Showing 82 of 82 results

Chapter: 21.3

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)
(holding that documents a testifying expert disclosed to a third person were no longer privileged; "A number of Hine [Lawyer for decedent] documents, asserted to be privileged, are not privileged because they show on their face that they comprise communications made with or transmitted to third-parties outside of the attorney-client relationship, or they comprise documents made for the purpose of being conveyed by the attorney to others, rather than comprising communications made in confidence in the course of giving legal advice.")

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

Chapter: 21.3

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)
("A client communication made for the purpose of effectuating a real estate closing inherently must be made in contemplation of ultimate public disclosure. Therefore, no intention of confidentiality, and thus no privilege, exists."; "In real estate transactions, such public divulgence clearly occurs, at the latest, upon recordation at closing. Even if it could be argued, which Movant does not, that a client communication made in connection with a real estate closing was intended to remain confidential indefinitely, the public filings at closing would eviscerate the client's ability to later protect that communication or its underlying details via privilege. This conclusion is further bolstered in the instant case by the fact that Movant provided dual representations in the subject real estate transactions."; "Here, the Court finds informative not only the type of services Movant performed but also the manner in which the services were provided. The Court has already discussed the attorney-client privilege's general inapplicability to communications made in connection with real estate transactions. These same principles are particularly true where, as is common in North Carolina, closing attorneys represent both the buyer and seller in a single transaction. Because clients contemplate real estate transactions before approaching closing attorneys, the attorney may be said to be employed to 'convey information to third parties rather than to provide legal advice for the client's own guidance.' (Under Seal), 748 F.2d at 875. Indeed, dual representations are commonplace in real estate transactions precisely because both sides intend the attorney to act as a repository of information, facilitate the exchange of that information between the parties, and thereby catalyze the deal's execution."; "While attorneys performing this function undoubtedly owe each side some ethical duty of confidentiality, privilege is far narrower in its application. The Court finds that both the nature and type of services provided by an attorney in a dual representative capacity in a real estate transaction would not only reasonably, but necessarily, be expected to entail publication of a client's communications. Therefore, no attorney-client privilege exists in such circumstances.")

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

Chapter: 21.3

Case Name: Colon v. The City of New York, 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483, at *5-6 (S.D.N.Y. July 8, 2014)
(holding that the privilege protected a client's draft letter sent to a lawyer for privilege advice, as long as the letter was never sent to a third party; "Had the letter at issue actually been sent to a journalist (or other third party), it plainly would not qualify as privileged. . . . But Plaintiff did not send or otherwise disclose the letter to the addressee; instead, he sent it to his attorney as part of a confidential communication to obtain legal advice.")

Case Date Jurisidction State Cite Checked
2014-07-08 Federal NY

Chapter: 21.3

Case Name: United States of America v. Fulwood, No. 12-11821, 2014 U.S. App. LEXIS 11124 (11th Cir. June 16, 2014)
(holding that the client intended to disclose a witness's video, so it did not trigger waiver to make such a disclosure)

Case Date Jurisidction State Cite Checked
2014-06-16 Federal

Chapter: 21.3

Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2-15 U.S. Dist. LEXIS 20859, at *6 (D. Conn. Feb. 19, 2014)
("Document 2 (WFP002) is not protected by the attorney-client privilege because it contemplates disclosure of its contents to a third party. In fact, the correspondence from Attorney Neigher provides talking points for use by the ABAC [Plaintiff] spokesman.")

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

Chapter: 21.3

Case Name: United States v. Nosal, No. CR-08-0237 EMC, 2013 U.S. Dist. LEXIS 49745, at *10 (N.D. Cal. Apr. 5, 2013)
("Defendant has apparently been provided with 'dozens of emails between O'Melveny [outside lawyer for defendant's former employer] and the government exchanging information demonstrating that Korn/Ferry [defendant's former employer] intended to share its witness communications with the government,' but he points to no specific facts indicating that O'Melveny actually shared the information in question with the government." (internal citation omitted))

Case Date Jurisidction State Cite Checked
2013-04-05 Federal CA B 3/14

Chapter: 21.3

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *17-18 (E.D. Va. Dec. 14, 2012)
("Most of the documents that ePlus identifies as missing author and recipient information identify either an author or a recipient; typically, an author only. Lawson's response is, quite simply, that 'failure to log author or recipient information is only a deficiency if the document on the log is the type that would actually have that information.' . . . . This proposition is plainly correct. Some documents clearly are, as Lawson argues, documents that 'by their nature as stand-alone documents . . . do not have a recipient.' . . . . Based on the Court's review of the privilege log, and its review of the underlying documents, the vast majority of the challenged documents fall into this category. A significant percentage of the documents are drafts of declarations, motions, contracts, briefs, and other similar documents. Other examples include evidently free-standing outlines, notes, and commentaries. The failure to list a recipient for these documents is not a deficiency in the privilege log and, more importantly, the narrative description for these entries would allow a party seeking to challenge the claim to privilege to determine that these were documents of this sort. At the hearing on this motion, the Court raised the possibility that some number of the documents at issue might not be privileged at all as a result of their being prepared for public consumption. . . . . The Court noted that such documents are not subject to attorney-client privilege, but that they might constitute protected work product. . . . . The Court's observation was based on the holding of the United States Court of Appeals in United States v. (Under Seal), 748 F.2d 871 (4th Cir. 1984).")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA

Chapter: 21.3

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 67 (E.D. Va. 1998)
("As a necessary corollary to the expectation-of-confidentiality doctrine, the attorney-client privilege does not extend to documents or communications relating to matters the client reveals or intends to reveal to others."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

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

Chapter: 21.3

Case Name: United States v. (Under Seal), 748 F.2d 871, 876-77 (4th Cir. 1984)
(holding that some documents prepared in connection with obtaining a tax ruling were not privileged because they were prepared in anticipation of disclosure)

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

Chapter: 21.4

Case Name: U.S. Bank Nat'l Ass'n v. Lightstone Holdings LLC, No. 651951/2010, 2016 NY Slip Op 30644(U), at 6 (N.Y. Sup. Ct. Apr. 12, 2016)
("Here Cadwalder [non-party law firm] was providing information as it relates to the priority of the guaranty under 15(q) of the ICA [Inter-creditor Agreement] that was intended to be transmitted to a third party. If it is understood that the information between an attorney and client made privately was to be conveyed to others then it is not confidential . . . . There can therefore be no reasonable expectation of privacy of this information in order to confer the stature of privileged communication.")

Case Date Jurisidction State Cite Checked
2016-04-12 Federal NY B 8/16

Chapter: 21.4

Case Name: United States v. White, Crim. No. 3:11-2303-CMC, 2013 U.S. Dist. LEXIS 68159, at *11 (D.S.C. Apr. 12, 2013)
(holding that the privilege did not protect information a bankrupt debtor provided his lawyer for inclusion in bankruptcy schedules; "[T]he court concludes that the attorney-client privilege does not apply here, where the government is seeking information from Pearson's attorney regarding the formulation of the bankruptcy schedules, which were subsequently publicly filed.")

Case Date Jurisidction State Cite Checked
2013-04-12 Federal SC B 7/13

Chapter: 21.4

Case Name: State ex rel. Ash v. Swope, 751 S.E.2d 751, 756, 756-57, 757 n.3, 757 (W.Va. 2013)
("[W]e hold that, because many aspects of a guardian ad litem's representation of an incarcerated person in a family court proceeding comprise duties that are performed by a lawyer on behalf of a client, the rules of professional conduct generally apply to that representation."; "Turning to the instant case, we find that Mr. Hoston [respondent] cannot satisfy the third element in Burton [State v. Burton, 254 S.E.2d 129 (W.Va. 1979)]. Mr. Hoston directed Lawyer Cline to tell 'the [family] court and everybody in this [court]room that he intended to kill Ms. Martin if she pursued the domestic violence petition against him. In order to assert an attorney-client privilege, the communication must be intended to be confidential. This case presents a clear example of a communication that is not intended to be confidential, rather, it was intended to be disseminated to everyone at the family court hearing. '[S]tatements made by a client to an attorney are not within the attorney-client privilege if the information is given with the intent that it be used and disseminated to third parties.'" (citation and footnote omitted); "In his brief to this Court, Mr. Hoston argues that he 'was not actually directing Mr. Cline to deliver a threat, but was, in fact, blowing off steam.' This assertion is belied by the fact that Mr. Hoston told Lawyer Cline three times that he wanted this threat made at the family court hearing. Further, Mr. Hoston's threat was specific: he not only stated that he was going to kill Ms. Martin, but also stated where he was going to do it -- at her place of employment."; "Mr. Hoston not only consented to Lawyer Cline revealing the information he communicated to him, Mr. Hoston ordered Lawyer Cline to reveal the information to everyone at the family court hearing. Because Mr. Hoston ordered Lawyer Cline to reveal this information to a third party, he cannot maintain a claim of attorney-client privilege under Rule 1.6 of the Rules of Professional Conduct.")

Case Date Jurisidction State Cite Checked
2013-01-01 State WV B 6/14

Chapter: 21.4

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 138 (D.D.C. 2013)
(analyzing the impact of plaintiff Feld seeking reimbursement from an insurance company of fees he spent in successfully handling underlying litigation; "[F]or example, the following categories of communications are not shielded from disclosure by the privilege: communications from Fulbright [law firm which represented Feld in the underlying litigation] to Feld about FFIC's position that did not rest on any confidential information obtained from Feld . . .; information on rates relayed by Feld to Fulbright with the intent that it then be conveyed to FFIC . . .; and communications regarding 'fees, costs and invoices,' including any fee arrangement between Feld and Fulbright, that do not reveal litigation strategy or other confidences about the Underlying Action." (internal citation omitted))

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

Chapter: 21.4

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *17 (E.D. Va. Dec. 3, 2012)
("Particularly in the bankruptcy context, certain communications between client and counsel are not privileged. Indeed, Krumbein alluded to this fact when he advised Moazzeni that 'in bankruptcy proceedings . . . there's really basically no attorney-client privilege.'. . . While Krumbein's point may be an overly broad generalization, it stems from the requirement that all assets be disclosed in the bankruptcy schedules, rendering certain information a matter of public record. Thus, when a client discloses his or her assets to a lawyer for inclusion in the schedules, that disclosure of information to the attorney is not generally privileged.")

