Showing 197 of 197 results

Chapter: 24.1

Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *6 (W.D. Va. June 28, 2012)
("The privilege belongs to the client and may be expressly waived or impliedly waived by conduct. See Edwards 370 S.E.2d at 301.")

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

Chapter: 24.1

Case Name: Northern Virginia Real Estate, Inc. v. Martins, 80 Va. Cir. 478, 484 (Va. Cir. Ct. 2010)
("This rule of law is for the protection of the client, who may waive the privilege through express or implied conduct." [citing Seventh District Committee v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (1971)])

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

Chapter: 24.1

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("Furthermore, 'the privilege may be expressly waived by the client, or a waiver may be implied from the client's conduct.'" [Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988)])

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

Chapter: 24.1

Case Name: Gordon v. Newspaper Ass'n of Am., 51 Va. Cir. 183, 193 (Va. Cir. Ct. 2000)
("Generally, the attorney-client privilege may only be waived by the client and not the attorney. [Commonwealth v.] Edwards, 235 Va. [499,] 509 [(Va. 1988)].")

Case Date Jurisidction State Cite Checked
2000-01-01 State VA B 3/16
Comment:

key case


Chapter: 24.1

Case Name: Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (Va. 1988)
(holding that "the waiver, like the privilege, belongs to the client and not to the attorney")

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

Chapter: 24.7

Case Name: Martinez v. County of Antelope, Neb., 4:15CV3064, 2016 U.S. Dist. LEXIS 76549 (D. Neb. June 13, 2016)
(holding that a former county assessor county could not waive the county's privilege; holding that any privileged communications disclosed by the former assessor would not be admissible; "As to the communications between McWhorter and Bourne, the attorney-client privilege belongs to the County, not McWhorter as an individual. The power to waive the County's privilege rests with the County: McWhorter's disclosure cannot operate to waive the County's privilege unless she was authorized by the County to make that disclosure."; "The County never authorized McWhorter to disclose the content of her discussions with Bourne. . . . Moreover, when McWhorter spoke with Neary, and perhaps when she spoke to Martinez as well, McWhorter was no longer the County Assessor. She could neither speak for the County nor decide to waive the privilege on behalf of the County. Since the County never authorized McWhorter to waive its privilege, the County's communications with Bourne, and the legal advice provided during those communications, remains privileged. . . . Those communications cannot be received as evidence at trial over the County's objection.")

Case Date Jurisidction State Cite Checked
2016-06-13 Federal NE

Chapter: 24.7

Case Name: United States v. Avery, Case No. 3:07-cr-00028-RRB-KFM, 2015 U.S. Dist. LEXIS 136461 (D. Alaska Oct. 1, 2015)
("A charitable trust can seek legal advice through its authorized representative and, like other entities, through its authorized representatives can assert or waive a trust's attorney-client privilege. But, a former employee of a trust lacks any authority to waive the trust's attorney-client privilege. In 2006, the San Francisco Superior Court removed Avery as trustee for the Trusts for alleged misconduct. Thus, Avery is not authorized to waive the attorney-client privilege on behalf of the Trusts. Indeed, only the Trusts' current management is empowered to waive the privilege.")

Case Date Jurisidction State Cite Checked
2015-10-01 Federal AK

Chapter: 24.7

Case Name: Pia v. Supernova Media, Inc., Case No. 2:09-cv-00840-DN-EJF, 2014 U.S. Dist. LEXIS 175028 (D. Utah Dec. 18, 2014)
(holding that a manager/member of an LLC can waive its privilege; "[B]ecause Supernova is a current manager of Shannon's Delaware, it can waive attorney-client privilege on behalf of Shannon's Delaware."; "[T]his case involves an LLC -- a legally different business organization than a corporation, with a different management structure (manager-managed as opposed to a board of directors). Further, to the extent a corporation and board of directors can be analogized to a manager-managed LLC, Mr. Pia [Lawyer] has not presented any evidence that the majority of the management of Shannon's Delaware wishes to assert the attorney-client privilege, as the majority of the corporation in Milroy [Milroy v. Hanson, 875 F. Supp. 646 (D. Neb. 1995)] desired to do. Rather, the only argument Mr. Pia makes is that Supernova is a 'dissident manager' because it seeks to waive the privilege. Milroy referred to the 'dissident director' because he was the only director voting against the majority of the board of directors. No such evidence is presented by Mr. Pia. Thus, Milroy is factually much different than this case and is not persuasive."; "The attorney-client privilege belongs to the entity, and the entity's management holds the power to assert or waive the privilege. Here, a manager (Supernova) of the entity (Shannon's Delaware) has waived the privilege and there is no evidence that by so doing Supernova is taking an action contrary to the will of the majority.")

Case Date Jurisidction State Cite Checked
2014-12-18 Federal UT

Chapter: 24.7

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)
(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "'Dechert makes an alternative argument to the effect that an attorney cannot waive a privilege belonging to a client. . . . Defendant's point seems to be that even if it was careless in its handing of assertedly privileged or confidential material, that failing cannot waive the attorney-client privilege, which belongs to the client. This argument fails. First, the cited principle appears to be limited to intentional disclosures of privileged materials. . . . Second, the very legal doctrine that Dechert cites -- concerning inadvertent waiver -- makes plain that careless actions by counsel in not protecting privileged materials may permissibly be ascribed to the client for purposes of finding an implied waiver.'")

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

Chapter: 24.7

Case Name: In re The Kipnis Section 3.4 Trust v. The Northern Trust Co., No. 1 CA-CV 13-0260, 2014 Ariz. App. LEXIS 103, at *22, *23-24 (Ariz. Ct. App. June 3, 2014)
("To prevent a predecessor trustee from interfering with a successor trustee's duties and impeding the transition of trustees to the detriment of the beneficiaries, we hold that a predecessor trustee cannot assert the attorney-client privilege against a successor trustee as to legal advice that the predecessor trustee sought in its fiduciary capacity on matters of trust administration. . . . However, the limit on the fiduciary exception in the beneficiary context applies with equal weight in the successor trustee context: when a trustee communicates with an attorney in the trustee's personal capacity on matters not of trust administration, disclosure of that communication may not be compelled by a successor trustee."; "The trial court erred by ordering Northern Trust to provide attorney-client communications to Bank of Arizona as successor trustee without considering whether Northern Trust made those communications in a corporate, nonfiduciary capacity on matters not of trust administration. The court further erred to the extent that it ordered Northern Trust to disclose those same communications to DBK, an asset of the Section 3.4 Trust that Northern Trust managed in its role as trustee.")

Case Date Jurisidction State Cite Checked
2014-06-03 State AZ

Chapter: 24.7

Case Name: Cnty. of San Mateo v. v. CSL Ltd. (In re Plasma-Derivative Protein Therapies Antitrust Litig.), No. 09 C 7666, No. 11 C 1468, 2013 U.S. Dist. LEXIS 29624, at *16 (N.D. Ill. Mar. 4, 2013)
(analyzing a situation in which a trade association board of directors member circulated privileged trade association documents to employees of the company for which the director also served as president; "PPTA argues that Mr. Curtin's [Director on PPTA's Global Board of Directors, and also President of third-party PPTA member Octapharma] circulation of the e-mail does not waive the privilege as the privilege is PPTA's, not his. Such reasoning is compelling but nonetheless not the law.")

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

Chapter: 24.7

Case Name: Rogan v. Oliver, 110 So. 3d 980, 984 (Fla. Dist. Ct. App. 2013)
(analyzing a homeowner association's former president's defamation claim against several individuals; holding that the former homeowners' association president could not waive the privilege in claiming advice of counsel; "Here, the trial court departed from the essential requirements of the law by concluding that Oliver -- a 'displaced manager' -- had the authority to waive or assert the attorney/client privilege on behalf of the Association. This ruling placed the authority at issue in the incorrect hands. It is the Association, through its current board of directors, which is the entity with the authority to waive or assert attorney/client privilege as to communications between the Association's prior board and its counsel. To the extent that the trial court placed this authority with Oliver, it departed from the essential requirements of the law."; "On remand, the trial court must consider whether the current Association board members have waived the attorney/client privilege on behalf of the Association and, if so, whether that waiver was valid in light of the current composition of the board."; not explaining the impact of the court's holding on the former president's defamation claim against the association)

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

Chapter: 24.7

Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 356 (Ill. 2012)
(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "The attorney-client privilege belongs to the client, rather than the attorney, although the attorney asserts the privilege on behalf of the client. . . . Only the client may waive the privilege. . . . The attorney, although presumed to have authority to waive the privilege on the client's behalf, may not do so over the client's objection.")

Case Date Jurisidction State Cite Checked
2012-01-01 State IL B 8/13

Chapter: 24.062

Case Name: Cave Consulting Group, Inc. v. OptumInsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 179966 (N.D. Cal. Dec. 29, 2016)
(holding that a merged company faced the consequences of its predecessor's waiver of privilege; "OptumInsight contends that Symmetry had no authority to waive any privilege belonging to OptumInsight, and that the scope of the waiver therefore effectively ended in 2007 when Symmetry 'ceased to exist.'. . . CCGroup argues that after merging Symmetry into itself, OptumInsight stands in the shoes of Symmetry with respect to waiver of privilege. Neither party cites authority regarding the application of privilege waivers to post-merger corporations."; "With respect to all times before the two corporations merged in 2007, OptumInsight is of course correct that Symmetry had no authority to waive any privilege belonging to OptumInsight. The Court nevertheless agrees with CCGroup that Symmetry's waiver is imputed to OptumInsight after the merger. As discussed in the Court's previous Order, '[t]he corporation that continues after a merger generally stands in the shoes of both constituent corporations.'. . . The Delaware merger statute makes no meaningful distinction between the effect of merging two corporations to create a new corporation and the effect of merging one corporation into another -- in either case, the resulting or continuing corporation 'possess[es] all the rights, privileges, powers and franchises as well of a public as of a private nature, and [is] subject to all the restrictions, disabilities and duties of each of such corporations so merged or consolidated.'. . . Here, one 'restriction' or 'disability' of Symmetry at the time of the merger was that it had waived certain document protections as set forth above. Under § 259(a), that disability passes to the continuing corporation -- post-merger OptumInsight -- with respect to communications taking place or material created after the date of the merger.")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal CA

Chapter: 24.201

Case Name: United States v. Marfo, No. 12-4910, 2014 U.S. App. LEXIS 9613 (4th Cir. May 23, 2014)
(holding that a witness could waive its attorney-client protection covering communications with his own lawyer; "Davis' statements were not made to a law enforcement officer, but rather to his own attorney, a confidante with whom his communications were protected by the attorney-client privilege. That Davis' statements preceded a motive to fabricate is further evidenced by his admission of his own culpability in the murder, as well as his failure to incriminate Marfo to a greater extent than he incriminated himself, and by his failure to incriminate Copeland at all. As the prior consistent statements were properly admitted pursuant to Rule 801(d)(1)(B), the district court did not err.")

Case Date Jurisidction State Cite Checked
2014-05-23 Federal

Chapter: 24.202

Case Name: In re McDonald, Case No. 13-10663C-7G, Case No. 13-10664C-7G, Jointly Administered in Case No. 13-10661, 2014 Bankr. LEXIS 3780, at *17-18 (M.D.N.C. Sept. 3, 2014)
("There are conflicting decisions regarding whether a bankruptcy trustee can unilaterally waive an individual debtor's attorney-client privilege, ranging from flatly not allowing the waiver under any circumstances to holding that the trustee, as a matter of law, succeeds to the privilege and can waive the privilege at will. . . . The approach adopted in Miller was the 'middle of the line' approach under which 'the particular circumstances of the case must be examined to determine if the bankruptcy trustee has the power to waive the debtor's attorney-client privilege over his objection.' . . . . This approach includes weighing the potential harm to the individual debtor against the trustee's duty to maximize the value of the debtor's estate, i.e., making a comparison of the harm to the debtor with the trustee's need for information. . . . Having weighed the conflicting decisions, the court concludes that the better approach to the waiver issue is the middle approach adopted in Miller and Marker, and that is the approach that will be utilized in this proceeding in dealing with the waiver issue.")

Case Date Jurisidction State Cite Checked
2014-09-03 Federal NC

Chapter: 24.203

Case Name: Bivins v. Rogers, Civ. No. 15-cv-81298-MARRA/MATTHEWMAN, 2016 U.S. Dist. LEXIS 120892 (S.D. Fla. Sept. 7, 2016)
(analyzing the fiduciary exception, and finding that a Florida statute revised the traditional common law approach; "This Order primarily addresses the legal issue of who, under Florida law, holds the attorney-client privilege when a guardian of a ward hires an attorney to assist the guardian. Specifically, after the death of the ward, does the attorney-client privilege run between the guardian and the guardian's attorney or between the personal representative of the deceased ward's estate and the guardian's attorney?")

Case Date Jurisidction State Cite Checked
2016-09-07 Federal FL

Chapter: 24.203

Case Name: Clair v. Clair, 982 N.E.2d 32. 42 (Mass. 2013)
(holding that the executrix of a corporate director did not "step into the shoes" of her late husband's role as director, and therefore could not rely on her executrix role in seeking access to privileged documents to which her late husband had access as a corporate director; "Contrary to Claire's contention, she did not simply assume James's role as a director of the companies when, on his death, she became the executrix of his estate. . . . Claire has not alleged that she has been elected to serve as a director of the companies, which is a necessary precondition to obtaining access to privileged communications given that the attorney client privilege belongs to the companies, not to each individual director. The fact that Claire steps into James's shoes for purposes of administering his estate . . . does not mean that she automatically assumes his role as a director of the companies with access to privileged communications."; "We add that, in his role as a director of the companies, James had an obligation to preserve or waive the companies' attorney client privilege in a manner that was consistent with his fiduciary duty to act in the companies' best interests. . . . If Claire automatically had assumed the position of a director of the companies on James's death, then she would be bound by this same fiduciary duty. The nature of these proceedings is such that Claire seeks access to privileged communications in order to support her lawsuit to protect the interests of James's estate, not the interests of the companies. Thus, not only has Claire not been elected to serve as a director of the companies, but her position is fundamentally inconsistent with being a director." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 State MA B 3/13

Chapter: 24.204

Case Name: Hugo v. Clark, 125 Va. 125, 128-30, 135, 99 S.E. 521, 522, 524 (Va. 1919)
("'It is generally considered that the rule of privilege does not apply in litigation, after the client's death, between parties, all of whom claim under the client; and so, where the question before the court is as to the validity or genuineness of an alleged will, the attorney of the testator may, according to the weight of authority, testify as to all matters relevant to the issue, although his testimony involves a disclosure of confidential communications between himself and his client, at least when such attorney is one of the subscribing witnesses to the will, as in such case the testator must be considered as having waived the privilege by requesting the attorney to sign as a witness. A decedent's attorney has also been held competent to prove the existence and contents of a lost will; and, in an action involving the construction of a will, the attorney who drew the will may testify as to relevant communications of the testator.' . . . 'It may be laid down as a general rule of law, gathered from all the authorities, that unless provided otherwise by statute, communications by a client to the attorney who drafted his will, in respect to that document, and all transactions occurring between them leading up to its execution, are not, after the client's death, within the protection of the rule as to privileged communications, in a suit between the testator's devisees and heirs at law, or other parties who all claim under him. The reason for such an exception to the general rule excluding confidential professional communications is that the rule is designed for the protection of the client, and it cannot be said to be for the interest of a testator, in a controversy between parties all of whom claim under him, to have those declarations and transactions excluded which are necessary to the proper fulfillment of his will.' [note to In re Young's Estate, 94 P. 731 (Utah 1908).] The reason for excluding such communications, stated succinctly, is that it is essential to the administration of justice that clients should feel free to consult their legal advisers without any fear that their disclosures will be thereafter revealed to their detriment. As a matter of public policy, this rule should be rigidly enforced in order that men may secure legal advice, after frank disclosures to their counsel without which they would be unable to defend themselves from threatened wrong. After the death of the client, however, it has been held that the privilege may be waived when the character and reputation of the deceased are not involved, by his executor or administrator, or in will contests by his heirs or legatees. The deceased has no longer any interest in the matter."; noting that because "this is a testamentary contest between the heirs at law on the one side, claiming that the decedent died intestate, and the devisee, claiming that the paper offered is the true last will and testament of the decedent, we conclude that the privilege does not exist.")

