Showing 166 of 166 results

Chapter: 2.2

Case Name: Falls v. Goldman Sachs Trust Co., N.A., No. 5:16-CV-740-FL, 2017 U.S. Dist. LEXIS 65902 (E.D.N.C. May 1, 2017)
("'Because the privilege does not apply, the court rejects Hine's additional argument that he has an ethical obligation to maintain confidentiality regarding the materials subject to production. See N.C. Rules of Prof'l Conduct. R. 1.6(b)(1) (specifying that attorney may reveal otherwise confidential information where necessary to comply with the law or court order).")

Case Date Jurisidction State Cite Checked
2017-05-01 Federal NC

Chapter: 2.2

Case Name: Waymo LLC v. Uber Technologies, Inc., No. C-17-00939 WHA, 2017 U.S. Dist. LEXIS 54662 (N.D. Cal. April 10, 2017)
("Levandowski's motion cites the California Rules of Professional Conduct and our Civil Local Rules for the general proposition that attorneys are ethically required to avoid disclosing a client's 'confidences' or 'secrets' – 'unless an appropriate court order is obtained by the requesting party'. . . . The suggestion that the privilege log at issue here would violate defense counsel's ethical obligation to protect Levandowski's 'confidences' or 'secrets' is a non-starter because the expedited discovery order dated March 16 is an 'appropriate court order' that, according to Levandowski's own argument, supersedes generic countervailing ethical obligations.")

Case Date Jurisidction State Cite Checked
2017-04-10 Federal CA

Chapter: 2.2

Case Name: Waymo LLC, Plaintiff, v. Uber Technologies, Inc., No. C 17-00939 WHA, 2017 U.S. Dist. LEXIS 54662 (N.D. Cal. April 10, 2017)
(rejecting an effort by a former Waymo employee to avoid log requirements for any documents related to his alleged theft of Waymo material used to assist Uber; "Levandowski's motion cites the California Rules of Professional Conduct and our Civil Local Rules for the general proposition that attorneys are ethically required to avoid disclosing a client's 'confidences' or 'secrets' -- 'unless an appropriate court order is obtained by the requesting party'. . . . The suggestion that the privilege log at issue here would violate defense counsel's ethical obligation to protect Levandowski's 'confidences' or 'secrets' is a non-starter because the expedited discovery order dated March 16 is an 'appropriate court order' that, according to Levandowski's own argument, supersedes generic countervailing ethical obligations.")

Case Date Jurisidction State Cite Checked
2017-04-10 Federal CA

Chapter: 2.2

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 44192 (D. Kansas March 24, 2017)
(in an opinion by Special Master, finding that a former Monsanto lawyer and business person did not resist discovery after being designated by defendant as a testifying expert; "Monsanto also asserts that 'Mr. Carrato [] has an ongoing professional obligation to Monsanto to maintain [documents] in confidence pursuant to the Rules of Professional Conduct of each of the three states in which Mr. Carrato was practiced [sic] law while employed as an attorney for Monsanto' Monsanto states the general rule that a lawyer's ethical duty of confidentiality extends beyond matters protected by the attorney-client privilege. However, Monsanto has not cited a case, and the undersigned know of none, in which a motion to quash a subpoena was granted on the basis that complying with the subpoena would violate this ethical duty. Rather, the caselaw indicates that a client seeking to prevent disclosure of confidential information by his attorney (or former attorney) typically brings a separate injunctive action.")

Case Date Jurisidction State Cite Checked
2017-03-24 Federal KS
Comment:

key case


Chapter: 2.2

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)
("Under Virginia law, confidential attorney-client communications are privileged from disclosure.")

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

Chapter: 2.2

Case Name: In re Grand Jury Subpoena, No. 2013R00691-009, Dkt. 3:16-mc-00079-FDW-DCK, 2016 U.S. Dist. LEXIS 110274 (W.D.N.C. Aug. 16, 2016)
("Movant's assertions of privilege fare no better than its first two arguments. First, and perhaps most critically, Movant fundamentally conflates the ethical duty of confidentiality with common law privilege. A lawyer's ethical duty of confidentiality always applies to client communications acquired during the representation of that client but, standing alone, never justifies non-compliance with a valid grand jury subpoena."; "Thus, real estate closing files and related documents, while protected by the ethical duty of confidentiality at least until made public by filing or other action, are virtually never protected by the attorney-client privilege precisely because such documents are prepared for the purpose of disclosure.")

Case Date Jurisidction State Cite Checked
2016-08-16 Federal NC

Chapter: 2.2

Case Name: Fish v. Kobach, Case No. 16-2105-JAR-JPO, Case No. 15-9300-JAR-JPO, 2016 U.S. Dist. LEXIS 29628 (D. Kansas March 8, 2016)
("As this court has held repeatedly, 'confidential' does not equate to 'nondiscoverable' or 'privileged.'")

Case Date Jurisidction State Cite Checked
2016-03-08 Federal KS

Chapter: 2.2

Case Name: Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, No. 15-0374-cv, 2016 U.S. App. LEXIS 3233 (2nd Cir. App. Feb. 24, 2016)
("The attorney-client privilege and the duty to preserve client confidences and secrets are 'not co-extensive.'")

Case Date Jurisidction State Cite Checked
2016-02-24 Federal

Chapter: 2.2

Case Name: Hustler Cincinnati, Inc. v. Cambria, Case No. 1:11-cv-718, 2014 U.S. Dist. LEXIS 11760, at *22-23, *24, *25 (S.D. Ohio Jan. 30, 2014)
(finding that a former employee could not waive a corporation's privilege protection; "In the only case located by the undersigned on the issue, the court determined that ordering the discovery of confidential information from an attorney in the context of litigation did not violate the attorney's ethical obligations under Ohio R. Prof. Cond. 1.6."; "The Zino [Zino v. Whirlpool Corp., No. 5:11cv1676, 2012 U.S. Dist. LEXIS 150632 (N.D. Ohio Oct. 19, 2012)] court determined that the lawyer's testimony would not run afoul of his ethical obligations under Rule 1.6. The court reasoned that Comment 3 clarifies 'the rule of client-attorney confidentiality as set forth in Rule 1.6 does not apply to restrict testimony in judicial proceedings in which a lawyer is a witness, or is required to produce evidence concerning a client.'"; "[C]onfidential information may be compelled 'to comply with other law or a court order.' Ohio R. Prof. Cond. 1.6(b)(6).")

Case Date Jurisidction State Cite Checked
2014-01-30 Federal OH B 6/14

Chapter: 2.2

Case Name: Fid. Nat'l Title Ins. Co. v. Harlow, Adams & Friedman, P.C., No. CV116021869S, 2013 Conn. Super. LEXIS 1447, at *15-16 (Conn. Super. Ct. June 27, 2013)
("The common-law doctrine of attorney-client privilege, not Rule 1.6's confidentiality requirement, is the appropriate means of challenging a discovery request. 'The attorney-client privilege . . . doctrine [applies] in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The Rule [1.6] of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.' [Avoletta v. Danforth, Tolisano & Danforth, LLC, Civ. No. 3:11CV1126, 2012 U.S. Dist. LEXIS 106722, at *2 (D. Conn. July 31, 2012)] Therefore, so far as the defendant's objection is based on Rule 1.6, that rule would not warrant sustaining the objection.")

Case Date Jurisidction State Cite Checked
2013-06-27 State CT B 4/14

Chapter: 2.2

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 *15, *16, *17, *18, *20-21 (E.D.N.C. Apr. 11, 2013)
("Mr. Gilreath has also objected to the deposition on grounds that it may cause him to violate the Rules of Professional Conduct of the North Carolina State Bar, specifically citing to Rule 1.6(a). Mr. Gilreath has requested a protective order specifically determining whether he should provide deposition testimony concerning information that is 'confidential,' protected by the attorney-client privilege, or both."; "As an exception to this rule of confidentiality, the Rules of Professional Conduct permit a lawyer to reveal information otherwise protected from disclosure 'to the extent the lawyer reasonably believes necessary . . . to comply with the Rules of Professional Conduct, the law or court order.' N.C. Rules of Prof'l Conduct R. 1.6(b)(1) (2013). Accordingly, a lawyer may disclose confidential information if ordered to do so by a court, or if required to do so by the law, without violating the Rules of Professional Conduct."; "Courts often conclude that an attorney 'may disclose non-privileged client confidences as necessary without fear of State Bar sanction' in order to comply with subpoenas." (citation omitted); "[T]he court hereby directs Mr. Gilreath to disclose all non-privileged confidential information that is requested by the trustee in his deposition."; "This order is intended to satisfy the requirements of Rule 1.6(b)(1) of the Rules of Professional Conduct and to ensure that Mr. Gilreath does not violate his professional duties when disclosing potentially confidential information.")

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

Chapter: 2.2

Case Name: Zino v. Whirlpool Corp., No. 5:11CV1676, 2012 U.S. Dist. LEXIS 150632, at *13, *13-14 (N.D. Ohio Oct. 19, 2012)
("[T]he rule of client-attorney confidentiality as set forth in [Ohio] Rule 1.6 does not apply to restrict testimony in judicial proceedings in which a lawyer is a witness, or is required to produce evidence concerning a client. The attorney-client privilege and the work-product doctrine may apply, as recognized by the rule."; "Here, Gore is commanded through subpoena to testify at deposition. It is the ruling of this court that Gore shall testify to relevant matters not otherwise protected by attorney-client privilege or the work-product doctrine, to the extent that such protection has not been waived, as discussed above. Such testimony will not run afoul of his ethical obligations under the Ohio Rules of Professional Conduct. [See] Official Comment [3] to Ohio Prof. Rule 1.6.")