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

Chapter: 21.4

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *9 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "It is well-established that providing factual matter to an attorney for preparation of documents intended for third-party transmission does not bring those facts within the protection of the privilege. . . . Due to the nature of bankruptcy proceedings, such non-privileged information is frequently passed from client to counsel, who then uses the information to prepare documents.")

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

Chapter: 21.4

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *17 (E.D. Va. Dec. 3, 2012)
("Particularly in the bankruptcy context, certain communications between client and counsel are not privileged. Indeed, Krumbein [lawyer] alluded to this fact when he advised Moazzeni that 'in bankruptcy proceedings . . . there's really basically no attorney-client privilege.'. . . While Krumbein's point may be an overly broad generalization, it stems from the requirement that all assets be disclosed in the bankruptcy schedules, rendering certain information a matter of public record. Thus, when a client discloses his or her assets to a lawyer for inclusion in the schedules, that disclosure of information to the attorney is not generally privileged. See, e.g., White, 950 F.2d at 430 ('When information is disclosed for the purpose of assembly into a bankruptcy petition and supporting schedules, there is no intent for the information to be held in confidence . . .'). Several communications between Moazzeni and his lawyers are not privileged for this reason.")

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

Chapter: 21.4

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *9 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "It is well-established that providing factual matter to an attorney for preparation of documents intended for third-party transmission does not bring those facts within the protection of the privilege. . . . Due to the nature of bankruptcy proceedings, such non-privileged information is frequently passed from client to counsel, who then uses the information to prepare documents.")

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

Chapter: 21.4

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

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

Chapter: 21.4

Case Name: Fordham v. Onesoft Corp., Civ. A. No. 00-1078-A, 2000 U.S. Dist. LEXIS 23019, at *10 (E.D. Va. Nov. 6, 2000)
("By the Defendants' own admission OneSoft 'provided [attorney] Mintz Levin with confidential information describing the inventions in order to assist it in the preparation of that patent applications.' . . . Such admission supports a finding that the draft patent applications were not a request for legal advice. Judge Jones did not commit clear error in his October 6, 2000 Order. Therefore, this Court affirms the conclusions reached by Judge Jones that Defendants' draft patent applications are not privileged.")

Case Date Jurisidction State Cite Checked
2000-11-06 Federal VA

Chapter: 21.4

Case Name: Shores v. Henderson, 35 Va. Cir. 508, 509 (Va. Cir. Ct. 1993) (
holding that a client waived the privilege otherwise applicable to communications with his lawyer by authorizing the lawyer to "make an offer of settlement or to accept an offer of settlement" because "the information was communicated to his attorney with the understanding that it would be revealed to others")

Case Date Jurisidction State Cite Checked
1993-01-01 State VA

Chapter: 21.4

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1306 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "For example, if a client communicates with his attorney with the intent or understanding that the attorney will reveal the content of the communication to others, the privilege is waived."; 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: 21.4

Case Name: Commonwealth v. Edwards, 235 Va. 499, 509-10, 370 S.E.2d 296, 301 (Va. 1988)
("When a client communicates information to his attorney with the understanding that the information will be revealed to others, the disclosure to others effectively waives the privilege 'not only to the transmitted data but also as to the details underlying that information.' In other words, 'The client's offer of his own or the attorney's testimony as to a part of any communication to the attorney is a waiver as to the whole of that communication, on the analogy of the principle of completeness.'" (citation omitted) (emphasis added))

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

Chapter: 21.4

Case Name: In re Grand Jury Proceedings (John Doe), 727 F.2d 1352, 1358 (4th Cir. 1984)
(holding that a lawyer could not withhold from a Grand Jury communications about a prospectus that was intended to be published but ultimately never was; "Similarly, here, it is irrelevant that no prospectus was ever actually issued in this case. The significant fact is that the information given the petitioner was to assist in preparing such prospectus which was to be published to others and was not intended to be kept in confidence. That is the critical circumstance, to wit, the absence of any intent that the information was to be kept confidential. Remembering that the privilege itself is not 'favored' and is to be 'strictly confined within the narrowest possible limits,' we have no difficulty in concluding under the admitted facts of this case that all information given the petitioner by any of the joint venturers connected with the subject-matter of the proposed issuance of participations is without the protection of the attorney-client privilege.")

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

Chapter: 21.5

Case Name: Brown v. Greyhound Lines, Inc., No. 1167 EDA 2015, No. 1169 EDA 2015, No. 1174 EDA 2015, No. 1602 EDA 2015, No. 1866 EDA 2015, No. 1879 EDA 2015, No. 1931 EDA 2015, No. 1932 EDA 2015, 2016 Pa. Super. LEXIS 288 (Pa. Super. May 24, 2016)
(holding that under Pennsylvania's work product rule, the protection does not extend to a mock deposition; "The fourth order appealed relates to Passengers' motion seeking production of a video of a practice deposition, a/k/a a 'mock deposition,' of Bus Driver that the trial court previously had ordered to be produced in the April 1, 2015 order. The videotaped mock deposition of Bus Driver had never been disclosed on any privilege log."; explaining that the Pennsylvania work product rule covers lawyers' opinion but not other litigation-related material; "Passengers maintain that Bus Driver's videotaped statement is akin to Appellants taking a statement at the scene. . . . They assert that Appellants do not dispute the proposition that the videotaped statement is a 'statement.'. . . The mock deposition was conducted so that Bus Driver's counsel would know what Bus Driver would say at her deposition. As Passengers note, the entire exercise 'was to elicit information that was intended to be disclosed to other parties.'. . . Passengers posit that the information conveyed by Bus Driver 'was never intended to be confidential.'. . . We agree."; "[A]s Passengers urge, and in the absence of an affidavit, statement, or testimony in support of the circumstances, Greyhound has not demonstrated that Bus Driver had a reasonable expectation that the videotaped statement would remain confidential. . . . Therefore, even if we could find sufficient particularity in Greyhound's brief regarding this issue to avoid waiver, we would conclude that it failed to sustain its burden of proof regarding the assertion of privilege as to the mock deposition tape.")

Case Date Jurisidction State Cite Checked
2016-05-24 Federal PA

Chapter: 21.5

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

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

Chapter: 21.5

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)
(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "[A] four-page 'Question and Answer' sheet prepared by Ford's media department, which addressed concerns related to sudden unexpected acceleration. The 'Q&A' sheet was triggered by a highly-publicized, large-scale vehicle recall by Toyota Motor Company after several of its vehicles were implicated in fatal crashes thought to be connected with events of sudden, unintended, and uncontrollable acceleration. Anticipating that Toyota's situation would open the floodgates of media attention on the issue of unintended acceleration, Ford decided to prepare for the inquiries. Once a Q&A sheet was drafted, the document was circulated to a handful of Ford employees for review and comment. Included in that group of employees was Jay Logel, an attorney in Ford's Office of the General Counsel. . . . Mr. Logel reviewed the document and made substantive alterations to the answers, providing commentary and explanations with many of the proposed changes. . . . Mr. Logel's revision of the draft Q&A sheet ('the Logel document') is the document at issue in Plaintiffs' motion.")

Case Date Jurisidction State Cite Checked
2015-04-14 Federal WV
Comment:

key case


Chapter: 21.5

Case Name: Commonwealth v. Evans, 55 Va. Cir. 237, 243 (Va. Cir. Ct. 2001)
(noting that "the attorney-client privilege does not protect the statement attributable to the defendant if he gave express or implied authorization to his attorney to turn the statement over to the prosecutor")

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

Chapter: 21.5

Case Name: Commonwealth of Va. v. Evans, 55 Va. Cir. 237, 243 (Va. Cir. Ct. 2001)
("While the privilege may extend, under some circumstances, to communications among co-defendants and their attorneys when engaged in consultation about their joint defense, see Chahoon v. Commonwealth, 62 Va. 822, 836-42 (1871); Hicks v. Commonwealth, 17 Va. App. 535, 537, 439 S.E.2d 414, 415 (1994), the privilege cannot possibly apply to communications between a defendant and a Commonwealth's Attorney during an ongoing criminal prosecution. And when a client provides information to his attorney 'with the understanding that the information will be revealed to others, the disclosure to others effectively waives the privilege not only to the transmitted data but also as to the details underlying that information.' See Edwards, 235 Va. at 509-10, 370 S.E.2d at 301.")

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

Chapter: 21.5

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 67 (E.D. Va. 1998)
("As a necessary corollary to the expectation-of-confidentiality doctrine, the attorney-client privilege does not extend to documents or communications relating to matters the client reveals or intends to reveal to others."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

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

Chapter: 21.5

Case Name: Virginia-Lincoln Furniture Corp. v. Southern Factories & Stores Corp., 162 Va. 767, 785, 174 S.E. 848, 856 (1934)
("'No communication to a lawyer for the express purpose of having it brought to the attention of the public or communicated to another is privileged.'")

