Showing 155 of 155 results

Chapter: 19.2

Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)
("[T]he privilege is subject to waiver where the communications are made in the presence of, or to, third persons.")

Case Date Jurisidction State Cite Checked
2016-09-19 Federal NE

Chapter: 19.2

Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)
("If the individual or entity requesting legal information had no expectation of confidentiality at the time of the communication, then that person cannot later seek to shield that information simply because it was regarding a legal issue.")

Case Date Jurisidction State Cite Checked
2015-05-26 Federal VA

Chapter: 19.2

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *17 (D. Nev. June 18, 2013)
("The attorney-client privilege is waived when communications are made in the presence of third parties.")

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

Chapter: 19.2

Case Name: Callaway v. Cofield (In re Cofield), Case No. 11-02034-8-SWH, Adv. No. 12-00270-8-SWH-AP, 2013 Bankr. LEXIS 1555, at *9 (E.D.N.C. Apr. 11, 2013)
("[W]here a client has no reasonable expectation of confidentiality, the attorney-client privilege is unavailable.")

Case Date Jurisidction State Cite Checked
2013-04-11 Federal NC B 3/14

Chapter: 19.2

Case Name: I.R.S. Gen. Couns. Mem. 20123901F, at 2, 3, 4 (Aug. 27, 2012) (available at http://www.irs.gov/pub/irs-lafa/20123901F.pdf)
(criticizing a tax payer's privilege log, and requiring additional information about third parties mentioned on the log; "Several of the entries in the privilege log refer to meetings at which individuals other than directors or officers of Taxpayer were present. Specifically, the first, second, and third unnumbered entries list three attendees at the meeting who are employees of ___________. The eleventh, twelfth, and thirteenth unnumbered entries list an attendee from _________, an investment banker and 'strategic advisor' to Taxpayer. The fourteenth and fifteenth unnumbered entries list attendees from ____________, financial advisors to Taxpayer."; "Taxpayer is the proponent of the privilege and bears the burden of proving that the privilege applies, including that it has not waived the privilege. Taxpayer provided no information for you to evaluate whether the outside advisors who attended the meetings had a sufficient relationship to Taxpayer and to the transactions that were the subject of the legal advice. Without such a showing, Taxpayer has not demonstrated that the communications were, in fact, confidential and has not demonstrated that if the communications were confidential, that it has not waived the privilege."; "Should you decide to ask Taxpayer to supplement its privilege log, Taxpayer should provide information about the extent of the consultants' relationship to Taxpayer. The following questions are designed to seek additional information in this regard: Please quantify the percentage of time spent on the transaction by consultants in relation to the total time spent on the transaction by both consultants and employees. Please state who (name, employer, title) provided the information to counsel upon which the advice was based. Please describe what, if any, capacity the consultants are authorized to act for Taxpayer. Please explain where the consultants are in Taxpayer's chain-of-command regarding the subject matter of the legal services. Please explain to what extent, if any, the consultants are personally responsible for or are involved in the activity that might lead to liability for Taxpayer. Please provide, to the extent not already provided, a detailed factual explanation showing that the consultant is the functional equivalent of one of Taxpayer's employees and include supporting documentation (for example but not limitation, consulting agreements, letters of engagement).")

Case Date Jurisidction State Cite Checked
2012-08-27 Other Other B 6/13

Chapter: 19.4

Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)
("[T]he privilege is subject to waiver where the communications are made in the presence of, or to, third persons.")

Case Date Jurisidction State Cite Checked
2016-09-19 Federal NE

Chapter: 19.4

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 71-72 (E.D. Va. 1998)
("Third party disclosure has two effects on the attorney-client privilege. If the communication between attorney and client takes place in the presence of a third party, and that third party hears the communication contemporaneously with its being made, then the attorney-client privilege for that information never existed. . . . If, on the other hand, the communication took place in private, between the attorney and the client alone, then the privilege comes into existence at the time the communication occurred. Subsequent disclosure to a third party then waives the privilege . . . . Thus, it is technically proper to speak of waiver only in the case where the attorney or client communicates the privileged information to a third party after the privilege has come into existence. If the third party is present when the communication is made, it is not technically correct to say that the client has 'waived' the privilege because one cannot waive what never existed. Regardless of whether the privilege ever existed or whether it existed and the client waived it, the result for the communication revealed is the same. Under the common law of attorney-client privilege, the parties privy to the communication must zealously and carefully guard against disclosure to third parties. Courts in this area take almost a strict liability approach to third party disclosure. If the information ends up in the hands of a third party, courts don't want to hear how it got there. Once in the hands of a third party, the privilege, if it ever existed, is lost." (citations omitted; footnote omitted)), 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

Chapter: 19.4

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 74 n.12 (E.D. Va. 1998)
("Recall the difference between waiving the privilege (revealing the communications to someone subsequent to the privilege attaching) and the privilege never having attached in the first place (making the communication in the contemporaneous presence of a third person). This distinction causes confusion in analyzing subject matter waiver. The Fourth Circuit speaks of the 'waiver' as to one document effecting the subject matter 'waiver' as to all documents. Does the same analysis apply to the case where the privilege has not been technically 'waived,' but instead never attached in the first place? In other words, if CBN and C&L made their communication with Ralph Reed present, they did not really 'waive' the privilege because no privilege ever came into existence. Would such a communication also act to remove the attorney-client privilege from communications of the same subject matter? This question would be crucial in this case had the Court found a document that CBN has used in litigation to its advantage. However, the Court need not reach that question here because it has determined that subject matter waiver is not an issue."), 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

Chapter: 19.5

Case Name: Paulus v. J-M Manufacturing Co., Inc., B269904, 2017 Cal. App. Unpub. LEXIS 3907 (Cal. App. 2d June 8, 2017)
(declining to seal privileged documents that had surfaced years earlier; noting that its owner apparently did not adequately protect them; "In this case the rules were in place when Mr. Paulus died in 2009. Yet J-MM's counsel did not cite them or argue the principle they reflect when the summary motion was filed or when it was argued. No motion to seal was presented until after the trial court had denied the motion. Shortly after that, the parties settled the case and, pursuant to the settlement, the Paulus parties dismissed their suit with prejudice. In doing so they did not seek to preserve any claim that the documents (and any copies that might exist under J-MM's control) be returned or destroyed. The documents were not mentioned at all. And by that time it was readily knowable and indeed was known that the legal advice memorandum had been widely circulated among plaintiffs' attorneys. By the time J-MM finally sought to take some action in this case almost three years had passed. And by counsel's own acknowledgment, although not in their words, it had 'gone viral.' It was widespread and apparently being used in other litigation."; "The trial court concluded that under these circumstances a sealing order would have served no purpose. We find no abuse of discretion in the trial court's denial of a sealing order in these circumstances."; "Finally, we note that in its argument on appeal J-MM has occasionally has conflated two related but distinct concepts: sealing of records and admissibility of evidence. The trial court's first ruling in this dispute was that, while it was not ordering the records sealed, it recognized that they retained their privileged character: they were subject to the attorney-client privilege. It would have defied reason to find they were not. The documents were plainly and prominently marked as 'confidential' and 'attorney-client' material. And they dealt with a issue obviously subject to the attorney-client privilege: legal advice from attorney to client. And, we note, the parties agree that they were not cited in the moving or opposition papers on the summary judgment motion. Thus, while the documents were not sealed, they also were not admissible over attorney-client objection.")

Case Date Jurisidction State Cite Checked
2017-06-08 State CA

Chapter: 19.5

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

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

key case


Chapter: 19.5

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)
(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "[I]t appears that Dechert did not seek any arrangement by which to retain custody of such data as was on the office server or to delete that data on the server, which it left behind. It also made no provision for safeguarding any of the client confidences or other possibly protected materials reposing on the back-up tapes."; "Plainly stated, Dechert's conduct throughout the relevant period cannot be viewed as reasonable."; "First, defendant apparently abandoned the joint server without taking any action to ensure either that the Dechert data on that system was removed or that the server itself was safeguarded from access by others."; "Second, as noted, Dechert was on notice that all of the data being placed on the server was being recorded and saved on a set of back-up tapes that were apparently held by CF.")

Case Date Jurisidction State Cite Checked
2014-07-31 Federal NY

Chapter: 19.5

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)
(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "As for the balance of the considerations traditionally invoked on a claim of inadvertent disclosure, they do not assist Dechert's motion. Although defendant asserts that it acted promptly to rectify the situation with the tapes dating the disclosure of the issue to its attorney in February 2014 that is not the case. As noted, Dechert had to know back in 2005, or at the latest in January 2006, that it was leaving the security of its data to an unknown fate when it left the server in the Paris office without cleansing it.")

Case Date Jurisidction State Cite Checked
2014-07-31 Federal NY

Chapter: 19.5

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)
(holding that the general counsel did not waive privilege protection for communications with his previous employer by storing them on a password protected site; "Morosoff did not waive the privilege merely by storing the disputed documents on the worksite of his current employer. Morosoff has kept the documents on a password-protected hard drive, and there is no evidence that anyone at CIM other than Morosoff had access to, much less actually accessed, the privileged documents, and Morosoff's uncontradicted, sworn statements establish the contrary. While Morosoff appears to have kept copies of the documents on CIM's network for archival purposes, attorney-client communications do not lose their privileged character 'for the sole reason that [they are] communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communications may have access to the content of the communication[s].' As such, there has been no disclosure and consequently no waiver.")

Case Date Jurisidction State Cite Checked
2014-03-20 Federal CA

Chapter: 19.5

Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *17, *18-19 (N.D. Cal. Mar. 26, 2013)
(holding that a publication by the New York Times of a 1995 Akin Gump memorandum to its client Wal-Mart did not result in a waiver; also finding that Wal-Mart disclosed part of the memorandum in responding to the New York Times story, but that the disclosure did not trigger a subject matter waiver under the von Bulow (In re von Bulow, 828 F.2d 94 (2d Cir. 1987)) doctrine; "Plaintiffs nonetheless argue that the Wal-Mart has not met its burden of showing that it took sufficient precautions to maintain the Memo's confidentiality. They contend that the Court should infer from the disclosures themselves that Wal-Mart 'has not safeguarded its attorney-client communication like 'crown jewels.'" (citation omitted); "Wal-Mart has submitted evidence under penalty of perjury establishing its extensive efforts to maintain the Memo's confidentiality. Indeed, when Sellers found the Memo on his desk, he did not read past the top of the first page because the Memo was so distinctively marked as confidential and attorney-client privileged.")

Case Date Jurisidction State Cite Checked
2013-03-26 Federal CA B 3/14

Chapter: 19.5

Case Name: In re Marriage of Kurotsuchi, Nos. 1-11-0638 & -2319, 2013 Ill. App. Unpub. LEXIS 377, at *27, *28, *30, *31 (Ill. App. Ct. Mar. 1, 2013)
(not for citation) (analyzing a situation in which a husband obtained access to his wife's email, but did not explain how; ultimately assuming that the husband misappropriated the email; "James asserts Susan waived the privilege when she used the parties' shared computer to send the e-mails and sent the first e-mail from the parties' shared e-mail account. He asserts Susan's failure to delete the first e-mail to her attorney, sent from a shared computer with at least one shared e-mail account and with shared computer and e-mail passwords, forfeited any expectation of confidentiality because she knew the e-mail was available to a third person."; "There is some argument to be made that, had Susan left a printed copy of the e-mail where James could find it or had left it showing on the shared computer screen where James could read it, then she waived the confidentiality attached to the e-mails. . . . He does not explain how he came to see the e-mails at all other than to claim that they were stored on a shared computer."; "James does not explain how he came to have access to an e-mail sent from a computer and an e-mail account to which he did not have passwords. This leads to the conclusion that he misappropriated the second e-mail."; "We, therefore, find that the court did not abuse its discretion when it refused to consider the e-mails in deciding Susan's motion for partial summary judgment.")

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

Chapter: 19.5

Case Name: United States v. Finazzo, Np. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *41-42 (E.D.N.Y. Feb. 19, 2013)
(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "Finazzo's position that one cannot 'waive' privilege in a document that has already been inadvertently disclosed by thereafter voluntarily disclosing it to the same person reflects a serious misunderstanding of the purpose of privilege. . . . [W]aiver occurs where the proponent of the privilege takes actions wholly inconsistent with any desire to maintain confidentiality in the communication, and is entirely independent of whether that action actually 'reveals' the communication to anyone. See 24 Wright & Graham, Federal Practice & Procedure § 5507, 580 n.126 ('[I]f the client deposited his communications in the public library, the privilege would be waived, even though no one ever read them.'). . . . Where the proponent evinces no concern for confidentiality, the privilege has no value and is lost. Therefore, where a proponent of a privilege is faced with the breach of confidentiality, he or she must object, and not partake in it.")

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

Chapter: 19.5

Case Name: Riveiro-Calder v. Cooperativa De Ahorro Y Credito De Aguadilla, Civ. 11-1702CCC, 2013 U.S. Dist. LEXIS 17697, at *9-10, *11, *13 (D.P.R. Feb. 8, 2013)
(inexplicably holding that a company had lost its privilege when an employee removed a fax from a machine in his area of the company, which was a communication between the company and the company's lawyer about overcoming the magistrate judge's conclusion that the plaintiff's removal of the fax did not destroy the company's privilege; "Sloppy or inattentive work by an attorney resulting in a mistaken disclosure will result in forfeiture of the privilege. . . . It is a general principle that the carelessness or negligence of an attorney is imputable to the client under the agency theory."; "It is important to note that the employees identified by her as users of the fax machine worked under the supervision of plaintiff Riveiro since it has not been disputed that Mr. Riveiro was Information Systems Manager at the Cooperativa during the relevant time period. As can be inferred from the Executive Secretary's declaration, these employees had unrestricted access to the fax machine which was next to her desk. It is irrelevant if the person who left the attorney's letter at plaintiff's desk was an intern or an employee under plaintiff's supervision. The fact remains that the privileged communication went from the fax machine to his desk, and that there is no evidence that plaintiff invaded any private space to obtain it. It is undisputed that attorney López-López faxed that letter on February 14, 2011 to the only fax machine identified by defendant's own declarants to which the Information Systems employees had ready access."; "The defendant is the holder of the privilege and is also the one that knows the physical surroundings and the risks of unintentional or mistaken disclosure by receiving sensitive privileged information about the discharge of one of its employees by means of a fax machine which is available to many, not just the President, the Executive Secretary, and their inner circle. It was incumbent upon him to warn the attorney in this particular instance instead of relying on so called instructions given in the past as to the use of the mails.")