Case Date Jurisidction State Cite Checked
2012-10-19 Federal OH B 12/13

Chapter: 2.2

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1307 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "The evidentiary attorney-client privilege, while more familiar, is not the lawyer's only duty of confidentiality to a client. Too often unrecognized is the broader ethical duty of an attorney to preserve a client's confidences and secrets that may fall outside the attorney-client privilege."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisidction State Cite Checked
1992-01-01 Federal VA N 3/10

Chapter: 2.6

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

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

Chapter: 2.6

Case Name: Obeid v. La Mack, 14 cv. 6498 (LTS) (MHD), 2015 U.S. Dist. LEXIS 127327 (S.D.N.Y. Sept. 16, 2015)
("The federal-law variant of the attorney-client privilege protects from disclosure communications between a client and his attorney that were undertaken to elicit or provide legal advice or other legal services, and that were made and retained in confidence.")

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

Chapter: 2.6

Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("Virginia law recognizes that '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure[.]'")

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

Chapter: 2.6

Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("Because the privilege is an exception to the general rule of disclosure, 'an obstacle to investigation of the truth,' it must be strictly construed.")

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

Chapter: 2.6

Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 5 (W.D. Va. May 31, 2013)
("The Fourth Circuit applies the 'classic test' of the attorney-client privilege: '(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of a bar or court, or his subordinate and (b) in connection with this communication is acting in his capacity as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed (b) not waived by the client.' United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (per curiam) (quoting United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (Mass. 1950).")

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

Chapter: 2.6

Case Name: Under Seal 1 v. United States (In re Grand Jury Subpoena), 542 F. App'x 252, 253-54 (4th Cir. 2013)
(finding it unnecessary to decide if the attorney-client privilege protected communications between a government lawyer and a government official, because the two emails at issue did not relate to legal advice and therefore did not deserve privilege protection; "The proponent must prove, '(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.' Lentz, 524 F.3d at 523 [United States v. Lentz, 524 F.3d 501 (4th Cir. 2008)] (internal quotation marks omitted).")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal

Chapter: 2.6

Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *3-4 (E.D. Va. July 12, 2012)
("Amongst other things, the party asserting attorney-client privilege must establish that: '(2) the person to whom the communication was made . . . act[ed] as a lawyer [in connection with the communication] (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding . . . (4) the privilege has been (a) claimed and (b) not waived by the client.' Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).")

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

Chapter: 2.6

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *5-6 (E.D. Va. May 12, 2011)
("Attorney-client privilege applies when the following conditions are met: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (citing United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (Mass. 1950)).")

Case Date Jurisidction State Cite Checked
2011-05-12 Federal VA

Chapter: 2.6

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501-02 (4th Cir. 2011)
("'(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or is his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the b has been (a) claimed and (b) not waived by the client.' Jones, 696 F.2d at 1072 [United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)] (quoting United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950))."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

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

Chapter: 2.6

Case Name: The Flexible Benefits Council v. Feldman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *10 (E.D. Va. Oct. 8, 2008)
("The attorney-client privilege exists when (1) an attorney-client relationship is established, (2) the communication relates to a fact that the attorney learned from his client, outside the presence of strangers, for the purpose of securing a legal opinion or legal services, and (3) the privilege has been claimed and not waived. See Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).")

Case Date Jurisidction State Cite Checked
2008-10-08 Federal VA

Chapter: 2.6

Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *5 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "Its elements have been set forth in various ways, . . . but the leading privilege test in Virginia is found in Edwards [Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301 (1988)], which provides that 'confidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure.'")

Case Date Jurisidction State Cite Checked
2008-02-12 State VA B 5/09 & 6/09

Chapter: 2.6

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("Under the attorney-client privilege, confidential communications between an attorney and his client during the course of the attorney's representation are protected from discovery. See Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988).")

Case Date Jurisidction State Cite Checked
2002-01-01 State VA

Chapter: 2.6

Case Name: Commonwealth v. Miller, 66 Va. Cir. 470, 470 (Va. Cir. Ct. 2001)
("Generally, confidential communications between attorney and client concerning a subject matter of the attorney's employment are privileged from disclosure. Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718 (1914).")

Case Date Jurisidction State Cite Checked
2001-01-01 State VA

Chapter: 2.6

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 185 (Va. Cir. Ct. 2000)
("As declared by the Supreme Court of Virginia and as is well established in common law, '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure, even for the purpose of administering justice.' Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296 (1988).")

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

Chapter: 2.6

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 66 (E.D. Va. 1998)
("To gain the protection of the attorney-client privilege, CBN must show, for each document, that: (1) The asserted holder of the privilege is or sought to become a client; and (2) the person to whom the communication was made: (a) is the member of the bar of a court, or his subordinate; and (b) in connection with this communication is acting as a lawyer; and (3) the communication relates to a fact of which the attorney was informed: (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law; or (ii) legal services; or (iii) assistance in some legal proceeding and not (d) for the purpose of committing a crime or a tort; and (4) the privilege has been (a) claimed; and (b) not waived by the client." (footnote omitted)), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998) (citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982))

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 2.8

Case Name: Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at *4 (W.D. Va. June 17, 2008)
(explaining the federal common law of spousal privilege; "Under federal common law, two types of spousal privilege exist: the confidential marital communications privilege, which protects confidential communications between spouses, and the adverse spousal testimony privilege, which protects spouses from being required to adversely testify against their spouse. . . . Federal courts have held that only the marital communications privilege applies in civil proceedings."; ultimately finding that the plaintiff in an action against Virginia Tech could resist discovery by Virginia Tech of e-mail on her husband's company computer)

Case Date Jurisidction State Cite Checked
2008-06-17 Federal VA B 6/09

Chapter: 2.302

Case Name: Agility Public Warehousing Company K.S.C. v. DOD, Civ. A. No. 14-1064 (JDB), 2015 U.S. Dist. LEXIS 81071 (D.D.C. June 23, 2015)
("[N]ot just an ancient privilege, but the oldest of them all -- the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-06-23 Federal DC

Chapter: 2.302

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 49305, at *7-8 (S.D. W. Va. Apr. 15, 2015)
(entering a sealed order to avoid disclosure of an inadvertently produced document; "In light of the undersigned's finding that ECF No. 278-1 is a privileged communication between attorney and client, and the privilege remains intact, good cause exists to keep the document sealed from public access. The importance of preserving the attorney-client privilege cannot be overvalued. 'The attorney-client privilege is one of the oldest recognized privileges for confidential communications.'. . . The interest served by maintaining the confidentiality of the attorney-client communication in this case plainly outweighs any countervailing interest the public might have in reviewing the document.")

Case Date Jurisidction State Cite Checked
2015-04-15 Federal WV B 5/16

Chapter: 2.302

Case Name: Red Vision Sys., Inc. v. Nat'l Real Estate Info. Svcs, L.P., 108 A.3d 54, 60 (Pa. Super. Ct. 2015)
("Although it is now embodied in a statute, '[t]he attorney-client privilege has deep historical roots and indeed is the oldest of the privileges for confidential communications in common law.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2015-01-13 State PA b 5/16

Chapter: 2.302

Case Name: United States v. Bank of N.Y. Mellon (In re Bank of N.Y. Mellon Corp. Forex Transactions Litig.), 166 F. Supp. 3d 406, 409 (S.D.N.Y. 2014)
("The attorney-client privilege, which had its origins in the 16th century, is among the oldest common law privileges.")

Case Date Jurisidction State Cite Checked
2014-11-10 Federal NY B 5/16

Chapter: 2.302

Case Name: Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW, No. 614, 2013, 2014 Del. LEXIS 336 (Del. July 23, 2014)
("The attorney-client privilege can be traced back to Roman times and is the oldest privilege recognized by Anglo-American jurisprudence.")

Case Date Jurisidction State Cite Checked
2014-07-23 State DE

Chapter: 2.302

Case Name: Alomari v. Ohio Dept. of Pub. Safety, Civ. A. 2:11-cv-00613, 2013 U.S. Dist. LEXIS 118754, at *5 (S.D. Ohio Aug. 21, 2013)
("The attorney-client privilege is recognized as the oldest privilege relating to confidential communications.")

Case Date Jurisidction State Cite Checked
2013-08-21 Federal OH B 4/14

Chapter: 2.302

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 137 (D.D.C. 2013)
("The attorney-client privilege is 'the oldest of the established privileges for confidential communications.'" (citation omitted))

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

Chapter: 2.302

Case Name: Med. Assurance Co. v. Weinberger, 295 F.R.D. 176, 181-82 (N.D. Ind. 2013)
("The attorney-client privilege is the oldest privilege, recognized by the common law, for confidential communications.")

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

Chapter: 2.302

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

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

Chapter: 2.302

Case Name: People v. Radojcic, 998 N.E.2d 1212, 1221 (Ill. 2013)
("The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.")

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

Chapter: 2.302

Case Name: People v. Radojcic, 998 N.E.2d 1212, 1221 (Ill. 2013)
("The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.")