Case Date Jurisidction State Cite Checked
1934-01-01 State VA

Chapter: 21.5

Case Name: Stein v. Morris, 91 S.E. 177, 179-80 (Va. 1917)
("No communication to a lawyer for the express purpose of having it brought to the attention of the public, or communicated to another, is privileged."; holding that the privilege did not apply because "the very thing [the lawyer] was asked to do necessarily involved his discussing [another's] plan and making it known to the public")

Case Date Jurisidction State Cite Checked
1917-01-01 State VA

Chapter: 21.6

Case Name: SCF Waxler Marine LLC v. M/V Aris T, C. A. No. 16-902C/W16-959,16-1022,16-1060,16-1134,16-1614 Sec. "A"(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017)
(holding that a draft incident report deserved privilege protection, although the final version was intended to be disclosed; "[J]ust because a factual statement is ultimately disclosed to the public, this does not mean that all drafts of the factual statement automatically lose any privilege that is attached to them. Natta v. Hogan, 392 F.2d 686, 692 (10th Cir. 1968) ('The situation is like that where a client gives general information to his lawyer so that the lawyer may prepare a complaint in any ordinary civil action. The fact that some of the information is thus publicly disclosed does not waive the privilege.'); Buford v. Holladay, 133 F.R.D. 487, 492 (S.D. Miss. 1990) (holding that the ultimate publication of Attorney General Opinions did not waive the privilege as to the communications leading up to the creation of the Opinions). Often, drafts of a document exchanged between an attorney and client will reflect the client's request for advice regarding how to present the facts and the attorney's advice in response. Ideal Electric Company v. Flowserve Corporation, 230 F.R.D. 603, 605 (D. Nev. 2005) ('Drafts often contain attorney's and client's mental impressions, strategies, and either solicit or provide legal advice.'). Such drafts are protected by the attorney client privilege. Total E & P USA Inc. v. Kerr-McGee Oil & Gas Corp., No. CIV.A. 09-6644, 2014 U.S. Dist. LEXIS 93881, 2014 WL 3385130, at *4 (E.D. La. July 10, 2014) (holding that redacted draft affidavits were protected by the attorney client privilege); United States v. N.Y. Metro. Transp. Auth., No. 03CV02139-SLT-MDG, 2006 U.S. Dist. LEXIS 93920, 2006 WL 3833120, at *2 (E.D.N.Y. Dec. 29, 2006) (holding that draft uniform policy bulletins 'need not be produced since they are draft documents that were submitted to attorneys for the purpose of obtaining legal advice'); Ideal Electric Company, 230 F.R.D. at 605 (holding that draft affidavits were protected from disclosure by the attorney-client privilege); Long v. Anderson Univ., 204 F.R.D. 129, 135 (S.D. Ind. 2001) (holding draft answer to a complaint was privileged); Apex Mun. Fund v. N-Grp. Sec., 841 F. Supp. 1423, 1428 (S.D. Tex. 1993) ('[P]reliminary drafts of documents and communications made between attorney and client during the drafting process are privileged.'); Allegheny Ludlum Corp. v. Nippon Steel Corp., No. CIV. A. 89-5940, 1991 U.S. Dist. LEXIS 5173, 1991 WL 61144, at *5 (E.D. Pa. Apr. 15, 1991) (holding that a draft patent application was privileged because the draft was not intended to be publicly transmitted and contained a communication within the attorney-client relationship for the purposes of rendering a confidential opinion)."; "Genesis now knows that contrary to what he suggested in his deposition, Leone [Ship Pilot] did not appear at his counsel's office with a contemporaneous written statement of events. Rather, it has been firmly established through in camera review and oral argument, that the first narrative of the accident was prepared by the attorney based on an interview of the client, Leone. Leone then handwrote in some changes to that draft prior to it becoming a final document, which was produced to NOBRA and others. Nonetheless, Genesis continues to insist that the drafts be discoverable so it can see any changes made. As reiterated in Ideal Electric Company and as discussed further below, however, it is 'these differences [that] are protected by the attorney client privilege and the work product privilege.'"; "[T]he Court finds that the ultimate disclosure of the final draft of the NOBRA Pilot Incident Report does not result in a waiver of the privilege. Just as in Ideal Electric Company, the Court finds that the drafts and notes were never intended to be made public. They were conveyed in confidence in the course of obtaining and giving legal advice. While Leone and his counsel were obviously working towards a document that would be made public, they did not intend that their drafts and analysis would be subject to disclosure. As the Court in Buford observed, the argument raised by Genesis here would result in disclosure of every draft of a pleading, brief, or affidavit that is exchanged between counsel and client merely because such drafts concern facts and the final draft is made public. At oral argument, counsel for Genesis seemed willing to live with this extraordinary result, but the Court finds that such a holding goes too far.")

Case Date Jurisidction State Cite Checked
2017-06-13 Federal LA
Comment:

key case


Chapter: 21.6

Case Name: Brown v. Greyhound Lines, Inc., No. 1167 EDA 2015, No. 1169 EDA 2015, No. 1174 EDA 2015, No. 1602 EDA 2015, No. 1866 EDA 2015, No. 1879 EDA 2015, No. 1931 EDA 2015, No. 1932 EDA 2015, 2016 Pa. Super. LEXIS 288 (Pa. Super. May 24, 2016)
(holding that under Pennsylvania's work product rule, the protection does not extend to a mock deposition; "The fourth order appealed relates to Passengers' motion seeking production of a video of a practice deposition, a/k/a a 'mock deposition,' of Bus Driver that the trial court previously had ordered to be produced in the April 1, 2015 order. The videotaped mock deposition of Bus Driver had never been disclosed on any privilege log."; explaining that the Pennsylvania work product rule covers lawyers' opinion but not other litigation-related material; "Passengers maintain that Bus Driver's videotaped statement is akin to Appellants taking a statement at the scene. . . . They assert that Appellants do not dispute the proposition that the videotaped statement is a 'statement.'. . . The mock deposition was conducted so that Bus Driver's counsel would know what Bus Driver would say at her deposition. As Passengers note, the entire exercise 'was to elicit information that was intended to be disclosed to other parties.'. . . Passengers posit that the information conveyed by Bus Driver 'was never intended to be confidential.'. . . We agree."; "[A]s Passengers urge, and in the absence of an affidavit, statement, or testimony in support of the circumstances, Greyhound has not demonstrated that Bus Driver had a reasonable expectation that the videotaped statement would remain confidential. . . . Therefore, even if we could find sufficient particularity in Greyhound's brief regarding this issue to avoid waiver, we would conclude that it failed to sustain its burden of proof regarding the assertion of privilege as to the mock deposition tape.")

Case Date Jurisidction State Cite Checked
2016-05-24 Federal PA

Chapter: 21.6

Case Name: United States of America v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 336 (4th Cir. 2003)
("Further, we reject the Government's 'public document' argument because it misconstrues the nature of the asserted privilege. The underlying communications between Counsel and Appellant regarding his submission of Form I 485 are privileged, regardless of the fact that those communications may have assisted him in answering questions in a public document. Adopting the Government's reasoning would lead to the untenable result that any attorney-client communications relating to the preparation of publicly filed legal documents -- such as court pleadings -- would be unprotected."), cert. denied, 541 U.S. 982 (2004)

Case Date Jurisidction State Cite Checked
2003-01-01 Federal

Chapter: 21.6

Case Name: United States of America v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 336 (4th Cir. 2003)
("Further, we reject the Government's 'public document' argument because it misconstrues the nature of the asserted privilege. The underlying communications between Counsel and Appellant regarding his submission of Form I 485 are privileged, regardless of the fact that those communications may have assisted him in answering questions in a public document. Adopting the Government's reasoning would lead to the untenable result that any attorney-client communications relating to the preparation of publicly filed legal documents -- such as court pleadings -- would be unprotected."), cert. denied, 541 U.S. 982 (2004)

Case Date Jurisidction State Cite Checked
2003-01-01 Federal N 12/08

Chapter: 21.6

Case Name: Commonwealth v. Edwards, 235 Va. 499, 509-10, 370 S.E.2d 296, 301 (Va. 1988)
("When a client communicates information to his attorney with the understanding that the information will be revealed to others, the disclosure to others effectively waives the privilege 'not only to the transmitted data but also as to the details underlying that information.' In other words, 'The client's offer of his own or the attorney's testimony as to a part of any communication to the attorney is a waiver as to the whole of that communication, on the analogy of the principle of completeness.'" (citation omitted) (emphasis added))

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

Chapter: 21.8

Case Name: Royal Park Investments SA/NA v. HSBC Bank USA Nat'l Assoc., 14-CV-08175 (LGS) (SN),14-CV-10101 (LGS) (SN),14-CV-09366 (LGS) (SN),15-CV-02144 (LGS) (SN),15-CV-10096 (LGS)(SN),15-CV-10032 (LGS)(SN), 2017 U.S. Dist. LEXIS 70989 (S.D.N.Y. May 8, 2017)
(holding that it was too late for the defendant to assert a defense of advice of counsel; "The Court ordered HSBC to make a final decision on its affirmative defense by January 27, 2017. It complied with that order insofar as it affirmed that it was not asserting the defense. HSBC's purported 'reservation of rights,' however, was unauthorized and therefore invalid.'; "The January 27, 2017 deadline was set to build in enough time in the discovery schedule to allow for the possibility of HSBC asserting the defense. Under the then-existing schedule, fact discovery would have closed two months after this deadline, which would have allowed time for HSBC to produce otherwise privileged communications and documents, and for the plaintiffs to review such information and conduct depositions accordingly."; "The Court's November 17, 2016 Order granted HSBC more than two months to evaluate its position with respect to the advice of counsel and provided an additional two months for the parties to readjust their litigation strategy should HSBC waive its privilege. Although HSBC argued to the Court at a hearing on this issue that it should be entitled to assert an advice of counsel privilege as late as a final pretrial conference, the Court's order reasonably managed this complex litigation to ensure a fair resolution of this issue without prejudice to any party. Of course, now discovery has been ongoing for many more months -- and the deadline was recently extended one final time until June 16, 2017. Nearly 100 depositions have been conducted and millions of pages of documents have been exchanged. HSBC still maintains that it is currently not asserting an advice of counsel defense and is relying on its privilege to shield otherwise relevant discovery; the Court should not permit it to change its mind at a later date.")

