Showing 226 of 226 results

Chapter: 17.5

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "The document is privileged."; "The email is a response to a question originally posed by Nuns Moodliar (counsel) to Mr. Bendle, who advised that he needed to obtain the information from Ms. Clearambourg. Therefore, an attorney (Moodliar) requested of an intermediary (Bendle) information related to a legal issue, which then had to be requested of the person who had the necessary information.")

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

Chapter: 17.5

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *82 84 (S.D. W. Va. Mar. 28, 2016)
("Under both West Virginia law and federal law, the withheld ASO documents are protected from disclosure under attorney-client privilege. First, Ford's OGC, specifically Mr. Logel, and Ford's ASO contemplated that an attorney-client relationship existed at the time that the OGC engaged the ASO to analyze the VOQs and TREAD Act data. Mr. Logel's affidavit, Mr. Love's affidavit, and Mr. Nevi's deposition testimony all support this conclusion. Second, as explained above, the ASO prepared and submitted the logged documents at the request of the OGC for the purpose of rendering legal advice to Ford. Although Ford's OGC may have been the initiating party by requesting that the ASO conduct an analysis of the pertinent data, that fact alone does not render the attorney-client privilege inapplicable. As explained above, communications during fact-finding investigations conducted by an attorney in his or her legal capacity are protected. . . . Indeed, even with the understanding that the privilege should be construed narrowly . . . it would be an unreasonable interpretation of the privilege to hold that a proactive, fastidious in-house attorney who seeks information from his client for the purpose of rendering legal advice cannot claim privilege over the information that he receives in response to his request simply because he was the first to act. . . . Third, and finally, the communication of the information (i.e. the sending of the documents) from Ford's ASO to the OGC was intended to be confidential. As Mr. Logel's affidavit explains, '[t]he documents identified on Ford's ASO Privilege Log have not been disseminated beyond those Ford employees and consultants working directly with Ford's counsel in this regard.' . . . There is no evidence that Mr. Logel's assertion is false or that it was 'the intention or understanding of [Ford] that the communication [was] to be made known to others.'" (citation and footnote omitted))

Case Date Jurisidction State Cite Checked
2016-03-28 Federal WV B 8/16
Comment:

key case


Chapter: 17.5

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)
("This is an email where counsel is asking for certain documents that counsel wants to review in preparation for litigation. The documents were produced to the EEOC in discovery. The fact that counsel is asking for these particular documents at this certain time is privileged, so the attachment is privileged and need not be reproduced to the EEOC at this time.")

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

Chapter: 17.5

Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "In this instance, it is readily apparent that the purpose of counsel's solicitation of facts and provision of legal advice was to address the journalist's expected premise that the selection of assets for Citigroup's 401(k) Plan potentially implicated ERISA 's prohibition on self-dealing. Given that this exchange plainly contemplated the legal ramifications of Citigroup's response and was conducted by and at the direction of counsel, in their capacity as attorneys, the communications must be considered privileged."; "As for the applicability of the fiduciary exception, that exception does not apply where a plan administrator seeks legal advice for its own benefit or protection, rather than for the benefit of the plan and its beneficiaries. . . . Here, by contrast, the purpose of the legal advice contained in the News Inquiry Documents was to manage the public relations impact and potential litigation risk occasioned by what was expected to be a negative news article about the inclusion of proprietary funds in 401(k) plans. While the subject of the News Inquiry Documents was therefore related to plan administration, in that the content of the documents discussed the way in which fiduciary duties were carried out, Defendants' purpose in seeking out legal advice was not to obtain advice regarding the administration or investment of plan assets, and the implementation of that advice had no effect on the plan or its beneficiaries. Under these circumstances, it cannot be said that advice was provided to aid the beneficiaries, such that Defendants were not the true clients.")

Case Date Jurisidction State Cite Checked
2015-10-16 Federal NY
Comment:

key case


Chapter: 17.5

Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 85234 (N.D. Ill. July 1, 2015)
("Plaintiff argues that because documents 4, 9-10, 12, and 15-16 are communications between Carnival employees who are neither attorneys nor paralegals, they are not protected by attorney-client privilege. . . . After carefully reviewing these communications, however, the Court finds that they are all directly related to gathering the information sought by outside counsel or reflect upon counsel's legal advice.")

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

key case


Chapter: 17.5

Case Name: Hudson v. Preckwinkle, No. 13 CV 8752, 2014 U.S. Dist. LEXIS 78995, *8-10 (N.D. Ill. June 10, 2014)
(holding that the privilege did not protect questionnaires that plaintiff's lawyer sent to Cook County Jail inmates, because the questionnaire was not specific enough; "This court finds that attorney-client privilege does not protect the questionnaire responses from disclosure. Although the form gave detainees the opportunity to request a 'legal visit,' courts in this district have required that offers to provide legal assistance be more explicit before privilege will attach. . . . [T]he questionnaire here only offered an opportunity for detainees to discuss 'issues' relating to jail conditions with an attorney or law student. Such a vague invitation is a far cry from the express language other courts have relied upon to find that privilege applies. Also, unlike in the cases discussed above, the detainees had the option of completing and returning the form regardless of whether they wanted to have a follow-up discussion with an attorney or law student. Furthermore, rather than conveying that the information collected would be used to evaluate potential claims on behalf of the detainee, the questionnaire's stated purpose was 'to find out more information about conditions in Cook County.'")

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

Chapter: 17.5

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 901 n.4 (N.D. Ill. 2013)
("[T]he attorney-client privilege applies with equal force to inquiries from an attorney to a client.")

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

Chapter: 17.6

Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "Federal Rule of Evidence 501 governs privilege issues in federal courts. In this case the Court's jurisdiction is based upon diversity. Although applying choice of law principles to this case results in Kansas law defining the scope of the attorney-client privilege, this Court agrees with other cases from this District that there is no conflict between federal and Kansas law regarding the attorney-client privilege and it generally makes no difference which law is applied."; "Plaintiff is entitled to know the factual basis for Defendants' affirmative defenses. Plaintiff's question was a proper inquiry into the facts that support the affirmative defense asserted in paragraph 13 of Defendants' answer. Plaintiff did not ask Naccarato to disclose the substance of any communications he may have had with Defendants' counsel. Following defense counsel's initial objection, Plaintiff's counsel reiterated that she was asking only for the facts upon which Defendant Screenworks relied. Yet, Defendants' counsel persisted in asserting the same objections."; "Defendants' objections were improper for a number of reasons. Because the primary thrust of the objections and the basis upon which Naccarato was instructed not to answer was the attorney-client privilege, the Court will address that issue first. Even presuming Naccarato's answer would have revealed facts from conversations he had with Defendants' counsel, that would not render the 'facts' protected from discovery by the attorney-client privilege. 'A fact is discoverable regardless of how a deponent came to possess it. This is true even if Defendants' attorney informed the deponent of the facts. The instruction by Defendants' counsel to Naccarato not to answer to the extent the question sought 'information gained through conversations with counsel' was an improper and inaccurate assertion of the attorney-client privilege."; "'Defendants' argument that Plaintiff's questions improperly sought the 'theories' upon which Defendants' affirmative defenses are based is simply unsupported by the record. In the line of questioning at issue, Plaintiff expressly asked the 'facts' that support the affirmative defenses and never mentioned or inquired about Defendants' theories.'")

Case Date Jurisidction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 17.6

Case Name: Toyo Tire & Rubber Co., Ltd. v. Atturo Tire Corp., Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756 (N.D. Ill. June 3, 2016)
(holding that the attorney-client privilege protected the factual portion of an otherwise privileged communication, and that the adversary must obtain the historical facts through other discovery means; "Many cases note that facts are not protected by attorney-client privilege; in other words, the underlying facts communicated between an attorney and a client can be discovered through depositions or other discovery techniques."; "In the instant motion, Atturo argues that the emails it seeks concern underlying facts, which are not protected by the attorney-client privilege. However, the emails themselves are communications, not facts, and these communications were sent for the purpose of obtaining or conveying legal advice. Atturo does not dispute that the emails were sent by Toyo's outside counsel, Adduci, to Toyo regarding the settlement negotiations held between Toyo's outside counsel and the respondents to the ITC action (or the respondents' attorneys). The Court has reviewed the descriptions of the relevant emails, as well as the senders and recipients, and believes that Toyo has carried its burden of showing those communications are covered by the attorney-client privilege."; "If Toyo were correct that such communications were discoverable, the exception for underlying facts would swallow the rule protecting attorney-client communications. The vast majority of communications between attorneys and clients contain some mixture of fact and legal opinion. If every litigant were required to comb through every communication with its attorneys, determine which portions of those communications contained facts and which contained legal opinion, redact the portions that consisted of legal opinion, and then produce the redacted communications, civil litigation would be ground to halt. This would be the likely result if Atturo's position were an accurate assessment of the law in this area; it is not. Instead, the relevant inquiry is whether the documents or communications sought were transmitted for the purpose of obtaining legal advice. This Court believes that the communications Atturo seeks were transmitted for the purpose of obtaining legal advice related to the settlement of the ITC Action, and, therefore, are protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-06-03 Federal IL
Comment:

key case


Chapter: 17.6

Case Name: Toyo Tire & Rubber Co. v. Atturo Tire Corp., Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756, at *7 (N.D. Ill. June 3, 2016)
August 10, 2016 (PRIVILEGE POINT)

"Court Explains What "Facts Are Never Privileged" Means"

Historical facts never deserve privilege protection. Something either happened or it didn't happen. But some litigants erroneously point to this axiom in seeking to discover factual portions of clients' privileged communications to their lawyers, and vice versa.

In Toyo Tire & Rubber Co. v. Atturo Tire Corp., defendant sought emails between Toyo and its lawyers, arguing "that the emails it seeks concerned underlying facts, which are not protected by the attorney-client privilege." Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756, at *7 (N.D. Ill. June 3, 2016). The court correctly explained that "[t]he vast majority of communications between attorneys and clients contain some mixture of fact and legal opinion" — noting that "the relevant inquiry is whether the documents or communications sought were transmitted for the purpose of obtaining legal advice." Id. at *8-9. The court rejected defendant's argument, and found the withheld documents privileged after reviewing them in camera. The court concluded by explaining the practical consequences of this universally accepted principle: "the underlying facts communicated between an attorney and a client can be discovered through depositions or other discovery techniques." Id. at *6.

It is ironic that some lawyers and even courts think that clients' recitations of historical facts to their lawyers do not deserve privilege protection. The privilege exists to assure absolute privacy for such communications, so such recitations actually represent the most protected of all communications.