Case Date Jurisidction State Cite Checked
2013-02-08 Federal PR B 2/14

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)
("From the outside, this letter looked like and was handled like any other mail that would be delivered, privileged or not. While the document itself was marked for privilege, a person would not know this unless he or she first opened the envelope, which was sealed with a reusable clasp, and read the document. The envelope was not marked confidential or privileged. . . . The envelope was not even sealed using tape or glue. . . . Any person could have opened the envelope, discovered its contents, and re-clasped the envelope without notice. The procedures for handling documents need only be reasonable. See In re Grand Jury Proceedings, 727 F.2d at 1356. Although requiring encoded documents or secret drop boxes would certainly strain the bounds of reasonableness, it is safe to say that moistening an envelope's flap and writing 'confidential' on its exterior are reasonable steps that should have been taken to deter illicit observation and warn the receiver and intermediate handlers of the presence of sensitive information. The method of delivery, that is, leaving the envelopes in what have been variously described as cabinets, drawers, or mail slots after delivery to the clerk was a reasonable method of maintaining privilege. It would have been a different question if, for example, the letters were left in open baskets or inboxes, where the general public, the cleaning staff, or other persons may have had access to them. See In re Victor, 422 F. Supp. 475 (S.D.N.Y. 1976) (holding that papers left in a public hallway not entitled to privilege).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA
Comment:

key case


Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 268 (E.D. Va. 2006)
("Finally, as a general matter, the City does not provide a training program or any guidelines on the protection of confidential information and privilege. . . . Where the City Attorney did state that his office shreds documents, . . . it is unclear if the recipients of the letter followed suit. Some of the Council Members stated that they 'likely' shredded the document, . . . but it is unclear if this is expected of privileged documents. Without a written policy on the handling of materials marked confidential or training on the requirements of confidentiality, the resulting patchwork of disposal and storage habits by the Council Members tends to take away from the City's assertion of privilege.")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA B 11/06

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)
(assessing the privilege and work product protection for a letter that a City Attorney sent to the City Council, the City Manager and other officials; finding that the letter was privileged, but that the City had waived the privilege because: the City Attorney sent the letter in an envelope that was not marked confidential or sealed; the City Attorney might have faxed the letter to a City Council Member's home where his family could have intercepted it; the City did not have a training program or guidelines on the handling and disposal of privileged documents; neither the City Attorney nor any of the recipients objected when one of the City Council Members revealed some of the letter's content at a City Council Meeting; nevertheless finding that the letter also deserved work product protection, which had not been waived; "The attorney-client privilege is not favored in the federal courts, and this Court must view the steps taken by the City to maintain the confidentiality of the letter in light of this fact."; finding that the City had not adequately protected the letter and therefore did not deserve privilege protection, but that the letter deserved work product protection)

Case Date Jurisidction State Cite Checked
2006-01-01 Federal

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267-68 (E.D. Va. 2006)
("The alleged faxing of the letter to Council Member Randall, however, does not take away from the City's position. Where fax and email communications are certainly entitled to privilege, see State of Virginia ex rel. U.S. Fidelity and Guaranty Co. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (W.Va. 1997), the fact that Randall's husband and child had access to her fax machine shows that third parties could potentially intercept such communications when they are not sent to a properly monitored machine. Because there is conflicting evidence over whether this letter was faxed, however, and in light of the other factors discussed above, the Court need not make a finding on this issue to hold that the privilege does not apply to the letter.")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006)
("The privilege may be waived if a disclosing party does not take reasonable steps to insure and maintain the confidentiality of the information. See In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)
("The privilege may be waived if a disclosing party did not take reasonable steps to insure and maintain the confidentiality of the information. See In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)
("From the outside, this letter looked like and was handled like any other mail that would be delivered, privileged or not. While the document itself was marked for privilege, a person would not know this unless he or she first opened the envelope, which was sealed with a reusable clasp, and read the document. The envelope was not marked confidential or privileged. . . . The envelope was not even sealed using tape or glue. . . . Any person could have opened the envelope, discovered its contents, and re-clasped the envelope without notice. The procedures for handling documents need only be reasonable. See In re Grand Jury Proceedings, 727 F.2d at 1356. Although requiring encoded documents or secret drop boxes would certainly strain the bounds of reasonableness, it is safe to say that moistening an envelope's flap and writing 'confidential' on its exterior are reasonable steps that should have been taken to deter illicit observation and warn the receiver and intermediate handlers of the presence of sensitive information. The method of delivery, that is, leaving the envelopes in what have been variously described as cabinets, drawers, or mail slots after delivery to the clerk was a reasonable method of maintaining privilege. It would have been a different question if, for example, the letters were left in open baskets or inboxes, where the general public, the cleaning staff, or other persons may have had access to them. See In re Victor, 422 F. Supp. 475 (S.D.N.Y. 1976) (holding that papers left in a public hallway not entitled to privilege).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 19.12

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)
(holding that the general counsel did not waive privilege protection for communications with his previous employer by storing them on a password protected site; "Morosoff did not waive the privilege merely by storing the disputed documents on the worksite of his current employer. Morosoff has kept the documents on a password-protected hard drive, and there is no evidence that anyone at CIM other than Morosoff had access to, much less actually accessed, the privileged documents, and Morosoff's uncontradicted, sworn statements establish the contrary. While Morosoff appears to have kept copies of the documents on CIM's network for archival purposes, attorney-client communications do not lose their privileged character 'for the sole reason that [they are] communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communications may have access to the content of the communication[s].' As such, there has been no disclosure and consequently no waiver.")

Case Date Jurisidction State Cite Checked
2014-03-20 Federal CA

Chapter: 19.13

Case Name: Miller v. Zara USA, Inc., 4187N, 155512/15, 2017 N.Y. App. Div. LEXIS 4327 (N.Y. Sup. Ct. June 6, 2017)
(holding that a former general counsel suing his former company for a wrongful termination could not prevent the company from examining communications on his laptop under the privilege protection, but that the work product doctrine might apply if the company had never accessed the communications; "Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff's laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any 'actual disclosure to a third party, [plaintiff's] use of [Zara's computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections.'")

Case Date Jurisidction State Cite Checked
2017-06-06 State NY

Chapter: 19.13

Case Name: Miller v. Zara USA, Inc., 4187N, 155512/15, 2017 N.Y. App. Div. LEXIS 4327 (N.Y. Sup. Ct. June 6, 2017)
(holding that a former general counsel suing his former company for a wrongful termination could not prevent the company from examining communications on his laptop under the privilege protection, but that the work product doctrine might apply if the company had never accessed the communications; "Order, Supreme Court, New York County (David Benjamin Cohen, J.), entered on or about August 8, 2016, which granted plaintiff's motion for a protective order to preclude defendant from accessing plaintiff's personal documents on a company-owned laptop, unanimously modified, on the law, to deny so much of the motion as sought protection of attorney-client privilege, to direct plaintiff to produce to Supreme Court all items in his privilege log in which he asserts attorney work product protection, and to remand to Supreme Court for in camera review and determination of whether such documents are in fact protected attorney work product, and as so modified, affirmed, without costs.")

Case Date Jurisidction State Cite Checked
2017-06-06 State NY

Chapter: 19.13

Case Name: Miller v. Zara USA, Inc., 4187N, 155512/15, 2017 N.Y. App. Div. LEXIS 4327, 2017 NY Slip Op 04407 (N.Y. Sup. Ct. App. June 6, 2017) (citing In re Asia [In re Asia Global Crossing, Ltd. (322 BR 247, 257 (Bankr, SD NY 2005)
(in finding that the privilege did not protect a former general counsel's laptop from the company's review; "Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff's laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any 'actual disclosure to a third party, [plaintiff's] use of [Zara's computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections' (Peerenboom, 148 AD3d at 532).")

Case Date Jurisidction State Cite Checked
2017-06-06 Federal NY

Chapter: 19.13

Case Name: United States v. Finazzo, Nos. 14-3213-cr(L), 14-3330-cr (Con), 2017 U.S. App. LEXIS 3972 (2nd Cir. March 7, 2017)
(analyzing if the government could use privileged communications on a company's server, because the employee used the server are adverse to the company; "Despite Finazzo's familiarity with Aéropostale's computer policies, he used his Aéropostale email address to send and receive emails with his attorney. Specifically, he sent and received emails regarding his will on his Aéropostale email address on June 7, 2006. Notably, when Siegel sent the August 24 email for which Finazzo asserts attorney-client privilege, Finazzo responded from his company email, instructing Siegel to correct the value of one of the assets listed in the email attachment. Other than a self-serving affidavit, there is no evidence that Finazzo made any effort to preserve the confidentiality of these communications.")

Case Date Jurisidction State Cite Checked
2017-03-07 Federal

Chapter: 19.13

Case Name: Peerenboom v. Marvel Entertainment, LLC, 2016 N.Y. Slip Op. 31957(U) (N.Y. Sup. Ct. Sept. 30, 2016)
December 28, 2016 (PRIVILEGE POINT)

"New York Court Adds a Worrisome Twist to Employees' Communications with Their Personal Lawyers on Company Servers"

Numerous courts have held that corporate employees have no expectation of confidentiality (and thus no privilege protection) when using their employer's server and other communication equipment – if the corporate personnel policy adequately warns them not to expect confidentiality. Nearly all of these cases involve employees communicating with their personal employment lawyers about adversity to the company whose server they used. But what if another adversary wants to challenge privilege protection?

In Peerenboom v. Marvel Entertainment, LLC, 2016 N.Y. Slip Op. 31957(U) (N.Y. Sup. Ct. Sept. 30, 2016), a Palm Beach condo resident sued his neighbor for defamation. The defendant neighbor was Marvel Entertainment's CEO – who had "allegedly utilized Marvel's e-mail server for his electronic communications." Id. at 2. The court cited Marvel's parent Disney's personnel policy in concluding that Marvel's CEO "did not have a reasonable expectation of privacy in connection with electronic messages sent and received on Marvel's server, and has waived the attorney-client and work product privileges in connection with them." Id. at 6-7.

Most courts would not find work product waiver in such circumstances, given its robust protection. But the Peerenboom approach could raise the privilege stakes when employees use their employer's servers for personal privileged communications. Adversaries other than the employer/corporation might challenge privilege protection – such as divorce adversaries, commercial litigation adversaries, etc.

Case Date Jurisidction State Cite Checked
2016-12-28 Federal NY
Comment:

key case


Chapter: 19.13

Case Name: Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2016 N.Y. Misc. LEXIS 3765 (N.Y. Sup. Ct. Sept. 30, 2016)
(in a defamation action by a condo resident against neighbor and Marvel Entertainment CEO, holding that defendant had waived his privilege protection by using the company's server; explaining the context: "Peerenboom [Plaintiff] opposes the motions, contending that Perlmutter waived all privileges, inasmuch as Perlmutter [the neighbor and Marvel Entertainment CEO] sent or received the subject e-mail messages on Marvel's server, and Marvel's written computer usage handbook, as drafted by its corporate parent, the Walt Disney Company (Disney), provides that 'hardware, software, e-mail, voicemail, intranet and Internet access, computer files and programs -- including any information you create, send, receive, download or store on Company assets -- are Company property, and [it] reserve[s] the right to monitor their use, where permitted by law to do so."; "The court agrees with Peerenboom that use of a proprietary e-mail system, subject to an employer's computer usage policy such as the one adopted by Marvel, constitutes a waiver of any privilege that can otherwise be unilaterally asserted by a declarant or the intended audience of an otherwise confidential communication. The use of one's own personal home computer to communicate with an attorney on a private, unencrypted e-mail account does not vitiate the attorney-client privilege or the work-product privilege, inasmuch the client may reasonably maintain an expectation that the communications are private and confidential."; explaining Marvel corporate parent Disney's personnel policy ; "Disney's computer usage policy prohibits personal and other objectionable use of Marvel's server and e-mail system, Disney/Marvel had the right to monitor the use of all employees' computer usage, third parties have a right of access to the computer, Disney/Marvel expressly asserted a possessory interest in all e-mails sent and received on its servers, and Perlmutter was or should have been aware, as Marvel's Chairman or CEO, that Marvel implemented Disney's use and monitoring policies. Consequently, under the circumstances of this case, application of the factors articulated in Asia Global warrants a finding that Perlmutter did not have a reasonable expectation of privacy in connection with electronic messages sent and received on Marvel's server, and has waived the attorney-client and work-product privileges in connection with them."; not addressing the different waiver rules for work product, although finding waiver of work product protection)

Case Date Jurisidction State Cite Checked
2016-09-30 State NY

Chapter: 19.13

Case Name: Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2016 N.Y. Misc. LEXIS 3765 (N.Y. Sup. Ct. Sept. 30, 2016)
(in a defamation action by condo resident against neighbor and Marvel Entertainment CEO, holding that defendant had waived his privilege protection by using the company's server; "Peerenboom [Plaintiff] opposes the motions, contending that Perlmutter waived all privileges, inasmuch as Perlmutter [the neighbor and Marvel Entertainment CEO] sent or received the subject e-mail messages on Marvel's server, and Marvel's written computer usage handbook, as drafted by its corporate parent, the Walt Disney Company (Disney), provides that 'hardware, software, e-mail, voicemail, intranet and Internet access, computer files and programs -- including any information you create, send, receive, download or store on Company assets -- are Company property, and [it] reserve[s] the right to monitor their use, where permitted by law to do so."; "The court agrees with Peerenboom that use of a proprietary e-mail system, subject to an employer's computer usage policy such as the one adopted by Marvel, constitutes a waiver of any privilege that can otherwise be unilaterally asserted by a declarant or the intended audience of an otherwise confidential communication. The use of one's own personal home computer to communicate with an attorney on a private, unencrypted e-mail account does not vitiate the attorney-client privilege or the work-product privilege, inasmuch the client may reasonably maintain an expectation that the communications are private and confidential."; explaining Marvel corporate parent Disney's personnel policy ; "Disney's computer usage policy prohibits personal and other objectionable use of Marvel's server and e-mail system, Disney/Marvel had the right to monitor the use of all employees' computer usage, third parties have a right of access to the computer, Disney/Marvel expressly asserted a possessory interest in all e-mails sent and received on its servers, and Perlmutter was or should have been aware, as Marvel's Chairman or CEO, that Marvel implemented Disney's use and monitoring policies. Consequently, under the circumstances of this case, application of the factors articulated in Asia Global warrants a finding that Perlmutter did not have a reasonable expectation of privacy in connection with electronic messages sent and received on Marvel's server, and has waived the attorney-client and work-product privileges in connection with them."; holding that the marital privilege applied and could not be unilaterally waived by the Marvel CEO without his wife's consent – but noting that closure with the consent of both spouses to a lawyer would have waived the marital privilege; "The proper application of CPLR 4502(b) thus requires the conclusion not only that Perlmutter cannot be compelled to testify against Laura in the Florida defamation action but cannot, without her consent, waive her marital privilege by sharing their confidential communications with third parties. Moreover, while the privilege is vitiated where spousal communications are knowingly made in the presence of third parties (see People v Scalise, 70 AD2d 346, 348, 421 N.Y.S.2d 637 [3rd Dept 1979]), research reveals no case in which the privilege was vitiated where one spouse was unaware that third parties had knowledge of or access to the particular communication."; "Since there is no reason to believe that Laura consented to Perlmutter's waiver of the marital privilege in connection with several enumerated communications, the court concludes that all electronic communications between Perlmutter and Laura on the Marvel server that are confidential in nature are protected by the marital privilege, unless knowingly shared with third parties, including attorneys, inasmuch as any attorney-client privilege has been waived. Conversely, all electronic communications between Perlmutter and Laura on the Marvel server that are not confidential in nature, and have been requested in this litigation, must be turned over to Peerenboom."; not addressing the different waiver rules for work product, although finding waiver of work product protection)

Case Date Jurisidction State Cite Checked
2016-09-30 Federal NY
Comment:

key case


Chapter: 19.13

Case Name: Billups v. Penn State Milton S. Hershey Medical Center, 1-11-cv-01784, 2015 U.S. Dist. LEXIS 162442 (M.D. Pa. Dec. 3, 2015)
(holding a plaintiff's use of his employer's computer to communicate with an expert didn't destroy the work product protection otherwise covering those communications; "[T]he documents at issue are email communications between plaintiffs' counsel and Dr. Mack, a testifying expert in underlying state court proceedings. They were conveyed between counsel and expert via Dr. Mack's workplace email account, hosted on a computer or email network owned and maintained by her employer, Hershey Medical Center. Hershey Medical Center was not a party to the underlying state criminal and family court proceedings, and thus it was not plaintiffs' adversary, nor can it reasonably be said to be 'a conduit to an adversary.'. . . Absent a subpoena, the prosecution in the underlying state proceedings had no access to these email messages. Nor did the defendants, whose only legitimate access to these email communications is likewise limited to the use of a subpoena under the corporate email policy adopted by Hershey Medical Center.")

Case Date Jurisidction State Cite Checked
2015-12-03 Federal PA

Chapter: 19.13

Case Name: Morley v. Square, Inc., Case No. 4:14cv172, Case No. 4:10cv2243 CNLJ Consolidated, 2015 U.S. Dist. LEXIS 155569 (E.D. Mo. Sept. 10, 2015)
(holding that a professor did not forfeit privilege protection for emails using his university employer's server, because the university was not an adversary; "Morley did not sacrifice his attorney-client privilege when he communicated with his attorneys using his WashU e-mail address. Although defendants claim Morley violated WashU policy against using the e-mail system for 'commercial gain,' the evidence is that Morley was unaware of that policy and that the restriction appears to apply not to attorney-client communications but rather to overt commercial transactions using 'University resources.' Accordingly, Morley's e-mails with his attorneys using his WashU e-mail account remain protected from disclosure.")

