger numerous obligations for the organization charged with her care, not the least of which would be an assessment of liability. Accordingly, the attorney-client privilege applies to the Sentinel Event investigation, and Corizon is not required to produce it.")

Case Date Jurisdiction State Cite Checked
2017-12-18 Federal OR
Comment:

key case


Chapter: 15.204
Case Name: Johnson v. J. Walter Thompson U.S. A., LLC, 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
(in an opinion by Magistrate Judge Francis, holding that drafts of and communications relating to an investigation conducted by the Proskauer Rose law firm into client's alleged Title VII violation deserved both privilege and work product protection; also noting that the defendant had abandoned a Faragher-Ellerth defense, but that the court would have to review the withheld documents in camera to determine if defendant waived either protection by using the report for "context" in connection with its "good faith" defense; "Proskauer has declined to disclose (1) electronic and handwritten notes taken by Proskauer attorneys during the investigation interviews; (2) earlier drafts of the Proskauer Report containing attorney comments; (3) invoices submitted to the Corporate Defendants; (4) documents provided to Proskauer by JWT and the interviewees in the course of the investigation; and (5) emails among Proskauer attorneys and between Proskauer attorneys and JWT witnesses or outside counsel regarding the investigation and the lawsuit (collectively, the 'Proskauer Documents')."; "[I]t is not the Report itself that is at issue, but rather the documents generated during the investigation."; "With respect to many of the Proskauer Documents, I disagree. 'Rare is the case that a troubled corporation will initiate an internal investigation solely for legal, rather than business, purposes; indeed, the very prospect of legal action against a company necessarily implicates larger concerns about a company's internal procedures and controls, not to mention its bottom line.'. . . Yet the purpose of a communication need not be exclusively legal in order for the privilege to attach. . . . Rather, the legal purpose need only be predominant, and identification of such a purpose 'may [] be informed by the overall needs and objectives that animate the client's request for advice.'. . . Here, there were no doubt multiple motivations for commencing an internal investigation and engaging in the subject communications: to gather information to defend this lawsuit; to determine whether systemic changes were necessary; to decide on a course of action specifically with respect to Mr. Martinez; and to ameliorate a public relations problem. Yet all of these purposes were suffused with the need for legal advice triggered by a lawsuit that had already been filed. This is confirmed by the fact that the Proskauer report contains multiple references to the allegations contained in the lawsuit . . . as well as the fact that its recommendations reflect the application of legal expertise . . . . The plaintiff complains that any claim that the Proskauer investigation had a primarily legal purpose is undermined by the fact that the Corporate Defendants' outside counsel, Davis & Gilbert, had already conducted one . . . . But, surely, the fact that a client chooses to seek legal advice from multiple attorneys does not cast doubt on the privileged nature of communications with any one of them."; "This is true even where the document in its final form is intended to be disseminated publicly. . . . As discussed above, the Proskauer Report reflects the provision of legal advice so the drafts of that report are similarly privileged. Moreover, even if the drafts are not privileged in their entirety, they are also subject to work product protection, as will be discussed below."; "In this case, the Corporate Defendants raised a Faragher/Ellerth defense in their Answer. . . . However, they have since disavowed use of the Proskauer Report in connection with any Farragher/Ellerth defense. They first made this clear at a court conference. . . and they state unequivocally in their reply memorandum that 'Defendants will not be using the legal conclusions in the Proskauer Report . . . to support their position that there has been no violation of the law . . . . ' (Reply Memorandum of Law in further Support of Defendants' Motion for Protective Order)."; "This does not, however, end the inquiry. The Corporate Defendants have indicated that they do not intend to rely on the Proskauer Report 'to provide context for the actions they took as a result of the business recommendations in the Report.'. . . Reliance by the Corporate Defendants on the conclusions of the report does not open up to discovery the details of the investigation that led to the report. . . . Therefore, there is no waiver with respect to the categories of the Proskauer Documents that could be relevant, if at all, only to the accuracy of the findings in the report, specifically, notes of interviews of JWT employees, drafts of the report, and invoices."; "However, when a party asserts a good faith defense, as the Corporate Defendants appear to do here, it may not selectively proffer the information upon which it relied. . . . Here, the extent to which the Corporate Defendants acted in good faith on the basis of the Proskauer Report is dependent upon the totality of the legal advice they received. Thus, the communications related to Proskauer's conclusions, but not the reliabililty of the investigation lending to those conclusions, are discoverable. Accordingly, if they intend to introduce the Proskauer Report in evidence, the Corporate Defendants shall produce for my in camera review any documents withheld on grounds of privilege that reflect communications between themselves and Proskauer or between Proskauer and David & Gilbert concerning the subject matter of the Proskauer Report. In that way, I can determine whether fairness necessitates the disclosure of these documents to the plaintiff.")

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 15.204
Case Name: Johnson v. J. Walter Thompson U.S. A., LLC, 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
(in an opinion by Magistrate Judge Francis, holding that drafts of and communications relating to an investigation conducted by the Proskauer Rose law firm into client's alleged Title VII violation deserved both privilege and work product protection; also noting that the defendant had abandoned a Faragher-Ellerth defense, but that the court would have to review the withheld documents in camera to determine if defendant waived either protection by using the report for "context" in connection with its "good faith" defense; "In this case, the Corporate Defendants raised a Faragher/Ellerth defense in their Answer. . . . However, they have since disavowed use of the Proskauer Report in connection with any Farragher/Ellerth defense. They first made this clear at a court conference. . . and they state unequivocally in their reply memorandum that 'Defendants will not be using the legal conclusions in the Proskauer Report . . . to support their position that there has been no violation of the law . . . . ' (Reply Memorandum of Law in further Support of Defendants' Motion for Protective Order)."; "This does not, however, end the inquiry. The Corporate Defendants have indicated that they do not intend to rely on the Proskauer Report 'to provide context for the actions they took as a result of the business recommendations in the Report.'. . . Reliance by the Corporate Defendants on the conclusions of the report does not open up to discovery the details of the investigation that led to the report. . . . Therefore, there is no waiver with respect to the categories of the Proskauer Documents that could be relevant, if at all, only to the accuracy of the findings in the report, specifically, notes of interviews of JWT employees, drafts of the report, and invoices."; "However, when a party asserts a good faith defense, as the Corporate Defendants appear to do here, it may not selectively proffer the information upon which it relied. . . . Here, the extent to which the Corporate Defendants acted in good faith on the basis of the Proskauer Report is dependent upon the totality of the legal advice they received. Thus, the communications related to Proskauer's conclusions, but not the reliabililty of the investigation lending to those conclusions, are discoverable. Accordingly, if they intend to introduce the Proskauer Report in evidence, the Corporate Defendants shall produce for my in camera review any documents withheld on grounds of privilege that reflect communications between themselves and Proskauer or between Proskauer and David & Gilbert concerning the subject matter of the Proskauer Report. In that way, I can determine whether fairness necessitates the disclosure of these documents to the plaintiff.")

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 15.204
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; finding that the report deserved privilege protection; "Attorney-client privilege protects confidential communications between attorneys and clients, including internal investigation reports supplied by attorneys to their clients, when one of the significant purposes of communication is legal advice, rather than only business advice. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)."; "After reviewing the report in camera, the Court concludes that the report was confidential legal advice from an attorney to a client, and therefore is protected by attorney-client privilege. The Court presumes that outside counsel is retained for legal purposes. . . . Here, the presumption is borne out by the document itself. It includes legal conclusions as to the company's exposure to liability, legal recommendations for avoiding liability from these allegations and protecting against future misconduct that could lead to new allegations, and litigation strategies relating to the sexual harassment allegations at issue at the time of the report. Thus, a 'significant purpose' of the report was to provide legal advice. . . . There are also several indications that the document was intended to be a confidential communication between an attorney and his clients. The report is labeled 'Attorney-Client Privilege' and states that it is '[n]ot to be disseminated beyond ownership group,' with Ergo's owners listed by name underneath. Thus, because the report contains primarily legal advice and was a confidential communication between an attorney and his clients, the report is privileged.")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 15.204
Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
(protecting as privileged documents created by a company's in-house lawyer investigation; noting that Texas did not following the "primary purpose" test; but finding the work product doctrine applicable after noting that a company affidavit indicated that the departments role in the investigation was not ordinary; "According to Rowen [Celanese's corporation's in-house lawyer], the primary purpose for the investigation and creation of documents and communications therefrom was to aid Celanese in preparing to defend itself in anticipated litigation. As a secondary concern, the information communicated from the investigative team to the legal department was necessary for the legal department to provide Celanese with business and legal advice with respect to the potential termination of employees involved in the accident. The team members were immediately informed that the investigation was for the purpose of assisting counsel and that all communications and documents generated during their investigation must be kept confidential and marked as 'Privileged and Confidential' or 'Attorney-Client Privilege -- Attorney Work Product.' The investigative team conducted interviews and site inspections and communicated their findings to the Celanese Law Department. They prepared a root cause analysis which was necessary for the Celanese Law Department to evaluate liability and begin developing a strategy for defending itself in likely civil and regulatory litigation. Rowen states, 'All of the communications withheld by Celanese were communications between Celanese in-house and outside counsel and their representatives made for the purposes of providing and communicating legal advice or otherwise facilitating or providing professional legal services.'"; "Plaintiffs cite no Texas authority for their position that the communication must have been made for the primary purpose of soliciting legal, rather than business advice. And the federal decisions supporting Plaintiffs' position are not binding on our court. More important, the language of Rule 503(b) does not require that the primary purpose of the communication be to facilitate the rendition of legal services; it only requires that the communication be made to facilitate the rendition of legal services.")

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

key case


Chapter: 15.204
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("California's attorney-client privilege simply does not differentiate 'between 'factual' and 'legal' information.'. . . The 'privilege equally attaches to both 'legal' and 'factual' information or advice exchanged between the attorney and client.'. . . In fact, the privilege may extend to 'communications that merely transmit documents,' even if those documents are publicly available. . . . All of this means that the privilege protects the transmission of information 'regardless of their content.'")

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

Chapter: 15.204
Case Name: Guiffre v. Maxwell, 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)
(holding that a media agent was outside privilege protection New York law, which applied to communications with a public relations consultant in Britain; "[W]ithout an attorney-client communication to facilitate, it cannot be said that Gow's [Media Agent] presence and input was necessary to somehow clarify or improve comprehension of Defendant communications with counsel, as the standard requires. . . . As such, Defendant has not met her burden of demonstrating that the communications fall beneath the umbrella of attorney-client privilege and cannot be rehabilitated by the extension provided by the agency privilege."; "Defendant has sworn that all of her communications with Barden [Defendant's lawyer] were for the purpose of seeking legal advice. However, the content of the communications addresses matters not legal on their face (specifically, a press statement)."; "[T]he Court must consider the communications in their full context. . . . Alone, it would be difficult to deem communications that predominately address a press statement as legal advice. Nevertheless, Defendant's assertion that a press statement is a necessary precursor to litigation 'under the fair comment laws of the UK' changes the context. . . . Considering the legal necessity of a press statement, in the context of the legal issue for which Defendant sought Barden's advice, the communication with Barden is predominately for the purposes of providing legal services. Defendant has therefore met her burden if establishing Documents #1045-46 are privileged.")

Case Date Jurisdiction State Cite Checked
2016-05-02 Federal NY

Chapter: 15.204
Case Name: In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liability Litig., Master File No. 1:00-1898, MDL 1358 (SAS), 2016 U.S. Dist. LEXIS 46294, at *17-18 (S.D.N.Y. Apr. 4, 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

Chapter: 15.204
Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
(analyzing protection for documents created in connection with the BP Gulf of Mexico oil spill; "The documents provided for in camera review from Project 3 are less clearly covered by the attorney-client privilege and the work product doctrine. The documents include both legal and business considerations. BP's attorney Block became one of the three team leaders on Project 3 before any substantive work was done. He directed the drafting of the documents for confidential presentation to executive management. The materials are marked 'Privileged Attorney Work Product' with instructions not to disseminate them to anyone outside the project team.")