Case Date Jurisidction State Cite Checked
1919-01-01 State VA B 3/16

Chapter: 24.205

Case Name: Eizenga v. Unity Christian School of Fulton, Illinois, Appeal No. 3-15-0519, 2016 IL App. (3d) 150519, 2016 Ill. App. LEXIS 266 (Ill. 3d App. May 6, 2016)
(applying the testamentary exception in a trust context; "In general, the attorney-client privilege survives death. . . . However, an exception to the general rule has been recognized in testamentary contexts. . . . Both the attorney-client privilege and the testamentary exception arose from the common law . . . And the testamentary exception was recognized by our supreme court in the nineteenth century."; "We acknowledge the case law in this state that has described the testamentary exception to the attorney-client privilege as applying only in the context of a will contest. . . . However, none of these cases had to address the situation presented by this case."; "While we are unaware of any Illinois cases that have applied the testamentary exception to the attorney-client privilege in a case involving a trust, there is ample persuasive authority for doing so."; "Even if a will contest is the primary circumstance under which this exception can apply, certainly it is not the only circumstance. In this case, Westendorf created the Trust during his life -- an inter vivos transaction. He changed the beneficiaries of the Trust several times before he died. A dispute has arisen between former beneficiaries of the Trust and the current beneficiary, Unity Christian School, based on undue influence that attorney Holesinger allegedly exerted over Westendorf. The documents Holesinger claims are privileged are relevant to the resolution of that dispute. As the circuit court indicated, this case presents no material difference between a will contest for purposes of the testamentary exception to the attorney-client privilege. Because this case fits squarely within the purview of the rationale behind the testamentary exception . . . We hold that the circuit court did not err when it ruled that Holesinger's documents were not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-05-06 Federal IL

Chapter: 24.205

Case Name: Eizenga v. Unity Christian School, 2016 IL App. (3d) 150519 (5/6/2016)
July 6, 2016 (PRIVILEGE POINT)

"The 'Testamentary Exception'"

All jurisdictions recognize that the attorney-client privilege lasts beyond the client's death, and that lawyers who represented the client must assert that privilege if a third party seeks privileged communications. However, the so-called "testamentary exception" can trump this general principle.

In Eizenga v. Unity Christian School, 2016 IL App. (3d) 150519, a dispute arose between beneficiaries of an inter vivos trust after the trustor died. Some beneficiaries claimed that the trustor's lawyer exerted undue influence. The court noted that Illinois courts have recognized the "testamentary exception" since the nineteenth century — under which beneficiaries involved in a will contest may access the decedent's otherwise privileged communications. Id. ¶ 24. The court then applied the exception to the situation before the court — in which decedent created an inter vivos trust, but "changed the beneficiaries of the Trust several times before he died." Id. ¶ 29. Because privileged communications "are relevant to the resolution" of the dispute between the former beneficiaries and the current beneficiary, the testamentary exception allowed the quarreling beneficiaries access to the privileged communications. Id.

The testamentary exception might seem counter-intuitive at first blush. But it reflects the law's recognition that the deceased client would want her testamentary intention fulfilled, thus freeing her lawyer to disclose privileged communications to those seeking courts' guidance about the meaning of some testamentary document. Given this principle, the exception predictably does not trump the privilege when some third party such as a creditor seeks the privileged communications.

Case Date Jurisidction State Cite Checked
2016-05-06 Federal IL B 7/16
Comment:

key case


Chapter: 24.205

Case Name: Collautt v. Li, Civ. A. No. 14-632, 2014 U.S. Dist. LEXIS 171340 (E.D. Pa. Dec. 11, 2014)
("Even if a testamentary exception to the attorney-client privilege exists under Pennsylvania law, I find that it would not here apply to exempt the information Li seeks to discover. . . . Li seeks information from Lastowka to defend against plaintiff's claims that Li and defendant Lujun Zhang deprived plaintiffs of the death benefits from Allan Collautt's life insurance policies. . . . The materials she seeks are not relevant to a contest of Allan Collautt's will."; "I am not persuaded that, under the circumstances now before me, Li has met her burden to demonstrate that a testamentary exception to the attorney-client privilege should apply to require Lastowka to provide the information she seeks to compel -- information regarding testamentary documents that may be used not in a will contest, but as extrinsic evidence regarding Allan Collautt's mental state when he modified his life insurance beneficiary designations. Accordingly, I will deny her motion.")

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

Chapter: 24.205

Case Name: Zook v. Pesce, No. 75, Sept. Term, 2013, 2014 Md. LEXIS 298 (Md. App. May 16, 2014)
(holding that the court erred in not applying the testimentary exception in a dispute among three beneficiaries, but that admitting the testimony would not have changed the outcome of the case; "[S]ome states have elected to allow this exception to the attorney-client privilege based on the idea that 'the deceased client would presumably want his communications disclosed in litigation between such claimants so that his desires in regard to the disposition of his estate might be correctly ascertained and carried out.'"; "Happily for both parties in this case, Maryland recognized the wisdom of the testamentary exception about a century ago."; "The Maryland rule is consistent with that adopted in a majority of states."; "[T]he testamentary exception to the attorney-client privilege is alive and well in Maryland. With its refusal to recognize that exception, the trial court erred by failing to require that Downs produce the 2007 Living Trust. Yet, Petitioner has the burden to demonstrate that the trial court's error was prejudicial. . . . We have carefully considered the test for mental competency, and the seven-factor Moore test for undue influence, to determine whether, had the trial judge considered the terms of the 2007 Living Trust, it might have changed its ruling on either competency or undue influence. After due consideration, we conclude that admission into evidence of the 2007 Living Trust, or evidence relating to its execution, would not have persuaded the trial court to rule any differently. Accordingly, we hold that Petitioner is not entitled to a new trial.")

Case Date Jurisidction State Cite Checked
2014-05-16 State MD

Chapter: 24.205

Case Name: Tennessee LEO 2014-F-158 (2014)
(finding that the lawyer who had prepared testimentary documents for a client who now has dementia might be able to waive the protection for the document before the client's death; "Both RPC 1.6(a)(1) and 1.9(c)(1) permit a lawyer to reveal any information or document which the client or former client has given the lawyer informed consent to reveal. If the client or former client is deceased or incompetent, due to dementia, Alzheimer's or otherwise, they can no longer give informed consent. Ethics opinions of the states are inconsistent regarding whether individuals appointed by the court in various capacities can waive confidentiality on behalf of the client or former client. Neither RPC 1.6(a)(1), RPC 1.9(c)(1) nor the accompanying comments permit someone other than the client or former client to waive confidentiality on behalf of the client. South Carolina Ethics Op. 05-09 (2005). Aside from basis on which the client or former client’s lawyer’s may disclose information relating to the representation, whether someone other than the client or former client can consent to such disclosure is governed by 'other law' beyond the scope of this opinion. RPC 1.6(c)(3)."; "If a lawyer believes that disclosure of the contents of the will would be in furtherance of client's interest, and the client did not forbid the lawyer to make the disclosure, RPC 1.6(a)(2) permits the lawyer to furnish the Will as being impliedly authorized to carry out the representation of the client."; "RPC 1.6(c)(3), and by incorporation, RPC 1.9(c)(2) require 'a lawyer to reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary . . . to comply with . . . other law.' Statute may require the lawyer to disclose the Will. GAL, AAL, conservators, guardians and others serving in a representative capacity are appointed by courts or tribunals. The duties, authorities and/or responsibilities of each are governed by statute and/or order of the court, over neither of which the Rules of Professional Conduct nor the Board of Professional Responsibility has authority or jurisdiction. If other law grants specific authority to one acting in a representative capacity to access or disclose the client's or former client's confidential information or documents, RPC 1.6(c)(3) would require that the information or document be revealed or provided by the lawyer."; "RPC 1.9(c)(3) permits disclosure of information relating to the representation of a former client if the information has become 'generally known.' If the Will or other testamentary document of a former client is part of the public record, the document is 'generally known' and may be revealed or provided by the lawyer. RPC 1.9(c), cmt. [8a].")

Case Date Jurisidction State Cite Checked
2014-01-01 Other TN

Chapter: 24.205

Case Name: Petition of Stompor, 82 A.3d 1278, 1281, 1282, 1283 130 (N.H. 2013)
(holding that a testamentary exception applied to even if the lawyer never prepared and executed estate documents; "Applicable here is [N.H.] Rule [of Evid.] 502(d)(2), which excepts from the privilege 'a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.'"; "Here, the parties claim through the same deceased clients. If the respondent is successful in proving that the petitioner unduly influenced the parents, the 2004 estate plan documents that bequeathed to the petitioner and his family all of the parents' assets will be voided."; "Relying upon Gould, Larson, Bennet, Wells v. Panico, 273 Conn. 315, 869 A.2d 653 (Conn. 2005), the petitioner argues that the exception in Rule 502(d)(2) is limited to cases in which the attorney's work includes executed estate plan documents, regardless of whether the attorney's work is relevant to the issues in the case."; "Our conclusion that the Rule 502(d)(2) exception is not limited to attorney-client communications that culminate in executed estate plan documents is supported by the decisions of other courts in states that have adopted an exception similar to ours.")

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

Chapter: 24.205

Case Name: Adler v. Greenfield, 990 N.E.2d 1219, 1234-35, 1235 (Ill. App. Ct. 2013)
(finding that what the court called the "will contest" doctrine did not apply; "In the case at bar, it is important to note that the instant action is not a will contest. Plaintiff Faye Adler Grafton, in her capacity as co-executor of Muriel's will, sought to admit Muriel's 2007 will to probate instead of the 2008 will; however, the probate court denied the motion and admitted Muriel's 2008 will to probate. The question of which will governs has been answered and is not before us. Instead, the action before us is a separate action, in the law division and not in the probate division, for legal malpractice, brought by beneficiaries in their individual capacities against Greenfield and his law firm. Indeed, Muriel's estate is not a party to the action. Thus, the exception to the privilege in the context of a will contest does not apply here." (footnote omitted); "[P]laintiffs have pointed to no case law, and we have discovered none, that would permit a trustee to assert or waive a decedent's privilege outside the context of a will contest."; "In the case at bar, the instant action is not a will contest. Accordingly, any communication between Muriel, or her agents, and Greenfield remains privileged.")

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

Chapter: 24.205

Case Name: DeHart v. DeHart, 986 N.E.2d 85, 105, 106 (Ill. 2013)
(applying the testamentary exception; "We note that generally the attorney-client privilege survives the client's death. . . . A different rule applies, however, with respect to a will. In such a case, there is only a temporary privilege. . . . Where an attorney prepares a will for a client and witnesses the same, the privilege only exists during the lifetime of the client. . . . The rationale behind this limited exception to the privilege is that a decedent would (if one could ask him) forgo the privilege so that the distribution scheme he actually intended can be given effect."; "Defendant acknowledges that there is an exception to the attorney-client privilege for a will contest, but argues that the exception or waiver of the privilege is only in favor of those claiming through the decedent in a dispute between the executor and the decedent's heirs or next of kin. See Wilkinson v. Service, 249 Ill. 146, 150-51, 94 N.E. 50 (1911). Defendant maintains that there was no evidence presented that plaintiff was an heir or next of kin. Defendant characterizes plaintiff as a 'complete stranger' to this will contest and argues that plaintiff needs to satisfy a higher threshold of showing that he is an heir or next of kin before he can use the court to discover confidences to which he is not entitled."; "Applying the above-mentioned principles to the present case, we find that plaintiff need only make an initial evidentiary showing that he is an heir or next of kin or that he was a recipient under a prior will. Any of these showings would make him an interested person and not a stranger subject to the limitations of the attorney-client privilege. In this particular case, we find this is indisputably a will contest, involving claims of testamentary capacity and undue influence. Moreover, plaintiff has nearly made the showing that he is an heir or next of kin for purposes of the exception to the privilege, if in fact he has not already made it." (footnote omitted))

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

Chapter: 24.205

Case Name: Wertenbaker v. Winn, 30 Va. Cir. 327, 328-29 (Va. Cir. Ct. 1993)
("where the party seeking discovery is not asserting a claim adverse to the decedent client's estate but is, rather, claiming under the decedent client, the attorney-client privilege presents no obstacle to disclosure")

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

Chapter: 24.205

Case Name: Hugo v. Clark, 125 Va. 126, 128-30, 135, 99 S.E. 521, 522, 524 (Va. 1919)
("'It is generally considered that the rule of privilege does not apply in litigation, after the client's death, between parties, all of whom claim under the client; and so, where the question before the court is as to the validity or genuineness of an alleged will, the attorney of the testator may, according to the weight of authority, testify as to all matters relevant to the issue, although his testimony involves a disclosure of confidential communications between himself and his client, at least when such attorney is one of the subscribing witnesses to the will, as in such case the testator must be considered as having waived the privilege by requesting the attorney to sign as a witness. A decedent's attorney has also been held competent to prove the existence and contents of a lost will; and, in an action involving the construction of a will, the attorney who drew the will may testify as to relevant communications of the testator.' . . . 'It may be laid down as a general rule of law, gathered from all the authorities, that unless provided otherwise by statute, communications by a client to the attorney who drafted his will, in respect to that document, and all transactions occurring between them leading up to its execution, are not, after the client's death, within the protection of the rule as to privileged communications, in a suit between the testator's devisees and heirs at law, or other parties who all claim under him. The reason for such an exception to the general rule excluding confidential professional communications is that the rule is designed for the protection of the client, and it cannot be said to be for the interest of a testator, in a controversy between parties all of whom claim under him, to have those declarations and transactions excluded which are necessary to the proper fulfillment of his will.' The reason for excluding such communications, stated succinctly, is that it is essential to the administration of justice that clients should feel free to consult their legal advisers without any fear that their disclosures will be thereafter revealed to their detriment. As a matter of public policy, this rule should be rigidly enforced in order that men may secure legal advice, after frank disclosures to their counsel without which they would be unable to defend themselves from threatened wrong. After the death of the client, however, it has been held that the privilege may be waived when the character and reputation of the deceased are not involved, by his executor or administrator, or in will contests by his heirs or legatees. The deceased has no longer any interest in the matter." (citations omitted); noting that "this is a testamentary contest between the heirs at law on the one side, claiming that the decedent died intestate, and the devisee, claiming that the paper offered is the true last will and testament of the decedent, we conclude that the privilege does not exist")

Case Date Jurisidction State Cite Checked
1919-01-01 State VA

Chapter: 24.302

Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Chapter 7, Case No. 8:11-bk-22258-MGW, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 4060, *14-15 (M.D. Fla. Sept. 20, 2014)
(in this and an earlier opinion (In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *28 (M.D. Fla. Sept. 12, 2014)); analyzing the co-client "exception" to the attorney-client privilege; concluding that Kirkland & Ellis represented in litigation two companies who are now adversaries, and therefore could now obtain and use privileged communications from their joint representation in their current dispute; finding that the law firm did not jointly represent the two companies in a transaction; later taking steps to avoid disclosure to one of the former joint clients' current litigation adversaries in a privileged communication disclosed during the trial of the dispute between the former joint clients; "[T]o the extent some of the documents are privileged, the Trustee has the right to waive the privilege with respect to THMI's own communications with its lawyers, so long as the communications relate only to THMI. The Court's ruling that the parties need not be excluded from the courtroom, however, is subject to one caveat.")

Case Date Jurisidction State Cite Checked
2014-09-20 Federal FL

Chapter: 24.302

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 469 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "[C]ommunications between Fundamental Administrative Services [provider of administrative services and in-house counsel services to THI, former parent of wholly owned subsidiary THMI, the current debtor, and therefore within the privilege as THI's and THMI's agent] and the lawyers defending THI and THMI are protected from disclosure to third parties but available to THMI under the co-client exception since Fundamental Administrative Services was facilitating THMI's defense as well as THI's defense.")

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

Chapter: 24.302

Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *17, *18 (Bankr. E.D. Va. May 11, 2012)
("One party to a joint privilege or common defense cannot unilaterally waive the privilege."; "Restatement (Third) of the Law Governing Lawyers provides that: 'If two or more persons are jointly represented by the same lawyer in a matter, a communication of either co-client that otherwise qualifies as privileged under §§ 68-72 and relates to matters of common interest is privileged as against third persons, and any co-client may invoke the privilege, unless it has been waived by the client who made the communication.' § 75(1) (2000).")