Case Date Jurisidction State Cite Checked
2016-06-03 Federal IL B 8/16
Comment:

key case


Chapter: 17.8

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

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

Chapter: 17.8

Case Name: United States v. Nunez, No. 12 Cr. 778-2, 2013 U.S. Dist. LEXIS 116145, at *15 (S.D.N.Y. Aug. 16, 2013)
(holding that the attorney-client privilege could protect a lawyer's email with a list of controlled substances and a newspaper article; "[T]he March 29, 2012 emails were sent by the client to his attorney, seeking legal advice based on a news story that related directly to his former field of employment. . . . In this context, Smith's [lawyer] emails, consisting of a schedule of controlled substances from which synthetic marijuana is absent and a news article discussing the state's efforts to force 'storeowners to stop selling the products because they violate consumer protection laws for labeling', . . . are best understood as an indirect form of legal advice to Nunez. They are definitively not a 'transmission of a message' from any third-party source for which Smith 'merely served as a conduit,'. . . nor has the Government cited any cases applying Hall [United States v. Hall, 346 F.2d 875 (2d Cir. 1965)] to a communication relaying the result of an attorney's research to a client. The Court takes no position on the quality of Smith's legal representation of Nunez, but notes that there is no requirement that legal advice be concise, well-targeted or correct in order to be protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-08-16 Federal NY B 4/14

Chapter: 17.9

Case Name: Meade v. General Motors, LLC, Civ. A. No. 1:16-cv-00991-AT, 2017 U.S. Dist. LEXIS 61455 (N.D. Ga. April 21, 2017)
("It is generally recognized that the communication of factual information is not protected by the attorney-client privilege. For example, reports reflecting the status of litigation and containing purely factual information are not privileged.")

Case Date Jurisidction State Cite Checked
2017-04-21 Federal GA

Chapter: 17.9

Case Name: Le v. Zuffa, LLC, Lead Case No. 2:15-cv-01045-RFB-PAL, 1 Member Case Nos.: 2:15-cv-01046-RCJ-NJK; 2:15-cv-01055-APG-GWF; 2:15-cv-01056-RFB-GWF; and 2:15-cv-01057-JCM-CWH, 2017 U.S. Dist. LEXIS 20614 (D. Nev. Feb. 13, 2017)
("[W]hen an attorney is merely communicating information, the communications between the attorney and the client are not privileged.")

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

Chapter: 17.9

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

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

Chapter: 17.9

Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("The Court's in camera review finds that Document 197 is also privileged and need not be produced. Numerous sections of the document constitute communications made for the purpose of providing legal advice. While other sections of Document 197 are predominantly factual meeting minutes, the facts that Attorney Wolf chose to note serve as a necessary background to the legal advice provided and indicate which facts he viewed as potentially legally significant.")

Case Date Jurisidction State Cite Checked
2016-11-18 Federal NY

Chapter: 17.9

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 only redacted sentence in this document relayed a statement made by a United States Patent and Trademark Office examiner to Mahoney [outside counsel] concerning the patent application. It contained an unprivileged 'fact[ ] provided by an attorney that do[es] not reflect client confidences.'. . . There are no accompanying legal conclusions or perceptions, and the redacted sentence does not include qualifying language such as 'I believe' or 'my opinion is.' The attorney-client privilege does not protect communications in which 'the attorney merely conveys facts acquired from persons or sources other than a client."; "Although Besins claims that the redacted statement succinctly incorporated Mahoney's mental impressions, the court cannot plausibly read the sentence in this way. Besins argues that the redacted statement contains a mental impression because it is not a direct quote from the publically available interview summary and because the patent was not yet finalized. This misconstrues the nature of the privilege. A discoverable fact can emerge from a meeting with the patent examiner regardless of whether that fact is reflected in the interview summary notes or whether the patent application has been finally approved. Further, the court has examined the interview summary notes and does not find those notes inconsistent with Mahoney's factual statement.")

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

key case


Chapter: 17.9

Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
March 2, 2016 (PRIVILEGE POINT)

"How Do Courts Apply the "Primary Purpose" Privilege Standard?: Part II"

Last week's Privilege Point described a court's rejection of an in-house lawyer's affidavit swearing that a client's employees' communications to him sought legal advice. FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015). The obvious lesson is that corporate employees should explicitly seek legal advice in their communications. A similar principle applies when lawyers communicate to their corporate clients.

Also in FTC v. AbbVie, Inc., the court assessed a company's privilege claim for its outside lawyer's report about his meeting with a patent examiner. The court correctly noted that the privilege does not protect lawyers' communications to their clients simply reciting government officials' statements. The company argued that the redacted portion of its lawyer's report was "not a direct quote" from the patent examiner, and that the redacted portion "succinctly incorporated [the lawyer's] mental impressions." Id. At *13. But the court concluded that it "cannot plausibly read the [redacted portion] in this way." Id. The court then noted that "[t]here are no accompanying legal conclusions or perceptions, and the redacted [portion] does not include qualifying language such as 'I believe' or 'my opinion is.'" Id. At *12-13.

Corporations' lawyers should discipline themselves to explicitly state whether their communications to their client's employees contain their legal advice or reflect their legal judgment through their selection of excerpts from conversations with government officials, and leave no room for conjecture.

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

key case


Chapter: 17.9

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2015 U.S. Dist. LEXIS 159601 (N.D. Cal. Nov. 25, 2015)
("Plaintiffs contend that the Shimoda email is not protected by the attorney-client privilege because Shimoda was not conveying legal advice but merely transmitting non-confidential information from Endo about the Watson settlement negotiations. If portions of the email are viewed alone, without context, plaintiffs' argument that the email is simply a factual report has some surface appeal. But when considered as a whole and in context, I find the contents of the email are completely -- except for the article attached -- protected by the attorney-client privilege."; "The email does not indicate -- and the circumstances do not support -- plaintiffs' argument that Shimoda was acting as a mere conduit in an attempt to cloak otherwise non-confidential information with the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-11-25 Federal CA

Chapter: 17.9

Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("Privilege Log No. 201, an email from outside counsel concerning an upcoming meeting, contains information necessary for Taxpayer to obtain legal advice relating to tax and business transactions in the form of agenda topics for a future meeting. These documents were properly withheld as privileged.")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal DE

Chapter: 17.9

Case Name: Sprint Comm. Co. L.P. v. Comcast Cable Comm. LLC, Case No. 11-2684-JWL, 2014 U.S. Dist. LEXIS 154346 (D. Kansas Oct. 31, 2014)
("[I]n essence, defendants contend that any communication made by the attorney to the client during the course of the client's engagement of the attorney for legal advice is privileged, whatever the content. The Court concludes, however, that the Magistrate Judge did not err in refusing to apply such a standard, as the law is clear that the privilege does not protect all attorney-client communications during the course of such an engagement."; "It is black-letter law -- and defendants have not disputed -- that not every communication between attorney and client is privileged, and attorneys have always had to bear that fact in mind in communicating with their clients. Defendants make the puzzling argument that, even if particular communications do not reveal legal advice or strategies or confidences, their disclosure 'in the aggregate' could reveal confidences that the privilege is intended to protect. As the Tenth Circuit has noted, however, if a communication tends to reveal confidential information, it is protected. If it does not, then it should not be protected, regardless of how many such innocuous communications there are. Indeed, in the most absurd example, under defendants' standard, communications stating no more than 'yes' or 'let's talk about that at the golf course' would be privileged if they were made in the course of a legal engagement; such communications are clearly not privileged, however, as the privilege does not protect the mere fact of a communication or of the relationship between the attorney and client, or the general description of the attorney's work."; "The communication does not reveal any legal analysis performed by the attorney, who merely listed all references to cable companies in the transcript (and who thus did not, as defendants argue, make some analytical decision about what to list). The document reveals that the attorney was merely acting as a conduit for information from another source (a public transcript). Moreover, the e-mail does not tend to reveal any client confidences or legal advice or strategy; the most it reveals is that the clients asked the attorney to review the transcript for references to cable companies, and such a general description of work performed or requested is not privileged.")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal KS

Chapter: 17.9

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: 17.9

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

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

Chapter: 17.9

Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *20 (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 33 is a cover letter from Barnett [lawyer for the railroad] to Estreicher [consultant, who was a lawyer, but not acting in the legal capacity] enclosing their draft responses, including those of Mr. Bernard, Vice President and General Counsel, but noting that Mr. Bradley, head of Human Resources, has not yet reviewed it. The letter should be produced. Additionally, the response to Estreicher's report should be produced as it does not contain legal advice or a legal evaluation but, instead, sets forth facts and reflects in-house counsel and other responders' knowledge and expertise in personnel matters.")

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

Chapter: 17.9

Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *12, *13-14, *14 n.1 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding attorney-client privilege protection inapplicable; "The court's in camera examination reveals that nearly all of Chamberlain's file materials could not be classified as privileged attorney-client communications because they are public records or Telamon's business records. The gathering of public and business records by an investigator, or the funneling of business documents through one's attorney's office (or through one's fraud investigator), does not make those documents privileged."; "[S]ome of the communications obviously were not made to obtain legal advice, were not maintained in confidence, or were not even intended as a confidential communication in the first place. For example, the communications include (a) an email chain sent by the lawyers to Chamberlain lauding its reputation as a fraud investigator; (b) emails to set up meetings; and (c) emails that do not involve counsel at all or any bona fide connection to legal advice. . . . [D]documents within Chamberlain's file reveal that Chamberlain's investigatory work was not inextricable from Barnes & Thornburg's provision of legal advice and that its work was conducted because Telamon had a pressing business reason to uncover what it believed was large-scale inventory fraud by one of its workers. Documents indicate that the use of Barnes & Thornburg as the nominee client to Chamberlain was for the purpose of attempting to shield Chamberlain's work as privileged. It is apparent, however, that Barnes & Thornburg did not in fact direct this investigation, but that Chamberlain designed the investigation and determined the records to gather and review, the persons to interview, the questions to be asked, and the manner of interrogation."; "Moreover, waiver principles would prevent the assertion of the privilege as to the majority of the Chamberlain investigative file. Telamon provided to the insurers a preliminary investigative report prepared by Chamberlain that it otherwise asserts was a privileged communication. That report summarizes 'key' interviews and documents. When the privilege is waived as to an attorney-client communication, the waiver extends to all communications on the same subject matter. . . . The subject matter of the preliminary report is the investigative work conducted by Chamberlain. By producing the preliminary report (apparently for the purpose of proving its insurance claim and the losses suffered), Telamon waived the privilege with respect to the documents in the investigative file that are the 'nuts and bolts' source documents of Chamberlain's work, including the interview summaries, document analyses, and investigative background summaries.")

Case Date Jurisidction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 17.9

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

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

Chapter: 17.9

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

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

Chapter: 17.9

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

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

Chapter: 17.9

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

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

Chapter: 17.9

Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *21 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "The vast majority of documents for which defendants claim attorney-client privilege are emails wherein Attorney Moore [Outside lawyer] and/or Howe [court Human Resource Manager] are summarizing the testimony of various witnesses and keeping AOC [defendant] employees updated on the progress of the AOC investigation. Defendants' blanket assertion of attorney-client privilege does not suffice to demonstrate that these emails constitute communications made for the purpose of seeking or transmitting legal advice.")

Case Date Jurisidction State Cite Checked
2013-02-22 Federal NH B 3/14

Chapter: 17.9

Case Name: McCombs v. Paulsen, No. 3-12-0366, 2013 IL App (3d) 120366-U, ¶30
(in a medical malpractice case, holding that a lawyer's deposition summaries deserved privilege and work product protection, which was not waived when the lawyer shared the summaries with a testifying expert; "The next morning, after reviewing the summaries, the court found that the documents were prepared by Dr. Paulsen's attorneys and the facts detailed in the documents summarized what defense counsel felt were the most important parts of the other doctors' testimony. As such, the summaries represented defense counsels' mental impressions of the testimony and, consequently, were protected by both the attorney-client privilege and the work product privilege. The trial court denied plaintiffs' motion to compel.")