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

Chapter: 2.302

Case Name: United States v. Moazzeni, 906 F. Supp. 2d 505, 511 (E.D. Va. 2012)
("The attorney-client privilege has been long recognized as 'the oldest of the privileges for confidential communications known to the common law . . . [and] its purpose is to encourage full and frank communication between attorneys and their clients [] thereby promot[ing] broader public interests in the observance of law and administration of justice.' Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).")

Case Date Jurisidction State Cite Checked
2012-12-03 Federal VA B 5/16

Chapter: 2.302

Case Name: In re West, Ch. 7 Case No. 11 15594 BFK, 2012 Bankr. LEXIS 1673, at *13 (Bankr. E.D. Va. Apr. 16, 2012)
("'The attorney-client privilege is the oldest of the privileges . . . known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.' Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).")

Case Date Jurisidction State Cite Checked
2012-04-17 Federal VA B 5/16

Chapter: 2.302

Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 226 (4th Cir. 2011)
("Intended to encourage 'full and frank communication between attorneys and their clients,' the attorney-client privilege is 'the oldest of the privileges for confidential communications known to the common law.' Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Nonetheless, the privilege is not absolute, and this court has noted that it 'is to be strictly confined within the narrowest possible limits consistent with the logic of its principle.' United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996) (internal citations and quotation marks omitted).")

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

Chapter: 2.302

Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *11 (W.D. Va. Apr. 15, 2008)
("The attorney-client privilege is 'the oldest of the privileges for confidential Communications known to the common law.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2008-04-15 Federal VA B 5/16

Chapter: 2.302

Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *4 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "The attorney client privilege is one of the oldest common law privileges sanctioned by the courts.")

Case Date Jurisidction State Cite Checked
2008-02-12 State VA B 5/09 & 6/09

Chapter: 2.302

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 457 (W.D. Va. 2005)
("The attorney-client privilege is the oldest of privilege for confidential communications known to the common law.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA N 3/06

Chapter: 2.302

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 826 n.11 (E.D. Va. 2005)
("The attorney-client privilege is the oldest witness privilege recognized under common law. See 8 J. Wigmore, Evidence § 2290."), 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 B 5/16

Chapter: 2.302

Case Name: Under Seal v. United States (In re Grand Jury Subpoena Under Seal), 415 F.3d 333, 338 (4th Cir. 2005)
("'The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.' Upjohn v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981)."), cert. denied, 126 S. Ct. 1114 (2006)

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

Chapter: 2.302

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 185-86 (Va. Cir. Ct. 2000)
("One of the oldest recognized privileges, the attorney-client privilege 'is intended to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.' Swidler & Berlin v. United States, 524 U.S. 399, 403, 141 L. Ed. 2d 379, 118 S. Ct. 2081 (1998) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981)) (internal quotations omitted).")

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

key case


Chapter: 2.302

Case Name: United States v. (Under Seal), 748 F.2d 871, 873 (4th Cir. 1984)
(tracing the privilege to Roman times)

Case Date Jurisidction State Cite Checked
1984-01-01 Federal

Chapter: 2.303

Case Name: Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, No. 15-0374-cv, 2016 U.S. App. LEXIS 3233 (2nd Cir. App. Feb. 24, 2016)
("We have implied -- but never expressly held -- that protection of the attorney-client privilege is a 'higher value' under the First Amendment that may rebut the presumption of access.")

Case Date Jurisidction State Cite Checked
2016-02-24 Federal

Chapter: 2.303

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

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

key case


Chapter: 2.303

Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
("The purpose of the attorney-client privilege is to enable attorneys to give informed legal advice to clients, which would be undermined if an attorney had to caution a client about revealing relevant circumstances lest the attorney later be compelled to disclose those circumstances.")

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

Chapter: 2.303

Case Name: The New York Times Co. v. U.S. Dept. of Justice, 14-CV-3777 (JPO), 2015 U.S. Dist. LEXIS 133520 (S.D.N.Y. Sept. 30, 2015)
(in a FOIA case, analyzing work product protection for taped interviews of criminal detainees; "A document that would ordinarily be protected under Exemption Five loses its protection if 'the agency has chosen 'expressly to adopt [it] or incorporate [it] by reference.'"; "The attorney-client privilege and the work-product doctrine are, if not twins, at least very close siblings. Both privileges exist to protect the public's ability to access legal services. The former does so by allowing a client to communicate frankly and openly with his or her counsel; the latter by permitting the 'lawyer [to] work with a certain degree of privacy.". . . The Second Circuit has held that 'the principal rationale behind the attorney-client privilege -- to promote open communication between attorneys and their clients so that fully informed legal advice may be given -- . . . Evaporates . . . Once an agency adopts or incorporates [a] document.' . . . If publicly adopting a document vitiates the purposes of the attorney-client privilege, it is hard to see why it ought not to do the same to the work product doctrine. Similarly, if justifying agency action on the basis of a document shielded by the attorney-client privilege is offensive to FOIA, it is hard to see why justifying the same action on the basis of a document shielded by the work-product doctrine is not offensive. The Court concludes, accordingly, that express adoption doctrine applies to the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2015-09-30 Federal NY

Chapter: 2.303

Case Name: United States v. Wells Fargo, 12-CV-7527 (JMF), 2015 U.S. Dist. LEXIS 126881 (S.D.N.Y. Sept. 22, 2015)
(holding that an individual civil defendant could not assert an advice of counsel defense over the objection of the corporation which was also a co-defendant but which refused to waive its privilege; "The protections afforded to privileged information are derived from the principle that certain policies and values are more important to society than the search for truth.").

Case Date Jurisidction State Cite Checked
2015-09-22 Federal NY
Comment:

key case


Chapter: 2.303

Case Name: Tianti v. Rohrer, Case CL-2015-10127 (Va. 19th Jud. Dist. Aug. 14, 2015)
("While no Virginia court has directly addressed this issue, multiple federal circuits have found the existence of a fully preserved attorney-client privilege to override the interest in openness for judicial records."; "These cases lead to the conclusion that the federal circuits are in general agreement that the attorney-client privilege is a sufficient interest to outweigh the public's interest in the openness of judicial records."; "The Court further holds that the work product doctrine is also a compelling interest that justifies disclosure as the work product doctrine is 'closely related to the attorney client privilege.' Commonwealth v. Edwards, 235 Va. 499, 510 (1988). This Court is of the opinion that the work product doctrine also provides a persuasive rebuttal to the presumption of openness. Accordingly, the Court will seal documents contained in the file that contain material protected by the attorney-client privilege and work product doctrine.")

Case Date Jurisidction State Cite Checked
2015-08-14 State VA

Chapter: 2.303

Case Name: Tianti v. Rohrer, Case CL-2015-10127 (Va. 19th Jud. Dist. Aug. 14, 2015)
("While no Virginia court has directly addressed this issue, multiple federal circuits have found the existence of a fully preserved attorney-client privilege to override the interest in openness for judicial records."; "These cases lead to the conclusion that the federal circuits are in general agreement that the attorney-client privilege is a sufficient interest to outweigh the public's interest in the openness of judicial records."; "The Court further holds that the work product doctrine is also a compelling interest that justifies disclosure as the work product doctrine is 'closely related to the attorney client privilege.' Commonwealth v. Edwards, 235 Va. 499, 510 (1988). This Court is of the opinion that the work product doctrine also provides a persuasive rebuttal to the presumption of openness. Accordingly, the Court will seal documents contained in the file that contain material protected by the attorney-client privilege and work product doctrine.").

Case Date Jurisidction State Cite Checked
2015-08-14 State VA

Chapter: 2.303

Case Name: Gebremedhin v. American Family Mutual Insurance Company, Civ. A. No. 1:13-cv-02813-CMA-NYW, 2015 U.S. Dist. LEXIS 91948 (D. Colo. July 15, 2015)
("Privileges further the administration of justice and should not be set aside lightly. . . . But because privileges also serve to withhold relevant information from the finder of fact, they must also be narrowly construed.")

Case Date Jurisidction State Cite Checked
2015-07-15 Federal CO

Chapter: 2.303

Case Name: Yocabet v. UPMC Presbyterian and Univeristy of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)
("The actual beneficiary of this policy is not only the client but also the justice system, which 'depends on frank and open client-attorney communication.'").

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

Chapter: 2.303

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 49305 (S.D.W. Va. April 15, 2015)
(entering a seal order to avoid disclosure of an inadvertently produced document; "In light of the undersigned's finding that ECF No. 278-1 is a privileged communication between attorney and client, and the privilege remains intact, good cause exists to keep the document sealed from public access. The importance of preserving the attorney-client privilege cannot be overvalued. 'The attorney-client privilege is one of the oldest recognized privileges for confidential communications.'. . . The interest served by maintaining the confidentiality of the attorney-client communication in this case plainly outweighs any countervailing interest the public might have in reviewing the document.")

Case Date Jurisidction State Cite Checked
2015-04-15 Federal WV

Chapter: 2.303

Case Name: TP Orthodontics, Inc. v. Kesling, No. 46S03-1405-MI-337, 2014 Ind. LEXIS 715, at *27 (Ind. Sept. 3, 2014)
(analyzing privilege protection for a report prepared by a special committee in a derivative case; holding that any opinion work product deserved absolute protection, and that a company did not trigger an "at issue" waiver by relying on the report; remanding for an in camera review to assess privilege claims; "Should SLC reports become too accessible to minority shareholders, and thus readily available in derivative and direct litigation, SLCs will likely become less candid in their reports, and corporations will likely discourage their use, thereby increasing the costs of litigation. As this would defeat the purpose of SLCs and SLC reports, we are careful that our decision not change the character of SLC reports from what the legislature intended.")