Case Date Jurisidction State Cite Checked
2015-09-10 Federal MO

Chapter: 19.13

Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)
("The House's possession of such communications does not necessarily waive the privilege as between the individual delegate and outside counsel, so long as the delegate can demonstrate that there was a reasonable expectation of privacy in the emails sent using the House email system. . . . Most federal courts to have evaluated this question have relied upon the four-factor test from In re Asia Global Crossing, Ltd., which examines the following questions: (1) whether the institution maintains a policy banning personal or other objectionable use, (2) whether the institution monitors the use of the user's computer or e-mail, (3) whether third parties have a right of access to the computer or e-mails, and (4) whether the institution notified the user -- or whether the user was aware -- of the use and monitoring policies.")

Case Date Jurisidction State Cite Checked
2015-05-26 Federal VA

Chapter: 19.13

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)
(holding that the general counsel did not waive privilege protection for communications with his previous employer by storing them on a password protected site; "Morosoff did not waive the privilege merely by storing the disputed documents on the worksite of his current employer. Morosoff has kept the documents on a password-protected hard drive, and there is no evidence that anyone at CIM other than Morosoff had access to, much less actually accessed, the privileged documents, and Morosoff's uncontradicted, sworn statements establish the contrary. While Morosoff appears to have kept copies of the documents on CIM's network for archival purposes, attorney-client communications do not lose their privileged character 'for the sole reason that [they are] communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communications may have access to the content of the communication[s].' As such, there has been no disclosure and consequently no waiver.")

Case Date Jurisidction State Cite Checked
2014-03-20 Federal CA

Chapter: 19.13

Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *15 (N.D. Cal. June 10, 2013)
("As noted above, for the attorney-client privilege to protect communications, the communications must be made in confidence. Defendant also argues that Plaintiff and Williams [a lawyer who is also a personal friend of plaintiff] had no expectation of privacy in their work email accounts. . . . Plaintiff does not dispute that she lacks an expectation of privacy in her work email accounts. . . . Accordingly, communications sent using a VA email address are not privileged.")

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

Chapter: 19.13

Case Name: In re High Tech Emp. Antitrust Litig., Case. No. 11-CV-2509-LHK-PSG, 2013 U.S. Dist. LEXIS 28623, at *17 & *4, *19-20, *20-21, *24-25 (N.D. Cal. Feb. 28, 2013)
(holding that a non-employee who acted as what the court called an "executive whisperer" for Google should be treated as the functional equivalent of a Google employee; "[T]he court first considers Plaintiffs' argument that even if Campbell [eventual Google employee who earned a nominal salary, and who had earlier acted as a consultant, but in both roles operated 'an elite niche in the technology industry . . . best described as an 'executive whisperer'"] was an employee or the functional equivalent of one, the communications were not confidential because they were sent to Campbell's Intuit email account."; "The court . . . agrees that this is not the typical case in which the Asia Global [In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005)] factors are applied. In most situations, an employee spoke with her personal attorney over her employer's email system. Here, in contrast, Campbell spoke with Google's employees and Google's counsel over Intuit's email system. But as the court already noted, by Google's own argument, Campbell did so as an employee or functional equivalent of an employee of Google. And Google's other employees appear to have had notice that Campbell was receiving the emails at the external address. Although the facts differ from the typical scenario, the court considers the method for determining whether the communications remained confidential basically the same. To wit, did Campbell and Google have an objectively reasonable expectation of confidentiality in emails sent through Intuit's system?" (footnotes omitted); "The court therefore will consider: (1) whether Intuit had a policy banning personal use; (2) whether Intuit monitored employees' use of email; (3) whether third parties have a right of access to the computer and the email; and (4) whether the company notified Campbell or Google -- or whether Campbell or Google were aware of -- the use and monitoring policy."; "Although the court finds that the Asia Global factors are evenly split, the court finds that the importance of the attorney-client privilege as well as the lack of evidence that Intuit in fact monitored Campbell's emails supports the preservation of the privilege in this case. The fact that Campbell sent and received messages from his Intuit email address does not destroy the confidentiality necessary to maintain the privilege." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-02-28 Federal CA B 3/14

Chapter: 19.13

Case Name: United States v. Finazzo, Np. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *41-42 (E.D.N.Y. Feb. 19, 2013)
(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "Finazzo's position that one cannot 'waive' privilege in a document that has already been inadvertently disclosed by thereafter voluntarily disclosing it to the same person reflects a serious misunderstanding of the purpose of privilege. . . . [W]aiver occurs where the proponent of the privilege takes actions wholly inconsistent with any desire to maintain confidentiality in the communication, and is entirely independent of whether that action actually 'reveals' the communication to anyone. See 24 Wright & Graham, Federal Practice & Procedure § 5507, 580 n.126 ('[I]f the client deposited his communications in the public library, the privilege would be waived, even though no one ever read them.'). . . . Where the proponent evinces no concern for confidentiality, the privilege has no value and is lost. Therefore, where a proponent of a privilege is faced with the breach of confidentiality, he or she must object, and not partake in it.")

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

Chapter: 19.13

Case Name: United States v. Finazzo, No. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *21-22,*22, *37 (E.D.N.Y. Feb. 19, 2013)
(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "A communication cannot be 'intended' to remain confidential, however, when made through a medium that subjects it to disclosure to third parties. . . . Sending and receiving e-mails via an employer e-mail account, such as Finazzo's Aéropostale account here, is one such example. If Finazzo was aware, or should have been aware, that third parties had access to any e-mails sent or received via his Aéropostale account, he cannot assert privilege over them. In other words, Finazzo's claim of privilege turns on whether he had a 'reasonable expectation that the attorney-client communications would remain confidential despite being stored on' his employer's servers." (citation omitted); "In assessing an employee's reasonable expectation of privacy in a work computer or e-mail account, courts have increasingly turned to a set of four factors: '"(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?"'"; applying the Asia Global Crossing test in finding that the emails were not privileged; "Finazzo chose to communicate with his lawyer through a medium in which he had no expectation of privacy, thus inviting responses via that same medium.")

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

Chapter: 19.13

Case Name: In re Info. Mgmt. Servs., Inc. Derivative Litig., 81 A.3d 278, 285 n.1, 289, 290, 291, 292 (Del. Ch. 2013)
(adopting the Asia Global standard in concluding that three executives could not assert privilege protection for their emails on a company's hardware; "A work email account differs from a personal, password-protected, web-based email account, also known as webmail, which the employee may obtain through Google, Hotmail, or other services. . . . Courts have generally afforded greater privacy protection to webmail and have reached divergent conclusions when analyzing the attorney-client privilege if the employee and personal attorney communicated using webmail."; "As framed by the Asia Global [In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005)] court, the first factor is 'does the corporation maintain a policy banning personal or other objectionable use?'" (citation omitted); "[T]he second factor is 'does the company monitor the use of the employee's computer or e-mail?'" (citation omitted); "[T]he third factor is 'do third parties have a right of access to the computer or e-mails?'" (citation omitted); "[T]he fourth factor is 'did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?'" (citation omitted); "Three of the four Asia Global factors point towards production and one is neutral. The Asia Global calculus therefore calls for granting the motion to compel, absent a statutory override that could alter the common law result.")

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

Chapter: 19.13

Case Name: Chechele v. Ward, Case No. CIV 10 1286 M, 2012 U.S. Dist. LEXIS 140888 (W.D. Okla. Sept. 28, 2012)
(pointing to an employment contract's warning about an employee's use of a company's computer system for personal business; finding a waiver caused by the employee's use of the company's computer system for personal privileged communication)

Case Date Jurisidction State Cite Checked
2012-09-28 Federal OK B 12/13

Chapter: 19.13

Case Name: United States v. Hamilton, 701 F.3d 404, 408 (4th Cir. 2012)
(holding that a lower court had not impermissibly relied on email that a criminal defendant sent to and received from his wife, using his employer's computer system; "[E]mail has become the modern stenographer. Like the communications to the stenographer in Wolfle's [Wolfle v. United States, 291 U.S. 7 (1934)] time, emails today, 'in common experience,' are confidential. See id. at 15; see also ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 413 (1999) (noting that email 'pose[s] no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy' and so there is generally 'a reasonable expectation of privacy in its use')."; noting that the criminal defendant continued to use the email system even after the employer issued a policy disclaiming any right to privacy; "But just as spouses can 'conveniently communicate without' use of a stenographer, they can also 'conveniently communicate without' using a work email account on an office computer. . . . Therefore, as in Wolfle, it is hardly 'plain that marital confidence cannot . . . reasonably be preserved' without according the privilege to the spousal communications at issue here. . . . Accordingly, that one may generally have a reasonable expectation of privacy in email, at least before a policy is in place indicating otherwise, does not end our inquiry."; "In an era in which email plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by email usage. But the district court found that Hamilton did not take any steps to protect the emails in question, even after he was on notice of his employer's policy permitting inspection of emails stored on the system at the employer's discretion. As outlined above, the record provides ample support for these factual findings.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal B 3/13

Chapter: 19.13

Case Name: Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at *2, *3, *12-14 (W.D. Va. June 17, 2008)
(assessing the privilege implications of plaintiff's use of her husband's computer for engaging in allegedly privileged communications with her lawyer; noting that defendant Virginia Tech had issued a subpoena to the husband's employer seeking production of "'all electronically stored information on all computers, laptops, PDA's, portable media or other devices' utilized by Kurt W. Sprenger, plaintiff's husband, which relate to the plaintiff's claims"; noting the policy adopted by the husband's employer; "Defendants argue that the records are not protected under the spousal privilege, pursuant to the Department of Human Resource Management Policies and Procedures' Use of Internet and Electronic Communication Systems ('Policy'), which is applicable to all state employees. The Policy states that 'no user should have any expectation of privacy in any message, file, image, or data created, sent, retrieved, or received by use of the Commonwealth's equipment and/or access' and that state agencies have the right to monitor e-mail sent or received by agency users. . . . This monitoring can occur 'at any time, without notice, and without the user's permission.' . . . The Policy does allow the work computers to be utilized for personal use." (footnote omitted); explaining the holdings of various other cases involved in similar issues; "These cases turn on the very specific factual situations unique to each case. In this case, the factual record is sparse, consisting only of the Policy submitted at the hearing. Under the factors laid out in Asia Global [Crossing Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005)], the court only has facts to meet one of the factors, that personal use of the work computer is allowed. While the Policy was tendered to the court, no affidavit or other evidence was offered as to knowledge, implementation, or enforcement of the Policy. There is no showing that Mr. or Mrs. Sprenger were notified of the Policy by a log on banner, flash screen, or employee handbook and whether Mr. or Mrs. Sprenger were ever actually aware of the Policy. It is unclear whether third parties had a right of access to the e-mails. The record also does not show whether the Policy was regularly enforced and whether the state employees' computer use was actually monitored. Given the nature of the martial [sic] communications involved, the burden is on the defendants to demonstrate that the privilege has been waived. See Blau v. United States, 340 U.S. 332, 333-34, 71 S. Ct. 301, 95 L. Ed. 306 (1951) (holding that defendant had not overcome the presumption that marital communications are privileged). Based on the exceedingly thin record that exists at this time, defendants have not met this burden. Accordingly, the motion to quash the WWRC subpoena is hereby GRANTED. If defendants wish to pursue this matter further, they shall contact the clerk of the Court to set up an evidentiary hearing on the issue of waiver.")

Case Date Jurisidction State Cite Checked
2008-06-17 Federal VA B 3/16
Comment:

key case


Chapter: 19.13

Case Name: Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at *4 & n.1 (W.D. Va. June 17, 2008)
("In Asia Global [In Re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr.S.D.N.Y. 2005)], [T]he court laid out four factors to consider to measure the employee's expectation of privacy in his computer use '(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2008-06-17 Federal VA

Chapter: 19.13

Case Name: Banks v. Mario Indus. of Va., Inc., 274 Va. 438, 453-54, 650 S.E.2d 687, 695-96 (2007)
(rejecting a former employee's argument on appeal that the lower court erroneously admitted privileged communications to and from the former employee for which he used a company-owned computer; "Pursuant to Mario's employee handbook, Mario permitted employees to use their work computers for personal business. However, Mario's employee handbook provided that there was no expectation of privacy regarding Mario's computers. Cook created the pre-resignation memorandum on a work computer located at Mario's office. Cook printed the document from this computer, and Cook sent it to his attorney for the purposes of seeking legal advice. Cook then deleted the document from the computer. Mario's forensic computer expert, however, retrieved the document from the computer's hard drive. We held in Clagett v. Commonwealth, 252 Va. 79, 92, 472 S.E.2d 263, 270 (1996), that 'the [attorney-client] privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said.' See Edwards, 235 Va. at 509, 370 S.E.2d at 301 ('The privilege may be expressly waived by the client, or a waiver may be implied from the client's conduct.'). Therefore, we hold that the trial court did not err in admitting the pre-resignation memorandum into evidence.")

Case Date Jurisidction State Cite Checked
2007-01-01 State VA N 11/08
Comment:

key case


Chapter: 19.14

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "While not binding on this, or any, court, the Virginia State Bar Standing Committee on Legal Ethics has issued at least two Legal Ethics Opinions that address what the proper conduct should be when an attorney receives information an opposing party may claim as privileged or protected from disclosure."; "While LEO No. 1702 was issued before the adoption of the Rules of Professional Conduct, its continuing validity recently was reaffirmed by the committee. In LEO No. 1871, issued July 24, 2013, the committee addressed an attorney's responsibility when a document containing privileged information was discovered among documents produced by opposing counsel for review in discovery. The committee opined that LEO No. 1702 required the receiving attorney to promptly notify opposing counsel that the document had been produced. The committee also opined that the reviewing attorney should have 'either sequestered or destroyed his copy of the [document] pending a judicial determination of whether he could use the document.'"; "In this case, defense counsel have admitted that they accessed the Box Site by the hyperlink provided in the email from Cesario to Rowe. The face of this email contained the Confidentiality Notice, which should have provided sufficient notice to defense counsel that the sender was asserting that the information was protected from disclosure. Nonetheless, defense counsel downloaded the Claims File from the Box Site, did not reveal to Harleysville's counsel that they had obtained and reviewed the Claims File and further disseminated the Claims File to their clients and to law enforcement officials. At no time prior to the filing of the Motion, did defense counsel seek a determination from this court with regard to whether the materials they received were privileged or protected and what, if any, use they could make of the materials in this litigation. The only action defense counsel claim they took in response to discovering that they had access to Harleysville's Claims File -- calling the Virginia State Bar Ethics Hotline for advice -- belies any claim that they believed that their receipt and use of the materials without Harleysville's knowledge was proper under the circumstances."; "This court should demand better, and the ruling here is intended not to merely tolerate the bare minimum ethically compliant behavior, but, instead, to encourage the highest professional standards from those attorneys who practice before the court. The court holds that, by using the hyperlink contained in the email also containing the Confidentiality Notice to access the Box Site, defense counsel should have realized that the Box Site might contain privileged or protected information. This belief should have been further confirmed when defense counsel realized that the Box Site contained not only the Video, but Harleysville's Claims File. That being the case, defense counsel should have contacted Harleysville's counsel and revealed that it had access to this information. If defense counsel believed that the circumstances which allowed its access to the information waived any claim of privilege or protection, they should have asked the court to decide the issue before making any use of or disseminating the information. Counsel chose not to do so, however, and, therefore, the court believes that such conduct requires some sanction."; "Based on the decision that the posting of the Claims File to the internet waived any attorney-client privilege or any work-product protection over the information contained in the file, I find that the disqualification of defense counsel is not warranted in this situation. The disqualification of counsel is an extreme sanction. See Shaffer v. Farm Fresh, Inc., 966 F.2d 142, 145 (4th Cir. 1992); Rogers v. Pittston Co., 800 F. Supp. 350, 353 (W.D. Va. 1992). Disqualification of counsel must be decided on a case-by-case basis with consideration of the harm imposed should counsel's representation continue. See Rogers, 800 F. Supp. at 353. Harleysville urges that such a sanction is necessary since all defense counsel have reviewed the Claims File. However, even if current counsel were disqualified, based on the court's ruling on waiver, substitute counsel would have access to the same information. Therefore, there can be no harm to Harleysville by allowing defense counsel to remain in this case. See Aetna Cas. & Sur. Co. v. United States, 570 F.2d 1197, 1201 (4th Cir. 1978) (disqualification inapplicable where 'practical considerations' eliminate any real harm). Therefore, I find that the more reasonable sanction is that defense counsel should bear the cost of the parties in obtaining the court's ruling on the matter.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA
Comment:

key case


Chapter: 19.14

Case Name: Harleysville Ins. Co. v. Holding Funeral Home, Inc., Case No. 1:15cv00057, 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
(finding that Harleysville's parent company waived both its privilege and its work product protection by sloppily loading privileged and work product-protected documents to a publicly available internet site; also relying on Virginia Bar legal ethics opinions in describing defendant's lawyer's obligation to have stopped reading the documents upon noticing that they were protected, but not disqualifying defendant's lawyer; "The Virginia Supreme Court addressed the difference between involuntary and inadvertent disclosures of privileged information in Walton [Walton v. Mid--Atl. Spine Specialists, 280 Va. 113, 694 S.E.2d 545, 549 (Va. 2010)]. . . .'..[I]n the waiver context, involuntary means that another person accomplished the disclosure through criminal activity or bad faith, without the consent of the proponent of the privilege. . . .'. . . Inadvertent disclosure, on the other hand, includes action by the proponent of the privilege to knowingly, but mistakenly, produce a document or to unknowingly provide access to a document by failing to implement sufficient precautions to maintain its confidentiality. . . . The court further reasoned that the determination of whether a disclosure was involuntary does not rest on the subjective intent of the proponent of the privilege."; "Harleysville has conceded that its agent, Cesario, an employee of its parent company, intentionally and knowingly uploaded its Claims File to the Box Site. Under these facts, I find that the disclosure was not involuntary but, rather, was inadvertent under Virginia state law, in that Harleysville unknowingly provided access to information by failing to implement sufficient precautions to maintain its confidentiality."; "With regard to the reasonableness of the precautions taken to prevent the disclosure, the court has no evidence before it that any precautions were taken to prevent this disclosure. . . . this employee purposefully uploaded the Claims File to the Box Site, making it accessible to anyone with access to the internet, thus making the extent of the disclosure vast."; "I find that Harleysville has waived any claim of attorney-client privilege with regard to the information posted to the Box Site. It has conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise. In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to image an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web."; "The court believes that its decision on this issue fosters the better public policy. The technology involved in information sharing is rapidly evolving. Whether a company chooses to use a new technology is a decision within that company's control. If it chooses to use a new technology, however, it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information."; "Harleysville's disclosure should not be considered 'inadvertent' under federal law. Harleysville has not claimed that its agent's posting of its Claims File to the Box Site was not an intentional act. Also, based on my reasoning above, I cannot find that Harleysville, or its counsel, took reasonable steps to prevent its disclosure or to rectify the situation. Therefore, I find that Rule 502 does not apply in this situation to prevent a waiver of the work-product doctrine. Also, under the prior precedent, the agent's actions in posting the Claims File where it could be accessed by anyone on the internet is certainly a release of protected information in a way that did not limit its future use.")

Case Date Jurisidction State Cite Checked
2017-02-09 Federal VA
Comment:

key case


Chapter: 19.14

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)
(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "As for the balance of the considerations traditionally invoked on a claim of inadvertent disclosure, they do not assist Dechert's motion. Although defendant asserts that it acted promptly to rectify the situation with the tapes dating the disclosure of the issue to its attorney in February 2014 that is not the case. As noted, Dechert had to know back in 2005, or at the latest in January 2006, that it was leaving the security of its data to an unknown fate when it left the server in the Paris office without cleansing it.")

Case Date Jurisidction State Cite Checked
2014-07-31 Federal NY

Chapter: 19.14

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)
(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "[I]t appears that Dechert did not seek any arrangement by which to retain custody of such data as was on the office server or to delete that data on the server, which it left behind. It also made no provision for safeguarding any of the client confidences or other possibly protected materials reposing on the back-up tapes."; "Plainly stated, Dechert's conduct throughout the relevant period cannot be viewed as reasonable."; "First, defendant apparently abandoned the joint server without taking any action to ensure either that the Dechert data on that system was removed or that the server itself was safeguarded from access by others."; "Second, as noted, Dechert was on notice that all of the data being placed on the server was being recorded and saved on a set of back-up tapes that were apparently held by CF.")

Case Date Jurisidction State Cite Checked
2014-07-31 Federal NY

Chapter: 19.14

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 268 (E.D. Va. 2006)
("Finally, as a general matter, the City does not provide a training program or any guidelines on the protection of confidential information and privilege. . . . Where the City Attorney did state that his office shreds documents, . . . it is unclear if the recipients of the letter followed suit. Some of the Council Members stated that they 'likely' shredded the document, . . . but it is unclear if this is expected of privileged documents. Without a written policy on the handling of materials marked confidential or training on the requirements of confidentiality, the resulting patchwork of disposal and storage habits by the Council Members tends to take away from the City's assertion of privilege.")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 19.601

Case Name: Reid v. Womack; Buck v. Womack; Griffin v. Womack, Case No. 2:11-CV-788, 2014 U.S. Dist. LEXIS 115384 (D. Utah Aug. 18, 2014)
("The facts show that reasonable and sufficient steps were taken by Sheriff Yeates and his attorney to ensure their conversation in the waiting room of the Law Office was confidential and would be protected by the attorney-client privilege. Those steps include: (1) they went to the only space reasonably available; (2) the conversation was between an attorney and his client; (3) they spoke in hushed tones; (4) the conversation took place just before a deposition, where such a conversation was clearly to be expected and necessary; and (5) they were unaware that anyone else was present in the waiting room.")

Case Date Jurisidction State Cite Checked
2014-08-18 Federal UT

Chapter: 19.601

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 828 (E.D. Va. 2005)
("The Fourth Circuit has not yet squarely addressed the question whether inmates waive any privilege protection for telephone conversations when they choose to proceed with these conversations in the face of notice that the calls are being recorded and subject to monitoring. Significantly, however, the three circuits that have done so have uniformly held that such notice destroys any expectation of privilege." (footnote omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA

Chapter: 19.601

Case Name: United States v. Lentz, 419 F. Supp. 2d 820 (E.D. Va. 2005)
(holding that the attorney-client privilege did not protect communications between a jailed inmate and his lawyer, because they had been warned that prison authorities were monitoring the communications), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA

Chapter: 19.601

Case Name: Clagett v. Commonwealth, 252 Va. 79, 91-92, 472 S.E.2d 263, 270 (Va. 1996)
(holding that conversations between a convicted murderer's lawyers and the murderer were not privileged because they spoke where a state forensic witness could overhear them, since "[n]othing in the record indicates that [the witness] overheard the attorneys' conversation intentionally or surreptitiously"), cert. denied, 519 U.S. 1122 (1997)

Case Date Jurisidction State Cite Checked
1996-01-01 State VA

Chapter: 19.602

Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)
(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; "Plaintiff asserts that Virgen's conversation with Driscoll occurred in a setting where it could have been heard by the public and is not therefore privileged. Lawler, who was present during the conversation, testified to the following: no one else participated in the meeting; it occurred in the morning during off-peak hours; there were few people in the restaurant; no Café employees or customers sat near them at any point during the meeting; the conversation participants did not raise their voices; their booth was ten feet away from any occupied table; and that the conversation, in his perception, was out of earshot. . . . Virgen and Driscoll's communications were made in confidence and not overheard by any third party. The Court finds that this was a sufficiently confidential setting for maintaining the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2017-05-04 Federal OR
Comment:

key case


Chapter: 19.603

Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)
(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; "Plaintiff asserts that Virgen's conversation with Driscoll occurred in a setting where it could have been heard by the public and is not therefore privileged. Lawler, who was present during the conversation, testified to the following: no one else participated in the meeting; it occurred in the morning during off-peak hours; there were few people in the restaurant; no Café employees or customers sat near them at any point during the meeting; the conversation participants did not raise their voices; their booth was ten feet away from any occupied table; and that the conversation, in his perception, was out of earshot. . . . Virgen and Driscoll's communications were made in confidence and not overheard by any third party. The Court finds that this was a sufficiently confidential setting for maintaining the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2017-05-04 Federal OR
Comment:

key case


Chapter: 19.701

Case Name: In the Matter of Bertucci Contracting Co., L.L.C., Civ. A. No. 12-664 C/W 12-697 C/W 12-1783 C/W 12-1912 C/W 12-1914, Ref. All Cases Section "J" (3), 2014 U.S. Dist. LEXIS 72986 (E.D. La. May 27, 2014)
(holding that some community meetings dealing with damage caused by demolition work deserved privilege protection, while some did not; "With regard to the meetings, the Court first notes that claimants do not assert any privilege with regard to the meeting at Stone's Bistro. Information as to that meeting is thus fully discoverable. And the Court also finds that when the meetings took place, the attendees, and the dates on which the attendees formally retained counsel are underlying facts that are completely discoverable. Claimants shall produce this information to PIL if they have not already done so. The contents of the meetings and any documents distributed at the December 2011 and April 2012 meetings at Phil's Marina Cafe is another matter with which this Court has struggled greatly."; "The evidence reveals that attorneys from Smith Stag attended the 2011 meeting at Phil's Marina Cafe at the request of clients. The e-mail sent by Shirley Wagner to affected neighbors informed them that the meeting was 'to discuss [their] rights under State and Federal law.' And Smith Stag sent invitations to the 2012 meeting to clients only. At the oral hearing, counsel informed the Court that Phil's Marina Cafe was closed to all but clients and potential clients. The Court can only find from this evidence that the affected neighbors attended the two meetings as clients and/or potential clients and for the purpose of seeking legal advice related to their rights under state and federal law. And simply because a non-attorney, counsel for claimants' expert, spoke at the meeting does not shatter the application of the privilege. It is well-established law that the work-product privilege applies to a representative of a party and not just its counsel. Fed. R. Civ. P. 26(b)(3)(A).")

Case Date Jurisidction State Cite Checked
2014-05-27 Federal LA

Chapter: 19.701

Case Name: United States v. Lentz, 419 F. Supp. 2d 820; 828 n.16 (E.D. Va. 2005)
("Nor is it persuasive to argue, as Lentz does, that Mr. Salvato told him that their conversations were privileged, because the monitoring and recording notice that preceded each of the calls destroyed any reasonable expectation of privilege. During the third call, Mr. Salvato stated to Lentz that 'this is a privileged call, but they're all recorded.' Mr. Salvato's suggestion that the attorney-client privilege would apply to a call that was being recorded by a third party is simply mistaken and cannot serve to rescue the waived privilege."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA N 12/08

Chapter: 19.702

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("As a general rule, the presence of third parties breaches the confidentiality of communications between an attorney and client and waives the privilege. However, '[t]he presence of a third-party, such as a consultant, does not destroy the attorney-client privilege where that party is the client's agent or possesses 'a commonality of interest with the client.' 'The presence of a third party in an e-mail transmission, for instance, will not destroy the attorney-client privilege if the third party is the attorney's or client's agent. . . .' Syngenta has presented Nadel's declaration stating that Syngenta engaged the VHB and URI employees as consultants 'to provide . . . scientific assistance sought by Syngenta's legal department regarding regulatory requirements.' The court has no reason to question this representation. The court finds Syngenta met its burden of demonstrating these particular third parties are Syngenta's agents for purposes of this litigation, and their presence on the e-mail communication did not destroy the attorney-client privilege applicable to PRIV003553.")

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

Chapter: 19.702

Case Name: Craft v. South Carolina State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017)
(finding that neither the privilege nor the work product protection covered communications in a town hall meeting open to the public; "Defendants served subpoenas on Plaintiffs' counsel's law firms, seeking production of documents and recordings related to town hall meetings Plaintiffs' counsel conducted in advance of the Sun City litigation."; "Plaintiffs' counsel assert that they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members in the related state-court litigation. However, Defendants have undercut that assertion by demonstrating that the meetings were open to the public and could be attended by non-clients. In order for the attorney-client privilege to apply, the communications must be confidential."; "Plaintiffs claim their attorneys created these presentations in anticipation of class litigation arising out of stucco defects in Sun City. Defendants argue that these presentations were nothing more than solicitation materials. Because the Court is not privy to the contents of the presentations, it is unable to determine whether Defendants' assertion is correct. Assuming, without deciding, that these presentations were subject to work--product protection, the Court concludes that any work-product protection was waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public. The public nature of those meetings, and the media attention paid to them, created a significant likelihood that Defendants might obtain the presentations, thereby waiving work-product protection. Moreover, the Defendants have informed the Court that they were permitted to send a court reporter to one of the meetings at which Plaintiffs' counsel made these presentations. Accordingly, the Court concludes that any work--product protection applicable to these presentations was waived by Plaintiffs' counsel.")

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

key case


Chapter: 19.702

Case Name: Doe v. Tippecanoe School Corp., Cause No.: 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)
(finding that the attorney-client privilege did not protect documents distributed at a meeting that as open to non-clients; "Defendants have not identified any deposition testimony indicating that the withheld pages are confidential. Defendants argue that deposition testimony shows that attendance at the meeting was limited to the attorney presenting the material, TSC's administrators, and possibly TSC teachers. The testimony, however, merely states that it was a 'teacher's meeting,'. . . 'administrative meeting in August where all of the administrators are there,'. . . or a mandatory 'administrate professional development,'. . . . The testimony is in conflict about who the intended audience was, and there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential.'"; "Two deponents recalled materials being distributed at the meeting. . . . Defendants have not identified deposition testimony labeling the presentation materials as confidential. The produced portion of the document at issue does not contain a confidentiality notice, and Defendants do not contend that there is such a notice in the withheld pages.")

Case Date Jurisidction State Cite Checked
2017-01-10 Federal ID
Comment:

key case


Chapter: 19.702

Case Name: Montesa v. Schwartz, 12 Civ. 6057 (CS) (JCM), 2016 U.S. Dist. LEXIS 80822 (S.D.N.Y. June 20, 2016)
(finding that a litigant waived the work product protection by disclosing work product to a journalist; "Plaintiffs assert that the attorney-client privilege protects the communications regarding legal strategy at these meetings. . . . Plaintiffs do not contend that any attorneys were present at these meetings. Additionally, Plaintiffs cannot establish that all of the attendees at these meetings were Plaintiffs in this case, or even clients of AFJ. There is no list of attendees, and no assertion that anyone made any effort to deny entry to non-Plaintiffs, or even, potential adversaries. Based on Plaintiff Lahens' deposition testimony, the Court can be confident that Plaintiff Lahens and Plaintiff White were present at these meetings, but the rest of the attendees are unknown. Based on Plaintiff Lahens' testimony about the lack of measures taken to ensure that only Plaintiffs were present, anyone from the community could have attended this meeting, including members of the press, or even adversaries. Plaintiffs have not met their burden of establishing that these strategy discussions were 'intended to be, and in fact were, kept confidential.'")

Case Date Jurisidction State Cite Checked
2016-06-20 Federal NY

Chapter: 19.702

Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)
("Intervenors also may not claim privilege for communications shared freely with, or in the presence of, outside organizations, including campaign committees and political parties.")

