Showing 226 of 226 results

Chapter: 28.2

Case Name: Gardner v. Major Automobile Co., Inc., 11 Civ. 1664 (FB) (VMS), 2014 U.S. Dist. LEXIS 44877 (E.D.N.Y. March 31, 2014)
(addressing a general counsel's testimony as a Rule 30(b)(6) witness that he relied on an outside lawyer, but noting the defendant's disclaimer of any reliance on advice of counsel defense in finding that there had not been waiver; finding that a litigant's assertion of good faith did not trigger a waiver; "Defendant Keltz [General Counsel] made a partial disclosure of a confidential conversation when he stated that Littman [Outside Lawyer] advised Defendant Major that it was not necessary to update a valuation, but this does not amount to a selective disclosure that requires an implied-waiver finding because, in order 'to effectuate [such] a waiver, the selective disclosure must have occurred in an adversarial context, i.e., one that has the potential to cause legal prejudice to the proponent's adversary.'. . . Here, Defendant Keltz's partial disclosure was made at deposition and not in front of a factfinder.")

Case Date Jurisidction State Cite Checked
2014-03-31 Federal NY

Chapter: 28.2

Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *20, *21 (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; "There are two primary ways in which a party can waive the attorney-client privilege. First, a party may implicitly waive the privilege by asserting a claim or defense that relies on privileged materials as its basis."; "Second, and more relevant here, a party may expressly waive the attorney-client privilege.")

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

Chapter: 28.2

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

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

Chapter: 28.2

Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *15 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "Implied waivers may be found where a party seeks to use the privilege as both a sword and shield, as, for example, where a client seeks to rely on counsel's advice as an element of a claim or defense, or discloses only portions of such communications.")

Case Date Jurisidction State Cite Checked
2013-02-22 Federal NH B 3/14

Chapter: 28.2

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

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

Chapter: 28.2

Case Name: Shared Med. Res., LLC v. Histologics, LLC, No. SACV 12 0612 DOC (RNBx), 2012 U.S. Dist. LEXIS 164336, at *5 n.2 (C.D. Cal. Nov. 14, 2012)
("'The 'waiver-by-affirmative reliance' doctrine is also known as 'the waiver-by-affirmative-use' doctrine.'")

Case Date Jurisidction State Cite Checked
2012-11-14 Federal CA B 7/13

Chapter: 28.2

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

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

Chapter: 28.2

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

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

Chapter: 28.2

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 445 (W.D. Va. 2009)
("'A client can waive an attorney-client privilege expressly or through his own conduct.' Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 294 (4th Cir. 2004).")

Case Date Jurisidction State Cite Checked
2009-01-01 Federal VA

Chapter: 28.2

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

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

Chapter: 28.2

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 n.3 (W.D. Va. 2005)
("Implied waiver, for example, occurs when the party claiming the privilege makes any disclosure of a confidential communication to any individual who is not embraced by the privilege. In re Grand Jury Subpoena, 341 F.3d at 336.")

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

Chapter: 28.2

Case Name: Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 293-94 (4th Cir. 2004)
("A client can waive an attorney-client privilege expressly or through his own conduct. . . . Implied waiver occurs when a party claiming the privilege has voluntarily disclosed confidential information on a given subject matter to a party not covered by the privilege. . . . However, an attorney may not unilaterally waive the privilege that his client enjoys." (emphasis in original))

Case Date Jurisidction State Cite Checked
2004-01-01 Federal N 11/05

Chapter: 28.2

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

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

Chapter: 28.2

Case Name: Commonwealth v. Miller, 66 Va. Cir. 470, 470-71 (Va. Cir. Ct. 2001)
("The attorney-client privilege may be waived by the client either expressly or implied from the client's conduct. Commonwealth v. Edwards, supra, at 509; Grant, supra. at 648-49. In the instant case, the defendant told the police officer transporting her to the Albemarle Regional Jail on September 13, 2001, that Bruce K. Tyler, her former lawyer, told her that she need not legally change her name to get a home equity loan or insurance benefits. I find that this constitutes an implied waiver of the attorney-client privilege. It is a communication to the police officer of information that would otherwise be privileged because it was a communication from her lawyer to her in the course of his employment. This waiver not only waives the privilege as to any transmitted data, but also as to the details underlying that information. Commonwealth v. Edwards, supra, at 509-10.")

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

Chapter: 28.2

Case Name: Commonwealth of Va. v. Evans, 55 Va. Cir. 237, 242 (Va. Cir. Ct. 2001)
("The privilege may be expressly waived by the client or implicitly waived as a result of the client's conduct. Id. [Commonwealth v. Edwards, 235 Va. 499, 508-510, 370 S.E.2d 296, 301 (1988) (quoting Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914)]")

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

Chapter: 28.2

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 188 (Va. Cir. Ct. 2000)
("The Court continues, 'The privilege may be expressly waived by the client, or a waiver may be implied from the client's conduct.' Id. [Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296 (1988) (citing 8 Wigmore, Evidence, § 2291 at 554 (McNaughton rev. 1961))]")

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

Chapter: 28.2

Case Name: Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th Cir. 1998)
("As a general rule, implied waiver occurs when the party claiming the privilege has made any disclosure of a confidential communication to any individual who is not embraced by the privilege.")

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

Chapter: 28.17

Case Name: In re Residential Capital, LLC, 491 B.R. 63, 72 (S.D.N.Y. 2013)
(holding that the law firm of Morrison & Foerster had claimed privilege for several communications during discovery, and therefore its client could not claim advice of counsel at trial; "The Debtors are walking a fine line between arguing that they sought and received the advice of counsel when negotiating and evaluating (and ultimately approving) the RMBS Trust Settlement, and that they relied on the advice of counsel in approving the RMBS Trust Settlement. For example, the Debtors claim they only want to introduce the fact that the critical negotiations were handled by the Debtors' attorneys, without delving into the substance of those negotiations (to the extent they were undertaken by the Debtors' attorneys). . . . Yet, the Debtors' RMBS Reply Briefs are replete with statements such as '[t]he directors were entitled to rely on these [legal and financial] experts' advice and counsel' and 'ResCap LLC's directors . . . relied on advice and presentation materials from their advisors that were fair, accurate, and adequate to the task.'" (internal citation omitted); "The attorney-client privilege is not waived if the Debtors argued that they sought the advice of counsel, among other actions, in an effort to reasonably educate themselves as to the merits of the settlement. However, after having asserted the attorney-client privilege throughout discovery, the Debtors cannot now introduce the substance of whatever advice it sought and received in order to demonstrate that it exercised proper business judgment in approving the RMBS Trust Settlement, even for the purpose of rebutting a 'due care' challenge.")

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

Chapter: 28.20

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

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

Chapter: 28.702

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2017 U.S. Dist. 7137 (N.D. Ga. Jan. 18, 2017)
(holding that plaintiff's malpractice case against its former lawyer impliedly waived opinion work product protection for documents created by replacement counsel; "Monitronics has alleged that the Veasley verdict was the result of Defendants' malpractice in their representation of Monitronics before they were discharged. In doing so, Monitronics must show, among other things, that the alleged malpractice was the proximate cause of the damage alleged. Monitronics has directly implicated the relevance of the Production Documents because it alleges that Defendants were the sole proximate cause of the Veasley verdict, even though Defendants were replaced by successor counsel months before the verdict was returned."; "Defendants have asserted several affirmative defenses to Monitronics' malpractice claim, including lack of causation and comparative negligence, and they have filed a notice seeking to apportion fault to successor counsel. 'It would undermine the most basic concepts of fairness to allow [Monitronics] to claim [Defendants are] liable for the entirety of their damages, while precluding the discovery of contrary evidence.'. . . This is especially true considering that the Court's review of the Production Documents submitted for in camera review disclosed specific reasons for the fact and magnitude of the Veasley verdict based on reasons other than Defendants' alleged professional conduct."; "The Court has reviewed the opinion work product materials submitted by Monitronics and the Nonparties. The Court finds in the particular circumstances of this legal malpractice case -- where Plaintiff claims the Defendant lawyers are responsible for the entirety of an adverse jury verdict issued months after Defendants were replaced by successor counsel, where Defendants did not participate in the trial or the unsuccessful appeal, and where a number of the submitted opinion work product materials are central to the causation issue in this case -- that portions of the Productions Documents submitted for review are required to be produced.")

Case Date Jurisidction State Cite Checked
2017-01-18 Federal GA

Chapter: 28.702

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2016 U.S. Dist. LEXIS 166402 (N.D. Ga. Dec. 2, 2016)
(ordering malpractice plaintiff suing its former lawyer to turn over privileged communications with successor counsel; "In most malpractice cases involving implied waiver of the attorney-client privilege, the issue is whether the privilege between the plaintiff-client and the defendant-attorney has been waived. This case presents a different question. Monitronics has not asserted the attorney-client privilege over its communications with Defendants. Instead, Monitronics asserts the privilege with respect to its communications with other lawyers who worked on the Veasley case after Defendants were terminated. The question is whether Monitronics, by suing Defendants for malpractice, has waived its privilege with respect to these documents."; "Monitronics has implicated the relevance of the Requested Documents because it alleges that Defendants were the sole proximate cause of the Veasley verdict, even though Defendants were replaced by successor counsel months before the verdict was returned."; "The Court also finds that, subject to certain exceptions noted below, the Requested Documents are vital to Defendants' defense. The court in Lyon reasoned that, absent production of communications between the plaintiff-client and subsequent counsel, defendant-attorneys 'would be effectively precluded from challenging the causation and actual damages prongs for legal malpractice,' because they would not be allowed to advocate fully their defense that other persons were responsible, in whole or in part, for plaintiff's damages."; "For example, if Monitronics' successor counsel chose not to engage in all or part of the discovery it claims Defendants should have conducted regarding Okrah, Veasley's son, Warren's husband, and Veasley's neighbors, the reason for not engaging in this discovery may discredit Monitronics' allegation that it was malpractice for Defendants not to do so. If successor counsel was able to, but did not, procure ATM or McDonald's security video footage for March 29, 2006, that failure may have proximately caused some of Monitronics' damages. If successor counsel made pretrial and trial decisions independent of the conduct Monitronics alleges constitutes malpractice, those decisions may undercut Monitronics' malpractice claim against Defendants. It would be odd -- if not unfair -- to preclude Defendants from discovering documents showing whether successor counsel or insurers had views of the evidence and trial presentation that aligned with Defendants'. These kinds of strategy evaluation and litigation decision materials are largely, if not exclusively, the kind of documents maintained in the file of Monitronics and its lawyers and not available to Defendants unless produced.")

Case Date Jurisidction State Cite Checked
2016-12-02 Federal GA

Chapter: 28.702

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)
(analyzing effective joint representation; "Section 958 provides that '[t]here is no privilege under this article [(i.e., no attorney-client privilege)] as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.' The rationale for the exception is that '[i]t would be unjust to permit a client . . . To accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge . . .'")

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

Chapter: 28.702

Case Name: FDIC v. Lowis & Gellen LLP, No. 11 CV 5902, 2014 U.S. Dist. LEXIS 21022, at *22 (N.D. Ill. Feb. 20, 2014)
(in a malpractice case, finding that plaintiff had not triggered an at issue waiver; holding that if the plaintiff sought fees as damages, redaction may result in the inability to recover those fees; "[S]eeking attorneys' fees in a malpractice action is, in itself, insufficient to put damages at issue for waiver purposes.")

