Showing 491 of 491 results

Chapter: 16.7

Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *15 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "The mere mention of the legal department and that certain statements are subject to its approval does not give rise to privilege in the absence of a request for or provision of legal advice.")

Case Date Jurisidction State Cite Checked
2014-02-21 Federal CA B 8/14

Chapter: 16.7

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *18-19 (E.D. Va. Dec. 3, 2012)
("[H]e has provided a privilege log that includes only a general description of each document, but little if any explanation as to why each document is privileged. This places the burden on the Court to surmise the basis for privilege as best as it can glean from its in camera review. On their face, a number of these documents appear to contain no privileged material. These include communications between counsel and third parties, emails scheduling appointments or discussing administrative matters, and communications regarding the scope of representation. Without further explanation, evidence, or authority, the Court concludes that none of these documents are privileged." (footnotes omitted))

Case Date Jurisidction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 16.7

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

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

Chapter: 16.7

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 "remarkable" 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

Chapter: 16.7

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: 16.11

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

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

key case


Chapter: 16.201

Case Name: Doe v. Township High School Dist. 211, No. 1-14-0857, 2015 Ill. App. LEXIS 432 (Ill. App. 1d 5th Div. June 5, 2015)
(analyzing protection for an internal investigation of possible sexual misconduct at a high school; "[T]he question is, first, whether the notes were even communications made to an attorney. Cates [Special education director] does not state that his handwritten notes were intended to be communications to an attorney or that they were sent to the attorney prior to this discovery dispute. They were, as he swore in his affidavit, part of the fact-finding mission that he was assigned by his supervisor. At most, they could be work product, which we discuss below. Thus, defendants failed to satisfy their burden of proving that the notes were covered by an attorney-client communication.")

Case Date Jurisidction State Cite Checked
2015-06-05 State IL

Chapter: 16.201

Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *3 (Del. Ch. Dec. 9, 2013)
("I note that a communication can qualify for the attorney-client privilege even if no party to the communication is an attorney.")

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

Chapter: 16.201

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

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

Chapter: 16.201

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: 16.202

Case Name: Lee v. Condell, No. 3D15-2316, 2016 Fla. App. LEXIS 18366 (Fla. 3rd Dist. Dec. 14, 2016)
(rejecting an alleged criminal's argument that the attorney-client privilege protected notes he prepared to give to his lawyer; "After an evidentiary hearing and after conducting an in camera review of the Notes, the trial court 'concluded that the notes do not reflect any conversations Lee had with counsel or any trial strategy his counsel shared with him.' Specifically, the trial court found that 'Lee's claims that he wrote these notes for the purpose of using them for 'trial strategy' with his attorneys and that the notes were made during meetings with counsel totally lacking in credibility.' Moreover, the trial court in its written order found that, '[e]ven a cursory review of the notes reflects that the notes were a stream of consciousness rather than notes for a strategy session or done while taking notes during a conversation with another person.'"; "The trial court further found that it was only after Lee's counsel went to see him in jail during a recess of the hearing on Respondents' motion to compel that Lee -- for the first time -- testified that he wrote the Notes as 'trial preparations' so he could discuss 'strategy' with his lawyers. Notably, the trial court found that as 'Lee never gave the notes to his attorney (or even discussed them with her until after the deposition) -- and obviously only after a plea was reached -- they were not written for trial preparation or strategy purposes.' Significantly, there was no testimony or other evidence presented that Lee's attorney requested he make the Notes, or that Lee intended the Notes to be delivered to his attorney.")

Case Date Jurisidction State Cite Checked
2016-12-14 State FL

Chapter: 16.202

Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
("In the case of a corporate client, the attorney-client privilege continues to protect communications between non-attorney employees engaged in discussions to either transmit information to an attorney for the purpose of seeking legal advice or disseminate information from an attorney to corporate employees. It is well established that the attorney-client privilege applies when the client is a corporation, and it may be necessary for a corporate client to collect information relevant to a legal problem from middle management or non-management personnel.")