Case Date Jurisidction State Cite Checked
2015-05-26 Federal VA

Chapter: 19.702

Case Name: Love v. Permanente Med. Grp., No. C-12-05679 DMR, 2014 U.S. Dist. LEXIS 22243, at *9-10 (N.D. Cal. Feb. 19, 2014)
(finding that one outsider's presence at a meeting destroyed the privilege protection (although using the waiver terminology); "Nonetheless, the court finds that Defendants waived their assertion of attorney-client privilege over the redacted information when the information provided by Resnick was disclosed at the CPC meeting to individuals other than the CPC members. Namely, the disclosure of the information to Dawn Belardinelli, whom Defendants admit was present at the meeting to discuss matters unrelated to the advice provided by Resnick, constituted a waiver of the attorney-client privilege. Defendants have not shown that Belardinelli is connected to Plaintiff, the relevant departments and committees, or the events underlying this litigation, or that the advice provided by Resnick concerned matters within the scope of Belardinelli's duties. Nor have Defendants demonstrated that Belardinelli had any common legal interest with the members of the CPC such as to support an assertion of the common interest privilege. There is no indication in the minutes of the meeting that Belardinelli was not present at the meeting when the redacted information was transmitted to the meeting attendees. As such, Defendants waived any assertion of attorney-client privilege by disclosing the information to a third party without a common legal interest.")

Case Date Jurisidction State Cite Checked
2014-02-19 Federal CA B 7/14

Chapter: 19.702

Case Name: United States v. Hassan-Gouda, Crim. A. No. 07-258 (JBS), 2013 U.S. Dist. LEXIS 39297, at *20-21, *21 (D.N.J. Mar. 21, 2013)
(holding that the presence of a third party destroyed privilege protection; "Sallam [employee of defendant] was not present for this meeting in a capacity that would preserve the privilege. He was not Gouda's agent, nor was he a co-defendant. Sallam testified that he was not participating in the meeting, he never went to Gindhart's office, and he was not helping Gindhart and Gouda identify people named by initials in Indictment. . . . Sallam also testified that he never believed that Gindhart was his attorney or that he himself was in trouble. . . . Gouda and Gindhart were aware of Sallam's presence: he was across the desk from Gouda and Gindhart and they were sitting with him in his office. . . . While Gouda had not asked Sallam to be present for the meeting, he also did not ask him to leave; Sallam left by himself, figuring it was none of his business. . . . Sallam was not present as Gouda's agent nor to assist Gouda in his meeting with Gindhart. He had no common interest with Gouda in the defense of the case."; "The Court therefore finds that, because a third party was present, Gouda waived the attorney-client privilege as to the communications that occurred between him and Gindhart while Sallam was present for that conversation.")

Case Date Jurisidction State Cite Checked
2013-03-21 Federal NJ B 3/14

Chapter: 19.702

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 *17-18 (N.D. Ill. Mar. 4, 2013)
("Octapharma was in the room during the Powerpoint presentation on February 18, 2010, as evidenced by PPTA's privilege log. The Powerpoint presentation took place after PPTA was informed that Octapharma did not have a common interest. Having an adverse party in the room during the presentation expressly disclaims any privilege, and also expressly negates confidentiality. The privilege was waived."; not explaining which Octapharma representative attended the meeting)

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

Chapter: 19.702

Case Name: United States v. Lentz, 419 F. Supp. 2d 820; 828 n.16 (E.D. Va. 2005)
("Nor is it persuasive to argue, as Lentz does, that Mr. Salvato told him that their conversations were privileged, because the monitoring and recording notice that preceded each of the calls destroyed any reasonable expectation of privilege. During the third call, Mr. Salvato stated to Lentz that 'this is a privileged call, but they're all recorded.' Mr. Salvato's suggestion that the attorney-client privilege would apply to a call that was being recorded by a third party is simply mistaken and cannot serve to rescue the waived privilege."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA N 12/08

Chapter: 19.702

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 827-28 (E.D. Va. 2005)
("These principles, applied here, compel the conclusion that an inmate's telephone conversations with counsel are not protected by the attorney-client privilege where, as here, the inmate is notified at the outset that the calls are recorded and subject to monitoring. In these circumstances, Lentz [defendant] could not reasonably have assumed that his conversations with Mr. Salvato [lawyer for defendant] would be confidential. His decision to proceed with the conversations, despite notification that the conversations were being recorded and were subject to monitoring, is no different from Lentz electing to proceed with these conversations notwithstanding the known presence of a third party within earshot of the conversation."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA N 12/08

Chapter: 19.703

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("As a general rule, the presence of third parties breaches the confidentiality of communications between an attorney and client and waives the privilege. However, '[t]he presence of a third-party, such as a consultant, does not destroy the attorney-client privilege where that party is the client's agent or possesses 'a commonality of interest with the client.' 'The presence of a third party in an e-mail transmission, for instance, will not destroy the attorney-client privilege if the third party is the attorney's or client's agent. . . .' Syngenta has presented Nadel's declaration stating that Syngenta engaged the VHB and URI employees as consultants 'to provide . . . scientific assistance sought by Syngenta's legal department regarding regulatory requirements.' The court has no reason to question this representation. The court finds Syngenta met its burden of demonstrating these particular third parties are Syngenta's agents for purposes of this litigation, and their presence on the e-mail communication did not destroy the attorney-client privilege applicable to PRIV003553.")

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

Chapter: 19.703

Case Name: Craft v. South Carolina State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017)
(finding that neither the privilege nor the work product protection covered communications in a town hall meeting open to the public; "Defendants served subpoenas on Plaintiffs' counsel's law firms, seeking production of documents and recordings related to town hall meetings Plaintiffs' counsel conducted in advance of the Sun City litigation."; "Plaintiffs' counsel assert that they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members in the related state-court litigation. However, Defendants have undercut that assertion by demonstrating that the meetings were open to the public and could be attended by non-clients. In order for the attorney-client privilege to apply, the communications must be confidential."; "Plaintiffs claim their attorneys created these presentations in anticipation of class litigation arising out of stucco defects in Sun City. Defendants argue that these presentations were nothing more than solicitation materials. Because the Court is not privy to the contents of the presentations, it is unable to determine whether Defendants' assertion is correct. Assuming, without deciding, that these presentations were subject to work--product protection, the Court concludes that any work-product protection was waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public. The public nature of those meetings, and the media attention paid to them, created a significant likelihood that Defendants might obtain the presentations, thereby waiving work-product protection. Moreover, the Defendants have informed the Court that they were permitted to send a court reporter to one of the meetings at which Plaintiffs' counsel made these presentations. Accordingly, the Court concludes that any work--product protection applicable to these presentations was waived by Plaintiffs' counsel.")

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

key case


Chapter: 19.703

Case Name: Doe v. Tippecanoe School Corp., Cause No.: 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)
(finding that the attorney-client privilege did not protect documents distributed at a meeting that as open to non-clients; "Defendants have not identified any deposition testimony indicating that the withheld pages are confidential. Defendants argue that deposition testimony shows that attendance at the meeting was limited to the attorney presenting the material, TSC's administrators, and possibly TSC teachers. The testimony, however, merely states that it was a 'teacher's meeting,'. . . 'administrative meeting in August where all of the administrators are there,'. . . or a mandatory 'administrate professional development,'. . . . The testimony is in conflict about who the intended audience was, and there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential.'"; "Two deponents recalled materials being distributed at the meeting. . . . Defendants have not identified deposition testimony labeling the presentation materials as confidential. The produced portion of the document at issue does not contain a confidentiality notice, and Defendants do not contend that there is such a notice in the withheld pages.")

Case Date Jurisidction State Cite Checked
2017-01-10 Federal ID
Comment:

key case


Chapter: 19.703

Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)
(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "'As Defendants suggest, the concept of waiver does not properly apply where the third party is present when the communication is made, i.e., privilege never attached in the first instance and waiver instead may apply where there is a subsequent disclosure to a third party. . . . Based on the record presented, the Court proceeds as if Martin [Plaintiff's friend and colleague with whom she resided] was present for the communications for which attorney-client protection is sought, and thus concludes that privilege never attached. However, for the same reasons discussed herein, the Court also concludes that waiver would apply and the communications still would not be privileged even if it were the case that the communications at issue were later disclosed to Martin.'")

Case Date Jurisidction State Cite Checked
2016-09-13 Federal NJ
Comment:

key case


Chapter: 19.703

Case Name: Montesa v. Schwartz, 12 Civ. 6057 (CS) (JCM), 2016 U.S. Dist. LEXIS 80822 (S.D.N.Y. June 20, 2016)
(finding that a litigant waived the work product protection by disclosing work product to a journalist; "Plaintiffs assert that the attorney-client privilege protects the communications regarding legal strategy at these meetings. . . . Plaintiffs do not contend that any attorneys were present at these meetings. Additionally, Plaintiffs cannot establish that all of the attendees at these meetings were Plaintiffs in this case, or even clients of AFJ. There is no list of attendees, and no assertion that anyone made any effort to deny entry to non-Plaintiffs, or even, potential adversaries. Based on Plaintiff Lahens' deposition testimony, the Court can be confident that Plaintiff Lahens and Plaintiff White were present at these meetings, but the rest of the attendees are unknown. Based on Plaintiff Lahens' testimony about the lack of measures taken to ensure that only Plaintiffs were present, anyone from the community could have attended this meeting, including members of the press, or even adversaries. Plaintiffs have not met their burden of establishing that these strategy discussions were 'intended to be, and in fact were, kept confidential.'")

Case Date Jurisidction State Cite Checked
2016-06-20 Federal NY

Chapter: 19.703

Case Name: Bauer v. County of Saginaw, Case No. 14-cv-11158, 2015 U.S. Dist. LEXIS 39098 (E.D. Mich. March 27, 2015)
("[B]oth McColgan and Mr. Boyd attended the meeting about the Borello Memo in their roles as prosecutor-elect and future chief assistant prosecutor to discuss a staffing and hiring issue that may arise when they took office. Accordingly, the presence of McColgan and Mr. Boyd did not waive the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-03-27 Federal MI

Chapter: 19.703

Case Name: Parker v. Carter, 18 Va. (4 Munf.) 273, 286 (1814)
("It is safer, and more conducive to that free intercourse which should exist between a client and his attorney, to consider all communications confidential, which fall within the description just mentioned: unless, indeed, the client should seem to vaunt his disclosures to the public, and, as it were, challenge the by-standers to hear them."; finding that the attorney-client privilege covered communications between a lawyer and a client despite the arguments that the conversation took place where others might have heard it)

Case Date Jurisidction State Cite Checked
1814-01-01 State VA

Chapter: 19.801

Case Name: McKinney/Pearl Restaurant Partners, L.P. v. Metropolitan Life Insurance Co., No. 3:14-cv-2498-B, 2016 U.S. Dist. LEXIS 68354 (N.D. Tex. May 25, 2016)
(finding that the minority owner of a limiited partnership was within privilege protection; "Plaintiff explains that Mr. Lieberman is a minority owner of Sambuca [Plaintiff]; that Sambuca's discussions with Mr. Lieberman were in his capacity as an owner of Sambuca; that Mr. Lieberman is also CEO of The Retail Connection, and certain of The Retail Connection employees were included on some of the communications as indicated in the Affidavit of Kim Forsythe; and that, to the extent these employees were included on privileged communications, they were acting at the direction of Mr. Lieberman as agents in his capacity as minority owner of Sambuca. Plaintiff asserts that, in his capacity as owner, Mr. Lieberman is entitled to attorney-client privilege, and his agents are entitled to the same."; "The Court determines that, through the Affidavit of Kim Forsythe . . .Plaintiff has sufficiently established that Mr. Lieberman and his employees were making or receiving the confidential communications at issue with Plaintiff's counsel while acting in the scope of employment with -- or, in this case, minority ownership of -- Plaintiff (or as agents of the minority owner) for the purpose of effectuating legal representation to Plaintiff. This conclusion is not undermined by Plaintiff also having retained The Retail Connection and Mr. Lieberman to negotiate on Plaintiff's behalf with Defendants. . . . Mr. Lieberman's serving as Plaintiff's agent in any negotiation does not preclude his making or receiving confidential communications while acting within the scope of his role as minority owner for the purpose of effectuating legal representation to Plaintiff, even in connection with the same negotiations.")

Case Date Jurisidction State Cite Checked
2016-05-25 Federal TX
Comment:

key case


Chapter: 19.802

Case Name: Yocabet v. UPMC Presbyterian and University of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)
(holding that the attorney-client privilege can protect communications during a meeting of an institution's governing board; "We first conclude that the attorney-client privilege can apply to a meeting of the governing board of an organization with its executive vice-president and that the attorney-client privilege potentially applies to the information requested in these interrogatories.").

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

Chapter: 19.802

Case Name: Yocabet v. UPMC Presbyterian and University of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)
(holding that the attorney-client privilege can protect communications during a meeting of an institution's governing board; "We reject the postulation that a corporate entity can obtain legal advice only when one of its high-ranking officials meets privately with counsel for advice on behalf of the corporation. . . . Thus, the board of directors of a corporation, in addition to tis officers, can act on its behalf for purposes of application of the attorney-client privilege.").

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

Chapter: 19.802

Case Name: Lewis v. Keen Transport, Inc., No. 09 C 3912, 2011 U.S. Dist. LEXIS 19787 (N.D. Ill. Feb. 28, 2011)
(implying that the presence of a non-control group employee during an otherwise privileged communication would abort privilege protection; "Defendants argue, however, that Keen contacted its attorney and that its attorney-client relationship should, somehow, extend to its employee, Craig [Defendant employee accused of negligence that resulted in a personal injury to plaintiff], and the statement. The only way that the attorney-client privilege could extend in such a situation would be, however, to apply what Illinois has termed the 'control group' test. This test provides that a corporation's attorney-client privilege covers its corporate representatives where there are discussions between an attorney and only members of the corporation's 'control group,' which are typically employees in top management positions. We must emphasize, however, that defendants have not argued the application of this test or cited to it in their brief."; "Even so, if we apply this 'control group' test here, the privilege can only extend if Craig communicated directly with counsel, Krkljes [Defense lawyer] (or directed the statement to him). The privilege applies only if 'the communication originated in a confidence that would not be disclosed, was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, and remained confidential.' The attorney-client privilege, then, would not extend even under this test.").

Case Date Jurisidction State Cite Checked
2011-02-28 Federal IL

Chapter: 19.802

Case Name: Rawat v. Navistar Int'l Corp., Case No. 08 C 4305, 2010 U.S. Dist. LEXIS 34868 (N.D. Ill. April 7, 2010)
(applying the Illinois control group standard rather than the Delaware privilege standard, and finding that a records manager was outside the control group; "[T]he Court can now focus on whether the privilege applies under the Restatement. Assuming that Delaware is the state with the most significant relationship with the communications, the Court finds that the attorney-client privilege does not apply. If Delaware is the state with the most significant relationship with the communications, § 139(2) of the Restatement governs. That section states that communications, although protected by Delaware law, 'will be admitted [if they are not privileged under Illinois law,] unless there is some special reason why [Illinois] policy favoring admission should not be given effect.' Restatement (Second) of Conflict of Laws § 139(2) (emphasis added). Thus, the relevant questions are twofold: Would, under Illinois law, the communications be privileged? Second, if the answer is 'yes,' has the party asserting the privilege shown any 'special reason' for non-disclosure?"; "Unless Navistar can show a 'special reason' for non-disclosure, the law compels disclosure. Allianz, 869 N.E. 2d at 1058; Restatement (Second) of Conflict of Laws § 139(2). Here, Navistar has not offered any 'special reason' or even examined the factors necessary for determining whether such a reason exists. As a result, the Court finds that Navistar has failed to show a special reason exists and, therefore, under § 139(b), the communications involving Kuppler are not privileged and should be disclosed.")