Case Date Jurisidction State Cite Checked
2017-05-08 Federal NY
Comment:

key case


Chapter: 21.8

Case Name: Russell v. CSK Auto, Inc., Civ. Case No. 14-14230, 2017 U.S. Dist. LEXIS 68806 (E.D. Mich. May 5, 2017)
(in an FMLA case, rejecting plaintiff's effort to prevent defendant former employer from using impeachment material at trial that defendant had withheld during discovery; "At issue in this motion in limine is a statement by Mr. Young. Mr. Young was asked to email a member of Defendant's human resources team a statement that included 'the circumstances that led to [Plaintiff's] reduction of pay' and a 'reply to his allegations that it was because he was on FMLA.'. . . The statement by Mr. Young was not provided to Plaintiff during discovery because Defendant alleged it was protected under the attorney-client privilege and work product doctrine."; "Plaintiff requests that this Court prohibit any document that was not turned over during discovery due to the attorney-client privilege from being used as impeachment evidence. . . . Defendant does not intend to introduce the statement as substantive evidence. . . . However, Defendant intends to question Mr. Young on whether his privileged statement is consistent with his testimony. . . . If Mr. Young's testimony conflicts with his privileged statement, Defendant contends that counsel is allowed to question him and if necessary, refresh his memory with his written statement."; "Here, Defendant does not intend to make their case based on the privilege document. Rather, Defendant contends they will only use the document, if necessary, to impeach the witness. . . . The substance of the statement will not be introduced at trial.")

Case Date Jurisidction State Cite Checked
2017-05-05 Federal MI

Chapter: 21.8

Case Name: MacDermid Printing Solutions LLC v. Cortron Corporation, No. 15-589-cv, 2016 U.S. App. LEXIS 14662 (2nd Cir. App. Aug. 10, 2016)
(holding that a litigant which withholds documents has privileged or protected work product during discovery cannot use them at trial; "A district court 'may be fully entitled' to preclude the presentation of evidence 'about matters previously hidden from discovery through an invocation of' privilege, if a party has manipulated the privilege 'primarily to abuse, manipulate or gain an unfair strategic advantage over opposing parties.' Here, however, we agree with the District Court that MacDermid did not proceed in bad faith. To the contrary, MacDermid vigorously defended its privilege until the United States District Court for the District of New Jersey made a finding of waiver over MacDermid's objection. MacDermid then promptly sought to introduce the newly unprivileged evidence in the instant litigation.")

Case Date Jurisidction State Cite Checked
2016-08-10 Federal

Chapter: 21.8

Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2768, 2016 U.S. Dist. LEXIS 7477, at *29 (E.D. Pa. Jan. 22, 2016)
("Defendants have consistently invoked the attorney-client privilege while assuring Plaintiffs and this Court that they will not state or imply that their decisions to settle the Paragraph IV litigation were premised on the advice of counsel. Defendants have reaffirmed these positions in the motion currently before me. While it is expressly within Defendants' rights to assert the privilege, I have repeatedly advised Defendants, and I do so again here, that any last minute reversal of this position will not be allowed.")

Case Date Jurisidction State Cite Checked
2016-01-22 Federal PA B 7/16
Comment:

key case


Chapter: 21.8

Case Name: Fosbre v. Las Vegas Sands Corp., Case No. 2:10-cv-00765-APG-GWF Consolidated with: Case No.: 2:10-cv-01210-APG-GWF, 2016 U.S. Dist. LEXIS 5422 (D. Nev. Jan. 14, 2016)
(holding that defendant would not be able to rely on an advice of counsel argument at trial because they had not allowed discovery into privileged communication during pre-trial, but that they claim "good faith" reliance on others such as financial advisors without waiving their privilege protection; "Defendants allege only that they relied in good faith upon information provided by others. They have not alleged that they relied on the advice of counsel. Because Defendants assert the attorney-client privilege, they are also precluded from asserting reliance on the advice of counsel as a defense at trial. In regard to what information Defendants may have 'relied on in good faith,' Plaintiffs have had the opportunity to inquire about this during discovery. Presumably Defendants relied on financial advice received from Goldman Sachs and Jefferies which has been disclosed in discovery. Defendants have not waived the attorney-client privilege by placing the advice they received from counsel in issue.")

Case Date Jurisidction State Cite Checked
2016-01-14 Federal NV
Comment:

key case


Chapter: 21.8

Case Name: Mahli, LLC v. Admiral Ins. Co., Civ. A. No. 1:14cv175-KS-MTP, 2015 U.S. Dist. LEXIS 112542 (S.D. Miss. Aug. 25, 2015)
(analyzing privilege issues in a first party insurance setting; holding that a litigant must produce statements if it will use them at trial; concluding the defendant insurance company could not rely on the statements made to its lawyer, because the insurance company had withheld them during discovery; "Admiral submitted an affidavit executed by Tubertini in support of its opposition to Mahli's request for summary judgment. . . . Tubertini's affidavit states that he is the primary person at Hailey McNamara Hall Larmann & Papale, LLP, who provided services to Admiral. . . . The subject affidavit further provides that Tubertini interviewed or consulted with several individuals concerning Mahli's claim, and attributes certain statements to those individuals."; "The central thrust of Mahli's motion is that Admiral should not be allowed to utilize evidence of Tubertini's interviews of key witnesses at trial since Admiral failed to disclose this information during discovery."; "Admiral's response to the subject motion states that it 'does not intend, and has never intended, to offer Tubertini as a witness at trial, nor does it intend to offer into evidence at trial the Affidavit of Tubertini submitted during summary judgment briefing.'. . . The Court will hold Admiral to these intentions and preclude Tubertini from testifying at trial, either from the witness stand or through his affidavit. This ruling only resolves a portion of the subject motion given the breadth of the above-quoted request for exclusion."; "Mahli's interrogatories sought the 'information gained, confirmed, or resulting from . . . [Admiral's] investigation,' including the content of any oral statements given by Mahli's employees, guests, or business associates. . . . Admiral's responses asserted objections based on the attorney-client privilege and/or work-product doctrine. The responses did not list or describe the statements attributed to Portwood, Moore, Lampkin, Demo, and Robinson in Tubertini's affidavit."; "The Court finds that it would be patently unfair for Admiral to hide the substance of Portwood, Moore, Lampkin, Demo, and Robinson's statements to Tubertini behind the attorney-client privilege or work-product doctrine during discovery, and to allow Admiral to use the statements against Mahli at trial. . . . Admiral will be precluded from presenting testimony or introducing documents into evidence that detail Tubertini's communications with Portwood, Moore, Lampkin, Demo, and Robinson.")

Case Date Jurisidction State Cite Checked
2015-08-25 Federal MS

Chapter: 21.8

Case Name: In Mahli, LLC v. Admiral Insurance Co., Civ. A. No. 1:14cv175-KS-MTP, 2015 U.S. Dist. LEXIS 112542 (S.D. Miss. Aug. 25, 2015)
October 28, 2015 (PRIVILEGE POINT)

"Claiming Privilege or Work Product Protection During Discovery Can Risk Trial Disaster"

Last week's Privilege Point addressed the decreasing subject matter waiver risk of corporations' pretrial disclosure of arguably privileged communications, or even their passing reference to legal advice in pretrial filings. When corporations are considering withholding documents or communications during discovery, they should also consider another risk.

In Mahli, LLC v. Admiral Insurance Co., Civ. A. No. 1:14cv175-KS-MTP, 2015 U.S. Dist. LEXIS 112542 (S.D. Miss. Aug. 25, 2015), defendant Admiral's lawyer interviewed several witnesses during his investigation into plaintiff's insurance claim. The court accepted Admiral's pledge not to call its lawyer as a trial witness to testify about those witnesses' statements to him. However, plaintiff sought to exclude any evidence of what the witnesses told Admiral's lawyer during the investigation (presumably focusing on Admiral's possible cross-examination of the witnesses at trial). When Mahli had sought those witnesses' statements during discovery, Admiral claimed privilege and work product protection — which Mahli apparently did not contest. The court ultimately excluded such evidence, concluding that "it would be patently unfair for Admiral to hide the substance of [several witnesses'] statements to [Admiral's lawyer] behind the attorney-client privilege or work-product doctrine during discovery, and to allow Admiral to use the statements against Mahli at trial." Id. At *13.

Corporate defendants might win a discovery battle if plaintiffs do not challenge their privilege or work product claims, or if plaintiffs lose motions to compel. But those corporations might lose the war if they ultimately need those withheld documents or communications at trial — but have forfeited that opportunity by not having disclosed them during discovery.