Case Date Jurisdiction State Cite Checked
2015-11-13 Federal LA

Chapter: 15.204
Case Name: Armouth International, Inc. v. Dollar General Corp., No. 3:14-0567, 2015 U.S. Dist. LEXIS 148784 (M.D. Tenn. Nov. 2, 2015)
(finding that the attorney-client privilege protected communications to and from a company's in-house lawyer also serving as its compliance director; "According to Dollar General, the communications at issue involve emails that are: (1) from Mr. Stephenson [Dollar General's "Assistant General Counsel," who also served as "head of the Compliance Department" and "supervisor to the Senior Director of Global Sourcing"] providing legal advice to Dollar General employees regarding the tested merchandise; (2) from employees to Mr. Stephenson requesting legal advice; (3) from employees to Mr. Stephenson providing information necessary for Mr. Stephenson to provide adequate legal advice regarding the tested merchandise; or (4) between employees relaying Mr. Stephenson's legal advice as it pertains to the ongoing situation with Armouth [supplier of products to Dollar General, suing the company for not paying its invoices]. . . . Dollar General contends that all such communications are protected by the attorney-client privilege."; "In Zolin [U.S. v. Zolin, 491 U.S. 554, 570-71, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989)], the Supreme Court delineated the standard for determining whether an assertion of attorney-client privilege warrants an in camera review by the presiding judge. While the Supreme Court applied this standard specifically to the crime-fraud exception, this Court finds that the standard is appropriate in this matter to evaluate whether the documents requested for in camera review may reveal evidence of business advice that is not shielded from discovery by the attorney-client privilege."; "[A]s Dollar General states in its response, the decision to release the hold was made by Mr. Stephenson precisely because it required the legal opinion of an attorney. . . . Furthermore, even if Mr. Stephenson had considered some aspects of business in making his decision, such consideration does not necessarily remove the coverage afforded by the attorney-client privilege. Dollar General correctly notes that district courts have held that the 'mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege."; "The privilege log indicates that this email consisted of Mr. Vasos 'relaying Rob Stephenson's legal advice related to the non-conforming scrubs' to Mr. Gatta. . . . This appears to match the substance of the email's content prior to the redacted portion, which concludes with, 'now for the bad news. Their label does not match the product.'. . . It is logical that the remainder of the email would pertain to Mr. Stephenson's legal advice regarding the nonconforming goods."; agreeing with Dollar General that the company's decision to put a hold on the invoices primarily involved a legal rather than a business issue; "Here, Dollar General's claims of privilege are narrow and specific. Dollar General has reasonably rebutted the speculation by Armouth that Mr. Stephenson was giving business advice (or predominately giving business advice) rather than legal advice.")

Case Date Jurisdiction State Cite Checked
2015-11-02 Federal TN
Comment:

key case


Chapter: 15.204
Case Name: Alomari v. Ohio Dept. of Public Safety, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
(in discrimination case, holding that the attorney-client privilege protected communications about defendant's response to media inquiries; "In challenging the assertion of privilege over the April 2010 meeting between Plaintiff, Director Vedra, and Reed-Frient, Plaintiff argues that 'ODPS failed to provide any evidence that Reed-Friend interviewed [Plaintiff] in order to provide legal advice.'"; "Plaintiff stated in his deposition that at the April 2010 meeting, Reed-Frient told him that she wanted to understand the circumstances surrounding Plaintiff's termination from Columbus State in order to help ODPS prepare a response to those inquiries."; "Plaintiff disputes whether seeking advice for a response to the media is considered 'legal advice' in the first place, although he recognizes that this circuit has not addressed the issue. Plaintiff cites several district court cases that deemed an attorney's advice about media relations to be non-legal. See, e.g., In re Chevron Corp., 749 F. Supp. 2d 141, 167 (S.D.N.Y. 2010) (holding that an attorney's communications were not privileged when 'substantial evidence' suggested his predominant role was 'not the rendition of professional legal services, but politics, lobbying, and media and public relations'); City of Springfield v. Rexnord Corp., 196 F.R.D. 7,9 (D. Mass. 2000) (finding that an attorney's documents 'prepared in anticipation of media inquiries' were not privileged)."; "Advising a client on how to respond to media inquiries has important legal implications when that client will issue a public statement about an employee. . . . Given the potential for legal liability, Reed- Frient's input on how to draft a media response was essential."; "[T]he privilege protects communications 'necessary to obtain legal advice.'. . . No caselaw suggests that communications are privileged only when they are utilized to dispense legal advice."; "Plaintiff's own deposition testimony indicates that he was aware Reed-Frient, a lawyer, was present to gather information in order to advise ODPS on how to respond to the media inquiries, an act with great legal ramifications. Accordingly, the district court did not abuse its discretion in denying Plaintiff's claim."; "Plaintiff argues that the attorney-client privilege did not cover communications that occurred at the June 2010 meeting because the purpose of the meeting was to make a business decision concerning Plaintiff's employment and discipline, not to render legal advice. But the magistrate judge made a finding of fact that 'the purpose of the meeting was to secure [Reed-Frient's] legal advice related to the results of the administrative investigation,' crediting an affidavit supplied by Reed-Frient in camera that detailed the substance of the discussion at that meeting and clarified Reed-Frient's role as a legal advisor. The district judge relied on the magistrate's judge's factual finding in concluding that the privilege applied to communications during the June 2010 meeting."; "Just as the privilege applied to all communications during the school board executive session in Rush [Rush v. Columbus Municipal School Dist., No. 99-60910, 2000 U.S. App. LEXIS 39647, 2000 WL 1598021 (5th Cir. Sept. 28, 2000)] because the primary purpose of that meeting was to obtain legal advice, the privilege similarly covers all communications from the June 2010 meeting because its purpose was to acquire legal advice. Although Director Stickrath's testimony suggests that the primary purpose of the June 2010 meeting was to provide business advice instead of legal advice, the district court did not abuse its discretion in relying on the magistrate judge's determination, which credited Reed-Frient's affidavit, that the primary purpose of the meeting was to provide ODPS with legal advice.")

Case Date Jurisdiction State Cite Checked
2015-09-09 Federal OH
Comment:

key case


Chapter: 15.204
Case Name: In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY
Comment:

key case


Chapter: 15.204
Case Name: United States v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 162680 (D.D.C. Nov. 20, 2014)
("In general, the attorney-client privilege shelters confidential communications between an attorney and client, including their agents, made with a primary purpose of seeking or providing legal advice. A 'primary purpose' is defined as 'one of the significant purposes' of the communication.")

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

Chapter: 15.204
Case Name: Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, Civil Action No. DKC 13-0031, 2014 U.S. Dist. LEXIS 88569, at *45-46 (D. Md. June 30, 2014)
("Although it is true that the Myers memo was sent to both legal and nonlegal personnel, one plausible conclusion from the evidence here is that the review by the nonlegal personnel was part of the overall effort to gather information needed by Mr. Kaminski to provide legal advice. The cases Plaintiff cites to support the proposition that merely copying an attorney on an email or forwarding him an email does not make the document privileged involved situations where the information at issue was not gathered for a primarily legal purpose.")

Case Date Jurisdiction State Cite Checked
2014-06-30 Federal MD

Chapter: 15.204
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *14-15 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "In this case, there can be no serious dispute that one of the significant purposes of the KBR internal investigation was to obtain or provide legal advice. In denying KBR's privilege claim on the ground that the internal investigation was conducted in order to comply with regulatory requirements and corporate policy and not just to obtain or provide legal advice, the District Court applied the wrong legal test and clearly erred.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 15.204
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *11-12 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "The District Court erred because it employed the wrong legal test. The but-for test articulated by the District Court is not appropriate for attorney-client privilege analysis. Under the District Court's approach, the attorney-client privilege apparently would not apply unless the sole purpose of the communication was to obtain or provide legal advice. That is not the law.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 15.204
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, *13-14 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "[I]t is clearer, more precise, and more predictable to articulate the test as follows: Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication? . . . Sensibly and properly applied, the test boils down to whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication. In the context of an organization's internal investigation, if one of the significant purposes of the internal investigation was to obtain or provide legal advice, the privilege will apply. That is true regardless of whether an internal investigation was conducted pursuant to a company compliance program required by statute or regulation, or was otherwise conducted pursuant to company policy.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 15.204
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *10 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation and even if the investigation was mandated by regulation rather than simply an exercise of company discretion.")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal

Chapter: 15.204
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014)
July 16, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part II"

Last week's Privilege Point described the legal standard and some of the factual bases for the District of Columbia District Court's denial of privilege protection for Kellogg Brown & Root's (KBR) internal corporate investigation. This week’s privilege point tells the good news -- when about three months later, the D.C. Circuit Court of Appeals issued a writ of mandamus reversing the District Court's holding. In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115 (D.C. Cir. June 27, 2014).

The District of Columbia federal appellate court first rejected the district court's legal standard, holding that the privilege could protect a company's investigation if its need for legal advice was one of the "primary" or "significant" motivating purposes – even if not the only purpose, or the primary purpose. Id. at *13-14. The appeals court also explicitly addressed several factual indicia the district court relied on, holding that (1) KBR's requirement under government regulations to investigate alleged fraud did not preclude KBR's argument that another "significant purpose[]" was seeking legal advice; (2) nonlawyers could conduct privileged employee interviews while "serving as agents of attorneys"; (3) the absence of Upjohn warnings did not prevent privilege protection, because "nothing in Upjohn requires a company to use magic words"; and (4) although the employees' confidentiality agreements did not "expressly" mention KBR's need for legal advice, employees knew the law department was conducting a "sensitive" investigation and were warned not to discuss their interviews without KBR's General Counsel's authorization. Id. at *8-10.

The appeals court's legal standard represents a much more privilege-friendly approach than most courts apply. The standard permits companies to claim privilege protection even for investigations they must undertake pursuant to external requirements -- rather than having to initiate parallel or successive investigations to gain the protection. And the court's analysis of the factual issues provides a much more lenient standard for claiming privilege than most courts would apply. Next week's Privilege Point will discuss what the D.C. Circuit Court of Appeals' decision did not address.

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal
Comment:

key case


Chapter: 15.204
Case Name: Fay Avenue Properties, LLC v. Travelers Prop. Cas. Co. of Am., Case No. 3:11-cv-02389-GPC-WVG, 2014 U.S. Dist. LEXIS 82688, at *17 (S.D. Cal. June 17, 2014)
(explaining that under California law the key to privilege protection was the "dominant purpose" of the relationship, not the dominant purpose of each communication; "Cases have similarly held that in determining whether communications are privileged, the focus of the inquiry is the dominant purpose of the relationship between the parties to the communication and not to determine whether each communication meets the privilege standard.")

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

Chapter: 15.204
Case Name: United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-11 Federal DC
Comment:

key case


Chapter: 15.204
Case Name: United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014)
July 9, 2014 (PRIVILEGE POINT)

"District of Columbia Circuit Court Dramatically Expands Privilege Protection for Internal Corporate Investigations: Part I"

After a decade or more of generally bad news for corporations seeking privilege protection for their internal corporate investigations, the District of Columbia Circuit has issued an opinion containing good news on all fronts.

In March 2014, the District of Columbia District Court denied attorney-client privilege and work product doctrine protection for documents Kellogg Brown & Root (KBR) (and affiliates) created during an internal corporate investigation. United States ex rel. Barko v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 36490 (D.D.C. Mar. 6, 2014). Five days later, the court denied a stay. United States ex rel. Barko v. Halliburton Co, Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 30866 (D.D.C. Mar. 11, 2014). The District Court used a narrow version of the "primary purpose" test for privilege protection -- holding that "[t]he party invoking the privilege must show the 'communication would not have been made "but for" the fact that the legal advice was sought.'" Halliburton, 2014 U.S. Dist. LEXIS 36490, at *7-8 (citation omitted). In applying this standard, the District Court pointed to a number of facts, including (1) the investigation "resulted from the Defendants [sic] need to comply with government regulations"; (2) nonlawyers conducted the interviews; (3) those nonlawyers did not give Upjohn warnings informing the interviewed employees "that the purpose of the interview was to assist KBR in obtaining legal advice"; and (4) the interviewed employees signed confidentiality agreements that did not mention the investigation's legal purpose. Id. at *9-10. In most courts, these factors would probably have doomed KBR's privilege claim even under a more favorable "primary purpose" test.

The next two Privilege Points will describe the District of Columbia Circuit Court's reversal of this ruling.

Case Date Jurisdiction State Cite Checked
2014-03-06 Federal DC
Comment:

key case


Chapter: 15.204
Case Name: In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal
Comment:

key case


Chapter: 15.204
Case Name: Meighan v. Transguard Ins. Co. of Am., Inc., 298 F.R.D. 436, 444 (N.D. Iowa 2014)
(finding that an insurance company's reserve information deserved both privilege and work product protection; "Many courts have found an insurer's reserve information is privileged.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal IA B 8/14

Chapter: 15.204
Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 5-6 (W.D. Va. May 31, 2013)
("[T]he mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege. . . . (citing Coleman v. Am. Broadcasting Cos., Inc., 106 F.R.D. 201, 206 (D.D.C. 1985).")

Case Date Jurisdiction State Cite Checked
2013-05-31 Federal VA B 9/13

Chapter: 15.204
Case Name: JPMorgan Chase & Co. v. Am. Century Co., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 101, at *10 n.23 (Del. Ch. Apr. 18, 2013)
("[T]he litigation reserves are likewise protected by the attorney-client privilege.")

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

Chapter: 15.204
Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *19 (Del. Ch. Apr. 10, 2013)
("'Where it is a close call whether a communication reflected in a document and pertaining to a mixture of legal-related and business-related matters is more closely related to legal advice as opposed to business advice, the party asserting the privilege will be given the benefit of the doubt.'" (citation omitted))

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

Chapter: 15.204
Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *18-19 (Del. Ch. Apr. 10, 2013)
("'[C]ommunications that contain an inseparable combination of business and legal advice may be protected by the attorney-client privilege.'" (citation omitted))

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

Chapter: 15.204
Case Name: Skansgaard v. Bank of America, Case No. C11-0988 RJB, 2013 U.S. Dist. LEXIS 48176, at *5-6 (W.D. Wash. Mar. 6, 2013)
("The Defendants have established that the attorney-client privilege applies to the Business Presentation document. Art Lee, Assistant General Counsel to the Insurance Services Group of Bank of America, authored this document. The document is specifically labeled 'Attorney-Client Privileged -- Do Not Distribute.' The document was a presentation to the President of the Bank of America Home Loans regarding both the business and legal bases and risks associated with the change to the Defendant's flood insurance placement methodology.")

