McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 255 of 255 results

Chapter: 25.1
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)
("The attorney-client privilege may be expressly or impliedly waived by the client's conduct. Banks, 274 Va. at 453-54, 650 S.E.2d at 695-96; Edwards, 235 Va. at 509, 370 S.E.2d at 301.")

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

Chapter: 25.1
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)
("Courts must consider the specific facts of each case in making a waiver determination, as there is no bright line rule for what constitutes waiver. Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914).")

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

Chapter: 25.1
Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *8 (W.D. Va. Dec. 8, 2006)
("Settled Supreme Court case law similarly appears to establish that a waiver of the privilege requires no particular formality and may be either express or implied from the client's conduct. Blackburn v. Crawford's Lessee, 70 U.S. 175, 194, 18 L. Ed. 186, 194 (1865); Glover v. Patten, 165 U.S. 394, 407-8, 17 S. Ct. 411, 416, 41 L. Ed. 760, 768 (1897).")

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

Chapter: 25.2
Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *12-13 (D. Md. Mar. 15, 2013)
(adopting the Rhone [Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir.1994)] rather than the Hearn [Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)] approach; "Express, or actual, waiver occurs where confidential communications are disclosed to a party outside the attorney-client relationship, while implied waiver occurs where a litigant puts the substance of a confidential communication at issue in the litigation or by selective disclosure, where a litigant discloses a portion of the confidential communication and invokes the privilege to shield the remainder.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal MD B 3/14

Chapter: 25.2
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)
("Courts must consider the specific facts of each case in making a waiver determination, as there is no bright line rule for what constitutes waiver. Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914).")

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

Chapter: 25.3
Case Name: City of Potomac Gen. Emps.' Ret. Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378, at *4, *11, *4-5, *5 (W.D. Ark. May 5, 2017)
(finding that Wal-Mart's investigation into alleged corruption in Mexico did not deserve privilege or work product protection; explaining that "former Wal-Mart in-house investigator [Halter] reviewed business records and interviewed fact witnesses to determine what occurred in Mexico."; holding that securities law plaintiffs alleging that Wal-Mart made misleading filings: (1) could discover factual details underlying documents provided to the New York Times and Congress, even if the disclosure was unauthorized; (2) could depose in-house investigator Halter about his findings, because the privilege did not apply; and (3) could discover documents Halter created during his investigation, because the work product doctrine did not apply; ordering Wal-Mart to "produce Ronald Halter's investigative reports, action plan, interview reports, and other factual compilations that Halter drafted in 2005 and 2006. Further, the Court will allow [plaintiff] to depose Ronald Halter a second time."; in supporting conclusion (1), explaining as follows: "PGERS [plaintiffs] argues that it is entitled to fully examine witnesses regarding documents posted to The New York Times and/or Congressional websites that are no longer subject to a claim of privilege. Defendants assert that because the publication of these was unauthorized or involuntary, the attorney-client privilege and/or work product protection still applies to the broad subject matter of Halter's internal investigation."; "Regardless of whether the publication of these documents was unauthorized, the Court has previously recognized that Wal-Mart lost any claim of privilege regarding documents posted to The New York Times and/or Congressional websites as of May 16, 2013. . . . Thus, PGERS is entitled to fully examine relevant witnesses regarding the content of these documents and the factual detail underlying the specific information contained in the documents.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal AR

Chapter: 25.3
Case Name: City of Pontiac General Employees' Retirement Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378 (W.D. Ark. May 5, 2017)
(allowing plaintiffs suing Wal-Mart in connection with its investigation into Mexican corruption to explore content and underlying facts related to a privileged document that The New York Times acquired from someone without authority to waive Wal-Mart's privilege protection; "PGRS argues that it is entitled to fully examine witnesses regarding documents posted to The New York Times and/or Congressional websites that are no longer subject to a claim of privilege. Defendants assert that because the publication of these was unauthorized or involuntary, the attorney-privilege and/or work product protection still applies to the broad subject matter of Halter's internal investigation."; "Regardless of whether the publication of these documents was unauthorized, the Court has previously recognized that Wal-Mart lost an claim of privilege regarding documents posted to The New York Times and/or Congressional websites as of May 16, 2013, ECF No. 127. Thus, PGERS is entitled to fully examine relevant witnesses regarding the content of these documents and the factual details underlying the specific information contained in the documents.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal AR
Comment:

key case


Chapter: 25.3
Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *30-31 (S.D.N.Y. July 2, 2014)
(In cases of inadvertent disclosure (for example, mistakenly including protected documents in a voluntary and authorized production of nonprivileged materials), courts weigh four factors to determine if that disclosure constitutes a waiver. The four factors are: '(1) the reasonableness of the precautions taken by the producing party to prevent inadvertent disclosure of privileged documents; (2) the volume of discovery versus the extent of the specific disclosure at issue; (3) the length of time taken by the producing party to rectify the disclosure; and (4) the overarching issue of fairness.' . . . Factors one and three have also been codified in Rule 502(b) of the Federal Rules of Evidence. This Court concludes that these four factors should also be applied in cases of unauthorized -- as opposed to inadvertent -- disclosure. . . . The Court also notes that in cases of unauthorized disclosure, courts especially focus on the privilege-holder's actions after learning of the unauthorized disclosure.")

Case Date Jurisdiction State Cite Checked
2014-07-02 Federal NY

Chapter: 25.3
Case Name: In re Grand Jury Subpoena Dated March 20, 2013, 13-Mc189 (Part I) 2014 U.S. Dis. LEXIS 91901, *34-35 (S.D.N.Y. July 2, 2014)
("Above all, it is Doe's inaction following Investigator's disclosure that waives the protection covering Investigator's file. Investigator informed Lawyer about her meeting with the government and her disclosure of the file on the day after the meeting. . . . Lawyer affirmed that he was 'stunned' to learn of Investigator's disclosures. . . . Despite his shock on February 12, Lawyer waited over two weeks, until March 1, 2013, before contacting the government about this meeting. . . . And after Doe's agreement with the government fell apart in early May 2013, Doe's attorneys waited several weeks before filing the instant motion to quash. These delays are unacceptable given the perceived gravity of Investigator's disclosures. Courts have held that twelve days, even six days, are too long to wait to avoid waiving privilege.")

Case Date Jurisdiction State Cite Checked
2014-07-02 Federal NY

Chapter: 25.3
Case Name: Guidiville Rancheria of Cal. v. United States, Case No. 12-cv-1326 YGR (KAW), 2013 U.S. Dist. LEXIS 120509, at *5 (N.D. Cal. Aug. 23, 2013)
("[I]nvoluntary disclosures -- such as where a document was intercepted despite reasonable precautions -- do not automatically waive the privilege.")

Case Date Jurisdiction State Cite Checked
2013-08-23 Federal CA B 4/14

Chapter: 25.3
Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *16 (N.D. Cal. Mar. 26, 2013)
(holding that a publication by the New York Times of a 1995 Akin Gump memorandum to its client Wal-Mart did not result in a waiver; also finding that Wal-Mart disclosed part of the memorandum in responding to the New York Times story, but that the disclosure did not trigger a subject matter waiver under the von Bulow (In re von Bulow, 828 F.2d 94 (2d Cir. 1987)) doctrine; "The Court finds that the disclosures to the New York Times and Plaintiffs were unauthorized and involuntary and thus did not waive Wal-Mart's attorney-client privilege in the Memo.")

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

Chapter: 25.3
Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *17, *18-19 (N.D. Cal. Mar. 26, 2013)
(holding that a publication by the New York Times of a 1995 Akin Gump memorandum to its client Wal-Mart did not result in a waiver; also finding that Wal-Mart disclosed part of the memorandum in responding to the New York Times story, but that the disclosure did not trigger a subject matter waiver under the von Bulow (In re von Bulow, 828 F.2d 94 (2d Cir. 1987)) doctrine; "Plaintiffs nonetheless argue that the Wal-Mart has not met its burden of showing that it took sufficient precautions to maintain the Memo's confidentiality. They contend that the Court should infer from the disclosures themselves that Wal-Mart 'has not safeguarded its attorney-client communication like 'crown jewels.'" (citation omitted); "Wal-Mart has submitted evidence under penalty of perjury establishing its extensive efforts to maintain the Memo's confidentiality. Indeed, when Sellers found the Memo on his desk, he did not read past the top of the first page because the Memo was so distinctively marked as confidential and attorney-client privileged.")

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

Chapter: 25.3
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 Jurisdiction State Cite Checked
2013-01-01 State NJ B 5/14

Chapter: 25.3
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 72 n.9 (E.D. Va. 1998)
("[W]hen a company carefully protects its privileged documents but they are stolen or otherwise misappropriated and then revealed, some courts have held that this does not constitute a waiver of the attorney-client privilege."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

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

Chapter: 25.4
Case Name: In re Banc of California Securities Litigation, SA CV 17-00118-AG (DFMx), 2018 U.S. Dist. LEXIS 87477 (C.D.C. May 23, 2018)
(holding that oral communications by Wilmer Hale lawyers to the SEC waived privilege and work product protection; "The parties do not dispute the underlying facts, which can be briefly summarized. On October 18, 2016, a website posted an article by an anonymous writer that alleged that there were financial ties between Banc's then-CEO Sugarman and Jason Galanis, a convicted white-collar criminal. The article set in motion a chain of events that ultimately caused Banc's auditor, KPMG US LLP, to send a Section 10A letter demanding that Banc conduct an investigation. Banc created a Special Committee of its Board of Directors, which in turn hired Wilmer Hale. The investigation conducted by Wilmer Hale included interviews of 15 individuals. Wilmer Hale presented its findings to the Securities and Exchange Commission ("SEC"). Later, at the SEC's request, Wilmer Hale provided the SEC with oral summaries of its 15 interviews.")

Case Date Jurisdiction State Cite Checked
2018-05-23 Federal DC
Comment:

key case


Chapter: 25.4
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "Defendants contend that ML made other oral disclosures of work-product information to the SEC, above and beyond the oral downloads of the 12 interviews. The Undersigned cannot reach any conclusions about further disclosures unless and until ML provides additional clarification about what was disclosed. Defendants contend that the ML attorneys took notes of the discussions they had with the SEC and perhaps with the Department of Justice. Defendants request that the Undersigned review in camera ML's attorneys' notes of an October 29, 2013 meeting. ML does not oppose this request. . . . But the Undersigned is unsure about whether ML attorneys met with the SEC and/or the Department of Justice on days other that October 29, 2013."; "Therefore, ML shall, within seven days from this Order, file under seal a copy of all attorney notes discussing or reflecting what information was disclosed to the SEC or the Department of Justice during meetings (or otherwise).")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 25.4
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "The SEC also asked for the investigative findings, and ML provided the SEC with information about its findings, including a presentation prepared for the SEC and information about specific witness interviews, which were provided orally. An April 15, 2013 PowerPoint presentation that ML made to the SEC contained, among other things, an events timeline, the names of witnesses whom ML had already interviewed, a breakdown of the transactions deemed to be at the heart of the accounting discrepancy, and the results of its investigation. This 28-page PowerPoint presentation is now in the public record of this lawsuit, as Defendants filed it as an exhibit to their motion.";"On October 29, 2013, ML attorneys met with SEC staff and provided oral downloads of 12 witness interviews."; ". . . Although ML provided the SEC with oral downloads of only 12 witness interviews, it provided Deloitte with information about all the interviews notes and memoranda. It appears as though this was accomplished through the reading (by an ML attorney) of memoranda and interview notes to Deloitte and generalized 'access' to review interview notes selected by Deloitte's investigative team."; "There is no dispute here that the notes and memoranda prepared by ML attorneys are in fact work product material. Rather, the dispute is over the waiver of the work-product doctrine protection."; ""ML does not contend that it provided only vague references of the witness notes and memoranda to the SEC, nor does it argue that only detail-free conclusions or general impressions were orally provided. To the contrary, it factually concedes that its attorneys provided oral downloads of the substance of the 12 witness interview notes and memos."; "ML also argues that Defendants' claim -- that they seek to "level the playing field" -- is an argument which "rings hollow" because "the SEC does not have what the Defendants are seeking.". . But that is an incomplete argument. Yes, it is true that the SEC does not have the actual witness notes and memoranda -- but it has the functional equivalent of them by receiving the oral summaries of the interview materials."; "ML waived work-product protection for the witnesses whose interview notes and memoranda its attorneys disclosed to the SEC in the so-called 'oral downloads.' Defendants advise that 'at least twelve' interview memos were orally relayed . . . so the Undersigned is using that number, as well. If it turns out that ML provided information to the SEC about other witness interviews besides the 12 already identified, then it shall disclose to Defendants the additional notes and memoranda. ML shall provide the notes and memoranda within 7 days of this Order."; "Because there is little or no substantive distinction for waiver purposes between the actual physical delivery of the work product notes and memoranda and reading or orally summarizing the same written material's meaningful substance to one's legal adversary, the Undersigned concludes that the Morgan Lewis & Bockius LLP law firm ('ML') waived work product protection and must provide to Defendants the interview notes and memoranda that were orally downloaded. To that extent, the Undersigned grants Defendants' motion to compel against ML. . . . The waiver, however, is limited to only the witnesses whose interview notes and memoranda were orally provided, which is far less than all the witnesses ML interviewed.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 25.4
Case Name: SEC v. Roberts, No. C 07-04580 MHP, 254 F.R.D. 371, 2008 U.S. Dist. LEXIS 64615 (N.D. Cal. Aug. 22, 2017)
(analyzing Howrey's disclosures to its corporate client's board of directors and to the government about the results of its internal corporate investigation; explaining that Howrey carefully limited its disclosure in some circumstances to historical facts, but in other circumstances answered questions about privileged communications Howrey had with witnesses; "'Howrey makes much of the fact that it has never physically provided the interview notes to anybody. However, it is irrelevant that the physical notes were never handed over if the attorneys' mental impressions and conclusions were made known to third parties.'")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal CA

Chapter: 25.4
Case Name: Paulus v. J-M Manufacturing Co., Inc., B269904, 2017 Cal. App. Unpub. LEXIS 3907 (Cal. App. 2d June 8, 2017)
(declining to seal privileged documents that had surfaced years earlier; noting that its owner apparently did not adequately protect them; "In this case the rules were in place when Mr. Paulus died in 2009. Yet J-MM's counsel did not cite them or argue the principle they reflect when the summary motion was filed or when it was argued. No motion to seal was presented until after the trial court had denied the motion. Shortly after that, the parties settled the case and, pursuant to the settlement, the Paulus parties dismissed their suit with prejudice. In doing so they did not seek to preserve any claim that the documents (and any copies that might exist under J-MM's control) be returned or destroyed. The documents were not mentioned at all. And by that time it was readily knowable and indeed was known that the legal advice memorandum had been widely circulated among plaintiffs' attorneys. By the time J-MM finally sought to take some action in this case almost three years had passed. And by counsel's own acknowledgment, although not in their words, it had 'gone viral.' It was widespread and apparently being used in other litigation."; "The trial court concluded that under these circumstances a sealing order would have served no purpose. We find no abuse of discretion in the trial court's denial of a sealing order in these circumstances."; "Finally, we note that in its argument on appeal J-MM has occasionally has conflated two related but distinct concepts: sealing of records and admissibility of evidence. The trial court's first ruling in this dispute was that, while it was not ordering the records sealed, it recognized that they retained their privileged character: they were subject to the attorney-client privilege. It would have defied reason to find they were not. The documents were plainly and prominently marked as 'confidential' and 'attorney-client' material. And they dealt with a issue obviously subject to the attorney-client privilege: legal advice from attorney to client. And, we note, the parties agree that they were not cited in the moving or opposition papers on the summary judgment motion. Thus, while the documents were not sealed, they also were not admissible over attorney-client objection.")

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

Chapter: 25.4
Case Name: City of Pontiac General Employees' Retirement Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378 (W.D. Ark. May 5, 2017)
(allowing plaintiffs suing Wal-Mart in connection with its investigation into Mexican corruption to explore content and underlying facts related to a privileged document that The New York Times acquired from someone without authority to waive Wal-Mart's privilege protection; "PGRS argues that it is entitled to fully examine witnesses regarding documents posted to The New York Times and/or Congressional websites that are no longer subject to a claim of privilege. Defendants assert that because the publication of these was unauthorized or involuntary, the attorney-privilege and/or work product protection still applies to the broad subject matter of Halter's internal investigation."; "Regardless of whether the publication of these documents was unauthorized, the Court has previously recognized that Wal-Mart lost an claim of privilege regarding documents posted to The New York Times and/or Congressional websites as of May 16, 2013, ECF No. 127. Thus, PGERS is entitled to fully examine relevant witnesses regarding the content of these documents and the factual details underlying the specific information contained in the documents.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal AR
Comment:

key case


Chapter: 25.4
Case Name: Alaska Elec. Pension Fund v. Bank of America Corp., 14-CV-7126 (JMF), 2017 U.S. Dist. LEXIS 8141 (S.D.N.Y. Jan. 20, 2017)
(finding it unnecessary to decide if it is possible to avoid waiving work product protection when disclosing work product to the government; noting that the UBS had created the documents to file a government action, and had entered into an agreement with the government to keep any of the documents confidential; rejecting defendant UBS's argument that allowing the government to review the documents but not keep them avoided a waiver; "Finally, there is no merit to UBS's creative suggestion that waiver of the work-product doctrine does not apply where materials are merely shown, and not physically provided, to a government agency. . . . In support of that assertion, UBS cites only two cases, one of which is a lower court New York state case and the other of which was decided in 1954.")

Case Date Jurisdiction State Cite Checked
2017-01-20 Federal NY
Comment:

key case


Chapter: 25.4
Case Name: Guiffre v. Maxwell, 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)
("Whether one party or another was a direct recipient or a CC'd recipient of an email is not significant for purposes of the privilege analysis, as the waiver issue is determined by the purpose of the third-party's inclusion in the communications, not necessarily whether the communication was directed toward them by copy or direct email.")

Case Date Jurisdiction State Cite Checked
2016-05-02 Federal NY

Chapter: 25.4
Case Name: HunterHeart Inc. v. Bio-Reference Laboratories, Inc., Case No. 5:14-cv-04078-LHK, 2015 U.S. Dist. LEXIS 123921 (N.D. Cal. Sept. 16, 2015)
(finding that the purchaser of the "bulk" of a company's assets gain ownership of the privileged communications between the company's founder/executive and the company's lawyer which occurred before and after the transaction; "Hunter waived that privilege, however, when it agreed to hand over all of its servers, files and communications. HunterHeart argues that California law, which applies in this diversity case, defines waiver as an 'intentional relinquishment of a known right.' But that is exactly what Hunter did when it executed the APA -- it intentionally relinquished its ownership right over all of its communications, and it received consideration in exchange. It is immaterial whether Riedel subjectively anticipated the disclosure of privileged emails. He and Hunter were sophisticated entities who negotiated the APA over the course of several months, and they came to an express agreement to hand over all the communications relevant here. And not until two years after the sale did HunterHeart or Riedel try to remove or retrieve these purportedly privileged communications.").

Case Date Jurisdiction State Cite Checked
2015-09-16 Federal CA

Chapter: 25.4
Case Name: Hollis v. O'Driscoll, No. 13 Civ. 01955 (AJN), 2013 U.S. Dist. LEXIS 83885 (S.D.N.Y. June 11, 2013)
August 21, 2013 (PRIVILEGE POINT)

"Maybe "Waiver" is the Wrong Term to Use When Describing Clients' Loss of Privilege Protection"

Courts universally use the term "waiver" when describing clients' loss of privilege protection upon disclosure of privileged communications. However, elsewhere in the law, the term "waiver" usually involves a knowing relinquishment of some legal right.

Clients can lose privilege protection without such knowledge. In Hollis v. O'Driscoll, No. 13 Civ. 01955 (AJN), 2013 U.S. Dist. LEXIS 83885 (S.D.N.Y. June 11, 2013), the court analyzed the waiver impact of a pro se defendant attaching to her answer a privileged document created during her communications with a lawyer she had not ultimately hired. Through her newly-hired lawyer, the defendant argued that she had not waived her privilege – "because she did not know or fully understand the nature of the privilege or know that she was waiving it." Id. At *29. The court bluntly rejected her argument, noting that she "cites no case law - and the Court has found none - to support her argument that a party, whether proceeding pro se or represented by counsel, must thoroughly understand the nature of the attorney-client privilege before it can be waived." Id.

Clients can waive their privilege protection if they intentionally disclose privileged communications – even if they did not realize that the privilege protected the communication, and failed to appreciate the legal significance of their disclosure.

Case Date Jurisdiction State Cite Checked
2013-06-11 Federal NY
Comment:

key case


Chapter: 25.4
Case Name: SEC v. Brady, 238 F.R.D. 429, 2006 U.S. Dist. LEXIS 74979, Civ. A. No. 3:05-CV-1416-M, 67 Fed. R. Serv. 3d (Callaghan) 26 (N.D. Tex. Oct. 16, 2006)
(analyzing attorney-client privilege and work product issues in an action by the SEC against a former corporate officer, who sought discovery of his former company's investigation into improper accounting and revenue recognition; explaining that the company's Audit Committee hired the law firm of Baker Botts to conduct an internal investigation with the assistance of KPMG, after which Baker Botts met with the company's new auditor Deloitte; holding that the company and Baker Botts waived privilege protection by disclosing the investigation results to the SEC, and therefore could not withhold them from the former officer; "Brady [former officer] asserts that materials related to the Phase II investigation were provided to the SEC, thereby waiving the attorney-client privilege as to Categories 5 and 6. . . . With regard to the Phase II materials, i2 and Baker Botts concede that they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning Phase II, in addition to interview observations and summaries, exhibits used during witness interviews, and other documents uncovered during its Phase II investigation. Indeed, they state that pursuant to a confidentiality agreement with Brady, he will receive all of the materials presented to the SEC. . . . i2 and Baker Botts contend that despite the disclosure of Phase II materials to the SEC, they did not waive the attorney-client privilege; however, to the extent they have waived attorney-client privilege, they urge the court to adopt the Eighth Circuit's selective waiver doctrine."; "As noted, the Fifth Circuit has yet to adopt the selective waiver doctrine. Moreover, this court is persuaded by the reasoning of the great weight of authority which has declined to adopt the selective waiver doctrine. Therefore, the court finds that i2 and Baker Botts waived the attorney-client privilege as to Categories 5 and 6 by disclosing Phase II privileged information to a third-party."; finding a subject matter waiver; "Brady argues that i2 and Baker Botts' waiver of attorney-client privilege as to the Phase I Report and the Phase II investigation extends to the entire subject matter related to the disclosures."; "The disclosure of any significant portion of a confidential communication waives the privilege as to the whole.'. . . Moreover, waiver of an attorney-client communication waives the privilege as to all other communications relating to the same subject matter. . . . Here, Brady disclosed the Phase I Report, which summed up Baker Botts' entire Phase I investigation, to Deloitte and Touche. Additionally, they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning the ultimate findings of Phase II, interview observations and summaries, and exhibits used during witness interviews. Based on that evidence, the court finds that these disclosures amount to a significant portion of attorney-client privileged information, and thus, the waiver of attorney-client privilege extends to all responsive documents relating to the Phase I and Phase II subject matter. Accordingly, the attorney-client privilege has been waived as to all documents responsive to Categories 3, 4, 5, and 6.")

Case Date Jurisdiction State Cite Checked
2006-10-16 Federal TX
Comment:

key case


Chapter: 25.9
Case Name: Ingenito v. Riri USA, Inc., No. 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. Apr. 25, 2016)
June 15, 2016 (PRIVILEGE POINT)

"Court Analyzes a Subject Matter Waiver's Scope"

Once a feared effect of disclosing privileged communications (sometimes even inadvertently), subject matter waivers now occur in most courts only when a litigant attempts to gain some advantage in litigation by affirmatively using privileged communications. Surprisingly few courts deal with the scope of waiver in those limited circumstances.

In Ingenito v. Riri USA, Inc., No. 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. Apr. 25, 2016), plaintiff claimed that her employer terminated her upon learning on December 3, 2009, that she was pregnant. The company produced and intended to rely on two admittedly privileged communications between the company and its outside counsel Fox Rothschild to prove that plaintiff actually "'broke the news that she is pregnant'" a week later. Id. At *3 (internal citation omitted). The plaintiff claimed waiver, and sought the production of all emails between the company and Fox Rothschild about her employment. The magistrate judge held that the waiver extended only to communications involving "'the timing of the decision to terminate.'" Id. At *5 (internal citation omitted). The magistrate judge also acknowledged that the defendant had made a supplemental production of additional communications with Fox Rothschild, but that the company stated at the time "its intention to not broaden any waiver of attorney-client privilege." Id. At *9. Although such disclaimers normally do not work, the judge concluded that the supplemental production was made "'as a response to Plaintiff's request rather than as a proactive attempt to inject the communication into the litigation.'" Id. At *10 (citation omitted). Although the court did not explain this conclusion, presumably the defendant assured the court that it would not use any documents from the supplemental production to advance its positions.

Although the previously frightening specter of a subject matter waiver has receded, litigants deliberately disclosing privileged communications must hope that a sophisticated court will limit the waiver to the appropriately narrow subject matter.

Case Date Jurisdiction State Cite Checked
2016-04-25 Federal NY
Comment:

key case


Chapter: 25.9
Case Name: Apple Inc. v. Samsung Electronics Co., Ltd., Case No.: 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386 (N.D. Cal. April 3, 2015)
(analyzing the effect of Samsung's defense of admitted disclosure of confidential information about non-party Nokia; "Samsung maintains it has never been informed by the court that pursuing its defenses would lead to a waiver and thus has never had any opportunity to consider whether to alter those defenses. But the Ninth Circuit has never required prior notice from a court of a potential waiver, and Samsung has been on notice from Apple and Nokia that it risked waiver of its claims of privilege for nearly a year and a half.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA

Chapter: 25.10
Case Name: Alaska Elec. Pension Fund v. Bank of America Corp., 14-CV-7126 (JMF), 2017 U.S. Dist. LEXIS 8141 (S.D.N.Y. Jan. 20, 2017)
(finding it unnecessary to decide if it is possible to avoid waiving work product protection when disclosing work product to the government; noting that the UBS had created the documents to file a government action, and had entered into an agreement with the government to keep any of the documents confidential; rejecting defendant UBS's argument that allowing the government to review the documents but not keep them avoided a waiver; "Finally, there is no merit to UBS's creative suggestion that waiver of the work-product doctrine does not apply where materials are merely shown, and not physically provided, to a government agency. . . . In support of that assertion, UBS cites only two cases, one of which is a lower court New York state case and the other of which was decided in 1954.")

Case Date Jurisdiction State Cite Checked
2017-01-20 Federal NY

Chapter: 25.10
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 660 (D. Nev. 2013)
("The attachment forwarded to Mr. Altonaga [outside consultant] is clearly marked 'attorney client privileged, prepared at the request of counsel' and is also marked 'confidential-internal use only.' While these marks are not dispositive, they do indicate in this instance the desire to maintain the document's confidentiality and privileged nature. Coupled with the nature of the communication, the court concludes that Mr. Little's [Senior Manager, Marketing] action of forwarding the attorney-client communication to its agent did not defeat confidentiality.")

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

Chapter: 25.11
Case Name: BSP Software, LLC v. Motio, Inc., No. 12 C 2100, 2013 U.S. Dist. LEXIS 95511, at *13 (N.D. Ill. July 9, 2011)
(rejecting the functional equivalent doctrine; "Confidentiality alone is not sufficient to establish the privilege or to avoid waiving it by disclosure to a third party. We also must consider, among other things, to whom the disclosure was made. For example, if Mr. Rachmiel [officer of plaintiff] disclosed privileged BSP information to a respected third-party who had been giving a business lecture at a seminar on the wisdom vel non of pursuing patent litigation, all of the assurances of confidentiality in the world would not avert a waiver. Likewise, if a disclosure is made (as here) to persons outside the scope of the privilege, a promise of confidentiality is not an elixir that cures the ill of waiver.")

Case Date Jurisdiction State Cite Checked
2011-07-09 Federal IL B 4/14

Chapter: 25.12
Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)
(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The attorney-client privilege, which attaches to the communications between the Petitioner and his former counsel, shall not be deemed automatically waived in any other federal or state proceeding.")

Case Date Jurisdiction State Cite Checked
2017-03-20 Federal VA

Chapter: 25.502
Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)
November 21, 2018 (PRIVILEGE POINT)

Court Demands That Defendant Identify Those With Access to Privileged Documents

In 2015, the court handling a malicious prosecution case against the Town of Islip held that the Town had waived privilege protection for documents that "were apparently accessible by all Town employees, " even those without a need to know, and that might also have been accessed by members of the public "in days past." Norton v. Town of Islip, No. CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114, at *11, *14 (E.D.N.Y. Sept. 18, 2015).

The parties' privilege fights have continued, and plaintiff recently challenged the Town's declaration that "'[t]here is no reason to believe' that the privileged documents were accessed by anyone other than those individuals and offices to whom they were addressed." Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018). The court again addressed the access issue. After explaining that it was "unable to credit the Town Defendants' conclusion about access of the subject documents," the court ordered the Town to provide "affidavits from an individual or individuals with knowledge setting forth where each document was kept, including all individuals who had access to the documents and when that access was provided." Id. at *25, *28. And the court then doubled down, emphasizing that "[f]or the sake of clarity, the Court is directing the Town Defendants to explain who had access, not just who actually accessed the documents at issue and what was done to maintain confidentiality." Id. at *28.

It is difficult to imagine any institutional client (governmental or corporate) being able to comply with such a remarkable requirement.

Case Date Jurisdiction State Cite Checked
2018-10-16 Federal

Chapter: 25.502
Case Name: Martin v. Copeland, Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756 (N.D. Ind. July 5, 2018)
(holding that a former City employee could not rely on a open records law to overcome the City's work product protection for some documents in the plaintiff's personnel file, and that the City did not waive its work product protection when it put the protected documents in the personnel file; "Plaintiff also argues that Defendants waived any possible claim to attorney-client privilege when they placed the attorney communications into Plaintiff's personnel file. Defendants disagree, noting that no waiver of the privilege occurred because the omitted documents were never disclosed to Plaintiff. It is uncontested that Plaintiff never received a copy of the omitted communications; thus, no waiver of the attorney-client privilege occurred.")

Case Date Jurisdiction State Cite Checked
2018-07-05 Federal IN
Comment:

key case


Chapter: 25.502
Case Name: United States v. Nosal, No. CR-08-0237 EMC, 2013 U.S. Dist. LEXIS 49745, at *10 (N.D. Cal. Apr. 5, 2013)
("Defendant has apparently been provided with 'dozens of emails between O'Melveny [outside lawyer for defendant's former employer] and the government exchanging information demonstrating that Korn/Ferry [defendant's former employer] intended to share its witness communications with the government,' but he points to no specific facts indicating that O'Melveny actually shared the information in question with the government." (internal citation omitted))

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

Chapter: 25.502
Case Name: United States v. Finazzo, Np. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *41-42 (E.D.N.Y. Feb. 19, 2013)
(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "Finazzo's position that one cannot 'waive' privilege in a document that has already been inadvertently disclosed by thereafter voluntarily disclosing it to the same person reflects a serious misunderstanding of the purpose of privilege. . . . [W]aiver occurs where the proponent of the privilege takes actions wholly inconsistent with any desire to maintain confidentiality in the communication, and is entirely independent of whether that action actually 'reveals' the communication to anyone. See 24 Wright & Graham, Federal Practice & Procedure § 5507, 580 n.126 ('[I]f the client deposited his communications in the public library, the privilege would be waived, even though no one ever read them.'). . . . Where the proponent evinces no concern for confidentiality, the privilege has no value and is lost. Therefore, where a proponent of a privilege is faced with the breach of confidentiality, he or she must object, and not partake in it.")