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

Chapter: 17.9

Case Name: McCombs v. Paulsen, No. 3-12-0366, 2013 IL App (3d) 120366-U, ¶50
(in a medical malpractice case, holding that a lawyer's deposition summaries deserved privilege and work product protection, which was not waived when the lawyer shared the summaries with a testifying expert; "As to privileged attorney-client communications, these summaries of the depositions, by their nature, reveal the attorney's mental processes in evaluating the communications and determining the important aspects of the depositions. These documents were shared only with Dr. Paulsen and his defense counsel in preparation for trial. As such, this is a communication that falls under the attorney-client privilege.")

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

Chapter: 17.14

Case Name: In re Syngenta AG Mir 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 11749 (D. Kansas Jan. 27, 2017)
("Caselaw in this district provides a wealth of guidance as to what is -- and is not -- protected by the attorney-client privilege. First, it is important to note that 'personal, confidential, [or] private information' is not necessarily privileged. 'As this Court has held repeatedly, 'confidential' does not equate to 'nondiscoverable' or privileged.' Second, it is clear that '[u]nderlying facts are not protected by the privilege.' 'Similarly, neither the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not 'communications.' Nor are 'general topics of attorney-client discussions' or ultimate 'legal conclusions' of counsel protected. Thus, for example, this court has held that the subject matters of an in-house attorney's discussions with company executives are not privileged.")

Case Date Jurisidction State Cite Checked
2017-01-27 Federal KS
Comment:

key case


Chapter: 17.15

Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "In the allegedly privileged communications, which the Court has reviewed in camera, counsel proceeded to discuss aspects of the administration of the 401(k) Plan with various Citigroup employees, for the evident purpose of formulating responses to these media inquiries."; "Courts have recognized that attorneys who have advised their clients on public relations matters continued to render legal advice where '[t]he legal ramifications and potential adverse use of such communications were material factors in the development of the communications.'")

Case Date Jurisidction State Cite Checked
2015-10-16 Federal NY

Chapter: 17.15

Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "In this instance, it is readily apparent that the purpose of counsel's solicitation of facts and provision of legal advice was to address the journalist's expected premise that the selection of assets for Citigroup's 401(k) Plan potentially implicated ERISA 's prohibition on self-dealing. Given that this exchange plainly contemplated the legal ramifications of Citigroup's response and was conducted by and at the direction of counsel, in their capacity as attorneys, the communications must be considered privileged."; "As for the applicability of the fiduciary exception, that exception does not apply where a plan administrator seeks legal advice for its own benefit or protection, rather than for the benefit of the plan and its beneficiaries. . . . Here, by contrast, the purpose of the legal advice contained in the News Inquiry Documents was to manage the public relations impact and potential litigation risk occasioned by what was expected to be a negative news article about the inclusion of proprietary funds in 401(k) plans. While the subject of the News Inquiry Documents was therefore related to plan administration, in that the content of the documents discussed the way in which fiduciary duties were carried out, Defendants' purpose in seeking out legal advice was not to obtain advice regarding the administration or investment of plan assets, and the implementation of that advice had no effect on the plan or its beneficiaries. Under these circumstances, it cannot be said that advice was provided to aid the beneficiaries, such that Defendants were not the true clients.")

Case Date Jurisidction State Cite Checked
2015-10-16 Federal NY
Comment:

key case


Chapter: 17.201

Case Name: DeAngelis v. Corzine; In re MF Global Holdings Ltd. Investment Litig., 11 Civ. 7866 (VM) (JCF), 12 MD 2338, 2015 U.S. Dist. LEXIS 18207 (S.D.N.Y. Feb. 9, 2015)
("The privilege protects both the advice of the attorney to the client and the information communicated by the client that provides a basis for giving advice.")

Case Date Jurisidction State Cite Checked
2015-02-09 Federal NY

Chapter: 17.201

Case Name: Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 U.S. Dist. LEXIS 159498, at *10-11 (N.D. Ill. Nov. 7, 2013)
("The protection extends to communications flowing from the client to the attorney, as well as to advice flowing from the attorney to the client.")

Case Date Jurisidction State Cite Checked
2013-11-07 Federal IL B 5/14

Chapter: 17.201

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

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

Chapter: 17.201

Case Name: Hedden v. Kean Univ., 82 A.3d 238, 245 (N.J. Super. Ct. App. Div. 2013)
(analyzing a situation in which a university coach disclosed a privileged draft letter to the NCAA during an investigation; "[W]e agree with the motion judge that as an employee of the University and acting within the scope of her employment, Sharp's [Coach] purpose in sending the e-mail to Tripodi [University lawyer] was to solicit his legal advice as University general counsel and, thus, an attorney-client relationship was formed. It is undisputed that in the e-mail Sharp asks Tripodi to review a draft of a fundraising letter and there would be no plausible reason for the request other than to solicit legal advice from counsel since Tripodi had no other involvement in University fundraising activities. . . . Tripodi well understood the nature of the inquiry because he reviewed the letter and later 'conveyed [his] legal opinion regarding the letter.'")

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

Chapter: 17.201

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 375-76 (4th Cir. 2009)
("[T]he privilege 'protects "not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice."' Hanson v. U.S. Agency for Int'l Dev., 372 F.3d 286, 291 (4th Cir. 2004) (quoting Upjohn, 449 U.S. at 390)).")

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

Chapter: 17.201

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 377 (4th Cir. 2009)
("[T]he attorney-client privilege extends beyond communications in contemplation of particular litigation to communications regarding 'an opinion on the law,' e.g., United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)")

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

Chapter: 17.202

Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "In this instance, it is readily apparent that the purpose of counsel's solicitation of facts and provision of legal advice was to address the journalist's expected premise that the selection of assets for Citigroup's 401(k) Plan potentially implicated ERISA 's prohibition on self-dealing. Given that this exchange plainly contemplated the legal ramifications of Citigroup's response and was conducted by and at the direction of counsel, in their capacity as attorneys, the communications must be considered privileged."; "As for the applicability of the fiduciary exception, that exception does not apply where a plan administrator seeks legal advice for its own benefit or protection, rather than for the benefit of the plan and its beneficiaries. . . . Here, by contrast, the purpose of the legal advice contained in the News Inquiry Documents was to manage the public relations impact and potential litigation risk occasioned by what was expected to be a negative news article about the inclusion of proprietary funds in 401(k) plans. While the subject of the News Inquiry Documents was therefore related to plan administration, in that the content of the documents discussed the way in which fiduciary duties were carried out, Defendants' purpose in seeking out legal advice was not to obtain advice regarding the administration or investment of plan assets, and the implementation of that advice had no effect on the plan or its beneficiaries. Under these circumstances, it cannot be said that advice was provided to aid the beneficiaries, such that Defendants were not the true clients.")

Case Date Jurisidction State Cite Checked
2015-10-16 Federal NY
Comment:

key case


Chapter: 17.202

Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("[A]s memoranda analyzing legal implications of certain corporate transactions, these documents were made for the purpose of dispensing legal advice and were kept in confidence.")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal DE

Chapter: 17.202

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

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

Chapter: 17.202

Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *11-12 (E.D.N.Y. Jan. 21, 2014)
(not for publication) (upholding a Magistrate Judge's opinion that neither the attorney-client privilege nor the work product doctrine protected communications between a Duane Morris lawyer and a corporate client's human resource executive; finding the attorney-client privilege inapplicable because the advice was primarily business-related and not legal; "This document contains an e-mail from Defendants' outside counsel, Ann Bradley, Esq. [Duane Morris lawyer], setting forth more than a full page of detailed, multi-part instructions on how to deal with Mr. Komoulis's personnel issues, including a recommendation that Defendants call Mr. Komoulis 'to express concern and disappointment, identify the fundamental problem and find out who he trusts to advise him,' and goes so far as to prescribe detailed instructions to be given to Plaintiff on how he should conduct himself with Defendants' customers. . . . This advice plainly is not legal advice, but rather human resources advice on personnel management and customer relations.")

Case Date Jurisidction State Cite Checked
2014-01-21 Federal NY B

Chapter: 17.202

Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *7, *7-8, *8-9, *9-10 (N.D. Cal. Dec. 17, 2013)
(holding that documents prepared by Ben & Jerry's parent Unilever did not deserve privilege or work product protection, because they were prepared in the ordinary course of business, and there was no "actual litigation" anticipated; "Defendant has attached a declaration from Nancy Schnell, then an in-house counsel, which states that the document relates 'to the efforts by the company's U.S. and Global Regulatory and Legal Departments to create guidelines relating to 'natural' and 'all natural' claims.' . . . Defendant also points out that the document notes that formal approval by Legal and Regulatory is required before making any 'natural' claims and that 'Legal' is listed as the owner of the Global Policy on Guidance on the use of Natural Claims on Foods."; "The Court has reviewed the Framework Document in detail, and finds that while it is a sensitive, internal business document issued jointly by Unilever's Regulatory Affairs and Legal departments, it is protected by neither the attorney-client privilege nor the work-product doctrine. The Framework Document does not contain legal advice, and there is no indication that it was prepared in anticipation of litigation. The document touches briefly on the legislative and regulatory environment for natural claims, including two European court cases. . . . The document mentions, very generally, that legal considerations are involved in making natural claims, but nothing more specific."; "The document was issued by Regulatory Affairs and Legal, but the mere mention of the Legal department in the chain of events of approval of a natural claim is too general and non-specific to be covered by the attorney-client privilege. Unilever treated making a natural claim as a complex decision involving multiple departments, but the mere fact of some Legal Department involvement at various points does not rise to the level of legal advice or a request for legal advice.")

Case Date Jurisidction State Cite Checked
2013-12-17 Federal CA B 5/14

Chapter: 17.202

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

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

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

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

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

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

key case


Chapter: 17.202

Case Name: In re McDowell, 483 B.R. 472, 487 (Bankr. S.D. Tex. 2012)
("An attorney is therefore not required to merely transpose the debtor's words onto the Schedules and SOFA, and the debtor's communications may well include more in his/her responses than is required for assembly. Thus, even under the White [United States v. White, 950 F.2d 426 (7th Cir. 1991)] bright-line dicta rule, communications from debtor to counsel may--at least in certain circumstances--be protected by the attorney client privilege.")

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

Chapter: 17.202

Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *47 (N.D.N.Y. Dec. 13, 2006)
("[I]f the attorney-client privilege extends to employees' statements surely it extends to the attorneys' notes, memoranda, and files pertaining to those statements.")

Case Date Jurisidction State Cite Checked
2006-12-13 Federal NY B 7/16
Comment:

key case


Chapter: 17.202

Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *18 (E.D. Va. June 10, 2004)
("Item 7 is a Capital One Diversity Recruiting presentation, created by in-house counsel, and marked confidential and attorney-client privileged. The presentation was designed to provide legal advice and apprise senior management about legal risks associated with diversity issues. The presentation was treated confidentially, and in fact, copies of the presentation were collected after the presentation was made. Item 7 was clearly a communication falling within the attorney-client privilege, and contrary to Plaintiff's arguments, the style of the item in no way detracts from its privileged nature.")