Case Date Jurisidction State Cite Checked
2012-05-11 Federal VA

Chapter: 24.302

Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *18-19 & n.5 (Bankr. E.D. Va. May 11, 2012)
(analyzing the ramifications of a law firm jointly representing a company and two of its executives in a derivative case; noting that the company later declared bankruptcy, and that the bankruptcy trustee moved to compel the turnover of documents the law firm created during the joint representation; inexplicably confusing the joint defense/common interest doctrine and the joint representation situation; ordering the law firm to produce the documents; holding that the bankruptcy trustee could use any protected document against the other jointly represented clients, but not against third parties; "[T]he Trustee is entitled to production of the attorney's files, and the Trustee is entitled to use the documents in litigation with the three, jointly represented Individual Defendants; however, the Trustee is not entitled to waive the privilege in litigating against third parties. There are two other individual defendants, and two other corporate defendants in the Derivative Action, who were not represented by WTP. . . . The Court is not going to give the Trustee license to waive the privilege as against the interests of the jointly represented Individual Defendants, whom it should be noted, have a continuing interest in the confidentiality of their legal file equal to that of the Trustee. How this plays out in Delaware, and whether a severance of the action against the Individual Defendants would be in order, is best left to the Chancellor in Delaware. For now, the Court will make it clear that the Trustee is not entitled to waive the privilege unilaterally in the litigation against the non-jointly represented defendants."; "[A]sking questions at a deposition or at trial of a non-jointly represented party based on knowledge gleaned from privileged documents will not violate the Court's Order that the Trustee not waive the privilege. However, showing a privileged document to a non-jointly represented witness, or reading a privileged document into the record, or a portion thereof, probably would.")

Case Date Jurisidction State Cite Checked
2012-05-11 Federal

Chapter: 24.303

Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. 08-01789 (SMB), Adv. Pro. No. 10-04216 (SMB), 2017 Bankr. LEXIS 519 (S.D.N.Y. Feb. 17, 2017)
(noting that courts did not agree on the proof required to strip away privilege under the crime-fraud exception; "It is black-letter law that when two or more clients are jointly represented by a single law firm concerning a matter of common interest, one of them cannot unilaterally waive the privilege that attaches to communications that they jointly made for the purpose of seeking legal advice.")

Case Date Jurisidction State Cite Checked
2017-02-17 Federal NY

Chapter: 24.303

Case Name: Priestly v. Panmedix Inc., 114874/10, 2017 N.Y. Misc. LEXIS 139 (N.Y. Sup. Ct. Jan. 12, 2017)
("Generally, when an attorney represents two or more parties with respect to the same matter, the attorney-client privilege may not be invoked to protect confidential communications concerning the joint matter in subsequent adverse proceedings between the clients, but may be asserted 'against the outside world.'"; "Thus, because the defendants that were formerly jointly represented by Ballon Stoll are, at least to some degree, adverse parties in this lawsuit, Halket Weitz may obtain the joint representation file.")

Case Date Jurisidction State Cite Checked
2017-01-12 State NY

Chapter: 24.303

Case Name: Commonwealth Land Title Insurance Company v. Funk, C.A. No. N14C-04-199 PRW, 2015 Del. Super. LEXIS 301 (Del. Super. June 17, 2015)
(analyzing a title company's request for indemnity from a closing attorney who made a priority error in the mortgage documents; holding that an insurance's lawyer could have a privileged communication with the insurance company, that the insured cannot waive the insurance company's privilege, and that the insurance company's request for attorney's fees did not trigger an "at issue" waiver; "The Court agrees that Commonwealth [Insurance company], itself an independent privilege holder, 'should not be forced unwillingly into a waiver of [that] privilege based on another client's decision to waive the privilege' Thus, because Cohen Seglias [Harker's law firm] represented both Commonwealth's and the Baffones' common legal interest, the Baffones' waiver is of no moment to Commonwealth's assertion of privilege against the Funk Defendants. The emails between Mr. Harker [Lawyer for insured] and Mr. Tincher are therefore not discoverable because they are protected attorney-client communications.")

Case Date Jurisidction State Cite Checked
2015-06-17 State DE

Chapter: 24.303

Case Name: Galati v. Pettorini, No. 101712, 2015 Ohio App. LEXIS 1242 (Ohio April 2, 2015)
("In order to waive the joint-client privilege, all joint clients must consent to the disclosure. . . . As it applies to the case at bar, each of the 11 joint Charms clients shared a joint attorney-client privilege, which protected their communications from compelled disclosure to persons outside the joint representation. Even though Galati was part of the joint representation, he could not and cannot unilaterally waive the privilege of the other Charms clients. He has admitted that he has not sought waiver from the other co-clients involved in the communications. Therefore, because he cannot unilaterally waive the privilege as to the emails, all of which involve other joint clients, he cannot show that the privilege was waived.")

Case Date Jurisidction State Cite Checked
2015-04-02 State OH

Chapter: 24.303

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)
(analyzing effect of a joint representation; "[C]onsiderations of fundamental fairness that are similar to those underlying section 958 as a whole weigh strongly in favor of applying the statute in this context. For example, if one of two joint clients breached an attorney fee agreement but the other joint client did not, and the attorney sued the breaching client, then it would be unjust to allow the nonbreaching client to thwart the attorney's suit by invoking the privilege to prevent introduction of the fee agreement itself. Moreover, the risk of collusion between the joint clients would be substantial. Similarly, if an attorney breached a duty to one of two joint clients but breached no duties to the other, and the wronged client sued the attorney, then it would be unjust to allow the nonsuing client to thwart the other client's suit by invoking the privilege to prevent introduction of relevant attorney-client communications made in the course of the joint representation. Again, the risk of collusion between the attorney and the nonsuing client would be substantial -- indeed, the risk would be particularly significant if the alleged breach were that the attorney had favored the interests of the nonsuing client over those of the suing client.")

Case Date Jurisidction State Cite Checked
2015-01-30 State CA

Chapter: 24.303

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 476 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "The Trustee, however, is prohibited from disclosing the attorney-client communications or work product to any party that would result in the privileges being destroyed. That is because the Trustee is obtaining the communications under the co-client exception and common interest doctrine, and waiver of the privilege under those circumstances requires consent of all of the parties who share the privilege. Courts that have granted parties access to attorney-client communications or work product under the co-client exception or common interest doctrine have seen fit to prohibit those parties from disclosing the communications or work product to third parties. This Court will do the same here." (footnotes omitted))

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

Chapter: 24.303

Case Name: Arkin Kaplan Rice LLP v. Kaplan, 967 N.Y.S.2d 63 (N.Y. App. Div. 2013)
September 4, 2013 (PRIVILEGE POINT)

"Joint Representations Can Spawn Complicated Waiver Issues"

If adversity develops among former joint clients, any of the joint clients generally can obtain access to all of the joint communications and use them in the dispute. On the other hand, none of the joint clients can disclose such communications to outsiders without the former joint clients' unanimous consent. These general principles can complicate situations when former joint clients become adversaries.

In Arkin Kaplan Rice LLP v. Kaplan, 967 N.Y.S.2d 63 (N.Y. App. Div. 2013), the court dealt with a lawsuit filed by several plaintiffs (including Lisa Solbakken) against a number of defendants – including some of her previous joint clients – and the lawyer who had represented all of them. The court first confirmed that the communications that had occurred during the previous joint representation "are not privileged within the context of Solbakken's adverse litigation" against her former joint clients and their joint lawyer. Id. At 64. But the court then held that "those communications are privileged as against Solbakken's co-plaintiffs," who had not been previously represented by the same lawyer in the earlier joint representation. Id. Thus, "Solbakken cannot unilaterally waive [the privilege] on defendants' behalf so as to benefit her coplaintiffs [sic]." Id.

The court did not explain how these two principles would apply. For instance, the court did not indicate whether Solbakken could disclose privileged communications from the earlier joint representation to the lawyer who was representing her and her fellow plaintiffs in the current litigation.

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

key case


Chapter: 24.303

Case Name: United States v. Ghavami, No. 10 Cr. 1217 (KMW) (JCF), 2012 U.S. Dist. LEXIS 80593, at *24-25, *26 (S.D.N.Y. June 5, 2012
analyzing privilege and work product implications of the government's efforts to use secret tape recordings made by a government cooperator of individual defendants in a criminal bid rigging case; noting that the government had used a taint team to review the recordings, because they include discussions by the defendants of legal advice they have received from their lawyer; ultimately concluding individual defendants who are upper level executive could waive their company's attorney client privilege, but that their disclosure of work product to the government cooperator did not waive that protection; also finding that lower level employees could not waive their corporate employer's privilege; analyzing tape recordings of a defendant who was an employee of a financial institution and (among other things) passed along communications that he had learned under a common interest agreement; "To the extent Privilege Claimant 4 relayed information that his attorney had learned in communications with other persons that were parties to the joint defense agreement, the attorney-client privilege has not been waived. As noted above, while the joint defense or common interest doctrine does not create an independent privilege, it does operate as an exception to what otherwise would be a waiver. Insofar as Privilege Claimant 4 discussed with government cooperators communications that he had with his attorney that did not involve information obtained in the course of the joint defense efforts, the attorney-client privilege is waived by virtue of the disclosures made outside the attorney-client relationship. However, . . . work product protection has not been forfeited; disclosure to other persons similarly situated in relation to the government's investigation, who related their own privileged communications, and who had professional and personal relationships with the person asserting the protection does not operate as a waiver. Therefore, all of the recordings relating to Privilege Claimant 4 are protected by either the attorney-client privilege, the work product doctrine, or both. To the extent that the government has disclosed CR-0000051 and CR-0000056, it shall recover them from its trial team and from defense counsel."; noting that "[a]lthough Privilege Claimant 5 could waive the attorney-client privilege regarding communications with his own attorney, he could not do so to the extent those communications included what the attorney learned in connection with a joint defense strategy.")

Case Date Jurisidction State Cite Checked
2012-06-05 Federal NY B 10/12

Chapter: 24.303

Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *18-19 & n.5 (Bankr. E.D. Va. May 11, 2012)
(analyzing the ramifications of a law firm jointly representing a company and two of its executives in a derivative case; noting that the company later declared bankruptcy, and that the bankruptcy trustee moved to compel the turnover of documents the law firm created during the joint representation; inexplicably confusing the joint defense/common interest doctrine and the joint representation situation; ordering the law firm to produce the documents; holding that the bankruptcy trustee could use any protected document against the other jointly represented clients, but not against third parties; "[T]he Trustee is entitled to production of the attorney's files, and the Trustee is entitled to use the documents in litigation with the three, jointly represented Individual Defendants; however, the Trustee is not entitled to waive the privilege in litigating against third parties. There are two other individual defendants, and two other corporate defendants in the Derivative Action, who were not represented by WTP. . . . The Court is not going to give the Trustee license to waive the privilege as against the interests of the jointly represented Individual Defendants, whom it should be noted, have a continuing interest in the confidentiality of their legal file equal to that of the Trustee. How this plays out in Delaware, and whether a severance of the action against the Individual Defendants would be in order, is best left to the Chancellor in Delaware. For now, the Court will make it clear that the Trustee is not entitled to waive the privilege unilaterally in the litigation against the non-jointly represented defendants."; "[A]sking questions at a deposition or at trial of a non-jointly represented party based on knowledge gleaned from privileged documents will not violate the Court's Order that the Trustee not waive the privilege. However, showing a privileged document to a non-jointly represented witness, or reading a privileged document into the record, or a portion thereof, probably would.")

Case Date Jurisidction State Cite Checked
2012-05-11 Federal VA

Chapter: 24.303

Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *17, *18 (Bankr. E.D. Va. May 11, 2012)
("One party to a joint privilege or common defense cannot unilaterally waive the privilege."; "Restatement (Third) of the Law Governing Lawyers provides that: 'If two or more persons are jointly represented by the same lawyer in a matter, a communication of either co-client that otherwise qualifies as privileged under §§ 68-72 and relates to matters of common interest is privileged as against third persons, and any co-client may invoke the privilege, unless it has been waived by the client who made the communication.' § 75(1) (2000).")

Case Date Jurisidction State Cite Checked
2012-05-11 Federal VA

Chapter: 24.303

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 275 (Va. Cir. Ct. 2002)
("The court noted that the privilege belonged to all of the defendants and could not be released by one of them without every defendant's consent. [Hicks v. Commonwealth, 17 Va. App. 535, 439 S.E.2d 414, 10 Va. Law Rep. 789 (1994).]")

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

Chapter: 24.303

Case Name: In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129, 902 F.2d 244, 248 (4th Cir. 1990)
("a joint defense privilege cannot be waived without the consent of all parties who share the privilege")

Case Date Jurisidction State Cite Checked
1990-01-01 Federal

Chapter: 24.304

Case Name: Priestly v. Panmedix Inc., 114874/10, 2017 N.Y. Misc. LEXIS 139 (N.Y. Sup. Ct. Jan. 12, 2017)
("It is undisputed that, where no claim for unpaid legal fees is outstanding, a client 'presumptively' has the right to 'full access to the entire attorney's file in a represented matter with narrow exceptions.'")

Case Date Jurisidction State Cite Checked
2017-01-12 State NY

Chapter: 24.304

Case Name: Priestly v. Panmedix Inc., 114874/10, 2017 N.Y. Misc. LEXIS 139 (N.Y. Sup. Ct. Jan. 12, 2017)
("Generally, when an attorney represents two or more parties with respect to the same matter, the attorney-client privilege may not be invoked to protect confidential communications concerning the joint matter in subsequent adverse proceedings between the clients, but may be asserted 'against the outside world.'"; "Thus, because the defendants that were formerly jointly represented by Ballon Stoll are, at least to some degree, adverse parties in this lawsuit, Halket Weitz may obtain the joint representation file.")

Case Date Jurisidction State Cite Checked
2017-01-12 State NY

Chapter: 24.304

Case Name: Depuy Orthopaedics, Inc. v. Orthopaedic Hosp., Cause No. 3:12-cv-299-JVB-MGG, 2016 U.S. Dist. LEXIS 166537 (N.D. Ind. Dec. 1, 2016)
(after admitting its earlier error in concluding that a patent prosecution agreement automatically made one participant's in-house lawyer the joint lawyer for the other party, finding that after factual inquiry that plaintiff's in-house lawyer had jointly represented the other prosecution participant; rejecting her argument that she only represented her client/employer and had entered into a common interest agreement with the other participant; acknowledging that the plaintiff and defendant had both relied on O'Melveny & Myers as prosecution counsel, concluding that plaintiff's in-house lawyer had jointly represented her client/employer and the other participant, and pointing to the joint representation in ordering plaintiff to produce internal communications between its in-house lawyer and its executives; "The Court based its order on its conclusion that 'Section 6.1 of the PRLA established the mutual consent necessary to make the Hospital and DePuy joint clients on the prosecution of the 110 Patent Family . . . .' The heart of DePuy's argument on this issue had been that DePuy's in-house counsel had not consented to represent the Hospital in the prosecution of the patents, which precluded application of the joint client doctrine such that DePuy's internal communications with its in-house counsel related to the prosecution of the 110 Family patent applications were privileged and undiscoverable even as to the Hospital. DePuy acknowledged that it shared a common interest with the Hospital, but rejected the Hospital's claim that DePuy's in-house counsel jointly represented both parties."; "DePuy continues to argue that its in-house counsel never consented to represent the Hospital and that without such consent, a joint attorney-client relationship never existed. Even without relying upon Section 6.1 to establish joint representation, the Court finds otherwise."; "Communications among joint clients and their shared attorneys who are allied in a common legal cause are privileged from disclosure as to those outside their group but are not privileged in a subsequent controversy between the two joint clients."; "[T]he Hospital references testimony from both the inventor, Harry McKellop, and DePuy's in-house counsel, Blossom Loo, to affirm that documents produced in discovery show that the Hospital regularly sought advice from DePuy's in-house counsel on issues related to patent prosecution, such as claim scope, office action strategy, and selection of outside counsel."; "Additionally, DePuy concedes confidential information was exchanged between the Hospital and its in-house counsel. Yet in the face of these extensive communications, some of which demonstrate that DePuy's in-house counsel was providing direction on prosecution strategy to Wong and O'Melveny, DePuy's in-house counsel, Blossom Loo, testified that she never consented and had no intention of forming an attorney-client relationship with the Hospital. Loo's protestations are not persuasive, however, given the conduct established by the totality of the evidence."; "Of course, there is no evidence of any discussion of any fee arrangement, any Hospital client file in the offices of DePuy's in-house counsel, or any billing from DePuy's in-house counsel to the Hospital. Nevertheless, the evidence shows that DePuy's in-house counsel was actively involved with the Hospital and the prosecution counsel in the prosecution of the 110 Family patent applications. Moreover, the evidence does not show that DePuy's in-house counsel intentionally avoided advising the Hospital or provided any kind of disclaimer about representation when answering the Hospital's questions with legal information of consequence regarding the patent prosecution. Through such conduct, DePuy's in-house counsel impliedly consented to representing the Hospital in addition to DePuy on the matter of prosecuting the 110 Family patent applications."; "[T]he Court's prior Order, the Court FINDS that mutual consent still exists such that the joint client doctrine applies and any of DePuy's and the Hospital's communications with shared counsel (i.e., DePuy's in-house counsel) are only privileged to the outside world, but are not privileged between DePuy and the Hospital. Therefore, DePuy's internal communications related to the prosecution of the 110 Family patents remains discoverable.")

