Showing 195 of 195 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1998-01-01 Federal VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2013-06-11 Federal NY
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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2017-03-20 Federal VA

Chapter: 25.502

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

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

key case


Chapter: 25.502

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

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

key case


Chapter: 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2014-12-05 Federal CT

Chapter: 25.504

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

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

key case


Chapter: 25.504

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

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

key case


Chapter: 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1990-01-01 Federal VA

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 Jurisidction 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, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017)
(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.'")

Case Date Jurisidction State Cite Checked
2017-06-05 State 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 *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 Jurisidction 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 *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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2012-01-01 State IL B 8/13

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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2013-08-19 Federal OH B 4/14

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2011-01-01 Federal NY B 10/12

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 *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 Jurisidction 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 *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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2013-11-05 Federal NY
Comment:

key case


Chapter: 25.606*

Case Name:


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

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 Jurisidction State Cite Checked
2009-01-01 Federal VA B 9/10

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2013-08-16 Federal MD B 4/14

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 Jurisidction State Cite Checked
2017-06-20 Federal DC
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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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)