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

Chapter: 16.202

Case Name: Wit v. United Behavioral Health, Case Nos. 14-cv-02346- & -05337-JCS, 2016 U.S. Dist. LEXIS 7242, at *25, *26-27 (N.D. Cal. Jan. 21, 2016)
("UBH's Deputy General Counsel, Adam Easterday, states that he reviewed and revised a draft version of the memorandum in his capacity as UBH in-house counsel and that his comments and revisions were incorporated into the Triana Memo."; "In United States v. ChevronTexaco Corp., Judge Chesney observed that there are two types of communications between non-attorneys that might be protected by attorney-client privilege: those in which 'the employees discuss or transmit legal advice given by counsel,' and those in which an employee communicates with another employee about an intent to seek legal advice. United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1077 (N.D. Cal. 2002)."; "UBH relies on both theories in invoking attorney-client privilege, citing the fact that Dr. Triana provided a draft of the memorandum to counsel in order to receive legal advice and that the memorandum that was circulated contained the legal advice he received from counsel. The Court concludes that UBH has sufficiently demonstrated that the Triana Memorandum transmits legal advice (and not business advice, as Plaintiffs contend) that was sought and obtained from in-house counsel and therefore, under the authority cited above, that the document falls within the ambit of attorney-client privilege.")

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

Chapter: 16.202

Case Name: United States v. Allen, 14 Cr. 272 (JSR), 2016 U.S. Dist. LEXIS 4329 (S.D.N.Y. Jan. 8, 2016)
(holding that the attorney-client privilege protected a government cooperator's notes made when he reviewed the defendant's testimony, even if the cooperator did not give his notes to a lawyer; "As to the notes Mr. Robson [Cooperator] took while reviewing the defendants' compelled testimony, the Court holds that these notes are covered by the attorney-client privilege and the work-product privilege."; "In this case, Mr. Robson has presented uncontroverted testimony that his UK counsel provided him with materials including defendants' compelled testimony and 'instructed [him] to have a read through, highlight anything that was relevant or [he] had any questions about, and then let them know when [he was] done.'. . . Mr. Robson's notes were therefore made by a client for the express purpose of discussing the material with his attorney and thereby obtaining legal advice."; "Defendants emphasize that Mr. Robson's notes were not, in the event, actually communicated to his UK attorney. . . . The Court does not read DeFonte [United States v. DeFonte, 441 F.3d 92 (2d Cir. 2006)] to suggest that when a client takes notes pursuant to a direction from his attorney for the purpose of engaging in a discussion with his attorney, those notes are not covered by the attorney-client privilege simply because the notes are not conveyed to that same attorney as a consequence of intervening events such as delay in an investigation."; also finding that the work product doctrine protected the notes)

Case Date Jurisidction State Cite Checked
2016-01-08 Federal NY
Comment:

key case


Chapter: 16.202

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)
(finding that neither the attorney-client privilege nor the work product doctrine protected a pre-existing client summary of events just because it was later sent to a lawyer; "I conclude that they have not carried their burden of establishing that these two documents are protected from disclosure by the attorney-client privilege. Both documents are summaries of events prepared by the Defendant, Peter Wellin, during the time that this Court has already determined there was only a general possibility of litigation, and thus, the notes and summaries in the hands of the client were not protected by the work product privilege.")

Case Date Jurisidction State Cite Checked
2015-12-04 Federal SC
Comment:

key case


Chapter: 16.202

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)
(finding that neither the attorney-client privilege nor the work product doctrine protected a pre-existing client summary of events just because it was later sent to a lawyer; "Defendants have not articulated any other basis for asserting privilege other than the subsequent transmittal of the documents to their attorney for the purpose of seeking advice. But as the Court noted in Evergreen Trading, LLC ex rel. Nussdorf, 80 Fed. Cl. 122, 138 (2007) ' . . . A 'pre-existing document which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice.'" (quoting Fisher v. United States, 425 U.S. 391, 403-4, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976))."; "The Defendants have not produced any evidence that distinguishes these two documents from the notes and summaries of events previously determined to be discoverable other than the temporal proximity of their transmittal to their attorney. There is no communication from client to attorney or from attorney to client contained within the summaries themselves. In this regard, it should be noted that the Plaintiffs do not seek the actual email communications within which the summaries were contained as attachments."; "The immediacy of the transmittal does not justify an inference that these documents differ from other notes and summaries maintained by the Defendants during this time frame. Furthermore, I conclude the fact that they were attached to email communications from the client to the attorney does not integrate them into the communication within the emails themselves, which is protected by the attorney-client privilege, and thus transform them into privileged communications. There is no justification for making these distinctions, and to allow such an inference would, in essence, allow a party to acquire protection for documents under the attorney-client privilege merely by transferring them to his or attorney.")

Case Date Jurisidction State Cite Checked
2015-12-04 Federal SC
Comment:

key case


Chapter: 16.202

Case Name: General Electric v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
GE v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015) (holding that even non-protected historical documents can serve privilege protection if a client sends those documents to a lawyer in order to obtain legal advice about an issue raised in those documents; "This is not to suggest that a standalone, non-communicated document may never be subject to a proper claim of privilege. The Second Circuit, for example, has upheld a claim of privilege to a client's notes of her conversations with her attorney -- notes which themselves were not transmitted to the attorney as part of a communication. . . . In keeping with the purpose of the attorney-client privilege, the guiding rule for documents that have not themselves been communicated between privileged persons is whether the document reflects the substance of a communication that would otherwise be privileged.").

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

key case


Chapter: 16.202

Case Name: Shenandoah Publ'g House, Inc. v. City of Winchester, 52 Va. Cir. 111, 114 (Va. Cir. Ct. 2000)
(holding that a chronology prepared by the client deserved attorney-client privilege protection; "The document in question is a factual chronology outlining a series of events involving city funding and personnel changes and salaries which occurred in the city department in question over a period of years. It is very factual, organized logically, and is typical of a document that a reasonably prudent person would prepare to assist his attorney in efficiently rendering informed legal advice about the events recited in the document. It was prepared specifically for the purpose of consulting with the City Attorney and obtaining a legal opinion about the advisability of an administrative investigation into the facts which precipitated the official's concern.")

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

Chapter: 16.202

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

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

Chapter: 16.203

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)
(after an in camera review, concluding that board minutes were not all privileged; giving plaintiff one week to establish privilege protection; "It is not apparent from the face of the board minutes at issue that these elements can be met. RPI argues that the redacted portions of the minutes 'reflect information and advice that RPI's management learned from its U.S.-based legal counsel,' including Robbins Geller itself. . . . Nothing in the text of the minutes, however, confirms this assertion. The speakers at the board meetings do not attribute either the facts or the opinions they articulate to litigation counsel. Nor can the Court simply conclude, in the absence of admissible evidence, that all of those facts and all of those opinions must have come from counsel, in confidence, in response to RPI's request for legal advice. To the contrary: At least some of the statements that RPI seeks to redact reveal that they are based on sources other than counsel.")

Case Date Jurisidction State Cite Checked
2016-05-20 Federal NY
Comment:

key case


Chapter: 16.203

Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *19 (N.D. Cal. Apr. 21, 2016)
("[T]here is no reason why Mr. Austermann's [named inventor] emails are not entitled to protection based solely on the fact that they were written by him to himself. While not communicated to his attorneys, Mr. Austermann and his attorneys attest that the emails memorialize and reflect confidential communications made for the purpose of conveying legal advice. . . . So long as Mr. Austermann's emails describe confidential communications with his attorneys, or are based on such communications, they may be protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-04-21 Federal CA B 8/16
Comment:

key case


Chapter: 16.203

Case Name: ChriMar Systems Inc. v. Cisco Systems Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *19 (N.D. Cal. Apr. 21, 2016)
June 8, 2016 (PRIVILEGE POINT)

"Can the Privilege Protect Emails that Lawyers Do Not Send or Receive?"