Case Date Jurisidction State Cite Checked
2016-12-01 Federal IN
Comment:

key case


Chapter: 24.304

Case Name: Christiana Care Health Services, Inc. v. PMSLIC Ins. Co., Civ. A. No. 14-1420-RGA, 2015 U.S. Dist. LEXIS 152178 (D. Del. Nov. 10, 2015)
(analyzing privilege and work product issues in an insurance bad faith case, in which an insured doctor assigned his claim against his insurance company to the hospital; holding that the insurance company cannot claim privilege to avoid discovery; "If an insurer retains counsel to represent the common interest of the insurer and its insured in defending a lawsuit against the insured, the insurer cannot claim attorney-client privilege or work product protection for its communications with counsel related to that representation. . . . Attorney-client privilege and work product protection likewise may not be asserted against the insured's assignee.")

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

Chapter: 24.304

Case Name: Galati v. Pettorini, No. 101712, 2015 Ohio App. LEXIS 1242 (Ohio April 2, 2015)
("The joint-representation exception works so that the one co-client of the common attorney cannot invoke the attorney-client privilege in subsequent litigation against another co-client; the attorney-client privilege does not attach between commonly represented clients.")

Case Date Jurisidction State Cite Checked
2015-04-02 State OH

Chapter: 24.304

Case Name: Berndt v. Snyder, Civ. No. 13-cv-368-SM, 2014 U.S. Dist. LEXIS 170098 (D.N.H. Dec. 9, 2014)
("Rule 502(d)(5) excepts communications to a lawyer who was jointly retained by two clients when the communications are offered in a later action between the clients.")

Case Date Jurisidction State Cite Checked
2014-12-09 Federal NH

Chapter: 24.304

Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Chapter 7, Case No. 8:11-bk-22258-MGW, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 4060, at *13-14 (M.D. Fla. Sept. 20, 2014)
(in this and an earlier opinion (In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *28 (M.D. Fla. Sept. 12, 2014)); analyzing the co-client "exception" to the attorney-client privilege; concluding that Kirkland & Ellis represented in litigation two companies who are now adversaries, and therefore could now obtain and use privileged communications from their joint representation in their current dispute; finding that the law firm did not jointly represent the two companies in a transaction; later taking steps to avoid disclosure to one of the former joint clients' current litigation adversaries in a privileged communication disclosed during the trial of the dispute between the former joint clients; "Having determined that the Trustee can use the co-client documents at trial, the real issue is whether any of the parties need to be excluded from the courtroom during their use. The THI Receiver proposes that any party who is not a co-client be excluded from the courtroom when the documents are being used. Understandably, the THI Receiver's objective is to keep the Probate Estates -- his adversary in litigation still pending in state court -- from seeing documents that may reflect defense strategy for the negligence actions. Although the THI Receiver's proposal is reasonable on its face, the problem is none of the parties -- other than the Trustee and FAS -- are co-clients. If the Court adopted the THI Receiver's proposal, none of the other Defendants would be able to cross-examine the Plaintiffs' witnesses who testify about the co-client documents. And GTCR, while not objecting to the use of the co-client documents specifically, says parties should not be permitted to use evidence against it when it is excluded from the courtroom. In the end, the Court concludes that it is not necessary for any of the parties to be excluded from the courtroom while the co-client documents are being presented.")

Case Date Jurisidction State Cite Checked
2014-09-20 Federal FL

Chapter: 24.304

Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Chapter 7, Case No. 8:11-bk-22258-MGW, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 4060, at *7 (M.D. Fla. Sept. 20, 2014)
(in this and an earlier opinion (In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *28 (M.D. Fla. Sept. 12, 2014)); analyzing the co-client "exception" to the attorney-client privilege; concluding that Kirkland & Ellis represented in litigation two companies who are now adversaries, and therefore could now obtain and use privileged communications from their joint representation in their current dispute; finding that the law firm did not jointly represent the two companies in a transaction; later taking steps to avoid disclosure to one of the former joint clients' current litigation adversaries in a privileged communication disclosed during the trial of the dispute between the former joint clients; "Both FAS and the THI Receiver now object to the Trustee's use of any co-client documents at trial. Their objections can be summed up in two points: First, the fact that the Trustee obtained documents under the co-client exception during discovery does not mean she can use them at trial. Second, assuming co-client documents can be used at trial, they can only be used where both co-clients are adverse parties in subsequent litigation and the subject of the subsequent litigation is the same as the subject of the joint representation. The objections are without merit.")

Case Date Jurisidction State Cite Checked
2014-09-20 Federal FL

Chapter: 24.304

Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Chapter 7, Case No. 8:11-bk-22258-MGW, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 4060, at *1-2 (M.D. Fla. Sept. 20, 2014)
(in this and an earlier opinion (In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *28 (M.D. Fla. Sept. 12, 2014)); analyzing the co-client "exception" to the attorney-client privilege; concluding that Kirkland & Ellis represented in litigation two companies who are now adversaries, and therefore could now obtain and use privileged communications from their joint representation in their current dispute; finding that the law firm did not jointly represent the two companies in a transaction; later taking steps to avoid disclosure to one of the former joint clients' current litigation adversaries in a privileged communication disclosed during the trial of the dispute between the former joint clients; "The Chapter 7 Trustee obtained documents relating to the defense of the Debtor's subsidiary, Trans Health Management, Inc. ("THMI"), in certain negligence actions under the co-client exception to the attorney-client privilege during discovery in this proceeding. Now the Trustee wants to use some of those co-client documents as exhibits at trial. The Receiver for THMI's former corporate parent, Trans Healthcare, Inc. ("THI"), which is not a party to this proceeding, objects. So too does Fundamental Administrative Services, LLC ("FAS"). THI and FAS, who are the other co-clients, say the Trustee does not have the right to unilaterally waive the attorney-client privilege. The Court must decide whether the co-client documents can be used at trial and, if so, under what conditions.")

Case Date Jurisidction State Cite Checked
2014-09-20 Federal FL

Chapter: 24.304

Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *16-17, *20 (M.D. Fla. Sept. 12, 2014)
(in this and a later opinion (In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Chapter 7, Case No. 8:11-bk-22258-MGW, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 4060 (M.D. Fla. Sept. 20, 2014)); analyzing the co-client "exception" to the attorney-client privilege; concluding that Kirkland & Ellis represented in litigation two companies who are now adversaries, and therefore could now obtain and use privileged communications from their joint representation in their current dispute; finding that the law firm did not jointly represent the two companies in a transaction; later taking steps to avoid disclosure to one of the former joint clients' current litigation adversaries in a privileged communication disclosed during the trial of the dispute between the former joint clients; "Documents related to the defense of the Ohio litigation, however, are a different story. Here, it appears that (i) THI retained Kirkland & Ellis to represent THMI in the Ohio litigation; (ii) Kirkland & Ellis actually appeared in the Ohio litigation on behalf of THMI; and (iii) Kirkland & Ellis advanced legal positions on THMI's behalf. The First Circuit Court of Appeals, in FDIC v. Ogden, [FDIC v. Ogden Corp., 202 F.3d 454, 461-63 (1st Cir. 2000)] expressly held that a party is a 'client' of a firm and therefore entitled to invoke the co-client exception where, like here, the law firm appeared in litigation on behalf of the client seeking to invoke the co-client exception and advanced legal positions on the client's behalf."; "So the Trustee is entitled to documents relating to the Ohio litigation, subject to two limitations: First, similar to the Court's previous co-client ruling, the Trustee (standing in the shoes of THMI) is only entitled communications relating to the defense of the Ohio litigation. Second, the Trustee is not entitled to share those documents with any third party that would destroy the co-client privilege. Documents unrelated to the defense of the Ohio litigation otherwise remain privileged.")

Case Date Jurisidction State Cite Checked
2014-09-12 Federal FL

Chapter: 24.304

Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *15-16 (M.D. Fla. Sept. 12, 2014)
(in this and a later opinion (In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Chapter 7, Case No. 8:11-bk-22258-MGW, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 4060 (M.D. Fla. Sept. 20, 2014)); analyzing the co-client "exception" to the attorney-client privilege; concluding that Kirkland & Ellis represented in litigation two companies who are now adversaries, and therefore could now obtain and use privileged communications from their joint representation in their current dispute; finding that the law firm did not jointly represent the two companies in a transaction; later taking steps to avoid disclosure to one of the former joint clients' current litigation adversaries in a privileged communication disclosed during the trial of the dispute between the former joint clients; "Taking into account all of the relevant circumstances, it would not have been reasonable for THMI to infer it was a client of Kirkland & Ellis with respect to the March 2006 transaction. To begin with, the retainer agreement between Kirkland & Ellis and THI specifically provides the attorney-client relationship is between the firm and THI and that no subsidiary of THI -- i.e., THMI -- had the status of a 'client.' On top of that, the March 2006 transaction culminated in a stock purchase agreement that likewise provided that THI 'retained Kirkland & Ellis . . . To act as its counsel in connection with the transactions" and "that none of the other parties has the status of a client of [Kirkland].' And even if THMI somehow could have inferred it was a client, the stock purchase agreement expressly provided that the 'attorney-client privilege and the expectation of client confidence belongs to [THI]' and that it 'shall not pass to or be claimed by [the Debtor] or [THMI].' So the Trustee (standing in the shoes of THMI) is not entitled to invoke the co-client exception to obtain documents relating to the March 2006 transaction.")

Case Date Jurisidction State Cite Checked
2014-09-12 Federal FL

Chapter: 24.304

Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *13 (M.D. Fla. Sept. 12, 2014)
(in this and a later opinion (In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Chapter 7, Case No. 8:11-bk-22258-MGW, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 4060 (M.D. Fla. Sept. 20, 2014)); analyzing the co-client "exception" to the attorney-client privilege; concluding that Kirkland & Ellis represented in litigation two companies who are now adversaries, and therefore could now obtain and use privileged communications from their joint representation in their current dispute; finding that the law firm did not jointly represent the two companies in a transaction; later taking steps to avoid disclosure to one of the former joint clients' current litigation adversaries in a privileged communication disclosed during the trial of the dispute between the former joint clients; "It is true, of course, that a document cannot be privileged, generally speaking, if it is disclosed to someone other than the attorney or client (or an agent of either). But here, the THMI employees that received the April 2005 memorandum were also officers of THI.")

Case Date Jurisidction State Cite Checked
2014-09-12 Federal FL

Chapter: 24.304

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-13-0273, 2014 Ill. App. Unpub. LEXIS 1789 (Ill. 5th Dist. App. Aug. 18, 2014)
(applying the "no secrets" rule in a joint representation context, and requiring jointly represented clients to turn over all otherwise privileged documents to the other in a dispute between them; extending the rule even to documents created three years after the joint representation ended; "We note that this is true regardless of whether it is clear from the record that the parties actually understood that the attorneys would not be able to keep their communications confidential from the other client.")

Case Date Jurisidction State Cite Checked
2014-08-18 State IL

Chapter: 24.304

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-13-0273, 2014 Ill. App. Unpub. LEXIS 1789 (Ill. 5th Dist. App. Aug. 18, 2014)
(applying the "no secrets" rule in a joint representation context, and requiring jointly represented clients to turn over all otherwise privileged documents to the other in a dispute between them; extending the rule even to documents created three years after the joint representation ended; "Greensfelder next contends that the common representation exception is inapplicable because the documents requested were generated three years after Greensfelder's representation of the plaintiffs ceased.")

Case Date Jurisidction State Cite Checked
2014-08-18 State IL

Chapter: 24.304

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-13-0273, 2014 Ill. App. Unpub. LEXIS 1789 (Ill. 5th Dist. App. Aug. 18, 2014)
("Because the requested documents directly relate to the DePaul contract, a matter on which Greensfelder attorneys provided simultaneous representation to CSA and SSM, they fall within the common representation exception.")

Case Date Jurisidction State Cite Checked
2014-08-18 State IL

Chapter: 24.304

Case Name: Estate of Jackson v. Gen. Elec. Capital Corp. (In re Fundamental Long Term Care, Inc.), 515 B.R. 857, 863 (Bankr. M.D. Fla. 2014)
(in this and an earlier opinion (Estate of Jackson v. Gen. Elec. Capital Corp. (In re Fundamental Long Term Care, Inc.), 515 B.R. 874 (Bankr. M.D. Fla. 2014)), analyzing the co-client "exception" to the attorney-client privilege; concluding that Kirkland & Ellis represented in litigation two companies who are now adversaries, and therefore could now obtain and use privileged communications from their joint representation in their current dispute; finding that the law firm did not jointly represent the two companies in a transaction; later taking steps to avoid disclosure to one of the former joint clients' current litigation adversaries in a privileged communication disclosed during the trial of the dispute between the former joint clients; "In no case[] should the Probate Estates be entitled to the defense strategy of THI and THMI in the negligence cases. That was the Court's primary concern in preventing the Trustee from disclosing the litigation files in the first place. . . . The Trustee has two options for keeping the Probate Estates from gaining access to defense strategy communications. First, if the Trustee believes the portions of an exhibit containing defense strategy are relevant to the claims in this case, she will be entitled to present that information at trial, but the Court will require that the Probate Estates (and their professionals) leave the courtroom. The Court does not anticipate this will be an issue since the Trustee has repeatedly said she does not intend to introduce defense strategy materials at trial. Second, if the Trustee wants to introduce [an] exhibit that contains defense strategy because the non-defense strategy portions are relevant, she can simply redact the defense strategy portions. That should resolve the objecting party's principal concerns. In an abundance of caution, the Court will impose two additional conditions on the use of the co-client documents: The Court will expressly find that no use of a document at trial will constitute a waiver of the attorney-client privilege or work product doctrine in any subsequent action or proceeding. And neither the co-client documents nor their contents may be used outside of this proceeding absent further order of this Court or another court of competent jurisdiction. Redaction of defense strategy, coupled with the foregoing conditions, will prevent any party from being prejudiced in the event a document admitted into evidence at trial later turns out to be subject to a nonwaivable privilege.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal FL b 8/15

Chapter: 24.304

Case Name: In re Cardinal Fastener & Specialty Co., Ch. 7 Case No. 11-15719, 2013 Bankr. LEXIS 452, at *18-19 (N.D. Ohio Feb. 4, 2013)
(holding that a lawyer who jointly represented a corporation and various officers and directors must turn over communication created during such a joint representation to the corporation's bankruptcy trustee; "Even if the firm did represent both the debtor and the individual directors and officers in connection with alleged and potential claims covered by the insurance, the rules relating to an attorney representing two clients on a matter of common interest would require the firm to comply with the trustee's request.")