Case Date Jurisidction State Cite Checked
2010-04-07 Federal IL

Chapter: 19.802

Case Name: Resurrection Healthcare v. GE Health Care, No. 07 C 5980, 2009 U.S. Dist. LEXIS 20562, at *7-8, *9, *9-10, *9 n.4, *10-11 (N.D. Ill. Mar. 16, 2009)
(applying the Illinois control group standard, and analyzing several employees' status -- ultimately concluding that some of the employees met the standard and some did not; generally describing the Illinois control group standard; "In the corporate context, Illinois applies the 'control group' test to determine whether communications by corporate representatives are cloaked with the privilege. Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 432 N.E. 2d 250, 258, 59 Ill. Dec. 666 (Ill. 1982). Under this test, a communication is not privileged unless it is made by a member of the control group, which includes top management as well as 'an employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority.' Id. (holding further that 'the individuals upon whom [a member of the control group] may rely for supplying information are not members of the control group'); see Equity Residential v. Kendall Risk Mgmt., Inc., 246 F.R.D. 557, 563 (N.D. Ill. 2007)."; analyzing several employees' status; "French is a GE Biomedical Environmental Technician; Christensen is a Program Coordinator; Stegner is a GE Biomedical Engineering Technician; and Moreland is GE Director of Service, Clinical Services. French and Stegner are responsible for preventative and corrective maintenance on medical equipment; Christensen oversees GEHC's bio-medical service department and is also responsible for preventive and corrective maintenance; and Moreland oversees the management of all GEHC bio-medical service contracts."; "In this case, GEHC has not established that French, Stegner, Christiansen, or Moreland are members of the corporate control group. GEHC has not offered evidence that those individuals are typically involved in decisionmaking at the highest levels. Furthermore, despite GEHC's claim that these individuals 'served in an advisory role' by 'provid[ing] information and recommendations' to counsel . . . the documents reveal that they provided only factual information, not opinions or recommendations. See Consolidation Coal, 432 N.E.2d at 259 (finding that an employee whose 'role was one of supplying the factual bases upon which were predicated the opinions and recommendations of those who advised the decisionmakers' was not a member of the control group). Therefore, their communications are not cloaked with the attorney-client privilege under Illinois law." (footnote omitted); "GEHC states that Moreland provides advice and recommendations to GEHC counsel regarding potential safety and chemical hazards. It is not clear from this description whether Moreland's advisory role 'is such that a decision would not normally be made without his advice or opinion.' Consolidation Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 432 N.E. 2d 250, 258, 59 Ill. Dec. 666 (Ill. 1982). But even if Moreland were a member of the control group, Christensen's presence at his interview would vitiate the privilege. See Sterling Fin. Mgmt., L.P. v. UBS PaineWebber, Inc., 336 Ill. App. 3d 442, 782 N.E. 2d 895, 905, 270 Ill. Dec. 336 (Ill. App. Ct. 2002) ('Distribution of otherwise privileged materials to individuals outside the corporation's control group destroys the privilege.')."; "GEHC has established that Richard DeLuca and James Keith are members of the control group. However, Document 2, which is characterized as DeLuca's and Keith's 'summaries' of interviews of non-control group members, does not reflect any communications made by the control group members. An in camera review of the documents reveals that they are essentially verbatim transcripts of the interviews. Because the only communications in these documents were made by non-control group members, the documents are not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2009-03-16 Federal IL

Chapter: 19.803

Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "Defendants are directed to promulgate a revised privilege log, which, considering the recent waiver, must include all individuals who had access to the documents and when that access was provided. . . . the Court directs Defendants to identify where each of the documents were kept and who had access to that location. For the sake of clarity, the revised privilege log must outline for each document and handwritten note: (1) the date of creation; (2) the identity of each person who created and received the document, including those copied on it, and the title of each individual; (3) a more elaborate description, without revealing the substance of the communications, as to the basis of the privilege(s); (4) the subject matter of the document; (5) the privilege(s) being asserted; (6) where the document was kept; and (7) each person who has been given access to each of the document's locations and the date that access was provided.")

Case Date Jurisidction State Cite Checked
2017-03-09 Federal NY
Comment:

key case


Chapter: 19.803

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."; "It is a communication between two intermediaries, who, by title, seem necessary to discuss and 'need to know' the legal advice given by Nuns Moodliar [Lawyer] earlier in the email chain. The document also seems to have been treated as confidential as the subject states: 'Confidential: RE: FW: CPCC/US CLASS ACTION/Confidential.")

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

Chapter: 19.803

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; "Although the document is labeled 'CPCC/US CLASS ACTION/Confidential,' and although it is responding to Nuns Moodliar, an attorney, the email is written to 7 additional recipients and carbon copied to 4 more, for a total of 11 email recipients separate and apart from the attorney (Moodliar) and client (Quinquenel), neither of which, it should be noted, are employed by Defendant in this case. The document is not privileged because Defendant has not established that all of the individuals that are included on this email are necessary intermediaries or that they 'need to know' the legal communication made. The attorney-client privilege is meant to be an intimate relationship. Sending an email to 11 people, not one of whom is employed by the Defendant in this case, suggests lack of privilege and/or waiver.")

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

key case


Chapter: 19.803

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; "It is clear that there is no privilege if the communication includes lower-level employees that are not vital to the provision of legal advice. . . . the privilege protects communications with those that must be consulted in order for a lawyer to provide legal advice -- i.e., those that 'need to know' or have information necessary to assist the lawyer in providing legal advice.")

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

key case


Chapter: 19.803

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 privilege log refers to this document as an email forwarding legal advice. However, the actual document contains little to no substance. Nor has Defendant established that it is to or from an attorney. Nor are any of the recipients employees of the sole Defendant in this case. Nor has Defendant established that all individuals copied are necessary intermediaries such that they fall within the small group in the company that 'needs to know' of an attorney's legal advice. Defendant has not carried its burden to show that this document is privileged.")

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

key case


Chapter: 19.803

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

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

key case


Chapter: 19.803

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

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

key case


Chapter: 19.803

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

Case Date Jurisidction State Cite Checked
2016-11-04 Federal PA
Comment:

key case


Chapter: 19.803

Case Name: Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042 (N.D. Cal. Jan. 21, 2015)
(finding that defendant Hulu did not waive its privilege by allowing employees not involved in the pertinent situation access to privileged documents; "Communications within a corporation are often distributed in ways that draw additional rules from the privilege doctrine. The plaintiffs rightly note that a 'need to know' standard generally governs whether the privilege shields communications that are disseminated to corporate employees. E.g., Scholtisek v. Eldre Corp., 441 F. Supp. 2d 459, 463-64 (W.D.N.Y. 2006). The test is straightforward: '[D]id the recipient need to know the content of the communication in order to perform her job effectively or to make informed decisions concerning, or affected by, the subject matter of the communication?' Id. (citing cases). 'Only when the communications are relayed to those who do not need the information to carry out their work or make effective decisions on the part of the company is the privilege lost.'"; "In neither case was the contested information disseminated too widely to maintain confidentiality. The JIRA system is not public. Only Hulu employees may access it. Both tickets, moreover, involved only those employees who were working on the given issues and who, again, sought or discussed the legal advice they needed to effectively address the problems before them. Confidentiality is not destroyed by the possibility that other Hulu employees, not directly participating in the 4328 and 1130 tickets, could have accessed those documents over the JIRA system. James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 142 (D. Del. 1982) ('[T]hat some unauthorized personnel may purposely or inadvertently read a privileged document does not render that document nonconfidential.'). Material need not be 'kept under lock and key to remain confidential' for purposes of the attorney-client privilege. See Dish Network, 283 F.R.D. at 425 [United States v. Dish Network, L.L.C., 283 F.R.D. 420, 423 (C.D. Ill. 2012)]. 'The privileged communications were properly limited to employees who reasonably needed the information to perform their duties for the corporation.' Id. The material was kept sufficiently confidential and is privileged.")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal CA
Comment:

key case


Chapter: 19.803

Case Name: Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042 (N.D. Cal. Jan. 21, 2015)
(finding that defendant Hulu did not waive its privilege by allowing employees not involved in the pertinent situation access to privileged documents; "[I]t seems implicit in their arguments that any Hulu employee authorized to access JIRA can, by purposeful or inadvertent search, find a given ticket and see the communications and activity that it contains. Tickets, in other words, are not wholly restricted to their direct participants. Only Hulu employees, however, can access JIRA.")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal CA
Comment:

key case


Chapter: 19.803

Case Name: Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042 (N.D. Cal. Jan. 21, 2015)
(finding that defendant Hulu did not waive its privilege by allowing employees not involved in the pertinent situation access to privileged documents; "The plaintiffs argue (in sum) that confidentiality was destroyed by the fact that the JIRA system is generally accessible to Hulu employees beyond those immediately participating in the 4328 and 1130 tickets.")

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

Chapter: 19.803

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 Court finds that the privilege attaching to these documents has not been waived. The presence of a third party does not waive the attorney-client privilege if that presence is 'essential to and in furtherance of the communication.'. . . To the extent that these documents were shared within the corporate family, such as those sent to or from VE [parent corporation], such involvement was essential to and in furtherance of the communications with the attorneys involved.")

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

Chapter: 19.803

Case Name: Hill v. State St. Corp., Master Dkt. No. 09-12146-GAO, Civ. A. No. 09-10750-DJC, 2013 U.S. Dist. LEXIS 181168, at *18, *24-25 (D. Mass. Dec. 30, 2013)
("The first relates to third parties who are employed to assist a lawyer in rendering legal advice. . . . To come within this exception, three elements must be satisfied: (1) 'the third-party communications must be necessary, or at least highly useful, for the effective consultation between the client and the lawyers which the privilege is designed to permit[,]' (2) the third-party must play 'an interpretive role. In other words, the third party's communication must serve to translate information between the client and the attorney[,]' and (3) 'the third party's communication must be made for the purpose of rendering legal advice, rather than business advice.'"; "The plaintiffs argue that the presence of Watson Wyatt [consultant] for the portion of the meeting at issue waives the attorney-client privilege. This court agrees. There is nothing in the paragraphs at issue which indicate that Watson Wyatt's presence was needed to assist in the provision of legal advice. Moreover, even if Watson Wyatt is considered to be an employee, there is no explanation of why it would need to know the information at issue. Assuming, arguendo, that the redacted information qualifies as privileged communications, the dissemination to Watson Wyatt was beyond the 'need to know' circle, and its presence defeats the privilege.")

Case Date Jurisidction State Cite Checked
2013-12-30 Federal MA B 5/14

Chapter: 19.803

Case Name: Glenwood Halsted LLC v. Vill. of Glenwood, No. 11 CV 6772, 2013 U.S. Dist. LEXIS 4471, at *8 (N.D. Ill. Jan. 11, 2013
(holding that a municipality lost its privilege by including in otherwise privileged communications a municipal employee who was not necessary for the privileged communications; "Plaintiff argues that the attorney-client privilege is not available because Mr. Tunelius, the Village Engineer, was a third-party recipient of the e-mail, and there is no indication that his presence helped facilitate legal advice from counsel to client. Moreover, Plaintiff argues that, during the timing of the e-mail, the Village was beginning to pursue eminent domain of the Shopping Center and it is unlikely an engineer assisted in the provision of legal advice on that subject. . . . The Court agrees and finds that Defendants have not met their burden of proving this email protected by the attorney-client privilege, especially in light of its third-party disclosure to the Village Engineer, who would have not been able to render any legal advice on the prospective tenancy of the Shopping Center nor the process of eminent domain proceedings.")

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

Chapter: 19.803

Case Name: Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 547, 555, 556, 557 (S.D.N.Y. 2013)
(in an opinion by Magistrate Judge James Francis, holding that an employment database deserved privilege but not work product protection; "The plaintiffs are entitled, for example, to test whether managers have access to the CRS database, and specifically to the Diversity Objects fields, a fact that could militate in favor of finding that these fields are maintained for business purposes and would not be privileged. But until such evidence comes to light, the privilege must be respected."; "[T]he claim that the plaintiffs advance under the NYCHRL [New York City Human Rights Law] simply does not allow for a good faith defense. They assert that Goldman Sachs has systematically discriminated against its female employees in compensation and promotion based on their gender. Thus, the illegal conduct alleged is that of its management personnel."; "In this case, the discrimination alleged is that of managerial personnel, and the knowledge or good faith of Goldman Sachs is not at issue.")

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

Chapter: 19.803

Case Name: Hedden v. Kean Univ., 82 A.3d 238, 249 (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; finding that a university employee's draft letter deserved privileged protection, implicitly rejecting the dissenting judge's contention that the coach's act of copying a supervisor meant the privilege was unavailable; "It does not expressly seek legal advice and nothing in the simply and briefly worded message can be reasonably interpreted, in my view, as doing so. Moreover, Sharp's [Coach] act of copying Connelly [defendant], who was not a member of the University's legal department, is an indication that she did not intend that her communication with Tripodi [University's lawyer] would be confidential. There is no support in the record for the conclusion that either party had a reasonable expectation that the email would remain confidential.")

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

Chapter: 19.803

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

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

Chapter: 19.803

Case Name: Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 696 n.6 (E.D. Va. 1987)
(noting that, because of the "failure to indicate on the face of the memorandum that the document was confidential or contained attorney-client privileged information, coupled with the fact that the memorandum was distributed to six (6) employees, this court has serious doubts as to whether [the party] has met its burden of demonstrating that the document was intended to be confidential")

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

Chapter: 19.804

Case Name: Miller v. Zara USA, Inc., 4187N, 155512/15, 2017 N.Y. App. Div. LEXIS 4327, 2017 NY Slip Op 04407 (N.Y. Sup. Ct. App. June 6, 2017)
(in finding that the privilege did not protect a former general counsel's laptop from the company's review; "Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff's laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any 'actual disclosure to a third party, [plaintiff's] use of [Zara's computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections' (Peerenboom, 148 AD3d at 532).")

Case Date Jurisidction State Cite Checked
2017-06-06 Federal NY

Chapter: 19.804

Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "Defendants are directed to promulgate a revised privilege log, which, considering the recent waiver, must include all individuals who had access to the documents and when that access was provided. . . . the Court directs Defendants to identify where each of the documents were kept and who had access to that location. For the sake of clarity, the revised privilege log must outline for each document and handwritten note: (1) the date of creation; (2) the identity of each person who created and received the document, including those copied on it, and the title of each individual; (3) a more elaborate description, without revealing the substance of the communications, as to the basis of the privilege(s); (4) the subject matter of the document; (5) the privilege(s) being asserted; (6) where the document was kept; and (7) each person who has been given access to each of the document's locations and the date that access was provided.")