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

Chapter: 25.503
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; rejecting plaintiffs' argument that GM did not intend to keep the report or the related documents confidential; "Barra [GM's CEO] may have promised transparency in matters relating to safety . . . But she did not promise to disclose the communications reflected in the Interview Materials. And the participants in the interviews themselves understood that their communications were intended to be kept confidential.")

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY

Chapter: 25.503
Case Name: Mpala v. Funaro, Civ. No. 3:13-cv-252 (WIG), 2014 U.S. Dist. LEXIS 168407 (D. Conn. Dec. 5, 2014)
("The transcript shows little more than a fleeting communication between the Plaintiff and his counsel, where counsel simply states, 'You can waive it. If you want to waive all your privilege, you can.'. . . As such, the court finds that there is no express waiver of the attorney-client privilege.")

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

Chapter: 25.602
Case Name: DealDash Oyj v. ContextLogic Inc., Case No. 18-cv-02353-MMC (JCS), 2019 U.S. Dist. LEXIS 38891, at *2 (N.D. Cal. Mar. 11, 2019)
May 28, 2019 (PRIVILEGE POINTS)

"Court Issues A Common Sense Rejection Of A Subject Matter Waiver Claim"

Disclosing privileged communications to gain some advantage can sometimes trigger a subject matter waiver, requiring disclosure of additional related communications. Courts agree that fairness dictates the existence and scope of such subject matter waivers. Despite subject matter waivers' inherently unpredictable nature, some courts get it right.

In DealDash Oyj v. ContextLogic Inc., Case No. 18-cv-02353-MMC (JCS), 2019 U.S. Dist. LEXIS 38891, at *2 (N.D. Cal. Mar. 11, 2019), plaintiff claimed that a party's outside counsel triggered a subject matter waiver by filing a declaration stating that: (1) the client's general counsel "has advised me that as far as he knew," the client never received a "cease and desist letter" from plaintiff; and (2) the client "has advised me" that the pertinent trade name "is not important to it," and that the client would stop using it. The court rejected plaintiff's argument seeking a subject matter waiver, noting that plaintiff would not be asserting a waiver if "[the party's] counsel had appeared in court" to say the same things. Id. at *4. As the court explained, "[l]awyers routinely make such representations to courts," and "one of the basic functions of an attorney is to communicate a client's positions to the court." Id. at *5. While acknowledging that "a more thorough attorney" might have submitted the client's supporting declarations, "the shortcut taken in this case, in context of administrative motion to extend the time, does not in fairness call for a broad waiver of privilege." Id. at *5-6.

While it is always risky for lawyers to quote their clients (or vice versa), fairness sometimes prevails to prevent a subject matter waiver.

Case Date Jurisdiction State Cite Checked
2019-03-11 Federal CA
Comment:

key case


Chapter: 25.602
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
(overruling a Magistrate Judge, and quashing plaintiff's motion to compel production of documents related to a teacher's employment discrimination claim against a school board; "[A]ttorneys regularly share with opposing counsel their decisions to take or not take certain action. This does not break the attorney-client privilege for communications made in confidence that led them to such decisions.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 25.602
Case Name: United States v. Colliot, Cause No. AU-16-CA-01281-SS, 2017 U.S. Dist. LEXIS 203664 (W.D. Tex. Dec. 12, 2017)
(holding that the IRS did not waive the government's privilege protection by using language and a communication to a taxpayer that was taken from a privileged internal part of a document – because the agent did not quote the document and did not attribute the language to a lawyer; "Colliot contends IRS Agent Anton Pukhalenko effected a broad waiver of attorney-client privilege by inserting language from IRS counsel memos into several IRS forms provided to Colliot. The IRS form at issue -- Form 886A -- is sometimes provided to taxpayers in order to explain actions taken or penalties imposed by the IRS. In connection with assessments of penalties against Colliot for failure to report his financial interests in foreign bank accounts, the IRS provided several such forms to explain why the IRS had imposed the penalties. In addition to discussing the factual bases for the imposition of penalties, the forms also contain a 'Law & Analysis' section which lays out the legal basis for the penalties."; "In filling out the 'Law and Analysis' portion of Form 886A, Agent Pukhalenko sometimes borrowed language from communications with IRS counsel in order to explain the assessment of tax penalties imposed upon Colliot. . . . Agent Pukhalenko did not present the language as having come from IRS counsel, but instead presented it as his own attempt to set forth the legal bases underlying the assessment of the penalties. Colliot contends this use of the IRS counsel memos constitutes a 'voluntary and substantial disclosure' which 'completely waives attorney-client privilege' as to all of the documents identified in the Government's privilege log."; "The Court finds Colliot has not met his burden of demonstrating waiver has occurred. For one, though Colliot claims it is 'axiomatic' that restatements of an attorney's legal advice or legal conclusions waive attorney-client privilege, Colliot has pointed to no factually analogous precedent within this Circuit which might justify his position. . . . Here, Agent Pukhalenko did not disclose the actual attorney communications to Colliot, nor did he indicate that the borrowed language had come from an IRS attorney. The Court finds Agent Pukhalenko did not waive privilege as to the IRS counsel memos when he used language borrowed from those memos to convey the IRS's legal conclusions.")

Case Date Jurisdiction State Cite Checked
2017-12-12 Federal TX
Comment:

key case


Chapter: 25.602
Case Name: Blattman v. Siebel, C.A. No. 15-530-GMS, 2017 U.S. Dist. LEXIS 207144 (D. Del. Dec. 1, 2017)
(holding that a litigant does not waive privilege protection by designating her lawyer as a fact witness on non-privileged facts; "[T]he Defendants' mere designation of Mr. Dwyer [Lawyer] to testify regarding the non-privileged communications does not constitute a waiver of privileged communications.")

Case Date Jurisdiction State Cite Checked
2017-12-01 Federal DE
Comment:

key case


Chapter: 25.602
Case Name: Ochoa v. Santa Clara County Ofc. of Ed., Case No. 16-cv-03283-HRL, 2017 U.S. Dist. LEXIS 191844 (N.D. Cal. Nov. 20, 2017)
("Here, to the extent that Defendants are offering the testimony of White and Noack [Defendant's outside lawyers] as part of an advice of counsel defense, the Court grants Ochoa's motion. Defendants did not properly assert this defense in their answer or their motion for summary judgment. Further, Defendants asserted attorney-client privilege as to much of the substance of the communications between Gordillo and White and Noack. Attorney-client privilege may not be used as a shield during discovery, and then a sword in the run-up to trial. . . ."; "However, Defendants may present the non-privileged aspects of the communications between Gordillo [Defendant's human resources manager] and White and Noack (i.e., the fact that the communications occurred, when they occurred, and the subject of those communications, as described in the privilege log). Defendants produced this information to Ochoa during discovery, and the timing of these communications is probative of Defendants' assertion that Ochoa's dismissal was not the result of retaliation."; "To summarize the Court's ruling, Defendants may not offer the testimony of White and Noack as part of a belated advice of counsel defense. Further, White and Noack may not testify to the substance of their communications with Defendants (the previously-redacted portions of the March 2017 e-mail production). The two witnesses may testify only to the fact that the communications occurred, when they occurred, and the general subject matter of the communications.")

Case Date Jurisdiction State Cite Checked
2017-11-20 Federal CA
Comment:

key case


Chapter: 25.602
Case Name: Kasper v. AAC Holdings, Inc., Case No. 3:15-cv-00923, 2017 U.S. Dist. LEXIS 144949 (M.D. Tenn. Sept. 7, 2017)
("Regarding Plaintiffs' argument that Defendants have produced documents containing privileged communications and thereby waived privilege as to all documents involving Mr. Greer [ACC lawyer], Plaintiff has not demonstrated that privileged communications were in fact produced. Such a waiver only occurs when there has been 'voluntary disclosure of the content of a privileged attorney communication . . . .'. . . The documents to which Plaintiffs refer appear to contain communications between Mr. Greer and Defendants that convey information learned from third parties, or notice that Mr. Greer had sought but not received such information, or other remarks that do not appear to be legal advice. . . . These communications do not involve legal advice, and thus are not protected by the privilege. . . . Thus, Defendants were required to produce these responsive, non-privileged documents, and did so. 'Stated simply, a party cannot waive the attorney client privilege by producing non-privileged documents.'")

Case Date Jurisdiction State Cite Checked
2017-09-07 Federal TN
Comment:

key case


Chapter: 25.602
Case Name: Kasper v. AAC Holdings, Inc., Case No. 3:15-cv-00923, 2017 U.S. Dist. LEXIS 144949 (M.D. Tenn. Sept. 7, 2017)
("While Plaintiffs contend that Defendants are relying on an 'advice of counsel' defense in this matter, Defendants have consistently maintained otherwise. There is no such defense to be found in Defendants' Answer and Affirmative Defenses. . . . In response to Plaintiffs' Interrogatory that asks '[i]f you intend to assert reliance on the advice of counsel as a defense in this Action, identify the counsel and the advice You intend to rely upon,' Defendants answered: '[s]ubject to and without waiver of the General Objections set forth below, Defendants do not currently intend to assert reliance on the advice of counsel defense.'. . . Rather, they describe conversations between Mr. Greer [AAC lawyer] and third parties, which were not subject to attorney-client privilege by definition, and facts relayed by Mr. Greer to Defendants, not legal advice upon which Defendants claim to have relied. The Sixth Circuit has held that '[i]t is clear that when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged.'. . . Thus, Defendants' responses to these interrogatories neither revealed privileged information nor asserted an advice of counsel defense.")

Case Date Jurisdiction State Cite Checked
2017-09-07 Federal TN
Comment:

key case


Chapter: 25.602
Case Name: Nucap Industries Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 U.S. Dist. LEXIS 135288 (N.D. Ill. Aug. 23, 2017)
("Contrary to Bosch's contentions, Nucap has not waived its privilege here. Bosch points to a May 17, 2011 email, cited by Nucap in its cross-motion for summary judgment, stating that Nucap would not 'have any blind acceptance of Bosch standard terms and conditions.'. . . According to Bosch, Nucap's reliance on this email effects at-issue waiver and entitles Bosch to privileged documents that 'relate directly to and/or were an important part' of May 2011 discussions regarding the POTCs. . . . Bosch essentially argues that because the documents it seeks are relevant to Nucap's subjective intent, Nucap must now produce them. . . . But Bosch overlooks the fact that the May 17, 2011 email -- sent by a Nucap employee to a Bosch employee -- does not implicate attorney-client communication at all. . . . This is not a situation where Nucap is wielding attorney-client privilege as both a sword and a shield, selectively waiving privilege to gain an advantage while concealing the rest.")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal IL

Chapter: 25.602
Case Name: Wadler v. Bio-Rad Laboratories, Inc., Case No. 15-cv-02356-JCS, 2016 U.S. Dist. LEXIS 176166 (N.D. Cal. Dec. 20, 2016)
("Bio-Rad contends these declarations do not disclose any privileged communications -- that they merely reveal certain 'historical facts necessary to rebut Plaintiff's claims,' and that they at most reveal facts that were either disclosed to Bio-Rad's outside auditors at the time (thus waiving any privilege) or were never privileged. . . . Yet Plaintiffs have highlighted at least three examples in the Drapeau Declaration that appear to implicate privilege: (1) his statement that Wadler [] offered 'far more than management was willing to pay' to settle with Life Technologies; (2) his statement that Wadler objected to Bio-Rad's accrual for the Life Technologies Audit prior to the filing of a Form 10-K; and 3) his statement that Wadler 'took actions to undermine Bio-Rad's new Compliance Officer.'. . . To the extent that these statements disclose privileged communications between Wadler and Bio-Rad, any privilege as to these communications or communications on the same subject matter has been waived (particular as Bio-Rad has now expressly stated that nothing in these declarations is protected by privilege). Further, the response and declarations submitted in the DOL broadly accuse Wadler of misconduct and incompetence even while Bio-Rad attempts to prevent Wadler from introducing any privileged or confidential communications to show that these allegations are pretextual. That is the sort of unfairness that Rule 502 does not permit. Accordingly, the Court finds that the waiver that results from Bio-Rad's submissions to the DOL extends to communications on the topics addressed in those documents relating to his alleged misconduct and incompetence.")

Case Date Jurisdiction State Cite Checked
2016-12-20 Federal CA

Chapter: 25.602
Case Name: Wadler v. Bio-Rad Laboratories, Inc., Case No. 15-cv-02356-JCS, 2016 U.S. Dist. LEXIS 176166 (N.D. Cal. Dec. 20, 2016)
(holding that disclosure to the government waived privilege protection; also finding that the company waived the privilege by disclosing privileged communications to the department of labor and rejecting the company's argument that the disclosure only included historical facts; "The primary disclosure in the SEC Proceeding that relates to Wadler's claims in this action is the DPW Presentation. Although that document was filed under seal in this action, by disclosing it to the SEC and DOJ there is no doubt that Bio-Rad waived any privilege it might have claimed as to the document itself. Indeed, Bio-Rad now concedes that it has waived attorney-client privilege as to this document. See Reply at 7 ('For the purposes of this Motion, Bio-Rad recognizes that its report to the government of its investigation is not privileged.'). The Court further finds that under Rule 502(a), fairness requires that the waiver extend beyond the DPW Presentation because Bio-Rad has repeatedly relied on that document as a sword by citing to its conclusion that Wadler's concerns about possible FCPA violations in China were unjustified."; "Based on the reasoning of IGT [IGT v. Alliance Gaming Corp., No. 04-cv-1676 RCJ (RJJ), 2006 U.S. Dist. LEXIS 72165, 2006 WL 8071393 (D. Nev. Sept. 28, 2006)], the Court concludes that the disclosure of the DPW Presentation, like the disclosures in IGT, resulted in waiver of attorney-client privilege not only as to the document itself but also any privileged communications about the specific matters disclosed in the DPW Presentation. For example, the DPW repeatedly references specific issues Wadler brought to the attention of the Audit Committee relating to possible FCPA violations in China. At a minimum, then, there is a waiver as to Wadler's Audit Committee Memo and any other communications between Wadler and Bio-Rad relating to those concerns. The DPW Presentation also references communications between outside counsel and Wadler and between outside counsel and Bio-Rad as to his concerns. Therefore, the waiver extends to these communications to the extent they are related to the same subject matter as the communications disclosed in the DPW Presentation. As a practical matter, then, this waiver extends to privileged communications and confidential information that Wadler reasonably believes are necessary to show that he had an objectively reasonable belief that Bio-Rad was violating the FCPA in China in the ways suggested in the Audit Committee Memo and addressed in the DPW Presentation."; "This case differs from General Motors [In re General Motors LLC Ignition Switch Litigation, 80 F. Supp. 3d 521 (S.D.N.Y. 2015)] in that the DPW Presentation does not just state conclusions; it also describes the underlying investigation by outside counsel in great detail. Moreover, in contrast to the facts of that case, Bio-Rad is poised to use the conclusions of outside counsel offensively at trial to defeat Wadler's retaliation claim while precluding Wadler from presenting related communications to rebut this evidence, as discussed above. Therefore, the General Motors case is not on point.")

Case Date Jurisdiction State Cite Checked
2016-12-20 Federal CA

Chapter: 25.602
Case Name: Natural Alternatives Int'l, Inc. v. Creative Compounds, Inc., Case No.: 15-cv-02081-JM-AGS, 2016 U.S. Dist. LEXIS 175231 (S.D. Cal. Dec. 16, 2016)
(holding that a "blast email" sent to potential customers did not waive any privilege protection because it did not disclose privileged communications; analyzing the following statement in the "blast email": "'We have reviewed ten patents owned by NAI and have discovered that NAI appears to have admitted that three of the patents are invalid, as construed by a court in Delaware in 2011. NAI has never again sued another party on these three patents after the Delaware case.'"; "The Court does not agree that the blast email from Creative to beta-alanine market participants constitutes an express waiver of the attorney-client privilege. Although the blast email states some of Creative's legal conclusions, there is nothing in it that contains or exposes the contents of any privileged communication with counsel. Indeed, there is nothing in the blast email that suggests that an attorney's legal opinion was even sought on the matter. Thus, NAI's argument fails at the outset. There was no waiver whatsoever, so the Court need not address whether any such waiver would be broad enough to include all the emails at issue here. Accordingly, as to that ground, NAI's motion to compel is denied.")

Case Date Jurisdiction State Cite Checked
2016-12-16 Federal CA

Chapter: 25.602
Case Name: Loguidice v. McTiernan, 1:14-CV-1323 (TJM/CFH), 2016 U.S. Dist. LEXIS 113745 (N.D.N.Y. Aug. 25, 2016)
("This report contains a factual recitation of the alleged conflict of interest action and plaintiff's alleged act of transferring files from the DEC [New York Department of Environmental Conservation] office to her personal computer. It contains no legal assessment or opinion. Although the information could have been used by the inspector general in reaching a legal conclusion, the factual information in this document does not reveal any attorney-client privileged information. The e-mail preceding the draft document also does not waive any attorney-client communications as the information contained therein does not contain legal advice. . . . This message simply indicates Brody's opinion that certain paragraphs could be considered nonessential in communicating the factual allegations to the IG's office. Thus, the undersigned concludes that defendants have not waived any aspect of the attorney-client privilege by producing this email and draft memorandum.")

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

Chapter: 25.602
Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)
("Truscott's purported instruction to her lawyer not to disclose the Heartland report was not given for the purpose of seeking legal advice and therefore is not protected by the attorney-client privilege. . . . Consequently, Truscott's testimony about the contents of that instruction, or the fact that Truscott gave it, did not waive the attorney-client privilege regarding other, privileged communications. And because the instruction was not privileged, Truscott's objection to testimony concerning it was not well-founded.")

Case Date Jurisdiction State Cite Checked
2016-05-23 Federal MN

Chapter: 25.602
Case Name: Variety Stores, Inc. v. Wal-Mart Stores, Inc., No. 5:14-CV-217-BO(2), 2016 U.S. Dist. LEXIS 30085 (E.D.N.C. March 9, 2016)
(holding that Wal-Mart's Rule 30(b)(6) witness did not waive the company's privilege protection by testifying management learned from its lawyer about a trademark issue, because the testimony did not disclose the substance of the communications; also finding Wal-Mart had not impliedly waived the privilege, and that it disclaimed any intent to rely on the privilege at trial; "Variety contends that Wal-Mart impliedly waived its attorney-client privilege by allowing its Rule 30(b)(6) deponent to testify that Wal-Mart's Brand Team learned of Variety's registered tradename THE BACKYARD and associated marks from Wal-Mart's legal team. . . . Variety further argues that Wal-Mart waived the privilege by arguing on summary judgment that it acted prudently in vetting potential brand names."; "Wal-Mart has not waived its attorney-client privilege with respect to the information sought by Variety. The deposition testimony of Wal-Mart's Rule 30(b)(6) deponent did not disclose the substance of communications between legal counsel and its client. Nor did Wal-Mart place its attorney's advice in issue by disclosing or describing privileged communications in support of any claim or defense raised by Wal-Mart. Accordingly, the undersigned denies Variety's motion to compel production of the documents to which Wal-Mart has asserted attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-09 Federal NC

Chapter: 25.602
Case Name: Cue, Inc. v. GM LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)
(holding that General Motors did not waive privilege protection by mentioning in a pleading its intent to rely on advice of counsel, because GM disclaimed any intent to do so at trial; "This court finds that GM has not placed protected information at issue by its disclosures to the plaintiff. While GM described the factual circumstances under which it discovered Cue's registered trademark and the scope of Cue's claim to rights in the CUE ACOUSTICS mark, it did not reveal the substance of its counsel's advice to Mr. Merrill. In particular, it did not disclose any legal analysis that may have been performed by Attorney Gorbatoff. Nor did it disclose any statements or recommendations that Attorney Gorbatoff may have made to Mr. Merrill regarding the ad hoc committee's selection of the trademark CADILLAC CUE. Instead, the record indicates that GM has been careful to protect any confidential information contained in the April 3, 2011 email communication by continuing to withhold it from production and opposing Cue's efforts to compel its disclosure."; "'A defendant does not waive its attorney[-]client privilege by relying on evidence that it conducted a trademark search or by describing its investigation of the search results.'. . . The disclosures that GM made in its responses to Cue's Interrogatories reveal nothing more than information that can be found on the public record"; "Thus, GM did nothing more than describe what Attorney Gorbatoff found by searching the public record. It has not put protected information at issue in order to gain an unfair advantage.")

Case Date Jurisdiction State Cite Checked
2015-08-10 Federal MA
Comment:

key case


Chapter: 25.602
Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *10 n.2 (D. Ore. June 20, 2014)
(analyzing a situation in which plaintiff was interviewed by a bank's in house lawyer when her superior sued the bank, after which the bank fired her for helping the superior; holding that the plaintiff owned any privilege protection that covered her interview; "There is a fundamental difference between counsel informing corporate officers that 'I interviewed employee Smith and he will give favorable testimony for the plaintiff in her lawsuit against the Company so we should consider settling the case' and counsel informing officers in connection with the Company's performance evaluation of Smith that the employee would have given testimony that was detrimental to the Company. The former is legal advice and is privileged. The latter (without more of a showing) is not legal advice and is beyond the scope and purpose of the privilege.")

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

Chapter: 25.602
Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *23-24 (D. Kan. Feb. 11, 2014)
(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "But the court agrees with Sprint that the 'ultimate legal conclusions of a party are always implicated at a trial, because it is those conclusions that lead parties to file and pursue lawsuits.' The court does not believe that this is the type of substantive communication that privilege protects. Sprint did not reveal its attorney's reasoning and analysis behind these conclusions (which might be protected by the attorney-client privilege or work-product doctrine). Defendants have cited no case holding that disclosure of a legal conclusion at trial waives privilege as to specific communications about the legal conclusions." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal KS B 7/14

Chapter: 25.602
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *25-26 (D. Del. Oct. 25, 2013)
("Since the facts, data, and assumptions that were provided to XRoads and Duff & Phelps [valuation firms] are not protected from disclosure or otherwise privileged, there is no protection or privilege for the Taxpayer to waive.")

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

Chapter: 25.602
Case Name: Elan Microelectronics Corp. v. Pixcir Microelectronics Co., Case No. 2:10-cv-00014-GMN-PAL, 2013 U.S. Dist. LEXIS 114788, at *23-23 (D. Nev. Aug. 14, 2013)
("The documents are not privileged and should have been produced by Pixcir in discovery. These materials were provided to non-party customers and potential customers. The slide presentations convey a lay person's understanding of the general nature of the claims made by Elan and Pixcir's position that its products do not infringe Elan's '352 Patent. They do not, by any stretch, convey confidential legal opinions or analysis that give rise to a waiver of the attorney-client privilege on the entire subject matter of non-infringement.")

Case Date Jurisdiction State Cite Checked
2013-08-14 Federal NV B 4/14

Chapter: 25.602
Case Name: Glenwood Halsted LLC v. Vill. of Glenwood, No. 11 CV 6772, 2013 U.S. Dist. LEXIS 4471, at *3, *4 (N.D. Ill. Jan. 11, 2013)
("The attorney-client privilege protects confidential communications between a client and his attorney for the purpose of obtaining legal advice."; "Because the attorney-client privilege protects only confidential communications, any disclosure of privileged communications to individuals outside the attorney-client relationship destroys the privilege.")

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

Chapter: 25.602
Case Name: Gruss v. Zwirn, 276 F.R.D. 115, 138, 138-39 (S.D.N.Y. 2011)
(analyzing privilege implication of an internal corporate investigation by Gibson Dunn and Schulte Roth involving alleged financial irregularities at several hedge funds; finding the defendants' assertion of a counterclaim did not trigger an "at issue" waiver; "Plaintiff also asserts that defendants' reliance on the findings of the internal investigations in their asserted counterclaims constitutes a waiver of the privilege. Again, were this argument directed towards the talking points, internal reports, or investor memorandum that have already been disclosed to plaintiff, we would be inclined to agree that there could be a waiver. We are more skeptical, however, of this assertion as directed towards the interview notes and summaries created by the law firms in the course of their investigation."; "Defendants make extensive allegations as to specific instances of Gruss's misconduct, none of which rely solely on the findings of the internal investigations. . . . In any event, while it is true that the Zwirn Entities may have originally learned of some of these alleged facts through the internal investigations, their later reference to those facts does not waive the privilege in the communications whereby they gained that knowledge, any more than an assertion of privilege in a particular attorney client communication protects against disclosure of the underlying facts by those who communicated with the attorney.")

Case Date Jurisdiction State Cite Checked
2011-01-01 Federal NY B 10/12

Chapter: 25.602
Case Name: Turner v. Commonwealth of Va, 712 S.E.2d 28, 39 (Va. Ct. App. 2011)
("[W]e find that the circuit court did not abuse its discretion by permitting Keeley to testify regarding information that was not obtained confidentially from Turner. Neither Rule 1.6 nor 1.9 prohibits a lawyer from testifying in court regarding what occurred at a former public court proceeding when such testimony does not involve communications solely between an attorney and his client and the testimony concerns information that has become generally known. The Commonwealth only sought to elicit events and information conveyed by Poindexter at a prior public court proceeding, and did not seek to have any information disclosed that was privileged or uniquely related to Keeley's representation of Turner. Specifically, Keeley's testimony in this case did not involve any confidential information or secrets that he obtained 'in the course of the representation' or 'relating to the representation,' Rule 1.9, nor was it 'gained in the professional relationship' or if disclosed 'would be embarrassing or would be likely to be detrimental to the client,' Rule 1.6. Rather, Keeley's testimony was limited to events he witnessed while he was Turner's counsel that occurred at the preliminary hearing in the general district court, which was open to the public, and entailed the prior testimony of a sworn witness that was disclosed publicly to all those present at the preliminary hearing.")

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

Chapter: 25.602
Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 445 & n.1 (W.D. Va. 2009)
(assessing privilege issues in an ADA case filed by a former hospital employee; rejecting the plaintiff's argument that the defendant created an at issue waiver; "Here, plaintiff contends that Carilion waived any attorney-client privilege by submitting to the EEOC a letter dated March 9, 2006 authored by Henson and enclosing an affidavit from Roe. . . . [A]t no point in her affidavit does Roe come close to discussing any of her conversations with Henson prior to Billings' termination. . . . The letter never mentions Roe or any conversations he had with her prior to Billings' termination. Rather, it is a letter written by a lawyer to the EEOC arguing his client's position. While the subject of the letter is obviously plaintiff's termination, nothing in that letter hints at the substance of the communications between Henson and Roe regarding Billings' termination. Henson's letter works no waiver of the privilege."; "Review of the deposition transcripts reveals that plaintiff was allowed to question these witnesses at length regarding their knowledge and involvement of the facts of the case, and the invocation of the attorney-client privilege was appropriately limited to questions concerning communication between Henson and Roe regarding legal advice.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal VA B 9/10

Chapter: 25.602
Case Name: United States v. Garrett, Case No. 1:08CR00024-026, 2008 U.S. Dist. LEXIS 74188, at *2, *4, *4-5 (W.D. Va. Sept. 27, 2008)
(analyzing the Government's insistence that a criminal defendant's lawyer sign the following statement before the Government would agree to a plea agreement: "'I have fully explained all rights available to my client with respect to the offenses listed in the pending charging document(s). I have carefully reviewed every part of this plea agreement with my client. To my knowledge, my client's decision to enter into this agreement is an informed and voluntary one.'"; noting that "[i]t may be argued that the proposed language requires defense counsel to reveal information protected by the attorney client privilege. That does not seem to be the case here."; "In a statement that proceeds [sic] the provision in question, the defendant declared: 'I have consulted with my attorney and fully understand my rights. I have read this plea agreement and carefully reviewed every part of it with my attorney. I understand this agreement and I voluntarily agree to it.' (Proposed Plea Agreement 11.) The provision at issue mirrors this language. Defense counsel must do nothing more than ensure that she discussed all available rights with her client, explained the terms of the plea agreement, and attest that her client made an informed and voluntary decision. There is simply no evidence that the proposed language would cause defense counsel to reveal a communication intended to be confidential."; denying the criminal defendant's Motion to Prohibit Government Interference with Attorney Client Relationship)

Case Date Jurisdiction State Cite Checked
2008-09-27 Federal VA N 7/09

Chapter: 25.602
Case Name: In re Grand Jury Subpoenas 89-3, 89-4 & 89-129, 734 F. Supp. 1207, 1213-14 (E.D. Va. 1990)
("The documents are not themselves privileged; they contain no confidential attorney-client communications. As such, their voluntary disclosure waives no privilege."), aff'd in part and vacated in part on other grounds, 902 F.2d 244 (4th Cir. 1990)

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal VA

Chapter: 25.603
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
(overruling a Magistrate Judge, and quashing plaintiff's motion to compel production of documents related to a teacher's employment discrimination claim against a school board; "[A]ttorneys regularly share with opposing counsel their decisions to take or not take certain action. This does not break the attorney-client privilege for communications made in confidence that led them to such decisions.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 25.603
Case Name: Wendt v. City of Denison, No. 16-CV-4130-LTS; No. 16-CV-4131-LTS, 2018 U.S. Dist. LEXIS 52550 (N.D. Iowa March 29, 2018)
(holding that City witnesses did not waive the City's attorney-client privilege by testifying that the consultant with the City's lawyer; concluding that the City's lawyer was not a decision maker in connection with the plaintiff's firing; "Having reviewed the transcripts from the deposition and the preliminary injunction hearing, the Court finds that no employees disclosed the content of the communication between the City Attorney and those employees. Rather, the employees only testified that they obtained advice from the City Attorney regarding who could make such decisions, and whether the decision-maker had the legal authority to make the decisions.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal IA
Comment:

key case


Chapter: 25.603
Case Name: Wendt v. City of Denison, No. 16-CV-4130-LTS; No. 16-CV-4131-LTS, 2018 U.S. Dist. LEXIS 52550 (N.D. Iowa March 29, 2018)
(holding that City witnesses did not waive the City's attorney-client privilege by testifying that he consulted with the City's lawyer; concluding that the City's lawyer was not a decision maker in connection with the plaintiff's firing; "In this case, the City has not claimed an advice of counsel defense. An advice of counsel defense does not arise merely as a result of City employees stating that they consulted an attorney before making decisions. The City has not claimed that it was justified in taking adverse employment actions against plaintiffs because the City relied in good faith upon the advice of counsel. The City has not, as plaintiffs assert . . . divulged favorable information and then asserted the privilege to bury detrimental facts. Moreover, Mayor Leinen discussed consulting with the City Attorney only in response to questioning by plaintiffs' counsel; Mayor Leinen did not assert advice from the City Attorney as a justification for his actions."; "Plaintiffs allege that Mayor Leinen 'repeatedly indicated he completely abdicated his authority to Mr. Franck, or at the very least relied solely upon Mr. Franck's recommendation.' (Id.). The record does not, however, support this broad assertion. Mayor Leinen testified that he consulted the City Attorney and obtained advice from the City Attorney in making the decisions to fire the officers. It is to be expected that a decision-maker may consult an attorney regarding whether the decision-maker has the legal authority to terminate an employee or obtain advice on how best to terminate the employee. That does not make the attorney the decision-maker. To the extent that plaintiffs believe the City will mention the consultation at trial and thus allow the jury to unfairly infer that the City is claiming advice of counsel as a defense, plaintiffs can address the issue by filing a motion in limine.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal IA

Chapter: 25.603
Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 66 N.Y.S. 3d 135, 2018 N.Y. App. Div. LEXIS 85 (N.Y. App. 1d Jan. 4, 2018)
(holding that a businessman waived privilege protection by sending an email to an investor that attributed his lawyer the actions that he intended to take in the future; inexplicably finding a subject matter waiver, although the disclosure occurred in a non-judicial setting; "Siras proffers an email dated March 24, 2016 from Dai to a third-party investor, Lou Ceruzzi, concerning the UBS loan: 'I was about to write, to you this email last Friday but I decided to 'wait until we all sit down with attorneys this morning. It is concluded by legal counsels that we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'"; "I find that Dai waived the attorney-client privilege as to any communications and documents dealing with his counsel's advice that 'we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'. . . Contrary to the cases defendants' 'rely upon, Dai's communication to Ceruzzi goes beyond a client conveying to a third-party the decision to settle an action or withdraw a claim based on advice of counsel. . . . Dai's communication provided a detailed description of specific legal advice and the course of action given to him by his attorneys, which he voluntarily divulged to a third party. Accordingly, defendants are directed to produce any communications and documents 'pertaining to the subject matter of the email.'").; AFFIRMED: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017) (affirming the lower court's subject matter waiver holding; "By disclosing to a third party by email certain advice given to them by counsel, defendants waived the attorney-client privilege as to other documents pertaining to that advice (see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 NY3d 616, 624, 36 N.Y.S. 3d 838, 57 N.E. 3d 30 [2016]; Arkin Kaplan Rice LLP v. Kaplan, 118 AD-3d 492, 988 N.Y.S.2d 22 [1st Dept 2014]).")