Case Date Jurisidction State Cite Checked
2014-09-03 State IN

Chapter: 2.303

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 687 (3d Cir. 2014)
("Although the communications are often relevant and highly probative of the truth, they are protected in order 'to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 2.303

Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 4 (W.D. Va. May 31, 2013)
("The attorney-client privilege is the oldest privilege for confidential communications known to the common law.")

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

Chapter: 2.303

Case Name: Earthworks v. U.S. Dept. of the Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *2 (D.D.C. Apr. 2, 2013)
("The former [attorney-client privilege] is said to advance the crucial societal interest in clients being candid with their lawyers, while the latter [work product doctrine] advances the equally important value in zealous advocacy." (footnote omitted))

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

Chapter: 2.303

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 477 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "Although the attorney-client privilege fosters an important public interest of full and frank disclosure between attorneys and their clients, it is not absolute. Here, as is often the case, invocation of the privilege would impede the search for truth. And because the need to investigate the truth is far more acute in bankruptcy than is any concern for attorney-client communications, the privilege must give way." (footnote omitted))

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

Chapter: 2.303

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 137 (D.D.C. 2013)
("Its primary purpose is 'to encourage full and frank communication between attorneys and their clients.'" (citation omitted))

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

Chapter: 2.303

Case Name: People v. Radojcic, 998 N.E.2d 1212, 1221 (Ill. 2013)
("The purpose of the privilege, which belongs to the client . . . is to encourage and promote full and frank communication between the client and his or her attorney, without the fear that confidential information will be disseminated to others. . . . The privilege embodies the principle that sound legal advice and advocacy are dependent upon such full and frank communication.")

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

Chapter: 2.303

Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 718 (E.D. Pa. 2013)
("Although such communications may be both relevant and highly probative of the truth, they are shielded from production in order 'to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.'" (citation omitted))

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

Chapter: 2.303

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *7-8 (E.D. Va. Dec. 3, 2012)
("The attorney-client privilege has been long recognized as 'the oldest of the privileges for confidential communications known to the common law . . . [and] its purpose is to encourage full and frank communication between attorneys and their clients [] thereby promot[ing] broader public interests in the observance of law and administration of justice.' Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).")

Case Date Jurisidction State Cite Checked
2012-12-03 Federal VA

Chapter: 2.303

Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *3 (E.D. Va. July 12, 2012)
("[T]he application of the privilege laws serves an important purpose in our legal system, but that application can also 'remove otherwise pertinent information from the fact finder, thereby impeding the full and free discovery of the truth.' Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004).")

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

Chapter: 2.303

Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *2-3 (E.D. Va. July 12, 2012)
("The purpose of the attorney-client privilege is to 'promote broader public interests in the observance of law and administration of justice . . . [t]he privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.' Upjohn v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).")

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

Chapter: 2.303

Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *24 (W.D. Va. June 20, 2012)
("The purpose of the privilege is to 'encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of the law and administration of justice.'")

Case Date Jurisidction State Cite Checked
2012-06-20 Federal VA

Chapter: 2.303

Case Name: In re West, Case No. 11 15594 BFK, Ch. 7 2012 Bankr. LEXIS 1673, at *13 (Bankr. E.D. Va. Apr. 17, 2012)
("'The attorney-client privilege is the oldest of the privileges . . . known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.' Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).")

Case Date Jurisidction State Cite Checked
2012-04-17 State VA

Chapter: 2.303

Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("The purpose of the attorney-client privilege is to 'promote broader public interests in the observance of law and administration of justice . . . [t]he privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.' Upjohn v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).")

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

Chapter: 2.303

Case Name: Northern Virginia Real Estate, Inc. v. Martins, 720 S.E.2d 121, 135-36 (Va. 2012)
("'[a]s a general rule, confidential communications between an attorney and his or her client made in the course of that relationship and concerning the subject matter of the attorney's representation are privileged from disclosure. The objective of the attorney-client privilege is to encourage clients to communicate with attorneys freely, without fearing disclosure of those communications made in the course of representation, thereby enabling attorneys to provide informed and thorough legal advice.' Walton v. Mid-Atlantic Spine Specialists, P.C., 280 Va. 113, 122, 694 S.E.2d 545, 549 (2010).")

Case Date Jurisidction State Cite Checked
2012-01-01 State VA

Chapter: 2.303

Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *11 (W.D. Va. June 15, 2011)
("The purpose of the attorney-client privilege is 'to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.' Upjohn Co. v. U.S., 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).")

Case Date Jurisidction State Cite Checked
2011-06-15 Federal VA

Chapter: 2.303

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *5 (E.D. Va. May 12, 2011)
("'The purpose of the privilege is to promote 'full and frank communication between attorneys and their clients' and to serve the public interest in the administration of justice.' Id. at 70, quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). ")

Case Date Jurisidction State Cite Checked
2011-05-12 Federal VA

Chapter: 2.303

Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 226 (4th Cir. 2011)
("Intended to encourage 'full and frank communication between attorneys and their clients,' the attorney-client privilege is 'the oldest of the privileges for confidential communications known to the common law.' Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Nonetheless, the privilege is not absolute, and this court has noted that it 'is to be strictly confined within the narrowest possible limits consistent with the logic of its principle.' United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996) (internal citations and quotation marks omitted).")

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

Chapter: 2.303

Case Name: Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv00030, 2010 U.S. Dist. LEXIS 95668, at *4-5 (W.D. Va. Sept. 14, 2010)
("The purpose of the attorney-client privilege is to '"encourage clients to make full disclosures to their attorneys."' Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981) (quoting Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976)).")

Case Date Jurisidction State Cite Checked
2010-09-14 Federal VA

Chapter: 2.303

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605 n.2 (E.D. Va. 2010)
("To allow for open, unrestricted discussion between lawyer and client, confidential communications between attorneys and their clients are privileged from discovery. Hawkins v. Stables, 148 F.3d 379, 382-83 (4th Cir. 1998).")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal VA

Chapter: 2.303

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; "The objective of the attorney client privilege is to encourage clients to communicate with attorneys freely, without fearing disclosure of those communications made in the course of representation, thereby enabling attorneys to provide informed and thorough legal advice. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).")

Case Date Jurisidction State Cite Checked
2010-01-01 State VA

Chapter: 2.303

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 444 (W.D. Va. 2009)
("The attorney-client privilege has long been recognized as warranting special protection in order 'to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.' Upjohn Co. v United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)")

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

Chapter: 2.303

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 375 (4th Cir. 2009)
("The attorney-client privilege is designed to 'encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.'" (citation omitted).)

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

Chapter: 2.303

Case Name: United States v. Smith, Crim. A. No. 3:07CR433, 2008 U.S. Dist. LEXIS 64174, at *8 (E.D. Va. Aug. 21, 2008)
("The purpose of the attorney client privilege is to ensure full and frank communication between attorneys and their clients by protecting confidential communications from disclosure." In re Grand Jury Proceedings # 5, 401 F.3d at 250 (citing Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)).)

Case Date Jurisidction State Cite Checked
2008-08-21 Federal VA

Chapter: 2.303

Case Name: Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at *7-8 (W.D. Va. June 17, 2008)
("The attorney-client privilege is similar to the marital communications privilege in that its basis lies in encouraging 'full and frank communication between attorneys and their clients.'")

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

Chapter: 2.303

Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, *12 (W.D. Va. Apr. 15, 2008)
("The privilege serves to protect confidential communications between a client and attorney in order to facilitate full and frank disclosure. Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).")

Case Date Jurisidction State Cite Checked
2008-04-15 Federal VA

Chapter: 2.303

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 826 (E.D. Va. 2005)
("Few principles of law are as well-settled as the attorney-client privilege; it is a bedrock principle of the adversary system. In essence, the privilege's purpose is to encourage full and frank communication between attorneys and clients by according court-enforced protection against disclosure of such communications when the client invokes the privilege. The privilege recognizes that sound legal advice and informed advocacy serves the public interest, that such advice or advocacy depends upon the lawyer's being fully informed by the client, and that this occurs only where the client feels secure that communications with counsel will not be disclosed." (footnotes 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: 2.303

Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004)
("The application of the attorney-client and work product privileges serves valid and important purposes in our legal system, but those privileges remove otherwise pertinent information from the fact-finder, thereby impeding the full and free discovery of the truth. United States v. Under Seal (In re Grand Jury Supoena), 341 F.3d 331, 335 (4th Cir. 2003).")

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

Chapter: 2.303

Case Name: United States v. Regan, 281 F. Supp. 2d 795, 802 (E.D. Va. 2002)
("The privilege 'rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out.' Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998) (quoting Trammel v. United States, 445 U.S. 40, 51, 63 L. Ed. 2d 186, 100 S. Ct. 906 (1980)).")

Case Date Jurisidction State Cite Checked
2002-01-01 Federal VA

Chapter: 2.303

Case Name: United States v. Regan, 281 F. Supp. 2d 795, 802 (E.D. Va. 2002)
("The purpose of the attorney-client privilege is to 'encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.' Swidler & Berlin, 524 U.S. at 403.")