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

Chapter: 15.204
Case Name: Random Ventures, Inc. v. Advanced Armament Corp., No. 12 Civ. 6792 (KBF), 2013 U.S. Dist. LEXIS 20513, at *6-7 (S.D.N.Y. Feb. 5, 2013)
("Here, in the context of how this matter apparently evolved, the timing of the interview occurred in the context of fact gathering for purposes of providing legal advice. The fact that a letter from counsel for plaintiff Brittingham was received only two weeks later confirms this.")

Case Date Jurisdiction State Cite Checked
2013-02-05 Federal NY B 2/14

Chapter: 15.204
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 102 (Fed. Cl. 2013)
("The 'overall tenor' of the first passage at issue, and particularly the first sentence of the passage, which sets the tone of the paragraph, seem to reflect a request for JCCI/A [Joint Contracting Command Iraq/Afghanistan] Legal's advice, which is what is necessary to establish the applicability of the privilege." (citation omitted))

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

Chapter: 15.204
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *37 38 (S.D. Ohio Nov. 13, 2012)
(holding that documents created during a 2006 compliance audit deserved privilege protection; "The distribution lists on the emails are limited to SunCoke's General Counsel and senior HES corporate representatives with knowledge of the facts at issue in the 2006 Audit. The audit findings, comments, and tracking changes constitute the factual predicates underlying the provision of legal advice by SunCoke's Legal Department to assess HNCC's compliance with state and federal HES regulations. . . . The withheld documents reflect the factual information from corporate employee with knowledge of audit findings; their responses to the findings or actions taken in response; and that such information was transmitted to counsel for the purpose of providing legal advice to SunCoke on HNCC's compliance with HES requirements. Plaintiffs argue that the evidence suggests at most that Pack and McCormick were providing technical, business-related advice which is not protected. Even if the information is characterized as 'technical' or 'business-related,' those communications were gathered at the request of counsel for the primary purpose of aiding counsel in providing legal services to SunCoke.")

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

Chapter: 15.204
Case Name: Collins v. Braden, 384 S.W.3d 154, 160 (Ky. 2012)
("Statements made by a hospital's employees in such circumstances are made as part of a comprehensive program by which the hospital seeks to determine, with the assistance of counsel, the best legal strategy to pursue in regard to the tort that may have happened on the hospital's premises. The policies here were not general business policies, such as those aimed at reducing waste or hiring qualified employees; rather, they were promulgated by the hospital's in-house lawyer for the purpose of assessing the risk of and preparing for possible litigation.")

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

Chapter: 15.204
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("[W]here a communication neither requests nor expresses legal advice, but rather involves the soliciting or giving of business advice, it is not protected by the privilege. See United Shoe Mach. Corp., 89 F. Supp. at 359 [United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950)]. The communication must be with an attorney for the express purpose of securing legal advice. See Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976). It is also true, however, that '[t]he mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege.' Coleman v. Am. Broadcasting Cos., Inc., 106 F.R.D. 201, 206 (D.D.C. 1985). 'For the attorney-client privilege to apply, the communication "must be primarily or predominately of a legal character."' ABB Kent-Taylor, Inc., 172 F.R.D. at 55 (citations omitted); see also Henson v. Wyeth Labs., Inc., 118 F.R.D. 584, 587 (W.D.Va. 1987) (communication must be for the primary purpose of soliciting legal, rather than business, advice).")

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

Chapter: 15.204
Case Name: Upjohn v. United States, 449 U.S. 383, 394 (1981)
February 4, 2015 (PRIVILEGE POINT)

“Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard”

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection for "notes and memoranda relating to the witness interviews" Jenner & Block conducted while investigating GM's ignition switch issue. The opinion naturally has received extensive media coverage, given the high profile. But many reports do not focus on the court's ground-breaking adoption of a company-friendly privilege standard.

Most courts provide privilege protection only to communications whose "primary purpose" relates to legal rather than business advice. Last year, the D.C. Circuit rejected that rule, and extended privilege protection to investigation-related documents if "legal advice was one of the significant purposes." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014) (emphasis added) (also known as the Barko decision). Although acknowledging that the D.C. Circuit's decision did not bind it, the General Motors court adopted that standard. This appears to represent the first time another court has adopted the D.C. Circuit's favorable privilege standard. Most significantly, the court held that "the D.C. Circuit's holding is consistent with - if not compelled by - the Supreme Court's logic" in the seminal Upjohn decision. Gen. Motors, 2015 U.S. Dist. LEXIS 5199, at *240 (citing Upjohn v. United States, 449 U.S. 383, 394 (1981)).

The General Motors court's rejection of the "primary purpose" test and powerful endorsement of a "one of the significant purposes" standard could extend privilege protection in other contexts, such as with compliance-related communications.

Case Date Jurisdiction State Cite Checked
1981-01-01 Federal
Comment:

key case


Chapter: 15.205
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "First, the document includes as a carbon copy a Xerox employee, Ms. Weston. Ms. Weston is not an attorney or client in any way relating to Hertz, nor has Defendant established that she is an 'agent' for purposes of expanding the attorney-client privilege."; "Second, the document itself is a training document that is not 'legal' but part of the Hertz 'business.' Thus, any attorney included in the email is acting in a business capacity, not in the capacity of an attorney providing legal advice. Thus, there is no privilege that applies."; "Third, apart from Ms. Weston, there are numerous recipients of the email (direct and cc'd) that Defendant has not established are necessary intermediaries for Hertz's counsel to provide legal advice. Only those employees that 'need to know' are permitted to be included in privileged communications and Defendant has failed to establish that each and every recipient involved 'needed to know' attorney-client privileged communications.")

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

Chapter: 15.205
Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "The document involves CYC revenue in a year-to-year comparison."; "While an attorney -- Mr. Moodliar -- is copied on the document, it could only be for 'business' and not legal purposes. Indeed, the Subject of the email is 'DCC – Revenue Decrease.'")

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

Chapter: 15.205
Case Name: Father Doe v. Phillips Exeter Academy, Civ. No. 16-cv-396-JL, 2016 U.S. Dist. LEXIS 141877 (D.N.H. Oct. 13, 2016)
(finding that defendant Phillips Exeter Academy could not successfully claim privilege protection for a lawyer's investigation into possible sexual misconduct by a student; noting that defendant called the lawyer an "independent investigator," which meant that the lawyer was not assisting the defendant's lawyer in providing legal advice; also finding an implied waiver because the defendant relied on the investigation report in disciplining a student; also finding that defendant waived any possible privilege protection by disclosing portions of the investigation report to parents; inexplicably failing to deal with the work product doctrine; "There is also a question as to whether Attorney McGintee's reports amount to the provision of legal advice. PEA's representations to the Doe plaintiffs and to this court suggest that any advice provided in the reports advice is more akin to advice rendered to assist in a business decision, which the privilege does not protect, than legal advice, which it does. . . . PEA has described its process for handling cases of sexual misconduct as follows: 'In the reasonable exercise of its reserved discretion, [PEA] has determined that the better process in [cases such as this] is to employ an external investigator to perform an independent investigation and issue a report with factual findings and conclusions on whether a PEA policy has been violated. The investigator applies a preponderance of the evidence standard. The Dean of Students and her team review the report and make a recommendation to the Principal, who makes the final determination on an appropriate disposition, which is precisely how this case proceeded.'"; "As it has been described to the plaintiffs and the court, Attorney McGintee's reports include facts drawn from interviews with three minors who are not party to the attorney-client relationship, as well as Attorney McGintee's conclusions as to their credibility and her ultimate conclusion as to what happened during the encounter between John Doe and Jane Roe. . . . PEA, by its own admission, and as discussed more fully infra Part III.B, used this information to form its decision on whether to suspend or expel John Doe. Advice to a school on whether to discipline a student seems, to this court, to more closely resemble communications to facilitate a business decision than pursuit of legal advice.")

Case Date Jurisdiction State Cite Checked
2016-10-13 Federal NH

Chapter: 15.205
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("The declaration of Siatis [In-house lawyer] stated that although the document was prepared by a non-attorney, the redactions contain the mental impressions and legal advice of in-house counsel. The court disagrees. This is another due diligence document created pursuant to a business strategy. Legal issues are referenced only to the extent that they have specific business implications. For example, redacted portions concern Solvay's obligations under an agreement held by Solvay. Abbott only discussed this agreement to assess its business decision to acquire Solvay, not to obtain legal advice.")

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

key case


Chapter: 15.205
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("AbbVie has not met its burden to demonstrate that the August 9, 2011 email to Siatis [In-house lawyer] is privileged. Although Siatis claimed by sworn declaration that the email was a request for legal advice, AbbVie has not provided any supporting information that would allow the court to reach the same conclusion. The attorney-client privilege does not apply to every communication between corporate counsel and corporate employees."; "Here, an AbbVie non-lawyer employee alerted in-house counsel that 'we ought to consider a regulatory strategy.' Based on the information in the record about the nature of this request, the court does not find that this communication sought legal advice. As a participant in a highly-regulated industry, a pharmaceutical company must consider regulatory matters in making nearly all of its business decisions.")

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

key case


Chapter: 15.205
Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("Every reference in a business document to a contract obligation cannot be legal advice or the attorney-client privilege would broadly apply to many non-legal, business communications.")

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

Chapter: 15.205
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
("Communications that are made for purposes of evaluating the commercial wisdom of various options as well as in getting or giving legal advice are not protected.")

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY

Chapter: 15.205
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
("[T]he purpose of the communications must be solely for the obtaining or providing of legal advice."; not dealing with other courts' "primary purpose" standard)

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY
Comment:

key case


Chapter: 15.205
Case Name: Schaeffler v. United States, 806 F.3d 34 (2nd Cir. Nov. 10, 2015)
January 13, 2016 (PRIVILEGE POINT)

"Second Circuit Offers Bad News, Good News and No News"

When the Second Circuit speaks, people listen. That court recently dealt with privilege and work product issues.

In Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), the Second Circuit reversed a district court's holding that (1) a taxpayer waived his privilege protection by disclosing protected legal advice to his lenders, and (2) the work product doctrine did not protect documents the taxpayer prepared in anticipation of IRS litigation. First, the Second Circuit offered bad news on the privilege front — explaining that for privilege to apply "the purpose of the communications must be solely for the obtaining or providing of legal advice." Id. At 40 (emphasis added) This is a narrower approach than the majority "primary purpose" standard, and much narrower than the D.C. Circuit's one "significant" purpose standard. See In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1163 (2015). Second, in discussing the common interest doctrine, the Second Circuit offered good news — acknowledging that the taxpayer and his lenders shared a common legal interest rather than just a common financial interest. Schaeffler, 806 F.3d at 42. Third, the Second Circuit also offered good news on the work product front — essentially rejecting the district court's "construct of a hypothetical scenario" in which the taxpayer and his lenders faced the same business issues without a litigation threat. Id. At 44. The court explained that the enormous financial stakes and business complexity meant that the lower court's hypothetical was "at odds with reality." Id. This meant that the taxpayer by definition would not have created his documents in the same form absent an IRS litigation threat. Fourth, the Second Circuit offered no news on a key issue — whether the common interest doctrine can apply in the absence of anticipated litigation. The court acknowledged that "[p]arties may share a 'common legal interest' even if they are not parties in ongoing litigation," but did not take a position either way on the doctrine's applicability in a purely transactional setting. Id. At 40 (citation omitted).

The Second Circuit's off-handed description of the privilege standard may not represent a legal shift, so overall the Schaeffler decision represents primarily good news — on the common interest and work product fronts.

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY
Comment:

key case


Chapter: 15.205
Case Name: Alomari v. Ohio Dept. of Public Safety, 15a0630n.06, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
("But the privilege protects communications 'necessary to obtain legal advice.'. . . No caselaw suggests that communications are privileged only when they are utilized to dispense legal advice.").

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

Chapter: 15.205
Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *10 (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; "A performance review is not 'legal advice of any kind.' It is a quintessential business function, and plaintiff is entitled to probe the factual underpinnings of the Bank's evaluation of her performance.")

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

Chapter: 15.205
Case Name: Koumoulis v. Independent Financial Marketing Group, Inc., No. 10-CV-0887 (PKC) (VMS), 2013 U.S. Dist. LEXIS 157299 (E.D.N.Y. Nov. 1, 2013)
January 8, 2014 (PRIVILEGE POINT)

"Court Takes a Very Narrow View of Legal Advice in a Corporate Setting"

Attorney-client privilege protection depends on content, and the key issue normally involves distinguishing between primarily legal and primarily business advice. Courts disagree about where to draw that line.

In Koumoulis v. Independent Financial Marketing Group, Inc., No. 10-CV-0887 (PKC) (VMS), 2013 U.S. Dist. LEXIS 157299 (E.D.N.Y. Nov. 1, 2013), the court examined communications between a Duane Morris lawyer and her corporate client's human resources employees. The court rejected privilege claims for most of the lawyer's communications. For instance, the court noted that the Duane Morris lawyer "sometimes told Human Resources employees exactly what questions to ask during interviews and what statements to make during meetings," and that "her advice would advance business goals, such as improving business relationships." Id. At *45. The court also noted that Duane Morris' "advice rarely involved 'the interpretation and application of legal principles to guide future conduct or to assess past conduct,'. . . And rarely explicitly considered future litigation." Id. At *45-46.