Case Date Jurisidction State Cite Checked
2015-08-25 Federal MS
Comment:

key case


Chapter: 21.8

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)
(limiting plaintiffs' questioning of the lawyer who investigated GM's ignition switch issue; noting that GM pledged not to call the lawyer or rely on the report at trial; "New GM's commitment not to make offensive use of the Valukas Report also undermines Plaintiff's argument that they are entitled to ask about the bases for Valukas's conclusions because 'multiple MDL deponents interviewed by Mr. Valukas have disputed his account of their interviews.'. . . As New GM points out, '[b]ecause New GM will not offer the Valukas Report as evidence or call Mr. Valukas to testify, any alleged discrepancy between the Valukas Report and any witness's testimony is irrelevant.'. . . Plaintiffs can call whatever witnesses they believe will help their case, and New GM will not be permitted to contradict those witnesses' testimony with the information contained in the Valukas Report. Accordingly, the Court agrees with New GM that Plaintiffs may not question Valukas about what documents and materials he considered in connection with preparation of the Valukas Report or about the bases for conclusions contained in the Report.")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal NY
Comment:

key case


Chapter: 21.8

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)
(limiting plaintiffs' questioning of the lawyer who investigated GM's ignition switch issue; noting that GM pledged not to call the lawyer or rely on the report at trial; "Whether or not New GM has held the Valukas Report out to the world as a definitive account (something that New GM has disputed), it has repeatedly committed to not holding the Report out at all in these proceedings, and the Court will hold New GM to that commitment. . . . the Report's contents will not be introduced as evidence unless Plaintiffs themselves choose to do so.")

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

Chapter: 21.8

Case Name: Mpala v. Funaro, Civ. No. 3:13-cv-252 (WIG), 2014 U.S. Dist. LEXIS 168407 (D. Conn. Dec. 5, 2014)
(holding the at issue doctrine did not apply; "[I]f the information contained in the privileged communication is truly required for a resolution of the issue, the party must either waive the attorney-client privilege as to that information, or be precluded from using the privileged information to establish the elements of the case. . . . The mere fact that a communication is relevant does not place it at issue. . . . Additionally, if a party fails to allow pre-trial discovery of a confidential matter, the party will be precluded from introducing that evidence.")

Case Date Jurisidction State Cite Checked
2014-12-05 Federal CT

Chapter: 21.8

Case Name: Mpala v. Funaro, Civ. No. 3:13-cv-252 (WIG), 2014 U.S. Dist. LEXIS 168407 (D. Conn. Dec. 5, 2014)
("[I]f a party fails to allow pre-trial discovery of a confidential matter, the party will be precluded from introducing that evidence.")

Case Date Jurisidction State Cite Checked
2014-12-05 Federal CT

Chapter: 21.8

Case Name: McCullough v. Fraternal Order of Police, Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 79281, at *10 (N.D. Ill. June 11, 2014)
(analyzing defendant's investigation of possible sexual harassment; holding that the investigation-related documents deserved privilege protection and work product protection; holding that the defendant could refer to remedial steps and the investigation, but would waive any protection by using investigation-related documents at the trial; "Having asserted privilege to prevent discovery of the D'Alba Report, FOP cannot introduce evidence regarding the fact or contents of the D'Alba investigation or the ensuing report in an attempt to defend itself against McCullough's claim that FOP did not take reasonable corrective action. Further, any claim by FOP that McCullough did not object to sexual harassment during the D'Alba investigation will be deemed a waiver of its privilege as to the investigation and report because it will have placed the investigation and report at issue (which it has not done yet)").

Case Date Jurisidction State Cite Checked
2014-06-11 Federal IL

Chapter: 21.8

Case Name: Ad Investment 2000 Fund LLC v. Commissioner of Internal Revenue , Dkt. Nos. 9177-08, 9178-08, 2014 U.S. Tax Ct. LEXIS 13 (Tx. Ct. April 16, 2014)
(holding that plaintiffs' assertion of a good faith state-of-mind defense triggered an at issue waiver; "In defense to respondent's [IRS] determination of accuracy-related penalties generally, petitioners aver: 'Any underpayment of tax was due to reasonable cause and with respect to which the Partnership and its partners acted in good faith.' . . . Petitioners deny, however, that their averments bring professional advice (i.e., the opinions) into question."; "When a person puts into issue his subjective intent in deciding how to comply with the law, he may forfeit the privilege afforded attorney-client communications."; "To satisfy the belief requirement by the first method (i.e., under section 1.6662-4(g)(4)(i)(A), Income Tax Regs.) petitioners must show that partnerships 'analyze[d] the pertinent facts and [legal] authorities . . . and in reliance upon that analysis, reasonably . . . conclude[d] in good faith that there . . . [was] a greater than 50-percent likelihood that the tax treatment of the item . . . [would] be upheld if challenged by the Internal Revenue Service.' Petitioners' averments that the partnerships satisfied the belief requirement by the first method put into dispute the partners' knowledge of the pertinent legal authorities. Petitioners' averments also put into contention the partnerships' understanding of those legal authorities and their application of the legal authorities (i.e., the law) to the facts. Finally, the averments put into contention the basics for the partners' belief that, if challenged, their tax positions would more likely than not succeed in the courts. Petitioners have thus placed the partnerships' legal knowledge, understanding, and beliefs into contention, and those are topics upon which the opinions may bear. If petitioners are to rely on the legal knowledge and understanding of someone acting for the partnerships to establish that the partnerships reasonably and in good faith believed that their claimed tax treatment of the items in question was more likely than not the proper treatment, it is only fair that respondent be allowed to inquire into the bases of that person's knowledge, understanding, and beliefs including the opinions (if considered)." (emphasis added); "Petitioners' averments in support of their affirmative defenses to respondent's determination of accuracy-related penalties put into contention the state of mind of those who acted for the partnerships and the partnerships' good faith efforts to comply with the tax law. If petitioners persist in those defenses, it would be unfair to deprive respondent of knowledge of the contents of the opinions and the opportunity to put those opinions into evidence. If petitioners persist, they sacrifice the privilege to withhold the contents of the opinions." (emphasis added); "We will set the motions for hearing insofar as they ask us to sanction petitioners for failure to comply with our order granting the motions, with an eye, if there is noncompliance, toward prohibiting petitioners from introducing evidence that the partnerships met the belief requirement by self-determination or that someone acting for the partnership had a good-faith and honest misunderstanding." (emphasis added))

Case Date Jurisidction State Cite Checked
2014-04-16 State TX

Chapter: 21.8

Case Name: Bilek v. Menard, Inc., Case No. 11cv4951, 2013 U.S. Dist. LEXIS 161524, at *3-4 (N.D. Ill. Nov. 12, 2013)
(holding that the defendant which had not logged a surveillance video tape could not use the video tape at trial; "[D]efendant fails to appreciate the Federal Rules of Civil Procedure, which require such disclosures and that discovery must be timely supplemented. Here, defendant fails to acknowledge that it had video surveillance taken over one year ago yet did not disclose it, despite Ms. Bilek's request for production issued in September 2011. Defendant is also silent as to why, if it believed this information to be privileged, it did not include such evidence on a privilege log, or move for a protective order to avoid disclosure. It appears that, instead, defendant assumed that it could sit on this discovery until the close of fact discovery and then, at the last moment, decide that it would like to use the video surveillance at trial." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-11-12 Federal IL B 5/14

Chapter: 21.8

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *23 (D. Nev. June 18, 2013)
(finding that an affirmative defense that the defendant acted in good faith did not result in an express or implied waiver; "Defendants will not be permitted to use any information or testimony they have failed to disclose at trial, in motion practice, or for any other purpose in this case.")

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

Chapter: 21.8

Case Name: First S. Bank v. Fifth Third Bank, N.A., Civ. A. No. 7:10-2097-MGL, 2013 U.S. Dist. LEXIS 62238, at *43, *44 (D.S.C. May 1, 2013)
("Of course, while Defendant is not required to disclose privileged documents related in some manner to the Burton Creek Loan at this time, to the extent Defendant later attempts to introduce at trial any evidence that it acted in good faith or in reliance on counsel, it will not be permitted to do so as Plaintiff would then be entirely deprived of the right to have pretrial discovery on matters material to the testimony or evidence."; "If Defendant determines that it wants to offer otherwise privileged and/or protected documents in support of its defenses, it will have to abandon the privilege or protection and produce the documents to Plaintiff immediately and allow Plaintiff to inquire into the documents as would otherwise be permitted during the course of discovery.")

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

Chapter: 21.8

Case Name: In re Residential Capital, LLC, Ch. 11 Case No. 12-12020 (MG), 2013 Bankr. LEXIS 1507, at *16-17 (Bankr. S.D.N.Y. Apr. 12, 2013)
June 19, 2013 (PRIVILEGE POINT)

"Courts Address Claimed Protection for Communications or Documents the Client Plans to Use at Trial"

Not surprisingly, most courts recognize that privilege and work product protections essentially "evaporate" when the client forms the intent to disclose the communication or document to a third party. A related rules-based principle requires litigants to disclose before trial any communications or documents they intend to use at trial.

The effect of these related principles depends on when the court addresses them. In Phillips v. C.R. Bard, Inc., the court explained that if defendant "determines that it wants to retain the right to offer these [protected] documents as evidence in support of its defenses, it must abandon the attorney-client privilege or work product doctrine and produce the documents to Plaintiff." No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *65 (D. Nev. Mar. 29, 2013). If the issue comes up during or on the eve of trial, the court might apply a more drastic approach. In In re Residential Capital, LLC, the court held that debtors' counsel Morrison & Foerster "purposely and consistently adopted the strategy of selective (and extremely limited) disclosure" of legal advice provided to a debtor's board – while continuing to assert attorney-client privilege to bar discovery of documents or deposition testimony on the same subject matter. Ch. 11 Case No. 12-12020 (MG), 2013 Bankr. LEXIS 1507, at *16-17 (Bankr. S.D.N.Y. Apr. 12, 2013). The court pointed to the firm's privilege objection during discovery as "now preclud[ing] [debtors] from offering any evidence of the legal advice provided to the Debtors' officers and directors" on the relevant subject. Id. At *17.

Lawyers asserting privilege or work product protection during discovery might find themselves unable to present important evidence at trial.