Case Date Jurisidction State Cite Checked
2004-06-10 Federal VA

Chapter: 17.203

Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)
("Viad asserts that attorney authorship of the notations is established by the fact that the documents were found in the law department's files. . . . It explains that it cannot identify specific authors because Viad employed up to 35 attorneys at one time. . . . But even if these facts could be used to show that lawyers made the notations, Viad has failed to provide any evidence that the notations were ever communicated to anyone. Arizona's corporate attorney-client privilege protects 'communication[s].' A.R.S. § 12-2234(B). Viad has made no effort to show that the notations were prepared in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2016-09-08 Federal AZ

Chapter: 17.203

Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("[T]he privilege does not protect 'the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case; and it is equally unrelated to writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories.' See Hickman v. Taylor, 329 U.S. 495, 508, 67 S. Ct. 385, 91 L. Ed. 451 (1947). The 'attorney's notes and personal musings [which] do not constitute 'communications,' are not privileged, and must be produced.' In re Gabapentin Patent Litig., 214 F.R.D. at 187."; "At most Mahoney, by declaration, claims that because Knedlik relied on information received from her clients in performing her duties as their attorney, some client information might be contained in her notes. Mahoney does not contend that Knedlik's notes are comprised solely of information obtained from clients and nothing else. Our in camera review of these documents indicates that at least some portions of the notes contain attorney musings rather than client information.")

Case Date Jurisidction State Cite Checked
2016-08-25 Federal PA
Comment:

key case


Chapter: 17.203

Case Name: Broadrock Gas Services, LLC v. AIG Specialty Insurance Co., No. 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. Mar. 2, 2015)
May 6, 2015 (PRIVILEGE POINT)

“Do Lawyers' Memos to the File Deserve Privilege Protection?”

Not surprisingly, many lawyers think the attorney-client privilege (if not the whole world) revolves around them. Actually, the privilege primarily protects clients' communications to lawyers, not vice versa. And because the privilege normally protects only client-lawyer communications, lawyers face an uphill climb when seeking privilege protection for documents they have not sent to their clients.

In Broadrock Gas Services, LLC v. AIG Specialty Insurance Co., No. 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. Mar. 2, 2015), defendant claimed privilege protection for a K&L Gates lawyer's memorandum to the file analyzing insurance coverage issues. In an opinion by Judge Dolinger, the court first noted that there was "no evidence in our record" that (1) K&L Gates sent the memo to the client; (2) K&L "used [it] to advise the client"; or (3) the memo "described or embodied the substance of any communication between the client and the attorney." Id. at *7. The court rejected defendant's privilege claim — emphasizing that the privilege "is limited to communications between client and attorney" or others facilitating the attorney-client relationship. Id. The court also quoted an earlier Southern District of New York decision holding that the privilege did not protect "'documents embodying uncommunicated thoughts of counsel, as in the form of notes or memoranda to the file.'" Id. at *7-8 (quoting Bodega Invs., LLC v. United States, No. 08 Civ. 4065 (RMB)(MHD), 2009 U.S. Dist. LEXIS 48513, at *27 n.5 (S.D.N.Y. May 14, 2009)).

In assessing privilege protection, lawyers should recognize their secondary role — and not assume that their uncommunicated documents automatically deserve privilege protection.

Case Date Jurisidction State Cite Checked
2015-03-02 Federal NY
Comment:

key case


Chapter: 17.203

Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; finding that a K&L Gates's memorandum to the file did not deserve privilege protection; "[T]he document was apparently a memorandum prepared by a Gates attorney for insertion in the file, and there is no evidence in our record that it was provided to RIRRC or used to advise the client, or that it described or embodied the substance of any communication between the client and the attorney. In the absence of such a showing by defendant, the privilege would not apply, since it is limited to communications between client and attorney or between their respective representatives or with others 'who are facilitating the rendition of legal services by the lawyer.'. . . It follows that the privilege does not protect 'documents embodying uncommunicated thoughts of counsel, as in the form of notes or memoranda to the file.'")

Case Date Jurisidction State Cite Checked
2015-03-02 Federal NY
Comment:

key case


Chapter: 17.203

Case Name: Dempsey v. Bucknell University, Civ. A. No. 4:11-CV-1679, 2013 U.S. Dist. LEXIS 144636, at *27-28 (M.D. Pa. Oct. 7, 2013)
December 11, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part III"

The last two Privilege Points described ways in which the work product doctrine provides less protection than the attorney-client privilege. However, in some situations the work product doctrine can apply when the privilege cannot.

In U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811 & 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *28 (S.D.N.Y. Oct. 3, 2013), the court confirmed that the work product doctrine can protect "the identities of people interviewed as part of counsel's investigation" – if disclosing those identities has "the potential to reveal counsel's opinion, thought processes, or strategies." The privilege cannot protect such information, because it covers only client-lawyer communications. Also, work product protection does not depend on a communication, in contrast to the attorney-client privilege. In Dempsey v. Bucknell University, Civ. A. No. 4:11-CV-1679, 2013 U.S. Dist. LEXIS 144636, at *27-28 (M.D. Pa. Oct. 7, 2013), the court found the privilege inapplicable to a lawyer's agents' "strategy notes" – because "there is nothing to suggest that these documents themselves were communicated to … counsel, nor that they contain references to any privileged communications within them." However, the court extended work product protection to the notes.

Lawyers should remember that the work product doctrine can protect documents that would not deserve privilege protection, and vice versa. The differing strengths and weaknesses of the two protections should prompt lawyers to consider both.

Case Date Jurisidction State Cite Checked
2013-10-07 Federal PA
Comment:

key case


Chapter: 17.203

Case Name: U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811 & 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *28 (S.D.N.Y. Oct. 3, 2013)
December 11, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part III"

The last two Privilege Points described ways in which the work product doctrine provides less protection than the attorney-client privilege. However, in some situations the work product doctrine can apply when the privilege cannot.

In U.S. Bank National Ass’n v. PHL Variable Insurance Co., Nos. 12 Civ. 6811 & 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *28 (S.D.N.Y. Oct. 3, 2013), the court confirmed that the work product doctrine can protect "the identities of people interviewed as part of counsel's investigation" – if disclosing those identities has "the potential to reveal counsel's opinion, thought processes, or strategies." The privilege cannot protect such information, because it covers only client-lawyer communications. Also, work product protection does not depend on a communication, in contrast to the attorney-client privilege. In Dempsey v. Bucknell University, Civ. A. No. 4:11-CV-1679, 2013 U.S. Dist. LEXIS 144636, at *27-28 (M.D. Pa. Oct. 7, 2013), the court found the privilege inapplicable to a lawyer's agents' "strategy notes" – because "there is nothing to suggest that these documents themselves were communicated to … counsel, nor that they contain references to any privileged communications within them." However, the court extended work product protection to the notes.

Lawyers should remember that the work product doctrine can protect documents that would not deserve privilege protection, and vice versa. The differing strengths and weaknesses of the two protections should prompt lawyers to consider both.

Case Date Jurisidction State Cite Checked
2013-10-03 Federal NY
Comment:

key case


Chapter: 17.203

Case Name: Harrier Techs., Inc. v. CPA Global Ltd., Civ. No. 3:12CV167 (WWE), 2012 U.S. Dist. LEXIS 177119, at *6-7 (D. Conn. Dec. 14, 2012)
(holding that the privilege did not protect internal law firm communications; "Kenyon asserts an attorney-client and work product privilege for an internal memorandum circulated among Kenyon employees, dated September 25, 2010. By and large, this internal memorandum does not satisfy the first requirement of the attorney-client privilege test that the communication be between client and attorney.")

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

Chapter: 17.203

Case Name: Peterson v. Commonwealth of Va., 82 Va. Cir. 497, 498 (Va. Cir. Ct. 2011)
("From a review of Heidbreder's [Virginia Tech in house lawyer, who was a member of the Virginia Tech Emergency Policy Group] notes, it is apparent that she is chronicling information and events as they are being revealed to the Emergency Policy Group. She, as any other member of the group, was free to take notes during the course of the meetings. With one exception, her notes are not confidential communications nor is there any indication that her notes were intended to be confidential. There is nothing to indicate that she was making notes in order to give legal advice. Her notes are nothing more than a recording of the facts she learned during the course of the day as a member of the Group. I find the notes are not confidential communications and not privileged with the exception of those made at 6:00 p.m. in regard to points Ms. Heidbreder intended to make at a briefing. Plaintiffs' motion to overrule the Commonwealth's claim of attorney-client privilege is granted. The notes will be turned over to plaintiffs' counsel with the exception of Heidbreder's briefing notes, which have been redacted.")

Case Date Jurisidction State Cite Checked
2011-01-01 State VA

Chapter: 17.203

Case Name: Bodega Invs., LLC v. United States, No. 08 Civ. 4065 (RMB)(MHD), 2009 U.S. Dist. LEXIS 48513, at *27 n.5 (S.D.N.Y. May 14, 2009)
May 6, 2015 (PRIVILEGE POINT)

“Do Lawyers' Memos to the File Deserve Privilege Protection?”

Not surprisingly, many lawyers think the attorney-client privilege (if not the whole world) revolves around them. Actually, the privilege primarily protects clients' communications to lawyers, not vice versa. And because the privilege normally protects only client-lawyer communications, lawyers face an uphill climb when seeking privilege protection for documents they have not sent to their clients.

In Broadrock Gas Services, LLC v. AIG Specialty Insurance Co., No. 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. Mar. 2, 2015), defendant claimed privilege protection for a K&L Gates lawyer's memorandum to the file analyzing insurance coverage issues. In an opinion by Judge Dolinger, the court first noted that there was "no evidence in our record" that (1) K&L Gates sent the memo to the client; (2) K&L "used [it] to advise the client"; or (3) the memo "described or embodied the substance of any communication between the client and the attorney." Id. at *7. The court rejected defendant's privilege claim — emphasizing that the privilege "is limited to communications between client and attorney" or others facilitating the attorney-client relationship. Id. The court also quoted an earlier Southern District of New York decision holding that the privilege did not protect "'documents embodying uncommunicated thoughts of counsel, as in the form of notes or memoranda to the file.'" Id. at *7-8 (quoting Bodega Invs., LLC v. United States, No. 08 Civ. 4065 (RMB)(MHD), 2009 U.S. Dist. LEXIS 48513, at *27 n.5 (S.D.N.Y. May 14, 2009)).

In assessing privilege protection, lawyers should recognize their secondary role — and not assume that their uncommunicated documents automatically deserve privilege protection.