Not all courts would take this narrow view, but the decision provides a good lesson. Wise lawyers train their clients to explicitly explain in the four corners of their communications that they are seeking legal advice, that they are worried about litigation, etc. However, it is also important for lawyers to explicitly explain in their responses that they are providing legal advice (by mentioning legal principles, citing statutes or case law, etc.) and to mention litigation if the client reasonably anticipates it.

Case Date Jurisdiction State Cite Checked
2013-11-01 Federal NY
Comment:

key case


Chapter: 15.205
Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 24, 2013)
December 18, 2013 (PRIVILEGE POINT)

"Courts Deny Privilege Protection for Compliance-Related Documents"

Many corporate clients erroneously assume that the attorney-client privilege or the work product doctrine will protect their compliance-related communications. However, such communications face the same impediments to either protection as other internal corporate communications.

For instance, the attorney-client privilege only protects communication primarily motivated by clients' request for legal advice. In United States ex rel. Gale v. Omnicare, Inc., the court found that the privilege did not protect "Compliance Committee meetings and the documents drafted by [the company's CCO]," – because the company's previous agreement with the government required such meetings. Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013). The court concluded that "[t]he meetings and documents sought to comply with its contract with the United States, not to obtain legal advice." Id. The privilege also normally depends on lawyers' involvement. In Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 24, 2013), Judge Scheindlin held that the privilege did not protect documents created during the Bank of China Chief Compliance Officer's investigation into the bank's possible dealings with terrorists. Judge Scheindlin noted that after the Bank's CCO received Plaintiff's demand letter, "'he called outside counsel, then set about performing the investigation within the Compliance Department – without the involvement of any counsel.'" Id. At *35 (citation omitted). Judge Scheindlin cited an earlier case's blunt conclusion that "[p]rivilege does not apply to 'an internal corporate investigation . . . Made by management itself.'" Id. At *36 (citation omitted).

Companies and their lawyers should not assume that the compliance function automatically, or even usually, deserves privilege protection.

Case Date Jurisdiction State Cite Checked
2013-10-24 Federal NY
Comment:

key case


Chapter: 15.205
Case Name: United States ex rel. Gale v. Omnicare, Inc., Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013)
December 18, 2013 (PRIVILEGE POINT)

"Courts Deny Privilege Protection for Compliance-Related Documents"

Many corporate clients erroneously assume that the attorney-client privilege or the work product doctrine will protect their compliance-related communications. However, such communications face the same impediments to either protection as other internal corporate communications.

For instance, the attorney-client privilege only protects communication primarily motivated by clients' request for legal advice. In United States ex rel. Gale v. Omnicare, Inc., the court found that the privilege did not protect "Compliance Committee meetings and the documents drafted by [the company's CCO]," – because the company's previous agreement with the government required such meetings. Case No. 1:10-CV-00127, 2013 U.S. Dist. LEXIS 143831, at *4 (N.D. Ohio Oct. 4, 2013). The court concluded that "[t]he meetings and documents sought to comply with its contract with the United States, not to obtain legal advice." Id. The privilege also normally depends on lawyers' involvement. In Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343 (S.D.N.Y. Oct. 24, 2013), Judge Scheindlin held that the privilege did not protect documents created during the Bank of China Chief Compliance Officer's investigation into the bank's possible dealings with terrorists. Judge Scheindlin noted that after the Bank's CCO received Plaintiff's demand letter, "'he called outside counsel, then set about performing the investigation within the Compliance Department – without the involvement of any counsel.'" Id. At *35 (citation omitted). Judge Scheindlin cited an earlier case's blunt conclusion that "[p]rivilege does not apply to 'an internal corporate investigation . . . Made by management itself.'" Id. At *36 (citation omitted).

Companies and their lawyers should not assume that the compliance function automatically, or even usually, deserves privilege protection.

Case Date Jurisdiction State Cite Checked
2013-10-04 Federal OH
Comment:

key case


Chapter: 15.205
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 644-45 (D. Nev. 2013)
(holding that the attorney-client privilege does not protect communication with a public relations firm employee; "The document that follows is a memorandum from Lee Lynch at Hill & Knowlton [P.R. firm] to Holly Glass [defendant's V.P. of Public Relations] regarding the communications plan which states that it provides a guide for implementing an 'immediate communications strategy to ensure C.R. Bard is prepared for any news coverage. . . .' (emphasis added.) Legal counsel is not included as a recipient. The document states that the plan is 'intended to prepare for general or national coverage that may result from a lawsuit being filed, product withdrawal and or general negative stories surrounding Recover Vena Cava Filters.' It does state that 'H&K has begun monitoring for any coverage surrounding a potential lawsuit.'")

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

Chapter: 15.205
Case Name: Med. Assurance Co. v. Weinberger, 295 F.R.D. 176, 188 (N.D. Ind. 2013)
("Even if the structure for settling claims was derived through communications with an attorney, such business advice is exempt from the attorney-client privilege, and discovery seeking information of a business's ordinary course of operations is exempt from the work product privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IN B 2/14

Chapter: 15.263
Case Name: John B. McNeece IV, The Ethical Conflicts of the Hybrid General Counsel and Chief Compliance Officer, Georgetown Journal of Legal Ethics, 25 Geo. J. Legal Ethics 677 (Summer 2012)
(an article written by a law student, discussing the relationship between general counsel and chief compliance officer positions; "In many GSIFIs [Globally Systemically Important Financial Institutions] the office of the General Counsel has absorbed the office of the Chief Compliance Officer. The attorney-client privilege that attaches to the office of General Counsel clashes with the fiduciary duties of disclosure that attach to the CCO's office. Meanwhile, the fiduciary duties of zealous representation and advising that attach to the General Counsel's office cannot be performed alongside the fiduciary duties of the CCO. In merging the two functions, the 'Hybrid General Counsel' is precluded from performing either job effectively."; "The General Counsel can either perform the CCO role to the best of his ability, but breach attorney-client privilege, or he can perform the General Counsel role to the best of his ability, but breach his fiduciary duty as CCO. As an attorney, the General Counsel must maintain the client's confidentiality; in this case the Counsel's clients are the corporation and its agents. Meanwhile, the CCO, in following his fiduciary duty, must report compliance violations, and because of recent legislation, the potential for compliance violations. There is thus a conflict between proper fiduciary conduct and required confidentiality. Further, the Compliance Officer's focus and attention goes to what has already been done and makes corrections. In contrast, the modern General Counsel has a legal and management role that creates the very programs the Compliance Officer will review. Congressmen Grassley referred to this issue by noting the 'stench of conflict' in that arrangement."; "The solution to this problem is a mandated separation of the two roles. This would be a new development in the financial services industry but is not an unprecedented move. Indeed, the healthcare industry already mandates the separation of the CCO and GC, and provides a tested model to apply to the financial services industry."; "The intersection of three trends has led to the creation of the Hybrid General Counsel. The General Counsel's Office has grown in power and responsibility. For GSIFIs, the compliance function has grown to a role of critical importance, thanks to increased regulation. With the final trend towards aggressive cost cutting, the nexus between compliance and legal and the expansion trajectory of general counsel responsibilities results in the merging of the two functions."; "The compliance and legal functions should be separated. Conflicts between required maintenance of confidentiality and required disclosures, different groups to which fiduciary duties are owed, and practical considerations demonstrate the ethical problems with a hybrid position."; "In designing the separation of the roles, the healthcare model provides a good guide. Formal separation of the two roles is developing industry best practice, and should be mandated.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Other

Chapter: 15.301
Case Name: Doehne v. EmpRes Healthcare Management, LLC, No. 46467-5-II, 2015 Wash. App. LEXIS 1909 (Wash. App. Aug. 11, 2015)
(holding that the attorney-client privilege and the work product doctrine protected a post-accident investigation following a slip and fall accident at a health facility; noting that the facility's in-house lawyers directed the investigation; "The purpose of EmpRes' risk management position 'is to act as a conduit between the legal department and insurers regarding liability issues, including workers' compensation and third-party liability, with the goal of avoiding litigation and minimizing liability.'. . . The record shows that Clarno's report was prepared to assist in-house counsel in addressing issues of liability and potential litigation.")

Case Date Jurisdiction State Cite Checked
2015-08-11 Federal WA
Comment:

key case


Chapter: 15.301
Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)
(in an opinion by Judge Gorenstein, finding that a compliance-initiated investigation into a defendant's possible tie with terrorists did not deserve privilege or work product protection; "[W]e are unaware of any case law suggesting that a person's collection of information is protected merely because the person harbors a plan to provide the information later to an attorney -- particularly where there is no proof that the attorney sought to have the individual collect the information at issue. Indeed, case law holds just the opposite. . . . Nor is it of any importance that this information may have ultimately been used by Loughlin for the purpose of advising BOC."; "Neither Geng nor Loughlin ever assert that specific documents sought by plaintiffs here formed part of a communication between them at the time the documents were created. Rather, BOC's argument is that because it made a 'request for legal advice' to counsel and because outside counsel ultimately received this request and 'rendered advice in response,' the 'communications' at issue are necessarily protected. . . . But this argument elides the critical issue: why the specific documents sought by plaintiffs are 'communications' that were made to an attorney given that plaintiffs are not seeking any 'communications' with counsel."; "[H]owever, provides no evidence -- let alone evidence sufficient to meet its burden of proof -- that any of the documents at issue in this motion were produced at the 'direction' of an attorney in order to allow the attorney to render legal advice. To the extent that BOC is arguing that investigations conducted without the direction of an attorney necessarily form part of an attorney-client communication as long as a corporate employee who received an order to conduct the investigation harbored an 'expectation,'. . . That he would share the information with an attorney at some future date, we reject this argument as unsupported by logic or case law.")

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

Chapter: 15.301
Case Name: Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042 (N.D. Cal. Jan. 21, 2015)
("The character of the redacted content in both tickets falls within the privilege. The redactions from both tickets are, or discuss, communications with a lawyer made to secure legal advice. Ticket 4328 has Hulu employees directly asking their in-house attorney for, and receiving, legal advice concerning the task that they were working on. Hulu correctly writes that the 'sole purpose' of the redacted material in 4328 was to secure legal advice. That is the dead center of what the attorney-client privilege covers.")

Case Date Jurisdiction State Cite Checked
2015-01-21 Federal CA

Chapter: 15.301
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *9 (W.D. Wash. Sept. 19, 2014)
("[T]he documents are not privileged should they evidence Mr. Fearn's mental impressions regarding administrative decisions that he made with respect to Mr. Chandola, regardless of his status as an attorney, though they may be privileged to the extent that they primarily contain his mental impressions regarding the legality of such a decision. Further, the facts underlying any such legal advice are not privileged. Inspection of the documents themselves would be necessary in order to make these fine-grained distinctions.")

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

Chapter: 15.301
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *6 (W.D. Wash. Sept. 19, 2014)
("Where legal and business considerations are intertwined, courts have looked to see whether the 'primary purpose' of the communication related to seeking legal advice.")

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

Chapter: 15.301
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *14-15 (W.D. Wash. Sept. 19, 2014)
("Counsel for Plaintiff may inquire into conversations that took place at SHA legal department staff meetings, including as they related to SHA management decisions and opinions about the decisions of Mr. Chandola and other Hearing Officers, which took place prior to the initiation of this litigation. At deposition, counsel for Defendants may object on the basis of attorney-client privilege only if SHA can show that the dominant purpose of a conversation inquired into was to impart or receive confidential legal advice rather than to make a personnel decision. In no instance are the facts underlying communications with SHA attorneys and relevant to claims and defenses privileged.")

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

Chapter: 15.301
Case Name: AU Electronics, Inc. v. Harleysville Group, Inc., Case No. 13 C 5947, 2014 U.S. Dist. LEXIS 72862 (N.D. Ill. May 28, 2014)
(analyzing whose in a third party insurance coverage dispute; "Lawyers may play a number of roles in the decision to deny a claim, which, for an insurance company, is a business decision. As a general proposition, the fact that a lawyer is part of a business decision does not, by itself, cloak the communications relating to that decision with privilege. That does not mean, however, that there can be never be any privilege for a communication with a lawyer during the course of the decision. It depends on the facts, including the nature of the communication and the role of the lawyer. In Illinois, communications between an insurer and its coverage counsel generally are privileged.")