Case Date Jurisidction State Cite Checked
2013-04-12 Federal NY
Comment:

key case


Chapter: 21.8

Case Name: Phillips v. C.R. Bard, Inc., No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *65 (D. Nev. Mar. 29, 2013)
June 19, 2013 (PRIVILEGE POINT)

"Courts Address Claimed Protection for Communications or Documents the Client Plans to Use at Trial"

Not surprisingly, most courts recognize that privilege and work product protections essentially "evaporate" when the client forms the intent to disclose the communication or document to a third party. A related rules-based principle requires litigants to disclose before trial any communications or documents they intend to use at trial.

The effect of these related principles depends on when the court addresses them. In Phillips v. C.R. Bard, Inc., the court explained that if defendant "determines that it wants to retain the right to offer these [protected] documents as evidence in support of its defenses, it must abandon the attorney-client privilege or work product doctrine and produce the documents to Plaintiff." No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *65 (D. Nev. Mar. 29, 2013). If the issue comes up during or on the eve of trial, the court might apply a more drastic approach. In In re Residential Capital, LLC, the court held that debtors' counsel Morrison & Foerster "purposely and consistently adopted the strategy of selective (and extremely limited) disclosure" of legal advice provided to a debtor's board – while continuing to assert attorney-client privilege to bar discovery of documents or deposition testimony on the same subject matter. Ch. 11 Case No. 12-12020 (MG), 2013 Bankr. LEXIS 1507, at *16-17 (Bankr. S.D.N.Y. Apr. 12, 2013). The court pointed to the firm's privilege objection during discovery as "now preclud[ing] [debtors] from offering any evidence of the legal advice provided to the Debtors' officers and directors" on the relevant subject. Id. At *17.

Lawyers asserting privilege or work product protection during discovery might find themselves unable to present important evidence at trial.

Case Date Jurisidction State Cite Checked
2013-03-29 Federal NV
Comment:

key case


Chapter: 21.8

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 640 (D. Nev. 2013)
("[I]f Bard determines that it wants to retain the right to offer these documents as evidence in support of its defenses, it must abandon the attorney-client privilege or work product doctrine and produce the documents to Plaintiff and allow him to inquire into them as he would otherwise be permitted if they were produced in the course of discovery.")

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

Chapter: 21.8

Case Name: In re Residential Capital, LLC, 491 B.R. 63, 68, 69, 70 (S.D.N.Y. 2013)
(holding that the law firm of Morrison & Foerster had claimed privilege for several communications during discovery, and therefore its client could not claim advice of counsel at trial; "Courts have repeatedly held that, where a party 'blocked his adversary from conducting discovery on [his communications with counsel], he will not now be heard to advance reliance on counsel.'" (citation omitted); "[W]here a party 'invoke[s] attorney-client privilege throughout discovery, [this] automatically "constitutes a waiver of the advice-of-counsel defense."'" (citation omitted); "Debtors' counsel engaged in selective disclosure of legal advice by providing a Limited Waiver to the legal advice given to the ResCap Board at the May 9, 2012 board meeting, while continuing to assert attorney-client privilege to bar discovery of documents or deposition testimony on the same subject matter."; "The Court finds, as a fact, that Debtors' counsel purposely and consistently adopted the strategy of selective (and extremely limited) disclosure. The law does not permit such cherry-picking of reliance on counsel evidence. The consequences of failing to make full disclosure of the advice that was given is that the Debtors are now precluded from offering any evidence of the legal advice provided to the Debtors' officers and directors that was considered in connection with the decision to enter into the RMBS Trust Settlement.")

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

Chapter: 21.8

Case Name: Money One Fed. Credit Union v. Manegan (In re Manegan), Ch. 7 Case No. 06-10092-SSM, Adv. No. 06-1098, 2006 Bankr. LEXIS 3279, at *1, *4, *14-15 (Bankr. E.D. Va. Nov. 24, 2006)
(assessing a debtor's motion for summary judgment in an action brought by a credit card issuer; explaining that the credit card issuer had to establish "a prima facie case that it justifiably relied on the debtor's implied representation that she intended to repay the advances at the time they were made"; explaining that "[a]fter answering the complaint, the debtor served interrogatories and requests for production of documents on Money One. Two of the interrogatories sought discovery of the evidence Money One would present to show that its reliance on the alleged false statements respecting the debtor's financial condition was reasonable and that its reliance on other alleged false representations was justifiable. . . . To each interrogatory Money One responded only, 'This interrogatory requests a legal explanation which is attorney client privileged.' The debtor then filed the present motion for summary judgment asserting that the plaintiff has not shown that it either reasonably or justifiably relied on any alleged misrepresentation."; noting that "a party may properly require an opponent to disclose its theory of the case. Here, however, the only response to the interrogatory was the information requested as protected by the attorney client privilege. . . . If so, it is necessarily information that Money One will not present or rely upon at trial. The attorney client privilege is intended to protect information the client has provided to the attorney in order to obtain legal advice and under an understanding that it will not disclosed [sic] to anyone else. . . . Information that the client intends for the attorney to use at trial is by very definition not protected by the attorney client privilege, since the privilege extends only to facts that the client wishes to keep secret. When Money One responded to the debtor's interrogatories by asserting that any information concerning its reliance on the alleged misrepresentation was protected by the attorney client privilege, it was effectively stating that any such information was secret and would not be presented at trial. Since Money One cannot prevail at trial without presenting some evidence of reliance, it follows that Money One has not carried its burden of showing that it has evidence sufficient to make a prima facie case at trial." (emphases in original); granting the debtor's motion for summary judgment except for one charge, which the debtor has conceded was nondischargeable)

Case Date Jurisidction State Cite Checked
2006-11-24 Federal VA BS 6/07

Chapter: 21.8

Case Name: Schwarz v. Commonwealth, 611 S.E.2d 631, 653 (Va. Ct. App. 2005)
("The statute [Code § 19.2-169.5] clearly provides that the results of the mental health evaluation performed pursuant to the statute will not be disclosed to anyone except defense counsel until the defendant gives notice of his intent to present expert evidence at trial on the issue of his insanity at the time of the offense. In the meantime, those results are fully protected under the attorney-client privilege. Thus, absent a waiver of that privilege by the defendant, neither the Commonwealth nor any other party other than the defendant is entitled to receive the evaluation results unless and until the defendant gives notice that he will assert an insanity defense.")

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

Chapter: 21.8

Case Name: Galaxy Computer Servs., Inc. v. Baker, 325 B.R. 544, 558-59 (E.D. Va. 2005)
("Defendants seek to have Mouer testify at trial to explain her notes even though counsel for CSI instructed her not answer most of the substantive questions she was asked about the notes during her depositions, invoking the attorney-client privilege. Galaxy argues that it would be prejudicial to allow her to testify at trial to topics which CSI shielded her from testifying to during the deposition. Mouer was questioned extensively about the notes during her deposition on April 27, 2004 and May 27, 2005. However, CSI's counsel made sixty-three objections during this line of questioning, instructing her not to answer. CSI's counsel limited her testimony to what is in the notes, and would not allow her to testify as to her understanding of the notes. . . . The weight of the authority indicates that to permit Mouer to testify to issues which she refused to testify to during her deposition based on privilege would allow the Defendants to use the attorney-client privilege as both a shield and a sword. Thus, Mouer may only testify at trial within the scope of her deposition and Plaintiff may not refer to the rulings of Judge Mitchell and Judge Brinkema concerning the crime-fraud exception to the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA N 12/05

Chapter: 21.9

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *17-18 (E.D. Va. Dec. 14, 2012)
("Most of the documents that ePlus identifies as missing author and recipient information identify either an author or a recipient; typically, an author only. Lawson's response is, quite simply, that 'failure to log author or recipient information is only a deficiency if the document on the log is the type that would actually have that information.' . . . . This proposition is plainly correct. Some documents clearly are, as Lawson argues, documents that 'by their nature as stand-alone documents . . . do not have a recipient.' . . . . Based on the Court's review of the privilege log, and its review of the underlying documents, the vast majority of the challenged documents fall into this category. A significant percentage of the documents are drafts of declarations, motions, contracts, briefs, and other similar documents. Other examples include evidently free-standing outlines, notes, and commentaries. The failure to list a recipient for these documents is not a deficiency in the privilege log and, more importantly, the narrative description for these entries would allow a party seeking to challenge the claim to privilege to determine that these were documents of this sort. At the hearing on this motion, the Court raised the possibility that some number of the documents at issue might not be privileged at all as a result of their being prepared for public consumption. . . . . The Court noted that such documents are not subject to attorney-client privilege, but that they might constitute protected work product. . . . . The Court's observation was based on the holding of the United States Court of Appeals in United States v. (Under Seal), 748 F.2d 871 (4th Cir. 1984).")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA

Chapter: 21.702

Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("'Although this document is described in the privilege log as a 'revised' APA, the document itself is labeled as the 'Execution Version' and appears to be identical to the final APA already provided to Plaintiff's counsel. In any event, the Court will not require Perrigo to provide a duplicate copy of the APA to Plaintiff. Thus, these documents need not be produced.'")

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

key case


Chapter: 21.702

Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("Georgia document 968 is a draft citizen petition that was prepared by in-house counsel Steven Gersten in March 2010, one month before Abbott submitted its final citizen petition to the FDA. Preliminary '[d]rafts of documents prepared by counsel . . . are considered privileged if they were prepared or circulated for the purpose of giving or obtaining legal advice and contain information or comments not included in the final version.". . . This document is protected by the attorney-client privilege.")

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

key case


Chapter: 21.702

Case Name: Loop Ai Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2016 U.S. Dist. LEXIS 22656 (N.D. Cal. Feb. 24, 2016)
("The privilege extends to versions of electronic communications and preliminary drafts of communicated documents.")