Case Date Jurisidction State Cite Checked
2014-02-20 Federal IL B 7/14

Chapter: 28.702

Case Name: Radware, Ltd. v. A10 Networks, Inc., Case No. C-13-02021-RMW, 2014 U.S. Dist. LEXIS 2769, at *2-3, *5-6, *8, *12 (N.D. Cal. Jan. 8, 2014)
(holding that a former client had triggered an at issue waiver by seeking to disqualify the law firm of Irell & Manella; allowed Irell to seek access to the documents on which the former client relied; "A10 Networks, Inc. ('A10') is represented by both Irell and Latham & Watkins LLP ('Latham') in this suit. Radware has moved to disqualify Irell from representing A10 because of Irell's alleged previous representation of Radware. . . . Radware's motion relies in part on attorney-client privileged communications between Irell and Radware in support of its motion to disqualify."; "The Ninth Circuit provides a three factor test for determining when attorney-client privilege has been waived under the 'fairness principle:' (1) 'the party is asserting the privilege as the result of some affirmative act, such as filing suit,' (2) 'through this affirmative act, the asserting party puts the privileged information at issue,' and (3) 'allowing the privilege would deny the opposing party access to information vital to its defense.' . . . The court is hesitant to imply any waiver of attorney-client privilege given the privilege's importance and the ethical concerns involved. However, with the currently-involved Irell attorneys unable to view Radware's motion, allowing the privilege exactly as asserted by Radware would deny the opposing party access to information vital to its defense. The court will therefore impose some limited form of implied waiver of attorney-client privilege in the submitted documents." (footnote omitted); "[I]f the court allows the Irell attorneys involved in the representation of A10 or Radware access to the privileged documents, the erosion of the attorney-client privilege would be nominal at most."; "This court thus presents Radware with the choice: Radware may either (1) withdraw the privileged documents, or it may (2) submit the documents for in camera review with access by the court, Radware, and Irell & Manella LLP's attorneys involved in the firm's previous representation of Radware and those involved in the firm's current litigation with Radware. A10 and Latham are not entitled to view the privileged documents. Should it choose option (2), Radware must also publicly file redacted versions of its disqualification motion and the accompanying Sawyer Declaration. Radware may redact only Exhibit A to the Sawyer Declaration and the related ¶ 3. Radware's Administrative Motion for In Camera Review of Motion for Disqualification of Counsel and Supporting Documents is therefore GRANTED, subject to the above choice.")

Case Date Jurisidction State Cite Checked
2014-01-08 Federal CA B 7/14

Chapter: 28.702

Case Name: IP Telesis Inc. v. Velocity Networks Inc., No. CV 11 09950 RGK (AJWx), slip op. at 2 (C.D. Cal. Nov. 5, 2012)
(dismissing a derivative case against a corporation's lawyer, because the lawyer would be unable to defend itself because the company had not waived its privilege; "Defendant BB&L seeks dismissal from this case, arguing that attorney client privilege protects it from derivative suits brought on behalf of its client, Velocity. This Court agrees."; "Under California law, a derivative suit against a corporation's attorney may be dismissed where, in the absence of waiver by the corporate client, the attorney is effectively foreclosed from mounting any meaningful defense because attorney-client privilege bars disclosure of communications that would form the defense." (footnote omitted))

Case Date Jurisidction State Cite Checked
2012-11-05 Federal CA B 5/13

Chapter: 28.702

Case Name: Tomblyn v. Compton, 26 Va. Cir. 131, 132 (Va. Cir. Ct. 1991)
(plaintiff's malpractice action against a lawyer "put the privileged information held by [plaintiffs' replacement counsel] directly in issue [because] any such information is part of one continuous course of legal representation that the Plaintiffs pursued, first with the Defendant and then with [replacement counsel]")

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

Chapter: 28.703

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 court begins by noting, again, that the Petitioner has intentionally waived the attorney-client privilege with respect to his former counsel's conduct and their communications put into issue and disclosed by his § 2255 Motion and supporting documentation, and he does not dispute this waiver or the government's need for discovery into these privileged communications. . . . Accordingly, under VRPC 1.6(b)(2), the Petitioner's former counsel may reveal information reasonably necessary to respond to allegations concerning their representation of the Petitioner, in connection with this habeas proceeding, without violating the VRPC.")

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

Chapter: 28.703

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

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

Chapter: 28.703

Case Name: Schrader v. United States, 5:16-CV-5110-KES, 2016 U.S. Dist. LEXIS 176551 (D.S.D. Dec. 21, 2016)
("The American Bar Association, however, has issued an opinion advising that former counsel confronted with a client making ineffective assistance of counsel claims, consistent with their ethical obligations (1) may not disclose information imparted to him or her in confidence without first obtaining the informed consent of the former client; and (2) may only disclose such information in 'court-supervised testimony.' ABA Comm. on Eth. and Prof'l Responsibility, Formal Op. 10-456 (July 14, 2010).")

Case Date Jurisidction State Cite Checked
2016-12-21 Federal SD

Chapter: 28.703

Case Name: Cross v. United States, Case No. 5:16-cv-06097, Case No. 5:15-cr-00079, 2016 U.S. Dist. LEXIS 122868 (S.D.W. Va. Sept. 12, 2016)
(holding that a criminal defendant's ineffective assistance of counsel claim allows his former lawyer to disclose confidences, but requiring the lawyer to file an affidavit before disclosing the confidences; "Thus, the court ORDERS Movant's counsel, Mr. E. Ward Morgan, to file within thirty (30) days from the date of this Order an affidavit responding to Movant's specific claims of ineffective assistance of counsel, including his claim that counsel was not properly trained or experienced at criminal law. The affidavit shall incorporate all of the information Mr. Ward believes is necessary to fully respond to the claims and shall include as attachments copies of any documents from his file specifically addressing the matters raised by Movant in his motion. To the extent that these documents address other aspects of Mr. Ward's representation of Movant, which are not pertinent to a resolution of the § 2255, they may redacted. In preparing the affidavit and attachments, counsel should disclose only that information reasonably necessary to ensure the fairness of these proceedings. The court advises Movant, however, that notwithstanding the limitations set forth herein, Mr. Morgan will be given considerable leeway in determining what information is necessary to a fair resolution of the ineffective assistance of counsel claim.")

Case Date Jurisidction State Cite Checked
2016-09-12 Federal VA

Chapter: 28.703

Case Name: Mitchell v. United States, Case Nos. 2:15-cv-05501 & 2:13-cr-00201, 2016 U.S. Dist. LEXIS 5758, at *4-5 (S.D. W. Va. Jan. 19, 2016)
("[T]he ABA acknowledges in the opinion [LEO 456] that 'an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information,' but cautions that this waiver does not operate to fully release an attorney from his or her obligation to keep client information confidential unless the client gives informed consent for disclosure or disclosure is sanctioned by an exception contained in Model Rule 1.6. After examining the various exceptions contained in Model Rule 1.6, the ABA concludes that disclosure may be justified in certain circumstances; however, any such disclosure should be limited to that which the attorney believes is reasonably necessary and should be confined to 'court-supervised' proceedings, rather than ex parte meetings with the non-client party.")

Case Date Jurisidction State Cite Checked
2016-01-19 Federal WV B 7/16

Chapter: 28.703

Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 145811 (N.D. Ill. Oct. 28, 2015)
(holding that ineffective assistance of counsel claim resulted in a broad waiver of privilege and work product, but did not waive opinion work product;"Bittaker [Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003)] recognized that law, like life, often requires that a choice between competing alternatives be made. And so, the court held, a defendant in a criminal who had filed a postconviction claim for ineffective assistance of counsel case had to choose between protecting the confidentiality of communications with his criminal defense lawyer or pursuing his claim. If he chose to abandon his claim, the confidentiality of his communications would be preserved. If he chose to pursue his claim, the confidentiality of those communications would vanish. But choose he must. . . . The same is true for Mr. Patrick [Plaintiff]. And like the plaintiff in Bittaker, he cannot have both objects of his desire. That the choice between pursuing a claim or preserving the confidentiality of communications with one's lawyer presents difficult and incompatible alternatives does not, as Bittaker recognized, make it impermissible to require that the choice be made. The legal system 'is replete with situations requiring the making of difficult judgments as to which course to follow.'. . . The fact that Mr. Patrick had to make such an election does not entitle him to judicial shelter from the consequences of his choice.")

Case Date Jurisidction State Cite Checked
2015-10-28 Federal IL

Chapter: 28.703

Case Name: Fife v. United States, Case No. 13-C-0579, 2015 U.S. Dist. LEXIS 61309 (E.D. Wis. May 11, 2015)
(finding that an ineffective assistance of counsel claim resulted in a subject matter waiver, but with a narrow scope; "When a petitioner expressly denies waiver of the privilege after asserting an ineffective assistance of counsel claim, the claim cannot stand unless the petitioner permits disclosure of communications necessary for the respondent to adequately defend against the ineffective assistance of counsel claim. 'The court thus gives the holder of the privilege a choice: If you want to litigate this claim, then you must waive your privilege to the extent necessary to give your opponent a fair opportunity to defend against it.'")

Case Date Jurisidction State Cite Checked
2015-05-11 Federal WI

Chapter: 28.703

Case Name: Fife v. United States, Case No. 13-C-0579, 2015 U.S. Dist. LEXIS 61309 (E.D. Wis. May 11, 2015)
(finding that an ineffective assistance of counsel claim resulted in a subject matter waiver, but with a narrow scope; "Implied waiver can be found when a petitioner asserts ineffective assistance of counsel in a habeas case.")

Case Date Jurisidction State Cite Checked
2015-05-11 Federal WI

Chapter: 28.703

Case Name: Johnson v. United States, Case No. 3:14-cv-25737, Case No. 3:13-cr-00028-01, 2014 U.S. Dist. LEXIS 140255 (S.D.W Va. Oct. 2, 2014)
(explaining the ethics and privilege waiver implications of a criminal defendant's ineffective assistance of counsel claim; "[I]t is hereby ORDERED that the attorney-client privilege, which attaches to the communications between Movant and his former counsel, shall not be deemed automatically waived in any other Federal or State proceeding by virtue of the above-ordered disclosure in this section 2255 proceeding. The affidavit and documents supplied by Movant's former counsel, if one is filed, shall be limited to use in this proceeding, and the United States is prohibited from otherwise using the privileged information disclosed by Movant's former counsel without further order of a court of competent jurisdiction or a written waiver by Movant.")

Case Date Jurisidction State Cite Checked
2014-10-02 Federal WV

Chapter: 28.703

Case Name: Johnson v. United States, Case No. 3:14-cv-25737, Case No. 3:13-cr-00028-01, 2014 U.S. Dist. LEXIS 140255 (S.D.W Va. Oct. 2, 2014)
(explaining the ethics and privilege waiver implications of a criminal defendant's ineffective assistance of counsel claim; "[T]he Court finds that Movant's former counsel may, without violating the applicable Rules of Professional Conduct, disclose information in this proceeding regarding his communications with Movant to the extent reasonably necessary to comply with an order of this Court or to respond to the allegations of ineffective representation.")

Case Date Jurisidction State Cite Checked
2014-10-02 Federal WV

Chapter: 28.703

Case Name: Washington v. United States of America, Case No.: 2:14-cv-13603, Criminal Case No.: 2:12-cr-00187-1, 2014 U.S. Dist. LEXIS 78576, *6 (S.D. W.Va. June 10, 2014)
(analyzing the subject matter waiver effect of a criminal defendant's ineffective assistance of counsel claim; "[T]he Court finds that Coleman may, without violating the applicable Rules of Professional Conduct, disclose information in this proceeding regarding his communications with Movant to the extent reasonably necessary to comply with an order of this Court or to respond to the allegations of ineffective representation.")

Case Date Jurisidction State Cite Checked
2014-06-10 Federal WV

Chapter: 28.703

Case Name: Porter v. Warden of the Sussex I State Prison, Supreme Court Record No. 091615, (Circuit Court Civil No. CL 10-8257), 2010 Va. Cir. LEXIS 204, at *8 (Dec. 20, 2010)
Porter v. Warden of the Sussex I State Prison, Supreme Court Record No. 091615, (Circuit Court Civil No. CL 10-8257), 2010 Va. Cir. LEXIS 204, at *8 (Dec. 20, 2010) ("'If petitioner alleges as a ground for illegality of his detention the inadequacy of counsel, he shall be deemed to waive his privilege with respect to communications between such counsel and himself to the extent necessary to permit a full and fair hearing for the alleged ground.'")

Case Date Jurisidction State Cite Checked
2010-12-20 State VA

Chapter: 28.703

Case Name: Turner v. Williams, 812 F. Supp. 1400, 1433 (E.D. Va. 1993)
(finding that a former client waived the privilege by contending ineffective assistance of counsel), aff'd, 35 F.3d 872 (4th Cir. 1994), cert. denied, 514 U.S. 1017 (1995)

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

Chapter: 28.704

Case Name: Hunt v. Schauerhamer, Case No. 2:15-CV-1-TC-PMW, 2016 U.S. Dist. LEXIS 1744 (D. Utah Jan. 6, 2016)
(finding that a plaintiff impliedly waived privilege protection by denying her lawyer's authority to settle a case; "The content of the communications between Ms. Hunt and Mr. Sykes (that is, the sealed information) is relevant to all of the parties' arguments. The information may be used by Ms. Hunt to defend against the motion to enforce and to challenge the validity of the Attorney's Lien. Defendants need to use the content of the communications in their effort to enforce the settlement agreement. And Mr. Sykes will need it to enforce his Attorney's Lien. Ms. Hunt's case 'presents precisely the type of situation where the attorney-client privilege must be deemed waived to ensure fairness to both parties.'")