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

Chapter: 15.301
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *6, *7, *8, *9, *10-11 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney-client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "Defendant argues that this document was the product of a joint effort by multiple departments at Unilever to create uniform guidelines relating to 'natural' and 'all natural' claims."; "Defendant has attached a declaration from Nancy Schnell, then an in-house counsel, which states that the document relates to Unilever's efforts to create guidelines for 'natural' and 'all natural' claims. . . . Defendant also points out that the document notes that formal approval by the Legal and Regulatory departments is required before making any 'natural' claims and that 'Legal' is listed as the owner of a document referenced internally."; "The document does not contain legal advice, and there is no indication that it was prepared in anticipation of litigation. The document touches briefly on the legislative and regulatory environment for natural claims, including two European court cases. . . . The document mentions, very generally, that legal considerations are involved in making natural claims, but nothing more specific."; "The document was issued by Regulatory Affairs and Legal, but the mere mention of the Legal department in the chain of events of approval of a natural claim is too general and non-specific to be covered by the attorney-client privilege. Unilever treated making a natural claim as a complex decision involving multiple departments, but the mere fact of some Legal Department involvement at various points does not rise to the level of legal advice or a request for legal advice."; "Declarations from Unilever employees that the purpose of the initiative was to ensure compliance with the law and address possible future litigation cannot create a blanket work-product protection for every document related to a particular business venture. . . . Although Exhibit 15 relates generally that natural claims have legal and regulatory implications, and mentions two court cases in Europe, it was prepared in the ordinary course of Unilever's global foods business. That a business such as Unilever's functions in a complex legal and regulatory environment is not enough to anticipate litigation under the 'because of' standard articulated in In re Grand Jury Subpoena, 357 F.3d [900,] 907 [9th Cir. 2004)]. . . . The awareness that there might potentially be legal consequences to certain actions does not 'anticipate litigation' as required by the work-product doctrine. Defendant has not shown that it anticipated any actual lawsuit: it has not cited any demand letters or other threats of a lawsuit from anyone, much less an actual suit.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 15.301
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

Chapter: 15.301
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that Wilmer Hale's documents deserved privilege protection; "Plaintiffs argue that the Restructuring Report, similarly, was designed to address only factual questions, such as (1) How did HMS actually restructure delinquent loans during 2002?; (2) What did public disclosures and company policies say about HMS's restructuring of delinquent loans during the same period?; and (3) What were the differences, if any, between HMS's practices and either its policies or the Company's public disclosures? . . . Nowhere in that Report, Plaintiffs argue, did WilmerHale provide any legal analysis or recommendations that could be subject to the attorney-client privilege."; "The mere fact that WilmerHale's report included some factual findings does not establish that the entire report falls outside the scope of the attorney client privilege. As Defendants note, 'fact-gathering is an essential element in an attorney's formation of legal conclusions.'. . . The court has reviewed the Restructuring Report and finds that WilmerHale was retained to provide legal analysis and advice. Within the Restructuring Report . . . WilmerHale considered both the quantitative and qualitative materiality of variances from disclosed restructuring policies, and provided legal advice as to whether Household should take corrective action."; "Plaintiffs make much of the fact that a Report to the Board of Directors on 2003 Audit Committee Activities stated that the Committee retained WilmerHale to investigate 'the allegations made by Ms. Markell, in order to comply with the requirements of Section 10A of the Securities Act of 1934.'. . . See also 15 U.S.C. § 78-j1. Section 10A requires that '[i]f, in the course of conducting an audit . . . [auditors] become[] aware of information indicating that an illegal act . . . may have occurred, the firm shall . . . determine whether it is likely that an illegal act has occurred.' 15 U.S.C. § 78j-1(b)(1). This provision 'expanded independent accountants' watchdog duties,' such that KPMG was required to ascertain whether Household had engaged in any illegal acts that would directly and materially affect the Company's financial statements. . . . Nothing prohibited KPMG, however, from requesting legal assistance in meeting its obligations under 15 U.S.C. § 78j-1(b).")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 15.302
Case Name: In re Niaspan Antitrust Litig., Master File No. 13-MD-2460, 2017 U.S. Dist. LEXIS 135753 (E.D. Pa. Aug. 24, 2017)
(finding that the following email communication purely motivated by business rather than legal concerns; "'Peter, in order to make sure we retain as much leverage as possible, I think you should make it clear to Sandoz that we are waiting to see what their reaction is to our comments before we make a decision as to whom we will go with. In other words, they should remain under the impression that we still have an alternative AG. Thank you for all your help with this very important matter. Regards, Andrew.'"; "[I]n the above-quoted paragraph, Koven suggested that Ciano take a particular negotiating stance so as to retain leverage over Sandoz. On its face, that is business advice, and AbbVie has not articulated any explanation of how it could be construed as legal advice. AbbVie has failed to meet its burden of proving that the above-quoted paragraph provides primarily legal advice.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal PA

Chapter: 15.302
Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs also argue that Wells Fargo improperly designated as confidential documents containing only factual information. Plaintiffs cite as exemplars three charts . . . to demonstrate that many of the allegedly privileged documents are spreadsheets summarizing trust data and are therefore factual business documents that should be disclosed."; "The relevant inquiry with respect to Exhibits 11 (and the related chart in Exhibit 14), 15, and 16 is whether these charts were created for the purpose of obtaining legal advice or whether they were otherwise created in the ordinary course of Wells Fargo's business. . . . Based on the current record, Wells Fargo has not met its burden of establishing that these charts should be withheld. Exhibit 11 (and Exhibit 14) appears to be a chart that was prepared in the ordinary course of Wells Fargo's business. Indeed, the Court suspects that this document (at least in large part) was generated by Wells Fargo as part of its management of the trusts, not by counsel. It would be surprising that a lawyer would have been responsible for inputting this sheer volume of data into a spreadsheet. Similarly, Exhibit 15 is a compilation of repurchase and loan file review information that appears to have been extracted from a database. In its February 7, 2017 submission, Wells Fargo represented that it has already produced the non-privileged portions of Exhibit 15 but does not indicate what those portions were. Regarding Exhibit 16, Wells Fargo asserts that it consists of documents and communications shared between Wells Fargo and its attorneys in order for counsel to determine whether and EOD had occurred. But it is not clear what the role of counsel was in preparing Exhibit 16."; "[T]he Court will reserve decision pending further submission by Wells Fargo."; "Wells Fargo shall submit a declaration of a person with knowledge to show that these charts were created for the purpose of obtaining legal advice, not for the purpose of conducting its ordinary business. The declarant should describe, in detail, each column in each of the charts and explain whether the information in each column reflected attorney advice or was compiled for the purpose of obtaining legal advice.")

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

Chapter: 15.302
Case Name: Loguidice v. McTiernan, 1:14-CV-1323 (TJM/CFH), 2016 U.S. Dist. LEXIS 113745 (N.D.N.Y. Aug. 25, 2016)
(in an employment case, analyzing plaintiff's effort to obtain internal government communications about her firing; analyzing the communications topic by topic, finding that some of the topics would involve legal advice, while others did not; "Although merely citing to a law or regulation does not render the communication privileged, discussing the 'import of the catering event at the GE site,' suggests an assessment of whether plaintiff's conduct created a conflict of interest. . . . It would appear that a discussion of '[o]ptions available under the civil service law' involves the 'interpretation and application of legal principles to guide future conduct or to assess past conduct.'. . . Similarly, insofar as Lodico testified that the defendants spoke about 'options available under the civil Service Laws,' such would also appear to involve an assessment of whether plaintiff's conduct violated such laws -- a discussion that involves legal, rather than business advice."; "However, the undersigned finds differently insofar as the conversation involved 'Andrea's ability to carry out her responsibilities as the natural resource damages attorney.'. . . An assessment of plaintiff's ability to continue her work in light of defendants' awareness of a potential conflict of interest would not appear to be a legal issue, but rather an assessment involving logistics, such as whether plaintiff would be able to continue her work in a capacity that screened her from GE matters. The record supports that plaintiff's work was 'more than 60%' GE related. . . . Further, documents that were produced during discovery revealed that after the conflict was discovered, plaintiff's supervisor removed her from all GE work. . . . Although the determination of whether a conflict of interest occurred may implicate a legal assessment, whether to continue an employee in the same line of work once a potential conflict has been discovered and assessed and determined to be a violation of a law, regulation, or policy, is primarily a business determination."; "Accordingly, plaintiff's motion to compel, insofar as she seeks to have Lodico answer questions relating to the late July 2014 meeting regarding 'the import of the catering event at the GE site' and '[o]ptions available under the civil service law' is denied, as defendants have met their burden of demonstrating that these communications are protected by the attorney-client privilege. . . . However, to the extent plaintiff seeks to ask Lodico questions regarding what was said relating to plaintiff's 'ability to carry out her responsibilities as the natural resource damages attorney[,]' such motion is granted. . . . Should plaintiff seek to depose Lodico in order to obtain answers relating to this limited topic, she may do so, but the undersigned declines to require defendants to pay costs.")

Case Date Jurisdiction State Cite Checked
2016-08-25 Federal NY
Comment:

key case


Chapter: 15.302
Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
(analyzing defendant's instructions to various witnesses not to answer deposition questions; "During his September 4, 2015 deposition, Defendant instructed Ethan Bailey not to answer five of Plaintiffs' questions based on the attorney-client privilege. The questions included: (1) "With respect to the compliance aspect of CoreLogic's written policies, are you aware of any compliance with respect to the law, other than Dodd-Frank?"; (2) 'Do you know if the written policies of CoreLogic with respect to compliance specifically refer to specific laws?'; (3) 'Do you know whether or not there is content in those CoreLogic corporate policies with respect to compliance with the law?'; (4) 'What is the content?'; and (5) 'What is the content of that corporate policy with respect to compliance with the law?'"; "[T]he Court is not persuaded the content of Defendant's written legal compliance policies, which CoreLogic asserts were drafted by its in-house counsel . . . Constitutes 'legal advice' such that it satisfies the first element of the Ninth Circuit's eight-factor test for determining whether the attorney-client privilege applies.")

Case Date Jurisdiction State Cite Checked
2016-02-02 Federal CA

Chapter: 15.302
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; "The second redacted portion in the 'AndroGel 1.62% BE' paragraph contemplated a business decision which had legal implications. Although this redacted portion 'examined the legal implications of some of those concerns'. . . It ultimately sought to prevent a product launch delay because be harmful to its business interests. MacAllister [an in-house lawyer who also had a business title] asked his senior management colleagues 'WILL YOU PLEASE LET ME KNOW YOUR THOUGHTS ON THIS POINT?,' thereby eliciting business advice from business colleagues rather than providing legal advice.")

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

key case


Chapter: 15.302
Case Name: EEOC v. Texas Roadhouse, Inc., Civ. A. No. 11-cv-11732-DJC, 2015 U.S. Dist. LEXIS 161929 (D. Mass. Dec. 2, 2015)
("The attorney-client privilege extends to communications between corporate officers and in-house counsel, but the communications must relate to legal matters, not business strategy or negotiation. . . . Distinctions between legal work and business matters can be hard to draw.")

Case Date Jurisdiction State Cite Checked
2015-12-02 Federal MA

Chapter: 15.302
Case Name: Fay Avenue Properties, LLC v. Travelers Prop. Cas. Co. of Am., Case No. 3:11-cv-02389-GPC-WVG, 2014 U.S. Dist. LEXIS 82688, at *17 (S.D. Cal. June 17, 2014)
(explaining that under California law the key to privilege protection was the "dominant purpose" of the relationship, not the dominant purpose of each communication; "Cases have similarly held that in determining whether communications are privileged, the focus of the inquiry is the dominant purpose of the relationship between the parties to the communication and not to determine whether each communication meets the privilege standard.")

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

Chapter: 15.302
Case Name: McAdam v. State Nat'l Ins. Co., Case No. 12-cv-1333 BTM-MDD, 2014 U.S. Dist. LEXIS 37808, at *9-10 (S.D. Cal. Mar. 21, 2014)
(analyzing documents in a first party insurance context; "It follows that, when an insurer hires an attorney both to provide a legal opinion and to serve as a claims adjuster, 'the court must make a determination of which purpose was primary.' . . . The objectors argue that the predominant purpose test must be applied on a document-by-document basis. . . . The Court disagrees. '[I]t is not the dominant purpose of a particular communication that dictates whether the attorney-client privilege is applicable; rather the issue is what was the dominant purpose of the relationship.' . . . If the dominant purpose of the relationship was attorney-client at the time of the communications, they are privileged. If not, they are generally discoverable, though the producing party may request an in camera inspection of a particular communication to support a claim that it should be protected nonetheless.")