Case Date Jurisidction State Cite Checked
2013-02-04 Federal OH B 2/14

Chapter: 24.304

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 460, 463 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "[T]he co-client exception to the attorney-client privilege ordinarily holds that where a lawyer represents two clients in the same case, communications between the lawyer and one client are not confidential as to the other client. The co-client exception applies regardless of whether both parties are present when the communication is made." (footnote omitted))

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

Chapter: 24.304

Case Name: Arkin Kaplan Rice LLP v. Kaplan, 967 N.Y.S.2d 63, 64 (N.Y. App. Div. 2013)
("Those communications are not privileged within the context of Solbakken's adverse litigation against Kaplan and Rice . . . . However, those communications are privileged as against Solbakken's co-plaintiffs, who were not clients being jointly represented by Ciampi . . . . 'The privilege belongs to the client' and Solbakken cannot unilaterally waive it on defendants' behalf so as to benefit her coplaintiffs." (citation omitted))

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

Chapter: 24.304

Case Name: Arkin Kaplan Rice LLP v. Kaplan, 967 N.Y.S.2d 63 (N.Y. App. Div. 2013)
(analyzing implications of a joint representation; holding that one former joint client could obtain discovery of communications between the joint clients' lawyer and the other clients, although the communication continued to be privileged as to co-plaintiffs of the former joint client in the current lawsuit, who themselves had not been jointly represented by the same lawyer)

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

Chapter: 24.304

Case Name: Covered Bridge Resort on Waldens Creek, LLC v. Johnson, Murrell & Assocs., P.C., No. E2011-01437-COA-R9-CV, 2012 Tenn. App. LEXIS 441, at *4-5, *12, *19-20 (Tenn. Ct. App. May 21, 2012)
(holding that a seller and buyer of property could not assert privilege protection during discovery in litigation between them after they had been represented by the same lawyer; "The Bank had a long-standing, pre-existing relationship with the Lawyers. The Lawyers routinely handled closings of transactions funded by the Bank. The Bank allegedly hired the Lawyers to prepare the documentation for, and handle the closing of, the sale from Seller to Purchaser and the loan from the Bank to Purchaser. This, of course, included the subordination agreement and the personal guaranties of members of the Purchaser to both the Bank and Seller. The Lawyers handled the closing by express mail. One of the documents included in those mailed by the Lawyers to Seller for its signature was a 'Seller/Buyer Disclosure and Consent to Intermediary Representation.'"; explaining that the lawyers had operated under Rule 2.2 of the Tennessee ethics rules agreeing with the lower court's analysis; "The primary basis of the court's holding was that the Lawyers, 'as the drafting attorneys for all the parties in these transactions and specifically as attorney for [Seller] and [the] . . . Bank, thereby, owed a duty of loyalty to each of them in the overall transaction as to every detail of the closing including all the corollary transactions inherent in the law firm's handling of the closing for all the parties. As a result, each party to this discovery dispute i.e. both [Seller] and [the] . . . Bank had no reasonable expectation that communications to or from the law firm to either of them separately (or to or from the law firm and the other parties to the closing including the personal guarantors) would be confidential as to the others. The court finds the American Law Reports article on the inapplicability of the privilege where dual representation is involved persuasive on this point.'"; "The evidence does not, by any stretch of imagination, preponderate against the trial court's findings. It was at a meeting attended by the Bank, Seller, Purchaser, and the Lawyers, that the parties were able to forge an agreement in principle for the purchase agreement and financing. . . . The evidence preponderates in favor of, and not against, the trial court's finding that the communications between Mr. Melton and the Lawyers did not occur with an expectation that they would not be disclosed to the other parties to the transaction.")

Case Date Jurisidction State Cite Checked
2012-05-21 State TN B 6/13

Chapter: 24.304

Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 692 (N.D. Ga. 2012)
("Under Georgia law a well-recognized exception to the exclusion of evidence based on attorney-client privilege exists in situations in which the attorney jointly represented two or more clients whose interests subsequently become adverse.")

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

Chapter: 24.304

Case Name: Dexia Credit Local v. Rogan, 231 F.R.D. 268, 273 (N.D. Ill. 2004)
(analyzing privilege protection for communications between a hospital and a management company; declining to rule on any specific withheld documents, but stating general rules in the abstract; quoting Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 29 (N.D. Ill. 1980): "'[W]here two or more persons jointly consult an attorney concerning a mutual concern, "their confidential communications with the attorney, although known to each other, will of course be privileged in the controversy of either or both of the clients with the outside world. . . ." (citations omitted). Moreover, the joint defense privilege cannot be waived without the consent of all parties to the defense, except in the situation where one of the joint defendants becomes an adverse party in a litigation.'"; using the common interest analysis, and not clearly explaining whether the hospital and the management company were joint clients or separately represented entities)

Case Date Jurisidction State Cite Checked
2004-01-01 Federal IL B 6/13

Chapter: 24.304

Case Name: Duncan v. Duncan, 56 Va. Cir. 262, 263-64 (Va. Cir. Ct. 2001)
(assessing a privilege assertion of a lawyer representing a defendant in a wrongful death action by a lawyer who had earlier represented both the defendant and the plaintiff in a separate matter; explaining that "the clear majority of reviewing courts has held that the attorney-client privilege does not preclude an attorney, who originally represented both parties in a prior matter, from disclosing information in a subsequent action between the parties"; noting that the parties did not have "an implied or express agreement" with the lawyer that "he would maintain their respective confidences"; holding that the defendants' communications with the lawyer "are not privileged in the absence of an agreement between the parties stipulating otherwise")

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

Chapter: 24.304

Case Name: Duncan v. Duncan, 56 Va. Cir. 262, 263, 263-64 (Va. Cir. Ct. 2001)
(addressing efforts by a lawyer to avoid discovery sought by plaintiff (administrator of a daughter's estate) from the lawyer, who formerly represented both the plaintiff and his former wife (mother of the deceased daughter); "Although no Virginia Court appears to have addressed this issue directly, the clear majority of reviewing courts has held that the attorney-client privilege does not preclude an attorney, who originally represented both parties in a prior matter, from disclosing information in a subsequent action between the parties."; "Plaintiff's exhibits establish that Greenspun's [lawyer] representation of Plaintiff and Defendant was joint in nature. The parties executed a joint agreement engaging Greenspun's services. He represented both parties in an investigation related to the parties' common interest, namely criminal liability for their daughter's death and loss of parental rights. Furthermore, Greenspun freely shared information regarding elements of the case with, and between, both parties. The Defendant recognized that Greenspun was sharing information disclosed by the Defendant with Plaintiff during the parties' prior joint representation. Lastly, the parties did not have an implied or express agreement with Greenspun that he would maintain their respective confidences in this joint representation. Defendant's communications with Greenspun are not privileged in the absence of an agreement between the parties stipulating otherwise."; ordering the lawyer to answer deposition questions and produce documents to plaintiff.)

Case Date Jurisidction State Cite Checked
2001-01-01 State VA B 3/16

Chapter: 24.304

Case Name: Patel v. Allison, 54 Va. Cir. 155, 157 (Virginia Beach 2000)
("Where an attorney is consulted by two parties in a matter of common interest for their mutual benefit, nothing said by the parties or the attorney is deemed confidential in litigation between those parties or their personal representatives since their common interest forbids concealment of statements made by one from the other." (citation omitted)).

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

Chapter: 24.304

Case Name: Board of Dirs. of Port Royal Condo.Unit Owners' Ass'n v. Crossland Sav. F.S.B., 19 Va. Cir. 8, 10-11 (Vir. Cir. Ct. 1989)
("The parties have agreed that once the Court rules on issues of the joint representation exception to the privilege, the times of the representation of the various clients and whether documents setting forth the mental and legal impressions of the attorneys are protected, they would apply the rulings to the documents in question. With respect to internal memoranda of counsel setting forth their impressions, the Court rules that any such document is privileged and need not be turned over even to former clients. The time periods in question, while more easily determined by counsel, appear to be from March of 1984 through November, 1986. While the Court finds that the joint client exception to the attorney-client privilege applies, the applicability of the exception will only be to those matters of common interest and concern. The mere fact that an attorney has represented two or more clients jointly does not give either client carte blanche to all files involving the other client or clients. This is so even where the joint representation comes about because of fiduciary relationship.")

Case Date Jurisidction State Cite Checked
1989-01-01 State VA

Chapter: 24.305

Case Name: Marketel Media, Inc. v. Mediapotamus, Inc., 5:13-CV-427-D, 2015 U.S. Dist. LEXIS 76523 (E.D.N.C. June 11, 2015)
(analyzing a situation in which Ortiz and Hassell formerly co-owned Marketel; explaining that Marketel and one of the owners sued the other owner, who sought to discover communications between the plaintiff and his brother, who was a lawyer; holding that the fiduciary exception did not apply, and that the plaintiff could not obtain discovery of the communications even if the lawyer had represented both the company and one of the owners; "Ortiz [Defendant] appears to argue that deRosset and his firm had a conflict in providing advice or other legal services to Hassell [Plaintiff] contrary to the interests of Ortiz and that such conflict negated any privilege otherwise applicable to the withheld documents. Such a conflict, though, even if it exists, does not waive the attorney-client privilege otherwise applicable to the documents. '[T]he fact that an attorney has a conflict of interest does not mean that the client forfeits the benefit of the attorney-client privilege.". . . The documents accordingly remain cloaked with the protection of the attorney-client privilege.")

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

Chapter: 24.305

Case Name: Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893 (JS) (AKT), 2013 U.S. Dist. LEXIS 47031, at *12 (E.D.N.Y. Mar. 29, 2013)
("In general, the clients of an attorney who operates under a conflict of interest still have a right to have their attorney-client communications remain privileged as against each other because 'counsel's failure to avoid a conflict of interest should not deprive the client of the privilege.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-03-29 Federal NY B 3/14

Chapter: 24.305

Case Name: Teleglobe Commc'ns Corp. v. BCE Inc. (In re Teleglobe Commc'ns Corp.), 493 F.3d 345, 379 (3d Cir. 2007)
("The majority -- and more sensible -- view is that even in the parent-subsidiary context a joint representation only arises when common attorneys are affirmatively doing legal work for both entities on a matter of common interest. See, e.g., Polycast, 125 F.R.D. at 49 [Polycast Tech. Corp. v. Uniroyal, Inc., 125 F.R.D. 47 (S.D.N.Y. 1989)](finding a joint representation when a parent's officer and general counsel affirmatively advised subsidiary on how to comply with merger agreement to which parent and subsidiary were both parties). A broader rule would wreak havoc because it would essentially mean that in adverse litigation a former subsidiary could access all of its former parent's privileged communications because the subsidiary was, as a matter of law, within the parent entity's community of interest.")

Case Date Jurisidction State Cite Checked
2007-01-01 Federal B 6/13

Chapter: 24.306

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)
(analyzing effect of a joint representation; "[C]onsiderations of fundamental fairness that are similar to those underlying section 958 as a whole weigh strongly in favor of applying the statute in this context. For example, if one of two joint clients breached an attorney fee agreement but the other joint client did not, and the attorney sued the breaching client, then it would be unjust to allow the nonbreaching client to thwart the attorney's suit by invoking the privilege to prevent introduction of the fee agreement itself. Moreover, the risk of collusion between the joint clients would be substantial. Similarly, if an attorney breached a duty to one of two joint clients but breached no duties to the other, and the wronged client sued the attorney, then it would be unjust to allow the nonsuing client to thwart the other client's suit by invoking the privilege to prevent introduction of relevant attorney-client communications made in the course of the joint representation. Again, the risk of collusion between the attorney and the nonsuing client would be substantial -- indeed, the risk would be particularly significant if the alleged breach were that the attorney had favored the interests of the nonsuing client over those of the suing client.")

Case Date Jurisidction State Cite Checked
2015-01-30 State CA

Chapter: 24.306

Case Name: Anten v. The Superior Court of Los Angeles County, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Jan. 30, 2014)
(holding that former joint clients suing a lawyer for malpractice could discover a communications between the lawyer and another former joint client who had not sued the lawyer; "In a lawsuit between an attorney and a client based on an alleged breach of a duty arising from the attorney-client relationship, attorney-client communications relevant to the breach are not protected by the attorney-client privilege. . . . Also, if multiple clients retain or consult with an attorney on a matter of common interest and the joint clients later sue each other, then the communications between either client and the attorney made in the course of that relationship are not privileged in the suit between the clients. . . . But in general, one joint client cannot waive the attorney-client privilege for another joint client."; "[B]ecause Anten and the Rubins were joint clients of Weintraub, the Rubins' communications with Weintraub were not confidential as to Anten. '[I]n a joint client situation, confidences are not necessarily disclosed.' (Zador, supra, 31 Cal. App. 4th 1285, 1294.) Consequently, 'communications made by parties united in a common interest to their joint or common counsel, while privileged against strangers, are not privileged as between such parties nor as between their counsel and any of them, when later they assume adverse positions.'"; "[C]onsiderations of fundamental fairness that are similar to those underlying section 958 as a whole weigh strongly in favor of applying the statute in this context. For example, if one of two joint clients breached an attorney fee agreement but the other joint client did not, and the attorney sued the breaching client, then it would be unjust to allow the nonbreaching client to thwart the attorney's suit by invoking the privilege to prevent introduction of the fee agreement itself. Moreover, the risk of collusion between the joint clients would be substantial. Similarly, if an attorney breached a duty to one of two clients but breached no duties to the other, and the wronged client sued the attorney, then it would be unjust to allow the nonsuing client to thwart the other client's suit by invoking the privilege to prevent introduction of relevant attorney-client communications made in the course of the joint representation. Again, the risk of collusion between the attorney and the nonsuing client would be substantial -- indeed, the risk would be particularly significant if the alleged breach were that the attorney had favored the interests of the nonsuing client over those of the suing client.")

Case Date Jurisidction State Cite Checked
2014-01-30 State CA
Comment:

key case


Chapter: 24.306

Case Name: Duncan v. Duncan, 56 Va. Cir. 262, 263-64 (Va. Cir. Ct. 2001)
(assessing a privilege assertion of a lawyer representing a defendant in a wrongful death action by a lawyer who had earlier represented both the defendant and the plaintiff in a separate matter; explaining that "the clear majority of reviewing courts has held that the attorney-client privilege does not preclude an attorney, who originally represented both parties in a prior matter, from disclosing information in a subsequent action between the parties"; noting that the parties did not have "an implied or express agreement" with the lawyer that "he would maintain their respective confidences"; holding that the defendants' communications with the lawyer "are not privileged in the absence of an agreement between the parties stipulating otherwise")

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

Chapter: 24.306

Case Name: Board of Dirs. of Port Royal Condo.Unit Owners' Ass'n v. Crossland Sav. F.S.B., 19 Va. Cir. 8, 10-11 (Vir. Cir. Ct. 1989)
("The parties have agreed that once the Court rules on issues of the joint representation exception to the privilege, the times of the representation of the various clients and whether documents setting forth the mental and legal impressions of the attorneys are protected, they would apply the rulings to the documents in question. With respect to internal memoranda of counsel setting forth their impressions, the Court rules that any such document is privileged and need not be turned over even to former clients. The time periods in question, while more easily determined by counsel, appear to be from March of 1984 through November, 1986. While the Court finds that the joint client exception to the attorney-client privilege applies, the applicability of the exception will only be to those matters of common interest and concern. The mere fact that an attorney has represented two or more clients jointly does not give either client carte blanche to all files involving the other client or clients. This is so even where the joint representation comes about because of fiduciary relationship.")

Case Date Jurisidction State Cite Checked
1989-01-01 State VA

Chapter: 24.401

Case Name: Larson v. One Beacon Ins. Co., Civ. A. No. 12-cv-03150-MSK-KLM, 2013 U.S. Dist. LEXIS 81181, at *18 (D. Colo. June 10, 2013)
("When parties who previously shared a common interest become adverse in subsequent litigation, one cannot invoke the attorney-client privilege against the other to preclude the other from seeking information related to the underlying matter.")

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

Chapter: 24.401

Case Name: In re Cardinal Fastener & Specialty Co., Ch. 7 Case No. 11-15719, 2013 Bankr. LEXIS 452, at *18-19 (N.D. Ohio Feb. 4, 2013)
(holding that a lawyer who jointly represented a corporation and various officers and directors must turn over communication created during such a joint representation to the corporation's bankruptcy trustee; "Even if the firm did represent both the debtor and the individual directors and officers in connection with alleged and potential claims covered by the insurance, the rules relating to an attorney representing two clients on a matter of common interest would require the firm to comply with the trustee's request.")

Case Date Jurisidction State Cite Checked
2013-02-04 Federal OH B 2/14

Chapter: 24.401

Case Name: EMC Ins. Co. v. Mid Continent Cas. Co., Civ. A. No. 10 cv 03005 LTB KLM, 2012 U.S. Dist. LEXIS 142977, at *10-11 (D. Colo. Oct. 3, 2012)
("[W]hen parties who previously shared a common interest become adverse in subsequent litigation, one cannot invoke the attorney-client privilege against the other to preclude the other from seeking information related to the underlying matter. . . . The rationale behind the subsequent litigation exception is that pursuant to their common interest, the parties had no expectation of confidentiality regarding disclosure of information to each other in the underlying matter.")

