Showing 247 of 247 results

Chapter: 25.1

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

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

Chapter: 25.1

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

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

Chapter: 25.1

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

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

Chapter: 25.2

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

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

Chapter: 25.2

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

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

Chapter: 25.3

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

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

Chapter: 25.3

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

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

key case


Chapter: 25.3

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

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

Chapter: 25.3

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

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

Chapter: 25.3

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

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

Chapter: 25.3

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

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

Chapter: 25.3

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

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

Chapter: 25.3

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

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

Chapter: 25.3

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

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

Chapter: 25.4

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

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

key case


Chapter: 25.4

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

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

key case


Chapter: 25.4

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

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

key case


Chapter: 25.4

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

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

Chapter: 25.4

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

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

Chapter: 25.4

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

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

key case


Chapter: 25.4

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

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

key case


Chapter: 25.4

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

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

Chapter: 25.4

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

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

Chapter: 25.4

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

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

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

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

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

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

key case


Chapter: 25.4

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

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

key case


Chapter: 25.9

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

"Court Analyzes a Subject Matter Waiver's Scope"

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

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

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

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

key case


Chapter: 25.9

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

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

Chapter: 25.10

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

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

Chapter: 25.10

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

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

Chapter: 25.11

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

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

Chapter: 25.12

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

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

Chapter: 25.502

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

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

key case


Chapter: 25.502

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

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

Chapter: 25.502

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

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

Chapter: 25.503

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

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

Chapter: 25.503

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

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

Chapter: 25.602

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

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

key case


Chapter: 25.602

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

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

key case


Chapter: 25.602

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

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

key case


Chapter: 25.602

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

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

key case


Chapter: 25.602

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

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

key case


Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

key case


Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.602

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

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

Chapter: 25.603

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

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

key case


Chapter: 25.603

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

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

Chapter: 25.603

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

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

key case


Chapter: 25.603

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

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

key case


Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

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

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

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

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

key case


Chapter: 25.603

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

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

Chapter: 25.603

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

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

Chapter: 25.603

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