Case Date Jurisdiction State Cite Checked
2018-01-04 Federal NY
Comment:

key case


Chapter: 25.603
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; "Plaintiffs also contend that Brownlee [Executive] waived the privilege when he testified, without objection, to the report's specific recommendations during his deposition. Unlike Warren, Brownlee, as part-owner and managing partner of Ergo, has the authority to waive attorney-client privilege on behalf of Ergo. . . During Brownlee's deposition, the following exchanges took place: '(Q): Can you describe for the record what the recommendations were [of the investigation]? (A): That I stay away from the building for six months. (A): I went with the recommendations and I followed it. And I had to pay a fine. (Q): Okay. What was the fine? (A): I think it might be $10,000. (A): I've gone to a therapist. But that was -- oh, that was under the recommendation of the internal investigation."; "By discussing Hartman's specific recommendations -- that Brownlee stay away from Ergo for six months, pay a $10,000 fine, and see a therapist -- Brownlee revealed Hartman's key conclusions and thus disclosed the 'gist' of the report. . . . Brownlee, on behalf of himself and Ergo, cannot reveal important conclusions from the report yet continue to maintain that the report itself is privileged. Hence, the Court concludes that Brownlee waived attorney-client privilege for the internal investigation report.")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 25.603
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 23, 2017 (PRIIVLEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 25.603
Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216 (U) at 3 (N.Y. Sup. Ct. June 5, 2017)
August 9, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part I"

Clients describing their past or intended future actions obviously do not waive their privilege protection – even if the clients are following their lawyers' advice. But clients voluntarily disclosing privileged communications nearly always waive their privilege protection, and can trigger a subject matter waiver. It can be easy to cross that tenuous line.

In Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, defendant business executive sent an email to a third party investor with the following sentence: "I was about to write, to you this email last Friday but I decided to []wait until we all sit down with attorneys this morning. It is concluded by legal counsels that we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise." No. 650868/2015, 2017 NY Slip Op. 31216 (U) at 3 (N.Y. Sup. Ct. June 5, 2017) (emphasis added). The court concluded that defendant's email "provided a detailed description of specific legal advice and the course of action given to him by his attorneys." Id. at 4. Contrary to most case law, the court found a subject matter waiver – and "directed [defendants] to produce any communications and documents 'pertaining to the subject matter of the email.'" Id. (citation omitted).

Defendant presumably would not have waived privilege protection or risked a subject matter waiver if his email had not included the three words "by legal counsels." The fact that defendant met with his lawyers did not deserve privilege protection, and his intended course of action following the meeting likewise did not deserve privilege protection. Clients can describe their intended actions, but should never attribute those to lawyers' advice. Next week's Privilege Point will discuss a similar decision from another court about two weeks later. The Privilege Point after that will discuss the subject matter waiver implications of the decisions described here and in the next Privilege Point.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 25.603
Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 23, 2017 (PRIIVLEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 25.603
Case Name: Loop AI Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2017 U.S. Dist. LEXIS 4254 (N.D. Cal. Jan. 11, 2017)
("Sternberg stated in a declaration that 'while [he was] at Orrick, he did not advise anyone about implications arising from Anna Gatti's employment with Loop AI because he was not aware of Ms. Gatti's employment with Loop AI at that time.'. . . Plaintiff cites no authority to support its extraordinary position that an attorney's description of the scope of his work, and the knowledge (or lack thereof) that informed that work, somehow results in waiver of all privileged communications. Sternberg's statement did not waive the attorney-client privilege between Orrick and the Almawave Defendants.")

Case Date Jurisdiction State Cite Checked
2017-01-11 Federal CA

Chapter: 25.603
Case Name: Variety Stores, Inc. v. Wal-Mart Stores, Inc., No. 5:14-CV-217-BO(2), 2016 U.S. Dist. LEXIS 30085 (E.D.N.C. March 9, 2016)
(holding that Wal-Mart's Rule 30(b)(6) witness did not waive the company's privilege protection by testifying management learned from its lawyer about a trademark issue, because the testimony did not disclose the substance of the communications; also finding Wal-Mart had not impliedly waived the privilege, and that it disclaimed any intent to rely on the privilege at trial; "Variety contends that Wal-Mart impliedly waived its attorney-client privilege by allowing its Rule 30(b)(6) deponent to testify that Wal-Mart's Brand Team learned of Variety's registered tradename THE BACKYARD and associated marks from Wal-Mart's legal team. . . . Variety further argues that Wal-Mart waived the privilege by arguing on summary judgment that it acted prudently in vetting potential brand names."; "Wal-Mart has not waived its attorney-client privilege with respect to the information sought by Variety. The deposition testimony of Wal-Mart's Rule 30(b)(6) deponent did not disclose the substance of communications between legal counsel and its client. Nor did Wal-Mart place its attorney's advice in issue by disclosing or describing privileged communications in support of any claim or defense raised by Wal-Mart. Accordingly, the undersigned denies Variety's motion to compel production of the documents to which Wal-Mart has asserted attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-09 Federal NC

Chapter: 25.603
Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 93580 (D. Neb. July 17, 2015)
("And documents that do not disclose the substance of the attorney-client communications, but merely indicate that discussions occurred, legal services were rendered, and documents were provided to the client are not protected by attorney-client privilege.")

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

Chapter: 25.603
Case Name: United States v. Sanmina Corp., Case No.: 5-15-cv-00092-PSG, 2015 U.S. Dist. LEXIS 66123 (N.D. Cal. May 20, 2015)
(rejecting the IRS's discovery of two documents mentioned in a report that DLA Piper sent to the IRS on behalf of its client; "The voluntary production of privileged information may result in a waiver of all communications on the same subject. But Sanmina distributed the attorney memos only to its counsel and accountants. Distribution to DLA Piper did not constitute waiver because DLA Piper was Sanmina's legal counsel, even if DLA Piper sometimes provided non-legal services to Sanmina. Distribution to Sanmina's accountants, or federal tax practitioners, was also privileged, and did not constitute waiver of the attorney client privilege. Furthermore, Sanmina's production of DLA Piper's report to the IRS did not constitute waiver of attorney client privilege, because DLA Piper's mere mention of the existence of the memoranda did not summarize or disclose the content of the memoranda.")

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

Chapter: 25.603
Case Name: Roberts v. Legacy Meridian Park Hosp., Inc., Case No. 3:13-cv-01136-SI, 2015 U.S. Dist. LEXIS 46998 (D. Ore. April 10, 2015)
(finding that a litigant caused an at issue waiver by claiming that his former lawyer lacked authority to settle the case; "The case law is well settled that disclosing the fact that there were confidential communications between a client and his or her attorney -- or even disclosing that certain subjects confidentially were discussed between a client and his or her attorney -- does not constitute a waiver by partial disclosure.")

Case Date Jurisdiction State Cite Checked
2015-04-10 Federal OR

Chapter: 25.603
Case Name: Perino v. Edible Arrangements Int'l, Inc., Civ. No. 3:13CV1411 (JBA), 2015 U.S. Dist. 39131 (D. Conn. March 27, 2015)
(finding that the privilege protected a forensic audit of plaintiff's alleged misconduct prepared by an outside accounting firm retained by a lawyer; also finding that the defendant did not waive the privilege by mentioning the report in press releases, because it did not intend to rely on the report at trial; "At the March 2 conference, defendant represented that it was not relying on the subject report in support of its defense and that defendant had maintained the confidentiality of the report. Further, to the extent that plaintiff relies on Mr. Farid's reference of the report to the media, the Court finds that the reference does not reveal the specifics of the report, and if anything, more corresponds to a party generally consulting with counsel.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal CT

Chapter: 25.603
Case Name: Becker v. Willamette Community Bank, 6:12-cv-01427-TC, 2014 U.S. Dist. LEXIS 88616, *10 n.2 (D. Ore. June 20, 2014)
(analyzing a situation in which plaintiff was interviewed by a bank's in house lawyer when her superior sued the bank, after which the bank fired her for helping the superior; holding that the plaintiff owned any privilege protection that covered her interview; "There is a fundamental difference between counsel informing corporate officers that 'I interviewed employee Smith and he will give favorable testimony for the plaintiff in her lawsuit against the Company so we should consider settling the case' and counsel informing officers in connection with the Company's performance evaluation of Smith that the employee would have given testimony that was detrimental to the Company. The former is legal advice and is privileged. The latter (without more of a showing) is not legal advice and is beyond the scope and purpose of the privilege.")

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

Chapter: 25.603
Case Name: Carshall v. LeFlore County Det. Ctr. Pub. Trust, Case No. 13-CV-274-JHP Lead Case Consolidated with Case No. 14-CV-24-JHP Member Case, 2014 U.S. Dist. LEXIS 64157, at *6 (E.D. Okla. June 20, 2014)
("[A] client does not waive the attorney-client privilege merely by disclosing that she discussed a subject with her attorney so long as the substance of the communication remains confidential. . . . Here, Anderson has merely revealed the fact that she consulted with her attorney regarding problems with Eatmon. She has not revealed the substance of what she discussed with her attorney, Buckles. The privilege is not waived.")

Case Date Jurisdiction State Cite Checked
2014-06-20 Federal OK

Chapter: 25.603
Case Name: DeWitt v. Sw. Bell Tel. Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17-18 (D. Kan. Feb. 24, 2014)
(finding that a plaintiff had not triggered an at issue waiver by answering questions about communications with her lawyer, and that defendant had not triggered an at issue waiver by asserting "good faith" defenses; "Typically, a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department. The answers deponents provided were presumably elicited by Ms. DeWitt's counsel in response to questions. These excerpts of testimony from unidentified deponents lack any context supporting a conclusion that Southwestern Bell made an affirmative act that put at issue reliance on counsel's advice.")

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal KS B 7/14

Chapter: 25.603
Case Name: DeWitt v. Southwestern Bell Telephone Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014)
May 7, 2014 (PRIVILEGE POINT)

"Is it Possible to Gain the Advantage of an "Advice of Counsel" Defense Without Suffering the Waiver Consequences?"

The logistics of privileged communications generally do not deserve protection – so a company executive can testify that she obtained a lawyer's advice without risking a waiver. See, e.g., Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014) (finding that a plaintiff had not waived privilege protection by testifying at a deposition that "she had conversations with" her lawyer). However, a company would clearly waive privilege protection by affirmatively asserting an "advice of counsel" defense. Can a company "thread the needle" by presenting the logistical facts to the jury with the hope that it will essentially give the company the advantage of the defense – without its cost?

In DeWitt v. Southwestern Bell Telephone Co., plaintiff argued that Southwestern waived its privilege when employees testified that "they took certain actions after they 'cleared it with legal' or 'got approval from legal.'" Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014) (internal citation omitted). The court rejected plaintiff's argument, concluding that "a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department." Id. The court also rejected plaintiff's argument that Southwestern Bell waived its privilege by filing defenses pointing to the company's "good faith" handling of plaintiff's disability. The court noted that Southwestern pledged "that at trial it 'does not intend to offer or rely on evidence of the substance of any legal advice it received concerning the disciplinary actions taken against Plaintiff.'" Id. at *19 (internal citation omitted). This promise pointedly dealt only with the "substance of" legal advice, not the logistics of company executives' interactions with the law department.

Some courts would expect companies hoping to avoid a waiver to explicitly disclaim any intent to affirmatively introduce at trial either the "substance" or the fact of such privileged communications.

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal KS
Comment:

key case


Chapter: 25.603
Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014)
May 7, 2014 (PRIVILEGE POINT)

"Is it Possible to Gain the Advantage of an "Advice of Counsel" Defense Without Suffering the Waiver Consequences?"

The logistics of privileged communications generally do not deserve protection – so a company executive can testify that she obtained a lawyer's advice without risking a waiver. See, e.g., Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014) (finding that a plaintiff had not waived privilege protection by testifying at a deposition that "she had conversations with" her lawyer). However, a company would clearly waive privilege protection by affirmatively asserting an "advice of counsel" defense. Can a company "thread the needle" by presenting the logistical facts to the jury with the hope that it will essentially give the company the advantage of the defense – without its cost?

In DeWitt v. Southwestern Bell Telephone Co., plaintiff argued that Southwestern waived its privilege when employees testified that "they took certain actions after they 'cleared it with legal' or 'got approval from legal.'" Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014) (internal citation omitted). The court rejected plaintiff's argument, concluding that "a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department." Id. The court also rejected plaintiff's argument that Southwestern Bell waived its privilege by filing defenses pointing to the company's "good faith" handling of plaintiff's disability. The court noted that Southwestern pledged "that at trial it 'does not intend to offer or rely on evidence of the substance of any legal advice it received concerning the disciplinary actions taken against Plaintiff.'" Id. at *19 (internal citation omitted). This promise pointedly dealt only with the "substance of" legal advice, not the logistics of company executives' interactions with the law department.

Some courts would expect companies hoping to avoid a waiver to explicitly disclaim any intent to affirmatively introduce at trial either the "substance" or the fact of such privileged communications.

Case Date Jurisdiction State Cite Checked
2014-02-20 Federal CT
Comment:

key case


Chapter: 25.603
Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *14, *17 (D. Conn. Feb. 20, 2014)
(finding that plaintiff had not waived the attorney-client privilege by testifying about an action her lawyer had taken, as follows: "(Q): "'Did you ask Mr. Beebe [Plaintiff's lawyer] to send a letter to State Farm telling them that he had made a mistake?"; "(A): He had answered me in that he said, I will only go up until the date of termination. I don't know any correspondence that may have occurred afterwards or conversation to correct that.'"; "[T]he Court agrees with plaintiff that no waiver of the attorney-client privilege occurred. A careful review of the applicable deposition testimony fails to reveal disclosure of specific and/or the significant substance of privileged communications. In fact, it is apparent that plaintiff only testified in general terms about her conversations with Attorney Beebe. For example, plaintiff testified about her 'understanding' following a meeting with Attorney Beebe . . . and that Attorney Beebe was aware of her physical problems . . . . Plaintiff did not, however, testify as to any specific legal advice Attorney Beebe provided her with respect to her personal injury claim, or his legal conclusions and the facts on which those conclusions were based.")

Case Date Jurisdiction State Cite Checked
2014-02-20 Federal CT B 7/14

Chapter: 25.603
Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *23-24 (D. Kan. Feb. 11, 2014)
(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "But the court agrees with Sprint that the 'ultimate legal conclusions of a party are always implicated at a trial, because it is those conclusions that lead parties to file and pursue lawsuits.' The court does not believe that this is the type of substantive communication that privilege protects. Sprint did not reveal its attorney's reasoning and analysis behind these conclusions (which might be protected by the attorney-client privilege or work-product doctrine). Defendants have cited no case holding that disclosure of a legal conclusion at trial waives privilege as to specific communications about the legal conclusions." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal KS B 7/14

Chapter: 25.603
Case Name: Safety Dynamics Inc. v. Gen. Star Indem. Co., No. CV-09-00695-TUC-CKJ (DTF), 2014 U.S. Dist. LEXIS 9045, at *6, *7, *12-13, *12 n.3 (D. Ariz. Jan. 24, 2014)
(finding that a litigant claiming good faith as a defense to a bad faith claim did not trigger an at issue waiver under Hearn (Hearn v. Rhay, 68 F.R.D. 574 (1975)); "While Defendant raised an affirmative defense of good faith in response to the claim of bad faith brought by Plaintiff, the mere filing of a bad faith action or the affirmative claim of good faith do not by themselves constitute an implied waiver of the attorney client privilege."; "While Mr. Fanelli's deposition testimony indicates that he sought the advice of counsel during the claims process, the fact that he conferred with counsel about an issue arising in an ongoing litigation does not waive the privilege. . . . The mere fact that a litigant confers with counsel and takes actions based on counsel's advice does not waive the attorney client privilege."; "This Court disagrees with Magistrate Judge Ferraro's conclusion that Defendant does not have to produce a privilege log unless its non-privilege based objections are unfounded. . . . This Court has not identified any authority in the Ninth Circuit that creates an exception to this rule for parties that raise multiple objections in addition to privilege to a single request for documents."; "'Defendants argues that since it objected to the scope of some discovery requests, it should not be required to log all privileged documents that may fall within the objectionable scope of the request. However, in situations where it may be unduly burdensome to specifically identify each privileged document, due to the amount of documents claimed to be privileged, a party may identify privileged documents by categories as long as it's still consistent with federal law.'")

Case Date Jurisdiction State Cite Checked
2014-01-24 Federal AZ B 6/14

Chapter: 25.603
Case Name: Montanez v. Publix Super Markets, Inc., 135 So. 3d 510, 512-13 (Fla. Dist. Ct. App. 2014)
("We also reject Publix's argument that Montanez waived the attorney-client privilege by stating that the response to paragraph 10(c) set forth in her answers to interrogatories was not 'her' answer. At no time in her deposition did Montanez disclose her communications with her attorney regarding the preparation of her answers to interrogatories other than to indicate that the answer she had prepared to interrogatory 10(c) was different than the one served on Publix. We would further observe that interrogatory 10(c) did not require an answer based solely on matters within Montanez' personal knowledge. Indeed, the question called for Montanez to 'provide all facts which form the basis for the allegations within your Complaint.' . . . Thus, contrary to Publix' argument to the trial court, Montanez' interrogatory answer was not necessarily inconsistent with her deposition testimony.")

Case Date Jurisdiction State Cite Checked
2014-01-01 State FL B 8/14

Chapter: 25.603
Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal NY
Comment:

key case


Chapter: 25.603
Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal NY
Comment:

key case


Chapter: 25.603
Case Name: Prewitt v. Walgreens Co., Civ. A. No. 11-02393, 2013 U.S. Dist. LEXIS 169354, at *6 (E.D. Pa. Dec. 2, 2013)
(finding that deposition testimony about the fact of an executive's communication with a lawyer did not deserve privilege protection, so the disclosure did not trigger a waiver; "I agree with defendant that, throughout his testimony, Mr. Anderson merely revealed the fact of a communication with counsel without revealing the substance of that communication.")

Case Date Jurisdiction State Cite Checked
2013-12-02 Federal PA B 5/14

Chapter: 25.603
Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisdiction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 25.603
Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013)
February 12, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part I"

All but a handful of courts find that companies disclosing privileged communications or protected work product to the government waive both of those protections. Courts properly analyzing waiver rules also recognize that disclosing historical facts does not cause a waiver – because historical facts are not privileged.

In two related cases, Judge Francis of the Southern District of New York dealt with the intersection of these basic principles. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013), Weatherford retained Latham & Watkins and Davis Polk to conduct two separate corporate investigations into material weaknesses in the company's internal controls over financial reporting. The court acknowledged that both investigations deserved work product protection. However, the court also found that the company waived its privilege and fact (but not opinion) work product protection by disclosing information about the investigations to the SEC. In defining the scope of the resulting waiver, the court (1) rejected plaintiffs' argument that the waiver extended to "all materials relevant" to the investigations; (2) found that the waiver covered any material actually given to the SEC, and any oral representations company lawyers made to the SEC; and (3) held that the waiver also extended to any "underlying factual material explicitly referenced" in such material or representations. Id. At *28, *27.

Perhaps not surprisingly, the parties soon disagreed about the company's interpretation of the waiver's scope – which resulted in another opinion one month later. The next two Privilege Points describe that decision.

Case Date Jurisdiction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 25.603
Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisdiction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 25.603
Case Name: Yarberry v. Gregg Appliances, Inc., Case No. 1:12-cv-611, 2013 U.S. Dist. LEXIS 117198, at *8-9, *12, *12-13 (S.D. Ohio Aug. 19, 2013)
("hhgregg [defendant's parent company] asserts that the Ms. Bush's [Associate Relations Manager] notes are not privileged information and, thus, cannot support Plaintiff's waiver argument. The notes contained on the email concerning Plaintiff's proposed termination letter state, in toto: 'advised 2 proceed w/term but HR will send revised verbiage' and 'TT Stuart...proceed w/term.'"; "Thus, the fact that an attorney has examined a matter or a release of the findings of a special report does not result in waiver of the privilege. As such, a mere acknowledgment that an attorney has looked into a particular question which does not divulge the subject matter of the attorney's whole line of inquiry does not waive attorney-client privilege. . . . Likewise, a release of a report's findings, without revealing the facts that led to the findings does[] not divulge the subject matter of that report and does not waive attorney-client privilege."; "Under the standards set forth in Grand Jury Proceedings October 12, 1995, [78 F.3d 251 (6th Cir. 1996),] the undersigned finds that Ms. Bush's handwritten notes on the email chain do not operate to waive hhgregg's attorney-client privilege. Ms. Bush's notes do not reveal the substance of Mr. Buttrick's advice, any facts upon which Mr. Buttrick's[sic] based his advice upon, nor his reasoning behind his advice.")

Case Date Jurisdiction State Cite Checked
2013-08-19 Federal OH B 4/14

Chapter: 25.603
Case Name: Elat v. Ngoubene, Civ. Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 116275, at *19 (D. Md. Aug. 16, 2013)
(holding that the common interest doctrine protected communications among family members; "Plaintiff contends that Caroline Ngoubene disclosed in her deposition that 'she and her family were surprised when they learned that Caroline, Roxane, and Dany Ngoubene would be named parties to the lawsuit,' and she 'recall[ed] suggesting that the family members should get attorneys.'. . . Based on that disclosure, Plaintiff argues that Defendants must disclose all other communications amongst them. . . . Yet, this disclosure was non-substantive, and therefore it cannot be said to function as a sword. Consequently, there is no subject matter waiver, and Defendants may still raise the shield of the common interest rule.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal MD B 4/14

Chapter: 25.603
Case Name: Synygy, Inc. v. ZS Assocs., Inc., Civ. A. No. 07-3536, 2013 U.S. Dist. LEXIS 106109, at *5, *7, *7-8 (E.D. Pa. July 29, 2013)
("ZS and ZSAI have not set forth any evidence to support a finding that, prior to Stiffler's [plaintiff's CEO] deposition, Synygy had asserted advice of counsel as a defense to ZS's and ZSAI's claims that the press release was defamatory, commercially disparaging and in violation of the Lanham Act."; "After review of the relevant deposition excepts, I find that it was counsel for ZS and ZSAI and not Stiffler who first raised the issue of whether Synygy had relied on the advice of its counsel in choosing the language included in the press release."; "Upon further questioning, Stiffler explained that the release 'was vetted by legal counsel,' . . . prompting counsel for ZS and ZSAI to ask, '[s]o you're saying that legal counsel chose the word 'theft?' . . . Counsel for Synygy objected and Stiffler answered that he was 'saying that legal counsel allowed the word to be sent in a press release.' . . . Counsel for ZS and ZSAI then asked '[y]ou're not blaming legal counsel for the contents of this release, are you?' . . . Siffler answered, '[n]o, I'm - lawyers are never to blame.'" (internal citation omitted); "I agree with Synygy that, in his testimony, 'Mr. Stiffler merely revealed the fact of a communication with counsel without revealing the substance of that communication.' . . . His testimony does not support a conclusion that he 'ha[d] made the decision and taken the affirmative step in the litigation to place the advice of the attorney in issue.' . . . Nor does it support a finding that Stiffler had a 'clear intent to waive the attorney-client privilege . . . .' . . . Accordingly I will deny ZS and ZSAI's motion to compel on the basis of my finding that Synygy has not waived the attorney-client privilege by relying on advice of counsel.")

Case Date Jurisdiction State Cite Checked
2013-07-29 Federal PA B 5/14

Chapter: 25.603
Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 368 (Ill. 2012)
(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "[W]hile Stefanek [CFO of one defendant] did testify to legal advice received from Westfield's attorneys about the synthetic partnership, he did not testify as to the actual content and basis of the legal advice.")

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

Chapter: 25.603
Case Name: In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal
Comment:

key case


Chapter: 25.604
Case Name: Sky Angel U.S., LLC v. Discovery Communications, LLC, No. 16-2050, 2018 U.S. App. 6414 (4th Cir. March 15, 2018)
(holding that testimony did not waive privilege protection unless it disclosed privileged communications; "Like the district court, we fail to see what privileged information was disclosed by the employees. It's true that the Myers Memo and the trial testimony relate to Discovery's knowledge of Sky Angel's distribution method, but that doesn't mean the latter is based on privileged information. Sky Angel says the testimony relied on the contents of the Memo, but there's no record support for that claim. We also decline to infer this fact merely because Discovery sought legal advice on the same topic as its employees' testimony. Sky Angel must prove the disclosure of a communication in confidence between a lawyer and a client related to legal advice. . . . Because it failed to do so, we decline to upset the district court's ruling.")

Case Date Jurisdiction State Cite Checked
2018-03-15 Federal
Comment:

key case


Chapter: 25.604
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "The SEC also asked for the investigative findings, and ML provided the SEC with information about its findings, including a presentation prepared for the SEC and information about specific witness interviews, which were provided orally. An April 15, 2013 PowerPoint presentation that ML made to the SEC contained, among other things, an events timeline, the names of witnesses whom ML had already interviewed, a breakdown of the transactions deemed to be at the heart of the accounting discrepancy, and the results of its investigation. This 28-page PowerPoint presentation is now in the public record of this lawsuit, as Defendants filed it as an exhibit to their motion.";"On October 29, 2013, ML attorneys met with SEC staff and provided oral downloads of 12 witness interviews."; ". . . Although ML provided the SEC with oral downloads of only 12 witness interviews, it provided Deloitte with information about all the interviews notes and memoranda. It appears as though this was accomplished through the reading (by an ML attorney) of memoranda and interview notes to Deloitte and generalized 'access' to review interview notes selected by Deloitte's investigative team."; "There is no dispute here that the notes and memoranda prepared by ML attorneys are in fact work product material. Rather, the dispute is over the waiver of the work-product doctrine protection."; ""ML does not contend that it provided only vague references of the witness notes and memoranda to the SEC, nor does it argue that only detail-free conclusions or general impressions were orally provided. To the contrary, it factually concedes that its attorneys provided oral downloads of the substance of the 12 witness interview notes and memos."; "ML also argues that Defendants' claim -- that they seek to "level the playing field" -- is an argument which "rings hollow" because "the SEC does not have what the Defendants are seeking.". . But that is an incomplete argument. Yes, it is true that the SEC does not have the actual witness notes and memoranda -- but it has the functional equivalent of them by receiving the oral summaries of the interview materials."; "ML waived work-product protection for the witnesses whose interview notes and memoranda its attorneys disclosed to the SEC in the so-called 'oral downloads.' Defendants advise that 'at least twelve' interview memos were orally relayed . . . so the Undersigned is using that number, as well. If it turns out that ML provided information to the SEC about other witness interviews besides the 12 already identified, then it shall disclose to Defendants the additional notes and memoranda. ML shall provide the notes and memoranda within 7 days of this Order."; "Because there is little or no substantive distinction for waiver purposes between the actual physical delivery of the work product notes and memoranda and reading or orally summarizing the same written material's meaningful substance to one's legal adversary, the Undersigned concludes that the Morgan Lewis & Bockius LLP law firm ('ML') waived work product protection and must provide to Defendants the interview notes and memoranda that were orally downloaded. To that extent, the Undersigned grants Defendants' motion to compel against ML. . . . The waiver, however, is limited to only the witnesses whose interview notes and memoranda were orally provided, which is far less than all the witnesses ML interviewed.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 25.604
Case Name: Ochoa v. Santa Clara County Ofc. of Ed., Case No. 16-cv-03283-HRL, 2017 U.S. Dist. LEXIS 191844 (N.D. Cal. Nov. 20, 2017)
("Here, to the extent that Defendants are offering the testimony of White and Noack [Defendant's outside lawyers] as part of an advice of counsel defense, the Court grants Ochoa's motion. Defendants did not properly assert this defense in their answer or their motion for summary judgment. Further, Defendants asserted attorney-client privilege as to much of the substance of the communications between Gordillo and White and Noack. Attorney-client privilege may not be used as a shield during discovery, and then a sword in the run-up to trial. . . ."; "However, Defendants may present the non-privileged aspects of the communications between Gordillo [Defendant's human resources manager] and White and Noack (i.e., the fact that the communications occurred, when they occurred, and the subject of those communications, as described in the privilege log). Defendants produced this information to Ochoa during discovery, and the timing of these communications is probative of Defendants' assertion that Ochoa's dismissal was not the result of retaliation."; "To summarize the Court's ruling, Defendants may not offer the testimony of White and Noack as part of a belated advice of counsel defense. Further, White and Noack may not testify to the substance of their communications with Defendants (the previously-redacted portions of the March 2017 e-mail production). The two witnesses may testify only to the fact that the communications occurred, when they occurred, and the general subject matter of the communications.")