Case Date Jurisdiction State Cite Checked
2014-03-21 Federal CA B 8/14

Chapter: 15.302
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: 15.302
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that Wilmer Hale's documents deserved privilege protection; "Plaintiffs argue that the Restructuring Report, similarly, was designed to address only factual questions, such as (1) How did HMS actually restructure delinquent loans during 2002?; (2) What did public disclosures and company policies say about HMS's restructuring of delinquent loans during the same period?; and (3) What were the differences, if any, between HMS's practices and either its policies or the Company's public disclosures? . . . Nowhere in that Report, Plaintiffs argue, did WilmerHale provide any legal analysis or recommendations that could be subject to the attorney-client privilege."; "The mere fact that WilmerHale's report included some factual findings does not establish that the entire report falls outside the scope of the attorney client privilege. As Defendants note, 'fact-gathering is an essential element in an attorney's formation of legal conclusions.'. . . The court has reviewed the Restructuring Report and finds that WilmerHale was retained to provide legal analysis and advice. Within the Restructuring Report . . . WilmerHale considered both the quantitative and qualitative materiality of variances from disclosed restructuring policies, and provided legal advice as to whether Household should take corrective action."; "Plaintiffs make much of the fact that a Report to the Board of Directors on 2003 Audit Committee Activities stated that the Committee retained WilmerHale to investigate 'the allegations made by Ms. Markell, in order to comply with the requirements of Section 10A of the Securities Act of 1934.'. . . See also 15 U.S.C. § 78-j1. Section 10A requires that '[i]f, in the course of conducting an audit . . . [auditors] become[] aware of information indicating that an illegal act . . . may have occurred, the firm shall . . . determine whether it is likely that an illegal act has occurred.' 15 U.S.C. § 78j-1(b)(1). This provision 'expanded independent accountants' watchdog duties,' such that KPMG was required to ascertain whether Household had engaged in any illegal acts that would directly and materially affect the Company's financial statements. . . . Nothing prohibited KPMG, however, from requesting legal assistance in meeting its obligations under 15 U.S.C. § 78j-1(b).")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL

Chapter: 15.302
Case Name: Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587-588 (W.D. Va. 1987)
(holding that the lawyer "must be acting as an attorney and not simply as a business advisor" for communications to be privileged; finding that memoranda claimed to be privileged by Wyeth instead related to a business transaction and primarily contained business advice; "Remarkably, [the memoranda] do not contain specific requests for legal advice of services, and Wyeth has done little to show this court how these documents primarily could be tied to legal advice as opposed to business advice. . . . The court finds the documents to have been prepared primarily in a business capacity and not primarily in a legal capacity. Business advice is not privileged.")

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal VA

Chapter: 15.303
Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("Two sets of documents are at issue. The first involve contract negotiations with a fighter. The fighter's counsel provided a marked up version of the fighter's existing contract with the fighter's proposed changes, to Zuffa's COO, Frank Fertitta, who was responsible for negotiations with the fighter. Mr. Fertitta forwarded the marked up contract to in house paralegal Tracy Long and requested a summary of the proposed changes. Ms. Long indicated she would get the input of in house counsel Michael Mersch, and would respond by memo the following day. Zuffa claims a summary of the fighter's proposed changes, a memo from Mr. Mersch to Mr. Fertitta, and related emails are protected by the attorney client privilege. Zuffa's opposition was supported by several declarations which outline the titles various individuals held within the organization during various time periods. Noticeably absent were declarations from the in house counsel involved in the communications, Mr. Mersch, or Mr. Fertitta, the negotiator and executive requesting the summary of proposed changes."; "The court carefully reviewed the documents, considered the context of the communications in which various individuals who sent or received the documents was involved, and found Zuffa simply had not met its burden of showing the documents were privileged. The summary merely recites what the fighter, through counsel, was requesting in contract negotiations. The summary contains no legal analysis or advice, nor do the emails which forward information about what the fighter was requesting, and comment on whether Zuffa should agree or disagree."; "Most of the Mersch memo contains comments about whether Zuffa could or should agree or 'push back' on proposed changes requested by the fighter rather than legal analysis or discussion of the legal ramifications of the fighter's proposals. However, portions of Mr. Mersch's memo to Mr. Fertitta, read in context, contain his legal analysis of existing contract terms and the legal consequences of agreeing or disagreeing with what the fighter's counsel was proposing. Although the memo does not specifically use terms or phrases such as 'this is my legal advice' or 'this is the legal effect' of what the fighter's counsel is requesting, legal analysis of the proposed terms is evident. The court will therefore require that the document be produced to Plaintiffs as redacted below.")

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

Chapter: 15.303
Case Name: Le v. Zuffa, LLC, Case No. 2:15-cv-01045-RFB-PAL, 2016 U.S. Dist. LEXIS 69813 (D. Nev. May 26, 2016)
(finding that many emails to and from Milbank Tweed lawyers were not protected by the attorney-client privilege; "Applying these principles, the court finds the majority of the redacted paragraphs in dispute in this motion are not privileged. The first redacted paragraph relates Pride FC's negotiating positions, the fact the Pride did not trust Zuffa anymore than Zuffa trusted Pride, and that Pride did not want its business tied up any longer in negotiations. The paragraph reports the parties' negotiating positions and contains no legal analysis or advice. The second paragraph relates Zuffa's business purpose for the acquisition -- to stop others from buying Pride and to acquire Pride to shut the business down and acquire its fighters for the UFC. It relates Pride's negotiating position that resulted Zuffa's business decision to set a low threshold for due diligence before the deal became binding on both sides. However, a portion of the last sentence of the paragraph relates the client's concern about a legal matter. In context, it appears to be a legal issue the client and counsel discussed in the expectation it was a confidential communication. The remaining communications do not relate to legal advice sought by or given to Zuffa. Mr. Pachal relates Pride's communications to him during the course of business negotiations. Mr. Paschal was merely serving as a conduit of this information from Pride to his client, Zuffa. The other communications relate to the negotiating parties' commercial strategies and tactics. As such, they are not privileged.")

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

Chapter: 15.303
Case Name: Welby, Brady & Greenblatt, LLP v. United States Dept. of Health and Human Services, No. 15-cv-195 (NSR), 2016 U.S. Dist. LEXIS 56605 (S.D.N.Y. April 27, 2016)
("[T]he mere fact that the email chains in those documents contain emails sent to or from third parties does not destroy any claim of attorney-client privilege over later-in-time emails exchanged solely between the Government and its attorneys.")

Case Date Jurisdiction State Cite Checked
2016-04-27 Federal NY

Chapter: 15.303
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding that the attorney-client privilege did not protect documents about how a company could prevent generic pharmaceutical companies from entering a market; "In general, it appears that defendants have taken an overly expansive view of which documents are privileged simply because Ms. Manogue and other attorneys (either at PWR, whose role is discussed more in-depth below, or at Teikoku) drafted them or were copied on them. Some of the documents submitted for in camera review are devoid of legal advice, but concern business matters. For example, Exhibit 3 is a chain of emails attaching a draft of the Citizen Petition amendment. The emails concern the purpose of a Citizen Petition and the timing for filing, which read in context are business matters not legal advice or communications seeking legal advice. Exhibits 5, 6 & 7 consist of a cover email and identical 'Citizen Petition Timeline' slides. There is no legal advice contained or sought in the email or slides, and the slides themselves appear to be based on publicly available information, plus what may be an internal plan or suggestion on timing for an additional Citizen Petition amendment. These documents are devoid of legal advice. While they may have been prepared for a discussion between Endo, Teikoku, and PWR as to the timing of a Citizen Petition amendment or whether to file a new Citizen Petition, that does not make the contents of the emails and identical slides protectable as attorney-client information. Exhibit 8 . . . Is a cover email from Caroline Manogue to board members and others at Endo attaching the response from the FDA denying the Citizen Petition. That email was forwarded by Endo's former CFO Levin to additional people at Endo seeking input on various business matters, and an email response to Levin from one of the subsequent recipients about expected financial reporting in response to the FDA's action. These documents are concerned with the business implications of the FDA's actions. Other than the first sentence at the top of the email chain (regarding a conversation with Manogue), there is no legal advice provided or sought. Other than that one sentence, this communication is not protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-07 Federal CA

Chapter: 15.303
Case Name: General Electric v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
("The Government further argues that certain documents claimed as privileged were predominantly for business purposes, not legal or tax advice purposes. . . . The Government maintains this objection despite GE's explicit descriptions of documents on the privilege log as 'reflecting legal advice' or 'reflecting tax advice.' The Government presented a few examples of documents that had been claimed as privileged in one production, but otherwise disclosed in another part of GE's production as unprivileged. I cannot conclude from these isolated examples that there is an endemic or systemic concern with GE's privilege designations, in view of the very large number of documents subject to production and in light of the detailed representations of GE's counsel concerning the privilege review quality-assurance process. Moreover, in view of the kinds of complex commercial transactions at issue in this case and with their substantial legal regulatory overtones, it is far from surprising that GE would validly claim privilege to a large proportion of responsive documents.")

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

key case


Chapter: 15.303
Case Name: Alomari v. Ohio Dept. of Public Safety, 15a0630n.06, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
("[T]he privilege similarly covers all communications from the June 2010 meeting because its purpose was to acquire legal advice. Although Director Stickrath's testimony suggests that the primary purpose of the June 2010 meeting was to provide business advice instead of legal advice, the district court did not abuse its discretion in relying on the magistrate judge's determination, which credited Reed-Frient's affidavit, that the primary purpose of the meeting was to provide ODPS with legal advice.").

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

Chapter: 15.303
Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *7 (Del. Ch. Dec. 9, 2013
("[T]he item associated with Document ID 213223 contains mixed business and legal advice, and the latter can be segregated.")

Case Date Jurisdiction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 15.303
Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *4 5 (Del. Ch. Dec. 9, 2013
("I further note that the attorney-client privilege protects legal advice only, and not business or personal advice. Where business and legal advice are inseparable in a communication -- or the communication includes individuals serving in both business and legal advisory roles -- the communication will be considered privileged only if the legal aspects predominate. . . . In addition, for communications containing both business and legal advice, in which the business and legal advice can be segregated easily, they 'must be produced with the legal-related portions redacted.' There are circumstances, however, in which legal and business advice cannot be segregated or it is too difficult to determine if the legal issues predominate in a given communication. In those situations, the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced." (citation and footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 15.303
Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162331, at *29 (D. Conn. Nov. 14, 2013)
("'The fact that a lawyer occasionally acts as a lobbyist does not preclude the lawyer from acting as a lobbyist and having privileged communications with a client who is seeking legal advice.'" (citation omitted))

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

Chapter: 15.303
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

Chapter: 15.303
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *7-8 (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; "Communications from Wertjes [in-house lawyer] to Astellas [defendant] employees - subject to the same factors listed above - are also entitled to the privilege to the extent that they relate to legal advice. It must be emphasized that only Wertjes's communications related to rendering legal advice are protected. Any communications by Wertjes pertaining to business matters, including the petition's factual and technical content, objective merit, and timing of filing, are not privileged. There is no presumption that the privilege either arises or is waived merely as a result of the number of people involved in a communication.")

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

Chapter: 15.304
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; rejecting plaintiff's argument that GM's "primary purpose" in conducting the investigation was not to obtain legal advice; adopting the "one of the significant purposes" standard; "The primary purpose test, however, does not require a showing that obtaining or providing legal advice was the sole purpose of an internal investigation or that the communications at issue 'would not have been made 'but for' the fact that legal advice was sought.' In re Kellogg Brown & Root, Inc., 756 F.3d 754, 759 (D.C. Cir. 2014). Instead, as the D.C. Circuit has expressly held, 'the primary purpose test, sensibly and properly applied, cannot and does not draw a rigid distinction between a legal purpose on the one hand and a business purpose on the other.' Id. At 759. 'So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation . . . .' Id. At 758-59."; "[T]he D.C. Circuit's holding is consistent with -- if not compelled by -- the Supreme Court's logic in Upjohn. Rare is the case that a troubled corporation will initiate an internal investigation solely for legal, rather than business, purposes; indeed, the very prospect of legal action against a company necessarily implicates larger concerns about the company's internal procedures and controls, not to mention its bottom line. Accordingly, an attorney-client privilege that fails to account for the multiple and often-overlapping purposes of internal investigations would 'threaten[] to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law.' Upjohn, 449 U.S. at 393."; "[R]egardless of whether New GM had other purposes in retaining Jenner, and regardless of whether the Valukas Report itself contained legal as opposed to business advice -- a question this Court need not, and does not, reach -- the underlying investigation, and the interviews conducted as part of it, had a 'primary purpose' of enabling Valukas and Jenner to provide New GM with legal advice.")

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY
Comment:

key case


Chapter: 15.304
Case Name: McAdam v. State Nat'l Ins. Co., Case No. 12-cv-1333 BTM-MDD, 2014 U.S. Dist. LEXIS 37808, at *9-10 (S.D. Cal. Mar. 21, 2014)
(analyzing documents in a first party insurance context; "It follows that, when an insurer hires an attorney both to provide a legal opinion and to serve as a claims adjuster, 'the court must make a determination of which purpose was primary.' . . . The objectors argue that the predominant purpose test must be applied on a document-by-document basis. . . . The Court disagrees. '[I]t is not the dominant purpose of a particular communication that dictates whether the attorney-client privilege is applicable; rather the issue is what was the dominant purpose of the relationship.' . . . If the dominant purpose of the relationship was attorney-client at the time of the communications, they are privileged. If not, they are generally discoverable, though the producing party may request an in camera inspection of a particular communication to support a claim that it should be protected nonetheless.")

Case Date Jurisdiction State Cite Checked
2014-03-21 Federal CA B 8/14

Chapter: 15.402
Case Name: United States v. Chevron Corp., No. C 94-1885 SBA, 1996 U.S. Dist. LEXIS 8646, at *6 (N.D. Cal. May 29, 1996)
("The attorney-client privilege does not attach, however, to documents which were prepared for simultaneous review by both legal and nonlegal personnel within the corporation.")

Case Date Jurisdiction State Cite Checked
1996-05-29 Federal CA
Comment:

key case


Chapter: 15.404
Case Name: Valassis Communications, Inc. v. News Corporation, 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
after reviewing documents in camera; "The mere inclusion of a lawyer as a recipient of a copy of a draft document circulated by one business person to other business people seeking comments on the draft would not, standing alone, warrant the protection of the attorney-client privilege. The Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations.")