Case Date Jurisidction State Cite Checked
2009-05-14 Federal NY
Comment:

key case


Chapter: 17.203

Case Name: Patel v. Allison, 54 Va. Cir. 155, 158-59 (Va. Cir. Ct. 2000)
(holding that a number of documents in a lawyer's files did not reflect privileged communications with a client, and therefore were not protected by the attorney-client privilege)

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

Chapter: 17.302

Case Name: Supreme Forest Prods., Inc. v. Kennedy, No. 3:16-cv-0054 (JAM), 2017 U.S. Dist. LEXIS 4421 (D. Conn. Jan. 12, 2017)
(holding that the privilege protected communications between two former company employees who had filed separate lawsuits against the same employer, using the same lawyer; finding it unnecessary for them to do an identical interest because they were jointly represented by the same lawyer rather than creating a common interest agreement; finding that the privilege did not protect the two clients' employee without the lawyer present; "[T]he attorney-client privilege may properly extend to communications that occur between an attorney in the presence of two or more clients that the attorney jointly represents."; "Here, it is clear to me that Kennedy and Welch share a common interest based on their highly similar employment claims brought against the same employer. They are for all practical purposes jointly represented by one attorney, and the fact that their attorney filed separate lawsuits rather than joining his two clients together in a single lawsuit does not dispel the application of the co-client privilege. If the clients share a common interest, the co-client rule requires joint representation, not necessarily joint litigation."; "This 'community of interest' privilege, however, differs from the co-client privilege. . . . For the co-client privilege, it suffices for the clients to have a common interest, not necessarily interests that are identical in all respects. So long as their interests are common, co-clients who consult the same lawyer would reasonably expect that their communications with the lawyer to which they are mutually privy would be protected from disclosure to third parties by the attorney-client privilege. The legitimate expectation of privilege is unmistakably higher in the co-client context than the broader community-of-interest context involving parties who are not represented by the same counsel."; "In any event, Kennedy and Welch had nearly identical legal interests. They both sought legal representation to pursue what was essentially the same major claim -- that Supreme Forest Products had violated federal law by retaliating against them when they resisted driving overweight vehicles. There were, of course, minor factual differences between their claims, but the gravamen of their complaint --Supreme Forest's alleged insistence on driving illegally loaded vehicles, and its alleged willingness to retaliate against drivers who didn't toe the line -- was the same. Although Welch had an additional claim related to his post-termination health benefits, the fact that Welch had an additional interest in his suit does not vitiate his common interest with Kennedy. I therefore find that defendants' interests were sufficiently common for them to properly invoke the co-client attorney-client privilege."; "Plaintiffs further contend that there is no evidence that Kennedy and Welch had a joint representation agreement with their counsel prior to when they were sued by plaintiffs in January 2016. But this argument ignores the course of dealing between defendants prior to January 2016 when they had both retained counsel within days of each other in May 2014 to represent them for purposes of the claims they eventually filed against Supreme Forest Products, Inc. Even if prior to January 2016 Kennedy and Welch did not have a formal written agreement of joint representation, it is clear to me that they would have justifiably expected their co-client communications with counsel to be protected by the privilege.")

Case Date Jurisidction State Cite Checked
2017-01-12 Federal CT
Comment:

key case


Chapter: 17.302

Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
("JWRW 012463 is an email communication from Mary Russell, a Jones Waldo [Law firm] staff member, transmitting a confidential client communication to Mr. Wilson [Jones Waldo lawyer]. The email is protected attorney-client communication. See Himmelfarb v. U.S. 175 F.2d 924, 939 (9th Cir. 1949) (where presence of third party, such as attorney's secretary, is indispensable to delivery of legal advice, privilege is not waived).")

Case Date Jurisidction State Cite Checked
2015-03-17 Federal ID

Chapter: 17.302

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 104 (Fed. Cl. 2013)
("Just as an attorney's interpretation of a statute, regulation, or contract may be privileged, even though the information underlying the attorney's interpretation is in the public domain, the privilege may apply to defendant's internal requests for legal advice regardless of whether the information that serves as the basis for those requests is confidential.")

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

Chapter: 17.302

Case Name: Bozella v. Cnty. of Dutchess, No. 10 Civ. 4917 (CS) (GAY), 2012 U.S. Dist. LEXIS 149586, at *4 (S.D.N.Y. Oct. 17, 2012)
("[C]ommunications between counsel who share the same client would be covered by the attorney client privilege.")

Case Date Jurisidction State Cite Checked
2012-10-17 Federal NY B 12/13

Chapter: 17.302

Case Name: Fed. Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 66 (E.D. Va. 1998)
("The attorney client privilege applies not only to communications from the lawyer to the client, but also extends 'to protect communications by the lawyer to his client, agents, or superiors, or to other lawyers in the case of joint representation, if those communications reveal confidential client communications."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 17.304

Case Name: In re Domestic Drywall Antitrust Litig., MDL No. 2437, 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014)
(concluding that a company's antitrust compliance policy did not deserve privilege protection; "Construing the attorney-client privilege narrowly, application of the privilege should ordinarily be limited to legal advice leading to a decision by the client. CertainTeed's policy, by contrast, is general and does not contain any specific advice. Its purpose is to help insure that its employees do not violate the antitrust laws. No court has yet held that a corporate policy of lawfulness is protected from discovery as privileged. Moreover, there is no evidence CertainTeed's parent company would have refrained from creating the policy absent the privilege."; "CertainTeed's antitrust compliance policy is more akin to a reference or instructional guide. Although it is based on legal advice, the policy is primarily a business policy.")

Case Date Jurisidction State Cite Checked
2014-10-09 Federal PA

Chapter: 17.305

Case Name: In re Domestic Drywall Antitrust Litig., MDL No. 2437, 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014)
(concluding that a company's antitrust compliance policy did not deserve privilege protection; "Construing the attorney-client privilege narrowly, application of the privilege should ordinarily be limited to legal advice leading to a decision by the client. CertainTeed's policy, by contrast, is general and does not contain any specific advice. Its purpose is to help insure that its employees do not violate the antitrust laws. No court has yet held that a corporate policy of lawfulness is protected from discovery as privileged. Moreover, there is no evidence CertainTeed's parent company would have refrained from creating the policy absent the privilege."; "CertainTeed's antitrust compliance policy is more akin to a reference or instructional guide. Although it is based on legal advice, the policy is primarily a business policy.")

Case Date Jurisidction State Cite Checked
2014-10-09 Federal PA

Chapter: 17.305

Case Name: West Virginia v. Honorable Louis H. Bloom, No. 13-1172, 2014 W. Va. LEXIS 345 (W. Va. App. April 10, 2014)
(holding that the insurance company's national coverage counsel's training materials deserved privileged protection; "The circuit court ordered CRW to disclose all seminar or training materials it prepared for any insurer or industry group involving coverage interpretation or extra-contractual liability. The Petitioners argue that these documents were prepared for nonparties and are protected by the attorney-client privilege."; "The decision in Santer [Santer v. Teachers Insurance and Annuity Association, No. 06-CV-1863, 2008 U.S. Dist. LEXIS 23364, 2008 WL 821060 (E.D. Pa. Mar. 25, 2008)] is instructive on the resolution of the seminar/training materials sought in this case. We have reviewed all of the documents submitted under this discovery request. All of the documents reflect CRW's legal opinion on specific topics. The documents explain legal concepts and procedures and specific policy issues. As recognizes in Santer, these documents clearly demonstrate specific requests by CRW's clients for legal opinions on specific subjects. Further, as in Santer, we find these documents are protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-04-10 State WV

Chapter: 17.305

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 104 (Fed. Cl. 2013)
("The passage is an endorsement at the bottom of the Memorandum, which reveals only that an attorney reviewed the Memorandum, stating: 'This memo was endorsed by: Major Michael S. Martin, USAF Deputy Command Judge Advocate Joint Contracting Command -- Iraq/Afghanistan See next page.' (emphasis in original). As plaintiff notes, defendant has not explained how an attorney's endorsement of the Memorandum reveals the substance of a request for legal advice, particularly given that Maj. Martin's name and information is not redacted on the 'next page' of available copies of the Memorandum. The 'next page' immediately following the attorney's endorsement, which like the previous page is numbered '12 of 12,' reveals that the endorsement signifies only that the attorney 'concur[red] with the foregoing summary of JA involvement with restructuring contract W27P4A-05-C-0002.'")

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

Chapter: 17.401

Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *11 (D. Del. Oct. 25, 2013)
("The privilege applies to communications from an attorney to a client as well as from a client to its attorney.")

Case Date Jurisidction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 17.402

Case Name: Albritton v. CVS Caremark Corp., Case No. 5:13-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 157730 (W.D. Ky. Nov. 23, 2015)
("Some courts require that the communications reveal or implicate a prior, privileged communication from a client. . . . Other Courts allow for a broader protection of communications from an attorney to a client when the communication is made to render legal advice, regardless of if the communication reveals the prior confidences of the client.")

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

Chapter: 17.402

Case Name: Albritton v. CVS Caremark Corp., Case No. 5:130-CV-218-TBR-LLK, 2015 U.S. Dist. LEXIS 152236 (W.D. Ky. Nov. 10, 2015)
("The remaining two documents were authored by Defendant's outside counsel, Meredith Young. The elements of attorney client privilege establish that the privilege protects communications from clients to attorneys. . . . The privilege may or may not apply when the attorney initiates the communication. . . . The privilege provides derivative protection when an attorney's communication to his or her client contains or would reveal a confidential communication previously made by the client."; "While other courts have recognized the proposition that generally an attorney's advice to his or her clients rests upon the prior privileged communications made to the attorney, the burden of establishing the privilege remains with its claimant. . . . On the record before it, the Court cannot determine that the attorney-client privilege extends to the two e-mails sent by Ms. Young.")

Case Date Jurisidction State Cite Checked
2015-11-10 Federal KY

Chapter: 17.402

Case Name: Beverly v. Watson, No. 14 C 4970, 2015 U.S. Dist. LEXIS 114146 (N.D. Ill. Aug. 28, 2015)
("Though the privilege generally applies only to communications made by the client, 'statements made by the lawyer to the client will be protected where those communications rest on confidential information obtained from the client, or where those communications would reveal the substance of a confidential communication by the client.'")

Case Date Jurisidction State Cite Checked
2015-08-28 Federal IL

Chapter: 17.402

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

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

Chapter: 17.402

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

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

Chapter: 17.402

Case Name: Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197, 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015)
("Notable in the present matter, '[t]he attorney-client privilege protects two related, but different, communications: (1) confidential communications made by a client to his lawyer for the purpose of obtaining legal advice; and (2) any communication from an attorney to his client when made in the course of giving legal advice, whether or not that advice is based on privileged communications from the client.'")

Case Date Jurisidction State Cite Checked
2015-01-05 Federal LA
Comment:

key case


Chapter: 17.402

Case Name: North Dakota v. United States, Case No. 1:12-CV-125 (Lead Case), Case No. 1:12-CV-102 (Consolidated Case), 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
(analyzing privilege protection for a government entity; "If the only justification for the attorney-client privilege is to encourage full disclosure of information by the client to the attorney as some have suggested, an argument could be made that only what is communicated by the client in confidence to the attorney should be treated as privileged and not vice-versa. . . . However, today most courts would consider privileged at least some communications from an attorney to a client with the principal disagreement being over to what extent."; "'The most narrow approach is that communications from the attorney to the client are privileged only if they reveal a confidential communication from the client to the attorney or, slightly more broadly, do so circumstantially.'"; "Another approach, which is deemed by some to be an 'intermediate' one, is that attorney communications are privileged if they are based on confidential information provided by the client. A case often cited for this approach.'"; "'The broadest approach is that attorney opinions and communications are privileged if made or rendered during the course of giving legal advice, irrespective of any relationship to a confidential communication by the client or the client having provided confidential information.'"; "The parties have not cited to an Eighth Circuit case expressly adopting one of the three approaches. However, as discussed later, it appears the Eighth Circuit has at least implicitly adopted the broadest approach.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal ND
Comment:

key case


Chapter: 17.402

Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("[I]t would be a stretch to describe as a request for 'legal review' a June 24, 2010 e-mail addressed to Mr. Klinger, copying Mr. Hunt [Lawyer] and several others, stating only that '[a]ttached is the latest version of the [bankruptcy] emergence [presentation to potential investors], reflecting all comments & changes to date.'. . . There is no indication that Mr. Hunt ever even responded to this message and, in any event, the attached PowerPoint slides clearly contain no legal advice.")