Case Date Jurisdiction State Cite Checked
2017-11-20 Federal CA
Comment:

key case


Chapter: 25.604
Case Name: SEC v. Roberts, No. C 07-04580 MHP, 254 F.R.D. 371, 2008 U.S. Dist. LEXIS 64615 (N.D. Cal. Aug. 22, 2017)
(analyzing Howrey's disclosures to its corporate client's board of directors and to the government about the results of its internal corporate investigation; explaining that Howrey carefully limited its disclosure in some circumstances to historical facts, but in other circumstances answered questions about privileged communications Howrey had with witnesses; "The court now turns to whether the information orally provided effectuated a waiver, and if so, the scope of the waiver."; "Howrey vehemently maintains that other than the documentary disclosures made during the presentations, Howrey's oral disclosures were limited to confirming specific factual information contained in the PowerPoint presentation or underlying source documents, as well as responding to specific questions about what certain witnesses said about those non-privileged documents. It contends the answers regarding the witnesses were limited to facts and did not reveal the attorneys' thoughts or mental impressions. Specifically, it contends the presentation described the scope and methodology of the investigation while highlighting key unprivileged documents and emails to set forth the underlying facts regarding problematic stock option grants."; "Indeed, other than the Board meeting minutes outlined above there is no evidence of Howrey conclusions and analysis being revealed. Further, the fact that Howrey took meticulous precautions to create a presentation based only on non-privileged documents lends credibility to Howrey's assertion."; "Nevertheless, Howrey did answer the Board's and the government's questions during the presentations as to what certain witnesses said during their interview. Howrey claims to have done so without referring to the notes, reviewing them prior to the presentation or bringing the notes to the presentation. There is evidence, however, that Howrey attorneys referred to their interview notes prior to some other communications with the government. There is evidence of this with respect to at least four witnesses. . . . Howrey attorneys referred to the interview notes when answering the government's questions. Specifically, they verified certain factual information regarding what the witnesses Radke, Snook and Koopman had told the Howrey attorneys. . . . The information disclosed in the e-mails regarding Radke, Snook and Koopman, however, only disclose the witness' factual assertions, not the attorneys' mental impressions or conclusions. Indeed, there is no evidence that Howrey volunteered the substance of its impressions and opinions regarding the witness interviews. It simply answered factual questions posed by the government regarding the witnesses."; "Here, factors weighing in favor of disclosure are: (1) reference to the interview notes before releasing factual information to the government; (2) an 'admission' that the substance of the interviews was disclosed; and (3) alleged disclosure, without evidentiary support, of the attorneys' conclusions and analysis during the multiple presentations made by Howrey's attorneys where they discussed improprieties and erroneous option grants. On the other hand, factors weighing against disclosure are: (1) when questioned, Howrey attorneys only revealed specific facts from the interviews, not their mental impressions and opinions nor did they reveal the questions asked of the witnesses and answers given; (2) reference to the interview notes were made only to confirm or deny facts; (3) the vagueness of the purposed admission; (4) the attenuated nature of the attorneys' conclusion from their interview notes; (5) the availability of the witnesses to Mr. Roberts to interview for himself; and (6) disclosure, if any, was indirect. Weighing the circumstances, the court does not find a waiver of the privileges with respect to meeting notes pertaining to individuals for whom there is no evidence of disclosure.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal CA

Chapter: 25.604
Case Name: United States v. Heine, Case No. 3:15-cr-00238-SI-2, 2016 U.S. Dist. LEXIS 44397, at *32 (D. Ore. Mar. 31, 2016)
("Unlike the voluntary disclosure of the Report and Back-up Materials in Bergonzi [United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003)], the Bank produced to the FBI, or in response to grand jury subpoenas, only non-privileged information. Because the information provided to the FBI or the grand jury did not contain the Bank's confidential attorney-client communications, the Bank has not waived its attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-31 Federal OR B 8/16

Chapter: 25.604
Case Name: Klemp v. Columbia Collection Serv., Inc., No. 3:13-cv-01577-PK, 2014 U.S. Dist. LEXIS 6248, at *10 (D. Ore. Jan. 17, 2014)
("I find that Mr. Schumacher's [Defendant's lawyer] communications with Columbia regarding his communications with the court clerk are not privileged. The information that Mr. Schumacher received from the court clerk is public information -- the same information that Columbia would have received had Columbia, rather than Mr. Schumacher, contacted the court clerk. Such a communication is not protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-01-17 Federal OR B 6/14

Chapter: 25.604
Case Name: Yarberry v. Gregg Appliances, Inc., Case No. 1:12-cv-611, 2013 U.S. Dist. LEXIS 117198, at *8-9, *12, *12-13 (S.D. Ohio Aug. 19, 2013)
("hhgregg [defendant's parent company] asserts that the Ms. Bush's [Associate Relations Manager] notes are not privileged information and, thus, cannot support Plaintiff's waiver argument. The notes contained on the email concerning Plaintiff's proposed termination letter state, in toto: 'advised 2 proceed w/term but HR will send revised verbiage' and 'TT Stuart...proceed w/term.'"; "Thus, the fact that an attorney has examined a matter or a release of the findings of a special report does not result in waiver of the privilege. As such, a mere acknowledgment that an attorney has looked into a particular question which does not divulge the subject matter of the attorney's whole line of inquiry does not waive attorney-client privilege. . . . Likewise, a release of a report's findings, without revealing the facts that led to the findings does[] not divulge the subject matter of that report and does not waive attorney-client privilege."; "Under the standards set forth in Grand Jury Proceedings October 12, 1995, [78 F.3d 251 (6th Cir. 1996),] the undersigned finds that Ms. Bush's handwritten notes on the email chain do not operate to waive hhgregg's attorney-client privilege. Ms. Bush's notes do not reveal the substance of Mr. Buttrick's advice, any facts upon which Mr. Buttrick's[sic] based his advice upon, nor his reasoning behind his advice.")

Case Date Jurisdiction State Cite Checked
2013-08-19 Federal OH B 4/14

Chapter: 25.604
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that WilmerHale did not waive the privilege or work product protection covering its documents by disclosing facts to the plaintiffs (although not clearly explaining that its conclusion covered both the privilege and the work product protections); "Plaintiffs first note that after Per Eckholdt's deposition, Defendants affirmatively waived the privilege with respect to Exhibit 13, an internal email transmitting a tabular arrangement of factual data that had been requested by WilmerHale. The fact that Defendants withdrew the privilege as to a strictly factual and non-privileged document, however, does not waive the privilege as to all WilmerHale materials. . . . For similar reasons, Defendants' production of two other factual documents is insufficient to waive the privilege. The first is an internal email forwarding an email addressed to an attorney, which 'merely identifies and attaches a tabular array of nonprivileged pre-existing factual information.'. . . The second is an internal Household presentation that includes a reference to 'estimates' having been prepared at WilmerHale's request, but does not include or describe those estimates."; also noting that WilmerHale disclaimed any intent to rely on its documents; "As for Plaintiffs' concern that Defendants are attempting to use favorable portions of the WilmerHale materials as a sword while simultaneously withholding unfavorable portions under the work product shield, the court notes that Defendants do not intend to use the Restructuring Report, or any of the underlying privileged documents, in its defense in this case.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 25.605
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "The SEC also asked for the investigative findings, and ML provided the SEC with information about its findings, including a presentation prepared for the SEC and information about specific witness interviews, which were provided orally. An April 15, 2013 PowerPoint presentation that ML made to the SEC contained, among other things, an events timeline, the names of witnesses whom ML had already interviewed, a breakdown of the transactions deemed to be at the heart of the accounting discrepancy, and the results of its investigation. This 28-page PowerPoint presentation is now in the public record of this lawsuit, as Defendants filed it as an exhibit to their motion.";"On October 29, 2013, ML attorneys met with SEC staff and provided oral downloads of 12 witness interviews."; ". . . Although ML provided the SEC with oral downloads of only 12 witness interviews, it provided Deloitte with information about all the interviews notes and memoranda. It appears as though this was accomplished through the reading (by an ML attorney) of memoranda and interview notes to Deloitte and generalized 'access' to review interview notes selected by Deloitte's investigative team."; "There is no dispute here that the notes and memoranda prepared by ML attorneys are in fact work product material. Rather, the dispute is over the waiver of the work-product doctrine protection."; ""ML does not contend that it provided only vague references of the witness notes and memoranda to the SEC, nor does it argue that only detail-free conclusions or general impressions were orally provided. To the contrary, it factually concedes that its attorneys provided oral downloads of the substance of the 12 witness interview notes and memos."; "ML also argues that Defendants' claim -- that they seek to "level the playing field" -- is an argument which "rings hollow" because "the SEC does not have what the Defendants are seeking.". . But that is an incomplete argument. Yes, it is true that the SEC does not have the actual witness notes and memoranda -- but it has the functional equivalent of them by receiving the oral summaries of the interview materials."; "ML waived work-product protection for the witnesses whose interview notes and memoranda its attorneys disclosed to the SEC in the so-called 'oral downloads.' Defendants advise that 'at least twelve' interview memos were orally relayed . . . so the Undersigned is using that number, as well. If it turns out that ML provided information to the SEC about other witness interviews besides the 12 already identified, then it shall disclose to Defendants the additional notes and memoranda. ML shall provide the notes and memoranda within 7 days of this Order."; "Because there is little or no substantive distinction for waiver purposes between the actual physical delivery of the work product notes and memoranda and reading or orally summarizing the same written material's meaningful substance to one's legal adversary, the Undersigned concludes that the Morgan Lewis & Bockius LLP law firm ('ML') waived work product protection and must provide to Defendants the interview notes and memoranda that were orally downloaded. To that extent, the Undersigned grants Defendants' motion to compel against ML. . . . The waiver, however, is limited to only the witnesses whose interview notes and memoranda were orally provided, which is far less than all the witnesses ML interviewed.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 25.605
Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "The Special Master correctly observed that there is a distinction between the results of the investigation and the investigation itself and that reliance on the facts learned in the investigation, when offered from a source other than the investigator, does not put the investigation in issue. . . . When an employer asserts the so-called Faragher/Ellerth defense, the adequacy of its investigation is relevant to the issue of the adequacy of its corrective actions. In this case, however, the adequacy of plaintiff's investigation simply has no relationship to any of the issues in the case.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY

Chapter: 25.605
Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "Although Mitre's attaching the products of its investigation to its complaint seems to have been done more for public relations reasons than legal reasons, Mitre's pleading does not put the investigation in issue. The complaint is not evidence, and Mitre cannot offer it as such.")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 25.605
Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "HBO argues that Mitre waived work-product protection by (1) permitting James Boocock to testify to certain matters concerning Mitre's investigation and designating that testimony as its 30(b)(6) testimony and (2) by attaching the products of its investigation to its complaint."; "Boocock's answering HBO's deposition questions did not put Mitre's investigation in issue for the simple reason that providing such testimony was not an attempt by Mitre to use protected information to influence a decision maker. In many cases, the vast majority of deposition testimony taken in discovery is never put before any decision maker; frequently, only a small fraction of the deposition testimony taken in a case is cited in connection with a summary judgment motion or offered at trial. Thus, the mere fact that a party makes a partial disclosure of privileged or protected information in a deposition does not result in a subject-matter waiver because there is no use of the testimony by the party holding the privilege."; "HBO's second argument concerning Boocock's testimony -- that Mitre has made affirmative use of the testimony by designating portions as Mitre's 30(b)(6) testimony does not alter this result. The authorities cited above teach that the critical inquiry is whether protected information has been partially disclosed to a decision maker in an effort to influence a decision. A party's deposition testimony, whether from an individual witness or a 30(b)(6) witness, does not constitute such a use. Although HBO argues that Mitre is trying to utilize the work-product doctrine as both a sword and a shield, it has not cited any instance in which Mitre affirmatively used Boocock's testimony and has not, therefore, established Mitre's use of the work-product doctrine as a sword."; "'I am aware that subsequent to Boocock's deposition, the parties have submitted voluminous materials in connection with their motions for summary judgment. However, HBO does not cite any instances in which Mitre has made any affirmative use of Boocock's testimony in connection with these motions.'")

Case Date Jurisdiction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 25.605
Case Name: Lebbon v. City of Peoria, No. CV-12-00921-PHX-GMS, 2013 U.S. Dist. LEXIS 13146 (D. Ariz. Jan. 31, 2013)
March 27, 2013 (PRIVILEGE POINT)

"Can Disclosure of Historical Facts Ever Waive the Privilege?"

Historical facts do not deserve attorney-client privilege protection, although the privilege can shield from discovery communications between clients and their lawyers about those facts. In situations involving internal corporate investigations, this basic principle normally allows disclosure to the government of historical facts uncovered in the investigation – without fear of waiving any privilege protection.

Unfortunately, some courts' ambiguous language seems to cast doubt on this axiomatic principle. In Lebbon v. City of Peoria, No. CV-12-00921-PHX-GMS, 2013 U.S. Dist. LEXIS 13146 (D. Ariz. Jan. 31, 2013), defendant City of Peoria conducted an investigation. When plaintiff sought documents relating to the investigation, the court held that the City had waived privilege protection when it "disclosed the contents of the 2010 Investigation" to the plaintiff. Id. At *2. The court later reiterated that the City "disclosed the contents of the 2010 Investigation by citing to factual findings from the Investigation." Id. At *3. As in other cases using such imprecise language, it is unclear whether the City actually turned over a portion of the investigation report, quoted from privileged communications that took place during the investigation, or simply recited historical facts that were uncovered or compiled during the investigation. Under standard privilege principles, the first two acts might have waived privilege and work product protection, but simply reciting historical facts should not have waived either protection.

Such ambiguous language in this and other cases is unfortunate, given the importance of internal corporate investigations and the incentive companies frequently have to disclose historical facts to forestall some governmental action.

Case Date Jurisdiction State Cite Checked
2013-01-31 Federal AZ
Comment:

key case


Chapter: 25.605
Case Name: Lebbon v. City of Peoria, No. CV-12-00921-PHX-GMS, 2013 U.S. Dist. LEXIS 13146, at *2 (D. Ariz. Jan. 31, 2013)
(in a somewhat ambiguous explanation, arguably finding that disclosure of facts uncovering during an investigation waived the attorney-client privilege and the work product doctrine; "Even if Plaintiffs had conceded that the 2010 Investigation was privileged (a fact that they strongly dispute), Defendants waived that privilege when they disclosed the contents of the 2010 Investigation to Plaintiff Cameron Lebbon in a Memo dated May 31, 2011.")

Case Date Jurisdiction State Cite Checked
2013-01-31 Federal AZ B 7/13

Chapter: 25.605
Case Name: Lebbon v. City of Peoria, No. CV-12-00921-PHX-GMS, 2013 U.S. Dist. LEXIS 13146, at *3-4 (D. Ariz. Jan. 31, 2013)
(in a somewhat ambiguous explanation, arguably finding that disclosure of facts uncovering during an investigation waived the attorney-client privilege and the work product doctrine; "Here, Defendants disclosed the contents of the 2010 Investigation by citing to factual findings from the Investigation in their 2011 Memo to Lebbon. . . . By setting out those findings in the Memo, Defendants 'substantially increased the opportunity' for Lebbon to obtain that information. Defendants have thus waived any work product privilege they might have had regarding such information in the 2010 Investigation.")

Case Date Jurisdiction State Cite Checked
2013-01-31 Federal AZ B 7/13

Chapter: 25.605
Case Name: Gruss v. Zwirn, 276 F.R.D. 115, 138, 138-39 (S.D.N.Y. 2011)
(analyzing privilege implication of an internal corporate investigation by Gibson Dunn and Schulte Roth involving alleged financial irregularities at several hedge funds; finding the defendants' assertion of a counterclaim did not trigger an "at issue" waiver; "Plaintiff also asserts that defendants' reliance on the findings of the internal investigations in their asserted counterclaims constitutes a waiver of the privilege. Again, were this argument directed towards the talking points, internal reports, or investor memorandum that have already been disclosed to plaintiff, we would be inclined to agree that there could be a waiver. We are more skeptical, however, of this assertion as directed towards the interview notes and summaries created by the law firms in the course of their investigation."; "Defendants make extensive allegations as to specific instances of Gruss's misconduct, none of which rely solely on the findings of the internal investigations. . . . In any event, while it is true that the Zwirn Entities may have originally learned of some of these alleged facts through the internal investigations, their later reference to those facts does not waive the privilege in the communications whereby they gained that knowledge, any more than an assertion of privilege in a particular attorney client communication protects against disclosure of the underlying facts by those who communicated with the attorney.")

Case Date Jurisdiction State Cite Checked
2011-01-01 Federal NY B 10/12

Chapter: 25.605
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that WilmerHale did not waive the privilege or work product protection covering its documents by disclosing facts to the plaintiffs (although not clearly explaining that its conclusion covered both the privilege and the work product protections); "Plaintiffs first note that after Per Eckholdt's deposition, Defendants affirmatively waived the privilege with respect to Exhibit 13, an internal email transmitting a tabular arrangement of factual data that had been requested by WilmerHale. The fact that Defendants withdrew the privilege as to a strictly factual and non-privileged document, however, does not waive the privilege as to all WilmerHale materials. . . . For similar reasons, Defendants' production of two other factual documents is insufficient to waive the privilege. The first is an internal email forwarding an email addressed to an attorney, which 'merely identifies and attaches a tabular array of nonprivileged pre-existing factual information.'. . . The second is an internal Household presentation that includes a reference to 'estimates' having been prepared at WilmerHale's request, but does not include or describe those estimates."; also noting that WilmerHale disclaimed any intent to rely on its documents; "As for Plaintiffs' concern that Defendants are attempting to use favorable portions of the WilmerHale materials as a sword while simultaneously withholding unfavorable portions under the work product shield, the court notes that Defendants do not intend to use the Restructuring Report, or any of the underlying privileged documents, in its defense in this case.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 25.606
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "The SEC also asked for the investigative findings, and ML provided the SEC with information about its findings, including a presentation prepared for the SEC and information about specific witness interviews, which were provided orally. An April 15, 2013 PowerPoint presentation that ML made to the SEC contained, among other things, an events timeline, the names of witnesses whom ML had already interviewed, a breakdown of the transactions deemed to be at the heart of the accounting discrepancy, and the results of its investigation. This 28-page PowerPoint presentation is now in the public record of this lawsuit, as Defendants filed it as an exhibit to their motion.";"On October 29, 2013, ML attorneys met with SEC staff and provided oral downloads of 12 witness interviews."; ". . . Although ML provided the SEC with oral downloads of only 12 witness interviews, it provided Deloitte with information about all the interviews notes and memoranda. It appears as though this was accomplished through the reading (by an ML attorney) of memoranda and interview notes to Deloitte and generalized 'access' to review interview notes selected by Deloitte's investigative team."; "There is no dispute here that the notes and memoranda prepared by ML attorneys are in fact work product material. Rather, the dispute is over the waiver of the work-product doctrine protection."; ""ML does not contend that it provided only vague references of the witness notes and memoranda to the SEC, nor does it argue that only detail-free conclusions or general impressions were orally provided. To the contrary, it factually concedes that its attorneys provided oral downloads of the substance of the 12 witness interview notes and memos."; "ML also argues that Defendants' claim -- that they seek to "level the playing field" -- is an argument which "rings hollow" because "the SEC does not have what the Defendants are seeking.". . But that is an incomplete argument. Yes, it is true that the SEC does not have the actual witness notes and memoranda -- but it has the functional equivalent of them by receiving the oral summaries of the interview materials."; "ML waived work-product protection for the witnesses whose interview notes and memoranda its attorneys disclosed to the SEC in the so-called 'oral downloads.' Defendants advise that 'at least twelve' interview memos were orally relayed . . . so the Undersigned is using that number, as well. If it turns out that ML provided information to the SEC about other witness interviews besides the 12 already identified, then it shall disclose to Defendants the additional notes and memoranda. ML shall provide the notes and memoranda within 7 days of this Order."; "Because there is little or no substantive distinction for waiver purposes between the actual physical delivery of the work product notes and memoranda and reading or orally summarizing the same written material's meaningful substance to one's legal adversary, the Undersigned concludes that the Morgan Lewis & Bockius LLP law firm ('ML') waived work product protection and must provide to Defendants the interview notes and memoranda that were orally downloaded. To that extent, the Undersigned grants Defendants' motion to compel against ML. . . . The waiver, however, is limited to only the witnesses whose interview notes and memoranda were orally provided, which is far less than all the witnesses ML interviewed.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 25.606
Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "'Target 1 argues that the SCO has not shown that the 2016 FARA Submission contained representations sourced to the Targets themselves rather than to publicly-available sources such as 'media reports, or a corporate registry or similar database,'. . . but even a cursory review of this letter shows otherwise. The 2016 FARA Submission contained representations the Witness could not plausibly have gathered solely from publicly-available sources, such as that the Targets had no agreement to provide the ECFMU services or were counterparties to any service agreements between ECFMU and the GR Companies. . . . The Targets repeated these representations in the 2017 FARA Submission.'")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 25.606
Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "The SCO also contends that the Targets impliedly waived the attorney-client privilege as to the testimony sought from the Witness by disclosing the 2016 and 2017 FARA Submissions to DOJ. The waiver extends to the Targets' specific conversations with the Witness that were released in substance to DOJ in these FARA Submissions."; "Upon sending the FARA Submissions to DOJ, the Targets waived, through voluntary disclosure, any attorney-client privilege in their contents. White, 887 F.2d at 271; In re Subpoenas Duces Tecum, 738 F.2d at 1370; Permian Corp., 665 F.2d at 1219. In fact, the FARA Submissions made specific factual representations to DOJ that are unlikely to have originated from sources other than the Targets, and, in large part, were explicitly attributed to one or both Targets' recollections. . . . Additionally, the Targets impliedly waived the privilege as to their communications with the Witness to the extent that these communications related to the FARA Submissions' contents.")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 25.606
Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
December 27, 2017 (PRIVILEGE POINT)

"Trump-Related Circuit Court Decision Includes Troubling Waiver Analysis"

Because historical facts do not deserve privilege protection, disclosing those facts does not trigger a privilege waiver. Thus, disclosing historical facts to the government should not waive the disclosing client's privilege protection for communications with her lawyer about those facts.

But some decisions take a different, troubling, approach. In In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017), the court ordered former Trump campaign manager Paul Manafort's lawyer to testify before a grand jury. In addition to applying the crime-fraud exception, the court held that the lawyer waived her clients' privilege protection by making representations about historical facts in submissions to the DOJ. The court noted that the lawyer's submissions "made specific factual representations to DOJ that are unlikely to have originated from sources other than [Manafort and a colleague], and, in large part, were explicitly attributed to one or both [of their] recollections." Id. at *32. The court relied on this unsurprising circumstance in holding that the representations "impliedly waived the privilege as to [the clients'] communications with [their lawyer] to the extent that these communications related to the . . . Submissions' contents." Id.

A lawyer's disclosure of historical facts should not strip away privilege protection from the lawyer's communications with her client about those facts.

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 25.606
Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "'Target 1 argues that the SCO has not shown that the 2016 FARA Submission contained representations sourced to the Targets themselves rather than to publicly-available sources such as 'media reports, or a corporate registry or similar database,'. . . but even a cursory review of this letter shows otherwise. The 2016 FARA Submission contained representations the Witness could not plausibly have gathered solely from publicly-available sources, such as that the Targets had no agreement to provide the ECFMU services or were counterparties to any service agreements between ECFMU and the GR Companies. . . . The Targets repeated these representations in the 2017 FARA Submission.'")

Case Date Jurisdiction State Cite Checked
2017-10-02 Federal DC

Chapter: 25.606
Case Name: United States v. Heine, Case No. 3:15-cr-00238-SI-2, 2016 U.S. Dist. LEXIS (D. Ore. March 31, 2016)
(rejecting a former Bank executive's effort to obtain privileged Bank documents in his criminal proceeding; holding that the Bank had not waived its privilege by providing facts to the FBI, or by disclosing protected documents to bank regulators; "The Bank also asserts that several of Yates's requests seek large amounts to documents that are protected by the attorney-client privilege or the work product doctrine, which the Bank does not waive."; "Unlike the voluntary disclosure of the Report and Back-up Materials in Bergonzi [United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003)], the Bank produced to the FBI, or in response to grand jury subpoenas, only non-privileged information. Because the information provided to the FBI or the grand jury did not contain the Bank's confidential attorney-client communications, the Bank has not waived its attorney-client privilege."; "The Bank responds that any disclosures made to the FDIC do not waive the attorney-client privilege because such disclosures are statutorily protected. The Court agrees based on 12 U.S.C. § 1828."; "In addition, the FDIC may share otherwise privileged information with other federal government agencies without waiving any applicable privilege. 12 U.S.C. § 1828(t). Thus, any statements made by the Bank to the FDIC or any documents provided by the Bank to the FDIC cannot constitute a waiver of the Bank's attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-31 Federal OR

Chapter: 25.606
Case Name: United States v. Heine, Case No. 3:15-cr-00238-SI-2, 2016 U.S. Dist. LEXIS (D. Ore. March 31, 2016)
(rejecting a former Bank executive's effort to obtain privileged Bank documents in his criminal proceeding; holding that the Bank had not waived its privilege by providing facts to the FBI, or by disclosing protected documents to bank regulators; "The Bank also asserts that several of Yates's requests seek large amounts to documents that are protected by the attorney-client privilege or the work product doctrine, which the Bank does not waive."; "Unlike the voluntary disclosure of the Report and Back-up Materials in Bergonzi [United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003)], the Bank produced to the FBI, or in response to grand jury subpoenas, only non-privileged information. Because the information provided to the FBI or the grand jury did not contain the Bank's confidential attorney-client communications, the Bank has not waived its attorney-client privilege."; "The Bank responds that any disclosures made to the FDIC do not waive the attorney-client privilege because such disclosures are statutorily protected. The Court agrees based on 12 U.S.C. § 1828."; "In addition, the FDIC may share otherwise privileged information with other federal government agencies without waiving any applicable privilege. 12 U.S.C. § 1828(t). Thus, any statements made by the Bank to the FDIC or any documents provided by the Bank to the FDIC cannot constitute a waiver of the Bank's attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-31 Federal OR

Chapter: 25.606
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; finding that GM did not waive the privilege protection for the underlying material by disclosing facts to the government; "'Based on the interviews, and in order to cooperate with the DOJ investigation, Jenner attorneys 'made oral hypothetical proffers' of 'what certain witnesses might say if the DOJ were to speak with them,' a tactic New GM represents is 'in accord with typical practice in DOJ investigations conducted in the Southern District of New York.'. . . Plaintiff makes no argument that those oral proffers -- which 'were not complete or verbatim recitations of what the witnesses said or of the [Interview Materials]' . . . -- or the intention to make those oral proffers, vitiated the attorney-client privilege.'")

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY

Chapter: 25.606
Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal NY
Comment:

key case


Chapter: 25.606
Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisdiction State Cite Checked
2013-12-16 Federal NY
Comment:

key case


Chapter: 25.606
Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013)
February 26, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part III"

The last two Privilege Points (Part I & Part II) discussed the scope of a privilege and fact work product waiver caused by a company's presentations to the SEC about two internal corporate investigations. The Southern District of New York held that the waiver covered materials or oral representations given to the SEC, as well as "any underlying factual material explicitly referenced in" the materials or representations – but then had to provide additional guidance. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2013).

In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *10 (S.D.N.Y. Dec. 16, 2013), the court addressed plaintiffs' complaint that the company had not fully produced those witness interview summaries that were "explicitly identified, cited, or quoted in information disclosed to the SEC." The company explained that it had produced "only the 'portions of summaries . . . That were . . . Read or conveyed in substantial part to the SEC,'" and redacted the rest. Id. At *12 (internal citation omitted). Criticizing that as a "crabbed view of their discovery obligations," the court ordered the company to produce all factual portions of any such interview summaries -- redacting "only material that reflects an attorney's 'explicit mental impressions, conclusions, opinions or legal theories.'" Id. At *12-13 (citation omitted). In other words, the company had to produce all non-opinion portions of any witness interview summaries the company had quoted to the SEC.

It can be very difficult to reconcile two basic principles: (1) disclosure of privileged communications or work product to the government generally waives those protections; and (2) disclosing historical facts does not waive either protection. As explained in these opinions by widely-respected S.D.N.Y. Judge Francis, companies hoping to avoid a broad waiver when making disclosures to the government should limit their presentations to historical facts – without explicitly referencing, identifying, citing, or quoting any underlying material or witness interviews.

Case Date Jurisdiction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 25.606
Case Name: In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2103)
February 19, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part II"

Last week's Privilege Point described a Southern District of New York decision holding that a company providing information to the SEC about two internal corporate investigations waived privilege and fact work product protection for material or oral representations given to the SEC, and any "underlying factual material explicitly referenced" in such material or representations. In re Weatherford Int’l Sec. Litig., No. 11 Civ. 1646 (LAK (JCF), 2013 U.S. Dist. LEXIS 170559, at *27 (S.D.N.Y. Nov. 5, 2103).

About a month later, the court had to provide additional guidance. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 176278, at *7 (S.D.N.Y. Dec. 16, 2013), the court first focused on "interview materials" Davis Polk lawyers used to create four PowerPoint presentations to the SEC. The court held that the company did not have to produce any interview materials "unless those specific materials are explicitly identified, cited, or quoted in information disclosed to the SEC." Id. At *10. Interestingly, the court rejected plaintiffs' argument that the company crossed that line "where the presentations assert that a particular witness made a statement." Id. At *7. The court acknowledged that such a representation to the SEC obviously implied "that an interview took place" and also provided "a strong inference that it was memorialized in some way" – but ultimately concluded that "plaintiffs have not shown that those memorializations were, themselves, explicitly referenced in communications with the SEC." Id. At *7-8.

The court then turned to the company's redactions in the interview summaries produced in response to the earlier ruling. Next week's Privilege Point will address that analysis.

Case Date Jurisdiction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 25.606
Case Name: In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013)
February 12, 2014 (PRIVILEGE POINT)

"Avoiding Waiver When Disclosing Facts to the Government: Part I"

All but a handful of courts find that companies disclosing privileged communications or protected work product to the government waive both of those protections. Courts properly analyzing waiver rules also recognize that disclosing historical facts does not cause a waiver – because historical facts are not privileged.

In two related cases, Judge Francis of the Southern District of New York dealt with the intersection of these basic principles. In In re Weatherford International Securities Litigation, No. 11 Civ. 1646 (LAK) (JCF), 2013 U.S. Dist. LEXIS 170559 (S.D.N.Y. Nov. 5, 2013), Weatherford retained Latham & Watkins and Davis Polk to conduct two separate corporate investigations into material weaknesses in the company's internal controls over financial reporting. The court acknowledged that both investigations deserved work product protection. However, the court also found that the company waived its privilege and fact (but not opinion) work product protection by disclosing information about the investigations to the SEC. In defining the scope of the resulting waiver, the court (1) rejected plaintiffs' argument that the waiver extended to "all materials relevant" to the investigations; (2) found that the waiver covered any material actually given to the SEC, and any oral representations company lawyers made to the SEC; and (3) held that the waiver also extended to any "underlying factual material explicitly referenced" in such material or representations. Id. At *28, *27.