Case Date Jurisidction State Cite Checked
2012-10-03 Federal CO B 12/13

Chapter: 24.402

Case Name: Futhey v. United Transportation Union Ins. Assoc., Case No. 1:14 CV 463, 2015 U.S. Dist. LEXIS 55335 (N.D. Ohio April 28, 2015)
(a common interest agreement participant's disclosure to the government resulted in a waiver, because the other participants could have stopped it; "Defendant has waived any protection of privilege to any responsive information that has been provided or otherwise communicated to a third-party, outside the scope of a joint defense agreement. Therefore, any responsive documents that have been provided to the Department of Labor or the Ohio Department of Insurance shall be produced. Defendant argues that some of the information provided to the Department of Labor was provided by the attorneys for other defendants and that this Defendant did not waive privilege. However, Plaintiff has provided information, not contested by Defendant, that indicates Defendant had the ability to challenge such disclosures under the joint defense agreement and that it did not do so. This operates, for purposes of this case, as a waiver of the privilege and those documents are discoverable.")

Case Date Jurisidction State Cite Checked
2015-04-28 Federal OH

Chapter: 24.402

Case Name: Lord Abbett Municipal Income Fund, Inc. v. Asami, No. C-12-03694 DMR, 2013 U.S. Dist. LEXIS 147830, at *17-18 (N.D. Cal. Oct. 11, 2013)
(analyzing the common interest doctrine; finding that bondholders and Wells Fargo (the indenture trustee) did not share a common interest; "[T]he court finds that Housum's [trustee acting on the behalf of Wells Fargo] deposition testimony constitutes a waiver by Wells Fargo of the attorney-client privilege with respect to the communications about which she testified. . . . This is because even where the common interest doctrine applies, 'a party always remains free to disclose his own communications.'. . . Accordingly, Housum may not be questioned as to the statements made by Lord Abbett and the other bondholders who participated in the communications. As they did not consent to her disclosures, the privilege continues to extend to them.")

Case Date Jurisidction State Cite Checked
2013-10-11 Federal CA B 5/14

Chapter: 24.402

Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *31-32 (E.D. Wis. July 10, 2013)
("[A] party is entitled to waive protection for its or his own communications even if made in a joint-defense context, but cannot waive any privilege as to communications of another member of the joint defense. . . . Thus, IOS [company where the criminal defendants worked] (or another person) can waive its communication even if made in a joint defense context or released to joint defense counsel, but not if the communication would reveal directly or indirectly the communications of one still claiming the privilege. And Balsiger and Currey [defendant] cannot stop IOS (or another person) from waiving its privilege as to its own communications simply because the communication was shared with them or their counsel as part of the joint defense.")

Case Date Jurisidction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 24.402

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 606 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "A member of a joint defense group can waive his privilege, of course, as to his own prior statements, but other clients of the joint defense group can keep him from directly or indirectly revealing the privileged communications of the other clients.")

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

Chapter: 24.402

Case Name: United States v. Under Seal (In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129), 902 F.2d 244, 248, 249 (4th Cir. 1990)
(holding that a parent and its subsidiary could enter into a common interest arrangement in connection with prosecuting contract claims against the Army and defending counterclaims brought by the Army, even though the subsidiary was not a named party in the claim or the counterclaim because the claim and counterclaim were "joint efforts" on the part of the parent and the subsidiary; explaining that the parent and subsidiary "were engaged in the joint prosecution of a claim against the Army, as well in the joint defense of the Army's counterclaim. Although Subsidiary was not a named party, it was the real party in interest. Recovery would inure to it."; ultimately concluding that a subsidiary could not unilaterally waive the attorney-client privilege or work product doctrine that applied to the pertinent documents; not discussing the general principle allowing one member of a common interest arrangement to control its own documents, and instead finding that the parent could block the former subsidiary's waiver of documents that the subsidiary itself created and thus presumably should have controlled (in contrast to the parent's documents shared with the subsidiary, or the communications between them that were protected by the common interest doctrine))

Case Date Jurisidction State Cite Checked
1990-01-01 Federal

Chapter: 24.403

Case Name: CGC Holding Co., LLC v. Hutchens, Civ. A. No. 11-cv-01012-RBJ-KLM, 2016 U.S. Dist. LEXIS 6523, at *11-12 (D. Colo. Jan. 20, 2016)
(analyzing a situation in which plaintiff said that the defendant's law firm helped its client swindle the plaintiff; denying privilege and work product protection for communications between the law firm's investigator and the law firm's former client, despite a common interest claim; "[I]n order to establish that the joint defense privilege protects documents from discovery, the movant must show: (1) the documents are protected by the attorney-client privilege and/or the work product doctrine; (2) there was existing litigation or a strong possibility of future litigation at the time of the communications reflected in the documents; and (3) the documents were exchanged between parties and their separate counsel for the purpose of mounting a common defense against the litigation. . . . If all three criteria are met, the documents are protected from discovery unless the privilege is waived by consent of all parties involved in the joint defense.")

Case Date Jurisidction State Cite Checked
2016-01-20 Federal CO B 7/16

Chapter: 24.403

Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
(finding that a private company's bankruptcy trustee and the South Carolina Attorney General's office had a common interest; "To meet his burden of establishing that the common interest doctrine applies, the Trustee presented the Common Interest Memorandum, a document executed by the Trustee and Tracy Meyers on behalf of SCAG on December 11, 2014, which provides that it is intended to memorialize the mutual understanding and agreements previously reached by their offices regarding the disclosure of documents and information relating to Debtor. It further provides that documents were exchanged to facilitate the Trustee and SCAG's investigation of alleged violations of the law by the Debtor and their shared agreement not to waive any applicable claim of the attorney-client privilege or work product protections and treat any materials and information disclosed by either party as confidential."; "'The SCAG in pursuing its investigation related to file no. 09089 and the Trustee in pursuing his investigation into causes of action belonging to the Trustee and the Debtor shared a unity of interest in their respective investigations and developing the facts and legal theories that ultimately became the SCAG Complaint and the Trustee Complaint and mutually relied on one another's cooperation, advice, input, and compiling and sharing of information (including any documents produced by third parties, as applicable) with the express understanding that any information, strategy, and communications shared, made, then-existing, produced, or created, whether written or oral, including confidential, privileged, documents protected by the work product doctrine, or for which any other privilege or protection could be claimed, would remain confidential in order to more effectively prosecute their claims and with the further understanding that neither the Trustee nor the SCAG could unilaterally waive any such protection or privilege.'"; "Meyers further states in her affidavit that 'the cooperative efforts of the SCAG and the Trustee began on or before October of 2010, whereby the Trustee and the SCAG had a meeting of the minds as to the SCAG and the Trustee's common interests, which was later memorialized in the Common Interest [Memorandum].'")

Case Date Jurisidction State Cite Checked
2015-04-03 Federal SC

Chapter: 24.403

Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
(finding that a private company's bankruptcy trustee and the South Carolina Attorney General's office had a common interest; "Information protected by this doctrine cannot be waived without the consent of all parties who share the privilege.")

Case Date Jurisidction State Cite Checked
2015-04-03 Federal SC

Chapter: 24.403

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)
("[I]t is generally recognized that any privilege that attaches to material covered by the common interest doctrine belongs to the group sharing the common interest, and can be waived by any member of the group as to that member only.")

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

Chapter: 24.403

Case Name: Ishee v. Federal National Mortgage Association, Civ. A. No. 2:13-cv-234-KS-MTP, 2014 U.S. Dist. LEXIS 71141 (S.D. Miss. May 23, 2014)
(analyzing the common interest doctrine; concluding that one participant cannot waive another participant's attorney-client privilege protection; "Importantly, when the attorney-client privilege is jointly held, one privilege holder cannot waive the privilege on behalf of another privilege holder. . . . The common interest privilege prohibits one privilege holder's disclosure from waiving another's privilege. Every holder of the privilege has the right to resist disclosure. Accordingly, Green Tree's disclosure associated with Underwood's files does not waive GMAC's attorney-client privileges concerning the same subject matter.")

Case Date Jurisidction State Cite Checked
2014-05-23 Federal MS

Chapter: 24.403

Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *34 (E.D. Wis. July 10, 2013)
("The court assumes 'PWC' means Price Waterhouse Cooper, an accounting firm hired by Greenberg Traurig on IOS's [company where the criminal defendants worked] behalf to assist with IOS legal matters. Because IOS was part of a joint defense team with Lance Furr and Babler [defendants] in early 2006 the joint defense rule means that the document's privileges were not waived. IOS cannot waive the privilege as to this document because it consists of communications by Lance Furr.")

Case Date Jurisidction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 24.403

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 606 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "By agreeing to be a part of a joint defense, she only agrees not to disclose anything learned from her co-defendants through that joint arrangement, nor could any of those co-defendants disclose what she had told them or their attorneys in confidence.")

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

Chapter: 24.403

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 606 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "A member of a joint defense group can waive his privilege, of course, as to his own prior statements, but other clients of the joint defense group can keep him from directly or indirectly revealing the privileged communications of the other clients.")

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

Chapter: 24.403

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 605-06 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "One member of a joint defense group cannot waive the privilege that attached to the information shared by another member of the group without the consent of that member, but any defendant could, of course, testify as to her own statements at any time. ")

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

Chapter: 24.403

Case Name: Corporate Express Office Prods., Inc. v. Gamache (In re Wagar), Civ. No. 1:06-MC-127 (LEK/RFT), 2006 U.S. Dist. LEXIS 90345, at *41 (N.D.N.Y. Dec. 13, 2006)
(analyzing a situation in which one member of a common interest agreement wanted to conduct discovery of another member of the arrangement; ultimately concluding that another law firm should conduct the discovery of the fellow common interest participant's employee; "[T]he privilege continues long after a member of the agreement has departed from the legal consortium and none of the parties to the agreement may unilaterally waive the privilege.")

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

Chapter: 24.403

Case Name: Dexia Credit Local v. Rogan, 231 F.R.D. 268, 273 (N.D. Ill. 2004)
(analyzing privilege protection for communications between a hospital and a management company; declining to rule on any specific withheld documents, but stating general rules in the abstract; quoting Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 29 (N.D. Ill. 1980): "'[W]here two or more persons jointly consult an attorney concerning a mutual concern, "their confidential communications with the attorney, although known to each other, will of course be privileged in the controversy of either or both of the clients with the outside world. . . ." (citations omitted). Moreover, the joint defense privilege cannot be waived without the consent of all parties to the defense, except in the situation where one of the joint defendants becomes an adverse party in a litigation.'"; using the common interest analysis, and not clearly explaining whether the hospital and the management company were joint clients or separately represented entities)

Case Date Jurisidction State Cite Checked
2004-01-01 Federal IL B 6/13

Chapter: 24.403

Case Name: United States v. Under Seal (In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129), 902 F.2d 244, 247, 247-48, 248, 249, 250 (4th Cir. 1990)
(holding that a parent and subsidiary corporation could enter into a valid common interest agreement although the subsidiary was not a named party -- because the subsidiary was the "real party in interest"; concluding that the valid common interest agreement prevented the subsidiary from unilaterally waiving the attorney-client privilege and protected documents relating to the common interest participants' prosecution of a claim against the Army and defense of the Army's counterclaim; agreeing with the district court that the subsidiary could unilaterally control its own privilege once it had been sold to another company, and that the parent had no control over documents created by the subsidiary after it was sold; assessing a situation described more fully in the district court's opinion (In re Grand Jury Subpoenas 89-3, 89-4 & 89-129, 734 F. Supp. 1207 (E.D. Va. 1990)) in which a government grand jury subpoenaed documents relating to possible fraud in connection with a government contract; explaining a company ["Movant"] objected to the grand jury subpoena on attorney-client privilege and work product grounds; explaining that the district court had divided the subpoenaed documents into three categories: (1) documents created by one of Movant's divisions while it was undertaking the contractual work; (2) documents created by the division after it had become a Subsidiary of Movant; and (3) documents created by Subsidiary after Movant had sold controlling interest in Subsidiary to independent investors; noting that the Subsidiary had advised Movant and the government that it wished to cooperate with the grand jury and to produce the responsive documents; [Although not described fully in the Fourth Circuit opinion, the district court found that: (1) as to the Category 1 documents, generated by the division that was then part of Movant, it was "unclear" whether the Subsidiary gained ownership of any privilege covering those documents when the division became a subsidiary, but that it was unnecessary to resolve "this somewhat metaphysical issue" because Movant "permitted at least some of these documents to remain in the Subsidiary's custody and control" after selling the Subsidiary, and therefore "effectively waived its privilege with respect to these documents" meaning that the now-independent Subsidiary could waive the privilege and work product protections as to those documents (734 F. Supp. at 1213); (2) as to the Category 2 documents, generated by Subsidiary when it was owned by Movant, Movant could not block Subsidiary's waiver of those documents in its possession because the "joint defense privilege" did not give both Movant and Subsidiary veto power over the other's waiver the joint defense doctrine did not cover documents created while Movant and Subsidiary were merely "cooperating to assert [Movant's] claim" against the Army in seeking to recover under the underlying government contract; acknowledging that Subsidiary would have received a portion of whatever amount was ultimately recovered from the Army in connection with that claim, but that "[t]o extend the joint defense privilege to non-parties simply because they are financially interested in the litigation stretches the rationale for the privilege beyond its reach" (734 F. Supp. at 1212); and (3) as to the Group 3 documents, created by the newly-independent Subsidiary, finding that Movant had no control over those documents, and Subsidiary could produce them to the government.]; affirming the district court's analysis as to any document not related to what the Fourth Circuit described as "prosecution of the claim against the Army for an equitable adjustment and those prepared for the defense of the counter-claim" which involved "joint efforts on the part of Movant and Subsidiary"; agreeing with Movant that such "claim-related documents are subject to a joint defense privilege that Subsidiary cannot waive without Movant's consent"; acknowledging that Subsidiary "was not named as party in either the civil claim against the Army or in the Army's counter-claim," but finding that "persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims," and thus the common interest doctrine applied to Movant's and Subsidiary's "joint prosecution of a claim against the Army, as well as in the joint defense of the Army's counterclaim. Although Subsidiary was not a named party, it was the real party in interest. Recovery would inure to it."; holding that the district court's ruling was in error because it was "apparently based on the notion that the joint defense privilege is limited to codefendants" [although the district court's opinion instead was based on the fact that Subsidiary was not a party to any litigation, not on the fact that the Subsidiary was not a co-defendant]; in analyzing the Category 1 documents, rejecting the government's argument that the joint defense privilege could not apply because the creating entity was then a division of Movant rather than a separate entity; holding that "[t]he rationale underlying the joint defense privilege focuses not on when documents were generated, but on the circumstances surrounding the disclosure of privileged documents to a jointly interested third party"; explaining that here the disclosure "occurred on the day Movant incorporated Subsidiary as a separate entity," and was made to allow Subsidiary "to continue to participate in the ongoing litigation"; ultimately holding that "all documents that relate to the prosecution of the claim against the Army or to the defense of the Army's counterclaim, and which are subject to the attorney-client or work-product privilege, are subject to a joint defense privilege that Subsidiary may not waive unilaterally"; reversing the district court's opinion to that extent)

Case Date Jurisidction State Cite Checked
1990-01-01 Federal

Chapter: 24.403

Case Name: United States v. Under Seal (In re Grand Jury Subpoenas 89-3 & 89-4, John Doe 89-129), 902 F.2d 244, 248, 249 (4th Cir. 1990)
(holding that a parent and its subsidiary could enter into a common interest arrangement in connection with prosecuting contract claims against the Army and defending counterclaims brought by the Army, even though the subsidiary was not a named party in the claim or the counterclaim because the claim and counterclaim were "joint efforts" on the part of the parent and the subsidiary; explaining that the parent and subsidiary "were engaged in the joint prosecution of a claim against the Army, as well in the joint defense of the Army's counterclaim. Although Subsidiary was not a named party, it was the real party in interest. Recovery would inure to it."; ultimately concluding that a subsidiary could not unilaterally waive the attorney-client privilege or work product doctrine that applied to the pertinent documents; not discussing the general principle allowing one member of a common interest arrangement to control its own documents, and instead finding that the parent could block the former subsidiary's waiver of documents that the subsidiary itself created and thus presumably should have controlled (in contrast to the parent's documents shared with the subsidiary, or the communications between them that were protected by the common interest doctrine))

Case Date Jurisidction State Cite Checked
1990-01-01 Federal

Chapter: 24.405

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 602 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "[T]he parties are not aligned as to their coverage dispute before me and, as such, Plaintiffs' communications with coverage counsel as to the present case are not discoverable.")