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

Chapter: 17.402

Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("The privilege applies to communications from an attorney to a client as well as from a client to its attorney.")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal DE

Chapter: 17.402

Case Name: In re Domestic Drywall Antitrust Litig., MDL No. 2437, 2014 U.S. Dist. LEXIS 144263 (E.D. Pa. Oct. 9, 2014)
(concluding that a company's antitrust compliance policy did not deserve privilege protection; "There is a split between courts as to whether communications from attorney to client are privileged only to the extent confidential client information is revealed or more broadly to the extent they contain privileged legal advice. Compare In re Six Grand Jury Witnesses, 979 F.2d 939, 943-44 (2d Cir. 1992) (privilege applies only to the extent attorney communication reveals client confidences) with United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980) (privilege applies to attorney communication regardless of whether it reveals client confidences).")

Case Date Jurisidction State Cite Checked
2014-10-09 Federal PA
Comment:

key case


Chapter: 17.402

Case Name: Lee v. Chicago Youth Centers, No. 12 C 9245, 2014 U.S. Dist. LEXIS, *9-10 (N.D. Ill. June 10, 2014)
(taking a narrow view of attorney-client privilege protection; "Although the privilege is deemed generally to apply only to communications by the client, statements made by the lawyer to the client will be protected where those communications rest on confidential information obtained from the client, or where those communications would reveal the substance of a confidential communication by the client.")

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

Chapter: 17.402

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

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

Chapter: 17.402

Case Name: MediaTek Inc. v. Freescale Semiconductor, Inc., Case No. 4:11-cv-05341 YGR (JSC), 2013 U.S. Dist. LEXIS 147032, at *5 (N.D. Cal. Oct. 10, 2013)
("The attorney-client privilege protects confidential disclosures made by a client to an attorney to obtain legal advice, as well as an attorney's advice in response to such disclosures.")

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

Chapter: 17.402

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

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

Chapter: 17.402

Case Name: Earthworks v. United States Dep’t of Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013)
June 26, 2013 (PRIVILEGE POINT)

"Does the Privilege Protect a Lawyer's Draft Document?"

Most courts recognize the abstract principle that lawyers' communications to their clients deserve privilege protection only if the communication contains or otherwise reflects client confidences. For example, the privilege normally does not protect a lawyer's verbatim transmittal to a client of what the lawyer learned from some government official or other third party.

How does this basic principle apply to draft documents a lawyer prepares? Most courts protect such draft documents, explaining, for example, that "[d]rafting legal documents is a core activity of lawyers, and obtaining information and feedback from clients is a necessary party of the process." Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994). However, some courts take a narrower approach. In Earthworks v. United States Dep’t of Interior, the court held that "the lawyer's draft, transmitted to [clients], does not yield any confidential communication from them." Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013). Fortunately, the court acknowledged that this approach would apply "particularly . . . In a governmental situation," in which "the lawyer may be the chief draftsperson of the particular document which she then sends to her co-workers for their views and thoughts." Id.

Most lawyers would be surprised to hear that the privilege does not protect all draft documents they prepare for their client's review. While most courts do apply the privilege that broadly, lawyers should remember that the privilege exists primarily to protect what their clients tell them.

Case Date Jurisidction State Cite Checked
2013-04-02 Federal DC
Comment:

key case


Chapter: 17.402

Case Name: Cnty. of San Mateo v. v. CSL Ltd. (In re Plasma-Derivative Protein Therapies Antitrust Litig.), No. 09 C 7666, No. 11 C 1468, 2013 U.S. Dist. LEXIS 29624, at *12 (N.D. Ill. Mar. 4, 2013)
(holding that the presence of a third party during otherwise privileged communications destroyed privilege protection; "Communications from an attorney to the client are privileged only to the extent that they reveal confidential information from the client. . . . Legal advice or communications are not protected unless the proponent of the privilege demonstrates that such advice or communications relate to prior, confidential client communications.")

Case Date Jurisidction State Cite Checked
2013-03-04 Federal IL B 3/14

Chapter: 17.402

Case Name: Judicial Watch, Inc. United States Dep't of Homeland Sec., 926 F. Supp. 2d 121, 146 (D.D.C. 2013)
("[E]ven putting aside the evident purpose of the communications, the DHS has failed to demonstrate that the communications themselves rest on confidential information obtained from the client. As this Court stated in its prior Memorandum Opinion, 'where, as here, an agency cites the attorney-client privilege as a basis for withholding communications running from the attorney to the client,' such communications are 'eligible for protection only if they rest on confidential information obtained from the client.'" (citation omitted))

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

Chapter: 17.402

Case Name: People v. Radojcic, 998 N.E.2d 1212, 1221 (Ill. 2013)
("The purpose of the privilege, which belongs to the client . . ., is to encourage and promote full and frank communication between the client and his or her attorney, without the fear that confidential information will be disseminated to others. . . . The privilege embodies the principle that sound legal advice and advocacy are dependent upon such full and frank communication."; "Although this formulation of the privilege suggests that only communications 'by the client' are protected from disclosure, the modern view is that the privilege is a two-way street, protecting both the client's communications to the attorney and the attorney's advice to the client.")

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

Chapter: 17.402

Case Name: Am. Immigration Council v. United States Dep't of Homeland Sec., 905 F Supp. 2d 206, 223 (D.D.C. 2012)
("USCIS [United States Citizen & Immigration Services] offers no explanation of what confidential client communications might underlie these slides, and the slides themselves do not hint at underpinning confidentialities. Nor should they. The slides were used for general trainings by USCIS lawyers, and such generally applicable legal advice will rest on none of the factual particularities conveyed in a typical confidential communication by a client. Because USCIS has not shown that the slides rest on its own confidential communications in the role of a client asking for legal advice, attorney-client privilege does not apply here.")

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

Chapter: 17.402

Case Name: Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376 (Pa. Super. Ct. 2012)
("In Pennsylvania, the attorney client privilege operates in a two way fashion to protect confidential client to attorney or attorney to client communications made for the purpose of obtaining or providing professional legal advice.")

Case Date Jurisidction State Cite Checked
2012-01-01 State PA B 1/13

Chapter: 17.402

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605 n.2 (E.D. Va. 2010)
("This includes, of course, 'communications between attorneys which reflect client-supplied information.' Hunt v. U.S. Marine Corps, 935 F. Supp. 46, 53 (D.D.C. 1996).")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 17.402

Case Name: Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994)
June 26, 2013 (PRIVILEGE POINT)

"Does the Privilege Protect a Lawyer's Draft Document?"

Most courts recognize the abstract principle that lawyers' communications to their clients deserve privilege protection only if the communication contains or otherwise reflects client confidences. For example, the privilege normally does not protect a lawyer's verbatim transmittal to a client of what the lawyer learned from some government official or other third party.

How does this basic principle apply to draft documents a lawyer prepares? Most courts protect such draft documents, explaining, for example, that "[d]rafting legal documents is a core activity of lawyers, and obtaining information and feedback from clients is a necessary party of the process." Diversey U.S. Holdings, Inc. v. Sara Lee Corp., No. 91 C 6234, 1994 U.S. Dist. LEXIS 2554, at *4 (N.D. Ill. Mar. 3, 1994). However, some courts take a narrower approach. In Earthworks v. United States Dep’t of Interior, the court held that "the lawyer's draft, transmitted to [clients], does not yield any confidential communication from them." Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *5 (D.D.C. Apr. 2, 2013). Fortunately, the court acknowledged that this approach would apply "particularly . . . In a governmental situation," in which "the lawyer may be the chief draftsperson of the particular document which she then sends to her co-workers for their views and thoughts." Id.

Most lawyers would be surprised to hear that the privilege does not protect all draft documents they prepare for their client's review. While most courts do apply the privilege that broadly, lawyers should remember that the privilege exists primarily to protect what their clients tell them.

Case Date Jurisidction State Cite Checked
1994-03-03 Federal IL
Comment:

key case


Chapter: 17.402

Case Name: Henson v. Wyeth Labs., Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987)
("[A]ccording to the better rule, [the privilege protects the substance of confidential communications] from the attorney to the client if such would reveal the confidential client communication.")

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

key case


Chapter: 17.403

Case Name: FTC v. AbbVie, Inc., Civ. A. No. 14-5151, 2015 U.S. Dist. LEXIS 166723 (E.D. Pa. Dec. 14, 2015)
("[T]hese emails do not fall within the ambit of the attorney-client privilege. The only attorney recipient of these emails, in-house counsel Walt Linscott, is merely copied on the email thread and does not contribute to the discussion.")

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

key case


Chapter: 17.403

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

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

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

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

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

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

key case


Chapter: 17.403

Case Name: Spread Enters., Inc. v. First Data Merch. Servs. Corp., No. CV 11 4743 (ADS) (ETB), 2013 U.S. Dist. LEXIS 22307, at *6-7, *7-8 (E.D.N.Y. Feb. 19, 2013)
("Nor is there any response from Cohen [in-house lawyer] at issue that could be construed as providing legal advice. In fact, Cohen's only response throughout the entire series of emails came almost one month after MacNaughton [executive for defendant] sent his original email and merely suggests that the parties involved 'recap the initial issue' and where First Data was in its response to it. . . . Again, however, nothing about this email appears to be of a legal nature."; ignoring the in-house lawyer's declaration; "Cohen asserts in his declaration that he was 'acting in his capacity as an attorney in the virtual discussion, as well as any other discussions (whether virtual, by telephone or in person) in which [he] participated' with respect to the MacNaughton email." (internal citation omitted))

Case Date Jurisidction State Cite Checked
2013-02-19 Federal NY

Chapter: 17.701

Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "Federal Rule of Evidence 501 governs privilege issues in federal courts. In this case the Court's jurisdiction is based upon diversity. Although applying choice of law principles to this case results in Kansas law defining the scope of the attorney-client privilege, this Court agrees with other cases from this District that there is no conflict between federal and Kansas law regarding the attorney-client privilege and it generally makes no difference which law is applied."; "Plaintiff is entitled to know the factual basis for Defendants' affirmative defenses. Plaintiff's question was a proper inquiry into the facts that support the affirmative defense asserted in paragraph 13 of Defendants' answer. Plaintiff did not ask Naccarato to disclose the substance of any communications he may have had with Defendants' counsel. Following defense counsel's initial objection, Plaintiff's counsel reiterated that she was asking only for the facts upon which Defendant Screenworks relied. Yet, Defendants' counsel persisted in asserting the same objections."; "Defendants' objections were improper for a number of reasons. Because the primary thrust of the objections and the basis upon which Naccarato was instructed not to answer was the attorney-client privilege, the Court will address that issue first. Even presuming Naccarato's answer would have revealed facts from conversations he had with Defendants' counsel, that would not render the 'facts' protected from discovery by the attorney-client privilege. 'A fact is discoverable regardless of how a deponent came to possess it. This is true even if Defendants' attorney informed the deponent of the facts. The instruction by Defendants' counsel to Naccarato not to answer to the extent the question sought 'information gained through conversations with counsel' was an improper and inaccurate assertion of the attorney-client privilege."; "'Defendants' argument that Plaintiff's questions improperly sought the 'theories' upon which Defendants' affirmative defenses are based is simply unsupported by the record. In the line of questioning at issue, Plaintiff expressly asked the 'facts' that support the affirmative defenses and never mentioned or inquired about Defendants' theories.'")