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

Chapter: 21.702

Case Name: Medline Indus., Inc. v. C.R. Bard, Inc., No. 14 CV 3618, 2016 U.S. Dist. LEXIS 9767, at *13, *14-15 (N.D. Ill. Jan. 26, 2016)
(holding that the privilege protected an employee inventor's draft affidavit even though the final version was filed; also holding that a non-employee's draft affidavit was not protected by the privilege despite that person's claim that the lawyer also represented him; "As for confidentiality, even though the final version of the patent application eventually became a matter of public record, the same cannot be said of the 'decisions regarding inclusion or exclusion of information' performed by Burrus [lawyer] and Tomes [inventor] leading up to the application's submission. . . . In other words, the dynamic between an inventor and patent lawyer supports an expectation from the parties that their communications will remain confidential, despite their technical nature."; "[B]ecause Medline's privilege log only lists one email correspondence from Tomes to Burrus does not mean they did not discuss the drafts using other means.")

Case Date Jurisidction State Cite Checked
2016-01-26 Federal IL B 7/16
Comment:

key case


Chapter: 21.702

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
(holding that the attorney-client privilege protected communications in which a corporate employee sought an in-house lawyer's advice about how to respond to public inquiries; finding that the privilege protected a draft report involving a lawyer's legal advice; "Although Mr. Szuszman does not explicitly request an evaluation of the potential liability that may arise from the report, the declarations provided by Ford support the conclusion that Mr. Logel is the attorney in Ford's Office of the General Counsel who is regularly consulted when employees are concerned that a document they intend to publish or disclose will have unintended ramifications in litigation, or may otherwise expose the corporation to liability.").

Case Date Jurisidction State Cite Checked
2015-09-03 Federal WV
Comment:

key case


Chapter: 21.702

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
(holding that the attorney-client privilege protected communications in which a corporate employee sought an in-house lawyer's advice about how to respond to public inquiries; "Mr. Engle's purpose in communicating with Mr. Logel was to obtain legal advice about the wording of an investigation report Mr. Engle intended to supply to the Chicago Transit Authority. . . . Mr. Engle did not provide data to Mr. Logel for the purpose of drafting the investigation report; instead, he submitted the completed report to Mr. Logel to review with an eye toward 'possible legal and/or litigation ramifications of the statements made in [the] draft report and as to the general wording of the document, including whether any information should be omitted or included to comply with legal requirements or principles.'. . . In other words, Mr. Engle's communication with Mr. Logel was not a request for assistance in generating a public report; rather, it was a request to insure that the wording of a report that detailed a completed investigation did not expose the corporation to liability, or negatively affect its position in potential litigation. Being retained to provide legal guidance on how to reduce a client's risk of liability is different than being retained for the specific purpose of preparing a report intended for public dissemination. Certainly, Mr. Engle had reason to obtain legal advice on the wording of the report given his concern that the underlying incidents would lead to litigation. Contrary to Plaintiffs' contention, there is nothing about this request for advice that suggests Mr. Engle's intention to have any of his communications with Mr. Logel published. . . . Accordingly, the Court finds that the e-mail exchange between Mr. Engle and Mr. Logel, and the draft showing the edits of Mr. Logel").

Case Date Jurisidction State Cite Checked
2015-09-03 Federal WV
Comment:

key case


Chapter: 21.702

Case Name: Johnson v. Ford Motor Co., Case No.: 3:13-cv-06529, Case No.: 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
(holding that the attorney-client privilege protected communications in which a corporate employee sought an in-house lawyer's advice about how to respond to public inquiries; finding that the privilege protected a draft report involving a lawyer's legal advice; "While it is true that sections of the draft report contain factual statements that do not involve edits, the undersigned finds that Ford need not produce a redacted version given the extensiveness of the edits and the fact that Plaintiffs have a copy of the final draft report, which includes the same facts as those set forth in the draft."; finding that the work product doctrine did not protect the communications, because they were not motivated by litigation).

Case Date Jurisidction State Cite Checked
2015-09-03 Federal WV
Comment:

key case


Chapter: 21.702

Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
(rejecting the Eastern District of Virginia's approach to draft documents expressed in FTC v. Reckitt Benckiser Pharms., Inc., No. 3:14mc5, Dkt. Nos. 42-43 (E.D. Va. Mar. 10, 2015); "Plaintiffs argue that the attached 'Citizens Petition' document is not privileged under the 'draft document' rule, which they say was applied in a similar case, FTC v. Reckitt Benckiser Pharms., Inc., No. 3:14mc5, Dkt. Nos. 42-43 (E.D. Va. Mar. 10, 2015). The Undersigned's review of that case however does not find support for Plaintiffs' position. In that case, a court in the Eastern District of Virginia stated the Fourth Circuit's view that 'the attorney-client privilege with respect to confidential communications does not apply to published documents and the underlying details and data if, at the time the communication was made, the client intended that the document was to be made public.' Id. At p. 15."; "While Plaintiffs may be entitled to the draft of a document that was ready to publish, it is clear from the email exchange that this document is attached to a document which was still under consideration and in the drafting process. The specific email that the document is attached to is from a non-attorney and addressed directly to two attorneys (one in-house counsel and one outside counsel) while copying two more (in-house counsel). Further, the communication in that email calls the attached document the 'latest version' and notes that the parties involved in the email will talk about the contents of the document at a later date. From the Undersigned's perspective, this is a clear indication that the document is not ready to publish and therefore is not subject to the 'draft document rule,' as Plaintiffs argue (if the Undersigned agreed that the rule was even applicable in this Circuit). Accordingly, CIT021317-324 should remain protected by privilege.")

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

key case


Chapter: 21.702

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)
(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "[I]t is clear to the Court after conducting an in camera review of Ford's Exhibit D that the communications contained in the Logel document constitute legal advice. At the time Mr. Logel was asked to review the Q&A sheet, Ford was already involved in litigation related to unintended accelerations. In addition, the massive Toyota recall had the real potential of expanding litigation exposure to Ford, while creating an industry-wide liability issue. Exhibit D corroborates Ford's assertion that Mr. Logel was consulted in his role as an attorney because of ongoing and potential litigation, and his comments were intended to convey the legal perils and liabilities to Ford associated with making certain statements in light of the litigation.")

Case Date Jurisidction State Cite Checked
2015-04-14 Federal WV
Comment:

key case


Chapter: 21.702

Case Name: DeAngelis v. Corzine; In re MF Global Holdings Ltd. Investment Litig., 11 Civ. 7866 (VM) (JCF), 12 MD 2338, 2015 U.S. Dist. LEXIS 18207 (S.D.N.Y. Feb. 9, 2015)
(in an opinion by Judge Francis, analyzing defendants' efforts to obtain background documents prepared by bankruptcy trustee's consultant E&Y's investigation into the trustee's causes of action against the defendants; "According to the Individual Defendants, the fact that the Report was made public means that 'the attorney-client privilege did not attach to any of the information [Ernst & Young] provided to the Trustee concerning its findings.'"; "There is no indication that the Ernst & Young documents sought were intended to be made public."; "Here, . . . Ernst & Young did not 'communicate[] information [from the underlying documents] to [the Trustee's] attorney with the understanding that the information [would] be revealed to others.'")

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

Chapter: 21.702

Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *134 (D. Minn. June 4, 2013)
("[T]he disclosure of a final draft of a document does not erase attorney-client privileges that attached to earlier versions of the document. The Court concludes that these drafts and e-mails are protected by the privilege because they were sent to Wells Fargo's attorneys for the purposes of accessing their pre-existing legal thinking about settlement strategy and other litigation issues." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-06-04 Federal MN B 4/14

Chapter: 21.703

Case Name: Durand v. The Hanover Ins. Group, Inc., Civ. A. No. 3:07-CV-00130-HBB, 2016 U.S. Dist. LEXIS 143064 (W.D. Ky. Oct. 17, 2016)
("Defendants have withdrawn their claim of privilege as to a June 17, 2002, letter from Roger Siske of Sonnenschein Nath & Rosenthal to J. Kendall Huber, Esq. of Allmerica, because it was written to be disclosed to potential buyers of certain portions of Allmerica's business (DN 204, 206, 207). Defendants continue to withhold all drafts of the letter on the grounds they are subject to the attorney-client privilege (DN 206 p. 6-7 citing Guy v. United Healthcare Corp., 154 F.R.D. 172, 178 (S.D. Ohio 1993)). However, Defendants reliance on Guy is misplaced because it fails to fully set forth the holding in Schenet v. Anderson, 678 F.Supp. 1280 (E.D. Mich. 1988). In Schenet the court held the attorney-client privilege applies only to those portions of the preliminary drafts that reflect client confidences and legal advice, and were not revealed in the document made public. Schenet, 678 F.Supp. at 1284 ('The privilege is waived only as to those portions of the preliminary drafts ultimately revealed to third parties.'). Thus, Defendants are directed to produce the preliminary drafts but only after they have redacted those portions reflecting client confidences and legal advice that was not revealed in the letter dated June 17, 2002. Further, the Court concludes the fiduciary exception does not apply to the redacted portions of these documents because Allmerica and its counsel were not involved in an act of plan administration.")

Case Date Jurisidction State Cite Checked
2016-10-17 Federal KY
Comment:

key case


Chapter: 21.703

Case Name: Alomari v. Ohio Dept. of Public Safety, 15a0630n.06, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
("Advising a client on how to respond to media inquiries has important legal implications when that client will issue a public statement about an employee. . . . Given the potential for legal liability, Reed-Frient's input on how to draft a media response was essential.").