Case Date Jurisidction State Cite Checked
2002-01-01 Federal VA

Chapter: 2.303

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 185-86 (Va. Cir. Ct. 2000)
("One of the oldest recognized privileges, the attorney-client privilege 'is intended to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.' Swidler & Berlin v. United States, 524 U.S. 399, 403, 141 L. Ed. 2d 379, 118 S. Ct. 2081 (1998) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981)) (internal quotations omitted).")

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

Chapter: 2.303

Case Name: Seventh Dist. Comm. of the Va. State Bar v. Gunter, 212 Va. 278, 286-87, 183 S.E.2d 713, 719 (1971)
("Communications between lawyer and client are privileged to the end that the client be free to make a full, complete and accurate disclosure of all facts, unencumbered by fear that such true disclosure will be used or divulged by his attorney, and without fear of disclosure by any legal process.")

Case Date Jurisidction State Cite Checked
1971-01-01 State VA

Chapter: 2.304

Case Name: Gebremedhin v. American Family Mutual Insurance Company, Civ. A. No. 1:13-cv-02813-CMA-NYW, 2015 U.S. Dist. LEXIS 91948 (D. Colo. July 15, 2015)
("Privileges further the administration of justice and should not be set aside lightly. . . . But because privileges also serve to withhold relevant information from the finder of fact, they must also be narrowly construed.")

Case Date Jurisidction State Cite Checked
2015-07-15 Federal CO

Chapter: 2.304

Case Name: United States v. von Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139 (E.D.N.C. March 25, 2015)
("These rules are set against the backdrop that the attorney client privilege is disfavored . . . Because its application interferes with 'the truth seeking mission of the legal process.'")

Case Date Jurisidction State Cite Checked
2015-03-25 Federal NC

Chapter: 2.304

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 477 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "Although the attorney-client privilege fosters an important public interest of full and frank disclosure between attorneys and their clients, it is not absolute. Here, as is often the case, invocation of the privilege would impede the search for truth. And because the need to investigate the truth is far more acute in bankruptcy than is any concern for attorney-client communications, the privilege must give way." (footnote omitted))

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

Chapter: 2.304

Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *3 (E.D. Va. July 12, 2012)
("[T]he application of the privilege laws serves an important purpose in our legal system, but that application can also 'remove otherwise pertinent information from the fact finder, thereby impeding the full and free discovery of the truth.' Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004).")

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

Chapter: 2.304

Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *3 (E.D. Va. July 12, 2012)
("Because of this adverse result, in the Fourth Circuit, the work product and attorney-client privileges are construed 'quite narrowly.' Id. [Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004)]. They are recognized 'only to the very limited extent that . . . excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.' Id. [Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004)] (quoting Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)).")

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

Chapter: 2.304

Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *6 (W.D. Va. June 28, 2012)
("'[T]he privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed.' Edwards, 370 S.E.2d at 301; see In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984) (privilege not favored by federal courts and 'is to be strictly confined within the narrowest possible limits. . . .').")

Case Date Jurisidction State Cite Checked
2012-06-28 Federal VA

Chapter: 2.304

Case Name: Turner v. Digital Broad. Corp., Civ. A. No. 7:10 cv 00559, 2012 U.S. Dist. LEXIS 1416, at *3 n.2 (W.D. Va. Jan. 5, 2012)
("The attorney client privilege must be narrowly construed because it interferes with 'the truth seeking mission of the legal process.' In re Grand Jury Subpoena, 415 F.3d 333, 338 (4th Cir. 2005) (quoting on United States v. Tedder, 801 F.2d 1437, 1441 (4th Cir. 1986)). It will be recognized 'only to the very limited extent that . . . excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.' Id. (relying on Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980)).")

Case Date Jurisidction State Cite Checked
2012-01-05 Federal VA

Chapter: 2.304

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("Since the privilege is an exception to the general rule of disclosure 'an obstacle to investigation of the truth' it is to be strictly construed. Edwards, 370 S.E.2d at 301 [Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (Va. 1988)]

Case Date Jurisidction State Cite Checked
2012-01-01 Federal

Chapter: 2.304

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, *6 (E.D. Va. May 12, 2011)
("Attorney-client privilege is not generally favored by federal courts because it 'impedes the full and free discovery of the truth,' and is 'in derogation of the public's right to every man's evidence.' In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984) (quoting Herbert v. Lando, 441 U.S. 153, 175, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979).")

Case Date Jurisidction State Cite Checked
2011-05-12 Federal VA

Chapter: 2.304

Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 571 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [the medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); concluding that the attorney-client privilege did not protect communications between the new employer's president/CEO and the doctor's lawyer; "However, 'the privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed.'" (footnote omitted))

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

Chapter: 2.304

Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, *12 (W.D. Va. Apr. 15, 2008)
("Because the privilege is an impediment to 'full and free discovery of the truth,' it is to be narrowly construed." (citation omitted))

Case Date Jurisidction State Cite Checked
2008-04-15 Federal VA B 5/09

Chapter: 2.304

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007)
("Courts disfavor assertions of evidentiary privilege because they shield evidence from the truth-seeking process. . . . assertions of evidentiary privilege are narrowly and strictly construed.")

Case Date Jurisidction State Cite Checked
2007-01-01 Federal VA

Chapter: 2.304

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)
("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." See Herbert v. Lando, 441 U.S. 153, 175, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979).")

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

Chapter: 2.304

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 826 (E.D. Va. 2005)
("While recognizing the fundamental importance of the privilege, courts have nonetheless been careful not to stretch its application to circumstances beyond its rationale. This is so because the attorney-client privilege, like all privileges, 'impedes [the] full and free discovery of the truth,' and is 'in derogation of the public's "right to every man's evidence."' In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984) (quoting Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981). Accordingly, courts carefully construe the privilege to apply only to those situations in which the party invoking the privilege consulted an attorney for the purpose of securing a legal opinion or services, and in connection with that consultation, communicated information intended to be kept confidential. See In re Grand Jury Proceedings, 727 F.2d at 1355; United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)."), 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: 2.304

Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004)
("The application of the attorney-client and work product privileges serves valid and important purposes in our legal system, but those privileges remove otherwise pertinent information from the fact-finder, thereby impeding the full and free discovery of the truth. United States v. Under Seal (In re Grand Jury Supoena), 341 F.3d 331, 335 (4th Cir. 2003).")

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

Chapter: 2.304

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("This privilege is inconsistent with the general duty to disclose, impedes the investigation of the truth, and should be strictly construed. [Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988)]")

Case Date Jurisidction State Cite Checked
2002-01-01 State VA

Chapter: 2.304

Case Name: S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 242 (Va. Cir. Ct. 1993)
("However, the privilege is an exception to the general duty to disclose, is an obstacle to the investigation of the truth, and should be strictly construed.") [Peatross, J.]

Case Date Jurisidction State Cite Checked
1993-01-01 State VA B 12/09

Chapter: 2.304

Case Name: Commonwealth v. Edwards, 370 S.E.2d 296, 301 (Va. 1988)
("Nevertheless, the privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed."; affirming the trial court's rulings on attorney-client privilege and work product doctrine issued after an in camera review of documents sought by the state government in a Medicaid investigation of a nursing home)

Case Date Jurisidction State Cite Checked
1988-01-01 State VA
Comment:

key case


Chapter: 2.305

Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 145811 (N.D. Ill. Oct. 28, 2015)
("The attorney-client privilege, like all testimonial privileges and all exclusionary rules, comes at a price. Since it makes the search for truth more difficult by preventing disclosure of what is often exceedingly relevant information, the privilege is strictly construed and is limited to those instances where it is necessary to achieve its purposes.")

Case Date Jurisidction State Cite Checked
2015-10-28 Federal IL

Chapter: 2.305

Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222 (Ill. 2013)
("[T]he attorney-client privilege constitutes a departure from the general duty to disclose and, accordingly, must be 'strictly confined within its narrowest possible limits.'" (citation omitted))

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

Chapter: 2.306

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "We agree that these challenged decisions suffer from the same fundamental flaw: They run contrary to precedent by injecting uncertainty into application of attorney-client privilege and work product protection to internal investigations.")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal

Chapter: 2.401

Case Name: Marketel Media, Inc. v. Mediapotamus, Inc., 5:13-CV-427-D, 2015 U.S. Dist. LEXIS 76523 (E.D.N.C. June 11, 2015)
("If a party demonstrates that the attorney-client privilege applies, all communications between attorney and client are entitled to absolute and complete protection from disclosure.")

Case Date Jurisidction State Cite Checked
2015-06-11 Federal NC

Chapter: 2.401

Case Name: Ultratec, Inc. v. Sorenson Communications, Inc., 13-cv-346-bbc, 2014 U.S. Dist. LEXIS 104510 (W.D. Wis. July 31, 2014)
("The strength of a party's perceived need to see privileged information does nothing to overcome the privilege. It verges on tautological to observe that most litigants would be keenly interested in and likely would benefit from learning what their opponent told counsel in confidence, which is why, in an adversarial system, these communications are privileged in the first place.")

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

Chapter: 2.402

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)
("Under Virginia law, confidential attorney-client communications are privileged from disclosure.")