Because privilege logs generally require withholding litigants to identify emails' senders and recipients, the absence of a lawyer's name often triggers discovery skirmishes. Not surprisingly, the withholding litigants' adversaries often argue that communications not involving a lawyer cannot possibly be privileged.

In ChriMar Systems Inc. v. Cisco Systems Inc., the court held that the privilege and the work product doctrine protected emails that a patent inventor sent to himself — noting that the inventor and his lawyers "attest that the emails memorialize and reflect confidential communications made for the purpose of conveying legal advice." Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *19 (N.D. Cal. Apr. 21, 2016). About a week later, another court dealt with an email that was not sent by or received by a lawyer. In FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. Apr. 29, 2016), defendant's senior vice president sent an email to several of his colleagues, and the company's outside counsel. The company's CFO responded to the email, but removed the outside counsel from the recipient list. District Judge Swain acknowledged that employee-to-employee communications can deserve privilege protection, but rejected the defendant's privilege claim for the CFO's response. The court noted that the CFO had deliberately "removed the attorney from the distribution list when she replied, and indicated in her declaration . . . That she had merely offered her comments for possible use by a business colleague in a future communication with the attorney." Id. At *5.

Although email strings that do not include lawyers can sometimes deserve privilege protection, courts usually demand evidence that the emails relayed a lawyer's advice; memorialized a lawyer's advice; or (occasionally) involved clients formulating questions to pose to their lawyer.

Case Date Jurisidction State Cite Checked
2016-04-21 Federal CA
Comment:

key case


Chapter: 16.203

Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("Upon review, it is readily apparent that the document notes in-house counsel's presence at this meeting and predominantly outlines litigation timelines and potential outcomes. In addition, the notes themselves say 'priviledged (sic)/conf'd.' As such, the Undersigned accepts these notes as reflecting the communication of legal advice to Shire.")

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

Chapter: 16.203

Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("Shire asserts privilege based on these handwritten notes being recorded by a non-attorney at a board meeting featuring specific legal advice from outside counsel, while Plaintiffs assert that the Court should not just blindly accept the representation that this reflects advice from counsel if it is not specifically noted as such. Upon review, it is readily apparent that these notes specifically document legal repercussions of potential company actions, and, as such, the Undersigned accepts these notes as reflecting legal advice of outside counsel, as Shire claims.")

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

Chapter: 16.203

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)
("Document 138: This document consists of minutes from a March 19, 2013 conference call attended by 11 MasterCard employees, including in-house attorneys Sork and Hiang Choong, Regional Counsel, Singapore. . . . One paragraph, however, summarizes legal advice provided by an in-house attorney and thus constitutes a privileged attorney-client communication.")

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

Chapter: 16.203

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 101 (Fed. Cl. 2013)
("The privilege also may extend to a client's summary of an attorney's advice.")

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

Chapter: 16.203

Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *80 (S.D. Fla. Oct. 18, 2012)
("[T]he fact that the notes were made by Greg Collier, an employee of P&G, rather than counsel does not alter this analysis because the notes memorialized legal advice dispensed by Counsel to its client. In other words, the notes are no less protected than a letter from Counsel setting forth legal advice would be.")

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

Chapter: 16.203

Case Name: Roberts v. Corwin, No. 175370/2009, 2012 NY Slip Op 51876U at 4 (N.Y. Sup. Ct. Sept. 10, 2012)
("This document is Mr. Roberts' notes, dated May 2, 2007, of a conference with Mr. Sachs. Contrary to defendant's contention, the privilege is not lost due to the fact that the document is Mr. Roberts' notes, as opposed to Mr. Sach's, memorializing the legal advice. The attorney client privilege attaches to a client's communications to an attorney as well as to communications from attorney to client.")

Case Date Jurisidction State Cite Checked
2012-09-10 State NY B 12/13

Chapter: 16.204

Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
("In the case of a corporate client, the attorney-client privilege continues to protect communications between non-attorney employees engaged in discussions to either transmit information to an attorney for the purpose of seeking legal advice or disseminate information from an attorney to corporate employees. It is well established that the attorney-client privilege applies when the client is a corporation, and it may be necessary for a corporate client to collect information relevant to a legal problem from middle management or non-management personnel.")