Case Date Jurisidction State Cite Checked
2015-09-09 Federal OH

Chapter: 21.703

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
(holding that the attorney-client privilege protected communications in which a corporate employee sought an in-house lawyer's advice about how to respond to public inquiries; finding that the privilege protected a draft report involving a lawyer's legal advice; "Similarly, while drafts of documents that contain the legal advice and opinions of attorneys may be privileged, the privilege is waived 'as to those portions of the preliminary drafts ultimately revealed to third parties.' Id. at 1284 (citations omitted). Given that the final reports and investigative materials produced by Ford are exactly the same as the attachments to the e-mails, the drafts are not properly withheld as privileged.").

Case Date Jurisidction State Cite Checked
2015-09-03 Federal WV

Chapter: 21.703

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
(holding that the attorney-client privilege protected communications in which a corporate employee sought an in-house lawyer's advice about how to respond to public inquiries; finding that the privilege protected a draft report involving a lawyer's legal advice; "'The Schenet Court expressly declined to follow the Fourth Circuit's opinion in In re Grand Jury Proceedings, 727 F.2d at 1356, suggesting that the Fourth Circuit's narrow interpretation of the attorney-client privilege would discourage clients from freely disclosing information to their attorneys. The undersigned need not address the perceived differences between the courts or otherwise reconcile the opinions, because even under the more liberal view espoused by the Schenet Court, the attachments are not privileged.'").

Case Date Jurisidction State Cite Checked
2015-09-03 Federal WV

Chapter: 21.703

Case Name: Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015)
April 29, 2015 (PRIVILEGE POINT)

“Court Offers Good Privilege News for Draft Form 10-K Filings”

Courts disagree about the attorney-client privilege protection's applicability to draft documents whose final version will be publicly disclosed. Public companies naturally worry about this issue's impact on their draft securities filings.

In Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015), a whistleblower plaintiff alleged that Unilife's 2011 Form 10-K report contained false and misleading statements. He sought discovery of Unilife's draft 10-Ks and company lawyers' communications to and from nonlawyer consultants "concerning the [drafts'] contents, style and 'wordsmithing.'" Id. at *5. The court first found that the consultants were the "functional equivalent" of employees — refreshingly acknowledging that "[a] trial judge is not in a good position to second-guess a corporate decision to rely on an independent consultant or an employee to accomplish a specific task." Id. at *7-8. The court then held that the draft 10-Ks deserved privilege protection — citing an earlier decision protecting 10-Ks that contained "legal advice and communications between a law firm and its client . . . even though the final version of the Form 10-K was publicly filed, because the drafts contained information not included in the final version." Id. at *9-10 (citing In re U.S. Healthcare, Inc. Sec. Litig., Master File No. 88-0559, 1989 U.S. Dist. LEXIS 1043, at *12 (E.D. Pa. Feb. 8, 1989)).

Although many decisions seem hostile to corporations' privilege claims, some courts' analyses provide good news.

Case Date Jurisidction State Cite Checked
2015-02-13 Federal PA
Comment:

key case


Chapter: 21.703

Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644C/W10-106 Ref: All Cases Section "N" (3), 2014 U.S. Dist. LEXIS 93881 (E.D. La. July 10, 2014)
(holding that the privilege and the work product doctrine protected draft affidavits; "With regard to the draft affidavits, the general rule is that draft documents are only privileged to the extent that communications contained therein are not revealed to third parties.")

Case Date Jurisidction State Cite Checked
2014-07-10 Federal LA

Chapter: 21.703

Case Name: Vidal v. Metro-N. Commuter Ry.Co., No. 3:12cv0248 (MPS) (WIG), 2014 U.S. Dist. LEXIS 13500, at *17 (D. Conn. Feb. 4, 2014)
(analyzing an investigation of railroad policies and practices conducted by a lawyer who was not providing legal advice; using the "assist" test, and declining to apply the work product doctrine; "Other cases have considered whether draft documents in an attorney's file are protected by the attorney-client privilege. The initial consideration is whether the document contains largely factual information or whether it provides or seeks legal advice of a confidential nature. Assuming the latter, draft documents have been held to retain their privilege it they contain information a client considered but decided not to include in the final version. . . . However, if the changes reflected on the draft documents appear to be stylistic and structural changes only, and do not provide or request legal advice, the documents are not privileged.")

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

Chapter: 21.703

Case Name: In re MI Windows & Doors, Inc. Prod. Liab. Litig., MDL No. 2333, Case No. 2:12-mn-00001, 2013 U.S. Dist. LEXIS 63392, at *11 (D.S.C. May 1, 2013)
(holding that a paralegal's list of earlier cases involving the company was work product, and that the lawyer's list of important earlier cases deserved opinion work product protection; "The only communication that is protected is the body of the email dated August 24, 2007 from Bill Emley to Susan McKay, in which he asks for her legal advice on his deletion of certain information from the draft. That information, which is not included in the document, is protected under the rule governing the drafting process for public documents. . . . As stated in Renu [In re New York Renu with Moistureloc Prod. Liab. Litig., C/A Mo. 2:06-MN-77777-DCN, 2008 U.S. Dist. LEXIS 88515 (D.S.C. May 6, 2008)], drafts of documents that are intended to be disclosed to the public are not privileged to the extent the draft contains statements that are in the final. But deletions to the draft made on advice of counsel -- and discussions of those deletions -- are protected because they are not publicly disclosed.")

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

Chapter: 21.703

Case Name: In re U.S. Healthcare, Inc. Sec. Litig., Master File No. 88-0559, 1989 U.S. Dist. LEXIS 1043, at *12 (E.D. Pa. Feb. 8, 1989)
April 29, 2015 (PRIVILEGE POINT)

“Court Offers Good Privilege News for Draft Form 10-K Filings”

Courts disagree about the attorney-client privilege protection's applicability to draft documents whose final version will be publicly disclosed. Public companies naturally worry about this issue's impact on their draft securities filings.

In Smith v. Unilife Corp., Civ. A. No. 13-5101, 2015 U.S. Dist. LEXIS 18755 (E.D. Pa. Feb. 13, 2015), a whistleblower plaintiff alleged that Unilife's 2011 Form 10-K report contained false and misleading statements. He sought discovery of Unilife's draft 10-Ks and company lawyers' communications to and from nonlawyer consultants "concerning the [drafts'] contents, style and 'wordsmithing.'" Id. at *5. The court first found that the consultants were the "functional equivalent" of employees — refreshingly acknowledging that "[a] trial judge is not in a good position to second-guess a corporate decision to rely on an independent consultant or an employee to accomplish a specific task." Id. at *7-8. The court then held that the draft 10-Ks deserved privilege protection — citing an earlier decision protecting 10-Ks that contained "legal advice and communications between a law firm and its client . . . even though the final version of the Form 10-K was publicly filed, because the drafts contained information not included in the final version." Id. at *9-10 (citing In re U.S. Healthcare, Inc. Sec. Litig., Master File No. 88-0559, 1989 U.S. Dist. LEXIS 1043, at *12 (E.D. Pa. Feb. 8, 1989)).

Although many decisions seem hostile to corporations' privilege claims, some courts' analyses provide good news.

Case Date Jurisidction State Cite Checked
1989-02-08 Federal PA
Comment:

key case


Chapter: 21.704

Case Name: FTC v. Reckitt Benckiser Pharms, Inc., Misc. No. 3:14mc5, 2015 U.S. Dist. LEXIS 29203, at *16-17, *17-18 (E.D. Va. Mar. 10, 2015)
(finding that the privilege did not protect drafts prepared with a lawyers assistance if the final version of the document was intended to be disclosed; "In conclusion, in the Fourth Circuit, the attorney-client privilege with respect to confidential communications does not apply to published documents and the underlying details and data if, at the time the communication was made, the client intended that the document was to be made public. Therefore, 'when the attorney has been authorized to perform services that demonstrate the client's intent to have his communications published . . . the client lose[s] the right to assert the privilege as to the subject matter of those communications.' United v. (Under Seal), 748 F.2d [875,] 876 [(4th Cir. 1984)]."; "It is important to note, however, that the intended publication of a communication does not eviscerate the privilege for all of the material produced for, or in connection with, publication. Rather 'if any of the non-privileged documents contain client communications not directly related to the published data, those communications, if otherwise privileged, must be removed by the reviewing corut before the document may be produced.' United States v. (Under Seal), 749 F.2d at 875, n.7. In other words, although some documents may not be privileged in their entirety, other documents, such as attorney's notes, communications between the attorney and client containing relevant data, and other documents which might contain 'details underlying the data' might well be privileged. That determination would require an individualized inspection of the documents to ensure that only non-privileged content is disclosed.")

Case Date Jurisidction State Cite Checked
2015-03-10 Federal VA B 3/16
Comment:

key case


Chapter: 21.704

Case Name: Federal Trade Comm. v. Reckitt Benckiser Pharmaceuticals, Inc., Misc. No. 3:14mc5, 2015 U.S. Dist. LEXIS 29203 (E.D. Va. March 10, 2015)
(finding that the privilege did not protect drafts prepared with a lawyers assistance if the final version of the document was intended to be disclosed; "[T]he Fourth Circuit has held that the relevant inquiry is not whether the client merely funneled unaltered information through an attorney to the public, but whether, at the time the attorney and client were working together, the client had enlisted the attorney's services in order to prepare a document that would eventually be released to the public. If the client has solicited the attorney's services to facilitate the production of a public document, the Fourth Circuit has held that the attorney-client privilege does not extend to the published data and the details underlying it. That, of course, could include any of the documents that Reckitt has labeled 'legal advice,' if the 'legal advice' qualifies as a detail underlying the published data.")

Case Date Jurisidction State Cite Checked
2015-03-10 Federal VA
Comment:

key case