Case Date Jurisidction State Cite Checked
2017-03-09 Federal NY
Comment:

key case


Chapter: 19.804

Case Name: Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2016 N.Y. Misc. LEXIS 3765 (N.Y. Sup. Ct. Sept. 30, 2016)
(in a defamation action by a condo resident against neighbor and Marvel Entertainment CEO, holding that defendant had waived his privilege protection by using the company's server; explaining the context: "Peerenboom [Plaintiff] opposes the motions, contending that Perlmutter waived all privileges, inasmuch as Perlmutter [the neighbor and Marvel Entertainment CEO] sent or received the subject e-mail messages on Marvel's server, and Marvel's written computer usage handbook, as drafted by its corporate parent, the Walt Disney Company (Disney), provides that 'hardware, software, e-mail, voicemail, intranet and Internet access, computer files and programs -- including any information you create, send, receive, download or store on Company assets -- are Company property, and [it] reserve[s] the right to monitor their use, where permitted by law to do so."; "The court agrees with Peerenboom that use of a proprietary e-mail system, subject to an employer's computer usage policy such as the one adopted by Marvel, constitutes a waiver of any privilege that can otherwise be unilaterally asserted by a declarant or the intended audience of an otherwise confidential communication. The use of one's own personal home computer to communicate with an attorney on a private, unencrypted e-mail account does not vitiate the attorney-client privilege or the work-product privilege, inasmuch the client may reasonably maintain an expectation that the communications are private and confidential."; explaining Marvel corporate parent Disney's personnel policy ; "Disney's computer usage policy prohibits personal and other objectionable use of Marvel's server and e-mail system, Disney/Marvel had the right to monitor the use of all employees' computer usage, third parties have a right of access to the computer, Disney/Marvel expressly asserted a possessory interest in all e-mails sent and received on its servers, and Perlmutter was or should have been aware, as Marvel's Chairman or CEO, that Marvel implemented Disney's use and monitoring policies. Consequently, under the circumstances of this case, application of the factors articulated in Asia Global warrants a finding that Perlmutter did not have a reasonable expectation of privacy in connection with electronic messages sent and received on Marvel's server, and has waived the attorney-client and work-product privileges in connection with them."; not addressing the different waiver rules for work product, although finding waiver of work product protection)

Case Date Jurisidction State Cite Checked
2016-09-30 State NY

Chapter: 19.804

Case Name: Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2016 N.Y. Misc. LEXIS 3765 (N.Y. Sup. Ct. Sept. 30, 2016)
(in a defamation action by condo resident against neighbor and Marvel Entertainment CEO, holding that defendant had waived his privilege protection by using the company's server; "Peerenboom [Plaintiff] opposes the motions, contending that Perlmutter waived all privileges, inasmuch as Perlmutter [the neighbor and Marvel Entertainment CEO] sent or received the subject e-mail messages on Marvel's server, and Marvel's written computer usage handbook, as drafted by its corporate parent, the Walt Disney Company (Disney), provides that 'hardware, software, e-mail, voicemail, intranet and Internet access, computer files and programs -- including any information you create, send, receive, download or store on Company assets -- are Company property, and [it] reserve[s] the right to monitor their use, where permitted by law to do so."; "The court agrees with Peerenboom that use of a proprietary e-mail system, subject to an employer's computer usage policy such as the one adopted by Marvel, constitutes a waiver of any privilege that can otherwise be unilaterally asserted by a declarant or the intended audience of an otherwise confidential communication. The use of one's own personal home computer to communicate with an attorney on a private, unencrypted e-mail account does not vitiate the attorney-client privilege or the work-product privilege, inasmuch the client may reasonably maintain an expectation that the communications are private and confidential."; explaining Marvel corporate parent Disney's personnel policy ; "Disney's computer usage policy prohibits personal and other objectionable use of Marvel's server and e-mail system, Disney/Marvel had the right to monitor the use of all employees' computer usage, third parties have a right of access to the computer, Disney/Marvel expressly asserted a possessory interest in all e-mails sent and received on its servers, and Perlmutter was or should have been aware, as Marvel's Chairman or CEO, that Marvel implemented Disney's use and monitoring policies. Consequently, under the circumstances of this case, application of the factors articulated in Asia Global warrants a finding that Perlmutter did not have a reasonable expectation of privacy in connection with electronic messages sent and received on Marvel's server, and has waived the attorney-client and work-product privileges in connection with them."; holding that the marital privilege applied and could not be unilaterally waived by the Marvel CEO without his wife's consent – but noting that closure with the consent of both spouses to a lawyer would have waived the marital privilege; "The proper application of CPLR 4502(b) thus requires the conclusion not only that Perlmutter cannot be compelled to testify against Laura in the Florida defamation action but cannot, without her consent, waive her marital privilege by sharing their confidential communications with third parties. Moreover, while the privilege is vitiated where spousal communications are knowingly made in the presence of third parties (see People v Scalise, 70 AD2d 346, 348, 421 N.Y.S.2d 637 [3rd Dept 1979]), research reveals no case in which the privilege was vitiated where one spouse was unaware that third parties had knowledge of or access to the particular communication."; "Since there is no reason to believe that Laura consented to Perlmutter's waiver of the marital privilege in connection with several enumerated communications, the court concludes that all electronic communications between Perlmutter and Laura on the Marvel server that are confidential in nature are protected by the marital privilege, unless knowingly shared with third parties, including attorneys, inasmuch as any attorney-client privilege has been waived. Conversely, all electronic communications between Perlmutter and Laura on the Marvel server that are not confidential in nature, and have been requested in this litigation, must be turned over to Peerenboom."; not addressing the different waiver rules for work product, although finding waiver of work product protection)

Case Date Jurisidction State Cite Checked
2016-09-30 Federal NY
Comment:

key case


Chapter: 19.804

Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114 (E.D.N.Y. Sept. 18, 2015)
(finding that a Town could not assert privilege for documents to which Town employees without a "need to know" and members of the public had access; holding that the Town had the duty to show that no one actually accessed the documents, and had fallen short of that burden; "One of the underlying issues here pertains to changes made to the certificate of occupancy ('C/O') for the property. Norton argues that the privilege was waived because the Memos were made accessible to Town employees who did not need to know the privileged contents regarding those changes, i.e., the autoworker in the Verschoth [Verschoth v. Time Warner, Inc., No. 00CIV1339, 2001 U.S. Dist. LEXIS 3174, 2001 WL 286763, at *2 (S.D.N.Y. Mar. 22, 2001)] example. Defendants argue without elaboration that 'Building Department or other property-related officials' have a need to know and thus may view privileged communications between the Town Attorney's Office and the Building Department without waiving the privilege, i.e, the engineer in the Verschoth example."; "Applying the standards above, Defendants have failed to carry their burden of establishing that the privileges have not been waived. All of the Memos were contained in the Building Department file and were apparently accessible by all Town employees within that department. . . . (if non-Building Division Town personnel wish to review a document, unspecified 'Building Division staff retrieve the document and provide a copy'). Defendants have presented no reason, however, why all or even most Building Department personnel have a need to know confidential legal communications in order to perform their jobs. As Defendants have failed to carry their burden, the Court finds that they have waived attorney-client privilege as to the Memos."; "The Memos were found in the paper files and Defendants have provided no evidence to counter the plain suggestion that the Memos resided in the paper files for some indeterminate time period for anyone in the public to see, if they asked for the file. Further and conspicuously absent from Defendants' submissions is any argument, let alone supporting evidence such as log books, that the paper files at issue were never checked out by a member of the public. Absent this type of evidence, Defendants have failed to meet their burden of establishing a lack of public access and the Court concludes that they have waived both work product and attorney-client privileges.").

Case Date Jurisidction State Cite Checked
2015-09-18 Federal NY
Comment:

key case


Chapter: 19.804

Case Name: HunterHeart Inc. v. Bio-Reference Laboratories, Inc., Case No. 5:14-cv-04078-LHK, 2015 U.S. Dist. LEXIS 123921, at *2 (N.D. Cal. Sept. 16, 2015)
November 4, 2015 (PRIVILEGE POINT)

"Another Court Deals with Privileged Communications' Ownership after a Corporate Transaction"

Most if not all courts recognize that selling a corporation's stock transfers ownership of the corporation's privileged communications. These can include even communications about the sale transaction. Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 80 A.3d 155 (Del. Ch. 2013). Asset sales present a more subtle analysis.

In HunterHeart Inc. v. Bio-Reference Laboratories, Inc., Case No. 5:14-cv-04078-LHK, 2015 U.S. Dist. LEXIS 123921, at *2 (N.D. Cal. Sept. 16, 2015), Hunter Laboratories sold "the bulk of its assets" to defendant. The asset purchase agreement explicitly identified the transferred assets as including Hunter's "computer equipment," software, e-mail addresses and "other records, data and communications . . . In the cloud." Id. (internal citation omitted). Hunter's owner used the company email system both before and after the asset sale. Hunter's remaining business (now called HunterHeart) later sued defendant, and sought a protective order preventing defendant from using privileged communications on the servers and other systems the defendant had purchased. The court denied the protective order, finding that as for the pre-transaction privileged communications: (1) Hunter waived its privilege "when it agreed to hand over all of its servers, files and communications"; and, if not, (2) the "[privilege] passed from Hunter to [Defendant] by virtue of the [asset purchase agreement]'s transfer of the other company assets." Id. At *5, *6. The court then held that post-transaction communications never deserved privilege protection, because Hunter's owner who continued to use the email system "could not have expected these emails to remain confidential." Id . At *7.

Many lawyers remember from law school that selling a company's stock transfers the privilege, but selling its assets does not. Courts increasingly apply what is called the "practical consequences test" when analyzing privilege ownership, under which selling assets can also convey privileged communications.

Case Date Jurisidction State Cite Checked
2015-09-16 Federal CA
Comment:

key case


Chapter: 19.804

Case Name: Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042, at *7 (N.D. Cal. Jan. 21, 2015)
March 11, 2015 (PRIVILEGE POINT)

"Court Concludes That Access to Privileged Document by Employees Without a "Need to Know" Does Not Destroy Privilege Protection"

Many courts hold that corporations might waive their privilege protection through purely internal circulation of privileged communications — beyond those employees with a "need to know." This does not make much sense, because it hands over to corporations' external adversaries internal corporate communications disclosed only to employees with a fiduciary, contractual, or other duty to keep them confidential.

Although a few courts have extended this troublesome approach to situations in which other employees merely had access to privileged communications, other courts have drawn the line. In Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042, at *7 (N.D. Cal. Jan. 21, 2015), the court rejected plaintiffs' argument "that confidentiality was destroyed by the fact that [privileged communications are] generally accessible to Hulu employees beyond those immediately participating" in the pertinent legal issue. The court noted that the privileged communications were "not public" and that "[o]nly Hulu employees may access" them. Id. at *10. The court ultimately concluded that "[c]onfidentiality is not destroyed by the possibility of other Hulu employees, not directly participating in the [issue], could have accessed" the privileged documents — quoting an earlier Central District of Illinois decision explaining that "[m]aterial need not be 'kept under lock and key to remain confidential' for purposes of the attorney-client privilege" (quoting United States v. Dish Network, L.L.C., 283 F.R.D. 420, 425 (C.D. Ill. 2012)). Id. at *10-11.

It is refreshing to see some courts' common-sense approach, but corporations should still take reasonable steps to limit privileged communications' internal circulation to employees with a "need to know" in order to perform their duties.

Case Date Jurisidction State Cite Checked
2015-01-21 Federal CA
Comment:

key case


Chapter: 19.804

Case Name: Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042 (N.D. Cal. Jan. 21, 2015)
(finding that defendant Hulu did not waive its privilege by allowing employees not involved in the pertinent situation access to privileged documents; "Communications within a corporation are often distributed in ways that draw additional rules from the privilege doctrine. The plaintiffs rightly note that a 'need to know' standard generally governs whether the privilege shields communications that are disseminated to corporate employees. E.g., Scholtisek v. Eldre Corp., 441 F. Supp. 2d 459, 463-64 (W.D.N.Y. 2006). The test is straightforward: '[D]id the recipient need to know the content of the communication in order to perform her job effectively or to make informed decisions concerning, or affected by, the subject matter of the communication?' Id. (citing cases). 'Only when the communications are relayed to those who do not need the information to carry out their work or make effective decisions on the part of the company is the privilege lost.'"; "In neither case was the contested information disseminated too widely to maintain confidentiality. The JIRA system is not public. Only Hulu employees may access it. Both tickets, moreover, involved only those employees who were working on the given issues and who, again, sought or discussed the legal advice they needed to effectively address the problems before them. Confidentiality is not destroyed by the possibility that other Hulu employees, not directly participating in the 4328 and 1130 tickets, could have accessed those documents over the JIRA system. James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 142 (D. Del. 1982) ('[T]hat some unauthorized personnel may purposely or inadvertently read a privileged document does not render that document nonconfidential.'). Material need not be 'kept under lock and key to remain confidential' for purposes of the attorney-client privilege. See Dish Network, 283 F.R.D. at 425 [United States v. Dish Network, L.L.C., 283 F.R.D. 420, 423 (C.D. Ill. 2012)]. 'The privileged communications were properly limited to employees who reasonably needed the information to perform their duties for the corporation.' Id. The material was kept sufficiently confidential and is privileged.")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal CA
Comment:

key case


Chapter: 19.804

Case Name: Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042 (N.D. Cal. Jan. 21, 2015)
(finding that defendant Hulu did not waive its privilege by allowing employees not involved in the pertinent situation access to privileged documents; "[I]t seems implicit in their arguments that any Hulu employee authorized to access JIRA can, by purposeful or inadvertent search, find a given ticket and see the communications and activity that it contains. Tickets, in other words, are not wholly restricted to their direct participants. Only Hulu employees, however, can access JIRA.")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal CA
Comment:

key case


Chapter: 19.804

Case Name: Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042 (N.D. Cal. Jan. 21, 2015)
(finding that defendant Hulu did not waive its privilege by allowing employees not involved in the pertinent situation access to privileged documents; "The plaintiffs argue (in sum) that confidentiality was destroyed by the fact that the JIRA system is generally accessible to Hulu employees beyond those immediately participating in the 4328 and 1130 tickets.")

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

Chapter: 19.804

Case Name: Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950 (AT) (JCF), 2013 U.S. Dist. LEXIS 85630 (S.D.N.Y. June 18, 2013)
September 11, 2013 (PRIVILEGE POINT)

"A Southern District of New York Judge Mentions the Danger of Granting Widespread "Access" to Privileged Communications in a Corporate Setting"

Corporations face several risks to their privilege protection if employees widely circulate privileged communications, even within the corporation. As noted in earlier Privilege Points, most courts require corporations to prove that every recipient of such a privileged communication has a "need to know." And, in a troublesome doctrine highlighted in the Vioxx MDL litigation, some courts point to widespread intra-corporate distribution as demonstrating such communications' primarily business rather than legal nature.

In Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950 (AT) (JCF), 2013 U.S. Dist. LEXIS 85630 (S.D.N.Y. June 18, 2013), Judge James Francis held that an employment database prepared by defendant Goldman Sachs generally deserved privilege protection because Goldman Sachs' lawyers used the database to give legal advice. However, he also acknowledged that plaintiffs were entitled "to test whether managers have access" to portions of the database – describing such access as "a fact that could militate in favor of finding that these fields are maintained for business purposes and would not be privileged." Id. At *18.

Such managers presumably have a "need to know" legal advice about employment issues. Thus, it is worrisome that a court would consider such managers' "access to" (not just use of) such a database to support the opposing party's argument that the database served primarily a business rather than a legal purpose.

Case Date Jurisidction State Cite Checked
2013-06-18 Federal NY
Comment:

key case


Chapter: 19.804

Case Name: Riveiro-Calder v. Cooperativa De Ahorro Y Credito De Aguadilla, Civ. 11-1702CCC, 2013 U.S. Dist. LEXIS 17697, at *9-10, *11, *13 (D.P.R. Feb. 8, 2013)
(inexplicably holding that a company had lost its privilege when an employee removed a fax from a machine in his area of the company, which was a communication between the company and the company's lawyer about overcoming the magistrate judge's conclusion that the plaintiff's removal of the fax did not destroy the company's privilege; "Sloppy or inattentive work by an attorney resulting in a mistaken disclosure will result in forfeiture of the privilege. . . . It is a general principle that the carelessness or negligence of an attorney is imputable to the client under the agency theory."; "It is important to note that the employees identified by her as users of the fax machine worked under the supervision of plaintiff Riveiro since it has not been disputed that Mr. Riveiro was Information Systems Manager at the Cooperativa during the relevant time period. As can be inferred from the Executive Secretary's declaration, these employees had unrestricted access to the fax machine which was next to her desk. It is irrelevant if the person who left the attorney's letter at plaintiff's desk was an intern or an employee under plaintiff's supervision. The fact remains that the privileged communication went from the fax machine to his desk, and that there is no evidence that plaintiff invaded any private space to obtain it. It is undisputed that attorney López-López faxed that letter on February 14, 2011 to the only fax machine identified by defendant's own declarants to which the Information Systems employees had ready access."; "The defendant is the holder of the privilege and is also the one that knows the physical surroundings and the risks of unintentional or mistaken disclosure by receiving sensitive privileged information about the discharge of one of its employees by means of a fax machine which is available to many, not just the President, the Executive Secretary, and their inner circle. It was incumbent upon him to warn the attorney in this particular instance instead of relying on so called instructions given in the past as to the use of the mails.")

Case Date Jurisidction State Cite Checked
2013-02-08 Federal PR B 2/14

Chapter: 19.804

Case Name: Chambers v. Gold Medal Bakery, Inc., 983 N.E.2d 683, 692 n.28 (Mass. 2013)
(holding that directors whose interests are adverse to the corporation's interest cannot rely on their role as shareholders or on the Garner (Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970)) doctrine to obtain privileged corporate documents; "We reject the defendants' premise that the issue raised here is whether the plaintiffs have the power, not to mention the votes, to waive the attorney-client privilege on Gold Medal's behalf. . . . The attorney-client privilege is not 'waived' when a person within the group entitled to information simply accesses it.")

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

Chapter: 19.804

Case Name: United States v. Dish Network, L.L.C., 283 F.R.D. 420, 425 (C.D. Ill. 2012)
March 11, 2015 (PRIVILEGE POINT)

"Court Concludes That Access to Privileged Document by Employees Without a "Need to Know" Does Not Destroy Privilege Protection"

Many courts hold that corporations might waive their privilege protection through purely internal circulation of privileged communications — beyond those employees with a "need to know." This does not make much sense, because it hands over to corporations' external adversaries internal corporate communications disclosed only to employees with a fiduciary, contractual, or other duty to keep them confidential.