Case Date Jurisidction State Cite Checked
2016-01-06 Federal UT

Chapter: 28.704

Case Name: Lender Processing Services, Inc., v. Arch Insurance Company, Case No. 1D14,4161, 2015 Fla. App. LEXIS 5873, 40 Fla. L. Weekly D. 953, (Ct. of App. Fla., Apr. 22, 2015)
("If an insurer who wants to defend against a claim of bad faith may waive privileges by attempting to show good faith on its part, . . . We see no reason why a corporation that wishes to defend against allegations of a settlement agreement by claiming lack of authority to bind its officers and directors and by relying on its in-house counsel's representations does not waive its attorney-client privilege as to the issue of authority to settle.").

Case Date Jurisidction State Cite Checked
2015-04-22 Federal FL

Chapter: 28.704

Case Name: Imperial Fire & Casualty Ins. Co. v. Warman, Case No. 13-CV-813-CVE-FHM, 2014 U.S. Dist. LEXIS 99309 (N.D. Okla. July 22, 2014)
(following the Hearn case in a situation in which an insurance company hired a lawyer who arguably did not act competently, after which the insured sued the insurance company and the insurance company, settled with insured and then filed a lawsuit against the lawyer; "[T]he court finds that Imperial has broadly waived the attorney client privilege for communications with counsel about the bad faith case. The discoverable attorney client communications include all communications, correspondence, and documents exchanged between Imperial and its attorneys concerning the bad faith case from the date the bad faith suit was initiated through the date of the settlement.")

Case Date Jurisidction State Cite Checked
2014-07-22 Federal OK

Chapter: 28.704

Case Name: Radware, Ltd. v. A10 Networks, Inc., Case No. C-13-02021-RMW, 2014 U.S. Dist. LEXIS 2769, at *2-3, *5-6, *8, *12 (N.D. Cal. Jan. 8, 2014)
(holding that a former client had triggered an at issue waiver by seeking to disqualify the law firm of Irell & Manella; allowed Irell to seek access to the documents on which the former client relied; "A10 Networks, Inc. ('A10') is represented by both Irell and Latham & Watkins LLP ('Latham') in this suit. Radware has moved to disqualify Irell from representing A10 because of Irell's alleged previous representation of Radware. . . . Radware's motion relies in part on attorney-client privileged communications between Irell and Radware in support of its motion to disqualify."; "The Ninth Circuit provides a three factor test for determining when attorney-client privilege has been waived under the 'fairness principle:' (1) 'the party is asserting the privilege as the result of some affirmative act, such as filing suit,' (2) 'through this affirmative act, the asserting party puts the privileged information at issue,' and (3) 'allowing the privilege would deny the opposing party access to information vital to its defense.' . . . The court is hesitant to imply any waiver of attorney-client privilege given the privilege's importance and the ethical concerns involved. However, with the currently-involved Irell attorneys unable to view Radware's motion, allowing the privilege exactly as asserted by Radware would deny the opposing party access to information vital to its defense. The court will therefore impose some limited form of implied waiver of attorney-client privilege in the submitted documents." (footnote omitted); "[I]f the court allows the Irell attorneys involved in the representation of A10 or Radware access to the privileged documents, the erosion of the attorney-client privilege would be nominal at most."; "This court thus presents Radware with the choice: Radware may either (1) withdraw the privileged documents, or it may (2) submit the documents for in camera review with access by the court, Radware, and Irell & Manella LLP's attorneys involved in the firm's previous representation of Radware and those involved in the firm's current litigation with Radware. A10 and Latham are not entitled to view the privileged documents. Should it choose option (2), Radware must also publicly file redacted versions of its disqualification motion and the accompanying Sawyer Declaration. Radware may redact only Exhibit A to the Sawyer Declaration and the related ¶ 3. Radware's Administrative Motion for In Camera Review of Motion for Disqualification of Counsel and Supporting Documents is therefore GRANTED, subject to the above choice.")

Case Date Jurisidction State Cite Checked
2014-01-08 Federal CA B 7/14

Chapter: 28.704

Case Name: United States v. White, Crim. No. 3:11-2303-CMC, 2013 U.S. Dist. LEXIS 68159, at *12 (D.S.C. Apr. 12, 2013)
(holding that the privilege did not protect information a bankrupt debtor provided his lawyer for inclusion in bankruptcy schedules; also holding that the debtor's finger-pointing at his lawyer triggered a waiver; citing Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975); "Moreover, the court concludes that Pearson has waived the privilege by casting blame on his attorney. Pearson alleges that the failure to acknowledge his ownership interest in the Subject Property in the bankruptcy proceeding -- an omission which could be material to Pearson's standing or other issues relevant to his ancillary claim -- was the fault of his attorney in such proceeding.")

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

Chapter: 28.704

Case Name: JMB/Urban 900 Dev. Partners, Ltd. v. Hazan, 2013 IL App. (1st) 113714-U, ¶25
("Applying the implied waiver test, we find that Hazan's affidavit waived the attorney- client privilege. In the affidavit, Hazan claimed that Rappaport [defendants' former lawyer] had pressured her to sign the settlement agreement and that he did not explain to her of the terms of the settlement. These claims clearly put defendants' communications with Rappaport during settlement negotiations at issue and thereby waived the privilege.")

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

Chapter: 28.704

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *28-29 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "By placing his attorneys' representation at the center of his defense, Moazzeni has waived any privilege to communications within the scope of that issue. . . . There can be no serious dispute that Moazzeni has waived the privilege with respect to Mahmoud and Jernigan by calling Mahmoud as a witness and eliciting testimony about her representation of him. And while there are limits to the scope of such waiver, see Fed. R. Evid. 502(a)(2), (3), Moazzeni's waiver here is sufficiently broad to encompass the documents at issue. Moazzeni placed his lawyers' competence, responsiveness, and ethics into issue. He cannot now 'selective[ly]' decide what aspects of that representation may be disclosed. Thus, as an alternative to the crime-fraud exception explained above, Moazzeni has waived any privilege that otherwise protected the subject communications with Mahmoud and Jernigan.")

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

Chapter: 28.704

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *28-29 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "By placing his attorneys' representation at the center of his defense, Moazzeni has waived any privilege to communications within the scope of that issue. Rhone-Poulenc Rorer, 32 F.3d at 863. . . . There can be no serious dispute that Moazzeni has waived the privilege with respect to Mahmoud and Jernigan by calling Mahmoud as a witness and eliciting testimony about her representation of him. And while there are limits to the scope of such waiver, see Fed. R. Evid. 502(a)(2), (3), Moazzeni's waiver here is sufficiently broad to encompass the documents at issue. Moazzeni placed his lawyers' competence, responsiveness, and ethics into issue. He cannot now 'selective[ly]' decide what aspects of that representation may be disclosed. Thus, as an alternative to the crime-fraud exception explained above, Moazzeni has waived any privilege that otherwise protected the subject communications with Mahmoud and Jernigan.")

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

Chapter: 28.704

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *4-5 (E.D. Va. Dec. 3, 2012)
(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "During both the bankruptcy proceedings and the grand jury proceedings, Moazzeni denied culpability and blamed all misconduct on his bankruptcy lawyers' mistakes. . . . Also, in a letter to Judge Tice, Moazzeni placed the blame squarely on Krumbein's alleged incompetence, calling him 'a has-been who never acted as an attorney with our interests in heart and who failed to protect our rights.'")

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

Chapter: 28.704

Case Name: Grasso v. O'Connor, 41 Va. Cir. 193 (Va. Cir. Ct. 1996)
(finding that the client had impliedly waived the privilege by placing at issue her divorce lawyer's alleged "abandonment" of her and the role of replacement counsel)

Case Date Jurisidction State Cite Checked
1996-01-01 State VA

Chapter: 28.704

Case Name: Grant v. Harris, 116 Va. 642, 650, 82 S.E. 718, 720 (Va. 1914)
("[I]t would seem clear that the client should be held to have waived her privilege and that the attorneys who acted for her in the transaction sought to be set aside should be permitted to give their version of the transaction, not only in the interest of justice to the parties to the litigation, but also for the protection of the attorneys themselves. To hold otherwise would subject the attorney to scurrilous and unjust attacks, and convert the rule which was intended only as a shield for the client's protection into a weapon of offense against others. The authorities generally hold that a client who goes upon the stand in an attempt to secure some advantage by reason of transactions between himself and his counsel, waives his right to object to the attorney's being called by the other side to give his account of the matter. Such waiver, it is held, is in no sense contrary to public policy, but is in the interest of truth and justice.")

Case Date Jurisidction State Cite Checked
1914-01-01 State VA

Chapter: 28.803

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

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

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

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

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

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

key case


Chapter: 28.803

Case Name: IP Telesis Inc. v. Velocity Networks Inc., No. CV 11 09950 RGK (AJWx), slip op. at 2 (C.D. Cal. Nov. 5, 2012)
(dismissing a derivative case against a corporation's lawyer, because the lawyer would be unable to defend itself because the company had not waived its privilege; "Defendant BB&L seeks dismissal from this case, arguing that attorney client privilege protects it from derivative suits brought on behalf of its client, Velocity. This Court agrees."; "Under California law, a derivative suit against a corporation's attorney may be dismissed where, in the absence of waiver by the corporate client, the attorney is effectively foreclosed from mounting any meaningful defense because attorney-client privilege bars disclosure of communications that would form the defense." (footnote omitted))

Case Date Jurisidction State Cite Checked
2012-11-05 Federal CA B 5/13

Chapter: 28.901

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)
(analyzing effective joint representation; "Section 958 provides that '[t]here is no privilege under this article [(i.e., no attorney-client privilege)] as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.' The rationale for the exception is that '[i]t would be unjust to permit a client . . . To accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge . . .'")

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

Chapter: 28.902

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

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

Chapter: 28.902

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)
(analyzing effective joint representation; "[I]t would be unfair to allow the client to invoke the privilege in order to exclude the contract in an action by the attorney for unpaid fees.")

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

Chapter: 28.902

Case Name: EMC Ins. Co. v. Zicolello, No. 4:13-cv-00825, 2014 U.S. Dist. LEXIS 4785, at *6, *7, *14-15 (M.D. Pa. Jan. 13, 2014)
(holding that the client's waiver caused by filing a malpractice suit against a former lawyer does not extend to communications with replacement counsel; also finding that the client did not trigger an "at issue" waiver by seeking malpractice damages that included fees paid to replacement counsel; "Because Plaintiffs did not file a lawsuit against Hare [replacement counsel] or attack his competence, there is no basis for the Court to find that Plaintiffs waived the privilege regarding confidential communications between Plaintiffs and Hare as a result of filing the malpractice action."; "[O]nce communications are shown to be privileged, the burden shifts to the opposing party to show waiver of the privilege."; "Consistent with persuasive authority, the Court finds that a claim for attorney's fees in the context of a legal malpractice suit does not place 'in issue' that attorney's advice, and does not serve to destroy the privilege.")