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

Chapter: 2.402

Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("The mere desire to test the veracity of a discovery response is an insufficient justification to burst through the attorney-client privilege, if it is applicable here, when there is no indication that the response is false or questionable. There also is no information in the record at this juncture as to whether additional, non-privileged information, whether already produced or not yet provided, would not be sufficient to clear up any issues with the failure rate about which Plaintiffs may have legitimate concerns. Plaintiffs also have not identified any evidence indicating that Fluidmaster has manipulated the data it has provided, and speculation is not sufficient to show that disclosure is 'essential for a fair adjudication.'")

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

Chapter: 2.402

Case Name: In re Grand Jury Subpoena, No. 2013R00691-009, Dkt. 3:16-mc-00079-FDW-DCK, 2016 U.S. Dist. LEXIS 110274 (W.D.N.C. Aug. 16, 2016)
("If the privilege applies, confidential communications between lawyer and client are completely protected from disclosure.")

Case Date Jurisidction State Cite Checked
2016-08-16 Federal NC

Chapter: 2.402

Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
(analyzing protection for documents created in connection with the BP Gulf of Mexico oil spill; "Wisner [land owner] argues that BP should not be 'allow[ed] to hide behind privilege.' Plaintiff's reply memorandum . . . This is erroneous. Unlike the work product doctrine, the attorney-client privilege requires no balancing of the parties' interests. That has already been accomplished by the policies and rationales underpinning this important privilege. . . . Wisner may not discover BP's attorney-client privileged communications, regardless of any relevance of the materials or plaintiff's alleged need for them.")

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

Chapter: 2.402

Case Name: United States v. Wells Fargo, 12-CV-7527 (JMF), 2015 U.S. Dist. LEXIS 126881 (S.D.N.Y. Sept. 22, 2015)
(holding that an individual civil defendant could not assert an advice of counsel defense over the objection of the corporation which was also a co-defendant but which refused to waive its privilege; "The protections afforded to privileged information are derived from the principle that certain policies and values are more important to society than the search for truth.")

Case Date Jurisidction State Cite Checked
2015-09-22 Federal NY
Comment:

key case


Chapter: 2.402

Case Name: Tianti v. Rohrer, Case CL-2015-10127 (Va. 19th Jud. Dist. Aug. 14, 2015)
("While no Virginia court has directly addressed this issue, multiple federal circuits have found the existence of a fully preserved attorney-client privilege to override the interest in openness for judicial records."; "These cases lead to the conclusion that the federal circuits are in general agreement that the attorney-client privilege is a sufficient interest to outweigh the public's interest in the openness of judicial records."; "The Court further holds that the work product doctrine is also a compelling interest that justifies disclosure as the work product doctrine is 'closely related to the attorney client privilege.' Commonwealth v. Edwards, 235 Va. 499, 510 (1988). This Court is of the opinion that the work product doctrine also provides a persuasive rebuttal to the presumption of openness. Accordingly, the Court will seal documents contained in the file that contain material protected by the attorney-client privilege and work product doctrine.")

Case Date Jurisidction State Cite Checked
2015-08-14 State VA

Chapter: 2.402

Case Name: Tianti v. Rohrer, Case CL-2015-10127 (Va. 19th Jud. Dist. Aug. 14, 2015)
("While no Virginia court has directly addressed this issue, multiple federal circuits have found the existence of a fully preserved attorney-client privilege to override the interest in openness for judicial records."; "These cases lead to the conclusion that the federal circuits are in general agreement that the attorney-client privilege is a sufficient interest to outweigh the public's interest in the openness of judicial records."; "The Court further holds that the work product doctrine is also a compelling interest that justifies disclosure as the work product doctrine is 'closely related to the attorney client privilege.' Commonwealth v. Edwards, 235 Va. 499, 510 (1988). This Court is of the opinion that the work product doctrine also provides a persuasive rebuttal to the presumption of openness. Accordingly, the Court will seal documents contained in the file that contain material protected by the attorney-client privilege and work product doctrine.")

Case Date Jurisidction State Cite Checked
2015-08-14 State VA

Chapter: 2.402

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "If allowed to stand, the District Court's rulings would ring alarm bells in corporate general counsel offices throughout the country about what kinds of descriptions of investigatory and disclosure practices could be used by an adversary to defeat all claims of privilege and protection of an internal investigation."; "These alarm bells would be well founded. If all it took to defeat the privilege and protection attaching to an internal investigation was to notice a deposition regarding the investigations (and the privilege and protection attaching them), we would expect to see such attempts to end-run these barriers to discovery in every lawsuit in which a prior internal investigation was conducted relating to the claims. Accordingly, we think it is essential to act on this Petition in order to protect our privilege waiver jurisprudence.")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal DC

Chapter: 2.402

Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)
("Kelley [Plaintiff] has not pointed to any authority suggesting that there is a 'substantial need' or 'undue hardship' exception to the attorney-client privilege.")

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

Chapter: 2.402

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 49305 (S.D.W. Va. April 15, 2015)
(entering a seal order to avoid disclosure of an inadvertently produced document; "In light of the undersigned's finding that ECF No. 278-1 is a privileged communication between attorney and client, and the privilege remains intact, good cause exists to keep the document sealed from public access. The importance of preserving the attorney-client privilege cannot be overvalued. 'The attorney-client privilege is one of the oldest recognized privileges for confidential communications.'. . . The interest served by maintaining the confidentiality of the attorney-client communication in this case plainly outweighs any countervailing interest the public might have in reviewing the document.")

Case Date Jurisidction State Cite Checked
2015-04-15 Federal WV

Chapter: 2.402

Case Name: Confidential Informant 59-05071 v. United States, No. 11-153C, 2015 U.S. Claims LEXIS 477 (Fed. Cl. April 13, 2015)
("But the Court is unaware of any support for the creation of an exception to attorney-client privilege based on the importance of a privileged communication to the party seeking its disclosure (and plaintiff has not cited any).")

Case Date Jurisidction State Cite Checked
2015-04-13 Federal Other
Comment:

key case


Chapter: 2.402

Case Name: Tianti v. Rohrer, Case CL-2015-10127, 2015 Va. Cir. LEXIS 165 (2015)
(an order sealing documents protected by the attorney-client privilege and the work product doctrine; "While no Virginia court has directly addressed this issue, multiple federal circuits have found the existence of a fully preserved attorney-client privilege to override the interest in openness for judicial records."; "These cases lead to the conclusion that the federal circuits are in general agreement that the attorney-client privilege is a sufficient interest to outweigh the public's interest in the openness of judicial records. The Court finds these cases persuasive and holds that Appellate has adequately rebutted the Shenandoah [Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 368 S.E. 2d 253, 4 Va. Law Rep. 2424 (1988)] presumption of public access by establishing privilege over certain documents in the record.")

Case Date Jurisidction State Cite Checked
2015-01-01 Federal VA

Chapter: 2.402

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 687 (3d Cir. 2014)
("Although the communications are often relevant and highly probative of the truth, they are protected in order 'to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 2.402

Case Name: Hawker v. Bancinsurance, Inc., Case No. 1:12-cv-01261-SAB, 2013 U.S. Dist. LEXIS 180831, at *8 (E.D. Cal. Dec. 27, 2013)
("The attorney client privilege is absolute and disclosure cannot be ordered regardless of necessity, relevance, or any other circumstance particular in the case.")

Case Date Jurisidction State Cite Checked
2013-12-27 Federal CA B 5/14

Chapter: 2.402

Case Name: Swift Spindrift, Ltd. v. Alvada Ins., Inc., No. 09 Civ. 9342 (AJN) (FM), 2013 U.S. Dist. LEXIS 104296, at *17 (S.D.N.Y. July 24, 2013)
("The mere need for factual information, however, does not entitle a party to obtain communications protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-07-24 Federal NY B 4/14

Chapter: 2.402

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 583 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "The attorney-client privilege is far from absolute. For example, at least one court has found that the failure to assert the privilege in a timely manner constituted waiver of the privilege.")

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

Chapter: 2.402

Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 718 (E.D. Pa. 2013)
("Although such communications may be both relevant and highly probative of the truth, they are shielded from production in order 'to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.'" (citation omitted))

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

Chapter: 2.402

Case Name: R.L.R. v. State, 116 So. 3d 570, 574 (Fla. Dist. Ct. App. 2013)
(holding that a pro bono lawyer who was acting as a guardian ad litem could not be ordered to disclose the location of his run-away adolescent client; "We are mindful of the lower court's, DCF's [Dep't of Children and Families] and the GAL's [Guardians Ad Litem] commitment to the safety and well-being of children within DCF's care; there is no exception, however, statutory or otherwise, to the attorney-client privilege under the facts presented in this case. To find that there is a 'dependency exception' or, as specifically put forth in this case, that there is an exception where the client may be a danger to himself, would require this court to carve out an altogether new exception to the attorney-client privilege. That, however, is the rule-making function of the legislature or, possibly, the Florida Bar -- not of this Court." (footnotes omitted))

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

Chapter: 2.402

Case Name: R.L.R. v. State, 116 So. 3d 570, 574 (Fla. Dist. Ct. App. 2013)
(holding that a pro bono lawyer who was acting as a guardian ad litem could not be ordered to disclose the location of his run-away adolescent client; "The trial judge's expressed reason to require the disclosure, that R.L.R. himself may be in danger, is not an exception recognized by the Rule.")