Case Date Jurisidction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 17.702

Case Name: Hamdan v. Indiana Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 U.S. Dist. LEXIS 86097, at *17-18 (S.D. Ind. June 24, 2014)
(emphasizing the four corners of documents prepared during an investigation of a discrimination claim; "The final chain of email correspondence that contains messages redacted by Defendants, dated March 28-29, 2011, begins with the Hospital's custodian of personnel records asking the chief medical officer how to proceed when the Plaintiff requested his file. The chief medical officer defers to in-house counsel and explicitly asks in-house counsel for advice. The emails that follow clarify the issue and further ask for explicit instructions from the attorney, who responds with her advice. The nature of the correspondence makes it clear that legal advice was sought from the attorney included in the chain of correspondence and the entire line of communications was related to that purpose and made in confidence by the client.")

Case Date Jurisidction State Cite Checked
2014-06-24 Federal IN

Chapter: 17.703

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; "As PEA has described the reports, they consist of Attorney McGintee's 'factual findings,' as to what occurred between John and Jane, 'including credibility determinations in instances where there were disputes of fact.'. . . This suggests that the reports consist largely of facts acquired from the three minor witnesses. Facts and statements by third parties do not enjoy the protection of the attorney-client privilege.")

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

Chapter: 17.703

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)
(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; denying General Motors' motion to impose a presumption that a witness's reference to privileged documents did not trigger a waiver, noting that the court would also have denied General Motors' argument that witnesses trial testimony should be assumed to be based on their personal knowledge rather than what they learned during privileged communications; "'[A] footnote in New GM's memorandum notes, '[a]s an example,' that 'the Court could order that any witness shall not disclose privileged information, and that any witness' answer should be assumed to be based only on personal knowledge unrelated to and not including knowledge of otherwise privileged information.'. . . New GM does not include any such provision in its proposed order but, even if it had, the Court would not have adopted it, substantially for the reasons stated by Plaintiff. . . . Put simply, it is New GM's -- not the Court's -- obligation to take steps to protect its privilege (and to decide if or when to waive the privilege), and the Court will take appropriate steps to ensure that testimony at trial is based on witnesses' personal knowledge. See Fed. R. Evid. 602.'")

Case Date Jurisidction State Cite Checked
2015-12-03 Federal NY
Comment:

key case


Chapter: 17.703

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
(analyzing defendant's duty to designate and educate a Rule 30(b)(6) deposition witness; rejecting plaintiffs' motion to compel defendant's Rule 30(b)(6) witness to review witness interview memoranda created during an internal corporate investigation -- because the facts contained in such memoranda inevitably intertwined with the defendant's lawyer's opinion; "Citing a number of cases, the DAPs [Direct Action Plaintiffs] argue that a company cannot shield from discovery facts learned by its attorney's investigation because the attorney-client privilege does not protect underlying facts. . . . While the DAPs' statement of black letter law is accurate, the DAPs' cases are distinguishable because none of them involve compelling a Rule 30(b)(6) witness to review privileged or work product protected memoranda from an internal investigation and testifying as to the contents of such memoranda. Nor do they involve internal investigation materials in which attorney mental impressions are inextricably intertwined with alleged facts.")

Case Date Jurisidction State Cite Checked
2015-10-05 Federal CA
Comment:

key case


Chapter: 17.703

Case Name: Sprint Comm. Co. L.P. v. Comcast Cable Comm. LLC, Case No. 11-2684-JWL, 2014 U.S. Dist. LEXIS 154346 (D. Kansas Oct. 31, 2014)
("[I]n essence, defendants contend that any communication made by the attorney to the client during the course of the client's engagement of the attorney for legal advice is privileged, whatever the content. The Court concludes, however, that the Magistrate Judge did not err in refusing to apply such a standard, as the law is clear that the privilege does not protect all attorney-client communications during the course of such an engagement."; "It is black-letter law -- and defendants have not disputed -- that not every communication between attorney and client is privileged, and attorneys have always had to bear that fact in mind in communicating with their clients. Defendants make the puzzling argument that, even if particular communications do not reveal legal advice or strategies or confidences, their disclosure 'in the aggregate' could reveal confidences that the privilege is intended to protect. As the Tenth Circuit has noted, however, if a communication tends to reveal confidential information, it is protected. If it does not, then it should not be protected, regardless of how many such innocuous communications there are. Indeed, in the most absurd example, under defendants' standard, communications stating no more than 'yes' or 'let's talk about that at the golf course' would be privileged if they were made in the course of a legal engagement; such communications are clearly not privileged, however, as the privilege does not protect the mere fact of a communication or of the relationship between the attorney and client, or the general description of the attorney's work."; "The communication does not reveal any legal analysis performed by the attorney, who merely listed all references to cable companies in the transcript (and who thus did not, as defendants argue, make some analytical decision about what to list). The document reveals that the attorney was merely acting as a conduit for information from another source (a public transcript). Moreover, the e-mail does not tend to reveal any client confidences or legal advice or strategy; the most it reveals is that the clients asked the attorney to review the transcript for references to cable companies, and such a general description of work performed or requested is not privileged.")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal KS

Chapter: 17.703

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: 17.703

Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *12, *13-14, *14 n.1 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding attorney-client privilege protection inapplicable; "The court's in camera examination reveals that nearly all of Chamberlain's file materials could not be classified as privileged attorney-client communications because they are public records or Telamon's business records. The gathering of public and business records by an investigator, or the funneling of business documents through one's attorney's office (or through one's fraud investigator), does not make those documents privileged."; "[S]ome of the communications obviously were not made to obtain legal advice, were not maintained in confidence, or were not even intended as a confidential communication in the first place. For example, the communications include (a) an email chain sent by the lawyers to Chamberlain lauding its reputation as a fraud investigator; (b) emails to set up meetings; and (c) emails that do not involve counsel at all or any bona fide connection to legal advice. . . . [D]documents within Chamberlain's file reveal that Chamberlain's investigatory work was not inextricable from Barnes & Thornburg's provision of legal advice and that its work was conducted because Telamon had a pressing business reason to uncover what it believed was large-scale inventory fraud by one of its workers. Documents indicate that the use of Barnes & Thornburg as the nominee client to Chamberlain was for the purpose of attempting to shield Chamberlain's work as privileged. It is apparent, however, that Barnes & Thornburg did not in fact direct this investigation, but that Chamberlain designed the investigation and determined the records to gather and review, the persons to interview, the questions to be asked, and the manner of interrogation."; "Moreover, waiver principles would prevent the assertion of the privilege as to the majority of the Chamberlain investigative file. Telamon provided to the insurers a preliminary investigative report prepared by Chamberlain that it otherwise asserts was a privileged communication. That report summarizes 'key' interviews and documents. When the privilege is waived as to an attorney-client communication, the waiver extends to all communications on the same subject matter. . . . The subject matter of the preliminary report is the investigative work conducted by Chamberlain. By producing the preliminary report (apparently for the purpose of proving its insurance claim and the losses suffered), Telamon waived the privilege with respect to the documents in the investigative file that are the 'nuts and bolts' source documents of Chamberlain's work, including the interview summaries, document analyses, and investigative background summaries.")

Case Date Jurisidction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 17.703

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: 17.703

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

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

Chapter: 17.703

Case Name: Digital Vending Servs. Intl, Inc. v. Univ. of Phoenix, A. No. 2:09cv555, 2013 U.S. Dist. LEXIS 53108, at *15-16 (E.D. Va. Apr. 22, 2013)
("This chain starts with an email from counsel with a link to a story on the Federal Circuit's opinion in this case. Although the email was sent from counsel, nothing in counsel's communication deals with motives, strategy or the nature of services provided. Therefore, this communication is not protected by attorney-client privilege.")

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

Chapter: 17.703

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

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

Chapter: 17.704

Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "'[Defendants' Counsel]: No, that is not counsel's objection. The objection as it was on the record . . . the objection was to the extent he is able to testify absent information gained through counsel, then he can; however, to the extent he has to rely on conversations with counsel and information gained through counsel, then I am, instructing him not to answer since those would clearly be privileged and attorney-client communications. That was the objection.'"; "'Instructions like these have been found to be inappropriate witness coaching. See Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 U.S. Dist. LEXIS 1363, 2012 WL 28071, at *5 (D. Kan. Jan. 5, 2012) ('Instructions to a witness that they may answer a question 'if they know' or 'if they understand the question' are raw, unmitigated coaching, and are never appropriate. This conduct, if it persists after the deposing attorney requests that it stop, is misconduct and sanctionable.'")

Case Date Jurisidction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 17.704

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)
(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; denying General Motors' motion to impose a presumption that a witness's reference to privileged documents did not trigger a waiver, noting that the court would also have denied General Motors' argument that witnesses trial testimony should be assumed to be based on their personal knowledge rather than what they learned during privileged communications; "'[A] footnote in New GM's memorandum notes, '[a]s an example,' that 'the Court could order that any witness shall not disclose privileged information, and that any witness' answer should be assumed to be based only on personal knowledge unrelated to and not including knowledge of otherwise privileged information.'. . . New GM does not include any such provision in its proposed order but, even if it had, the Court would not have adopted it, substantially for the reasons stated by Plaintiff. . . . Put simply, it is New GM's -- not the Court's -- obligation to take steps to protect its privilege (and to decide if or when to waive the privilege), and the Court will take appropriate steps to ensure that testimony at trial is based on witnesses' personal knowledge. See Fed. R. Evid. 602.'")

Case Date Jurisidction State Cite Checked
2015-12-03 Federal NY
Comment:

key case


Chapter: 17.704

Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("Privilege Log No. 201, an email from outside counsel concerning an upcoming meeting, contains information necessary for Taxpayer to obtain legal advice relating to tax and business transactions in the form of agenda topics for a future meeting. These documents were properly withheld as privileged.")

Case Date Jurisidction State Cite Checked
2014-10-31 Federal DE

Chapter: 17.704

Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *6-7 (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; "Prior to the depositions of certain Bank employees, defense counsel gave the following instructions: 'This witness has been instructed, as well as the other witnesses or witness appearing today, that if they are asked a question about their knowledge of somebody who told them something, whether they have learned something or plainly about information that may have been communicated to them, that if their only source is an attorney/client privileged communication, the witness is to answer no to that question.' . . . The instruction is improper in that it seeks to elicit false testimony from witnesses. Whatever the scope of the attorney-client privilege may be, it does not authorize untrue statements as a mechanism for preserving confidentiality. If a witness, for example, had knowledge that Ms. Becker provided information that was supportive of Connolly in her lawsuit against the Bank, and if that knowledge was derived from confidential communications with the Bank's counsel, the witnesses should be instructed to assert the privilege, not falsely deny having such knowledge.")