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

Chapter: 24.405

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 601-02 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "The conclusion to be drawn from these decisions is that an insured who brings a bad faith action against its insurer can obtain communications which were made between the insurer and counsel it hired to represent the insured as to those matters in which the insurer and insured had a common interest. In other words, any privilege as to communications between MapleWood Partners, acting through Glaser [limited partner], and its attorneys was a shared privilege with Indian Harbor if the communications related to the defense of the Underlying Matters and to the extent that there was a pending claim for coverage (i.e., MapleWood Partners had no reasonable expectation of privacy in light of the Policy's mandated cooperation), and litigation had not yet been filed (litigation was not even 'anticipated' prior to January 1, 2008, according to the parties)." (footnote omitted))

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

Chapter: 24.405

Case Name: EMC Ins. Co. v. Mid Continent Cas. Co., Civ. A. No. 10 cv 03005 LTB KLM, 2012 U.S. Dist. LEXIS 142977, at *10-11 (D. Colo. Oct. 3, 2012)
("[W]hen parties who previously shared a common interest become adverse in subsequent litigation, one cannot invoke the attorney-client privilege against the other to preclude the other from seeking information related to the underlying matter. . . . The rationale behind the subsequent litigation exception is that pursuant to their common interest, the parties had no expectation of confidentiality regarding disclosure of information to each other in the underlying matter.")

Case Date Jurisidction State Cite Checked
2012-10-03 Federal CO B 12/13

Chapter: 24.405

Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *8 (Bankr. E.D. Va. May 11, 2012)
(analyzing the ramifications of a law firm jointly representing a company and two of its executives in a derivative case; noting that the company later declared bankruptcy, and that the bankruptcy trustee moved to compel the turnover of documents the law firm created during the joint representation; inexplicably confusing the joint defense/common interest doctrine and the joint representation situation; "The common interest privilege, also known as the joint defense privilege, is universally accepted."; "The Restatement (Third) of Law Governing Lawyers states the rule as follows: 'Unless the co-clients have agreed otherwise, a communication described in Subsection (1) [communication that otherwise qualifies as privileged] is not privileged as between the co-clients in a subsequent adverse proceeding between them.'")

Case Date Jurisidction State Cite Checked
2012-05-11 Federal VA B 4/13

Chapter: 24.502

Case Name: Walker v. City of Pocatello, Case No. 4:15-cv-00498-BLW, 2017 U.S. Dist. LEXIS 46566 (D. Idaho March 27, 2017)
(holding that an employee who can enjoy privilege protection in a government context could also waive that protection; "Defendants seem to want to eat their cake and have it too. They want to claim that Smith was entitled to attorney-client privileged information, but could not waive that privilege if she shared the information with Bristow, or that Bristow was entitled to attorney-client privileged information, but could not waive that privilege if she shared the information with Walker, or both. Upjohn does not allow this. Any City of Pocatello employee who was entitled to the attorney-client privilege regarding the Walker matter may also waive that privilege."; "Applying this holding to the facts, there is really no dispute that Smith, the city's HR director at the time, was entitled to the attorney-client privilege regarding her communications with the city attorney working on the Walker matter. Thus, Smith may assert the privilege, but she also may waive the privilege. The same is not true for Bristow. She was a lower ranking employee who, according to the evidence before the Court, was not copied on any of the emails or other communication subject to the attorney-client privilege regarding the Walker matter. Thus, Bristow cannot assert the attorney-client privilege."; relying on a 1987 case; "The court also cited Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693 (E.D. Va.1987), where the district court held that the defendant's marketing representative, by voluntarily disclosing a memorandum to a customer during the ordinary course of business negotiations stemming from a contract dispute, waived any attorney-client privilege which the defendant may have had in the memorandum.")

Case Date Jurisidction State Cite Checked
2017-03-27 Federal ID

Chapter: 24.502

Case Name: Loguidice v. McTiernan, 1:14-CV-1323 (TJM/CFH), 2016 U.S. Dist. LEXIS 113745 (N.D.N.Y. Aug. 25, 2016)
(analyzing the power of government officials to waive the government's privilege; "[A]s the nonparty entities point out, even if McTiernan [Deputy Commission and General Counsel for the New York Department of Environmental Conservation] had authority to waive the DEC's [New York Department of Environmental Conservation] attorney-privilege, a determination that the undersigned does not make, he does not have authority to waive the privilege with respect to the Governor's Counsel's Office."; "Accordingly, as the DEC does not have the authority to waive the attorney-client privilege relating to conversations that McTiernan had with attorneys from the Governor's office, any waiver of the DEC's attorney-client privilege does not require the Court to compel defendants to testify to conversations that McTiernan had with attorneys from outside of the DEC. Thus, plaintiff's motion is denied with respect to the legal advice McTiernan sought from Hohenstein, Coleman, and Valforte. Insofar as plaintiff seeks testimony regarding McTiernan's conversations with Cadrette and Belgrade or any documents that may exist relating to personnel, the undersigned anticipates discussions with personnel would not implicate the attorney-client privilege. However, the court has no questions or document demands before it with respect to the discussions McTiernan had with Cadrette and Belgrade; thus, the motion is premature9 as the undersigned cannot compel defendants to answer questions or produce documents that have not been requested.")

Case Date Jurisidction State Cite Checked
2016-08-25 Federal NY

Chapter: 24.502

Case Name: Loguidice v. McTiernan, 1:14-CV-1323 (TJM/CFH), 2016 U.S. Dist. LEXIS 113745 (N.D.N.Y. Aug. 25, 2016)
(analyzing the power of government officials to waive the government's privilege; "Parties have not provided, nor has the Court found, a case that is exactly on point here -- where a plaintiff argues that officers/directors had the authority to waive the privilege and did waive the privilege, but the corporation explicitly denies that it granted permission to waive. In In re Grand Jury Proceedings, the Second Circuit noted, although in the context of an officer presumably waiving the corporation's privilege in his individual testimony before a grand jury, that although 'a corporation may impliedly waive its privilege through the testimony of one of its officers, they hardly stand for the proposition that this must always be the case.' 219 F.3d 175, 186 (2d Cir. 2000). Although In Re Grand Jury Proceedings is distinguishable on its facts, the undersigned finds this general principle persuasive. The Court does not believe that an officer or director with authority to waive the privilege automatically will result in a waiver of that privilege; instead, a case-by-case assessment of the particular circumstance is necessary. Id."; "As plaintiff points out, McTiernan was the Deputy Commissioner and General Counsel for the DEC [New York Department of Environmental Conservation]. His duties included 'serv[ing] as chief legal officer' to the DEC and '[p]rovide legal advice to the Commissioner, Executive Deputy Commissioner, Deputy and Assistant Commissioners.'. . . It is unclear whether general counsel is to be considered an officer/director with authority to waive the privilege. Parties have provided insufficient evidence to support whether general counsel of a corporation has sufficient authority or implied authority to waive the attorney-client privilege on behalf of the corporation. Although case law supports that officers or directors, essentially corporate management, have the authority to waive the attorney-client privilege, Bus. Integration Servs., Inc. 251 F.R.D. at 124, research did not reveal case law supporting that general counsel or in-house counsel has the implied right to waive a corporation's attorney-client privilege solely due to the nature of his or her position."; "Accordingly, the undersigned declines to conclude at this time that McTiernan had the authority to waive the DEC's attorney-client privilege. However, the undersigned is convinced that Gerstman, as Executive Deputy Commissioner – 'second in command to the Commissioner regarding the overall management of the Department of Environmental Conservation' -- likely would fall into the 'inner core' of managers/officers/directors with authority to waive the DEC's privilege. . . . As Gerstman's position requires explicit involvement in the management of the DEC, would be one of the authorities with the ability to waive this privilege."; "Finally, plaintiff argues that the remainder of the defendants waived the privilege because, although they otherwise may lack authority, because the holder of the privilege, the DEC, 'authorized the employee's possession of the confidential communication' and '[a]dequate steps were not taken to ensure the information's confidentiality,' the remainder of the defendants were able to waive, and did waive, the DEC's privilege."; "Here, however, plaintiff does not explain how the DEC provided the remaining defendants with access to privileged communications and failed to take steps to insure their confidentiality."; "Accordingly, the undersigned finds that, although Gerstman has an implied authority to waive the DEC's attorney-client privilege by nature of his position, even if this privilege were waived as to the DEC on Gerstman's behalf, the privilege is not waived as the other, non-DEC parties to these communications have declined to waive their attorney-client privilege with respect to the communications. Further, the undersigned declines to find that the remaining defendants have the implied authority to waive the attorney-client privilege on the DEC's behalf.")

Case Date Jurisidction State Cite Checked
2016-08-25 Federal NY

Chapter: 24.502

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 111, 112, 113, 114 (Fed. Cl. 2013)
("Defendant's over-generalized position that only the Secretary of the Army can cause a waiver also is inconsistent with the recognized principles relating to the authority of contracting officers to bind the government. Contracting officers with warrants have been afforded considerable discretion to act on behalf of the government."; "In contrast, contract specialists, project managers, and contractor personnel may not have sufficient delegated authority to act for the government's contracting officer and waive the privilege. Contract specialists, for example, typically do not have the power to bind the government in its contractual relations."; "Mr. Jenkins held a support role to CDR Broomer, whose responsibility it was to administer the contract. Mr. Jenkins did not have sufficient authority to waive the privilege on behalf of the government."; "Therefore, Mr. Jenkins as a contract specialist without express or implied authority did not have authority to waive the attorney-client privilege on behalf of the United States.")

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

Chapter: 24.502

Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 106 (Fed. Cl. 2013)
("Although the contours of government waiver are not as clearly established, the same logic has been applied to allow local government agents to waive the privilege if they have been delegated authority to bind the government with respect to particular subject matter.")

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

Chapter: 24.502

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006)
("It is more difficult, however, to determine how an entity, or who in an entity, may assert the privilege and who may waive it. 'The identity of that responsible person or body is a question of local governmental law.' Res. (3d) Law Governing Lawyers § 74. The Portsmouth Charter and Municipal Ordinances do not address the attorney-client privilege, however, the appointment and removal of the City Attorney is made at the pleasure of the City Council. See Portsmouth Charter Art. 7, § 02; Portsmouth Municipal Code 2-101. Therefore, the City Council is the City Attorney's client and only the City Council can assert or waive privilege.")

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

Chapter: 24.502

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 268-69 (E.D. Va. 2006)
("Whitehurst informed the other Council Members and the City Attorney as well as some persons who were not among the original recipients of the letter that he was going to reveal some of the contents of the letter more than twenty-four hours in advance. In the email, Whitehurst included passages from the letter, indicated what he was going to say at the meeting, and disputed the conclusions made by the City Attorney in the letter. At the public meeting, Whitehurst read statements from the letter and not one Council Member nor the City Attorney attempted to stop hi, cut him off, or otherwise note that the information was supposed to be privileged and confidential. '[I]f a client wishes to preserve the privilege . . ., he must take some affirmative action to preserve confidentiality . . . . Taking or failing to take precautions may be considered as bearing on intent.' FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 482 (E.D. Va. 1991). Despite the City's arguments that Whitehurst cannot alone waive the privilege for the City, the Council Members and the City Attorney should have acted to at least try and prevent the disclosure of the contents of the letter. Whether Whitehurst quoted from only two footnotes or not, the failure to object to his statements either before or at the meeting is highly prejudicial to the City's position on the existence of privilege. . . . An objection would have been a reasonable step to ensure confidentiality. Absent any such attempt, the Court cannot allow the defendants to shield this letter under the doctrine of attorney-client privilege.")

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

Chapter: 24.503

Case Name: Arfa v. Zionist Org. of Am., Case No. CV 13-2942 ABC (SS), 2014 U.S. Dist. LEXIS 26970, at *22 n.6 (C.D. Cal. Mar. 3, 2014)
("[A]s the Board is the holder of these privileges, an individual member of the Board does not have the right to waive the privileges on the Board's behalf.")

Case Date Jurisidction State Cite Checked
2014-03-03 Federal CA B 8/14

Chapter: 24.503

Case Name: Humphries v. Chicarelli, Case No. 1:10 cv 749, 2012 U.S. Dist. LEXIS 168038, at *15 (S.D. Ohio Nov. 27, 2012)
("All three Council members asked questions of Chicarelli relating to the legal advice and statements he had made as the law director about Humphries, and about how he 'handled himself' at the December 2009 executive session. . . . The Court concludes that the attorney-client privilege regarding the Spring 2010 meeting belonged to the City and not to Green [Council member at that time] personally. Green cannot unilaterally waive the privilege on behalf of the City.")

Case Date Jurisidction State Cite Checked
2012-11-27 Federal OH B 8/13

Chapter: 24.503

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 268-69 (E.D. Va. 2006)
("Whitehurst informed the other Council Members and the City Attorney as well as some persons who were not among the original recipients of the letter that he was going to reveal some of the contents of the letter more than twenty-four hours in advance. In the email, Whitehurst included passages from the letter, indicated what he was going to say at the meeting, and disputed the conclusions made by the City Attorney in the letter. At the public meeting, Whitehurst read statements from the letter and not one Council Member nor the City Attorney attempted to stop hi, cut him off, or otherwise note that the information was supposed to be privileged and confidential. '[I]f a client wishes to preserve the privilege . . ., he must take some affirmative action to preserve confidentiality . . . . Taking or failing to take precautions may be considered as bearing on intent.' FDIC v. Marine Midland Realty Credit Corp., 138 F.R.D. 479, 482 (E.D. Va. 1991). Despite the City's arguments that Whitehurst cannot alone waive the privilege for the City, the Council Members and the City Attorney should have acted to at least try and prevent the disclosure of the contents of the letter. Whether Whitehurst quoted from only two footnotes or not, the failure to object to his statements either before or at the meeting is highly prejudicial to the City's position on the existence of privilege. . . . An objection would have been a reasonable step to ensure confidentiality. Absent any such attempt, the Court cannot allow the defendants to shield this letter under the doctrine of attorney-client privilege.")

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

Chapter: 24.503

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006)
("It is more difficult, however, to determine how an entity, or who in an entity, may assert the privilege and who may waive it. 'The identity of that responsible person or body is a question of local governmental law.' Res. (3d) Law Governing Lawyers § 74. The Portsmouth Charter and Municipal Ordinances do not address the attorney-client privilege, however, the appointment and removal of the City Attorney is made at the pleasure of the City Council. See Portsmouth Charter Art. 7, § 02; Portsmouth Municipal Code 2-101. Therefore, the City Council is the City Attorney's client and only the City Council can assert or waive privilege.")

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

Chapter: 24.601

Case Name: Pia v. Supernova Media, Inc., Case No. 2:09-cv-00840-DN-EJF, 2014 U.S. Dist. LEXIS 175028 (D. Utah Dec. 18, 2014)
(holding that a manager/member of an LLC can waive its privilege; "[B]ecause Supernova is a current manager of Shannon's Delaware, it can waive attorney-client privilege on behalf of Shannon's Delaware."; "[T]his case involves an LLC -- a legally different business organization than a corporation, with a different management structure (manager-managed as opposed to a board of directors). Further, to the extent a corporation and board of directors can be analogized to a manager-managed LLC, Mr. Pia [Lawyer] has not presented any evidence that the majority of the management of Shannon's Delaware wishes to assert the attorney-client privilege, as the majority of the corporation in Milroy [Milroy v. Hanson, 875 F. Supp. 646 (D. Neb. 1995)] desired to do. Rather, the only argument Mr. Pia makes is that Supernova is a 'dissident manager' because it seeks to waive the privilege. Milroy referred to the 'dissident director' because he was the only director voting against the majority of the board of directors. No such evidence is presented by Mr. Pia. Thus, Milroy is factually much different than this case and is not persuasive."; "The attorney-client privilege belongs to the entity, and the entity's management holds the power to assert or waive the privilege. Here, a manager (Supernova) of the entity (Shannon's Delaware) has waived the privilege and there is no evidence that by so doing Supernova is taking an action contrary to the will of the majority.")