Although a few courts have extended this troublesome approach to situations in which other employees merely had access to privileged communications, other courts have drawn the line. In Garvey v. Hulu, LLC, Case No. 11-cv-03764-LB, 2015 U.S. Dist. LEXIS 7042, at *7 (N.D. Cal. Jan. 21, 2015), the court rejected plaintiffs' argument "that confidentiality was destroyed by the fact that [privileged communications are] generally accessible to Hulu employees beyond those immediately participating" in the pertinent legal issue. The court noted that the privileged communications were "not public" and that "[o]nly Hulu employees may access" them. Id. at *10. The court ultimately concluded that "[c]onfidentiality is not destroyed by the possibility of other Hulu employees, not directly participating in the [issue], could have accessed" the privileged documents — quoting an earlier Central District of Illinois decision explaining that "[m]aterial need not be 'kept under lock and key to remain confidential' for purposes of the attorney-client privilege" (quoting United States v. Dish Network, L.L.C., 283 F.R.D. 420, 425 (C.D. Ill. 2012)). Id. at *10-11.

It is refreshing to see some courts' common-sense approach, but corporations should still take reasonable steps to limit privileged communications' internal circulation to employees with a "need to know" in order to perform their duties.

Case Date Jurisidction State Cite Checked
2012-01-01 Federal IL
Comment:

key case


Chapter: 19.804

Case Name: Flynn v. Univ. Hosp., Inc., 876 N.E.2d 1300, 1303 (Ohio Ct. App. 2007)
("Generally, the privilege covers incident reports prepared for the risk-management department of a hospital."; "[T]he report was not part of the medical records [and] it was not otherwise available 'to persons outside of the attorney-client relationship and/or quality assurance function.'")

Case Date Jurisidction State Cite Checked
2007-01-01 State OH B 9/13

Chapter: 19.804

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267-68 (E.D. Va. 2006)
("The alleged faxing of the letter to Council Member Randall, however, does not take away from the City's position. Where fax and email communications are certainly entitled to privilege, see State of Virginia ex rel. U.S. Fidelity and Guaranty Co. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (W.Va. 1997), the fact that Randall's husband and child had access to her fax machine shows that third parties could potentially intercept such communications when they are not sent to a properly monitored machine. Because there is conflicting evidence over whether this letter was faxed, however, and in light of the other factors discussed above, the Court need not make a finding on this issue to hold that the privilege does not apply to the letter.")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 19.804

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)
("From the outside, this letter looked like and was handled like any other mail that would be delivered, privileged or not. While the document itself was marked for privilege, a person would not know this unless he or she first opened the envelope, which was sealed with a reusable clasp, and read the document. The envelope was not marked confidential or privileged. . . . The envelope was not even sealed using tape or glue. . . . Any person could have opened the envelope, discovered its contents, and re-clasped the envelope without notice. The procedures for handling documents need only be reasonable. See In re Grand Jury Proceedings, 727 F.2d at 1356. Although requiring encoded documents or secret drop boxes would certainly strain the bounds of reasonableness, it is safe to say that moistening an envelope's flap and writing 'confidential' on its exterior are reasonable steps that should have been taken to deter illicit observation and warn the receiver and intermediate handlers of the presence of sensitive information. The method of delivery, that is, leaving the envelopes in what have been variously described as cabinets, drawers, or mail slots after delivery to the clerk was a reasonable method of maintaining privilege. It would have been a different question if, for example, the letters were left in open baskets or inboxes, where the general public, the cleaning staff, or other persons may have had access to them. See In re Victor, 422 F. Supp. 475 (S.D.N.Y. 1976) (holding that papers left in a public hallway not entitled to privilege).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal VA

Chapter: 19.805

Case Name: Indergit v. Rite Aid Corp., 08 Civ. 9361 (JPO) (HBP), 2016 U.S. Dist. LEXIS 150565 (S.D.N.Y. Oct. 31, 2016)
(holding that a lawyer for a defendant Rite Aid (who is not involved in defending the class action for the court) may interview ex parte class members about their role as regional managers (after they had been promoted from being store managers, who were members of the class); but also holding that these lawyers could not advise the lawyers representing defendant in the class action what the regional managers had said; "To the extent that Rite Aid seeks to interview Lock-hart, Gauger and Jens with respect to their supervision of the plaintiffs in the California actions, Rite Aid's counsel may contact these individuals directly because communications limited to these individuals' work as District Managers does not relate to the subject of collective counsel's representation. Rite Aid has represented that it seeks to speak with these three individuals solely about what they did as District Managers, supervising the plaintiffs in the California action. As noted above, the plaintiffs in the California actions are not parties in this action, and the extent of their discretion is, therefore, not a subject of collective counsel's representation. To the extent Lockhart, Gauger and Jens worked as District Managers, they were working in the precise position that plaintiffs claim possessed true managerial control. Thus, collective counsel cannot be representing them with respect to their work as District Managers. Rite Aid's representations that contact with these individuals will be through counsel other than its counsel in this action and that any information provided by these individuals will not be shared with Rite Aid's counsel in this action provide further protection against any possible overreaching by Rite Aid."; "In addition, Rite Aid has the right to preclude collective counsel from attending its interviews with Lockhart, Gauger and Jens. To the extent Rite Aid's counsel seeks to speak with Lockhart -- a current Rite Aid employee -- to prepare Rite Aid's defense in the California actions, the conversation is shielded by Rite Aid's attorney-client privilege. . . . Although neither the Supreme Court nor the Court of Appeals have reached the issue, it also appears that the privilege extends to conversations between 'corporate counsel and former employees of the corporation, so long as the discussion related to the former employee's conduct and knowledge gained during employment.'. . . Thus, Rite Aid's counsel's conversations with Gauger and Jens -- former District Managers -- concerning their conduct and duties while employed by Rite Aid would also be within the attorney-client privilege. Because the privilege is Rite Aid's and not the personal privilege of Lockhart, Gauger or Jens, none of these individuals has the ability to waive the privilege; only Rite Aid can waive the privilege."; "'(1) Counsel for Rite Aid, other than Rite Aid's counsel in this action, may contact Lockhart, Gauger and Jens directly and interview them, limited to their supervision of plaintiffs in the California actions who are not parties in this action.'"; "'(2) Any statements made to Rite Aid's counsel by Lockhart, Gauger or Jens shall not be communicated, either directly or indirectly, to Rite Aid's counsel in this action.'"; "'(3) Counsel for the plaintiffs in this action are prohibited from contacting Lockhart directly concerning his employment by Rite Aid as a District Manager and from questioning Lockhart concerning any conversation he may have with Rite Aid's counsel concerning his work as a District Manager.'"; "'(4) Counsel for the plaintiffs in this action are prohibited from questioning Gauger and Jens concerning any conversations they may have with Rite Aid's counsel concerning their work as District Managers.'")

Case Date Jurisidction State Cite Checked
2016-10-31 Federal NY

Chapter: 19.806

Case Name: Hostetler v. Dillard, Civ. A. No. 3:13-cv-351-DCB-MTP, 2014 U.S. Dist. LEXIS 167374 (S.D. Miss. Dec. 3, 2014)
(holding that the presence of a potential business partner destroyed privilege protection, because his presence did not further any communications between a lawyer and a client; "At the heart of this discovery dispute is a May 11, 2011, meeting between Dillard, his wife, Byron Seward, Garrard, and Trotter. Garrard and Trotter were acting as attorneys for the Dillard Defendants. They did not represent Seward, whom Dillard wished to conduct business with regarding Dillard's property. During this meeting, the attendees discussed the Dillard Defendants' options for leasing, or otherwise utilizing, their property."; "The Dillard Defendants, however, have failed to present any proof or make any argument demonstrating that the disclosures made to Seward were made in furtherance of the rendition of professional legal services to the Dillard Defendants. Having failed to provide any proof or argument on this point, the Dillard Defendants have not met their burden of proving that the above-listed documents are privileged.")

Case Date Jurisidction State Cite Checked
2014-12-03 Federal MS

Chapter: 19.806

Case Name: Chambers v. Gold Medal Bakery, Inc., 983 N.E.2d 683, 692 n.28 (Mass. 2013)
(holding that directors whose interests are adverse to the corporation's interest cannot rely on their role as shareholders or on the Garner (Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970)) doctrine to obtain privileged corporate documents; "We reject the defendants' premise that the issue raised here is whether the plaintiffs have the power, not to mention the votes, to waive the attorney-client privilege on Gold Medal's behalf. . . . The attorney-client privilege is not 'waived' when a person within the group entitled to information simply accesses it.")

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

Chapter: 19.902

Case Name: Hill v. State St. Corp., Master Dkt. No. 09-12146-GAO, Civ. A. No. 09-10750-DJC, 2013 U.S. Dist. LEXIS 181168, at *18, *24-25 (D. Mass. Dec. 30, 2013)
("The first relates to third parties who are employed to assist a lawyer in rendering legal advice. . . . To come within this exception, three elements must be satisfied: (1) 'the third-party communications must be necessary, or at least highly useful, for the effective consultation between the client and the lawyers which the privilege is designed to permit[,]' (2) the third-party must play 'an interpretive role. In other words, the third party's communication must serve to translate information between the client and the attorney[,]' and (3) 'the third party's communication must be made for the purpose of rendering legal advice, rather than business advice.'"; "The plaintiffs argue that the presence of Watson Wyatt [consultant] for the portion of the meeting at issue waives the attorney-client privilege. This court agrees. There is nothing in the paragraphs at issue which indicate that Watson Wyatt's presence was needed to assist in the provision of legal advice. Moreover, even if Watson Wyatt is considered to be an employee, there is no explanation of why it would need to know the information at issue. Assuming, arguendo, that the redacted information qualifies as privileged communications, the dissemination to Watson Wyatt was beyond the 'need to know' circle, and its presence defeats the privilege.")

Case Date Jurisidction State Cite Checked
2013-12-30 Federal MA B 5/14

Chapter: 19.902

Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *42 (S.D. Ga. May 8, 2013)
July 17, 2013 (PRIVILEGE POINT)

"Federal and State Courts Analyze the Privilege Impact of Third Parties: Client Agents"

One of the greatest threats to the attorney-client privilege's creation and preservation involves the role of agents assisting clients or their lawyers. If such agents fall outside privilege protection, the client's or lawyer's communications with the agent will not be protected; the agent's presence during otherwise privileged communications will abort the privilege; and disclosure of preexisting privileged communications to the agent will waive the privilege.

Courts frequently assess the privilege implications of a client agent's involvement in otherwise privileged communications. Some courts take a broad view of client agents who are considered inside privilege protection. In Adler v. Greenfield, 2013 IL App (1st) 121066, an Illinois state court held that JP Morgan was within privilege protection when it acted as an elderly woman's agent. The court explained that "JP Morgan acted as Muriel's agent in communicating with [her lawyer] about Muriel's estate plan." Id. ¶ 54. Interestingly, the court also held that "under agency principles, the death of the principle terminates the authority of the agent" – meaning that the privilege protection evaporated upon the client's death. Id. Most courts take a much more restrictive view of client agents who are within privilege protection. In Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *42 (S.D. Ga. May 8, 2013), the court held that Paula Deen had waived her privilege protection by "include[ing] in the communications loop" three of her assistants. Deen argued that these various business consultants and public relations advisors "'are indistinguishable from my employees.'" Id. At *43 (internal citation omitted). The court rejected Deen's argument, holding that the privilege only covers third parties who are "'nearly indispensable'" in facilitating attorney-client communications. Id. At *46 (citation omitted). The court pointedly criticized Deen's affidavit, which "speaks only in general terms" – noting that "[n]othing approaching the 'nearly indispensable role' is described." Id. At *47 (citation omitted).

The narrow majority rule on privilege protection for client agents represents perhaps the most counterintuitive aspect of privilege law. Lawyers should warn their clients not to include such third parties in privileged communications or share privileged communications with them. Next week's Privilege Point will discuss lawyer agents.

Case Date Jurisidction State Cite Checked
2013-05-08 Federal GA
Comment:

key case


Chapter: 19.902

Case Name: Adler v. Greenfield, 2013 IL App (1st) 121066
July 17, 2013 (PRIVILEGE POINT)

"Federal and State Courts Analyze the Privilege Impact of Third Parties: Client Agents"

One of the greatest threats to the attorney-client privilege's creation and preservation involves the role of agents assisting clients or their lawyers. If such agents fall outside privilege protection, the client's or lawyer's communications with the agent will not be protected; the agent's presence during otherwise privileged communications will abort the privilege; and disclosure of preexisting privileged communications to the agent will waive the privilege.

Courts frequently assess the privilege implications of a client agent's involvement in otherwise privileged communications. Some courts take a broad view of client agents who are considered inside privilege protection. In Adler v. Greenfield, 2013 IL App (1st) 121066, an Illinois state court held that JP Morgan was within privilege protection when it acted as an elderly woman's agent. The court explained that "JP Morgan acted as Muriel's agent in communicating with [her lawyer] about Muriel's estate plan." Id. ¶ 54. Interestingly, the court also held that "under agency principles, the death of the principle terminates the authority of the agent" – meaning that the privilege protection evaporated upon the client's death. Id. Most courts take a much more restrictive view of client agents who are within privilege protection. In Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *42 (S.D. Ga. May 8, 2013), the court held that Paula Deen had waived her privilege protection by "include[ing] in the communications loop" three of her assistants. Deen argued that these various business consultants and public relations advisors "'are indistinguishable from my employees.'" Id. At *43 (internal citation omitted). The court rejected Deen's argument, holding that the privilege only covers third parties who are "'nearly indispensable'" in facilitating attorney-client communications. Id. At *46 (citation omitted). The court pointedly criticized Deen's affidavit, which "speaks only in general terms" – noting that "[n]othing approaching the 'nearly indispensable role' is described." Id. At *47 (citation omitted).

The narrow majority rule on privilege protection for client agents represents perhaps the most counterintuitive aspect of privilege law. Lawyers should warn their clients not to include such third parties in privileged communications or share privileged communications with them. Next week's Privilege Point will discuss lawyer agents.

Case Date Jurisidction State Cite Checked
2013-01-01 State IL
Comment:

key case


Chapter: 19.903

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("As a general rule, the presence of third parties breaches the confidentiality of communications between an attorney and client and waives the privilege. However, '[t]he presence of a third-party, such as a consultant, does not destroy the attorney-client privilege where that party is the client's agent or possesses 'a commonality of interest with the client.' 'The presence of a third party in an e-mail transmission, for instance, will not destroy the attorney-client privilege if the third party is the attorney's or client's agent. . . .' Syngenta has presented Nadel's declaration stating that Syngenta engaged the VHB and URI employees as consultants 'to provide . . . scientific assistance sought by Syngenta's legal department regarding regulatory requirements.' The court has no reason to question this representation. The court finds Syngenta met its burden of demonstrating these particular third parties are Syngenta's agents for purposes of this litigation, and their presence on the e-mail communication did not destroy the attorney-client privilege applicable to PRIV003553.")

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

Chapter: 19.903

Case Name: Hubbell v. Ratcliffe, No. HHDX04CV08403824S, 2010 Conn. Super. LEXIS 2853, at *17-18 (Conn. Super. Ct. Nov. 8, 2010)
(declining to recognize the fiduciary exception in the context of a family trust beneficiary seeking access to communications between the trustee and the trustee's lawyer; "Also, the use, with permission . . . of Hubbell's computer files and email system for communications, to which only the trustees and their secretaries had access, did not constitute waiver. The defendants reasonably expected that these communications were confidential, and they are protected by the attorney client privilege.")

Case Date Jurisidction State Cite Checked
2010-11-08 State CT B 1/13

Chapter: 19.903

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
(applying Delaware rather than Massachusetts privilege law, and utlimately finding that the attorney-client privilege protected the client's communications with its investment banker Goldmman Sachs; "Th