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

Chapter: 17.704

Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *12-13 (D.S.C. May 1, 2013)
(holding that a paralegal's list of earlier cases involving the company was work product, and that the lawyer's list of important earlier cases deserved opinion work product protection; "This is an email from Chris Risberg to Bill Bezubic sending attached information that is not itself privileged. While the underlying information is not privileged, the fact of the transmission is itself a communication about an identifiable subject matter. And that communication was a confidential one between a lawyer (specifically a paralegal who is within the attorney-client unit) and the client (specifically the point person for the company on legal matters) on a legal matter. Accordingly, the email is protected under the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-05-01 Federal SC B 3/14

Chapter: 17.704

Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159 KS MTP, 2012 U.S. Dist. LEXIS 165558, at *11 (S.D. Miss. Nov. 20, 2012)
("[T]he underlying facts are not privileged strictly because they were provided to the deponent by counsel.")

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

Chapter: 17.705

Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "Federal Rule of Evidence 501 governs privilege issues in federal courts. In this case the Court's jurisdiction is based upon diversity. Although applying choice of law principles to this case results in Kansas law defining the scope of the attorney-client privilege, this Court agrees with other cases from this District that there is no conflict between federal and Kansas law regarding the attorney-client privilege and it generally makes no difference which law is applied."; "Plaintiff is entitled to know the factual basis for Defendants' affirmative defenses. Plaintiff's question was a proper inquiry into the facts that support the affirmative defense asserted in paragraph 13 of Defendants' answer. Plaintiff did not ask Naccarato to disclose the substance of any communications he may have had with Defendants' counsel. Following defense counsel's initial objection, Plaintiff's counsel reiterated that she was asking only for the facts upon which Defendant Screenworks relied. Yet, Defendants' counsel persisted in asserting the same objections."; "Defendants' objections were improper for a number of reasons. Because the primary thrust of the objections and the basis upon which Naccarato was instructed not to answer was the attorney-client privilege, the Court will address that issue first. Even presuming Naccarato's answer would have revealed facts from conversations he had with Defendants' counsel, that would not render the 'facts' protected from discovery by the attorney-client privilege. 'A fact is discoverable regardless of how a deponent came to possess it. This is true even if Defendants' attorney informed the deponent of the facts. The instruction by Defendants' counsel to Naccarato not to answer to the extent the question sought 'information gained through conversations with counsel' was an improper and inaccurate assertion of the attorney-client privilege."; "'Defendants' argument that Plaintiff's questions improperly sought the 'theories' upon which Defendants' affirmative defenses are based is simply unsupported by the record. In the line of questioning at issue, Plaintiff expressly asked the 'facts' that support the affirmative defenses and never mentioned or inquired about Defendants' theories.'")

Case Date Jurisidction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he recalled any discussions about the performance of the adjustors in the presence of counsel, if he had an opinion about the performance of the adjustors, if anyone had ever told him that the adjustors' performance was unsatisfactory, if he ever expressed the opinion that the adjustors' performance was unsatisfactory, and if he had an opinion about whether the claims handling team's performance was satisfactory. First Mercury objected to the first two questions and instructed Eisenmann not to answer, purportedly based on privilege, and instructed Eisenmann to answer the remaining questions only to the extent that such discussions occurred outside the presence of counsel."; "First Mercury's objection to the first question is well-founded: the question clearly addresses conversations in the presence of counsel, presumably for the purpose of receiving legal advice. Accordingly, Eisenmann need not answer this question.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if, after reviewing deposition excerpts provided to him in advance of his own deposition, he viewed any of the prior testimony as being inaccurate. Eisenmann answered that everything he learned about the handling of the underlying claims was after the verdict and through discussions with counsel. Thus, his opinion on the accuracy of the prior deposition testimony was entirely a result of his communications with counsel. Eisenmann need not answer this question.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he knew whether anyone at Crum & Forster assessed whether the claims handling process of the underlying claim complied with Crum & Forster's expectations. First Mercury instructed Eisenmann to exclude conversations with general counsel, but to answer. Eisenmann then said that there were no discussions outside the presence of counsel. While the content of those discussions may be privileged, whether Eisenmann knew if someone made such an assessment is not. Eisenmann will answer the question. I again note that questions flowing from this answer may be subject to a valid assertion of privilege.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Sutton what the large loss committee did in connection with the underlying claim, post-verdict, and whether Crum & Forster took any action at the direction of the committee. Sutton again was instructed not to answer on the basis of privilege. First Mercury contends that what Crum & Forster did as a result of obtaining legal advice is protected by privilege. . . . First Mercury cites no authority for the proposition that an entity's actions after obtaining legal advice are protected by privilege. Indeed, such a result would be nonsensical: every person or company could protect its actions by talking with a lawyer about it beforehand. First Mercury improperly instructed Sutton not to answer these questions. I again note that privilege may apply to other questions resulting from these answers."; "First Mercury also argues that the information sought by these questions is protected by the attorney work product doctrine. . . . These questions, however, do not seek the opinions or mental impressions of counsel. They only ask what actions the large loss committee and the company took. Accordingly, the work product doctrine does not apply. Sutton must answer these questions.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("I agree with AAIC that whether Sluga developed some writing as a result of her work at Crum & Forster, and whether Sutton knew about it, is not a 'communication' subject to the attorney-client privilege. Additionally, whether Sutton reviewed any writings or reports written by Sluga is an action, not a 'communication.' Accordingly, First Mercury's claims of privilege are unsubstantiated and overruled."; "First Mercury also contends that counsel's questions as to whether Sluga developed some writing as a result of her work for Crum & Forster and whether Sutton reviewed that writing invades the work product protections. I disagree. The existence of writings and whether Sutton reviewed them are not protected by the work product doctrine, even if First Mercury would not be required to disclose the writings themselves or their content. Sutton is directed to answer these questions."; "Counsel asked Sutton about the business purpose of her meeting with Sluga, and Sutton was directed not to answer. First Mercury argues that AAIC knows Sluga was hired as outside counsel to Crum & Forster to perform an after-verdict review of the underlying claim, and that any additional inquiry about the purpose of the meeting invades the attorney-client privilege. I agree. AAIC is entitled to know the general purpose -- to facilitate Sluga's after-verdict review, but any further information would veer into protected communication. Sutton need not answer this question."; "Counsel asked Sutton whether the pre-verdict standard operating procedure of Crum & Forster's 'large loss committee' also applied to the committee's post-verdict work. First Mercury instructed Sutton not to answer on the basis of attorney-client privilege because Kraus was present at the large loss committee meetings and provided legal advice. But whether the committee continued to follow the standard operating procedure is an action, not a communication with counsel for the purpose of receiving legal advice. Accordingly, the attorney-client privilege does not apply. Sutton is directed to answer the question."; "Counsel asked Sutton if she knew whether the large loss committee reviewed any writings or written materials during its post-verdict work. Sutton was instructed not to answer on the basis of privilege. This appears to be a yes or no question asking about what the large loss committee did, not the content of the communications. Again, what the committee did is not protected by privilege. Sutton is directed to answer. I note that privilege may apply to the materials themselves and/or their contents."; "First Mercury also argues that this information is protected by the work product doctrine. I disagree. While the content of the documents may be protected by the work product doctrine, the fact of their existence is not. Sutton is directed to answer this question."; "Counsel asked Sutton a series of questions about the large loss committee's post-verdict meeting, beginning with who made presentations, if Sutton spoke, and if others spoke during the meeting. She was instructed not to answer on the basis of attorney-client privilege. First Mercury maintains that the committee's post-verdict meeting 'was held for the purpose of obtaining legal advice from Mr. Kraus,' rendering its activities protected by privilege and the work product doctrine. . . . The identity of who made presentations and who spoke, however, is not a communication, and therefore is not protected by the attorney-client privilege. Sutton is instructed to answer all three questions. I note, however, that privilege may apply to the substance of these presentations or remarks.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Sutton what the large loss committee did in connection with the underlying claim, post-verdict, and whether Crum & Forster took any action at the direction of the committee. Sutton again was instructed not to answer on the basis of privilege. First Mercury contends that what Crum & Forster did as a result of obtaining legal advice is protected by privilege. . . . First Mercury cites no authority for the proposition that an entity's actions after obtaining legal advice are protected by privilege. Indeed, such a result would be nonsensical: every person or company could protect its actions by talking with a lawyer about it beforehand. First Mercury improperly instructed Sutton not to answer these questions. I again note that privilege may apply to other questions resulting from these answers."; "First Mercury also argues that the information sought by these questions is protected by the attorney work product doctrine. . . . These questions, however, do not seek the opinions or mental impressions of counsel. They only ask what actions the large loss committee and the company took. Accordingly, the work product doctrine does not apply. Sutton must answer these questions.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he recalled any discussions about the performance of the adjustors in the presence of counsel, if he had an opinion about the performance of the adjustors, if anyone had ever told him that the adjustors' performance was unsatisfactory, if he ever expressed the opinion that the adjustors' performance was unsatisfactory, and if he had an opinion about whether the claims handling team's performance was satisfactory. First Mercury objected to the first two questions and instructed Eisenmann not to answer, purportedly based on privilege, and instructed Eisenmann to answer the remaining questions only to the extent that such discussions occurred outside the presence of counsel."; "First Mercury's objection to the first question is well-founded: the question clearly addresses conversations in the presence of counsel, presumably for the purpose of receiving legal advice. Accordingly, Eisenmann need not answer this question.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("[A]s to whether anyone ever told Eisenmann that the adjustor's performance was unsatisfactory and whether he ever expressed that opinion, Eisenmann stated that he could not answer the question because any such conversations occurred in the presence of counsel. Given the nature of these conversations, it is likely that they occurred for the purpose of receiving legal advice. The privilege therefore applies, and Eisenmann need not answer these questions.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("Counsel asked Eisenmann if he knew whether anyone at Crum & Forster assessed whether the claims handling process of the underlying claim complied with Crum & Forster's expectations. First Mercury instructed Eisenmann to exclude conversations with general counsel, but to answer. Eisenmann then said that there were no discussions outside the presence of counsel. While the content of those discussions may be privileged, whether Eisenmann knew if someone made such an assessment is not. Eisenmann will answer the question. I again note that questions flowing from this answer may be subject to a valid assertion of privilege.")

Case Date Jurisidction State Cite Checked
2016-10-22 Federal NM

Chapter: 17.705

Case Name: Am. Automobile Ins. Co. v. First Mercury Ins. Co., 1:13-cv-00439-MCA-LF, 2016 U.S. Dist. LEXIS 148035 (D.N.M. Oct. 22, 2016)
("I agree with AAIC that whether Sluga developed some writing as a result of her work at Crum & Forster, and whether Sutton knew about it, is not a 'communication' subject to the attorney-client privilege. Additionally, whether Sutton reviewed any writings or reports written by Sluga is an action, not a 'communication.' Accordingly, First Mercury's claims of privilege are unsubstantiated and overruled."; "First Mercury also contends that counsel's questions as to whether Sluga developed some writing as a result of her work for Crum & Forster and whether Sutton reviewed that writing invades the work product protections. I disagree. The existence of writings and whether Sutton reviewed them are not protected by the work product doctrine, even if First Mercury would not be required to disclose the writings themselves or their conten