Case Date Jurisidction State Cite Checked
2014-01-13 Federal PA B 6/14

Chapter: 28.902

Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *32-33, *32 n.7, *33-34, *35-36 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; finding a waiver, and discussing the scope of the waiver; "To clarify: all attorney-client and work-product protection from the underlying litigation has been waived for documents relating either to reasonableness of fees expended or to any potential agreement regarding hourly rates. As an example, the Court expects that many of the documents relating to the so-called 'fee-splitting' issue (that is, the process by which Fulbright [plaintiff's law firm] may or may not have allocated defense costs between Feld and the corporate entity Feld Entertainment, Inc.) will be relevant to the reasonableness of the total amount of fees for which Feld seeks reimbursement. Such documents are no longer privileged, and should be produced if responsive to FFIC's discovery requests. Similarly, Feld cannot withhold documents on the basis of his unilateral assessment that certain categories of documents 'are of limited evidentiary value.'" (internal citation omtted); "It is possible that some of these documents can escape production on other grounds. For example, some of them may be composed solely of work product prepared in anticipation of this litigation, rather than in anticipation of the underlying litigation. Such documents remain privileged, as discussed in further detail below."; "The parties made passing references in their briefing to the distinction between 'fact' work product (typically discoverable after a showing of substantial need') and 'opinion' work product (rarely discoverable under any circumstances). The Court's waiver holding extends both to fact work product and opinion work product. To be sure, it seems much less likely that an attorney's mental impressions or legal conclusions will bear on the critical issues in this case: the reasonableness of fees and the presence of an agreement on hourly rates. But to the extent they do, they are subject to waiver for all the reasons explained above. Courts that have analyzed at-issue waiver of the work-product privilege have generally (though not uniformly) taken this view."; "To be clear: both waiver holdings apply only to documents and communications generated in connection with the underlying personal injury litigation for which Feld seeks reimbursement of attorney's fees. The reason is simple: Feld has not put the work of his attorneys on this litigation at issue in this case, so any privilege claims over those documents and communications remain valid -- even assuming such documents were otherwise within the scope of permissible discovery, and responsive to FFIC's discovery requests. To the extent individual documents (or portions thereof) were generated in anticipation of both cases, producing documents in redacted form may be required.")

Case Date Jurisidction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 28.902

Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *30-31 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "By filing a lawsuit seeking indemnification for attorney's fees, Feld necessarily placed the work of his attorneys directly at issue. He has done so with respect to two key issues in the case: (1) 'the reasonableness and necessity of the fees and expenses incurred by Feld in the Underlying Action,' and (2) 'the parties' agreement -- or lack thereof -- as to the hourly rates to be paid by FFIC' under the relevant insurance policies. . . . In other words, this case cannot be resolved without determining whether the legal fees generated by Feld were reasonable, or without determining whether the parties came to an agreement regarding hourly rates.")

Case Date Jurisidction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 28.902

Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *22-23, *24 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "[T]he Court finds that Feld has waived the work-product privilege with respect to materials in the underlying litigation by placing attorney work-product at issue, by bringing this indemnification lawsuit seeking reimbursement of attorney's fees."; "[T]his is not the first time the doctrine of at-issue waiver of the work-product privilege has been considered in the context of a lawsuit seeking indemnification for attorney's fees. The weight of authority supports finding waiver in this context.")

Case Date Jurisidction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 28.903

Case Name: District of Columbia LEO 363 (10/2012)
("An in-house lawyer may not disclose or use her employer/client's confidences or secrets in support of the lawyer's claim against the employer/client for employment discrimination or retaliatory discharge unless expressly authorized by Rule 1.6. If the employer/client puts the lawyer's conduct in issue, however (e.g., by lodging an affirmative defense or a counterclaim), the lawyer may disclose or use the employer's confidences or secrets insofar as reasonably necessary to respond to the employer/client's contention. An in-house lawyer is not prohibited from bringing such a claim against her employer/client merely because the employer/client may find it necessary or helpful to disclose its confidences or secrets in defending against the lawyer's claim.")

Case Date Jurisidction State Cite Checked
2012-10-01 Other B 6/13

Chapter: 28.903

Case Name: Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143 (4th Cir. Feb. 23, 1994)
(upholding an injunction on an in-house lawyer disclosing confidential information in connection with a wrongful termination case against his employer/client)

Case Date Jurisidction State Cite Checked
1994-02-23 Federal

Chapter: 28.903

Case Name: X Corp. v. Doe, Civ. No. 92-338-A, 1992 Dist. LEXIS 13612 (E.D. Va. Aug. 25, 1992)
(enjoining a former in-house lawyer and his lawyer from disclosing privileged documents in-house lawyer retained when he was terminated for allegedly complaining about corporate misconduct; refusing to order the former in-house lawyer to return the documents to the company; "On April 20, 1992, X Corp. moved this Court for a preliminary injunction (i) to maintain Doe's wrongful termination lawsuit, and all pleadings and papers filed therein, under seal until its conclusion; (ii) to prohibit Doe and his lawyer from making any disclosures of X Corp.'s allegedly privileged and confidential information; and (iii) to compel Doe to return all allegedly misappropriated documents."; affirmed 17 F.3d 1435 (4th Cir. 1994))

Case Date Jurisidction State Cite Checked
1992-08-25 Federal VA

Chapter: 28.903

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1301 n.5 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; holding that the plaintiff in-house lawyer could share confidences with his own lawyer; "Simply put, the inability to disclose relevant facts, including X Corp.'s alleged confidential communications, to his own attorney would cripple Doe's ability to defend against X Corp.'s attack on his professional conduct in the matter at bar. . . . Moreover, precluding Doe from making disclosures to his counsel would prevent him from effectively prosecuting his personal claims against X Corp. both in his state law-based action now on appeal in the Fourth Circuit Court of Appeals and his counterclaim in this case."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisidction State Cite Checked
1992-01-01 Federal VA N 2/10

Chapter: 28.903

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1305 n.12 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "The privilege belongs to the client, not the attorney."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisidction State Cite Checked
1992-01-01 Federal N 3/10

Chapter: 28.905

Case Name: Brown v. Tethy's Bioscience, Inc., Civ. A. No. 3:11MC11, 2011 U.S. Dist. LEXIS 117075, at *5-6 (E.D. Va. Oct. 11, 2011)
(Federal Rule of Evidence 612 sometimes requires disclosure of privileged documents that refreshed a witness's recollection before the witness testified.).

Case Date Jurisidction State Cite Checked
2011-10-11 Federal VA

Chapter: 28.1002

Case Name: Avaya, Inc. v. Telecom Labs, Inc., Civ. No. 06-2490, 2016 U.S. Dist. LEXIS 6111, at *17 18, *18 (D.N.J. Jan. 19, 2016)
(finding that a defendant impliedly waived privilege protection by seeking fees after prevailing in an antitrust case, but allowing the litigant to redact and log some entries; "The Court will not permit TLI/C [defendant] to claim privilege to protect the records themselves, nor any relevant information describing the specific tasks and work product conducted by TLI/C's attorneys. TLI/C has placed their billing records in issue by moving for attorneys' fees. In so doing, TLI/C has necessarily waived the protections of attorney client privilege or work product relating to the billing records. . . . Given the waiver, the Court does not expect significant redactions, but will permit redaction of specific confidential communications between attorney and client that are not needed for an understanding of the services for which TLI/C seeks compensation herein. Any such redactions will be listed in a privilege log as required by Rule 26(b)(5)(A), Fed. R. Civ. P."; "Additionally, TLI/C has also requested that the Court limit the issuance of the billing records to 'expert eyes only.' The Court declines to make such a determination. The Court does not find that the billing information is sufficiently sensitive or confidential to require such a designation. Especially where reciprocal discovery of billing information has been required, the tactical advantage of receiving such work product indicators from an opponent, if any, is also reciprocal.")

Case Date Jurisidction State Cite Checked
2016-01-19 Federal NJ B 7/16

Chapter: 28.1002

Case Name: DeVault v. Isdale, Case No.: 6:15-cv-135-Orl-37TBS, 2015 U.S. Dist. LEXIS 144895 (M.D. Fla. Oct. 26, 2015)
(analyzing the at issue doctrine in connection with a wife's lawsuit against her lawyer for malpractice in connection for her agreeing to a marital settlement; analyzing the malpractice defendant's attempt to review the files of the wife's divorce lawyer; finding a narrow at issue doctrine; "Plaintiff did not waive the attorney-client and work product privileges simply by bringing this lawsuit. She also did not waive a privilege by including attorney's fees from the dissolution of marriage case in her damage claim. Nothing has been presented to suggest that the amounts Plaintiff paid her lawyer for legal work relating to the marital settlement agreement cannot be broken out and proven without resort to privileged communications. Plaintiff and Nathan are the parties to the settlement agreement. Defendant is free to ask both of them what factors they considered during the negotiations, as well as how they evaluated and weighed each of those factors. Defendant can also discover the written and oral communications between the attorneys representing Plaintiff and Nathan. There is no evidence that Plaintiff intends to use privilege as both a shield and sword as would be the case if she attempted to disclose favorable communications with her attorney while at the same time, insisting upon the protection of the privilege for damaging communications. While the presentation of Defendant's case might be aided if she had access to Plaintiff's confidential communications with her former attorney, that is not a sufficient reason to find a waiver of the attorney-client or work product privileges. And, Defendant did not attempt to make the showing required by FED. R. CIV. P. 26(b)(3) to discover work product privileged information. Accordingly, Defendant Holly Isdale's Motion to Compel Discovery is DENIED.")

Case Date Jurisidction State Cite Checked
2015-10-26 Federal FL

Chapter: 28.1002

Case Name: Square Mile Structured Debt (One) LLC v. Swig, No. 603825/08, 2013 NY Slip Op. 31803(U), at 10 (N.Y. Sup. Ct. July 23, 2013)
(assessing plaintiff's request for fees under a contractual indemnification provision; reversing a Special Referee's refusal to review the lawyer's bills in camera, and reducing the amount of fees awarded because the lawyers had redacted portions of the bills; "[T]his Court concludes that any party subject to a request for in camera review of unredacted billing records would be bound to comply, or potentially have the material excluded, or otherwise handled within the powers delegated to the Special Referee.")

Case Date Jurisidction State Cite Checked
2013-07-23 State NY B 4/14

Chapter: 28.1002

Case Name: Square Mile Structured Debt (One) LLC v. Swig, No. 603825/08, 2013 NY Slip Op. 31803(U), at 11 (N.Y. Sup. Ct. July 23, 2013)
(assessing plaintiff's request for fees under a contractual indemnification provision; reversing a Special Referee's refusal to review the lawyer's bills in camera, and reducing the amount of fees awarded because the lawyers had redacted portions of the bills; "[T]he provident course of action would have been for the Special Referee to review the redacted billing entries in order to determine whether the fees sought were reasonable.")

Case Date Jurisidction State Cite Checked
2013-07-23 State NY B 4/14

Chapter: 28.1002

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 141 (D.D.C. 2013)
(analyzing the impact of plaintiff Feld seeking reimbursement from an insurance company of fees he spent in successfully handling underlying litigation; "Feld insists that the relevance of legal advice does not put it 'in issue' and that the privilege is waived only if the content of the advice given is 'integral' to the outcome of the claims in the case. . . . This Court agrees that relevance cannot be the sole benchmark for determining implied waiver. But it is not just relevance that counsels a finding of implied waiver here. Although Feld has not, as in other implied waiver cases, disclosed the content of a particular attorney-client communication . . ., he is essentially claiming that no communications of a particular type -- those demonstrating that he and/or Fulbright [plaintiff's law firm] did in fact agree to FFIC's proposed rates -- ever took place. In this way, Feld has made certain attorney-client communications integral to the outcome of his claims. Fairness requires that the privilege give way to FFIC's right to access the communications at issue to defend against Feld's claims."; "In short, Feld has brought a lawsuit that, at its core, is premised on the absence of any agreement as to rates on his part or Fulbright's. He may not affirmatively disclaim agreement and yet use the privilege to shield materials that might show otherwise. Hence, the Court concludes that Feld has waived the attorney-client privilege with respect to communications that relate to Feld's or Fulbright's understanding of and actions regarding FFIC's position on hourly rates, or that otherwise bear on the parties' agreement or lack thereof.")

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

Chapter: 28.1002

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 138 (D.D.C. 2013)
(analyzing the impact of plaintiff seeking reimbursement from an insurance company of fees he spent in successfully handling underlying litigation; "Regarding the first category of communications, the law is clear: by claiming indemnification of his defense costs from FFIC, Feld waived the attorney-client privilege as to the invoices itemizing the fees and expenses incurred, all supporting documentation, and 'any other communications going to the reasonableness of the amount of the [fees and expenses].'. . . Although only about $200,000 of the $2.4 million sought by Feld in this action is disputed based on the reasonableness and necessity of the charges, the reasonableness of any portion of the total amount claimed can only be determined by examining the entirety of the billing records pertaining to Feld's defense in the Underlying Action. . . . Hence, Feld has put at issue the reasonableness of the total amount submitted for reimbursement, and FFIC is entitled to discover otherwise privileged information necessary to defend against Feld's claim for the disputed $200,000.")