Case Date Jurisdiction State Cite Checked
2018-09-19 Federal NY
Comment:

Key Case


Chapter: 15.404
Case Name: Nucap Industries Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 U.S. Dist. LEXIS 135288 (N.D. Ill. Aug. 23, 2017)
("Although corporations often seek legal advice with respect to business decisions, the inclusion of counsel does not transform all business discussions into privileged attorney-client communications. See RBS Citizens, 291 F.R.D. at 217 (citing Upjohn Co. v. United States, 449 U.S. 383, 393, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). 'Where a document is prepared for simultaneous review by legal and non-legal personnel and legal and business advice is requested, it is not primarily legal in nature and is therefore not privileged.' Id. (internal quotations and citations omitted).")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal IL

Chapter: 15.404
Case Name: Cooper v. Meritor, Inc., Civ. A. No. 4:16-cv-052 DMB-JMV Consolidated with Civ. A. No. 4:16-cv-053 DMB-JMV, Civ. A. No. 4:16-cv-054 DMB-JMV, CIV. A. No. 4:16-cv-055-DMB-JMV, CIV. A. No. 4:16-cv-056-DMB-JMV, 2017 U.S. Dist. LEXIS 4727 (N.D. Miss. 1/12/17)
(analyzing the waiver impact of fifteen documents Textron created when it owned a Mississippi facility from 1989 to 1996; explaining that Textron sold assets of the company in 1999; disagreeing with Textron's assertion that the asset purchase agreement excluded the privileged environmental documents; noting that Textron left the documents at the facility without any restrictions on access, and did not object when the asset purchaser went bankrupt in 2004 and all of its assets were sold to another company out of bankruptcy; finding that Textron waived privilege protection for the fifteen documents, even though Textron claims to have forgotten that the documents were left at the facility; "In the instant case, Textron asserts a privilege over fifteen (15) documents created from 1989 to 1996 during a period of time it owned and operated a wheel cover manufacturing facility in Grenada, Mississippi. In 1999, Textron entered and subsequently consummated an asset sale agreement with Grenada Manufacturing, LLC (hereinafter sometimes 'the APA'). According to Textron, it did not transfer ownership of documents related to environmental matters, including the subject 15 documents, to Grenada Manufacturing, LLC as part of that sale. It is Textron's positon that it retains ownership of all such documents and any affiliated privilege with respect thereto."; "According to an affidavit supplied by Textron, boxes of these environmental documents, together with other business records of Textron's operations prior to the 1999 sale, were left by Textron at the Grenada facility after the sale. Indeed, Textron contracted for a right to access the documents for a period of time following the sale. APA 14.1. In the court's view, Textron's claim of retained ownership of the documents, even if it were convincing, does not satisfactorily answer whether its treatment of those assets waived any privilege that might be claimed with regard to any of them."; "Textron is faced with the fact that it intentionally left documents that it must acknowledge (because it is material to its claim of retained ownership of the documents in the first instance) it knew concerned environmental matters related to releases from the business prior to 1999. These documents were intentionally left unattended and unrestricted in the hands of yet another party -- this time, Ice Industries, Inc. Though Textron was given notice of the asset transfer to Ice Industries, Inc., it made no effort to retrieve the environmental documents or to even review them for privilege."; "In other words, Textron plainly waived any privilege that would have otherwise been retained if the documents had, in fact, been excluded from the purchase and asset sale."; "Textron argues that unless it realized that the documents concerning environmental matters that it freely gave possession of to others for decades did in fact contain privileged documents, that disclosure could not waive any privilege attendant to the document(s)."; "The court is unpersuaded."; "[T]here is nothing about the 'practical consequences doctrine' that dictates a different outcome. The practical outcome of leaving -- for decades -- documents a company contends it owns in possession of another, with no provision for protection of any privileged communications therein, not to mention permitting the subsequent transfer of possession to others on additional occasions, all without any effort to retrieve them prior to the instant litigation, or to otherwise review them to remove privileged materials has the obvious practical and legal consequence of waiver of any associated privileges.")

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

key case


Chapter: 15.404
Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
(analyzing defendant's instructions to various witnesses not to answer deposition questions; concluding that a defendant's written legal compliance policies did not constitute "legal advice" and therefore could be examined at deposition; also concluding that the legal compliance policies were not kept confidential because they were widely circulated; "[T]he Court is not persuaded Defendant's written legal compliance policies are 'confidential' because they are 'shared only within the company.'. . . At least some of CoreLogic's legal compliance policies are written for, and made available to, all CoreLogic employees. Thus, under In re Domestic Drywall Antitrust Litigation [In re Domestic Drywall Antitrust Litig., 2014 U.S. Dist. LEXIS 144263, 2014 WL 5090032], the Court finds Defendant's argument that its written policies are protected by the attorney-client privilege because they are 'shared only within the company' unavailing."; "And because the Court has not reviewed any of Defendant's written legal compliance policies, it cannot say with certainty that, as in In re Domestic Drywall Antitrust Litigation, all of the policies are 'general' and 'more akin to a reference or instructional guide' than 'specific advice.'. . . Therefore, the Court finds it can neither grant nor deny Plaintiffs' Motion with respect to this claim based on the information presently before it.")

Case Date Jurisdiction State Cite Checked
2016-02-02 Federal CA

Chapter: 15.404
Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("[C]ourts in this District have held that '[w]here a document is prepared for simultaneous review by legal and non-legal personnel and legal and business advice is requested, it is not primarily legal in nature and is therefore not privileged.'")

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

Chapter: 15.404
Case Name: Kleen Products LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
December 24, 2014 (PRIVILEGE POINT)

“It Can be Nearly Impossible to Satisfy Some Courts' Privilege Protection Standards: Part II”

Last week's Privilege Point described a federal court's unforgiving approach to a company's effort to retrieve one purportedly privileged document out of 30,000 produced.

One week later, another court took a similarly narrow view of a defendant's privilege claim in Kleen Products LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014). Among other things, the court applied the following principles to communications to and from co-defendant RockTenn's General Counsel (who also served as that company's Chief Administrative Officer and Senior Vice President and Secretary): (1) "'[w]here a document is prepared for simultaneous review by legal and non-legal personnel and legal and business advice is requested, it is not primarily legal in nature and is therefore not privileged,'" id. at *12 (quoting a 2013 Northern District of Illinois decision); (2) "although [the General Counsel] is copied on three out of the four emails contained within [one email] chain, he offered no legal advice in response," id. at *14; (3) "[i]t is improper to infer as a blanket matter that any email asking for 'comments' that copies in-house counsel along with several other high level managers automatically is a request for 'legal review.'" Id. at *18-19.

Companies' lawyers should train their clients' employees to articulate the basis for privilege in the body of their communications to and from the lawyers. The lawyers should also familiarize themselves with the privilege standards applied by the court in which they find themselves litigating.

Case Date Jurisdiction State Cite Checked
2014-11-12 Federal IL
Comment:

key case


Chapter: 15.404
Case Name: Williams v. Duke Energy Corp., Civ. A. 1:08-cv-00046, 2014 U.S. Dist. LEXIS 109835 (S.D. Ohio Aug. 8, 2014)
("Documents prepared and emailed for review by both legal and nonlegal employees are often held to be not privileged because the communications were not made for the primary purpose of seeking legal advice.")

Case Date Jurisdiction State Cite Checked
2014-08-08 Federal OH

Chapter: 15.404
Case Name: Surfcast, Inc. v. Microsoft Corp., No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *7 (D. Me. Aug. 7, 2013)
November 6, 2013 (PRIVILEGE POINT)

"Can the Privilege Protect Intracorporate Communications Sent Simultaneously to a Lawyer and a Nonlawyer?"

Some courts inexplicably hold that "when a communication is simultaneously emailed to a lawyer and a non-lawyer," the privilege cannot apply because the communication by definition is not primarily legal. 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 *11-12 (M.D. Fla. Nov. 6, 2012). This narrow approach seems out of step with common practice.

Not all courts take such a restrictive approach. In Surfcast, Inc. v. Microsoft Corp., Microsoft sought plaintiff's internal communications, arguing that "the fact that [an] e-mail was directed to others in addition to [a lawyer] renders it unprivileged." No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *7 (D. Me. Aug. 7, 2013). The court disagreed, holding that "asking for legal advice in a covering e-mail when only one of the individuals to whom it was sent is an attorney demonstrates that [the sender] expected [the lawyer] to act as an attorney at the time." Id. At *6.

Although corporations should welcome this type of analysis, the court also noted that (1) the lawyer was a direct recipient of the email rather than a copy recipient, and (2) the email "requested legal advice." Id. At *5. Corporations and their lawyers should train employees to take such steps.

Case Date Jurisdiction State Cite Checked
2013-08-07 Federal ME
Comment:

key case


Chapter: 15.404
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 *11-12 (M.D. Fla. Nov. 6, 2012)
November 6, 2013 (PRIVILEGE POINT)

"Can the Privilege Protect Intracorporate Communications Sent Simultaneously to a Lawyer and a Nonlawyer?"

Some courts inexplicably hold that "when a communication is simultaneously emailed to a lawyer and a non-lawyer," the privilege cannot apply because the communication by definition is not primarily legal. 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 *11-12 (M.D. Fla. Nov. 6, 2012). This narrow approach seems out of step with common practice.

Not all courts take such a restrictive approach. In Surfcast, Inc. v. Microsoft Corp., Microsoft sought plaintiff's internal communications, arguing that "the fact that [an] e-mail was directed to others in addition to [a lawyer] renders it unprivileged." No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *7 (D. Me. Aug. 7, 2013). The court disagreed, holding that "asking for legal advice in a covering e-mail when only one of the individuals to whom it was sent is an attorney demonstrates that [the sender] expected [the lawyer] to act as an attorney at the time." Id. At *6.

Although corporations should welcome this type of analysis, the court also noted that (1) the lawyer was a direct recipient of the email rather than a copy recipient, and (2) the email "requested legal advice." Id. At *5. Corporations and their lawyers should train employees to take such steps.

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL
Comment:

key case


Chapter: 15.404
Case Name: In United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *11-12 (M.D. Fla. Nov. 6, 2012)
January 2, 2013 (PRIVILEGE POINT)

"Another Court Follows the Troubling Vioxx Approach"

Previous Privilege Points have noted many courts' increasing insistence that a corporate litigant withholding privileged documents prove that every recipient of each document had a "need to know" the document's substance. Some courts take an even narrower view of the privilege in the corporate setting, usually relying on a 2007 decision in the multidistrict litigation against Merck. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007).

In United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, the court cited Vioxx and an earlier Middle District of Florida decision in holding that "when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation 'cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'" Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *11-12 (M.D. Fla. Nov. 6, 2012) (citation omitted). Later in the opinion, the court seemed to back off a bit, noting that the simultaneous transmission of an email to a non-lawyer "weighs against a privilege finding." Id. At *23 n.5. However, throughout the opinion the court took a restrictive view of the privilege in the corporate setting. Distinguishing legal advice from "’compliance advice,’" the court rejected a corporate litigant's argument that the privilege protected compliance department employees' communications because "’the compliance department operates under the supervision and oversight of [the] legal department.’" Id. At *23 (internal citation omitted). The court's response to that position was blunt: "Halifax's organizational structure is of no consequence." Id.

Although there may be essentially no way for most corporations' privilege to survive the nearly per se Vioxx approach, all corporations should try to restrict the internal distribution of emails to those with a "need to know."

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL
Comment:

key case


Chapter: 15.404
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 *23 n.5 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx [In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)] standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "[I]t is clear from the description that the communication was sent to others besides 'A. Pike,' [Lawyer] which also weighs against a privilege finding.")

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

Chapter: 15.404
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 *11, *11-12 (M.D. Fla. Nov. 6, 2012)
("The advent of email has added to the difficulty of determining the purpose and intent of communications that involve corporate legal counsel."; "Courts have held that when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation 'cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'. . . In such cases, the email and attachments are not privileged and are discoverable.")

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

Chapter: 15.404
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 *23 n.5 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx [In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)] standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "[I]t is clear from the description that the communication was sent to others besides 'A. Pike,' [Lawyer] which also weighs against a privilege finding.")

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

Chapter: 15.404
Case Name: In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)
January 2, 2013 (PRIVILEGE POINT)

"Another Court Follows the Troubling Vioxx Approach"

Previous Privilege Points have noted many courts' increasing insistence that a corporate litigant withholding privileged documents prove that every recipient of each document had a "need to know" the document's substance. Some courts take an even narrower view of the privilege in the corporate setting, usually relying on a 2007 decision in the multidistrict litigation against Merck. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007).

In United States ex rel. Baklid-Kunz v. Halifax Hospital Medical Center, the court cited Vioxx and an earlier Middle District of Florida decision in holding that "when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation 'cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'" Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *11-12 (M.D. Fla. Nov. 6, 2012) (citation omitted). Later in the opinion, the court seemed to back off a bit, noting that the simultaneous transmission of an email to a non-lawyer "weighs against a privilege finding." Id. At *23 n.5. However, throughout the opinion the court took a restrictive view of the privilege in the corporate setting. Distinguishing legal advice from "’compliance advice,’" the court rejected a corporate litigant's argument that the privilege protected compliance department employees' communications because "’the compliance department operates under the supervision and oversight of [the] legal department.’" Id. At *23 (internal citation omitted). The court's response to that position was blunt: "Halifax's organizational structure is of no consequence." Id.