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

Chapter: 16.301

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)
("When considering privilege for communications from non-attorney employees, a corporation's privilege extends to communications between corporate employees and corporate counsel as long as the communications are 'made at the direction of corporate superiors in order to secure legal advice.'")

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

Chapter: 16.301

Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 85234 (N.D. Ill. July 1, 2015)
("Documents 13 and 14 are email communications exchanged between Angie Morales, another Carnival paralegal, and Alexandra Missagia, director of worldwide sales for Carnival, summarizing conversations they had with Tom Panici, account manager with responsibility for RMG, in March 2011. Morales drafted the email with the intention of sending it to Mike Julius, Managing Director of U.S. Sales for Carnival."; "While this email exchange is contained within an email chain disseminating outside counsel's advice, the March 2011 conversations predated counsel's request for information in April 2011. Further, the Court concludes that the information described in the March 2011 conversation with Panici was not 'necessary' to disseminate counsel's advice. . . . (finding documents reflecting the necessary dissemination of legal information among non-attorneys privileged). Thus, the facts described in documents 13 and 14 are neither directly related to information sought by outside counsel nor reflect upon counsel's legal advice."; "Documents 13 and 14 shall be produced.")

Case Date Jurisidction State Cite Checked
2015-07-01 Federal IL

Chapter: 16.301

Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 25694 (N.D. Ill. March 3, 2015)
(analyzing the common interest doctrine; requiring a lawyer's involvement; "Defendants' blanket assertion of the attorney client, attorney work product and joint defense privileges objections are overruled. As stated previously, correspondence between the parties directly -- where no counsel was included -- even if it was created after the lawsuit was filed, is not privileged and must be produced. Moreover, as discussed above, documents that are purely factual in nature and don't contain legal advice, or documents shared with nonparties, or documents prepared for business purposes are not protected and must be produced.")

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

Chapter: 16.301

Case Name: Veolia Water Solutions & Technologies Support v. Siemens Industry, Inc., No. 5:11-CV-00296-FL, 2014 U.S. Dist. LEXIS 165747 (E.D.N.C. Nov. 25, 2014)
(analyzing privilege issues in a patent case; "This court has observed, for example, that '[a] document need not be authored or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds.'")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal NC

Chapter: 16.301

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

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

Chapter: 16.301

Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *23 (D. Ariz. Apr. 17, 2013)
("The redacted 6:33 p.m. e-mail is between Lockheed employees. It does not include Mr. Hennegan [in-house lawyer for defendant]. Communications between employees do not qualify for attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 16.301

Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *25 (D. Ariz. Apr. 17, 2013)
("The second redacted e-mail in document 111 is a communication by one Lockheed employee to other Lockheed employees. As a communication between non-lawyer employees, the e-mail is not protected by the attorney-client privilege. See Bickler [Bickler v. Senior Lifestyle Corp., 266 F.R.D. 379 (D. Ariz. 2010)]. But the e-mail does qualify for work-product protection. The e-mail concerns responding to SGD's e-mail threatening litigation and is in furtherance of preparing a response or approach to SGD's litigation threat on which Lockheed's employees had requested Mr. Hennegan's legal advice.")

Case Date Jurisidction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 16.301

Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *17 (E.D. Va. Feb. 14, 2013)
(finding that the following email did not deserve privilege or work product protection; "'Mr. Frazier's (a non-lawyer's) statement to other non-lawyers that, 'under its terms, I don't believe the loan can be called based on what we know today.'")

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

Chapter: 16.301

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 592 n.176 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "'Clearly, to the extent that any of the communications listed on the Plaintiffs' privilege log do not include an attorney or his/her staff member, such communications are not protected by the attorney-client privilege.'")