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

Chapter: 28.1002

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 140, 140-41 (D.D.C. 2013)
("Although both Ideal [Ideal Elec. Sec. Co. v. Int'l Fid. Ins. Co., 129 F.3d 143 (D.C. Cir. 1997)] and Potomac [Potomac Elec. Power Co. v. Cal. Union Ins. Co., 136 F.R.D. 1 (D.D.C. 1990)] support the conclusion the Court has already reached -- that by seeking indemnification of his defense costs in the Underlying Action Feld has placed at issue Fulbright's [law firm which represented Feld in the underlying litigation] handling of his defense in that action -- neither case sheds light directly on the question whether Feld has also placed at issue attorney-client communications regarding hourly rates, even though Feld need not rely on such communications to prove his claim."; "[I]t is not Feld's reliance, but his knowledge and understanding of FFIC's representations, that have been placed squarely at issue."; "Feld's claim for the large majority of the damages sought in this action -- $2.2 million of the $2.4 million total -- is based on his assertion that he never agreed to any hourly rates. FFIC is thus correct that Feld has placed at issue his understanding of FFIC's position on rates and the circumstances under which he could continue to employ Fulbright as his counsel, and whether he expressly or impliedly agreed to or acquiesced in the rates set by FFIC. . . . By filing this action and alleging that neither he nor Fulbright agreed to rates . . ., Feld has placed his attorney-client communications at issue. FFIC is entitled to explore what Fulbright told Feld about FFIC's position on rates, how Feld interpreted FFIC's position and his rights under the Policy, and how Feld directed his attorneys to act.")

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

Chapter: 28.1002

Case Name: D'Onofrio v. Borough of Seaside Park, Civ. No. 09 06220, 2012 U.S. Dist. LEXIS 181113, at *26-27 (D.N.J. Dec. 20, 2012)
(not for publication) (holding that a plaintiff seeking reimbursement of attorney's fees from the defendant could, for now, produce only summaries of the bills and not the full bills; "It may be that Plaintiff ultimately must present full, unredacted billing statements in order to fairly and clearly justify an award of damages. However, the Court does not at this time find good reason to overturn Judge Bongiovanni's Order in light of both fairness and efficiency concerns, and absent further direction from the Third Circuit.")

Case Date Jurisidction State Cite Checked
2012-12-20 Federal NJ B 9/13

Chapter: 28.1002

Case Name: D'Onofrio v. Borough of Seaside Park, Civ. No. 09 06220, 2012 U.S. Dist. LEXIS 181113, at *23 (D.N.J. Dec. 20, 2012)
(not for publication) (holding that a plaintiff seeking reimbursement of attorney's fees from the defendant could, for now, produce only summaries of the bills and not the full bills; "If the opposing party then objects to the reasonableness of the hours expended or the attached hourly rate, 'the district court has a great deal of discretion to adjust the fee award in light of those objections.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-12-20 Federal NJ B 9/13

Chapter: 28.1002

Case Name: D'Onofrio v. Borough of Seaside Park, Civ. No. 09 06220, 2012 U.S. Dist. LEXIS 181113, at *23 (D.N.J. Dec. 20, 2012)
(not for publication) (holding that a plaintiff seeking reimbursement of attorney's fees from the defendant could, for now, produce only summaries of the bills and not the full bills; "The Court is unconvinced that the above requirements cannot be met via detailed summaries of billing statements, or that the Borough Defendants will be unable to bring forward objections concerning time spent on projects, the reasonableness of fees, and whether the tasks billed were actually necessary for litigation. If the statements are insufficiently detailed, the Court can order further disclosure.")

Case Date Jurisidction State Cite Checked
2012-12-20 Federal NJ B 9/13

Chapter: 28.1002

Case Name: D'Onofrio v. Borough of Seaside Park, Civ. No. 09 06220, 2012 U.S. Dist. LEXIS 181113, at *22 (D.N.J. Dec. 20, 2012)
(not for publication) (holding that a plaintiff seeking reimbursement of attorney's fees from the defendant could, for now, produce only summaries of the bills and not the full bills; "[T]his Court notes that a party seeking attorneys' fees must 'submit evidence supporting the hours worked and rates claimed.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-12-20 Federal NJ B 9/13

Chapter: 28.1002

Case Name: Fulmore v. UPS, Inc., Nos. 7:11 CV 18 F & 91 F, 2012 U.S. Dist. LEXIS 178632, at *12 (E.D.N.C. Dec. 18, 2012)
(finding the plaintiff did not have to produce attorney's bills while seeking reimbursement of attorney's fees and costs, at least for the time being; "Plaintiffs state that they have since produced a copy of their fee agreement and provided information about its terms at deposition. . . . The court is satisfied that this production satisfies any obligation that plaintiffs may have at this time to provide the information and documents at issue.")

Case Date Jurisidction State Cite Checked
2012-12-18 Federal NC B 9/13

Chapter: 28.1002

Case Name: Starr Indem. & Liab. Co. v. Cont'l Cement Comp., Case No. 4:11CV809 JAR, 2012 U.S. Dist. LEXIS 170988, at *15-16 (E.D. Mo. Dec. 3, 2012)
(analyzing privilege and work product issues in a first party insurance context; "The Court agrees that the checks providing only the amount paid for attorneys' fees are insufficient discovery. The attorney-client privilege and the work product doctrine cannot preclude Starr from conducting an analysis of the reasonableness of Continental's claim for attorneys' fees. Starr should be able to challenge Continental's attorneys' fees with specific information as to the claimed fees. Starr is entitled to know information such as (1) who worked on a particular task, (2) the hourly billing rate for that work, (3) how long the person worked on the task, and (4) generically what the particular task was, e.g., 'worked on motion for summary judgment.'")

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

Chapter: 28.1002

Case Name: Franklin United Methodist Home, Inc. v. Lancaster Pollard & Co., 909 F. Supp. 2d 1037, 1048 (S.D. Ind. Nov. 8, 2012)
(analyzing a situation in which a plaintiff sued a financial advisor for malpractice, which did not trigger an at issue waiver involving privileged communication; "Neither FUMH's assertion of a claim for the legal fees and expenses it incurred defending the Lehman Claims nor its production of redacted invoices to support that claim waive the privileges protecting its attorney-client communications and work product. . . . FUMH may produce its redacted invoices without effecting a waiver.")

Case Date Jurisidction State Cite Checked
2012-11-08 Federal IN B 7/13

Chapter: 28.1002

Case Name: Blickenstaff v. Blickenstaff (In re Estate of Blickenstaff), 980 N.E.2d 1285, 1294 (Ill. App. Ct. 2012)
(requiring an executor to disclose attorneys bills for any work paid from the estate; "It might well be, as respondents argue, that the billing statements come within the attorney-client privilege . . . but in our de novo review of this issue . . . we hold that the executor has impliedly waived the attorney-client privilege with respect to billing statements he paid with funds from the estate. A party impliedly waives the attorney-client privilege by 'voluntarily inject[ing] either a factual or legal issue into the case, the truthful resolution of which requires an examination of the confidential communications.'. . . By paying the attorney fees out of the estate, the executor voluntarily injected into this case the issue of whether the attorney fees were reasonable and whether they were for services beneficial to the estate. . . . Fair and truthful resolution of that issue necessitates the production of the unredacted billing statements.")

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

Chapter: 28.1002

Case Name: Blickenstaff v. Blickenstaff (In re Estate of Blickenstaff), 980 N.E.2d 1285, 1293 (Ill. App. Ct. 2012)
(requiring an executor to disclose attorneys bills for any work paid from the estate; "If, as respondents contend, it is unnecessary for petitioners to see the billing statements and if it is enough for them to know merely the amount of attorney fees paid out of the estate, why were the billing statements generated in the first place? Why do law firms send billing statements to their clients, detailing the services provided, instead of just sending their clients a piece of paper saying simply, 'Amount Due: X dollars?' The reason is obvious. The descriptions of the specific services the attorney provided, along with the amount of time the attorney spent on each service, are the explanation and justification for the fee charged.")

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

Chapter: 28.1002

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 273-74 (Va. Cir. Ct. 2002)
("Plaintiff states that most courts have ruled that the mere assertion of the right to recover attorney's fees does not constitute a waiver of the attorney-client privilege. Id. [Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co., 730 A.2d 51, 65 (Conn. 1999)] (citing Northwood Nursing & Convalescent Home, Inc. v. Cont'l Ins. Co., 161 F.R.D. 293, 298 (E.D. Pa. 1995))

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

Chapter: 28.1002

Case Name: In re Computer Learning Centers, Inc., 272 B.R. 897, 907 n.8 (E.D. Va. 2001)
("While time records may contain privileged material, they must nonetheless provide the basis for the requested fees. Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999); In re Grand Jury Proceedings, Thursday Special Grand Jury September Term, 1991, 33 F.3d 342, 354 (4th Cir. 1994). They should reflect the attorney who performed the services, the date of the services, the amount of time expended and a description of the services. It is not required that the actual communication between the attorney and the client be revealed in the time records. Privileged material is not usually included in original time records; however, if it is included in the firm's copy of the time records, it may be redacted from the filed document. Nonetheless, sufficient non-privileged information must be provided so that the court can evaluate the application.")

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

Chapter: 28.1002

Case Name: Zeus Enters., Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 244 (4th Cir. 1999)
(upholding denial of a party's request for attorney fees under a contract, based on the party's refusal to allow testimony about "what factual investigation and legal research" the party's law firm conducted; the court "[does] not understand why Zeus could not have allowed its law firm to disclose some information about the nature and extent of its work, without entrenching upon the attorney-client privilege. In any event, the burden of establishing the applicability of the attorney-client privilege rests on the proponent of the privilege. The privilege does not protect all aspects of the attorney-client relationship; it only protects confidential communications between lawyer and client. The proponent of the privilege must establish not only that an attorney-client existed, but also that the specific communications at issue are privileged and that the privilege was not waived. Here, Zeus made a blanket assertion of privilege to Alphin's questions to Shaw Pittman about the scope of that firm's work for Zeus in connection with the NTSB proceeding. Zeus offered nothing to satisfy its burden to establish that the information sought by Alphin was protected by the attorney-client privilege. Accordingly, the district court did not err in striking Zeus's request to recover attorneys' fees paid to Shaw Pittman for its work in the administrative proceeding.")

Case Date Jurisidction State Cite Checked
1999-01-01 Federal

Chapter: 28.1003

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

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

key case


Chapter: 28.1101

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 446 (W.D. Va. 2009)
("Nor has Carilion placed Henson's advice to Roe prior to Billings' termination at issue in this case. Advice of counsel is not asserted by Carilion as an affirmative defense; therefore the 'at issue' doctrine does not apply. See Hearn v. Rhay, 68 F.R.D. 574, 580-81 (E.D. Wash. 1975) (articulating three elements to what it called a 'new and narrowly limited exception to the attorney-client privilege'). The 'at-issue' exception to the attorney-client privilege applies in the following situation: (1) when the assertion of the privilege is a result of some affirmative act, such as filing suit, by the asserting party; (2) through the affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Id. Carilion does not assert the defense of advice of counsel in this case; thus, the narrow 'at-issue' exception does not apply.")

Case Date Jurisidction State Cite Checked
2009-01-01 Federal VA

Chapter: 28.1102

Case Name: United States v. Berkeley Heartlab, Inc., Civ. A. No. 9:14-cv-00230-RMB Consolidated with 9:11-cv-1593-RMG and 9:15-cv-2458-RMG, 2017 U.S. Dist. LEXIS 51691 (D.S.C. April 5, 2017)
(holding that defendant's advice of counsel defense resulted in a broad subject matter waiver, including even uncommunicated privileged documents; also finding that the subject matter waiver included work product protected documents; "In their Amended Answer, the BlueWave Defendants asserted several affirmative defenses, including good faith reliance on advice of counsel: 'Defendants BlueWave, Dent, and Johnson acted in good faith reliance on counsel, including, but not limited to, the legal opinions/advice of attorney Gregory B. Root dated December 27, 2007 and January 2, 2008, the legal opinion/advice of attorney Michael F. Ruggio dated April 27, 2012 (said opinion attached hereto and incorporated herein by reference as Exhibit A), and the advice of attorney Gene Sellers with respect to BlueWave's contracts with HDL, Singulex and its independent contractors.'"; "Courts in this Circuit have found that when a party asserts an advice of counsel defense that the privilege waiver applies to advice received during the entire period the misconduct is alleged to have been ongoing – even up to and during trial."; "Here, the Government has alleged that the conduct at issue took place from 2008 through July 2014 (with regard to the processing and handling scheme) and from 2008 through January 2015 for the sales contracts and waiver of copays and deductibles schemes. By pleading an affirmative advice of counsel defense to the Government's complaint, Defendants placed their communications with counsel at issue and so waived attorney-client privilege as to all information relating to their communications with counsel during the OIG investigation about the conduct at issue in this case."; "'Defendants assert in their Response that 'The advice of counsel defense contemplated . . . is for business and planning opinion advice received in 2010 through 2012 before setting off on the course of conduct which later precipitated the OIG investigation and the filing of the instant suit.'. . . Defendants cannot narrow the scope of their affirmative defense in their briefings on this motion to compel when the defense asserted in their amended answer was not so limited.'")