Case Date Jurisidction State Cite Checked
2014-12-18 Federal UT

Chapter: 24.601

Case Name: Tecnomatic, S.P.A. v. Remy, Inc., No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *11-12 (S.D. Ind. June 3, 2014)
("Additionally, Tecnomatic believes that, by allowing its in-house counsel to answer a question regarding his awareness of the MCA at his deposition, Remy as an entity has waived its privilege regarding such knowledge. . . . As a general rule, 'the power to waive the corporate attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors.' . . . . As discussed at oral argument, however, the deposition was not a Rule 30(b)(6) deposition, as the deponent, Remy's in-house counsel, was not testifying on behalf of Remy as an entity. Further, although an attorney may assert privilege on his client's behalf, the attorney-client privilege belongs to the client, not the attorney, and can only be waived by the client. . . . Thus, the deposition testimony of in-house counsel, with a yes-or-no answer regarding such in-house counsel's awareness of the MCA, cannot waive Remy's attorney-client privilege. Accordingly, the Court finds that Remy has not implicitly waived its attorney-client privilege with regard to Documents Two through Eight.")

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

Chapter: 24.601

Case Name: Rank Group Ltd. v. ALCOA, Inc., 12 Civ. 3769 (VSB) (RLE), 2014 U.S. Dist. LEXIS 64508 (S.D.N.Y. May 9, 2014)
(finding an employee's unauthorized disclosure did not result in a waiver; "Here, the evidence submitted by Rank an Affidavit from a partner at Baker [Baker & McKenzie] and a Declaration from the former Latin American regional financial controller show by a preponderance that the disclosure was unauthorized and inadvertent. The affidavit produced establishes that Larrain Abascal, who was personally involved in Rank's privileged communications with Baker in May 2008, did not authorize the production of the information, and that there was no written evidence of anyone else having authorized such disclosure. The declaration from Borja also indicates there was no authority from Alusud Chile to forward the emails in question to anyone at Alcoa. Together, the sworn statements are enough to carry the burden of showing that the disclosure was unauthorized. They persuasively demonstrate that neither person who had the authority to make the disclosure did.")

Case Date Jurisidction State Cite Checked
2014-05-09 Federal NY

Chapter: 24.601

Case Name: Hedden v. Kean Univ., 82 A.3d 238, 246-47, 247 (N.J. Super. Ct. App. Div. 2013)
(analyzing a situation in which a university coach disclosed a privileged draft letter to the NCAA during an investigation; "For example, an unauthorized disclosure by someone who is not the holder of the privilege does not generally constitute a waiver."; "In the organizational context, where the corporate employee communicates with corporate counsel on behalf of the entity, the corporation is the client. . . . Simply put, the authority to waive the attorney-client privilege does not belong to each and every employee of the corporation, but rather is held by the organizational client, namely the officers and directors of the organization. . . . Thus, the group of individuals who may waive the privilege on behalf of the organizational client is restricted to those who manage or control its activities."; "Sharp [Coach] does not fit within this category as she was neither a director nor officer of the University, nor did she serve in a management capacity. Moreover, Sharp was not acting under the direction of the University when she released the document to the NCAA, producing it through her own counsel on her own behalf, in response to an inquiry directed specifically to her by the NCAA. Thus, as Sharp was not the holder of the attorney-client privilege, it was not hers to waive.")

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

Chapter: 24.602

Case Name: SEC v. ITT Educational Services, Inc., No. 1:15-cv-00758-JMS-MJD, 2017 U.S. Dist. LEXIS 164 (S.D. Ind. Jan. 3, 2017)
(a bankruptcy trustee could not assert privilege after the pre-bankruptcy company had agreed to waive the privilege; "The winding saga in this SEC enforcement action has made its way before the Court on Plaintiff's unopposed Motion to Compel Discovery. Plaintiff alleges that Defendants fraudulently concealed the poor performance of a student loan program from investors in violation of federal securities laws. . . . Part of Defendants' defense rests upon the legal advice they received about the loan program. As a consequence, each of the parties, by counsel, executed an agreement waiving attorney client-privilege as to certain subjects."; "'ITT is deemed to have waived the attorney-client privilege as to the Waived Subjects: . . .'"; "The Court finds that Defendant ITT knowingly and intentionally waived its privilege as to the topics identified in the Protective Order, excerpted above. Therefore, the Trustee may not reassert the waived privilege, and Plaintiff is entitled to depose Blankenship and conduct discovery into the attorney-client communications for which the privilege has been waived."; "The genie is out of the bottle; Pandora's box has been opened; '[t]he Moving Finger writes; and, having writ, Moves on.' Omar Khayyám, The Rubáiyát of Omar Khayyám 71. . . . Each of these maxims aptly describes the issue before the Court. It takes no stretch of the imagination to foresee the games that counsel would play if they were permitted to revoke an intentional and knowing waiver of attorney-client privilege as the Bankruptcy Trustee has sought to do here.")

Case Date Jurisidction State Cite Checked
2017-01-03 Federal ID

Chapter: 24.602

Case Name: Cave Consulting Group, Inc. v. OptumInsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 179966 (N.D. Cal. Dec. 29, 2016)
(holding that a merged company faced the consequences of its predecessor's waiver of privilege; "OptumInsight contends that Symmetry had no authority to waive any privilege belonging to OptumInsight, and that the scope of the waiver therefore effectively ended in 2007 when Symmetry 'ceased to exist.'. . . CCGroup argues that after merging Symmetry into itself, OptumInsight stands in the shoes of Symmetry with respect to waiver of privilege. Neither party cites authority regarding the application of privilege waivers to post-merger corporations."; "With respect to all times before the two corporations merged in 2007, OptumInsight is of course correct that Symmetry had no authority to waive any privilege belonging to OptumInsight. The Court nevertheless agrees with CCGroup that Symmetry's waiver is imputed to OptumInsight after the merger. As discussed in the Court's previous Order, '[t]he corporation that continues after a merger generally stands in the shoes of both constituent corporations.'. . . The Delaware merger statute makes no meaningful distinction between the effect of merging two corporations to create a new corporation and the effect of merging one corporation into another -- in either case, the resulting or continuing corporation 'possess[es] all the rights, privileges, powers and franchises as well of a public as of a private nature, and [is] subject to all the restrictions, disabilities and duties of each of such corporations so merged or consolidated.'. . . Here, one 'restriction' or 'disability' of Symmetry at the time of the merger was that it had waived certain document protections as set forth above. Under § 259(a), that disability passes to the continuing corporation -- post-merger OptumInsight -- with respect to communications taking place or material created after the date of the merger.")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal CA

Chapter: 24.602

Case Name: Virtue Global Holdings Ltd. v. Rearden LLC, Case No. 15-cv-00797-JST (SK), 2016 U.S. Dist. LEXIS 53076, at *14-15 (N.D. Cal. Apr. 5, 2016)
("Original MO2 falls into the third category of a dissolved corporation that no longer exists. When a corporation ceases to exist, 'the corporate powers, rights and privileges of the corporation shall cease.' Cal. Corp. Code §1905(b). In that case, no entity holds the attorney-client privilege for Original MO2. . . . Given that Defendants cannot meet their burden to show that they (or Rearden Mova, specifically) hold the attorney-client privilege for Original MO2, Plaintiff's motion to compel documents listed on the privilege log (Exhibit A to the letter brief submitted to the Court) is GRANTED.")

Case Date Jurisidction State Cite Checked
2016-04-20 Federal CA B 8/16

Chapter: 24.602

Case Name: SEC v. Present, Civ. No. 14-14692-LTS, 2015 U.S. Dist. LEXIS 170245 (D. Mass. Dec. 21, 2015)
February 17, 2016 (PRIVILEGE POINT)

"Can a Company's Founder and CEO Use Company Documents to Support His "Advice of Counsel" Defense After the Company Declares Bankruptcy?"

Courts agree that bankruptcy trustees control bankrupt companies' attorney-client privilege. It is easy to underestimate this basic principle's strength.

In SEC v. Present, Civ. No. 14-14692-LTS, 2015 U.S. Dist. LEXIS 170245 (D. Mass. Dec. 21, 2015), the court dealt with the SEC's investigation of F-Squared and its co-founder and CEO Howard Present. When the SEC began investigating F-Squared in 2013, its CEO Present refused the SEC's request to waive the company's attorney-client privilege. Then the company went bankrupt, and the SEC sued Present himself. He pleaded advice of counsel as an affirmative defense, and subpoenaed supporting documents from the company he had founded and led. But now in the hands of a bankruptcy trustee, the company moved to quash Present's subpoena. The court granted the motion to quash, noting that "[b]oth as the CEO and a sophisticated businessman, [Present] necessarily understood that F-Squared, rather than he, personally held the keys to attorney-client privilege." Id. At *9. Adding insult to injury, the court noted that Present could have arranged for the company's waiver while he was CEO before the bankruptcy, but "[h]e chose not to do so." Id. At *10.

Corporations, their CEOs, and their lawyers should always keep their eye on the ball — and know who owns the corporation's privilege and when that ownership might change.

Case Date Jurisidction State Cite Checked
2015-12-21 Federal MA
Comment:

key case


Chapter: 24.602

Case Name: SEC v. Present, Civ. No. 14-14692-LTS, 2015 U.S. Dist. LEXIS 170245 (D. Mass. Dec. 21, 2015)
(concluding that a former CEO could not obtain documents from a bankrupt company he founded and ran in order to use the documents to defend himself from an SEC action by asserting advice of counsel; "In 2013, the Securities and Exchange Commission ('SEC') commenced an investigation into both F-Squared and Present. . . . In August 2014, during the course of this investigation, F-Squared, with Present as CEO, refused the SEC's request to waive its attorneyclient privilege . . . . In November 2014, Present left F-Squared . . . And thereafter F-Squared admitted liability for making materially false statements . . . And paid a $35 million fine. . . . F-Squared has now filed for bankruptcy protection, where it faces a variety of creditor claims, including a potential class action lawsuit."; "On the day the SEC settled with F-Squared, the SEC sued Present for various violations of the Advisers Act . . . And associated SEC regulations."; "Among other affirmative defenses, Present asserted in his Answer that he 'reasonably relied upon the work, advice, professional judgment, and opinion of others, including but not limited to legal and compliance professionals."; "Both as the CEO and a sophisticated businessman, he necessarily understood that F-Squared, rather than he, personally held the keys to attorney-client privilege. At that time, as the CEO of F-Squared, Present was in the position either to waive the privilege or to obtain in his personal capacity the right to be able to waive the privilege in the future. He chose not to do so. These circumstances mitigate the fairness considerations advanced by Present. Finally, ordering disclosure, even under a protective order, necessarily divests F-Squared from control over its privileged information and exposes it to the SEC and, ultimately, at trial to a variety of others contrary to the fundamental purposes of the privilege.")

Case Date Jurisidction State Cite Checked
2015-12-21 Federal MA
Comment:

key case


Chapter: 24.602

Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 93580 (D. Neb. July 17, 2015)
("A corporation communicates through its employees, but the privilege is held by the corporation, not the employee. The privilege is not waived when a management employee is terminated or resigns and then moves to another job. '[W]hen control of a corporation passes to new management, the authority to assert and waive the corporation's attorney-client privilege passes as well.'. . . New managers installed to replace departing management may waive the corporation's attorney-client privilege with respect to communications made by former officers and directors. Displaced managers may neither assert the privilege over the wishes of current managers . . . Nor waive it.")

Case Date Jurisidction State Cite Checked
2015-07-17 Federal NE

Chapter: 24.602

Case Name: United States v. Beckman, No. 13-1162, No. 13-1163, No. 13-2603, 2015 U.S. App. LEXIS 7805 (8th Cir. App. May 12, 2015)
(holding that Morgan Lewis and Willkie Farr represented the entity and not any individuals, which meant that the entity's receiver could waive the privilege; "Before trial, the district court denied motions to quash subpoenas by law firms Briggs, Morgan Lewis, and Willkie Farr, along with Beckman's motions to exclude attorney-client communications. The district court noted the Oxford entities were in receivership . . . And the receiver had waived the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-05-12 Federal

Chapter: 24.602

Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
("This Court has previously recognized that a trustee of a corporation in bankruptcy acquires both the right to assert the attorney-client privilege and the power to waive that privilege.")

Case Date Jurisidction State Cite Checked
2015-04-03 Federal SC

Chapter: 24.602

Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
("The communication from Trustee's counsel to Morgan Keegan's counsel in the June 16, 2011 e-mail is succinct and straightforward: 'The Trustee waives any privilege, so you may produce the requested documents.' However, the Trustee contends that the July 16, 2011 e-mail was the Trustee's limited position on Morgan Keegan's production of documents to the SCAG in response to the SCAG Subpoena and did not result in a waiver due to the Trustee's common interest agreement with the SCAG.")

Case Date Jurisidction State Cite Checked
2015-04-03 Federal SC

Chapter: 24.602

Case Name: Krys v. Paul, Weiss, Rifkind, Wharton, & Garrison LLP (In re China Med. Techs., Inc.), 539 B.R. 643 (S.D.N.Y. 2015)
December 9, 2015 (PRIVILEGE POINT)

"Who Controls an Audit Committee's Privilege and Work Product Protection if the Company Declares Bankruptcy?"

Many courts recognize that a corporation's constituent (such as an audit committee or a group of independent directors) can own the privilege and work product protection covering the constituent's internal corporate investigation. Under this approach, the company's bankruptcy trustee cannot access or waive that privilege or work product protection. See, e.g., Ex parte Smith, 942 So. 2d 356 (Ala. 2006) (denying a bankruptcy trustee's attempt to access pre-bankruptcy communications between the company's independent directors and its Skadden Arps lawyers).

In Krys v. Paul, Weiss, Rifkind, Wharton, & Garrison LLP (In re China Medical Technologies, Inc.), 539 B.R. 643 (S.D.N.Y. 2015), Judge Abrams dealt with privilege and work product protection covering an internal corporate investigation conducted by China Medical's Audit Committee lawyers at Paul Weiss. The court acknowledged "that the Audit Committee was 'independent' in some sense"— "[i]t could retain counsel, and it legitimately expected that its communications with counsel would be protected against intrusion by management." Id. At 655. But the court held that the company's bankruptcy changed the analysis — because depriving the bankruptcy liquidator of the privilege protection's ownership would "thwart the statutory obligation of a trustee in bankruptcy to maximize the value of the estate by conducting investigations into a corporation's prebankruptcy affairs." Id. At 654. The court thus held that the company's liquidator "now owns and can thus waive the Audit Committee's attorney-client privilege, regardless of the Committee's prebankruptcy independence." Id. At 658. In contrast, the court held that the liquidator could not unilaterally waive any work product protection — because Paul Weiss either solely or jointly owned that separate protection. Id.

Constituents of a company's board (such as an audit committee or group of independent directors) should bear in mind the possible post-bankruptcy ownership of their protected communications — remembering that the answer might be different for privileged communications and work product.

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

key case


Chapter: 24.602

Case Name: Krys v. Paul, Weiss, Rifkind, Wharton, & Garrison LLP (In re China Med. Techs., Inc.), 539 B.R. 643 (S.D.N.Y. 2015)
(holding that a bankruptcy liquidator could waive the attorney-client privilege that belonged to a company's Audit Committee, but could not waive the Audit Committee's work product protection, which belonged solely or jointly to the Audit Committee's lawyer's at Paul Weiss; "The issue now before the Court is whether the capacity of the Audit Committee to retain independent counsel and to conduct unfettered internal investigations that implicate corporate management should thwart the statutory obligation of a trustee in bankruptcy to maximize the value of the estate by conducting investigations into a corporation's prebankruptcy affairs."; "Weintraub did not squarely address the circumstances here. Its analysis was limited to whether privileges asserted by a corporation's counsel were waivable by that corporation's trustee in bankruptcy. The asserted privileges here relate to an investigation by Appellees on behalf of a corporation's audit committee, and the precise relationship between that committee and the corporation is disputed. Despite these factual distinctions, however, the same considerations that weighed in favor of the trustee in Weintraub weigh in favor of Appellant here."; "It is true that the Audit Committee was 'independent' in some sense. It could retain counsel, and it legitimately expected that its communications with counsel would be protected against intrusion by management. But the Audit Committee is not an individual, nor is its status analogous to that of an individual. Instead, it was a committee constituted by CMED's Board of Directors, and thus a critical component of CMED's management infrastructure."; "[T]he justifications for protected attorney-client communications dissipate in bankruptcy. Prebankruptcy, audit committees 'play a critical role in monitoring corporate management and a corporation's auditor.'. . . Wit