Showing 217 of 217 results

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2011-07-28 Federal CA

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

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2007-09-17 Other

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 Jurisidction 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 Jurisidction State Cite Checked
1987-01-01 Federal VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2015-09-09 Federal OH
Comment:

key case


Chapter: 15.204

Cas