Case Date Jurisidction State Cite Checked
2017-04-05 Federal SC

Chapter: 28.1102

Case Name: United States v. Trotter, Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681 (E.D. Mich. March 7, 2017)
(holding that a defendant relying on advice of counsel must produce communications with all of the counsel from who he received pertinent advice, rather than just the three lawyers whose communications he initially wanted to disclose; "Trotter intends to assert a defense of good faith reliance on the advice of counsel and has agreed to waive the attorney-client privilege. Trotter's counsel submitted waivers for three attorneys: Carey Kalmowitz, Abby Pendleton, and Sarif Kasmikha. The Government asserts that Trotter received management advice from additional attorneys, including Louis Szura, David Haron, James Burdick, and Robert Morgan, and requests that Trotter waive privilege to these individuals as well."; "The scope of this waiver 'goes not only to the specific advice of counsel, but also to all other attorney client communications related to the same subject matter. This includes the client's questions to the lawyer and material provided to counsel to help render an opinion.'. . . Defense counsel asserts that they have produced all of the relevant documents in their possession. But, Fed. R. Crim. P. 16(b)(1)(A)(i) requires production of all relevant communications in the defendant's possession, custody, or control. Defense counsel is ordered to request these materials from his client. If Trotter has any such materials, counsel must produce them to the Government. Failure to make a full disclosure constitutes a waiver of the advice of counsel defense."; "For the reasons stated above, the Government's motion is GRANTED. Trotter is ordered to (1) identify all attorneys who advised him on his management practices, (2) waive the attorney-client privilege for these attorneys, and (3) produce all materials relating to legal advice on these management practices in his possession. Failure to do so will preclude Trotter from raising the good faith reliance of counsel defense at trial.")

Case Date Jurisidction State Cite Checked
2017-03-07 Federal MI
Comment:

key case


Chapter: 28.1102

Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-Middlebrooks/Lynch, 2017 U.S. Dist. LEXIS 29016 (S.D. Fla. Feb. 28, 2017)
(finding that defendant waived its attorney-client privilege protection by relying on its good faith attempt to comply with the law; "Beall's Answer denies that the company erred in its AM classification . . . but the Third and Fifth Affirmative Defenses also stress that if it did, any such error was, respectively, not willful and made in a good faith attempt to comply with the law. . . . Whether Beall's classification of AMs as exempt employees was willful is a material 'question of law and fact,' . . . because the running of the statute of limitations and availability of liquidated damages both turn on the state of mind of Beall's officials."; "As to the Fifth Defense, Beall's repeated the same answer but added at the end of the sentence that Beall's 'consulted with legal counsel regarding such classification.'"; "There is one material point in dispute: whether Beall's impliedly waived the attorney-client privilege by putting its state of mind directly at issue."; "Plaintiffs contend that Beall's implicated the attorney-client relationship when it asserted the affirmative defense of good faith."; "Beall's waived its attorney-client privilege with respect to the documents in question by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification."; "Beall's warns that a ruling in favor of Plaintiffs raises the specter of plaintiffs receiving automatic access to the substance of an attorney's advice to her clients when a party asserts a good faith defense. But Beall's dire pronouncement need not come to fruition because it is within the power of the holder of the privilege to make or omit a waiving statement. As Cox [Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1417-20 (11th Cir. 1994)] noted, a defendant can always deny the element of a plaintiff's claim alleging a certain mental state "without affirmatively asserting" a good faith belief in an act's legality.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal FL

Chapter: 28.1102

Case Name: In re Beltway Law Group, LLP, Case No. 14-00380, (Chapter 7), 2016 Bankr. LEXIS 3345 (D.C. Bankr. Sept. 14, 2016)
(inexplicably holding that asserting an advice of counsel defense does not by itself trigger a waiver, but instead that a waiver occurs only upon the disclosure of privileged communications; "Ms. Ray [the document subpoena] responded to this allegation by stating: 'DISPUTED: To show unlawful conversion, one must show intent.' "(a) At all times. Mrs. Ray was acting upon the advice of counsel and in a manner consistent with established procedure and prior approval of Movant."': "Again, invoking the defense without disclosing a confidential communication does not constitute a waiver of the attorney-client privilege. To demonstrate waiver, Beltway would need to point to a disclosure on Ms. Ray's part that sought to lend evidentiary support to Ms. Ray's contention that her reliance on the advice of counsel validates her argument that she was acting in good faith. On this record, all we have is an allegation of reliance without Ms. Ray divulging the content of what she relied upon. Such a defense in the arbitration proceeding would necessarily fail if not supported by information regarding the substance of the advice Ms. Ray relied upon, and establishing the substance of the advice would require the disclosure of confidential communications. On the limited record before me, and without having any evidence that a confidential communication was disclosed in support of the asserted defense, I cannot find that this constituted waiver.")

Case Date Jurisidction State Cite Checked
2016-09-14 Federal DC

Chapter: 28.1102

Case Name: In re Beltway Law Group, LLP, Case No. 14-00380, (Chapter 7), 2016 Bankr. LEXIS 3345 (D.C. Bankr. Sept. 14, 2016)
(inexplicably holding that asserting an advice of counsel defense does not by itself trigger a waiver, but instead that a waiver occurs only upon the disclosure of privileged communications; "The second instance of Ms. Ray [the document subpoena] referring to her reliance on the advice of counsel is found on page 45 of her response to the summary judgment motion filed in the arbitration proceeding in which she states that 'Mrs. Ray retained Counsel and ultimately, upon the advice of counsel, initiated Arbitration . . . .' This reference to Ms. Ray's reliance on the advice of counsel does not include the disclosure of a confidential communication, and the statement does not appear to have been asserted defensively. Rather, the reference to reliance on the advice of counsel appears to be little more than window dressing to Ms. Ray's description of what transpired, to wit, she initiated the arbitration. Obviously Ms. Ray relied upon the advice of counsel in initiating the arbitration as is evidenced by counsel's filing the arbitration on Ms. Ray's behalf. The court rejects the argument that this constitutes a waiver of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-09-14 Federal DC

Chapter: 28.1102

Case Name: In re Beltway Law Group, LLP, Case No. 14-00380, (Chapter 7), 2016 Bankr. LEXIS 3345 (D.C. Bankr. Sept. 14, 2016)
(inexplicably holding that asserting an advice of counsel defense does not by itself trigger a waiver, but instead that a waiver occurs only upon the disclosure of privileged communications; "It is well-established that a litigant can waive the attorney-client privilege if she raises advice of counsel as a defense to liability. The waiver, itself, however, is triggered not by the assertion of the defense, but rather by the disclosure of an otherwise privileged communication in support of the asserted defense."; "If, during the course of the arbitration, Ms. Ray [the document subpoena] disclosed the content of any confidential communications between her and her attorneys, either defensively or to establish a claim against her adversary in the arbitration, she has waived the attorney client privilege as to all other communications on that same subject."; "It is thus necessary to evaluate each instance Ms. Ray allegedly relied upon advice of counsel in defense of her position in the arbitration, and consider whether, in asserting that defense, she disclosed the content of a privileged communication. If I find that she did disclose a confidential communication, I must then determine the subject matter to which it relates and whether the documents listed on Ms. Ray's privilege log and submitted to this court for in camera review fall within the scope of that waiver.")

Case Date Jurisidction State Cite Checked
2016-09-14 Federal DC

Chapter: 28.1102

Case Name: Grand Canyon Skywalk Development LLC v. Cieslak, Case Nos.: 2:15-cv-01189-JAD-HWF2:13-cv-00596-JAD-GWF, 2015 U.S. Dist. LEXIS 107457 (D. Nev. Aug. 13, 2015)
("The Tribe's refusal to waive the privilege under these circumstances is likely to be prejudicial to Scutari & Cieslak. Scutari & Cieslak should not be permitted to rely on the advice of counsel defense if Plaintiffs are prevented from exploring the legal advice that was allegedly provided. There may, however, be an issue whether the Tribe has waived its attorney-client privilege in this matter by failing to assert it in a timely manner."; "The factual record is insufficient at this point to support a finding that the Tribe waived its attorney-client or work-product privileges by failing to assert them in a timely manner.")

Case Date Jurisidction State Cite Checked
2015-08-13 Federal NV

Chapter: 28.1102

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; "In its opposition to Cue's motion to compel, GM provided a list of six facts on which it intends to rely to demonstrate its lack of bad faith in selecting the CADILLAC CUE mark. . . . One of those facts consists of evidence that '[t]he legal liaison [Mr. Merrill] conveyed to the ad hoc committee that the legal department gave an 'okay' to proceed with using the name CADILLAC CUE[.]'. . . During oral argument on the motion to compel, Cue seized on this statement to argue that GM has waived its claim of privilege over the April 3, 2011 email by placing its attorney's advice directly at issue. While this court agrees that GM's use of that fact would place its counsel's advice at issue in the case, it finds that GM's statement is at odds with its representations to the court that it did not intend to rely on advice of its counsel, and its otherwise consistent efforts to preserve the privilege over email communications involving such advice. Therefore, this court will deny the motion without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith.")

Case Date Jurisidction State Cite Checked
2015-08-10 Federal MA

Chapter: 28.1102

Case Name: Scherer v. Steel Creek Property Owners Assoc., 1:13cv121, 2015 U.S. Dist. LEXIS 56196 (W.D.N.C. April 29, 2015)
(analyzing the scope of an implied waiver based on defendant's reliance on advice of counsel; allowing defendant to amend its answer and withdraw an advice of counsel defense on certain matters, but requiring production of otherwise privileged documents relating to the remaining advice of counsel defense; "As a threshold matter, the Court's prior Order granting Defendants leave to amend their Answers was not an invitation for Defendants to take back the assertion of the advice of counsel defense as to areas where Defendants had specifically asserted it and acknowledge to this Court that they had waived the attorney client privilege as to the subject matter of these areas. Rather, the Court was allowing Defendants the opportunity to avoid the unintended consequences of waiving the attorney client privilege as to the subject matter of all the claims in Plaintiffs' Amended Complaint because of the broad language Defendants included in their Answers. Consistent with the Court's prior Orders, the Court finds that Defendants have waived the attorney client privilege as to the following subject matters as a result of their prior, specific assertion of the advice of counsel defense in these proceedings: (1) The charging of retroactive assessments based on 16 platted lots instead of four; (2) The calculation of future assessments; (3) The interpretation of the Covenants; (4) The charging of 18% interest; (5) The rejection of the construction plans or drawings; and (6) The initial refusal to comply with the Plaintiffs' requests for inspection.")

Case Date Jurisidction State Cite Checked
2015-04-29 Federal NC

Chapter: 28.1102

Case Name: Williams v. Allstate Fire and Casualty Ins. Co., Case No. Civ-13-828-D, 2015 U.S. Dist. LEXIS 46223 (W.D. Okla. April 9, 2015)
(analyzing privilege protection in a third party bad faith insurance case; "In this case, Plaintiff has taken affirmative steps in filing this litigation and asserting a claim that makes the substance of Mr. Cunningham's advice relevant to the case. Plaintiff has squarely placed at issue Mr. Cunningham's handling of his med-pay claim and his personal injury case. Both Plaintiff and Mr. Cunningham have testified about their communications, the attorney's advice, and strategic considerations that impacted the med-pay claim. Plaintiff cannot now withhold documentary evidence related to these matters. Application of the privilege would deny Defendant access to the information it needs to defend against the bad faith claim. Therefore, the Court finds that an at-issue waiver of the privilege has occurred.")