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

Chapter: 16.302

Case Name: Nalco Co., Inc. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127 (S.D. Tex. July 18, 2017)
(holding that the attorney-client privilege can protect employee-to-employee communications under certain circumstances; "The 7:57 a.m. email reflects that Dr. Weers told Ralph Navarrete about a specific request he made for legal advice to an attorney regarding the patent. The attorney-client privilege protects this exchange because, on its face, the email reflects that Dr. Weers communicated that he sought legal advice from a lawyer."; "In the 12:55 p.m. email, Baker seeks to redact a question from Mr. Navarrete to Dr. Weers about the effect of an expired patent on the enforceability of Baker's patent. In the email, Mr. Navarrete does not ask Dr. Weers to forward this question to counsel or state that that Mr. Navarrete intended to do so. Baker submitted Mr. Navarrete's affidavit in support of its position that the communication was privileged. Mr. Navarrete stated that he responded to Dr. Weers' email 'with a question I had for counsel concerning the scope of the 943 patent.'"; "Nothing in the email chain indicates that the question was to be proposed to counsel. . . . Even assuming Mr. Navarrete had such an unexpressed intent, Baker has not submitted evidence that the substance of this communication was in fact conveyed to an attorney.")

Case Date Jurisidction State Cite Checked
2017-07-18 Federal TX
Comment:

key case


Chapter: 16.302

Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)
(finding that defendants had properly logged and withheld documents, and that no in camera review is necessary; "The request for a legal opinion, including the information necessary to secure the opinion, may be a privileged communication when discussed between members of an organization even when the attorney is not included on the communication. . . . The privilege log indicates that the redacted information here reflects a request for a legal opinion by NCPC to its outside counsel and Case is listed as a participant, which is sufficient to establish privilege. Further, the action items on the agenda appear discrete and, thus, the nature of the unredacted material is not necessarily indicative of the nature of the redacted material. Finally, Defendant does not have the authority to waive the attorney-client privilege between NCPC and its counsel. Another court has rejected the argument that a defendant improperly asserted privilege on behalf of a third party where emails from the file of the defendant's employee that were created during his past employment as an attorney with a third party were privileged, and that court concluded that only the past employer could waive the privilege. . . . Similarly here, the privileged document came from the file of Defendant's employee who was a member of the NCPC Board and attended the meeting. Defendant cannot waive the privilege between the NCPC Board and its counsel, and Plaintiffs have presented no factual basis from which the court could conclude that NCPC has waived the privilege. Accordingly, the attorney-client privilege applies, and in camera review is unnecessary.")

Case Date Jurisidction State Cite Checked
2017-05-26 Federal NC

Chapter: 16.302

Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)
("[A] document containing a request for a legal opinion and the information provided to the attorney for the purpose of providing that opinion may be privileged whether or not the attorney is an author or recipient of the document.")

Case Date Jurisidction State Cite Checked
2017-05-26 Federal NC

Chapter: 16.302

Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)
("It cannot be that these communications, simply because an assistant made them at the request of a lawyer rather than the lawyer's making them herself, are not privileged."; "The court has reviewed all of the communications in this category and finds that they are either seeking or discussing legal advice. The fact that communications are between non-lawyers does not per se waive the privilege.")

Case Date Jurisidction State Cite Checked
2017-02-03 Federal MA

Chapter: 16.302

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: 16.302

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)
("This is an email from one Boehringer business executive to another. In it, the author reports certain information that the recipient had requested. The author's information was apparently gleaned from two financial analyses attached to the email. There is no request for or provision of legal advice in this email. Nevertheless, Boehringer represents that this document '[was] prepared to inform [its] attorneys, including the general counsel as well as other attorneys representing [Boehringer], of facts relevant to the analysis of the legal issues involved in the litigation or the settlements.' See Boehringer's Resp. to July 12, 2016 . . . . The Court finds that this document should be protected because disclosure would reveal the facts transmitted to the attorneys from the Boehringer businesspeople which enabled counsel to give the corporation legal advice. . . . Accordingly, the email is privileged in its entirety.")

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

key case


Chapter: 16.302

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)