Perhaps not surprisingly, the parties soon disagreed about the company's interpretation of the waiver's scope – which resulted in another opinion one month later. The next two Privilege Points describe that decision.

Case Date Jurisdiction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 25.606*
Case Name:


Case Date Jurisdiction State Cite Checked

Chapter: 25.607
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; "Plaintiffs also contend that Brownlee [Executive] waived the privilege when he testified, without objection, to the report's specific recommendations during his deposition. Unlike Warren, Brownlee, as part-owner and managing partner of Ergo, has the authority to waive attorney-client privilege on behalf of Ergo. . . During Brownlee's deposition, the following exchanges took place: '(Q): Can you describe for the record what the recommendations were [of the investigation]? (A): That I stay away from the building for six months. (A): I went with the recommendations and I followed it. And I had to pay a fine. (Q): Okay. What was the fine? (A): I think it might be $10,000. (A): I've gone to a therapist. But that was -- oh, that was under the recommendation of the internal investigation."; "By discussing Hartman's specific recommendations -- that Brownlee stay away from Ergo for six months, pay a $10,000 fine, and see a therapist -- Brownlee revealed Hartman's key conclusions and thus disclosed the 'gist' of the report. . . . Brownlee, on behalf of himself and Ergo, cannot reveal important conclusions from the report yet continue to maintain that the report itself is privileged. Hence, the Court concludes that Brownlee waived attorney-client privilege for the internal investigation report.")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 25.607
Case Name: Johnston v. Dow Employees' Pension Plan, Case No. 14-cv-10427, 2016 U.S. Dist. LEXIS 36825 (E.D. Mich. March 22, 2016)
(agreeing that a class representative must explain its understanding about the meaning of the document he signed, even though that would necessarily reflect legal advice he received about the document; "Defendants seek to compel testimony from Johnston concerning a release of claims provision he agreed to when signing a severance package with Dow Chemical. Johnston refused to answer questions about the release in his deposition, citing attorney-client privilege."; "In Defendants' motion to compel, they seek certain testimony and documents from Johnston. First, Defendants seek testimony from Johnston on his understanding of the claims waiver he signed when he agreed to a severance package with Dow. Second, they seek emails sent by Johnston to putative class members and the responses from class members. Johnston has attempted to shield these areas of discovery behind the attorney-client privilege and the work-product doctrine, respectively."; "Here, the testimony sought by Defendants falls perilously close to eliciting the communications between Johnston and his then attorney concerning the meaning and effect of the release Johnston signed. As articulated in their motion to compel, however, Defendants do not seek these communications or the advice conveyed. They seek Johnston's understanding of the effect of the release, admittedly gained after consulting with counsel."; "Normally, attempts at eliciting such testimony should be cautiously received in light of the privilege, but the facts of this case overcome the privilege. The relevant dispute focuses on the effect of a contractual provision agreed to by both parties. Defendants argue that '[i]t strains credulity to argue Johnston's subjective understanding is not relevant to understanding his intent.'; "Here, Johnston's understanding of the waiver he entered into may be relevant to resolving a potential dispute over the meaning of the waiver. It also may not be. But that is not a reason for restricting discovery. The possibility that his testimony may be relevant is sufficient to render it discoverable. The fact that it may reveal an understanding formed only as a result of confidential client communications does not bar disclosure. The privilege does not shield a contracting party from testifying to his or her understanding of the effect of a contractual term, even if the contract was entered into with and through the advice of counsel.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal MI
Comment:

key case


Chapter: 25.607
Case Name: R. Bird and Associates, Inc. v. Fernando L. Sumaza & Co., Inc., Op. No. 130844, Dkt. No. SUCV201400827C, 2015 Mass. Super. LEXIS 72 (Mass. Super. Ct. July 14, 2015)
(finding that a letter to an adversary did not waive privilege protection; "Sumaza argues in its motion that, by the very fact of the legal position attorney Kneeland asserted in his letter, viz., the contention that Alvarez Bracero was the rightful general partner of the Juncos Partnership, the plaintiff should be deemed to have waived the attorney-client privilege as to the entire subject matter of the letter. The Court does not agree. It is true that statements which partially disclose private lawyer-client communications may in some circumstances operate to waive privilege as to the balance of the communication. . . . That, however, is clearly not what transpired in the present case. Attorney Kneeland here transmitted a demand letter to a party adverse to his client, advancing a legal position as the precursor to the commencement of a lawsuit. Kneeland disclosed no portions of any confidential communications with his client in this letter; and the kind of documented position-taking by counsel that such a letter evidences is coin of the realm in the run-up to civil litigation. The transmittal of this letter to Sumaza cannot reasonably be deemed to reflect an intentional relinquishment of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-07-14 State MA
Comment:

key case


Chapter: 25.607
Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 445 & n.1 (W.D. Va. 2009)
(assessing privilege issues in an ADA case filed by a former hospital employee; rejecting the plaintiff's argument that the defendant created an at issue waiver; "Here, plaintiff contends that Carilion waived any attorney-client privilege by submitting to the EEOC a letter dated March 9, 2006 authored by Henson and enclosing an affidavit from Roe. . . . [A]t no point in her affidavit does Roe come close to discussing any of her conversations with Henson prior to Billings' termination. . . . The letter never mentions Roe or any conversations he had with her prior to Billings' termination. Rather, it is a letter written by a lawyer to the EEOC arguing his client's position. While the subject of the letter is obviously plaintiff's termination, nothing in that letter hints at the substance of the communications between Henson and Roe regarding Billings' termination. Henson's letter works no waiver of the privilege."; "Review of the deposition transcripts reveals that plaintiff was allowed to question these witnesses at length regarding their knowledge and involvement of the facts of the case, and the invocation of the attorney-client privilege was appropriately limited to questions concerning communication between Henson and Roe regarding legal advice.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal VA B 9/10

Chapter: 25.607
Case Name: United States v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 337 (4th Cir. 2003)
("[W]hen the FBI agent confronted Appellant with his shoplifting conviction and asked why he had answered 'no' to Question 1(b), Appellant replied, 'I answered "no" to the question . . . under the advice of an attorney.' . . . And, Appellant identified Counsel by name, also giving the name of a second attorney. Appellant argues that these statements did not constitute a waiver of the attorney-client privilege because they merely revealed his conduct--i.e., that he had acted in a particular way relying on the legal advice of an attorney--rather than disclosing the substance of that advice. This distinction fails, however, because Appellant clearly stated to a third party that his attorney had advised him to answer 'no' to Question 1(b). This same information is the subject of the second (and ultimate) question posed to Counsel by the Government: whether she advised Appellant to answer 'no' to Question 1(b)."), cert. denied, 541 U.S. 982 (2004)

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

Chapter: 25.608
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
(analyzing the work product waiver impact of Morgan Lewis's PowerPoint presentation and "oral download" to the SEC of the results of its investigation into inventory accounting errors in a client's Brazilian subsidiary; concluding that Morgan Lewis's oral download to the SEC of witness interview content waived work product protection, and triggered a subject matter waiver as to those witnesses; also concluding that Morgan Lewis's PowerPoint presentation to the SEC only disclosed historical facts, and therefore did not deserve work product protection – so its disclosure to the government did not trigger a waiver; "The SEC also asked for the investigative findings, and ML provided the SEC with information about its findings, including a presentation prepared for the SEC and information about specific witness interviews, which were provided orally. An April 15, 2013 PowerPoint presentation that ML made to the SEC contained, among other things, an events timeline, the names of witnesses whom ML had already interviewed, a breakdown of the transactions deemed to be at the heart of the accounting discrepancy, and the results of its investigation. This 28-page PowerPoint presentation is now in the public record of this lawsuit, as Defendants filed it as an exhibit to their motion.";"On October 29, 2013, ML attorneys met with SEC staff and provided oral downloads of 12 witness interviews."; ". . . Although ML provided the SEC with oral downloads of only 12 witness interviews, it provided Deloitte with information about all the interviews notes and memoranda. It appears as though this was accomplished through the reading (by an ML attorney) of memoranda and interview notes to Deloitte and generalized 'access' to review interview notes selected by Deloitte's investigative team."; "There is no dispute here that the notes and memoranda prepared by ML attorneys are in fact work product material. Rather, the dispute is over the waiver of the work-product doctrine protection."; ""ML does not contend that it provided only vague references of the witness notes and memoranda to the SEC, nor does it argue that only detail-free conclusions or general impressions were orally provided. To the contrary, it factually concedes that its attorneys provided oral downloads of the substance of the 12 witness interview notes and memos."; "ML also argues that Defendants' claim -- that they seek to "level the playing field" -- is an argument which "rings hollow" because "the SEC does not have what the Defendants are seeking.". . But that is an incomplete argument. Yes, it is true that the SEC does not have the actual witness notes and memoranda -- but it has the functional equivalent of them by receiving the oral summaries of the interview materials."; "ML waived work-product protection for the witnesses whose interview notes and memoranda its attorneys disclosed to the SEC in the so-called 'oral downloads.' Defendants advise that 'at least twelve' interview memos were orally relayed . . . so the Undersigned is using that number, as well. If it turns out that ML provided information to the SEC about other witness interviews besides the 12 already identified, then it shall disclose to Defendants the additional notes and memoranda. ML shall provide the notes and memoranda within 7 days of this Order."; "Because there is little or no substantive distinction for waiver purposes between the actual physical delivery of the work product notes and memoranda and reading or orally summarizing the same written material's meaningful substance to one's legal adversary, the Undersigned concludes that the Morgan Lewis & Bockius LLP law firm ('ML') waived work product protection and must provide to Defendants the interview notes and memoranda that were orally downloaded. To that extent, the Undersigned grants Defendants' motion to compel against ML. . . . The waiver, however, is limited to only the witnesses whose interview notes and memoranda were orally provided, which is far less than all the witnesses ML interviewed.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL
Comment:

key case


Chapter: 25.608
Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 445 & n.1 (W.D. Va. 2009)
(assessing privilege issues in an ADA case filed by a former hospital employee; rejecting the plaintiff's argument that the defendant created an at issue waiver; "Here, plaintiff contends that Carilion waived any attorney-client privilege by submitting to the EEOC a letter dated March 9, 2006 authored by Henson and enclosing an affidavit from Roe. . . . [A]t no point in her affidavit does Roe come close to discussing any of her conversations with Henson prior to Billings' termination. . . . The letter never mentions Roe or any conversations he had with her prior to Billings' termination. Rather, it is a letter written by a lawyer to the EEOC arguing his client's position. While the subject of the letter is obviously plaintiff's termination, nothing in that letter hints at the substance of the communications between Henson and Roe regarding Billings' termination. Henson's letter works no waiver of the privilege."; "Review of the deposition transcripts reveals that plaintiff was allowed to question these witnesses at length regarding their knowledge and involvement of the facts of the case, and the invocation of the attorney-client privilege was appropriately limited to questions concerning communication between Henson and Roe regarding legal advice.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal VA B 9/10

Chapter: 25.609
Case Name: Sweeney v. Montana Third Judicial Dist. Court, OP 17-0677, 2018 Mont. LEXIS 126 (Mont. Sup. April 24, 2018)
(analyzing an implied waiver issue when a criminal defendant did not attend a hearing, and his lawyer argued that the client was not aware of the hearing date; concluding over a dissent that the lawyer's communication about a hearing date to a client deserved privilege protection, which meant that the government could not discover the substance of such a communication; "Given that advising a client of a hearing date in a criminal case is inseparably intertwined with the concept of legal advice and that compelled inquiry of counsel to distinguish between advice and non-advice would vitiate counsel's duty of undivided loyalty to the client, we hold that the District Court erred when it denied the motion to quash the subpoena compelling Sweeney to submit to examination on whether she advised her client of the fate of his final pretrial conference. Furthermore, § 26-1-803(1), MCA, prohibits the District Court from compelling Sweeney to testify about communications made with McClanahan without his consent when her testimony would prove the elements of a new charge against McClanahan. We expressly limit this holding to the unique facts and circumstances of this case.")

Case Date Jurisdiction State Cite Checked
2018-04-24 State MO
Comment:

key case


Chapter: 25.611
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 3:17-cv-00939-WHA (JSC), Dkt. No. 1060 (N.D. Cal. Aug. 14, 2017)
(holding that Uber cannot disclaim privilege protection for an obviously privileged communication, so its disclosure of that communication resulted in a subject matter waiver under Rule 502; "In a case stuffed with surprising scenarios yet another has arisen: the party that would normally assert that a conversation between its in-house litigation counsel and its top executives regarding ongoing litigation is protected by the attorney-client privilege is denying any such protection. The Court is thus in the unusual situation of having to adjudicate whether a conversation is privileged notwithstanding the purported privilege holder's insistence that it is not."; "The question remains whether that conversation, or at least the communications regarding why Mr. Levandowski took Google's information and his decision to invoke the Fifth Amendment, were protected by Uber's attorney-client privilege. Waymo, as the party asserting that the privilege applies, bears the burden of proof. . . . the Court finds that the record overwhelmingly compels the finding that Mr. Kalanick's testimony regarding that conversation was protected by Uber's attorney-client privilege."; "Further, during that conversation Ms. Padilla actually advised Mr. Levandowski (as an Uber executive) and Mr. Kalanick (as Uber's CEO) as to what Uber wanted him to do in this litigation; namely, testify. This, too, supports the Court's finding that the communications during that meeting were for the purpose of enabling Uber to obtain legal advice."; "Ms. Padilla's testimony that she did not believe the conversation to be privileged (although, again, she does not then explain why she was present) does not make the conversation not privileged. If that was all it took to make a communication that has all the hallmarks of a privileged communication not privileged then the rule about not using the privilege as a shield and a sword would be meaningless. Under Uber's theory all a party would have to do is cherry pick the communications they want the opposing party to see and identify those as not privileged, all the while being able to shield other not so favorable communications from disclosure even if they are about the very same topic by claiming those communications privileged. The law of privilege is not that unfair."; "By electing to disclose Uber's communications between Mr. Levandowski, Mr. Kalanick and Ms. Padilla Uber deliberately waived its attorney-client privilege with respect to those communications. . . . The waiver extends to undisclosed communications regarding the subject matter of the disclosed communications. See Fed. R. Evid. 502(a)."; "Uber nonetheless insists that the Court should not apply a subject matter waiver because its disclosure of privileged communications (if any) was inadvertent as it had a good faith belief that the communications were not privileged. The Court disagrees."; "Even if the Court found that Uber had a good faith belief that Mr. Levandowski's communications with Ms. Padilla and Mr. Kalanick were not privileged (and the Court does not so find), Uber offers no support for its assertion that a lawyer's incorrect advice on whether communications are privileged constitutes inadvertence for purposes of Rule 502(b). Moreover, as Uber did not take any reasonable steps to prevent the disclosure, the second required element of Rule 502(b) is also not met. Finally, at oral argument the Court offered Uber the opportunity to withdraw its waiver and assert the privilege over the communications, in other words, 'to rectify the error.' Uber declined. Thus the third element of Rule 502(b) is not satisfied. Subject matter waiver applies."; "The next step is for the parties to provide supplemental briefing on the scope of Uber's waiver. As Mr. Kalanick's deposition demonstrates, however, it appears that the scope of the waiver may extend to communications made by and to Mr. Levandowski while his personal attorneys were present. He thus may have an individual attorney-client privilege in those communications, although he did not assert such a privilege as to the communications at issue on this motion. The parties must therefore address whether (1) Mr. Levandowski has an individual attorney-client privilege in communications that would be swept within the scope of Uber's subject matter waiver, (2) Uber can waive the privilege with respect to those communications if Mr. Levandowski has an individual attorney-client privilege, and (3) if Uber cannot, whether in fairness Uber should be allowed to waive the privilege with respect to the communications in which Mr. Levandowski does not claim an individual privilege. The parties, including counsel for Mr. Levandowski, shall meet and confer, with the assistance of the Special Master if necessary, and propose a process for addressing these questions.")

Case Date Jurisdiction State Cite Checked
2017-08-14 Federal CA

Chapter: 25.702
Case Name: Roberts v. Legacy Meridian Park Hosp., Inc., Case No. 3:13-cv-01136-SI, 2015 U.S. Dist. LEXIS 46998 (D. Ore. April 10, 2015)
(finding that a litigant caused an at issue waiver by claiming that his former lawyer lacked authority to settle the case; "The case law is well settled that disclosing the fact that there were confidential communications between a client and his or her attorney -- or even disclosing that certain subjects confidentially were discussed between a client and his or her attorney -- does not constitute a waiver by partial disclosure.")

Case Date Jurisdiction State Cite Checked
2015-04-10 Federal OR

Chapter: 25.702
Case Name: Carshall v. LeFlore County Det. Ctr. Pub. Trust, Case No. 13-CV-274-JHP Lead Case Consolidated with Case No. 14-CV-24-JHP Member Case, 2014 U.S. Dist. LEXIS 64157, at *6 (E.D. Okla. June 20, 2014)
("[A] client does not waive the attorney-client privilege merely by disclosing that she discussed a subject with her attorney so long as the substance of the communication remains confidential. . . . Here, Anderson has merely revealed the fact that she consulted with her attorney regarding problems with Eatmon. She has not revealed the substance of what she discussed with her attorney, Buckles. The privilege is not waived.")

Case Date Jurisdiction State Cite Checked
2014-06-20 Federal OK

Chapter: 25.702
Case Name: DeWitt v. Southwestern Bell Telephone Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014)
May 7, 2014 (PRIVILEGE POINT)

"Is it Possible to Gain the Advantage of an "Advice of Counsel" Defense Without Suffering the Waiver Consequences?"

The logistics of privileged communications generally do not deserve protection – so a company executive can testify that she obtained a lawyer's advice without risking a waiver. See, e.g., Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014) (finding that a plaintiff had not waived privilege protection by testifying at a deposition that "she had conversations with" her lawyer). However, a company would clearly waive privilege protection by affirmatively asserting an "advice of counsel" defense. Can a company "thread the needle" by presenting the logistical facts to the jury with the hope that it will essentially give the company the advantage of the defense – without its cost?

In DeWitt v. Southwestern Bell Telephone Co., plaintiff argued that Southwestern waived its privilege when employees testified that "they took certain actions after they 'cleared it with legal' or 'got approval from legal.'" Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014) (internal citation omitted). The court rejected plaintiff's argument, concluding that "a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department." Id. The court also rejected plaintiff's argument that Southwestern Bell waived its privilege by filing defenses pointing to the company's "good faith" handling of plaintiff's disability. The court noted that Southwestern pledged "that at trial it 'does not intend to offer or rely on evidence of the substance of any legal advice it received concerning the disciplinary actions taken against Plaintiff.'" Id. at *19 (internal citation omitted). This promise pointedly dealt only with the "substance of" legal advice, not the logistics of company executives' interactions with the law department.

Some courts would expect companies hoping to avoid a waiver to explicitly disclaim any intent to affirmatively introduce at trial either the "substance" or the fact of such privileged communications.

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal KS
Comment:

key case


Chapter: 25.702
Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014)
May 7, 2014 (PRIVILEGE POINT)

"Is it Possible to Gain the Advantage of an "Advice of Counsel" Defense Without Suffering the Waiver Consequences?"

The logistics of privileged communications generally do not deserve protection – so a company executive can testify that she obtained a lawyer's advice without risking a waiver. See, e.g., Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014) (finding that a plaintiff had not waived privilege protection by testifying at a deposition that "she had conversations with" her lawyer). However, a company would clearly waive privilege protection by affirmatively asserting an "advice of counsel" defense. Can a company "thread the needle" by presenting the logistical facts to the jury with the hope that it will essentially give the company the advantage of the defense – without its cost?

In DeWitt v. Southwestern Bell Telephone Co., plaintiff argued that Southwestern waived its privilege when employees testified that "they took certain actions after they 'cleared it with legal' or 'got approval from legal.'" Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014) (internal citation omitted). The court rejected plaintiff's argument, concluding that "a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department." Id. The court also rejected plaintiff's argument that Southwestern Bell waived its privilege by filing defenses pointing to the company's "good faith" handling of plaintiff's disability. The court noted that Southwestern pledged "that at trial it 'does not intend to offer or rely on evidence of the substance of any legal advice it received concerning the disciplinary actions taken against Plaintiff.'" Id. at *19 (internal citation omitted). This promise pointedly dealt only with the "substance of" legal advice, not the logistics of company executives' interactions with the law department.

Some courts would expect companies hoping to avoid a waiver to explicitly disclaim any intent to affirmatively introduce at trial either the "substance" or the fact of such privileged communications.

Case Date Jurisdiction State Cite Checked
2014-02-20 Federal CT
Comment:

key case


Chapter: 25.702
Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *23-24 (D. Kan. Feb. 11, 2014)
(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "But the court agrees with Sprint that the 'ultimate legal conclusions of a party are always implicated at a trial, because it is those conclusions that lead parties to file and pursue lawsuits.' The court does not believe that this is the type of substantive communication that privilege protects. Sprint did not reveal its attorney's reasoning and analysis behind these conclusions (which might be protected by the attorney-client privilege or work-product doctrine). Defendants have cited no case holding that disclosure of a legal conclusion at trial waives privilege as to specific communications about the legal conclusions." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal KS B 7/14

Chapter: 25.702
Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *22 (D. Kan. Feb. 11, 2014)
(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "Mr. Ball [Sprint in-house lawyer] never testified to any specific communications that were exchanged nor any legal advice that Sprint might have been given. The revelation of the general discussion topic between Sprint and its attorneys will not be held to reveal protected communications.")

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal KS B 7/14

Chapter: 25.702
Case Name: Yarberry v. Gregg Appliances, Inc., Case No. 1:12-cv-611, 2013 U.S. Dist. LEXIS 117198, at *8-9, *12, *12-13 (S.D. Ohio Aug. 19, 2013)
("hhgregg [defendant's parent company] asserts that the Ms. Bush's [Associate Relations Manager] notes are not privileged information and, thus, cannot support Plaintiff's waiver argument. The notes contained on the email concerning Plaintiff's proposed termination letter state, in toto: 'advised 2 proceed w/term but HR will send revised verbiage' and 'TT Stuart...proceed w/term.'"; "Thus, the fact that an attorney has examined a matter or a release of the findings of a special report does not result in waiver of the privilege. As such, a mere acknowledgment that an attorney has looked into a particular question which does not divulge the subject matter of the attorney's whole line of inquiry does not waive attorney-client privilege. . . . Likewise, a release of a report's findings, without revealing the facts that led to the findings does[] not divulge the subject matter of that report and does not waive attorney-client privilege."; "Under the standards set forth in Grand Jury Proceedings October 12, 1995, [78 F.3d 251 (6th Cir. 1996),] the undersigned finds that Ms. Bush's handwritten notes on the email chain do not operate to waive hhgregg's attorney-client privilege. Ms. Bush's notes do not reveal the substance of Mr. Buttrick's advice, any facts upon which Mr. Buttrick's[sic] based his advice upon, nor his reasoning behind his advice.")

Case Date Jurisdiction State Cite Checked
2013-08-19 Federal OH B 4/14

Chapter: 25.702
Case Name: Elat v. Ngoubene, Civ. Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 116275, at *19 (D. Md. Aug. 16, 2013)
(holding that the common interest doctrine protected communications among family members; "Plaintiff contends that Caroline Ngoubene disclosed in her deposition that 'she and her family were surprised when they learned that Caroline, Roxane, and Dany Ngoubene would be named parties to the lawsuit,' and she 'recall[ed] suggesting that the family members should get attorneys.'. . . Based on that disclosure, Plaintiff argues that Defendants must disclose all other communications amongst them. . . . Yet, this disclosure was non-substantive, and therefore it cannot be said to function as a sword. Consequently, there is no subject matter waiver, and Defendants may still raise the shield of the common interest rule.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal MD B 4/14

Chapter: 25.702
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that Household did not waive its privilege protection by disclosing the subject matter of E&Y's work to adverse states' Attorneys General; "[T]he court will briefly address Plaintiffs' additional argument that Household has waived any applicable privilege by voluntarily revealing the subject matter--though not the specific details -- of the Compliance Engagement to the Attorneys General.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 25.703
Case Name: DealDash Oyj v. ContextLogic Inc., Case No. 18-cv-02353-MMC (JCS), 2019 U.S. Dist. LEXIS 38891, at *2 (N.D. Cal. Mar. 11, 2019)
May 28, 2019 (PRIVILEGE POINTS)

"Court Issues A Common Sense Rejection Of A Subject Matter Waiver Claim"

Disclosing privileged communications to gain some advantage can sometimes trigger a subject matter waiver, requiring disclosure of additional related communications. Courts agree that fairness dictates the existence and scope of such subject matter waivers. Despite subject matter waivers' inherently unpredictable nature, some courts get it right.

In DealDash Oyj v. ContextLogic Inc., Case No. 18-cv-02353-MMC (JCS), 2019 U.S. Dist. LEXIS 38891, at *2 (N.D. Cal. Mar. 11, 2019), plaintiff claimed that a party's outside counsel triggered a subject matter waiver by filing a declaration stating that: (1) the client's general counsel "has advised me that as far as he knew," the client never received a "cease and desist letter" from plaintiff; and (2) the client "has advised me" that the pertinent trade name "is not important to it," and that the client would stop using it. The court rejected plaintiff's argument seeking a subject matter waiver, noting that plaintiff would not be asserting a waiver if "[the party's] counsel had appeared in court" to say the same things. Id. at *4. As the court explained, "[l]awyers routinely make such representations to courts," and "one of the basic functions of an attorney is to communicate a client's positions to the court." Id. at *5. While acknowledging that "a more thorough attorney" might have submitted the client's supporting declarations, "the shortcut taken in this case, in context of administrative motion to extend the time, does not in fairness call for a broad waiver of privilege." Id. at *5-6.

While it is always risky for lawyers to quote their clients (or vice versa), fairness sometimes prevails to prevent a subject matter waiver.

Case Date Jurisdiction State Cite Checked
2019-03-11 Federal CA
Comment:

key case


Chapter: 25.703
Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date Jurisdiction State Cite Checked
2017-08-28 Federal MI

Chapter: 25.703
Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date Jurisdiction State Cite Checked
2017-08-28 Federal MI

Chapter: 25.703
Case Name: SEC v. Roberts, No. C 07-04580 MHP, 254 F.R.D. 371, 2008 U.S. Dist. LEXIS 64615 (N.D. Cal. Aug. 22, 2017)
(analyzing Howrey's disclosures to its corporate client's board of directors and to the government about the results of its internal corporate investigation; explaining that Howrey carefully limited its disclosure in some circumstances to historical facts, but in other circumstances answered questions about privileged communications Howrey had with witnesses; "The court now turns to whether the information orally provided effectuated a waiver, and if so, the scope of the waiver."; "Howrey vehemently maintains that other than the documentary disclosures made during the presentations, Howrey's oral disclosures were limited to confirming specific factual information contained in the PowerPoint presentation or underlying source documents, as well as responding to specific questions about what certain witnesses said about those non-privileged documents. It contends the answers regarding the witnesses were limited to facts and did not reveal the attorneys' thoughts or mental impressions. Specifically, it contends the presentation described the scope and methodology of the investigation while highlighting key unprivileged documents and emails to set forth the underlying facts regarding problematic stock option grants."; "Indeed, other than the Board meeting minutes outlined above there is no evidence of Howrey conclusions and analysis being revealed. Further, the fact that Howrey took meticulous precautions to create a presentation based only on non-privileged documents lends credibility to Howrey's assertion."; "Nevertheless, Howrey did answer the Board's and the government's questions during the presentations as to what certain witnesses said during their interview. Howrey claims to have done so without referring to the notes, reviewing them prior to the presentation or bringing the notes to the presentation. There is evidence, however, that Howrey attorneys referred to their interview notes prior to some other communications with the government. There is evidence of this with respect to at least four witnesses. . . . Howrey attorneys referred to the interview notes when answering the government's questions. Specifically, they verified certain factual information regarding what the witnesses Radke, Snook and Koopman had told the Howrey attorneys. . . . The information disclosed in the e-mails regarding Radke, Snook and Koopman, however, only disclose the witness' factual assertions, not the attorneys' mental impressions or conclusions. Indeed, there is no evidence that Howrey volunteered the substance of its impressions and opinions regarding the witness interviews. It simply answered factual questions posed by the government regarding the witnesses."; "Here, factors weighing in favor of disclosure are: (1) reference to the interview notes before releasing factual information to the government; (2) an 'admission' that the substance of the interviews was disclosed; and (3) alleged disclosure, without evidentiary support, of the attorneys' conclusions and analysis during the multiple presentations made by Howrey's attorneys where they discussed improprieties and erroneous option grants. On the other hand, factors weighing against disclosure are: (1) when questioned, Howrey attorneys only revealed specific facts from the interviews, not their mental impressions and opinions nor did they reveal the questions asked of the witnesses and answers given; (2) reference to the interview notes were made only to confirm or deny facts; (3) the vagueness of the purposed admission; (4) the attenuated nature of the attorneys' conclusion from their interview notes; (5) the availability of the witnesses to Mr. Roberts to interview for himself; and (6) disclosure, if any, was indirect. Weighing the circumstances, the court does not find a waiver of the privileges with respect to meeting notes pertaining to individuals for whom there is no evidence of disclosure.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal CA