Case Date Jurisidction State Cite Checked
2015-04-09 Federal OK

Chapter: 28.1102

Case Name: United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 376, 377, 378, 377 n.8, 377, 378 (4th Cir. 2015)
(affirming a new trial after a jury awarded the government $237,000,000 in an action against a hospital for a False Claims Act violation; analyzing whether the court should have admitted evidence that the hospital's lawyer warned the hospital that its practice might violate the law; "Martin [hospital's COO] did vaguely recall that Hewson [Tuomey's outside lawyer] had told him that McAnaney [hospital's lawyer] said the proposed arrangements would raise 'red flags' with the government."; noting that the government had lost an earlier case against the hospital; "The district court has now presided over two trials in this case, with strikingly disparate results. In the first trial, the jury did not hear from McAnaney and found for Tuomey [Defendant hospital] on the FCA claim. When the case was retried, McAnaney was allowed to testify and the jury found for the government. Coincidence? We think not. Rather, we believe that these results bespeak the importance of what the jury in the first trial was not allowed to consider."; "[W]e affirm the district court's order granting a new trial on the alternative ground urged by the government -- that it was prejudiced by the exclusion of McAnaney's testimony and other related evidence of his warnings to Tuomey regarding the legal peril that the employment contracts posed."; "The jury also knew that Hewson was generally aware of McAnaney's views on the employment contracts, but that he dismissed them as not credible because, in his view, Drakeford [surgeon, plaintiff] was deliberately seeking to cherry pick a legal opinion that would undermine the entire deal."; "[T]he sum of the evidence at the first trial regarding McAneney was that Tuomey (1) was aware that McAnaney had unspecified concerns about the employment contracts; (2) refused to allow McAnaney to relay his concerns in writing; and (3) later terminated McAnaney's joint representation. Yet, under the FCA, the government had to prove that Tuomey knew of, was deliberately ignorant of, or recklessly disregarded the falsity of its claims (i.e., that its claims violated the Stark Law). We think that McAnaney's specific warnings to Tuomey regarding the dangers posed by the contracts were critical to making this showing."; "[T]he record unambiguously shows that Drakeford and Tuomey hired McAnaney to advise them of the Stark Law risks posed by the employment contracts."; "We note that Tuomey waived the attorney-client privilege with respect to its communications with McAnaney when it asserted the advice-of-counsel defense."; "We think the importance of McAnaney's testimony to the government's case is self-evident. Indeed, it is difficult to imagine any more probative and compelling evidence regarding Tuomey's intent than the testimony of a lawyer hired by Tuomey, who was an undisputed subject matter expert on the intricacies of the Stark Law, and who warned Tuomey in graphic detail of the thin legal ice on which it was treading with respect to the employment contracts."; "In sum, Tuomey has offered no good reason why the jury in the first trial was not allowed to hear from McAnaney. And we agree with the government that this evidence was critical to its ability to satisfy its burden to prove that Tuomey acted with the requisite intent under the FCA. We therefore affirm the district court's order granting a new trial on the FCA claim.")

Case Date Jurisidction State Cite Checked
2015-01-01 Federal DC B 7/16

Chapter: 28.1102

Case Name: Seneca Ins. Co., Inc. v. Western Claims, Inc., Nos. 13-6284 and 14-6002, 2014 U.S. App. LEXIS 24172 (10th Cir. Dec. 22, 2014)
("Seneca's officers -- generally did not rely on their own reasons for settling with Route 66 for $1 million. Instead, they chose to rely on 'advice of counsel' to justify the reasonableness of the settlement."; "Here, Seneca not only sued Western Claims, it expressly relied on 'advice of counsel' as a reason -- if not the primary reason -- for settling the Route 66 lawsuit for $1 million.")

Case Date Jurisidction State Cite Checked
2014-12-22 Federal

Chapter: 28.1102

Case Name: In re Icenhower v. Diaz-Barba, No. 12-56329, No. 12-56418, 2014 U.S. App. LEXIS 12033 (9th Cir. June 26, 2014)
(finding that an advice counsel defense resulted in a waiver)

Case Date Jurisidction State Cite Checked
2014-06-26 Federal

Chapter: 28.1102

Case Name: Teal Bay Alliances, Inc. v. Southbound One, Inc., Case No. MJG-13-2180, 2014 U.S. Dist. LEXIS 55378 (D. Md. April 21, 2014)
("Until Southbound asserts that it will rely on the advice-of-counsel defense with respect to advice it received from its litigation counsel, this communication remains protected by the attorney-client privilege and the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2014-04-21 Federal MD

Chapter: 28.1102

Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 50828 (D. Idaho April 11, 2014)
("It would be patently unfair for a party to assert that they relied upon the advice of counsel, yet deprive the opponent of the opportunity to understand why the advice was given, what other alternatives were looked at, why certain advice was rejected, and how the advice was interrelated to other business decisions.")

Case Date Jurisidction State Cite Checked
2014-04-11 Federal ID

Chapter: 28.1102

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *12 (E.D. Va. Dec. 3, 2012)
("Such waiver may occur if the client places the attorney-client relationship in issue, for example, by affirmatively invoking a defense of good faith reliance on advice of counsel. Rhone-Poulenc Rorer v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) (citations omitted); see also United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) ('Selective disclosure for tactical purposes waives the attorney-client privilege.').")

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

Chapter: 28.1102

Case Name: In re McDowell, 483 B.R. 472, 491 (Bankr. S.D. Tex. 2012))
("In the bankruptcy context, voluntary waiver has been found where a debtor relies on advice of counsel as a defense or where the debtor has expressly disclosed what his counsel communicated to him.")

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

Chapter: 28.1102

Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *12 (W.D. Va. June 15, 2011)
("Such conduct may include asserting claims or defenses that put an attorney's advice at issue for example, by asserting reliance on counsel as an affirmative defense.")

Case Date Jurisidction State Cite Checked
2011-06-15 Federal VA

Chapter: 28.1102

Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *12 (W.D. Va. June 15, 2011)
("'A client can waive an attorney-client privilege expressly or through his own conduct.' Hanson v. U.S. Agency for Int'l Dev., 372 F.3d 286, 294 (4th Cir. 2004). Such conduct may include asserting claims or defenses that put an attorney's advice at issue for example, by asserting reliance on counsel as an affirmative defense. Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994).")

Case Date Jurisidction State Cite Checked
2011-06-15 Federal VA

Chapter: 28.1102

Case Name: 7600 Ltd. P'ship v. QuesTech, Inc., 41 Va. Cir. 60, 61-63 (Va. Cir. Ct. 1996)
(finding that a party's "advice of counsel" defense impliedly waived the privilege covering the lawyer's description of work in the billing statement and fees paid)

Case Date Jurisidction State Cite Checked
1996-01-01 State VA

Chapter: 28.1102

Case Name: Luthman v. GEICO, 40 Va. Cir. 404, 406 (Va. Cir. Ct. 1996)
(finding that a party had impliedly waived the attorney-client privilege by asserting an "advice of counsel" defense and placing the "opinions and impressions" of its lawyers "directly at issue")

Case Date Jurisidction State Cite Checked
1996-01-01 State VA

Chapter: 28.1103

Case Name: In re Grand Jury Matter #3 John Doe, No. 15-2475, 2017 U.S. App. LEXIS 1498 (3rd Cir. Jan. 27, 2017)
("'The Government also contends this appeal is moot for an unrelated reason. It argues that Doe has waived attorney-client protections because his pretrial memorandum indicates that he might rely on the advice-of-counsel defense. . . . We disagree. That Doe's trial strategy has changed given the development of this case does not mean he has waived the issues he continues to challenge on appeal.'")

Case Date Jurisidction State Cite Checked
2017-01-27 Federal

Chapter: 28.1103

Case Name: Johnson v. Zurich Am. Ins. Co., Case No. 14-cv-1095-MJR-SCW, 2016 U.S. Dist. LEXIS 10754, at *3 (S.D. Ill. Jan. 28, 2016)
("The Court first took up the issue of Plaintiff's assertion that Triple Crown [defendant] signaled that it intends to put forward a defense it was relying in good faith on the advice of counsel and/or Hylant [insured's broker]. If that were the case then the Court would likely agree that Triple Crown would have to waive its claim of attorney client privilege for the communications at issue. But at the hearing, counsel for Triple Crown unequivocally stated on the record that it would not rely on such a defense. Given that representation the Court determined it need not further consider Plaintiff's arguments on this point.")

Case Date Jurisidction State Cite Checked
2016-01-28 Federal IL B 7/16

Chapter: 28.1103

Case Name: Scherer v. Steel Creek Property Owners Assoc., 1:13cv121, 2015 U.S. Dist. LEXIS 56196 (W.D.N.C. April 29, 2015)
(analyzing the scope of an implied waiver based on defendant's reliance on advice of counsel; allowing defendant to amend its answer and withdraw an advice of counsel defense on certain matters, but requiring production of otherwise privileged documents relating to the remaining advice of counsel defense; "As a threshold matter, the Court's prior Order granting Defendants leave to amend their Answers was not an invitation for Defendants to take back the assertion of the advice of counsel defense as to areas where Defendants had specifically asserted it and acknowledge to this Court that they had waived the attorney client privilege as to the subject matter of these areas. Rather, the Court was allowing Defendants the opportunity to avoid the unintended consequences of waiving the attorney client privilege as to the subject matter of all the claims in Plaintiffs' Amended Complaint because of the broad language Defendants included in their Answers. Consistent with the Court's prior Orders, the Court finds that Defendants have waived the attorney client privilege as to the following subject matters as a result of their prior, specific assertion of the advice of counsel defense in these proceedings: (1) The charging of retroactive assessments based on 16 platted lots instead of four; (2) The calculation of future assessments; (3) The interpretation of the Covenants; (4) The charging of 18% interest; (5) The rejection of the construction plans or drawings; and (6) The initial refusal to comply with the Plaintiffs' requests for inspection.")

Case Date Jurisidction State Cite Checked
2015-04-29 Federal NC

Chapter: 28.1103

Case Name: Bauer v. County of Saginaw, Case No. 14-cv-11158, 2015 U.S. Dist. LEXIS 39098 (E.D. Mich. March 27, 2015)
(finding that the defendant did not impliedly waive its privilege, because it explicitly denied any intent to rely on privileged communications; "Here, Defendants have not raised the affirmative defense that they relied on the Borello Memo in deciding to terminate Bauer's employment. Defendants have repeatedly and unequivocally represented that they will not introduce into evidence either the existence of the Borello Memo or the content of any privileged communication in defense their claims. Indeed, it was Bauer, rather than Defendants, who claims that the Borello Memo would affect Defendants' defense. But because Defendants have not taken, and have represented that they will not take, any affirmative steps to place the content of the confidential communication into the litigation, they have not waived the attorney-client privilege with respect to those documents."; "Defendants have not yet (and contend that they will not) use the advice of counsel as a defense to any of Bauer's claims. Until they do so, those communications are protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-03-27 Federal MI

Chapter: 28.1202

Case Name: Attain Specialty Ins. Co. v. Reno Cab Company, Inc., Case No. 3:15-cv-00406-MMD-VPC, 2017 U.S. Dist. LEXIS 21484 (D. Nev. Feb. 15, 2017)
(finding that plaintiff waived privilege protection by relying on counsel's advice; "Here, Atain's representative testified that Atain's coverage counsel investigated Reno Cab's claim and made the decision to deny coverage based on coverage counsel's recommendation. Atain suggests that Reno Cab took Ms. Rock's testimony out of context, but Ms. Rock's deposition testimony is clear -- she relied on counsel to investigate Reno Cab's claim and denied coverage based on counsel's recommendations. . . . While Atain has not asserted advice of counsel as an affirmative defense, Atain's response to Reno Cab's bad faith claim implicitly raises advice of counsel. Under these circumstances, the Magistrate Judge did not commit clear error when she found implied waiver of the privilege and the attorney work product.")

Case Date Jurisidction State Cite Checked
2017-02-15 Federal NV

Chapter: 28.1202

Case Name: Sprint Communications Co. L.P. v. Time Warner Cable, Inc., Case No. 11-2686-JWL, 2016 U.S. Dist. LEXIS 168693 (D. Kansas Dec. 6, 2016)
(finding the 'at issue' doctrine inapplicable because plaintiff Sprint put the advice at issue rather than the defendant having put it at issue; "The court declines to find implicit waiver under these circumstances -- i.e., where Sprint's summary judgment motion made specific reference to the state of mind of TWC's in-house counsel, and TWC offered, in a footnote in its opposition brief, its counsel's non-privileged legal conclusion to counter Sprint's assertion as to its counsel's understanding. To be clear, the court, like Sprint, does not interpret the 'affirmative act' requirement of Hearn so narrowly as to preclude a finding of waiver where the party asserting privilege is defending against, rather than moving for, summary judgment. Still, because Sprint's motion for summary judgment made a specific representation as to TWC's counsel's knowledge, the court does not find that TWC, in responding with its counsel's uncommunicated legal conclusion, has placed its privileged communications at issue by its own affirmative act."; "Here too, the court does not find TWC has put its privileged information at issue through its own affirmative act. At Block's deposition, Sprint elicited testimony about 'what [Block] did and what [he] concluded' after expressly agreeing that his 'answer to [the] question will not waive privilege.' The court declines to find waiver based on TWC's reference at summary judgment to Block's responsive testimony for the limited purpose for which it was offered.")