Although there may be essentially no way for most corporations' privilege to survive the nearly per se Vioxx approach, all corporations should try to restrict the internal distribution of emails to those with a "need to know."

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal LA
Comment:

key case


Chapter: 15.405
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("There are a number of emails where attorneys are one of a number of recipients merely copied on the communications. As to these emails Plaintiffs argue that the document should not be protected by the attorney-client privilege because the widespread distribution evidences the communication was not prepared primarily to seek legal advice. Plaintiffs suggest these types of emails widely distributed to a number of recipients constitute communications that serve both business and legal purposes and therefore are not privileged."; "Defendants point out that the focus of the inquiry is not on whether the attorney is a direct or copied recipient of an email but rather upon whether the email was made for the purpose of securing legal advice or legal services, or conveying legal advice. The number of lawyers or non-lawyers to whom a communication is disseminated is not dispositive of whether the attorney-client privilege applies. In re Vioxx, 510 F. Supp. 2d 789, 799 (E.D. La. 2007). In corporate environments involving drug manufacturers -- who frequently are involved in product liability litigation and adversarial challenges by regulatory authorities -- in-house counsel are involved in coordinating the company's legal position, responding to issues from outside counsel and advising the company on legal strategies and actions that should or should not be taken with regard to both business and legal issues. The involvement of attorneys with business teams consisting of non-legal personnel is the norm in many corporations. The key question as to whether emails distributed among a business team are subject to the attorney-client privilege is dependent upon whether the attorney is providing legal advice even though the attorney may be a copyee of an email that also contains business advice."; "By way of example, drug manufacturers as part of their business deal with regulatory authorities concerning labeling issues for their drug products. Although labeling issues may involve a number of business issues, none of which would be protected by the attorney-client privilege, the request to an attorney and the attorney's advice concerning the legal ramifications of a decision regarding the label of a drug -- particularly where the drug manufacturer faces threatened or ongoing litigation -- would be subject to the attorney-client privilege. The bottom line is that simply because emails involve multiple recipients or even because some emails circulated among a business team may contain business advice, does not mean that legal advice requested and provided to the corporate decision makers is not privileged. It depends. In conducting the in camera inspection of the documents the Court has utilized these principles in determining whether an email is subject to the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal FL
Comment:

key case


Chapter: 15.405
Case Name: Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017)
(holding that employee-to-employee communication can be privileged under the circumstance; "Finally, the fact that certain documents may have been sent to many recipients has no bearing on their privileged character. Most of the emails about which Plaintiffs appear to be complaining were from attorneys seeking information from the various religious experts within the BOP 'to enable [the lawyer] to give sound and informed advice. . . . Other such emails are conveying legal advice to several of the many individuals involved in decision making at the BOP. . . . The emails show that the recipients are the 'employees who will put into effect'. . . the legal advice rendered. . . . Emails in both categories -- those seeking information and those providing legal advice -- are clearly privileged.")

Case Date Jurisdiction State Cite Checked
2017-07-10 Federal IN
Comment:

key case


Chapter: 15.405
Case Name: Romero v. Allstate Ins. Co., No. 01-3894 Consolidated with: Nos. 01-6764,03-6872,15-1017,15-1049,15-1190,15-2602,15-2961,15-3047, 2016 U.S. Dist. LEXIS 153142 (E.D. Pa. Nov. 4, 2016)
(rejecting as "conjecture" plaintiffs' argument that internal Allstate documents did not deserve privilege protection because they may have been disclosed to employees who did not need them; "Plaintiffs also argue that documents for which the source is listed only as 'Allstate' may have lost their privileged status on the ground that Allstate may have disclosed them to employees who did not need to access them. . . . Here, the authors and recipients of the documents in question are known and provide ample basis for determining the applicability of privilege. Allstate has explained that the custodians of the documents are not known because no record of them was made when the documents initially were produced in 2000-2002. Plaintiffs' assertion that the documents may have been circulated widely enough to waive the privilege is nothing more than conjecture. In light of the scope of these consolidated cases and the passage of time since the initial production, this speculative possibility does not justify a waiver of the privilege.")

Case Date Jurisdiction State Cite Checked
2016-11-04 Federal PA

Chapter: 15.405
Case Name: Surfcast, Inc. v. Microsoft Corp., No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *7 (D. Me. Aug. 7, 2013)
November 6, 2013 (PRIVILEGE POINT)

"Can the Privilege Protect Intracorporate Communications Sent Simultaneously to a Lawyer and a Nonlawyer?"

Some courts inexplicably hold that "when a communication is simultaneously emailed to a lawyer and a non-lawyer," the privilege cannot apply because the communication by definition is not primarily legal. 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 *11-12 (M.D. Fla. Nov. 6, 2012). This narrow approach seems out of step with common practice.

Not all courts take such a restrictive approach. In Surfcast, Inc. v. Microsoft Corp., Microsoft sought plaintiff's internal communications, arguing that "the fact that [an] e-mail was directed to others in addition to [a lawyer] renders it unprivileged." No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *7 (D. Me. Aug. 7, 2013). The court disagreed, holding that "asking for legal advice in a covering e-mail when only one of the individuals to whom it was sent is an attorney demonstrates that [the sender] expected [the lawyer] to act as an attorney at the time." Id. At *6.

Although corporations should welcome this type of analysis, the court also noted that (1) the lawyer was a direct recipient of the email rather than a copy recipient, and (2) the email "requested legal advice." Id. At *5. Corporations and their lawyers should train employees to take such steps.

Case Date Jurisdiction State Cite Checked
2013-08-07 Federal ME
Comment:

key case


Chapter: 15.405
Case Name: Surfcast, Inc. v. Microsoft Corp., No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *5, *6 (D. Me. Aug. 7, 2013)
(holding that the privilege can protect emails sent to a lawyer directly, with a copy to a nonlawyer; "SurfCast contends that Exhibit 24 was directed to Attorney DeStefano, not just copied to him, and it requested legal advice. This is the critical legal distinction recognized by most of the courts that have addressed this specific question." (footnote omitted); "[A]sking for legal advice in the covering e-mail when only one of the individuals to whom it was sent is an attorney demonstrates that Santoro expected DeStefano to act as an attorney at the time.")

Case Date Jurisdiction State Cite Checked
2013-08-07 Federal ME B 4/14

Chapter: 15.405
Case Name: Phillips v. C.R. Bard, Inc., No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *27 (D. Nev. Mar. 29, 2013)
June 12, 2013 (PRIVILEGE POINT)

"District of Nevada Rejects the Narrow Vioxx Rule"

In a troubling approach, some courts hold that almost by definition the privilege cannot protect intra-corporate communications directed to both a lawyer and a nonlawyer, because they are not primarily legal in nature. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007). For instance, late last year the Middle District of Florida bluntly held that "when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation 'cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'" 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 *11-12 (M.D. Fla. Nov. 2, 2012) (citation omitted).

Fortunately for corporations, other courts take a less severe position. In Phillips v. C.R. Bard, Inc., No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *27 (D. Nev. Mar. 29, 2013), the court acknowledged that "some courts have held that a company cannot claim the 'primary purpose' of a communication was to solicit legal advice when it is sent to both the lawyers and non-lawyers for simultaneous review." The court explained that it "will not make a per se ruling in this regard" – but instead "will review each communication at issue" to decide "whether the 'primary purpose' was to solicit legal advice." Id.

It is refreshing to see that courts continue to push back against the Vioxx approach, which seems contrary to corporations' laudable desire for internal transparency.

Case Date Jurisdiction State Cite Checked
2013-03-29 Federal NV
Comment:

key case


Chapter: 15.405
Case Name: Hedden v. Kean Univ., 82 A.3d 238, 246 (N.J. Super. Ct. App. Div. 2013)
(analyzing a situation in which a university coach disclosed a privileged draft letter to the NCAA during an investigation; "Contrary to the dissent's view, the fact that another University employee may have been copied on the email does not defeat its confidential nature because as a fellow employee with an interest in the matter, he shared Sharp's [Coach] interest in protecting the University from liability.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State NJ B 5/14

Chapter: 15.405
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 630 (D. Nev. 2013)
("It is true that some courts have held that a company cannot claim the 'primary purpose' of a communication was to solicit legal advice when it is sent to both lawyers and non-lawyers for simultaneous review. See, e.g., United States v. Chevron Corp., 1996 U.S. Dist. LEXIS 4154, 1996 WL 264769, at * 3 [(N.D. Cal. Mar. 12, 1996] (citing United States v. IBM Corp., 66 F.R.D. 206 (S.D. N.Y. 1974); North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M.D.N.C. 1986)). However, the court will not make a per se ruling in this regard. Instead, it will review each communication at issue, including those purportedly sent to lawyers and non-lawyers for simultaneous review, and will attempt to determine whether the 'primary purpose' was to solicit legal advice.")

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

Chapter: 15.405
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 *11-12 (M.D. Fla. Nov. 6, 2012)
November 6, 2013 (PRIVILEGE POINT)

"Can the Privilege Protect Intracorporate Communications Sent Simultaneously to a Lawyer and a Nonlawyer?"

Some courts inexplicably hold that "when a communication is simultaneously emailed to a lawyer and a non-lawyer," the privilege cannot apply because the communication by definition is not primarily legal. 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 *11-12 (M.D. Fla. Nov. 6, 2012). This narrow approach seems out of step with common practice.

Not all courts take such a restrictive approach. In Surfcast, Inc. v. Microsoft Corp., Microsoft sought plaintiff's internal communications, arguing that "the fact that [an] e-mail was directed to others in addition to [a lawyer] renders it unprivileged." No. 2:12-cv-333-JAW, 2013 U.S. Dist. LEXIS 111417, at *7 (D. Me. Aug. 7, 2013). The court disagreed, holding that "asking for legal advice in a covering e-mail when only one of the individuals to whom it was sent is an attorney demonstrates that [the sender] expected [the lawyer] to act as an attorney at the time." Id. At *6.

Although corporations should welcome this type of analysis, the court also noted that (1) the lawyer was a direct recipient of the email rather than a copy recipient, and (2) the email "requested legal advice." Id. At *5. Corporations and their lawyers should train employees to take such steps.

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL
Comment:

key case


Chapter: 15.405
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 *11-12 (M.D. Fla. Nov. 2, 2012)
June 12, 2013 (PRIVILEGE POINT)

"District of Nevada Rejects the Narrow Vioxx Rule"

In a troubling approach, some courts hold that almost by definition the privilege cannot protect intra-corporate communications directed to both a lawyer and a nonlawyer, because they are not primarily legal in nature. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007). For instance, late last year the Middle District of Florida bluntly held that "when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation 'cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'" 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 *11-12 (M.D. Fla. Nov. 2, 2012) (citation omitted).

Fortunately for corporations, other courts take a less severe position. In Phillips v. C.R. Bard, Inc., No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *27 (D. Nev. Mar. 29, 2013), the court acknowledged that "some courts have held that a company cannot claim the 'primary purpose' of a communication was to solicit legal advice when it is sent to both the lawyers and non-lawyers for simultaneous review." The court explained that it "will not make a per se ruling in this regard" – but instead "will review each communication at issue" to decide "whether the 'primary purpose' was to solicit legal advice." Id.

It is refreshing to see that courts continue to push back against the Vioxx approach, which seems contrary to corporations' laudable desire for internal transparency.

Case Date Jurisdiction State Cite Checked
2012-11-02 Federal FL
Comment:

key case


Chapter: 15.405
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 111 (D.D.C. 2012)
("[A]dditional [documents] are directed to an attorney, admittedly among other recipients, and include requests for legal advice.")

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

Chapter: 15.405
Case Name: In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)
June 12, 2013 (PRIVILEGE POINT)

"District of Nevada Rejects the Narrow Vioxx Rule"

In a troubling approach, some courts hold that almost by definition the privilege cannot protect intra-corporate communications directed to both a lawyer and a nonlawyer, because they are not primarily legal in nature. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007). For instance, late last year the Middle District of Florida bluntly held that "when a communication is simultaneously emailed to a lawyer and a non-lawyer, the corporation 'cannot claim that the primary purpose of the communication was for legal advice or assistance because the communication served both business and legal purposes.'" 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 *11-12 (M.D. Fla. Nov. 2, 2012) (citation omitted).

Fortunately for corporations, other courts take a less severe position. In Phillips v. C.R. Bard, Inc., No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *27 (D. Nev. Mar. 29, 2013), the court acknowledged that "some courts have held that a company cannot claim the 'primary purpose' of a communication was to solicit legal advice when it is sent to both the lawyers and non-lawyers for simultaneous review." The court explained that it "will not make a per se ruling in this regard" – but instead "will review each communication at issue" to decide "whether the 'primary purpose' was to solicit legal advice." Id.

It is refreshing to see that courts continue to push back against the Vioxx approach, which seems contrary to corporations' laudable desire for internal transparency.

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal LA
Comment:

key case