Chapter: 25.703
Case Name: Doe v. Baylor University, 2017 U.S. Dist. LEXIS 127509 (W.D. Tex. Aug. 11, 2017)
(holding that Pepper Hamilton's internal investigation into Baylor's Title IX compliance issues deserved privilege protection, but that the client waived that privilege, and deserved work product protection which Baylor did not waive and which plaintiffs could not overcome; not explaining in detail what communications or documents would be protected only by the privilege and not also by the work product doctrine, and therefore discoverable; in explaining the court's conclusion about Baylor waiving its privilege protection, not identifying the privileged communications Baylor actually disclosed; "In May 2016, a few months after this amendment, Baylor released two documents summarizing the results of the Pepper Hamilton investigation, a thirteen-page summary of the investigation and its conclusions entitle 'Findings of Fact,' and another ten-page list of recommendations titled 'Report of External and Independent Review, Recommendations.' (quoting Baylor's statement that its interim president 'would like to reiterate that the Findings of Fact fully reflect the themes, core findings and failings identified in the investigation'))"; "In other words, the documents summarize the complete course of previously confidential communications between Baylor and Pepper Hamilton. The Findings of Fact document even connects several specific factual findings to Pepper Hamilton. . . . As just one example, the findings explain that Pepper Hamilton found instances of university administrators 'directly discouraging complainants from reporting or participating in student conduct process' and that, in one instance, an administrator's actions 'constituted retaliation against a complainant for reporting sexual assault. . . .' The Shillinglaw answer includes even more specific details, going so far as to quote text messages and conversations by Baylor personnel about reports of sexual assault [these might have been historical non-privileged communications, not privileged communications involving Pepper Hamilton lawyers] and explain that these conversations were uncovered by Pepper Hamilton in the course of its investigation. . . . The Recommendations document then details over ten pages of guidance and advice provided by legal counsel. . . . These disclosures are far from a generic statement that Baylor sought legal advice on Title IX compliance."; "Plaintiffs argue that three disclosures by Baylor constituted waiver of attorney-client privilege. First, Plaintiffs argue that Baylor waived its attorney-client privilege when it released the Findings of Fact and Recommendations in May 2016. Second, Plaintiffs point to disclosures made in a filing by Baylor regents in Shillinglaw v. Baylor University, et al., No. DC-17-01225 (Dallas Cty. Dist. Ct.), where, for example, the regents quoted text message exchanges and paraphrased conversations in which Baylor personnel discussed an alleged rape by a football player and a gang rape reported to athletic staff. . . . The filing explains that all facts and evidence discussed were revealed by Pepper Hamilton's investigation. . . . Third, Plaintiffs argue that former Baylor regents were also briefed by Pepper Hamilton about details of the investigation that have since been kept confidential. . . . "; "These disclosures were intentional and together provide substantial detail about both what Baylor and its employees told Pepper Hamilton and what advice Baylor received in return. After carefully reviewing the documents disclosed, the Court finds that they are much more akin to those made in cases where waiver was found, than those where no waiver was found. Compare Nguyen, 197 F. 3d at 207 & n.17 (finding waiver where deposition questions to executives 'elicit[ed] information about the substance of [attorney-client] communication, touching on the directions given to counsel and the legal materials reviewed in addressing the question presented'); In re Kidder Peabody Sec. Litig., 168 F.R.D. 459, 462 (S.D.N.Y. 1996) (finding waiver where an '85-page report for [a client] summarize[ed] in detail the facts uncovered by the law firm in the course of its investigation'); with YETI Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 8677303, at *1 (W.D. Tex. Dec. 30, 2016) (finding no waiver where a single email produced in discovery stated that '[w]e believe and our attorney has confirmed that we are not infringing'); Nat'l W. Life Ins. Co. v. W. Nat'l Life Ins. Co., No. A-09-CA-711 LY, 2010 WL 5174366, at *7 (W.D. Tex. Dec. 13, 2010) (finding no waiver where 'communications merely note that they have sought advice from their attorneys . . . regarding [a] name change' and 'do not disclose the confidential advice and the opinions of their legal counsel')."; rejecting Baylor's argument that it had disclosed only facts, not privileged communications; inexplicably seeming to equate the disclosure of facts with the disclosure of communications, apparently because the facts must have been disclosed in privileged communications; "Baylor argues that waiver results only from revealing confidential communications, not underlying facts, and asserts that the Findings of Fact and Shillinglaw answer do not reveal the communication themselves. The documents themselves contradict this argument. The Findings of Fact reveal that all findings were the result of Pepper Hamilton's investigation – a 'detailed, thorough and rigorous' investigation based on 'unfettered access to personnel and data.'. . . Contrary to Baylor's assertion, this connection between Pepper Hamilton and the thirteen pages of findings 'reveals' what facts Baylor provided to Pepper Hamilton, not just the underlying facts themselves. In other words, the Findings of Fact are a 'publication of evidence of the communications.'. . . The exact contents of the communications need not be revealed to constitute waiver. See, e.g. In re Kidder, 168 F.R.D. at 468 (finding waiver of the attorney-client privilege where a report made a factual summary and paraphrased interviews conducted by attorneys); Nguyen v, 197 F.3d at 207 (affirming a district court's finding of waiver where executives recounted communications with attorneys in depositions. Similarly, in Shillinglaw, the answer explains that the Pepper Hamilton investigation uncovered the detailed evidence discussed in the answer – again, revealing what was communicated by Baylor and its personnel to Pepper Hamilton."; "Relatedly, Baylor argues that because the Findings of Fact and Recommendations were drafted for the express purpose of public release, they can reveal no confidential communications. This argument is both unconvincing and unsupported by case law. Baylor chose to publicly release a detailed summary of Pepper Hamilton's investigation that disclosed, among other things, attorney-client communications. [the opinion does not identify such privileged communications] While the information contained in these summaries was previously confidential, Baylor's decision to prepare and release a summary of those communications indicates its intentional waiver of that confidentiality. The logical extension of Baylor's argument is that the creation and public release of any document discussing attorney-client communications, no matter how detailed or self-serving, would not constitute waiver. That cannot be the case."; "Next, Baylor argues that generic statements about consulting with an attorney do not constitute waiver. But generic statements are not at issue here. Instead, the thirteen pages of Findings of Fact and ten pages of Recommendations purport to summarize the entire investigation by Pepper Hamilton – both the information provided by Baylor and the factual and legal conclusions that resulted from it.") (emphases added)

Case Date Jurisdiction State Cite Checked
2017-08-11 Federal TX
Comment:

key case


Chapter: 25.703
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; "Plaintiffs also contend that Brownlee [Executive] waived the privilege when he testified, without objection, to the report's specific recommendations during his deposition. Unlike Warren, Brownlee, as part-owner and managing partner of Ergo, has the authority to waive attorney-client privilege on behalf of Ergo. . . During Brownlee's deposition, the following exchanges took place: '(Q): Can you describe for the record what the recommendations were [of the investigation]? (A): That I stay away from the building for six months. (A): I went with the recommendations and I followed it. And I had to pay a fine. (Q): Okay. What was the fine? (A): I think it might be $10,000. (A): I've gone to a therapist. But that was -- oh, that was under the recommendation of the internal investigation."; "By discussing Hartman's specific recommendations -- that Brownlee stay away from Ergo for six months, pay a $10,000 fine, and see a therapist -- Brownlee revealed Hartman's key conclusions and thus disclosed the 'gist' of the report. . . . Brownlee, on behalf of himself and Ergo, cannot reveal important conclusions from the report yet continue to maintain that the report itself is privileged. Hence, the Court concludes that Brownlee waived attorney-client privilege for the internal investigation report.")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 25.703
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 23, 2017 (PRIVILEGE PONT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 25.703
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 25.703
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 16, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part II"

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017). Another court dealt with a similar situation about two weeks later.

In Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017), Title VII plaintiffs sought to discover an outside lawyer’s report produced after that lawyer investigated an earlier sexual harassment claim against defendant's managing partner. The court found that the report deserved privilege protection, but that the managing partner waived that protection in deposition testimony describing the report's recommendations and his compliance with them. As the court put it, "[b]y discussing [the investigating lawyer's] specific recommendations – that [the managing partner] stay away from [the company] for six months, pay a $10,000 fine, and see a therapist – [he] revealed [the lawyer's] key conclusions and thus disclosed the 'gist' of the report." Id. at *11-12. Based on this waiver, the court ordered the report produced.

Most courts are more forgiving when considering the waiver implications of fast-paced deposition testimony. But the managing partner defendant presumably could have avoided a waiver risk by declining to testify about the report's recommendations – and instead simply describing what he did after the company received the report. Corporations' lawyers should educate their clients' executives and employees about the dispositive distinction between (1) describing the companies' or their own past actions or future intended actions (without attributing them to lawyers' advice), and (2) disclosing privileged communications' content. The former does not waive anything, while the latter waives privilege protection and may trigger a subject matter waiver. Next week's Privilege Point discusses subject matter waiver issues.

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 25.703
Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 25.703
Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216 (U) at 3 (N.Y. Sup. Ct. June 5, 2017)
August 9, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part I"

Clients describing their past or intended future actions obviously do not waive their privilege protection – even if the clients are following their lawyers' advice. But clients voluntarily disclosing privileged communications nearly always waive their privilege protection, and can trigger a subject matter waiver. It can be easy to cross that tenuous line.

In Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, defendant business executive sent an email to a third party investor with the following sentence: "I was about to write, to you this email last Friday but I decided to []wait until we all sit down with attorneys this morning. It is concluded by legal counsels that we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise." No. 650868/2015, 2017 NY Slip Op. 31216 (U) at 3 (N.Y. Sup. Ct. June 5, 2017) (emphasis added). The court concluded that defendant's email "provided a detailed description of specific legal advice and the course of action given to him by his attorneys." Id. at 4. Contrary to most case law, the court found a subject matter waiver – and "directed [defendants] to produce any communications and documents 'pertaining to the subject matter of the email.'" Id. (citation omitted).

Defendant presumably would not have waived privilege protection or risked a subject matter waiver if his email had not included the three words "by legal counsels." The fact that defendant met with his lawyers did not deserve privilege protection, and his intended course of action following the meeting likewise did not deserve privilege protection. Clients can describe their intended actions, but should never attribute those to lawyers' advice. Next week's Privilege Point will discuss a similar decision from another court about two weeks later. The Privilege Point after that will discuss the subject matter waiver implications of the decisions described here and in the next Privilege Point.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 25.703
Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 16, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part II"

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017). Another court dealt with a similar situation about two weeks later.

In Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017), Title VII plaintiffs sought to discover an outside lawyer’s report produced after that lawyer investigated an earlier sexual harassment claim against defendant's managing partner. The court found that the report deserved privilege protection, but that the managing partner waived that protection in deposition testimony describing the report's recommendations and his compliance with them. As the court put it, "[b]y discussing [the investigating lawyer's] specific recommendations – that [the managing partner] stay away from [the company] for six months, pay a $10,000 fine, and see a therapist – [he] revealed [the lawyer's] key conclusions and thus disclosed the 'gist' of the report." Id. at *11-12. Based on this waiver, the court ordered the report produced.

Most courts are more forgiving when considering the waiver implications of fast-paced deposition testimony. But the managing partner defendant presumably could have avoided a waiver risk by declining to testify about the report's recommendations – and instead simply describing what he did after the company received the report. Corporations' lawyers should educate their clients' executives and employees about the dispositive distinction between (1) describing the companies' or their own past actions or future intended actions (without attributing them to lawyers' advice), and (2) disclosing privileged communications' content. The former does not waive anything, while the latter waives privilege protection and may trigger a subject matter waiver. Next week's Privilege Point discusses subject matter waiver issues.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 25.703
Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 23, 2017 (PRIVILEGE PONT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 25.703
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
("The Court begins by noting that attorney-client privilege 'only protects disclosure of communications; it does not protect disclosure of the underlying facts.'. . . Thus, Banneker could, through a well-written interrogatory, request the disclosure of all facts unearthed during the 51 witness interviews and WMATA would have no legitimate basis to refuse to respond. Banneker need not draft such an interrogatory, however, because the Court finds WMATA has waived the attorney-client privilege with respect to the interview memoranda."; "As originally commissioned, the Bondi Report was intended to be an internal document for WMATA's purposes and not slated for public disclosure. Upon receipt of the Bondi Report, the WMATA Board decided to release it to the public in its entirety. By disclosing the Bondi Report, WMATA chose to disclose the legal and factual conclusions that were contained in the report and, therefore, waived any claim of attorney-client privilege that existed with respect to the Bondi Report itself. The Court must now consider whether the public disclosure of the Bondi Report also resulted in subject-matter waiver of the attorney-client privilege covering the interview memoranda used to compile the report."; "The Court finds that the waiver of privilege as to the Bondi Report was intentional. . . . the Bondi Report cites extensively to the interview memoranda throughout the entirety of the document. The Court notes multiple references to at least 23 different witness interviews. Additionally, WMATA has not argued that the interview memoranda contain information outside the scope of the investigation or Bondi Report."; "'Ms. Rockwood notes in her declaration that the references to the interview memoranda in the Bondi Report were intended only for use by Cadwalader. . . . However, WMATA failed to remove the references and citations from the version of the Bondi Report that was made available to the public.'"; "WMATA has not zealously protected the information contained in the interview memoranda. Instead, WMATA has permitted direct citation and reference to confidential communications to be disclosed publically in the Bondi Report. WMATA has also used the Bondi Report to its advantage in this litigation. Fairness dictates that if WMATA is able to use the Bondi Report and facts disclosed in that report to support its claims and defenses, then Banneker is entitled to the remaining facts and information contained in the interview memoranda that were not included in the Bondi Report. The intent of subject matter waiver is to prevent a party from selectively disclosing information and documents that would otherwise be privileged to gain a tactical advantage. WMATA cannot both benefit from the disclosure of the Bondi Report and prevent further disclosure of the remaining information in the interview memoranda.")

Case Date Jurisdiction State Cite Checked
2017-05-16 Federal DC

Chapter: 25.703
Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)
(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; holding that the former employee waived privilege protection by disclosing the logistics of the meeting; "[T]he Court finds that Virgen's testimony did not constitute a voluntary waiver of the attorney-client privilege. It was unclear whether Virgen was stating that he had a hard time explaining himself to Defendant's attorney present at the deposition or whether he was referring to his prior conversation with Driscoll [Café's lawyer]. This statement is not equivalent to disclosing the substance of what he communicated to Driscoll. Virgen's statements regarding the circumstances of his conversation with Driscoll also do not waive the privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal OR

Chapter: 25.703
Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)
(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; also holding that the former employee's testimony that he had not disclosed to his lawyer some fact did not result in a waiver; "the Court agrees with Defendant that its counsel immediately objected to Plaintiff's attorney's question and that Virgen's single word response did not constitute a waiver. Defendant's attorney's timely objection constitutes a reasonable step to prevent and rectify inadvertent disclosure under Federal Rule of Evidence 502(b). Accordingly, the Court finds that Virgen's disclosure did not operate as a waiver.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal OR

Chapter: 25.703
Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)
("In this case, Chapman voluntarily disclosed the contents of the so-called arbitration documents when, in response to discovery requests, he produced some of the documents, including a summary of the privileged matter, the recorded statement. Any argument by Chapman that this disclosure was inadvertent is unavailing, as Chapman did not notify Young of any purportedly erroneous disclosure or take steps to rectify an error. The Court finds that Chapman impliedly waived the attorney-client privilege attached to the recorded statement and that it would be manifestly unfair to Young were the Court not to require Chapman to produce the statement.")

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal KY

Chapter: 25.703
Case Name: Wit v. United Behavioral Health, Case Nos. 14-cv-02346- & -05337-JCS, 2016 U.S. Dist. LEXIS 7242, at *33 (N.D. Cal. Jan. 21, 2016)
("[A]ny privilege that might have been afforded the redacted material in this document has been waived by UBH. In particular, Easterday [defendant's in-house counsel] states in his declaration that the redacted portions of the document in Exhibit H.3 'reflect a request that counsel, my in-house attorney colleague Melissa Brettingen and I, provide legal advice regarding potential litigation exposure relating to utilization management activities.' Because UBH has disclosed in the Easterday Declaration all of the information contained in the redacted portion of UBH-0083 (which contains no substantive legal advice or any specific questions), this material is subject to disclosure. . . . Therefore, UBH must produce this document (UBH-0083) in unredacted form.")

Case Date Jurisdiction State Cite Checked
2016-01-21 Federal CA B 7/16

Chapter: 25.703
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "If allowed to stand, the District Court's rulings would ring alarm bells in corporate general counsel offices throughout the country about what kinds of descriptions of investigatory and disclosure practices could be used by an adversary to defeat all claims of privilege and protection of an internal investigation."; "These alarm bells would be well founded. If all it took to defeat the privilege and protection attaching to an internal investigation was to notice a deposition regarding the investigations (and the privilege and protection attaching them), we would expect to see such attempts to end-run these barriers to discovery in every lawsuit in which a prior internal investigation was conducted relating to the claims. Accordingly, we think it is essential to act on this Petition in order to protect our privilege waiver jurisprudence.")

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

Chapter: 25.703
Case Name: Prescott v. Gibson, Civ. A. No. 3:11-203, 2015 U.S. Dist. LEXIS 74992 (W.D. Pa. June 10, 2015)
(holding that a litigant did not waive attorney-client privilege protection by advising the adversary's counsel that her client had no knowledge of an accident; "Here, the Court will exclude the testimony of Defendants' counsel, Michael Zabel, under the attorney-client privilege. The conversation between Zabel and French constitutes a communication between an attorney and his client, as French is an employee of Defendant R&L and the conversation was made in anticipation of the present litigation. The conversation meets all of the requirements for attorney-client privilege set forth in detail above. Further, the Court finds that the attorney-client privilege was not waived when Attorney Zabel sent a letter to Plaintiff's counsel. The fact that Zabel wrote a letter to Plaintiff's counsel stating that French had no knowledge of the accident does not waive the privilege and expose all communications between Zabel and French. Accordingly, for these reasons, Defendants' motion to preclude the testimony of Michael Zabel is GRANTED.")

Case Date Jurisdiction State Cite Checked
2015-06-10 Federal PA

Chapter: 25.703
Case Name: Apple Inc. v. Samsung Electronics Co., Ltd., Case No.: 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386 (N.D. Cal. April 3, 2015)
(analyzing the effect of Samsung's defense of admitted disclosure of confidential information about non-party Nokia; "Samsung's statements to the effect of 'does not contain confidential license information'; 'does not discuss Dr. Teece's report'; 'contains no information derived from materials produced pursuant to the protective order' and 'I did not instruct others to use, and I am not aware of anyone from Samsung using, for any reason, information about the terms of any Apple license agreement with Nokia or any other company obtained from any version of the Teece report that I received or distributed' may not facially appear to reveal confidential information. In the context of defenses aimed to mitigate Samsung's admitted disclosure of confidential information contrary to the protective order, however, these arguments go beyond 'mere denials' and are more than just 'related to issues raised in the litigation.' They go the merits. A party may neither disclose nor dispute contents of documents while simultaneously concealing other portions under a claim of privilege, when the truth of the party's statements 'can only be assessed by examination of the privileged communication.'")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA

Chapter: 25.703
Case Name: Apple Inc. v. Samsung Electronics Co., Ltd., Case No.: 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386 (N.D. Cal. April 3, 2015)
(analyzing the effect of Samsung's defense of admitted disclosure of confidential information about non-party Nokia; "Samsung may have acted reasonably in disclosing certain information about the withheld or redacted documents, such as the identities of senders and recipients. But Samsung went further by also disclosing information contained in withheld or redacted documents. For example, Samsung disclosed details about Tabs 19, 20 and 272 when explaining that a request for the Teece report had to do with another case unrelated to Apple licensing information. Further, in pursuit of Samsung's affirmative defense that it took corrective action following the protective order violation, Samsung selectively disclosed information it had deemed privileged. The so-called 'corrective action' still was not fully redacted according to the protective order's constraints.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA

Chapter: 25.703
Case Name: Perino v. Edible Arrangements Int'l, Inc., Civ. No. 3:13CV1411 (JBA), 2015 U.S. Dist. 39131 (D. Conn. March 27, 2015)
(finding that the privilege protected a forensic audit of plaintiff's alleged misconduct prepared by an outside accounting firm retained by a lawyer; also finding that the defendant did not waive the privilege by mentioning the report in press releases, because it did not intend to rely on the report at trial; "At the March 2 conference, defendant represented that it was not relying on the subject report in support of its defense and that defendant had maintained the confidentiality of the report. Further, to the extent that plaintiff relies on Mr. Farid's reference of the report to the media, the Court finds that the reference does not reveal the specifics of the report, and if anything, more corresponds to a party generally consulting with counsel.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal CT

Chapter: 25.703
Case Name: United States v. Depue, No. 12-10345, 2015 U.S. App. LEXIS 3518 (9th Cir. App. March 5, 2015)
("In his first trial, Depue testified in detail about his meeting with Adams, including the specific advice Adams provided and his response to the advice. Depue thus waived the attorney-client privilege as to that communication. Even if the privilege were not waived, Depue's argument would fail because the government made a prima facie showing that Depue used Adams' services (which were the subject of Adams' testimony) to help further an illegal scheme. Thus, Adams' testimony and letter were admissible under the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2015-03-05 Federal

Chapter: 25.703
Case Name: Morgan v. City of Rockville, Civ. No. GJH 13-1394, 2014 U.S. Dist. LEXIS 151828 (D. Md. Oct. 28, 2014)
(inexplicably finding that a company did not waive its privilege by issuing a press release saying that a law firm had conducted an internal investigation and had "identified no unlawful conduct"; "After the report was completed, the City of Rockville issued a news release stating that the City had engaged Saul Ewing to conduct an internal review of Rockville's personnel policies and procedures and that 'Saul Ewing identified no unlawful conduct.'. . . The news release stated that the report contained several recommendations, including (1) refining the City's employee performance evaluation policies; (2) updating the City's Personnel Policies and Procedures Manual; and (3) improving training to ensure consistent application of the City's policies across the organization.")

Case Date Jurisdiction State Cite Checked
2014-10-28 Federal MD

Chapter: 25.703
Case Name: Morgan v. City of Rockville, Civ. No. GJH 13-1394, 2014 U.S. Dist. LEXIS 151828 (D. Md. Oct. 28, 2014)
(inexplicably finding that a company did not waive its privilege by issuing a press release saying that a law firm had conducted an internal investigation and had "identified no unlawful conduct"; "Here, no actual communications between Rockville employees and Saul Ewing were disclosed to the public. The news release merely outlines the legal services provided to the Rockville city council in response to prior employee complaints. Informing the public that counsel recommended improvements to communication between management and staff does not constitute a disclosure of a confidential communication.")

Case Date Jurisdiction State Cite Checked
2014-10-28 Federal MD

Chapter: 25.703
Case Name: Heglet v. City of Hays, Case No. 13-2228-KHV/KGG, 2014 U.S. Dist. LEXIS 35738, at *4, *7 8 (D. Kan. Mar. 19, 2014)
(holding that the defendant city waived its attorney-client privilege by producing notes regarding a discussion with a lawyer, because the notes reflected the substance of the conversation, not just the fact of the conversation; "The referenced document that had been placed in Plaintiff's personnel file and voluntarily produced in discovery was titled 'Time Line With Firma' and included an entry for May 10, 2012, written by Defendant Scheibler, which stated in part: 'I was contacted . . . by Peter Maharry and was questioned about an affidavit that Firma had signed in the Dryden lawsuit. . . . . I spoke with [attorney] John Bird and he agreed with concerns about confidentiality. John Bird spoke with Peter and then called me back and he stated that the City would be justified in moving forward.'. . . . The time line also indicates that Scheibler met with John Bird the next day and confirmed that Bird was 'ok' with Defendant City terminating Plaintiff's employment."; "The Court finds that the disclosure in this case included the substance of the attorney's conclusions. Although the time line entry is brief, there is a substantive recitation of the legal advice given to Defendants. . . . The entry indicates that Scheibler spoke with counsel regarding 'concerns about confidentiality,' and counsel agreed. . . . Counsel also told Scheibler that 'the City would be justified in moving forward.'. . . This is not a simple disclosure that a consultation was obtained, but reveals the legal advice rendered. Thus, Defendants voluntary waived the privilege as a result of producing this document in this case, and the Plaintiff's motion is GRANTED on that basis.")

Case Date Jurisdiction State Cite Checked
2014-03-19 Federal KS B 8/14

Chapter: 25.703
Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *23-24 (D. Kan. Feb. 11, 2014)
(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "But the court agrees with Sprint that the 'ultimate legal conclusions of a party are always implicated at a trial, because it is those conclusions that lead parties to file and pursue lawsuits.' The court does not believe that this is the type of substantive communication that privilege protects. Sprint did not reveal its attorney's reasoning and analysis behind these conclusions (which might be protected by the attorney-client privilege or work-product doctrine). Defendants have cited no case holding that disclosure of a legal conclusion at trial waives privilege as to specific communications about the legal conclusions." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal KS B 7/14

Chapter: 25.703
Case Name: Cason-Merenda v. VHS of Mich., Inc., Case No. 06-15601, 2013 U.S. Dist. LEXIS 140011, at *6-7, *10, *11-12, *12 (E.D. Mich. Sept. 30, 2013)
("Two of the deponents, Ms. Licus and Ms. Logan, did not address or divulge the specific contents of the privileged attorney-client communication -- i.e., the August 2003 memo authored by in-house counsel David Lee -- but instead generally described this memo as a source of instruction or guidance to them regarding the practice of directly contacting competitor health care institutions for compensation information. . . . To the extent that this testimony merely divulged the fact of a communication received from legal counsel, and not its content, it is 'not deemed privileged.'" (citation omitted); "To be sure, the deposition testimony of Amy Lumetta addressed Mr. Lee's August 2003 memo in somewhat greater detail, and arguably touched upon the contents of this memo. In particular, Ms. Lumetta, like Ms. Licus and Ms. Logan, testified that she had received direction from her supervisors that she had to go through third-party consultants rather than communicating directly with competitors to obtain compensation information, and she cited 'a memo circulated in 2003' as the source of this direction. . . . Ms. Lumetta then was specifically asked, however, if she could recall what the memo said, and she responded that it 'just reiterated the guidelines about contacting a third-party consultant, making sure the data was three months [old], and that the aggregate data continued five or more organizations.'" (internal citation omitted); "[T]he Court agrees with Plaintiffs that Defendant Henry Ford has waived any claim of privilege as to this deposition testimony. First, while counsel for Henry Ford raised objections during Ms. Licus's and Ms. Logan's depositions and cautioned these witnesses to avoid revealing the contents of Mr. Lee's August 2003 memo, no such objection was lodged during Ms. Lumetta's deposition, even when Plaintiffs' counsel expressly asked Ms. Lumetta if she could recall what this memo said. . . . The courts have held that such a failure to object to deposition questions or testimony on grounds of attorney-client privilege operates to waive a claim of privilege as to this testimony."; "In addition, when Plaintiffs included Ms. Lumetta's deposition testimony among the exhibits accompanying their consolidated opposition to Defendants' summary judgment motions, neither Henry Ford nor any other Defendant objected that this was privileged material that the Court could not consider in resolving these motions.")

Case Date Jurisdiction State Cite Checked
2013-09-30 Federal MI B 5/14

Chapter: 25.703
Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *20, *22-23, *24 (N.D. Cal. Mar. 26, 2013)
(holding that a publication by the New York Times of a 1995 Akin Gump memorandum to its client Wal-Mart did not result in a waiver; also finding that Wal-Mart disclosed part of the memorandum in responding to the New York Times story, but that the disclosure did not trigger a subject matter waiver under the von Bulow (In re von Bulow, 828 F.2d 94 (2d Cir. 1987)) doctrine; "Plaintiffs next argue that Wal-Mart's voluntary decision to comment on 'the substance and merits of the Memo in The New York Times,' waived the privilege as to the entire Memo."; "A review of the comments attributed to Wal-Mart in the Article reveals that Wal-Mart disclosed some of the confidential Memo's protected content."; "In only one paragraph does Wal-Mart disclose the actual contents of the Memo. According to the Article, 'Wal-Mart criticized Akin Gump's methodology, saying it had deliberately mimicked the type of statistical analysis done by plaintiffs' lawyers in class-action cases. Even using that methodology, the retailer said, Akin Gump did not find significant disparities between the hourly wages of men and women.'. . . With this statement Wal-Mart intentionally disclosed privileged information; namely, Akin Gump's methodology and the fact that the law firm did not find hourly wage disparities by gender.")

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

Chapter: 25.703
Case Name: United States v. Nelson, 732 F.3d 504, 517-18, 581, 519 (5th Cir. 2013)
("Nelson argues that in testifying about the circumstances surrounding his signing the factual basis, his former attorney violated the attorney-client privilege and Nelson's Sixth Amendment right to counsel. . . . An attorney-client communication is also protected under the Sixth Amendment 'if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential.'" (citation omitted); "The government called Nelson's former attorney, Mary Pierson, to testify regarding the circumstances surrounding Nelson's signing his plea agreement."; "The government admitted the factual basis into evidence through Pierson's testimony, and she read it aloud to the jury. Pierson confirmed the authenticity of the document and of Nelson's signature. She stated that Nelson's signature on the document indicated that she and Nelson had 'read [the document] together, and he had read it, and he understood it and agreed with it.' She testified that before Nelson signed the document, they had a 'lengthy discussion.' She did not discuss the details of the conversation. Pierson confirmed that Nelson came to her office of his own free will to sign the document and there were no government officials present. She stated that she was not aware of any coercion or threats made against Nelson and, when asked if Nelson signed the document 'knowingly and voluntarily,' Pierson responded, 'I believe so.'"; "We have . . . allowed attorneys, in narrow circumstances, to testify about their former clients' mental competence."; "Pierson's testimony, however, was not confined to observations about Nelson's demeanor that could have easily been made by a layperson; nor was it offered outside the presence of a trial jury on a narrow issue like competency or voluntariness. Instead, it was trial testimony that described a meeting held 'for the primary purpose of securing . . . a legal opinion' on whether to sign the agreement. . . . Called by the government, defense counsel Pierson testified that her former client in this case, Nelson, read the plea agreement admitting to federal criminal offense conduct with her, that he 'understood' and 'agreed with' it, and that he signed it only after a 'lengthy discussion' with his experienced attorney. Such information reveals more than the plain fact of the voluntariness of Nelson's signature on a guilty plea attestation and document inclusive of the offense's factual basis, and we conclude that it is protected by the attorney-client privilege." (footnote omitted); "Although Pierson's testimony falls under the attorney-client privilege, we nonetheless conclude that its admission in this case was harmless error.")

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

Chapter: 25.703
Case Name: United States v. Nelson, 732 F.3d 504, 519 (5th Cir. 2013)
(analyzing a criminal defendant's lawyer's testimony about his client's signing of a document; finding that the testimony violated the criminal defendant's attorney-client privilege, but amounted to harmless error; "Pierson's [lawyer] testimony, however, was not confined to observations about Nelson's [criminal defendant] demeanor that could have easily been made by a layperson; nor was it offered outside the presence of a trial jury on a narrow issue like competency or voluntariness. . . . Called by the government, defense counsel Pierson testified that her former client in this case, Nelson, read the plea agreement admitting to federal criminal offense conduct with her, that he 'understood' and 'agreed with' it, and that he signed it only after a 'lengthy discussion' with his experienced attorney. Such information reveals more than the plain fact of the voluntariness of Nelson's signature on a guilty plea attestation and document inclusive of the offense's factual basis, and we conclude that it is protected by the attorney-client privilege."; "Although Pierson's testimony falls under the attorney-client privilege, we nonetheless conclude that its admission in this case was harmless error.")

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

Chapter: 25.703
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *30-31 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "While Moazzeni did not disclose any particular communication with Krumbein, he has several times disclosed such communications generally. When he asserts that Krumbein 'forced' him to seek conversion to Chapter 13, he is describing Krumbein's advice.")

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

Chapter: 25.703
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *31 (E.D. Va. Dec. 3, 2012)
("[D]uring the 2009 hearing, Moazzeni described Krumbein's advice, complaining that Krumbein 'forced' him to seek a Chapter 13. While Moazzeni characterizes this as mere 'criticism' of Krumbein, that is an overgeneralization. By his description of the events, he has disclosed that Krumbein advised him to seek a Chapter 13 conversion. This is sufficient to waive the privilege as to Krumbein's advice during and leading up to those proceedings.")

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

Chapter: 25.703
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *30-31, *31 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "While Moazzeni did not disclose any particular communication with Krumbein, he has several times disclosed such communications generally. When he asserts that Krumbein 'forced' him to seek conversion to Chapter 13, he is describing Krumbein's advice."; "[D]uring the 2009 hearing, Moazzeni described Krumbein's advice, complaining that Krumbein 'forced' him to seek a Chapter 13. While Moazzeni characterizes this as mere 'criticism' of Krumbein, that is an overgeneralization. By his description of the events, he has disclosed that Krumbein advised him to seek a Chapter 13 conversion. This is sufficient to waive the privilege as to Krumbein's advice during and leading up to those proceedings.")