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

Chapter: 2.402

Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *6 (W.D. Va. June 28, 2012)
("Under Virginia law '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment "are privileged from disclosure, even for the purpose of administering justice."' Commonwealth v. Edwards, 370 S.E.2d 296, 301 (Va. 1988) (quoting Grant v. Harris, 82 S.E. 718, 719 (Va. 1914)).")

Case Date Jurisidction State Cite Checked
2012-06-28 Federal VA

Chapter: 2.402

Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *25-26 (W.D. Va. June 20, 2012)
("When the privilege applies, it affords confidential communications between lawyer and client complete protection from disclosure. In re Grand Jury Subpoena, 204 F.3d 516, 519-520 (4th Cir. 2000).")

Case Date Jurisidction State Cite Checked
2012-06-20 Federal VA

Chapter: 2.402

Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 108 (D.D.C. 2012)
("Documents that are protected by the attorney-client privilege are thus absolutely privileged as is opinion work product.")

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

Chapter: 2.402

Case Name: Collins v. Braden, 384 S.W.3d 154, 159 (Ky. 2012)
("Unlike other, qualified privileges, such as the work-product privilege, great need and hardship cannot even begin to obviate the absolute attorney-client privilege.")

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

Chapter: 2.402

Case Name: Collins v. Braden, 384 S.W.3d 154, 159 (Ky. 2012)
(holding that the attorney-client privilege might protect documents created during an internal corporate investigation about a plaintiff's suicide; remanding for further evidence; "Unlike other, qualified privileges, such as the work-product privilege, great need and hardship cannot even begin to obviate the absolute attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2012-01-01 State KY B 9/13

Chapter: 2.402

Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *3-4 (W.D. Va. Oct. 6, 2011)
("As a general rule, '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure, even for the purpose of administering justice.' Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (Va. 1998) (internal citation and quotation marks omitted).").

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

Chapter: 2.402

Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *11 (W.D. Va. June 15, 2011)
("When the privilege applies, it protects all confidential communications between lawyer and client from disclosure. Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998); Better Gov't Bureau, Inc. v. McGraw, 106 F.3d 582, 600 (4th Cir. 1997).")

Case Date Jurisidction State Cite Checked
2011-06-15 Federal VA

Chapter: 2.402

Case Name: Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv00030, 2010 U.S. Dist. LEXIS 95668, at *5 (W.D. Va. Sept. 14, 2010)
("When it applies, 'it affords confidential communications between lawyer and client complete protection from disclosure.' Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).")

Case Date Jurisidction State Cite Checked
2010-09-14 Federal VA

Chapter: 2.402

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 444 (W.D. Va. 2009)
("The predominant purpose of attorney-client privilege is to afford 'all communications between attorney and client absolute and complete protection from disclosure.' In re Allen, 106 F.3d 582, 600 (4th Cir. 1997).")

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

Chapter: 2.402

Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 571 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [the medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); concluding that the attorney-client privilege did not protect communications between the new employer's president/CEO and the doctor's lawyer; "'Confidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment "are privileged from disclosure, even for the purpose of administering justice.""' (footnote omitted))

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

Chapter: 2.402

Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *4 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "When it applies, the privilege is absolute and, unlike the work product doctrine, cannot be overcome, 'even for the purpose of administering justice.'" (citation omitted)) [Woolridge, J.]

Case Date Jurisidction State Cite Checked
2008-02-12 State VA B 5/09 & 6/09

Chapter: 2.402

Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *8 (W.D. Va. Dec. 8, 2006)
("In Virginia, it appears to be 'well-settled that between an attorney and his client confidential communications made because of that relationship and concerning the subject matter of the attorney's employment, are privileged from disclosure, even for the purpose of administering justice. [Citing cases].' Seventh Dist. Committee v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (1971) (quoting Grant v. Harris, 116 Va. 642, 648-49, 82 S.E. 718, 719 (1914). It is equally well-settled that the privilege is for the benefit of the client and may be waived. See Tate v. Tate, 75 Va. 522, 533 (1881).")

Case Date Jurisidction State Cite Checked
2006-12-08 Federal VA

Chapter: 2.402

Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *14 n.6 (W.D. Va. Dec. 8, 2006)
("The fundamental holding in Lee [State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 13 P.3d 1169 (Ariz. 2000)] is that in Arizona the attorney-client privilege is waived in any case where the party asserting the privilege contends that its conduct was proper and legally permissible [sic]. State Farm Mut. Auto. Ins. Co. V. Lee, 13 P.3d at 1179. On its face this holding appears to stand in stark contrast to the holding of the Virginia Supreme Court that the privilege exists even when its assertion works contrary to the general administration of justice.")

Case Date Jurisidction State Cite Checked
2006-12-08 Federal VA

Chapter: 2.402

Case Name: Commonwealth of Va. v. Evans, 55 Va. Cir. 237, 242 (Va. Cir. Ct. 2001)
("Confidential communications between attorney and client 'are privileged from disclosure, even for the purpose of administering justice.' Commonwealth v. Edwards, 235 Va. 499, 508-510, 370 S.E.2d 296, 301 (1988) (quoting Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914)).")

Case Date Jurisidction State Cite Checked
2001-01-01 State VA

Chapter: 2.402

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 185 (Va. Cir. Ct. 2000)
("As declared by the Supreme Court of Virginia and as is well established in common law, '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure, even for the purpose of administering justice.' Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296 (1988).")

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

Chapter: 2.402

Case Name: S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 242 (Va. Cir. Ct. 1993)
("Confidential communications between an attorney and his client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure, 'even for the purpose of administering justice.' Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718 (1914).")

Case Date Jurisidction State Cite Checked
1993-01-01 State VA B 12/09

Chapter: 2.402

Case Name: Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914)
("It is conceded, and if it were not it is well settled, that confidential communications between an attorney and his client made because of that relationship and concerning the subject matter of the attorney's employment, are privileged from disclosure, even for the purpose of administering justice.")

Case Date Jurisidction State Cite Checked
1914-01-01 State VA

Chapter: 2.403

Case Name: Allstate Ins. Co. v. Warns, Civ. No. CCB-11-1846, 2013 U.S. Dist. LEXIS 44507, at *5 (D. Md. Mar. 28, 2014)
("Privileged information is simply not available in discovery, regardless of the opposing party's desire to review it.")

Case Date Jurisidction State Cite Checked
2014-03-28 Federal MD B 3/14

Chapter: 2.403

Case Name: Earthworks v. U.S. Dept. of the Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *6-7 (D.D.C. Apr. 2, 2013)
("Having reviewed more privilege logs and assertedly privileged documents than I care to remember, I can state with certainty that the overwhelming majority of 'privileged' documents are insignificant, and their disclosure would never prejudice the party claiming the privilege or place that party at any tactical disadvantage. Simply put, in my almost 15 years of being a magistrate judge and my more than 40 years of practicing law, I am still waiting to see that 'smoking gun' -- the privileged document that makes a substantial difference to whether a case is won or lost. This case is no different. To date, I have not seen a single document in this case that, if revealed, would harm the DOI's position in this litigation.")

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

Chapter: 2.403

Case Name: Collins v. Braden, 384 S.W.3d 154, 160 (Ky. 2012)
(holding that the attorney-client privilege might protect documents created during an internal corporate investigation about a plaintiff's suicide; remanding for further evidence; "Ms. Collins complains specifically that the statements included in the documents could not have been made in furtherance of legal services because the policies were aimed at avoiding discovery. She points to the deposition testimony of John Hensen, the CEO of the hospital, in which he stated: 'Because unfortunately, the Commonwealth of Kentucky has deemed that type of information to be discoverable if it's submitted to the Joint Commission and in my professional opinion, I can't put the hospital at harm by allowing that to be discoverable ....'"; "While this was inartfully stated by the CEO, the very purpose of allowing a privilege for statements made in confidence to an attorney or his representative is so that those statements cannot be discovered.")

Case Date Jurisidction State Cite Checked
2012-01-01 State KY B 9/13

Chapter: 2.404

Case Name: Liberty International Underwriters Canada v. Scottsdale Ins. Co., Civ. No. 12-4934 (NLH/JS), 2015 U.S. Dist. LEXIS 172612 (D.N.J. Dec. 29, 2015)
(analyzing the at issue doctrine, and ultimately remanding; "[T]he Magistrate Judge noted that the attorney-client privilege may be pierced where (1) there is a legitimate need for the requested information, (2) the information is relevant and material, and (3) the information could not be obtained from a less intrusive source.")

Case Date Jurisidction State Cite Checked
2015-12-29 Federal NJ

Chapter: 2.404

Case Name: Liberty International Underwriters Canada v. Scottsdale Ins. Co., Civ. No. 12-4934 (NLH/JS), 2014 U.S. Dist. LEXIS 170722 (D.N.J. Dec. 10, 2014)
("Importantly, however, under New Jersey law the attorney-client privilege is qualified. In re Kozlov, 79 N.J. 232, 398 A.2d 882 (1979). It is now well settled that the attorney-client privilege may be pierced where there are 'other important societal concerns.'")