Case Date Jurisidction State Cite Checked
2016-12-06 Federal KS

Chapter: 28.1202

Case Name: Sprint Communications Co. L.P. v. Time Warner Cable, Inc., Case No. 11-2686-JWL, 2016 U.S. Dist. LEXIS 168693 (D. Kansas Dec. 6, 2016)
(finding the 'at issue' doctrine inapplicable because plaintiff Sprint put the advice at issue rather than the defendant having put it at issue; "Sprint asserts TWC has effected at-issue waiver by its affirmative use of 'attorney-related evidence' at summary judgment. Sprint argues that the first and second Hearn prongs are satisfied because TWC placed its in-house counsel's beliefs at issue when it volunteered 'attorney beliefs about the legal rights between TWC and Sprint based on interpretation of contract and business dealings' to support the reliance element of TWC's equitable estoppel defense."; "However, the undersigned does agree with TWC's assertion that under this court's prior orders, none of the statements with which Sprint takes issue are privileged."; "First, the statements regarding Block's participation in the joint investigation and his simultaneous undertaking to educate himself on the 'unique history between TWC and Sprint' merely reveal facts, topics of discussion, and acts of counsel, none of which are privileged."; "Second, the statements referencing Block's general legal conclusion that TWC had the right to 'Go It Alone' do not reveal privileged information, insofar as those statements do not reveal any substantive communication or attorney analysis behind the conclusion.")

Case Date Jurisidction State Cite Checked
2016-12-06 Federal KS

Chapter: 28.1202

Case Name: Father Doe v. Phillips Exeter Academy, Civ. No. 16-cv-396-JL, 2016 U.S. Dist. LEXIS 141877 (D.N.H. Oct. 13, 2016)
(finding that defendant Phillips Exeter Academy could not successfully claim privilege protection for a lawyer's investigation into possible sexual misconduct by a student; noting that defendant called the lawyer an "independent investigator," which meant that the lawyer was not assisting the defendant's lawyer in providing legal advice; also finding an implied waiver because the defendant relied on the investigation report in disciplining a student; also finding that defendant waived any possible privilege protection by disclosing portions of the investigation report to parents; inexplicably failing to deal with the work product doctrine; "After weighing the facts and circumstances of this case, the court concludes that PEA has waived any privilege that may have attached to Attorney McGintee's reports. First, a party who puts the subject matter of attorney-client communications at issue in litigation waives the privilege by implication. . . . PEA has done so here by asserting its reliance on the reports as, at least in part, its basis for disciplining John Doe. According to Dean Mischke, PEA placed John on Dean's Leave based, at least in part, 'on the findings of the investigation' and PEA's review thereof. . . . Upon receiving the deans' recommendations, Principal MacFarlane 'determined that it would be in the best interest of all parties involved for John Doe to be withdrawn from PEA' after reviewing, and on the basis of, among other considerations, Attorney McGintee's reports. . . . The reports are thus, if not central, certainly relevant to one of the issues raised in this litigation: whether PEA violated a contractual agreement through its decision-making process with respect to John Doe's discipline. Having injected the reports' contents into the litigation, PEA waived the privilege. . . . And because this waiver involves 'a disclosure made in the course of a judicial proceeding,' it extends to the subject matter of the reports, not merely the documents themselves. Id.")

Case Date Jurisidction State Cite Checked
2016-10-13 Federal NH

Chapter: 28.1202

Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2016 U.S. Dist. LEXIS 134010 (N.D. Ill. Sept. 28, 2016)
("Controlling Federal Circuit precedent holds that a party puts its attorney's advice 'at issue' in a case -- and waives its rights to assert the attorney-client privilege -- when it relies on a statement based on the advice of an attorney in an effort to obtain a certificate of correction, and the party uses that certificate of correction to prove issues related to enforceability in a patent suit."; "Dyson has placed the advice of counsel at issue by petitioning the PTO to correct the inventors of the '010 and '823 patents during the pendency of a law suit that Dyson initiated to enforce its rights under those patents. The change of inventorship was precipitated by the new priority date that Dyson is now claiming, and may have drastic effects on the enforceability of the '010 and '823 patents. As such, it has waived its protections under the attorney-client privilege or the work product doctrine. As noted above, the scope of that waiver is limited to the subject matter and temporal scope implicated by Dyson's attempt to change the inventors on the relevant patents. Therefore, the Court finds that the privilege is only waived on the issue of inventorship and only between February 1, 2016, and April 21, 2016.")

Case Date Jurisidction State Cite Checked
2016-09-28 Federal IL

Chapter: 28.1202

Case Name: Carson v. Lake Cty., Cause No. 2:14-CV-117-PRC, 2016 U.S. Dist. LEXIS 52055, at *15, *16, *17-18, *18 (N.D. Ind. Apr. 19, 2016)
("In this case, the parties do not dispute that the communications between Attorney Dull and Defendant are protected by the attorney-client privilege but instead dispute whether Defendant impliedly waived the privilege by asserting the affirmative defenses of acting in good faith, exercising reasonable care, and acting in good faith with the understanding that it acted lawfully and in compliance with all applicable law. The Court finds that Defendant has impliedly waived its attorney-client privilege as to communications with Attorney Dull related to Plaintiffs' termination both through [county commissioner] Repay's testimony concerning portions of the attorney-client communication and by asserting reliance on the advice to support its affirmative defenses."; "Repay testified that Attorney Dull gave legal advice regarding whether the action of terminating Plaintiffs' employment would be in violation of age discrimination laws, which was considered when making the decision to terminate Plaintiff's employment. It also appears, based on Repay's testimony, that Attorney Dull and/or his office was involved with preparing the PowerPoint presentation and Plaintiffs' termination letters."; "Thus, Repay's testimony that he believed Defendants' actions were legal constitutes testimony about the attorney-client communications and put Defendants' knowledge of the law and the basis for its understanding of what the law required in issue on the affirmative defenses. . . . Defendant has opened the door to these communications through Repay's testimony that to his knowledge, Attorney Dull alone confirmed compliance with age discrimination law. Contrary to Defendant's assertion, this is not an instance in which a defendant merely pleads a good faith defense nor was Attorney Dull simply a messenger delivering Attorney Grudzien's opinion to Defendant; the evidence of record indicates that Dull participated in the decision making process and that Defendant relied on Attorney Dull's legal advice in making the decision to terminate Plaintiffs' employment. Defendant does not address, much less refute that evidence."; "An explicit intent by Defendant to rely on Attorney Dull's advice is not required to find waiver because Plaintiffs are entitled to know what legal advice Defendant received from Dull in order to test Defendant's assertions of good faith. . . . Whether Defendant acted in good faith and believed that its actions were 'in compliance with all applicable law' can only be assessed by examining Attorney Dull's communications with Defendant regarding compliance with age discrimination laws and his interpretation of Attorney Grudzien's opinion. In fairness, Plaintiff must be permitted to explore these communications.")

Case Date Jurisidction State Cite Checked
2016-04-19 Federal IN B 8/16
Comment:

key case


Chapter: 28.1202

Case Name: Sheena v. Issa, Nos. 326400 & 326750, 2016 Mich. App. LEXIS 733, at *8-9 (Mich. Ct. App. Apr. 14, 2016)
("Plaintiffs assert, first, that defendants waived the attorney-client privilege. Indeed, Nader [defendant] testified that he considered the $40,000 payment in 2005 a full satisfaction of the 2001 debt. However, this explanation does leave a logical gap in the evidence: why would the parties enter into the 2005 transaction if it was immediately being paid? Nader's explanation at trial and throughout the proceedings was that he believed the documents he signed in 2005 were to pay off the loan, not to start another loan. Nader specifically attributed this to the advice of his attorney, Abbo. Whether Nader knowingly signed the documents was relevant to the proceedings, and defendants' assertion of privilege effectively prevented plaintiffs from asserting their claim. Nader's claim that he did not understand the 2005 transaction was critical to his explanation of the events. In order to find his version of the events 'plausible,' it was necessary to conclude, minimally, that Nader did not understand the documents he was signing. Without Abbo's testimony, plaintiffs could not rebut Nader's claim regarding his understanding. Thus, Nader waived his privilege as it related to his understanding and comprehension of the documents.")

Case Date Jurisidction State Cite Checked
2016-04-14 Federal MI B 8/16

Chapter: 28.1202

Case Name: Financial Guaranty Insurance Co. v. The Putnam Advisory Co., LLC, 12 Civ. 7372, 2016 U.S. Dist. LEXIS 33352 (S.D.N.Y. March 15, 2016)
(finding that the plaintiff waived any otherwise available attorney-client privilege and work product protection for documents prepared by a consultant, and which the plaintiff referred to and cited in its complaint and in Second Circuit briefing; noting that referring to the consultant's work in the complaint would not have caused a waiver by itself, but that the waiver came from reliance in court; finding that the scope of the waiver can not extend beyond documents referred to in the complaint; "In its briefing, FGIC attempts to rehabilitate the privilege over the report by promising not to utilize the analysis in the future, including at trial. . . . The reference to the analysis in FGIC's complaint, standing alone, does not constitute a waiver. However, by referring to the analysis during the Second Circuit's review of this Court's decision on the motion to dismiss -- in which the Circuit determined that FGIC's allegations were 'sufficient to state claims for fraud, negligent misrepresentation, and negligence,'. . . FGIC has already used the report to sustain its causes of action, rendering MBIA distinguishable. Since FGIC 'inject[ed] the contents of a privileged communication into the litigation' by utilizing it in connection with a dispositive motion, the 'at issue' waiver applies.")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal NY

Chapter: 28.1202

Case Name: Financial Guaranty Insurance Co. v. The Putnam Advisory Co., LLC, 12 Civ. 7372, 2016 U.S. Dist. LEXIS 33352 (S.D.N.Y. March 15, 2016)
(finding that the plaintiff waived any otherwise available attorney-client privilege and work product protection for documents prepared by a consultant, and which the plaintiff referred to and cited in its complaint and in Second Circuit briefing; noting that referring to the consultant's work in the complaint would not have caused a waiver by itself, but that the waiver came from reliance in court; finding that the scope of the waiver can not extend beyond documents referred to in the complaint; "Lastly, Putnam seeks the production of an economic analysis commissioned by FGIC for this litigation. Although expert reports and other such documents prepared for the purpose of litigation are normally covered by the attorney-client and work product privileges, Putnam contends that FGIC waived any such protection when it cited to and quoted from the analysis in the SAC, and when it used the report in its Second Circuit briefing."; "In Paragraph 122 of the SAC, FGIC declares that it retained a firm of economic analysts to assess the likelihood that a suspicious pattern of referenced securities in Pyxis and other related CDOs could have occurred by chance, rather than by design. That paragraph also includes three bullet-pointed quotations from the analysis, concluding that the pattern 'may indicate that the portfolio selection by independent portfolio managers was influenced by an external factor,' that 'the probability of this happening by chance across independent portfolio managers is less than 1 in a billion,' and that the likelihood was similar to that observed in cases involving fraudulent options backdating. The analysis was referenced in order to show that the selection of financial instruments in Pyxis' portfolio was in fact conducted in conjunction with Magnetar Capital LLC ('Magnetar'), a hedge fund with a short position in Pyxis, with the goal of having Pyxis fail, creating a profit for Magnetar. See id. FGIC also referred to the report in its briefing before the Second Circuit."; "'Although FGIC did not directly cite to Paragraph 122 of the SAC in its Second Circuit briefing, it does repeatedly assert that it had independently confirmed without discovery that Pyxis' collateral was not selected independently, but. Rather for Magnetar's Benefit, a clear reference to the economic analysis.'")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal NY

Chapte