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

Chapter: 25.703
Case Name: Starr Indem. & Liab. Co. v. Cont'l Cement Comp., Case No. 4:11CV809 JAR, 2012 U.S. Dist. LEXIS 170988, at *5-6 (E.D. Mo. Dec. 3, 2012)
(analyzing privilege and work product issues in a first party insurance context; "The Court finds that, at this point, Starr [insurance company] has not performed an 'affirmative act' waiving the attorney-client privilege. . . . Starr's consultation with its counsel did not constitute a waiver of the attorney-client privilege because it has not raised an advice of counsel defense. Rather, Starr's executives testified that they merely consulted with their counsel as part of their decision-making process. Starr's witnesses made clear that they primarily relied on their experience and own reading of the policy when making their determinations. . . . Continental has not provided any evidence that Starr changed course based upon the advice of its counsel or that it would have acted otherwise. The Court finds that this cannot constitute an affirmative act waiving privilege because 'if reliance always gave rise to waiver in this circumstance, no one would seek coverage counsel's advice.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal MO B 9/13

Chapter: 25.703
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Lawson clearly waived the privilege with respect to the subject matter of the development of the RQC module. First, Lawson did so by producing lawyer-crafted power points, which contained very detailed suggestions about how to modify RSS in order to avoid continuing infringement. . . . Lawson has not clawed-back these power points.")

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

Chapter: 25.703
Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 368 (Ill. 2012)
(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "[W]hile Stefanek [CFO of one defendant] did testify to legal advice received from Westfield's attorneys about the synthetic partnership, he did not testify as to the actual content and basis of the legal advice.")

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

Chapter: 25.703
Case Name: SEC v. Brady, 238 F.R.D. 429, 2006 U.S. Dist. LEXIS 74979, Civ. A. No. 3:05-CV-1416-M, 67 Fed. R. Serv. 3d (Callaghan) 26 (N.D. Tex. Oct. 16, 2006)
(analyzing attorney-client privilege and work product issues in an action by the SEC against a former corporate officer, who sought discovery of his former company's investigation into improper accounting and revenue recognition; explaining that the company's Audit Committee hired the law firm of Baker Botts to conduct an internal investigation with the assistance of KPMG, after which Baker Botts met with the company's new auditor Deloitte; holding that the company and Baker Botts waived privilege protection by disclosing the investigation results to the SEC, and therefore could not withhold them from the former officer; "Brady [former officer] asserts that materials related to the Phase II investigation were provided to the SEC, thereby waiving the attorney-client privilege as to Categories 5 and 6. . . . With regard to the Phase II materials, i2 and Baker Botts concede that they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning Phase II, in addition to interview observations and summaries, exhibits used during witness interviews, and other documents uncovered during its Phase II investigation. Indeed, they state that pursuant to a confidentiality agreement with Brady, he will receive all of the materials presented to the SEC. . . . i2 and Baker Botts contend that despite the disclosure of Phase II materials to the SEC, they did not waive the attorney-client privilege; however, to the extent they have waived attorney-client privilege, they urge the court to adopt the Eighth Circuit's selective waiver doctrine."; "As noted, the Fifth Circuit has yet to adopt the selective waiver doctrine. Moreover, this court is persuaded by the reasoning of the great weight of authority which has declined to adopt the selective waiver doctrine. Therefore, the court finds that i2 and Baker Botts waived the attorney-client privilege as to Categories 5 and 6 by disclosing Phase II privileged information to a third-party."; finding a subject matter waiver; "Brady argues that i2 and Baker Botts' waiver of attorney-client privilege as to the Phase I Report and the Phase II investigation extends to the entire subject matter related to the disclosures."; "The disclosure of any significant portion of a confidential communication waives the privilege as to the whole.'. . . Moreover, waiver of an attorney-client communication waives the privilege as to all other communications relating to the same subject matter. . . . Here, Brady disclosed the Phase I Report, which summed up Baker Botts' entire Phase I investigation, to Deloitte and Touche. Additionally, they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning the ultimate findings of Phase II, interview observations and summaries, and exhibits used during witness interviews. Based on that evidence, the court finds that these disclosures amount to a significant portion of attorney-client privileged information, and thus, the waiver of attorney-client privilege extends to all responsive documents relating to the Phase I and Phase II subject matter. Accordingly, the attorney-client privilege has been waived as to all documents responsive to Categories 3, 4, 5, and 6.")

Case Date Jurisdiction State Cite Checked
2006-10-16 Federal TX
Comment:

key case


Chapter: 25.703
Case Name: United States v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 335 36 (4th Cir. 2003)
("The Government also contends that its second question whether Counsel 'advised [Appellant] to answer "no" to [Question 1(b)],' . . . does not seek information protected by the attorney-client privilege. The Government argues that because Appellant answered 'no' to Question 1(b) in a publicly filed document, he cannot claim an attorney-client privilege in connection with that answer because he did not intend for it to remain confidential. The district court declined to address this specific argument, instead focusing on Appellant's waiver of the privilege. Nonetheless, the district court stated that 'there is no question . . . that there was an attorney-client privilege here' and that 'the advice would be within the scope of that privilege.' . . . We agree with the district court that the attorney-client privilege would generally protect against disclosure of whether Counsel advised Appellant to answer 'no' to "Question 1(b). The Government's question asked Counsel to reveal the substance of legal advice that she may have given to Appellant concerning his submission of Form I 485 a confidential communication that clearly falls within the scope of the privilege."), cert. denied, 541 U.S. 982 (2004)

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

Chapter: 25.703
Case Name: United States v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 337 (4th Cir. 2003)
("[W]hen the FBI agent confronted Appellant with his shoplifting conviction and asked why he had answered 'no' to Question 1(b), Appellant replied, 'I answered "no" to the question . . . under the advice of an attorney.' . . . And, Appellant identified Counsel by name, also giving the name of a second attorney. Appellant argues that these statements did not constitute a waiver of the attorney-client privilege because they merely revealed his conduct--i.e., that he had acted in a particular way relying on the legal advice of an attorney--rather than disclosing the substance of that advice. This distinction fails, however, because Appellant clearly stated to a third party that his attorney had advised him to answer 'no' to Question 1(b). This same information is the subject of the second (and ultimate) question posed to Counsel by the Government: whether she advised Appellant to answer 'no' to Question 1(b)."), cert. denied, 541 U.S. 982 (2004)

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

Chapter: 25.703
Case Name: In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal
Comment:

key case


Chapter: 25.703
Case Name: In re von Bulow, 828 F.2d 94, 102 (2d Cir. 1987)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisdiction State Cite Checked
1987-01-01 Federal
Comment:

key case


Chapter: 25.703
Case Name:


Case Date Jurisdiction State Cite Checked

Chapter: 25.704
Case Name: DealDash Oyj v. ContextLogic Inc., Case No. 18-cv-02353-MMC (JCS), 2019 U.S. Dist. LEXIS 38891, at *2 (N.D. Cal. Mar. 11, 2019)
May 28, 2019 (PRIVILEGE POINTS)

"Court Issues A Common Sense Rejection Of A Subject Matter Waiver Claim"

Disclosing privileged communications to gain some advantage can sometimes trigger a subject matter waiver, requiring disclosure of additional related communications. Courts agree that fairness dictates the existence and scope of such subject matter waivers. Despite subject matter waivers' inherently unpredictable nature, some courts get it right.

In DealDash Oyj v. ContextLogic Inc., Case No. 18-cv-02353-MMC (JCS), 2019 U.S. Dist. LEXIS 38891, at *2 (N.D. Cal. Mar. 11, 2019), plaintiff claimed that a party's outside counsel triggered a subject matter waiver by filing a declaration stating that: (1) the client's general counsel "has advised me that as far as he knew," the client never received a "cease and desist letter" from plaintiff; and (2) the client "has advised me" that the pertinent trade name "is not important to it," and that the client would stop using it. The court rejected plaintiff's argument seeking a subject matter waiver, noting that plaintiff would not be asserting a waiver if "[the party's] counsel had appeared in court" to say the same things. Id. at *4. As the court explained, "[l]awyers routinely make such representations to courts," and "one of the basic functions of an attorney is to communicate a client's positions to the court." Id. at *5. While acknowledging that "a more thorough attorney" might have submitted the client's supporting declarations, "the shortcut taken in this case, in context of administrative motion to extend the time, does not in fairness call for a broad waiver of privilege." Id. at *5-6.

While it is always risky for lawyers to quote their clients (or vice versa), fairness sometimes prevails to prevent a subject matter waiver.

Case Date Jurisdiction State Cite Checked
2019-03-11 Federal CA
Comment:

key case


Chapter: 25.704
Case Name: Loop AI Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2017 U.S. Dist. LEXIS 4254 (N.D. Cal. Jan. 11, 2017)
("Sternberg stated in a declaration that 'while [he was] at Orrick, he did not advise anyone about implications arising from Anna Gatti's employment with Loop AI because he was not aware of Ms. Gatti's employment with Loop AI at that time.'. . . Plaintiff cites no authority to support its extraordinary position that an attorney's description of the scope of his work, and the knowledge (or lack thereof) that informed that work, somehow results in waiver of all privileged communications. Sternberg's statement did not waive the attorney-client privilege between Orrick and the Almawave Defendants.")

Case Date Jurisdiction State Cite Checked
2017-01-11 Federal CA

Chapter: 25.704
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "If allowed to stand, the District Court's rulings would ring alarm bells in corporate general counsel offices throughout the country about what kinds of descriptions of investigatory and disclosure practices could be used by an adversary to defeat all claims of privilege and protection of an internal investigation."; "These alarm bells would be well founded. If all it took to defeat the privilege and protection attaching to an internal investigation was to notice a deposition regarding the investigations (and the privilege and protection attaching them), we would expect to see such attempts to end-run these barriers to discovery in every lawsuit in which a prior internal investigation was conducted relating to the claims. Accordingly, we think it is essential to act on this Petition in order to protect our privilege waiver jurisprudence.")

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

Chapter: 25.704
Case Name: Prescott v. Gibson, Civ. A. No. 3:11-203, 2015 U.S. Dist. LEXIS 74992 (W.D. Pa. June 10, 2015)
(holding that a litigant did not waive attorney-client privilege protection by advising the adversary's counsel that her client had no knowledge of an accident; "Here, the Court will exclude the testimony of Defendants' counsel, Michael Zabel, under the attorney-client privilege. The conversation between Zabel and French constitutes a communication between an attorney and his client, as French is an employee of Defendant R&L and the conversation was made in anticipation of the present litigation. The conversation meets all of the requirements for attorney-client privilege set forth in detail above. Further, the Court finds that the attorney-client privilege was not waived when Attorney Zabel sent a letter to Plaintiff's counsel. The fact that Zabel wrote a letter to Plaintiff's counsel stating that French had no knowledge of the accident does not waive the privilege and expose all communications between Zabel and French. Accordingly, for these reasons, Defendants' motion to preclude the testimony of Michael Zabel is GRANTED.")

Case Date Jurisdiction State Cite Checked
2015-06-10 Federal PA

Chapter: 25.704
Case Name: Trustees of Boston University v. Everlight Electronics Co., Ltd., Consolidated Civ. A. No. 12-11935-PBS, Civ. A. No. 12-12326-PBS, Civ. A. No. 12-12330-PBS, 2015 U.S. Dist. LEXIS 68281 (D. Mass. May 27, 2015)
("[O]ther courts have recognized an exception to the waiver rule when a client merely discloses a summary or conclusion of the attorney's legal opinions. . . . Accordingly, disclosure of an attorney's ultimate conclusion, without more, may not be sufficient to waive the privilege.")

Case Date Jurisdiction State Cite Checked
2015-05-27 Federal MA
Comment:

key case


Chapter: 25.704
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; finding that GM did not waive the privilege protection for the underlying material by disclosing facts to the government; "'Based on the interviews, and in order to cooperate with the DOJ investigation, Jenner attorneys 'made oral hypothetical proffers' of 'what certain witnesses might say if the DOJ were to speak with them,' a tactic New GM represents is 'in accord with typical practice in DOJ investigations conducted in the Southern District of New York.'. . . Plaintiff makes no argument that those oral proffers -- which 'were not complete or verbatim recitations of what the witnesses said or of the [Interview Materials]' . . . -- or the intention to make those oral proffers, vitiated the attorney-client privilege.'")

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY

Chapter: 25.704
Case Name: North Dakota v. United States, Case No. 1:12-CV-125 (Lead Case), Case No. 1:12-CV-102 (Consolidated Case), 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
(analyzing privilege protection for a government entity; "United States did no more than make a good faith attempt to narrowly confine its claim of attorney-client privilege to what it believed was clearly privileged and avoid getting the parties (along with this court) embroiled over difficult and time-consuming arguments about where exactly to draw the line as to what should be produced and what must be withheld. Further, it does not appear the United States has attempted to gain a litigation advantage over plaintiffs by its redaction efforts, despite plaintiffs' claims to the contrary. Consequently, 'fairness' would not require further disclosure if this was plaintiffs' only argument for waiver and further disclosure."; "There is some authority that the mere reference to an ultimate conclusion of an attorney is not a waiver so long as the actual content of the attorney's confidential communication is not disclosed."; "But, even if there was a waiver, fairness would not require disclosure of the 1962 and the 1980 opinions and other related documents simply on account of this memorandum, at some point prior to the commencement of this case, having found its way into the public domain. . . . . Further, when this document found its way into the public domain, there is no indication it was for the purpose of gaining a tactical advantage for purposes of later litigation, and it does not appear the United States has relied upon it so far.")

Case Date Jurisdiction State Cite Checked
2014-11-25 Federal ND

Chapter: 25.704
Case Name: Morgan v. City of Rockville, Civ. No. GJH 13-1394, 2014 U.S. Dist. LEXIS 151828 (D. Md. Oct. 28, 2014)
(inexplicably finding that a company did not waive its privilege by issuing a press release saying that a law firm had conducted an internal investigation and had "identified no unlawful conduct"; "Here, no actual communications between Rockville employees and Saul Ewing were disclosed to the public. The news release merely outlines the legal services provided to the Rockville city council in response to prior employee complaints. Informing the public that counsel recommended improvements to communication between management and staff does not constitute a disclosure of a confidential communication.")

Case Date Jurisdiction State Cite Checked
2014-10-28 Federal MD

Chapter: 25.704
Case Name: Morgan v. City of Rockville, Civ. No. GJH 13-1394, 2014 U.S. Dist. LEXIS 151828 (D. Md. Oct. 28, 2014)
(inexplicably finding that a company did not waive its privilege by issuing a press release saying that a law firm had conducted an internal investigation and had "identified no unlawful conduct"; "After the report was completed, the City of Rockville issued a news release stating that the City had engaged Saul Ewing to conduct an internal review of Rockville's personnel policies and procedures and that 'Saul Ewing identified no unlawful conduct.'. . . The news release stated that the report contained several recommendations, including (1) refining the City's employee performance evaluation policies; (2) updating the City's Personnel Policies and Procedures Manual; and (3) improving training to ensure consistent application of the City's policies across the organization.")

Case Date Jurisdiction State Cite Checked
2014-10-28 Federal MD

Chapter: 25.704
Case Name: Busey v. Richland School Dist., No. 13-CV-5022-TOR, 2014 U.S. Dist. LEXIS 50579 (E.D. Wash. April 10, 2014)
(finding a client's statement to the newspaper that he relied on a lawyer's advice did not trigger an at issue or an implied waiver; "Plaintiff does provide an exhibit of an article from the local newspaper stating that Richland School Board Chairman Rick Jansons said that 'We followed all the directions of our attorney and were within the law.'. . . Insofar as Plaintiff relies on this statement to show that Defendants put privileged information at issue, the Court disagrees. A statement by a board member, before litigation begins, does not rise to the level of 'at issue' represented by case law, in which parties put privileged information at issue by raising a defense relying on the information.")

Case Date Jurisdiction State Cite Checked
2014-04-10 Federal WA

Chapter: 25.704
Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *14, *17 (D. Conn. Feb. 20, 2014)
(finding that plaintiff had not waived the attorney-client privilege by testifying about an action her lawyer had taken, as follows: "(Q): "'Did you ask Mr. Beebe [Plaintiff's lawyer] to send a letter to State Farm telling them that he had made a mistake?"; "(A): He had answered me in that he said, I will only go up until the date of termination. I don't know any correspondence that may have occurred afterwards or conversation to correct that.'"; "[T]he Court agrees with plaintiff that no waiver of the attorney-client privilege occurred. A careful review of the applicable deposition testimony fails to reveal disclosure of specific and/or the significant substance of privileged communications. In fact, it is apparent that plaintiff only testified in general terms about her conversations with Attorney Beebe. For example, plaintiff testified about her 'understanding' following a meeting with Attorney Beebe . . . and that Attorney Beebe was aware of her physical problems . . . . Plaintiff did not, however, testify as to any specific legal advice Attorney Beebe provided her with respect to her personal injury claim, or his legal conclusions and the facts on which those conclusions were based.")

Case Date Jurisdiction State Cite Checked
2014-02-20 Federal CT B 7/14

Chapter: 25.704
Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *23-24 (D. Kan. Feb. 11, 2014)
(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "But the court agrees with Sprint that the 'ultimate legal conclusions of a party are always implicated at a trial, because it is those conclusions that lead parties to file and pursue lawsuits.' The court does not believe that this is the type of substantive communication that privilege protects. Sprint did not reveal its attorney's reasoning and analysis behind these conclusions (which might be protected by the attorney-client privilege or work-product doctrine). Defendants have cited no case holding that disclosure of a legal conclusion at trial waives privilege as to specific communications about the legal conclusions." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal KS B 7/14

Chapter: 25.704
Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *22 (D. Kan. Feb. 11, 2014)
(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "Mr. Ball [Sprint in-house lawyer] never testified to any specific communications that were exchanged nor any legal advice that Sprint might have been given. The revelation of the general discussion topic between Sprint and its attorneys will not be held to reveal protected communications.")

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal KS B 7/14

Chapter: 25.704
Case Name: Montanez v. Publix Super Markets, Inc., 135 So. 3d 510, 512-13 (Fla. Dist. Ct. App. 2014)
("We also reject Publix's argument that Montanez waived the attorney-client privilege by stating that the response to paragraph 10(c) set forth in her answers to interrogatories was not 'her' answer. At no time in her deposition did Montanez disclose her communications with her attorney regarding the preparation of her answers to interrogatories other than to indicate that the answer she had prepared to interrogatory 10(c) was different than the one served on Publix. We would further observe that interrogatory 10(c) did not require an answer based solely on matters within Montanez' personal knowledge. Indeed, the question called for Montanez to 'provide all facts which form the basis for the allegations within your Complaint.' . . . Thus, contrary to Publix' argument to the trial court, Montanez' interrogatory answer was not necessarily inconsistent with her deposition testimony.")

Case Date Jurisdiction State Cite Checked
2014-01-01 State FL B 8/14

Chapter: 25.704
Case Name: Yarberry v. Gregg Appliances, Inc., Case No. 1:12-cv-611, 2013 U.S. Dist. LEXIS 117198, at *8-9, *12, *12-13 (S.D. Ohio Aug. 19, 2013)
("hhgregg [defendant's parent company] asserts that the Ms. Bush's [Associate Relations Manager] notes are not privileged information and, thus, cannot support Plaintiff's waiver argument. The notes contained on the email concerning Plaintiff's proposed termination letter state, in toto: 'advised 2 proceed w/term but HR will send revised verbiage' and 'TT Stuart...proceed w/term.'"; "Thus, the fact that an attorney has examined a matter or a release of the findings of a special report does not result in waiver of the privilege. As such, a mere acknowledgment that an attorney has looked into a particular question which does not divulge the subject matter of the attorney's whole line of inquiry does not waive attorney-client privilege. . . . Likewise, a release of a report's findings, without revealing the facts that led to the findings does[] not divulge the subject matter of that report and does not waive attorney-client privilege."; "Under the standards set forth in Grand Jury Proceedings October 12, 1995, [78 F.3d 251 (6th Cir. 1996),] the undersigned finds that Ms. Bush's handwritten notes on the email chain do not operate to waive hhgregg's attorney-client privilege. Ms. Bush's notes do not reveal the substance of Mr. Buttrick's advice, any facts upon which Mr. Buttrick's[sic] based his advice upon, nor his reasoning behind his advice.")

Case Date Jurisdiction State Cite Checked
2013-08-19 Federal OH B 4/14

Chapter: 25.704
Case Name: Starr Indem. & Liab. Co. v. Cont'l Cement Comp., Case No. 4:11CV809 JAR, 2012 U.S. Dist. LEXIS 170988, at *5-6 (E.D. Mo. Dec. 3, 2012)
(analyzing privilege and work product issues in a first party insurance context; "The Court finds that, at this point, Starr [insurance company] has not performed an 'affirmative act' waiving the attorney-client privilege. . . . Starr's consultation with its counsel did not constitute a waiver of the attorney-client privilege because it has not raised an advice of counsel defense. Rather, Starr's executives testified that they merely consulted with their counsel as part of their decision-making process. Starr's witnesses made clear that they primarily relied on their experience and own reading of the policy when making their determinations. . . . Continental has not provided any evidence that Starr changed course based upon the advice of its counsel or that it would have acted otherwise. The Court finds that this cannot constitute an affirmative act waiving privilege because 'if reliance always gave rise to waiver in this circumstance, no one would seek coverage counsel's advice.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal MO B 9/13

Chapter: 25.801
Case Name: Liberty International Underwriters Canada v. Scottsdale Ins. Co., Civ. No. 12-4934 (NLH/JS), 2014 U.S. Dist. LEXIS 170722 (D.N.J. Dec. 10, 2014)
("'It is clear that the compelled disclosure of privileged documents does not operate as a waiver of plaintiff's privilege.'")

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

Chapter: 25.801
Case Name: Niceforo v. UBS Global Asset Mgmt. Americas, Inc., 12 Civ. 0033 (KPF) (FM), 12 Civ. 4830 (KPF) (FM), 2014 U.S. Dist. LEXIS 69724 (S.D.N.Y. May 16, 2014)
(holding that plaintiff waived any action for a notebook that she left in her work desk; describing the context; "Even were the Court to find that some of the contents of the notebook were privileged, Niceforo's motion still would have to be denied because she has waived any claim of privilege by delaying her attempts to seek the return of the notebook."; "A party seeking the protections of the attorney-client privilege must affirmatively act to protect her communications. . . . Here, Niceforo failed to take any affirmative action to seek the return of her notebook for more than fifteen months after she left it at UBS. She had several opportunities to request its return, including on the day of her termination and in the two letters that her counsel sent to UBS."; "Niceforo voluntarily placed the notebook in UBS's offices, and then failed to make a demand for its return for fifteen months. Even when she made that demand, she did not assert a claim of privilege for another six months. Through this nearly two-year delay, Niceforo waived any privilege she might otherwise have claimed regarding the contents of the notebook.")

Case Date Jurisdiction State Cite Checked
2014-05-16 Federal NY

Chapter: 25.801
Case Name: Niceforo v. UBS Global Asset Mgmt. Americas, Inc., 12 Civ. 0033 (KPF) (FM), 12 Civ. 4830 (KPF) (FM), 2014 U.S. Dist. LEXIS 69724 (S.D.N.Y. May 16, 2014)
(holding that plaintiff waived any action for a notebook that she left in her work desk; describing the context; "It is undisputed that Niceforo voluntarily brought the notebook into the workplace and did not make any demand for its return until January 8, 2013, more than one year after her termination and six months after UBS had produced a copy of it to her as a part of its first document disclosure. Once Niceforo requested the original notebook, UBS promptly complied. UBS therefore acquired the property lawfully at the outset because Niceforo herself brought it to UBS's offices and left it there. When Niceforo finally demanded the return of the notebook through counsel, UBS did not refuse her request. It follows that no conversion occurred."; finding that the attorney-client privilege did not protect the notebook)

Case Date Jurisdiction State Cite Checked
2014-05-16 Federal NY

Chapter: 25.801
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *11-12 (E.D. Va. Dec. 3, 2012)
("The Fourth Circuit has explained the general waiver doctrine as follows: 'A client can waive an attorney-client privilege expressly or through his own conduct. Implied waiver occurs when a party claiming the privilege has voluntarily disclosed confidential information on a given subject matter to a party not covered by the privilege. However, an attorney may not unilaterally waive the privilege that his client enjoys. The ability to protect work product normally extends to both clients and attorneys, and the attorney or the client, expressly or by conduct, can waive or forfeit it, but only as to himself.' Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 293-94 (4th Cir. 2004) (emphasis in original) (citations and internal quotation marks omitted).")

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal

Chapter: 25.801
Case Name: In re McDowell, 483 B.R. 472, 492 (Bankr. S.D. Tex. 2012)
("[T]he UST argued that 'even if the court should find that [the Questionnaire] is confidential, we believe that the attorney client privilege has been waived because of the major amendments that this debtor filed when they filed the amended schedules because they are materially different from the original schedules.'. . . The UST contends that by the mere filing of the amended Schedules, the Debtors involuntarily waived their attorney-client privilege as to the Questionnaire. This Court disagrees. Involuntary waiver requires an 'oops' moment: that is, the party asserting the privilege must have erroneously made disclosure when, in fact, the party did not intend to make disclosure. Here, the Debtors intended to file the amended Schedules, so there was no error that needs to be corrected.")

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

Chapter: 25.801
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 827 (E.D. Va. 2005)
("And, it is also well-settled that a client waives the attorney-client privilege by voluntarily disclosing otherwise privileged communications to a third party. In fact, this requirement of confidentiality is so central to any claim of privilege that the privilege may be lost even by an inadvertent disclosure to a third party. See In re Grand Jury Proceedings, 727 F.2d at 1356." (footnote omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

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

Chapter: 25.802
Case Name: Van Every v. Ambrozyak, No. 797 MDA 2017, 2018 Pa. Super. Unpub. LEXIS 1256 (Pa. Super. April 20, 2018)
("We are not persuaded by Van Every's argument, given the circumstances of FFE's production. FFE produced the thirty-four documents pursuant to a court order compelling the production of those documents. Thus, the production was not 'voluntary,' and did not operate as a waiver of the attorney-client privilege as to document Nos. 36-40 and 50-51.")

Case Date Jurisdiction State Cite Checked
2018-04-20 State PA

Chapter: 25.803
Case Name: Van Every v. Ambrozyak, No. 797 MDA 2017, 2018 Pa. Super. Unpub. LEXIS 1256 (Pa. Super. April 20, 2018)
("We are not persuaded by Van Every's argument, given the circumstances of FFE's production. FFE produced the thirty-four documents pursuant to a court order compelling the production of those documents. Thus, the production was not 'voluntary,' and did not operate as a waiver of the attorney-client privilege as to document Nos. 36-40 and 50-51.")

Case Date Jurisdiction State Cite Checked
2018-04-20 State PA

Chapter: 25.803
Case Name: JBGR LLC v. Chicago Title Ins. Co., 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017)
(holding that a land use consultant was outside privilege protection; "The plaintiff's repeated failure, over a period of almost two years, to seek a return of the Dempsey memo or a protective order constitutes a waiver of the privilege. . . . The plaintiffs contend that they preserved their claim of privilege by raising it in a letter to the court dated June 17, 2015; by objecting to the defendant's use of the Dempsey memo at depositions; and by communicating to the court and to the defendant their intention to claw the memo back. The record reflects, however, that the plaintiffs took no concrete steps to obtain a ruling from the court on the privilege issue or to claw the Dempsey memo back until the defendant moved to amend the answer earlier this year. The plaintiffs proffer no excuse for their failure to promptly remedy the situation after learning of the disclosure of the memo. Accordingly, the plaintiffs have waived any claim of privilege by failing to exercise reasonable care and due diligence.")

Case Date Jurisdiction State Cite Checked
2017-08-02 State NY

Chapter: 25.803
Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "Dynegy cites no federal case holding compliance with subpoenas issued by the federal government is 'coerced' for purposes of privilege waiver.")

Case Date Jurisdiction State Cite Checked
2016-05-05 Federal NV

Chapter: 25.803
Case Name: In re Engle Cases, Case No.: 3:09-cv-10000-J-WGY-JBT, 2016 U.S. Dist. LEXIS 16667 (M.D. Fla. Feb. 10, 2016)
(ordering disclosure of withheld documents to a Special Master; concluding that the compelled disclosure did not trigger a waiver; also permitting the category log; "[T]he Court affirms that Counsel's disclosure of protected or privileged information is being compelled by the Court, and thus will not constitute a waiver of such protection or privilege.")

Case Date Jurisdiction State Cite Checked
2016-02-10 Federal

Chapter: 25.803
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 Jurisdiction State Cite Checked
2015-04-28 Federal OH

Chapter: 25.803
Case Name: Minter v. Liberty Mutual Fire Ins. Co., Civil Action No. 3:11CV-249-S, 2014 U.S. Dist. LEXIS 86989, at *2 (W.D. Ky. June 26, 2014)
("Attorney-client privilege cannot be waived by compliance with a court's order, though, . . . , and Liberty Mutual only turned over the file after this court directed it to do so.")

Case Date Jurisdiction State Cite Checked
2014-06-26 Federal KY

Chapter: 25.803
Case Name: Hedden v. Kean Univ., 82 A.3d 238, 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; "The fact that the University did not voice an objection at the time or take affirmative steps to reverse Sharp's unilateral action does not defeat assertion of the privilege by its true holder.")

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

Chapter: 25.803
Case Name: Oasis Int'l Waters, Inc. v. United States, 110 Fed. Cir. 87, 107 (Fed. Cl. 2013)
("Intent to disclose may also be implied if the disclosing party fails to object to the receiving party's use of a privileged document during litigation.")

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

Chapter: 25.803
Case Name: In re McDowell, 483 B.R. 472, 492 (Bankr. S.D. Tex. 2012)
("[T]he UST argued that 'even if the court should find that [the Questionnaire] is confidential, we believe that the attorney client privilege has been waived because of the major amendments that this debtor filed when they filed the amended schedules because they are materially different from the original schedules.'. . . The UST contends that by the mere filing of the amended Schedules, the Debtors involuntarily waived their attorney-client privilege as to the Questionnaire. This Court disagrees. Involuntary waiver requires an 'oops' moment: that is, the party asserting the privilege must have erroneously made disclosure when, in fact, the party did not intend to make disclosure. Here, the Debtors intended to file the amended Schedules, so there was no error that needs to be corrected.")

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

Chapter: 25.803
Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 366 (Ill. 2012)
(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "[T]he testimony occurred after the circuit court granted plaintiffs' motion to compel and ordered the production of documents containing or discussing the shared communications. Defendants had contested that motion to compel and invoked the privilege. Following the court's order on the motion to compel, it is apparent that defendants were operating under the assumption that the court had deemed the privilege waived for documents and communications containing legal advice that were shared among defendants. Thus, defendant Rouse did not voluntarily waive the privilege during the depositions.")