Case Date Jurisidction State Cite Checked
2014-12-10 Federal NJ

Chapter: 2.404

Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
(finding that New Jersey recognized the common interest doctrine, inexplicably applying it to the work product context as well as the privilege context; citing the Restatement's provision of finding the common interest doctrine to "non-litigated" matters; "We recognize, however, that any privilege, including the attorney-client privilege or the protection afforded to work product, restricts the disclosure of information, even highly relevant information, and may intrude on the fact-finding function of litigation. Kociolek, supra, 23 N.J. at 414-15, 129 A.2d 417. Yet, those concerns do not warrant adoption of the most conservative formulations of the common interest rule, such as requiring that the interests of the parties be completely congruent or identical . . . Or requiring a threat of actual litigation . . . Or requiring that the common interest be legal rather than purely commercial.")

Case Date Jurisidction State Cite Checked
2014-07-21 State NJ

Chapter: 2.404

Case Name: O'Boyle v. Borough of Longport, A-16 Sept. Term 2012, 070999, 2014 N.J. LEXIS 787 (N.J. July 21, 2014)
("The privilege must yield, however, in furtherance of 'overriding public policy concerns,' or other important societal concerns.")

Case Date Jurisidction State Cite Checked
2014-07-21 State NJ

Chapter: 2.404

Case Name: O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014)
September 10, 2014 (PRIVILEGE POINT)

"New Jersey Supreme Court Recognizes the Common Interest Doctrine: Part II"

Last week's Privilege Point discussed the New Jersey Supreme Court's recognition of the common interest doctrine. O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014). That decision addressed two other issues worth noting.

First, the court reiterated an attorney-client privilege principle unique to New Jersey. In that state, unlike any other state, "[t]he privilege must yield . . . In furtherance of 'overriding public policy concerns,' . . . Or other important societal concerns." Id. At 309 (citation omitted). Second, the New Jersey court followed a few other courts in analyzing the common interest doctrine in a setting where it may not even have been relevant. The case involved a private lawyer and a municipal lawyer cooperating in their responses to a resident's lawsuits and Open Public Records Act requests. Most of the shared documents would seem to deserve work product protection. Because courts agree that disclosing work product to friendly third parties does not waive that robust protection, most courts do not even address the common interest doctrine in the work product context. Instead, courts insist that participants meet the demanding common interest doctrine standard only when seeking to avoid a waiver of the much more fragile attorney-client privilege protection. The O'Boyle decision recognized that "there are circumstances when disclosure of work product to a third party . . . Does not waive the protection afforded to it." Id. At 312. The court also acknowledged that "[d]isclosure consistent with the common interest rule is one of those circumstances," but its decision may mistakenly cause some to think that they must meet the exacting common interest doctrine standard to avoid waiving work product protection. Id. (emphasis added).

One of the great ironies of the common interest doctrine is that just when it becomes available in most courts (when the participants are in or anticipate litigation), it is not needed. Participants in that context usually can share their work product without risking a waiver — even without a common interest agreement.

Case Date Jurisidction State Cite Checked
2014-01-01 Federal NJ
Comment:

key case


Chapter: 2.404

Case Name: Rhodes v. Marix Servicing, LLC, Civ. A. No. 3:12-1636 (MAS), 2013 U.S. Dist. LEXIS 116989, at *9-10 (D. N.J. Aug. 19, 2013)
("In this case, the Court concludes that the attorney-client privilege between Zucker and Marix, to the extent it existed, must be pierced. That is to say, all three factors set forth in Kozlov [Matter of Kozlov, 398 A.2d 882 (N.J. 1979)] are met. First, there is a legitimate need for the communications between Zucker [defendant, and also Matrix's lawyer] and Marix, as those communications are the basis for both Defendants' 'bona fide error' defense. Second, the communications are relevant and material to the issue before the Court as both Zucker and Marix each claim that they relied on the representations of the other to justify their own actions. In other words, the propriety of either Zucker's or Marix's 'bona fide error' defense depends on the discussions between them. Finally, it is clear that Plaintiffs would be unable to acquire this information from any less intrusive source because Zucker and Marix are the only parties which possess the information Plaintiffs seek. Zucker's claims regarding privilege are therefore overruled. Zucker is directed to supplement its previous discovery responses.")

Case Date Jurisidction State Cite Checked
2013-08-19 Federal NJ B 4/14

Chapter: 2.404

Case Name: Rhodes v. Marix Servicing, LLC, Civ. A. No. 3:12-1636 (MAS), 2013 U.S. Dist. LEXIS 116989, at *9 (D. N.J. Aug. 19, 2013)
("In New Jersey, therefore, the attorney-client privilege is not absolute, and may be pierced when there are 'other important societal concerns.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-08-19 Federal NJ B 4/14

Chapter: 2.502

Case Name: In re Baytown Nissan Inc. v. Gray, No. 01-14-00704-CV, 2014 Tex. App. LEXIS 12197 (Tex. Ct. App. Nov. 7, 2014)
(granting a writ of mandamus, and holding that the privilege did not protect communications between a lawyer for an automobile dealer and the general counsel of a dealer association; also finding that the association general counsel was not a "representative" of the dealer for work product purposes; "Although Gray provided statements regarding his belief that the conversation was subject to attorney-client privilege and would be kept confidential, such unstated subjective beliefs do not give rise to an attorney-client relationship by implication.")

Case Date Jurisidction State Cite Checked
2014-11-07 State TX

Chapter: 2.502

Case Name: Braun v. Medtronic Sofamor Danek, Inc., Case No. 2:10-CV-1283, 2013 U.S. Dist. LEXIS 122789, at *7-8 (D. Utah Aug. 27, 2013)
("While it is true that Mr. Sherman [defendant's employee] and Dr. Ogilvie [third party] may have intended their communications as co-inventors to be private, ultimately their intentions are not determinative as to the issue of whether or not the communication is legally privileged.")

Case Date Jurisidction State Cite Checked
2013-08-27 Federal UT B 4/14

Chapter: 2.502

Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM)(FM), 2013 U.S. Dist. LEXIS 96721, at *25-26, 26-27 (S.D.N.Y. July 8, 2013)
(analyzing the "touch base" test, and finding the privilege inapplicable because the in-house lawyer practicing in the Netherlands was not actually licensed anywhere; "The facts here are not at all comparable to those in Gucci II [Gucci Am., Inc. v. Guess?, Inc., No. 09 Civ. 4373 (SAS), 2011 U.S. Dist. LEXIS 15 (S.D.N.Y. Jan. 3, 2011)]. At the outset, it is undisputed that Mr. Boonstra [in-house lawyer for Citco Bank Nederland] is not -- and never has been -- licensed in any jurisdiction. Second, there is no evidence that Mr. Boonstra ever held himself out as a licensed attorney or performed tasks (such as appearing in court) that would have suggested that he was admitted to the Netherlands bar. Third, although in-house counsel must be admitted to the bar in order to practice in the United States, in-house lawyers in the Netherlands are permitted to be, and frequently are, unlicensed. Moreover, Dutch law requires that the employer of a licensed in-house attorney sign a professional charter committing the employer to honor its attorney's independence. . . . Given that affirmative obligation, the Citco Defendants cannot credibly argue that they were reasonably mistaken as to Mr. Boonstra's licensure status."; "Finally, even if the Citco Defendants mistakenly believed that Dutch law protected their communications with an unlicensed in-house attorney, the reasonable belief exception would not apply. Such an argument necessarily is predicated upon a mistake of law, but the reasonable belief exception applies only in situations where the client makes an 'excusable mistake of fact.'. . . Indeed, a 'client's beliefs, subjective or objective, about the law of privilege [do not] transform an otherwise unprivileged conversation into a privileged one.'. . . The Citco Defendants' erroneous views on Dutch privilege law therefore cannot form the basis for the relief they presently seek.")

Case Date Jurisidction State Cite Checked
2013-07-08 Federal NY B 4/14

Chapter: 2.502

Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM) (FM), 2013 U.S. Dist. LEXIS 96721, at *25-26, 26-27 (S.D.N.Y. July 8, 2013)
(finding the privilege inapplicable to a communication with an unlicensed in-house Dutch lawyer; finding that the Gucci II holding inapplicable; "The facts here are not at all comparable to those in Gucci II. At the outset, it is undisputed that Mr. Boonstra is not -- and never has been -- licensed in any jurisdiction. Second, there is no evidence that Mr. Boonstra ever held himself out as a licensed attorney or performed tasks (such as appearing in court) that would have suggested that he was admitted to the Netherlands bar. Third, although in-house counsel must be admitted to the bar in order to practice in the United States, in-house lawyers in the Netherlands are permitted to be, and frequently are, unlicensed. Moreover, Dutch law requires that the employer of a licensed in-house attorney sign a professional charter committing the employer to honor its attorney's independence. . . . Given that affirmative obligation, the Citco Defendants cannot credibly argue that they were reasonably mistaken as to Mr. Boonstra's licensure status."; also holding that the privilege would not be applicable even if a company misunderstood Dutch law's lack of protection; "[E]ven if the Citco Defendants mistakenly believed that Dutch law protected their communications with an unlicensed in-house attorney, the reasonable belief exception would not apply. Such an argument necessarily is predicated upon a mistake of law, but the reasonable belief exception applies only in situations where the client makes an 'excusable mistake of fact.'. . . Indeed, a 'client's beliefs, subjective or objective, about the law of privilege [do not] transform an otherwise unprivileged conversation into a privileged one.'. . . The Citgo Defendants' erroneous views on Dutch privilege law therefore cannot form the basis for the relief they presently seek.")

Case Date Jurisidction State Cite Checked
2013-07-08 Federal NY B 9/13

Chapter: 2.502

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