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

Chapter: 25.803
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 276 (E.D. Va. 2004)
(rejecting Rambus' argument that it did not voluntarily produce documents in another litigation because the production of those documents was "virtually compelled" by the other court; noting that Rambus did not appeal the other court's order, although it did file a petition for writ of mandamus in the federal circuit, which was denied; finding that Rambus' production was therefore voluntary and cause a waiver)

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA B 12/05

Chapter: 25.803
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 277 (E.D. Va. 2004)
(finding that Rambus had voluntarily produced arguably privileged documents in another case to another party, essentially making a "trade-off" with the other company so that it would drop its efforts to intervene in that case; "[d]isclosure to achieve a tactical objective, of course, effectuates a waiver. Jones, 696 F.2d at l072 (citing In re Sealed Case, 219 U.S. App. D.C. 195, 676 F.2d 793, 808-09 (D.C. Cir. 1982))."; "Rambus struck a deal with Hynix [company involved in the other case]. For its part, Rambus voluntarily disclosed the documents here at issue. That is not judicially compelled disclosure.")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA B 12/05

Chapter: 25.803
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 276, 277 (E.D. Va. 2004)
(rejecting Rambus' argument that it did not voluntarily produce documents in another litigation because the production of those documents was "virtually compelled" by the other court; noting that Rambus did not appeal the other court's order, although it did file a petition for writ of mandamus in the federal circuit, which was denied; finding that Rambus' production was therefore voluntary and cause a waiver; finding that Rambus had voluntarily produced arguably privileged documents in another case to another party, essentially making a "trade-off" with the other company so that it would drop its efforts to intervene in that case; "[d]isclosure to achieve a tactical objective, of course, effectuates a waiver"; "Rambus struck a deal with Hynix [company involved in the other case]. For its part, Rambus voluntarily disclosed the documents here at issue. That is not judicially compelled disclosure.")

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

Chapter: 25.804
Case Name: Garayoa v. Miami-Dade County, Case No. 16-Civ-20213-COOKE/TORRES, 2017 U.S. Dist. LEXIS 113443 (S.D. Fla. July 20, 2017)
(in connection with a Rule 30(b)(6) deposition, explaining that the defendant did not allow the witness to describe the factual basis for an affirmative defense; holding that the information did not deserve work product protection, and that the defendant did not properly seek an immediate protective order; "As an initial matter, instructions not to answer are generally improper with the only exception being questions which seek information in the form of trade secrets or privileged information. And even when an attorney properly instructs a deponent not to answer on the basis of privilege, 'it is the duty of the attorney instructing the witness not to answer to immediately seek a protective order.'")

Case Date Jurisdiction State Cite Checked
2017-07-20 Federal FL

Chapter: 25.804
Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640 (D. Ariz. Dec. 21, 2016)
("In contrast to these cases, the delay on which Plaintiffs rely with respect to Exhibits A and B was a matter of hours. Objections were made while the deposition was still underway. With respect to Exhibits D and E, a reservation of the privilege objection was immediately lodged and Plaintiffs' counsel stated that a later objection would be fine. Given these facts, the Court cannot conclude that Defendants delayed unreasonably in raising their privilege objections. Other cases have held that objections made during a deposition, even if after some questioning on privileged documents, do not waive the privilege.")

Case Date Jurisdiction State Cite Checked
2016-12-21 Federal AZ

Chapter: 25.804
Case Name: Certain Underwriters at Lloyd's London v. National Railroad Passenger Corp., 14-CV-4717 (FB), 2016 U.S. Dist. LEXIS 164204 (E.D.N.Y. Nov. 17, 2016)
(using Federal Rule of Evidence 502; holding that a Rule 502 order indicating that a litigant would not waive its privilege by producing privileged communications to the adversary did not allow the producing party to claw-back documents about which witness testified without an objection; "In 2015, pursuant to Rule 502(d) of the Federal Rules of Evidence ('FRE'), the Court entered a protective order, which provides, among other things, that the parties will not 'waive[] or forfeit[] . . . any claim of privilege or work-product protection' by 'disclos[ing] or mak[ing] available information' that is 'later identified to be subject to [such a claim],' unless the producing party affirmatively uses that information in the litigation by 'motion, pleading or otherwise[.]'; "This Court thereafter construed the non-waiver provision in the protective order to provide that, regardless of the degree of care taken, a party does not waive its privilege merely by producing documents in discovery."; "By their terms, Rules 502(d) and (e) apply only to waiver in connection with disclosures, and say nothing of waiver by other means. Accordingly, while an appropriately worded protective order may prevent waiver due to a producing party's disclosure of privileged information, that party's subsequent failure to timely and specifically object to the use of that information -- during a deposition, for example -- can waive any applicable privilege."; "Amtrak has waived privilege and work-product protection for Exhibits 26 and 44 by failing to seek to preclude their introduction and use at the Noonan deposition. Though Amtrak is arguably correct that the protective order does not provide for waiver based on the mere disclosure of privileged information, nothing in the protective order speaks to the situation at issue here, where Amtrak failed to timely and specifically object to a party's use of privileged material. LMI introduced both exhibits at the Noonan deposition and questioned Noonan about them for several pages of transcript."; "That Amtrak removed Exhibit 26 from its privilege log after a detailed review also counsels in favor of finding waiver. This was no mere inadvertence at work, brought on by the constraints of high-volume document productions; to the contrary, Amtrak's decision to withdraw its claim of privilege for Exhibit 26 was an explicit waiver after considered legal analysis."; "Amtrak seems to argue that the non-waiver provision in the instant case permits the parties to assert and retract claims of privilege at will . . . but this goes too far. Case law and commentary make clear that Rule 502(d) was intended to make discovery issues relating to privilege and waiver more predictable, not insulate parties entirely from the possibility of waiver . . . Amtrak's reading of the non-waiver provision would yield an absurd result, permitting Amtrak to claw back documents, even those used by LMI in depositions and court filings, at any time -- conceivably, even through the close of litigation. The protective order, which was entered by this Court, does not countenance such gamesmanship.")

Case Date Jurisdiction State Cite Checked
2016-11-17 Federal NY

Chapter: 25.804
Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)
(ultimately not deciding whether a deponent's one word deposition answers triggered an at issue waiver; "We turn now to the question of at-issue waiver. While our supreme court has recognized some implied waivers of the attorney-client privilege . . . It has not yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that federal caselaw has recognized an at-issue waiver, but the court declined to address the issue because it was not necessary in the case before it. . . . Nor has this court recognized an at-issue waiver."; "Truscott was compelled in a deposition -- in a case in which she is a defendant -- to answer respondents' questions as to whether she relied on the advice of her counsel. She gave one-word responses to the questions. These compelled responses are not affirmative steps taken by a client to place privileged communications 'at issue.' . . . Respondents have cited no case where a defendant's answer to such a question in a deposition effects an implied waiver of the attorney-client privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants in depositions if they relied on the advice of their counsel in taking an action. Defendants who wisely sought legal advice before terminating an employee, publishing a news article, or taking any other number of actions later giving rise to a claim where their state of mind is at issue would find their privileged communications subject to discovery simply because they truthfully responded in a deposition that they relied on the advice of counsel. Such an implied waiver could chill parties from being candid with their counsel or even seeking legal advice."; "Truscott insists that she has no plans to assert a reliance-on-counsel defense in this case. She made the same assertion to the district court in her memorandum of law supporting her motion to quash. We agree with Truscott that she has not raised a reliance-on-counsel defense through the generic statement in her answer that respondents' claims 'may be barred . . . By any or all of the affirmative defenses contemplated by the Minnesota Rules of Civil Procedure.'. . . If Truscott attempts to raise the defense, respondents may seek appropriate relief and the district court may consider whether such an affirmative step implies a waiver of the attorney-client privilege. At present, however, Truscott has not affirmatively asserted the reliance-on-counsel defense and has not by implication waived the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-05-23 Federal MN
Comment:

key case


Chapter: 25.804
Case Name: Regions Bank v. Kaplan, Case No. 8:12-CV-1837-T-17MAP, 2016 U.S. Dist. LEXIS 65650 (M.D. Fla. May 18, 2016)
(analyzing the following deposition questions and answers: "(Q) In speaking with Mr. Parrish, were you seeking legal advice? Again, not telling me what was talked about, but in speaking with him, were you seeking legal advice?"; "(A) No."; "(Q) Okay. What did Mr. Parrish tell you?"; "(A) He said -- I was telling him about the deal, and he said it sounded too good to be true."; finding that plaintiff sought protected legal advice; "Defendant Kaplan's brief testimony reveals the mental impression of the attorney Defendant Kaplan was consulting. In light of the overall purpose of the meeting, Defendant Kaplan's knowledge that Mr. Parrish was a lawyer, the fact that Defendant Kaplan was charged a fee for the meeting, what Mr. Parrish said in that meeting arguably constitutes legal advice rather than business advice."; "In the context of an attorney-client privilege issue arising at deposition, it is not unusual for an individual client to have an opinion different from his counsel as to the same communication. Given the context, with Defendant's counsel immediately interposing a privilege objection that overrides an individual's testimony, the Court views the objection as providing appropriate guidance on an arguable issue.")

Case Date Jurisdiction State Cite Checked
2016-05-18 Federal FL

Chapter: 25.804
Case Name: Waste Connections of N.C., Inc. v. K.R. Drenth Trucking, Inc., Dkt. No. 3:14-CV-642, 2015 U.S. Dist. LEXIS 102611 (W.D.N.C. Aug. 5, 2015)
("Plaintiff argues that objection to privileged materials during depositions does not need to be 'immediate.' However, it cites no cases to support its argument that objecting after allowing eighteen questions about the privileged material constitutes a 'prompt' objection. The Court is sympathetic with counsel, but does not believe he should be afforded greater protection than an attorney at trial who does not object to evidence at the critical point when tendered. Thus the Court finds that Plaintiff's disclosure operates as a waiver of privilege with respect to the email presented to Fadul at the deposition because Plaintiff failed to promptly notify Defendant when it realized it had inadvertently produced a privileged document, rendering the disclosure outside the bounds of the Consent Protective Order and Federal Rule of Evidence 502(b).")

Case Date Jurisdiction State Cite Checked
2015-08-05 Federal NC

Chapter: 25.804
Case Name: Cason-Merenda v. VHS of Mich., Inc., Case No. 06-15601, 2013 U.S. Dist. LEXIS 140011, at *6-7, *10, *11-12, *12 (E.D. Mich. Sept. 30, 2013)
("Two of the deponents, Ms. Licus and Ms. Logan, did not address or divulge the specific contents of the privileged attorney-client communication -- i.e., the August 2003 memo authored by in-house counsel David Lee -- but instead generally described this memo as a source of instruction or guidance to them regarding the practice of directly contacting competitor health care institutions for compensation information. . . . To the extent that this testimony merely divulged the fact of a communication received from legal counsel, and not its content, it is 'not deemed privileged.'" (citation omitted); "To be sure, the deposition testimony of Amy Lumetta addressed Mr. Lee's August 2003 memo in somewhat greater detail, and arguably touched upon the contents of this memo. In particular, Ms. Lumetta, like Ms. Licus and Ms. Logan, testified that she had received direction from her supervisors that she had to go through third-party consultants rather than communicating directly with competitors to obtain compensation information, and she cited 'a memo circulated in 2003' as the source of this direction. . . . Ms. Lumetta then was specifically asked, however, if she could recall what the memo said, and she responded that it 'just reiterated the guidelines about contacting a third-party consultant, making sure the data was three months [old], and that the aggregate data continued five or more organizations.'" (internal citation omitted); "[T]he Court agrees with Plaintiffs that Defendant Henry Ford has waived any claim of privilege as to this deposition testimony. First, while counsel for Henry Ford raised objections during Ms. Licus's and Ms. Logan's depositions and cautioned these witnesses to avoid revealing the contents of Mr. Lee's August 2003 memo, no such objection was lodged during Ms. Lumetta's deposition, even when Plaintiffs' counsel expressly asked Ms. Lumetta if she could recall what this memo said. . . . The courts have held that such a failure to object to deposition questions or testimony on grounds of attorney-client privilege operates to waive a claim of privilege as to this testimony."; "In addition, when Plaintiffs included Ms. Lumetta's deposition testimony among the exhibits accompanying their consolidated opposition to Defendants' summary judgment motions, neither Henry Ford nor any other Defendant objected that this was privileged material that the Court could not consider in resolving these motions.")

Case Date Jurisdiction State Cite Checked
2013-09-30 Federal MI B 5/14

Chapter: 25.804
Case Name: Baumgardner v. La. Binding Serv., Inc., Case No. 1:11-cv-794, 2013 U.S. Dist. LEXIS 27494, at *21, *21-22, *22-23 (S.D. Ohio Feb. 28, 2013)
("'If this court is presented with the proper circumstances, we will not hesitate to find a waiver of the attorney-client privilege despite the fact that the statements made by a client were on cross-examination.'. . . Rather, a court analyzing whether deposition testimony is voluntary 'must consider the facts of the case before it, specifically the questions and answers from the deposition, and then decide if the testimony concerning the relevant information was voluntary.' . . . A court should consider whether any objections based on the attorney-client privilege were interposed during the relevant questioning or whether the deponent refused to answer any questions about the communications in question."; "[I]n response to a question about when plaintiff allegedly told Williams [defendant] to destroy documents, Williams, on his own and through no leading question or prompting by plaintiff's counsel, volunteered the conversation he had with Carrigg [lawyer]: 'Q [plaintiff's counsel]. What is it that jogged -- What makes you think it was February 2011, that [plaintiff] asked you to destroy documents? A [Williams]. That's what I recall. Q. Okay. I mean, is there anything that makes you recall it was February? A. There -- We were scheduling depositions and I called [Carrigg] and told him you couldn't take [plaintiff's] depositions because he was perjuring himself and that I had to go and look for these documents he was asking me to destroy, see if they existed and if they were in the building. Q. Okay. But -- A. So I went around and -- Q. You mean the attorney told you to do that or -- A. No. I told [Carrigg] that he can't do the depositions because [plaintiff]'s was perjuring himself. I found out that [plaintiff] was perjuring himself and lying and that he asked me to destroy these documents. So I went and looked for the documents. And I hired [another] attorney, got his opinion on whether I could keep [plaintiff] as an employee or not; and he said, no, I had to fire him. And I had to let [Carrigg] know.'" (internal citation omitted); "Notably, Williams' counsel raised no objections based on attorney-client privilege to any of the plaintiff's counsel's questions. Further, Williams testimony regarding his communications with Carrigg was not given in response to questions directed at the attorney-client communication but to Williams' actions following plaintiff's purported unlawful conduct. . . . The undersigned therefore finds that Williams' [sic] waived his attorney-client privilege by providing voluntary deposition testimony regarding his communications with Carrigg about plaintiff's purported misconduct. As such, plaintiff is entitled to depose Carrigg and view documents in Carrigg's possession relating to this testimony.")

Case Date Jurisdiction State Cite Checked
2013-02-28 Federal OH B 3/14

Chapter: 25.804
Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 903 (N.D. Ill. 2013)
(in a patent case, holding that a deposition witness waived privilege protection for communications with a lawyer, after the company's lawyer made the following statement at a deposition: "'I am not sure I agree with your characterization about waiver but to the extent you want to examine what Raj said I am going to permit that.'" (internal citation omitted); holding that the deposition testimony triggered a subject matter waiver; "TMC's [plaintiff] disclosure constitutes a complete subject matter waiver on the subject of Lot No. 1344985. In this case the scope of the waiver extends beyond the actual conversation disclosed in Dr. Kuzmich's [plaintiff's outside lawyer] deposition -- fairness dictates this broad scope. TMC's waiver of privilege over Dr. Kuzmich's conversation with Dr. Motheram [plaintiff's scientist] eight days before the close of the extended fact discovery period afforded TMC a tactical advantage in litigation. TMC disclosed Dr. Kuzmich's conversation with Dr. Motheram because it supports its position -- namely, it supports the position that Lot No. 1344985 was not procured using the New Process and is therefore not material to patentability -- but simultaneously seeks to conceal information that potentially does not support its position. Further discovery on Lot No. 1344985 is needed to settle the materiality of the lot.")

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

Chapter: 25.804
Case Name: In re Plasma Derivative Protein Therapies Antitrust Litig., Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *8 (N.D. Ill. Nov. 7, 2012)
("Under Federal Rule of Civil Procedure 30(c)(2), an attorney may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).")

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal IL B 5/13

Chapter: 25.804
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Allowing the introduction of privileged documents and discussions of privileged subjects without objection waives the privilege. Hawkins v. Stables, 148 F.3d 379, 384 (4th Cir. 1998).")

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

Chapter: 25.804
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 Jurisdiction State Cite Checked
2006-01-01 Federal VA

Chapter: 25.804
Case Name: Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1997)
(no summary at this time)

Case Date Jurisdiction State Cite Checked
1997-01-01 Federal

Chapter: 25.804
Case Name: Kerr Contracting Corp. v. George Mason Univ., 25 Va. Cir. 403, 406 (Va. Cir. Ct. 1991)
("in the absence of a protective order, instructing a deponent not to answer a deposition question is not proper unless done in order to protect privileged information or trade secrets")

Case Date Jurisdiction State Cite Checked
1991-01-01 State VA

Chapter: 25.804
Case Name: Aetna Casualty & Surety Co. V. Corroon & Black of Ohio, Inc., 10 Va. Cir. 207, 208, 209, 210 (Va. Cir. Ct. 1987)
("Such instructions [not to answer questions] are proper in order to protect privileged information or trade secrets; otherwise the proper course of action is to state one's objection for the record and allow the question to be answered."; "To the extent that objections are not based on the protection of privileged information or trade secrets, including objections to categories of questions, counsel should refrain from further instructing witnesses not to answer."; "Questions that are contentious as to form . . . should not be pro¬pounded."; "[Consultation with a witness] while a question was pending [was] improper and indeed impermissibly taints the witness' answers."; "[Counsel shall refrain from] 'speaking objection[s]' . . . in which the objections suggest the correct response to witnesses."; "The Court admonishes all counsel to behave with courtesy and dignity in these proceedings.")

Case Date Jurisdiction State Cite Checked
1987-01-01 State VA

Chapter: 25.805
Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)
(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "Defendants argue that even if the parties' protective order supersedes Rule 502(b), MMO separately waived the privilege for Exhibit E (and by extension Exhibit F) by failing to object when defendants used Exhibit E during Dr. Canaday's deposition, allowing Dr. Canaday to testify about it for approximately ten minutes, and waiting seven days to claw it back. Defendants support their argument with a district court decision holding that 'failure to timely object to the introduction of an exhibit [during deposition] waives any privilege, regardless of the presence of a claw-back provision' that is 'intended to override the common law as to inadvertent disclosure.'"; "[T]he Court believes that assessing defendants' separate waiver argument would amount to performing a Rule 502(b)(3) analysis under a different name. Doing so would be inconsistent with the Court's determination that the parties intended for their protective order to override Rule 502(b). The Court therefore rejects defendants' separate waiver argument for Goroff Exhibits E and F.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal IL

Chapter: 25.805
Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)
(in an FLSA case, holding that there was no waiver when a functional equivalent of an employee took documents when leaving the company, but the company sued to retrieve; and when a hostile witness disclosed privileged communications over the company's lawyer's objection; "Counsel generally protects the attorney-client privilege by objecting at a deposition when opposing counsel attempts to elicit attorney-client protected information. . . . if deposition testimony does not actually reveal the substance of attorney-client communications, there is no waiver."; "Here, the Court notes that, while Defendants' counsel did ask Baker questions at his deposition about legal advice allegedly received by Defendants, Defendants' counsel also made the following initial objections as to attorney-client privilege at Baker's deposition: 'I don't want to know what Mr. Rosenfeldt told [various Investments Limited employees]. If I ask you that, I will ask you that. Because that may be privileged. If you are going to tell me what he said, then I am going to insist that this portion of the record be sealed until attorney/client privilege issues can be resolved.'. . . Defendants' counsel further stated, '[i]f you want to tell me, subject to sealing this answer pending a ruling on attorney/client privilege, I will let you tell me that.' Id. . . . While Defendants' counsel did not make further specific privilege objections throughout all of Baker's testimony, Defendants' counsel did make these preliminary objections on the record."; Plaintiffs' counsel, Chris Kleppin, represented in Plaintiffs' Response to Defendants' Motion that Defendants waived the attorney-client privilege by, inter alia, 'their lengthy questioning of Baker on this topic at his deposition without invoking the attorney-client privilege. . . .'. . . . However, Kleppin's representation to this Court that Defendants' counsel never invoked the attorney-client privilege at Baker's deposition is simply not true as Defendants' counsel did initially assert the attorney-client privilege at Baker's deposition as noted above. . . . Mr. Kleppin failed to disclose that important fact to the Court."; "The Court finds that the attorney-client privilege has not been waived as a result of the deposition questioning for numerous reasons. First, Federal Rule of Civil Procedure 30(d)(3) does not specifically permit Defendants' counsel to halt the deposition based on a non-party witness such as Baker providing attorney-client privileged information. Although Defendants could have halted the deposition and sought relief from the Court, the propriety of such action would have most certainly been the subject of numerous motions, requests for sanctions, responses and replies, as the parties in this case are extremely and unnecessarily litigious."; "Second, witness Baker was and is adverse and hostile to the Defendants, and Defendants could not instruct a non-party witness such as Baker to not answer a question."; "Third, witness Baker is also a client of Plaintiffs' counsel in this case, and a review of his deposition . . . and other record evidence in this case shows that Baker is intent on providing as much damaging information as possible against Defendants, including any testimony or information that was potentially attorney-client privileged.")

Case Date Jurisdiction State Cite Checked
2017-10-05 Federal FL
Comment:

key case


Chapter: 25.805
Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)
(in an FLSA case, holding that there was no waiver when a functional equivalent of an employee took documents when leaving the company, but the company sued to retrieve; and when a hostile witness disclosed privileged communications over the company's lawyer's objection; "Defendants argue that Baker misappropriated hundreds of thousands of pages of documents from Investments Limited, including DE 314-1, in 2013. . . . Defendants contend that they have not waived the attorney-client privilege as to DE 314-1 because, once they learned that Baker was in possession of the thumb drive of documents in 2013, Defendants sent demand letters to Baker demanding return of the documents. . . . When he refused to return the documents, Defendants sued Baker and Falso in 2014 for misappropriation of confidential documents and conspiracy in the case of Batmasian et al. v. Baker and Falso, Case No.: 2104CA008186 AI, which remains pending. Id.")

Case Date Jurisdiction State Cite Checked
2017-10-05 Federal FL
Comment:

key case


Chapter: 25.805
Case Name: JBGR LLC v. Chicago Title Ins. Co., 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017)
(holding that a land use consultant was outside privilege protection; "The plaintiff's repeated failure, over a period of almost two years, to seek a return of the Dempsey memo or a protective order constitutes a waiver of the privilege. . . . The plaintiffs contend that they preserved their claim of privilege by raising it in a letter to the court dated June 17, 2015; by objecting to the defendant's use of the Dempsey memo at depositions; and by communicating to the court and to the defendant their intention to claw the memo back. The record reflects, however, that the plaintiffs took no concrete steps to obtain a ruling from the court on the privilege issue or to claw the Dempsey memo back until the defendant moved to amend the answer earlier this year. The plaintiffs proffer no excuse for their failure to promptly remedy the situation after learning of the disclosure of the memo. Accordingly, the plaintiffs have waived any claim of privilege by failing to exercise reasonable care and due diligence.")

Case Date Jurisdiction State Cite Checked
2017-08-02 State NY

Chapter: 25.805
Case Name: Garayoa v. Miami-Dade County, Case No. 16-Civ-20213-COOKE/TORRES, 2017 U.S. Dist. LEXIS 113443 (S.D. Fla. July 20, 2017)
(in connection with a Rule 30(b)(6) deposition, explaining that the defendant did not allow the witness to describe the factual basis for an affirmative defense; holding that the information did not deserve work product protection, and that the defendant did not properly seek an immediate protective order; "As an initial matter, instructions not to answer are generally improper with the only exception being questions which seek information in the form of trade secrets or privileged information. And even when an attorney properly instructs a deponent not to answer on the basis of privilege, 'it is the duty of the attorney instructing the witness not to answer to immediately seek a protective order.'")

Case Date Jurisdiction State Cite Checked
2017-07-20 Federal FL

Chapter: 25.805
Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 366 (Ill. 2012)
(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "[T]he testimony occurred after the circuit court granted plaintiffs' motion to compel and ordered the production of documents containing or discussing the shared communications. Defendants had contested that motion to compel and invoked the privilege. Following the court's order on the motion to compel, it is apparent that defendants were operating under the assumption that the court had deemed the privilege waived for documents and communications containing legal advice that were shared among defendants. Thus, defendant Rouse did not voluntarily waive the privilege during the depositions.")

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

Chapter: 25.806
Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "Dynegy cites no federal case holding compliance with subpoenas issued by the federal government is 'coerced' for purposes of privilege waiver.")

Case Date Jurisdiction State Cite Checked
2016-05-05 Federal NV

Chapter: 25.806
Case Name: United States v. Finazzo, No. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *45 (E.D.N.Y. Feb. 19, 2013)
(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "Finazzo's assertion that the interview was so hostile and coercive as to render his waiver involuntary is meritless. As discussed above, a waiver must be a 'deliberate decision to disclose privileged materials in a forum where disclosure was voluntary and calculated to benefit the disclosing party.'. . . Although the meeting was a stressful situation, Finazzo's so-called interrogators repeatedly expressed affection for him and one of them even began crying. . . . It would be hard to imagine a less hostile meeting at which an employee is fired.")

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

Chapter: 25.807
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 55877, at *12, *15, *19 (S.D.N.Y. Apr. 12, 2013)
(holding that a failure to sufficiently log documents resulted in a waiver, which resulted in a sanction and compulsion of production of the withheld documents; "[C]ourts have held that 'a party does not waive the attorney-client privilege for documents which he is compelled to produce.' Defendants attempt to fit the facts of this case into the latter category of disclosure, claiming that Donziger did not voluntarily waive privilege objections when, as they put it, he was 'sanction[ed]' by the Court and compelled to produce documents. This argument is not persuasive."; "Donziger's intentional failure to do so, especially for the purpose of gaining a tactical advantage, constituted a voluntary waiver. He and his clients must be deemed responsible for the natural and predictable consequences of his intentional failure to act."; "Where, as here, the holders' agent fails to comply with explicit court rules prescribing the time and' manner for assertion of a claim of privilege for the purpose of delay and to gain a tactical advantage, the holders and their agents have not taken appropriate measures to preserve the confidential nature of the materials in question."; holding that the waiver extended to later litigation; rejecting the argument that the earlier sanction resulted in a compelled production rather than a voluntary production for waiver analysis purposes)

Case Date Jurisdiction State Cite Checked
2013-04-12 Federal NY B 3/14

Chapter: 25.904
Case Name: Apple Inc. v. Samsung Electronics Co., Ltd., Case No.: 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386 (N.D. Cal. April 3, 2015)
(analyzing the effect of Samsung's defense of admitted disclosure of confidential information about non-party Nokia; "Samsung further fails to explain why it disclosed documents associated with the Teece report to many individuals with no apparent connection to this litigation. . . . Nor do the declarations show that each recipient was 'directly concerned with' or had 'primary responsibility for the subject matter of the communication.' And while Samsung complains that Apple and Nokia offer 'no basis' for disputing Samsung's description of the emails as having sent to each recipient for providing Samsung with legal advice, what Samsung ignores is that the burden lies of proof here lies with Samsung, and Samsung has failed even the most generous read of its threshold burden.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA

Chapter: 25.1302
Case Name: Seehafer v. Weyerhaeuser Co., 14-cv-161-wmc, 2014 U.S. Dist. LEXIS 108838 (W.D. Wis. Aug. 7, 2014)
(holding that the defendant must produce documents that it also produced in 2003 without claiming privilege at that time)

Case Date Jurisdiction State Cite Checked
2014-08-07 Federal WI

Chapter: 25.1302
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK) (JCF), 2013 U.S. Dist. LEXIS 113050, at *18, *19 (S.D.N.Y. Aug. 9, 2013)
("Where a party voluntarily discloses privileged documents to an adversary in one proceeding, it cannot withhold the same documents on the basis of privilege in a subsequent proceeding, even if that subsequent proceeding involves a different adversary."; "The fact that Chevron found 33 documents on the privilege log of Mr. Naranjo and Mr. Payaguaje [defendants] that 'seem to have been previously produced' . . . does not support Chevron's hyperbole, and I do not find that Mr. Naranjo and Mr. Payaguaje have broadly waived protection over the documents on their log.")

Case Date Jurisdiction State Cite Checked
2013-08-09 Federal NY B 4/14

Chapter: 25.1302
Case Name: MPT, Inc. v. Marathon Labels, Inc., No. 1:04 CV 2357, 2006 U.S. Dist. LEXIS 4998, at *17 (N.D. Ohio Feb. 9, 2006)
(assessing privilege issues in a patent infringement claim; "Once the privilege is waived, waiver is complete and final as to all parties and for all purposes.")

Case Date Jurisdiction State Cite Checked
2006-02-09 Federal OH

Chapter: 25.1303
Case Name: Caldwell v. San Francisco, Case No. 12-cv-01892-EDL, 2015 U.S. Dist. LEXIS 35232 (N.D. Cal. March 19, 2015)
(finding disclosure of privileged communications in a state court habeas proceeding did not result in a waiver in a later federal court civil rights action; "There does not appear to be any controlling authority regarding whether a disclosure of privileged communications in a state court habeas proceeding without a protective order constitutes a waiver of the attorney-client privilege in a subsequent federal civil rights suit."; "[T]he disclosure of attorney-client communications in Plaintiff's habeas petition did not constitute a waiver of the attorney-client privilege under California law.")

Case Date Jurisdiction State Cite Checked
2015-03-19 Federal CA

Chapter: 25.1303
Case Name: Hernandez v. Creative Concepts, No. 2:10-cv-02132-PMP-VCF, 2013 U.S. Dist. LEXIS 103773, at *26-27, *27 (D. Nev. July 23, 2013)
("[W]e begin with the notion that the five logged documents at issue here are confidential communications that are 'traditionally kept secret,' and that the court determined that defendant NPL 'waived' the attorney-client privilege and that exceptions apply. The court's determination that the logged documents must be produced to the plaintiffs was in relation to the specific allegations and defenses presented in this action, and in no way deemed the communications non-confidential. . . . The plaintiffs should not be permitted to use these documents for purposes outside this litigation, especially when such communications are normally confidential for 'important policy reasons.'" (citation omitted); "Defendant NPL asks this court to issue an order (1) restricting the use of the logged documents for any other purpose than this case, (2) prohibiting publication or disclosure of the logged documents in any manner to non-parties without an order requiring such, and (3) requiring any party that wishes to file the documents with the court under seal. . . . As these logged documents were ordered produced due to an exception and waiver that apply in light of the facts, allegations, and defenses of this action, the court finds that use of these documents for purposes other than in this action is improper.")

Case Date Jurisdiction State Cite Checked
2013-07-23 Federal NV B 4/14