McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 305 of 305 results

Chapter: 29.1
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *12-13 (W.D. Va. June 15, 2011)
("But it is often difficult to determine whether a party has placed an attorney-client communication at issue. Balt. Scrap Corp. v. David J. Joseph Co., No. L-96-827, 1996 U.S. Dist. LEXIS 18597, 1996 WL 720785, at *25 (D. Md. Nov. 20, 1996).")

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

Chapter: 29.2
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 Jurisdiction State Cite Checked
2015-04-09 Federal OK

Chapter: 29.2
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 affirmatively put at issue its attorney's advice by invoking 'advice of counsel' to support its claims in this litigation. Thus, the first two prongs of the Hearn test were met in this case.")

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

Chapter: 29.2
Case Name: Busey v. Richland School Dist., No. 13-CV-5022-TOR, 2014 U.S. Dist. LEXIS 50579 (E.D. Wash. April 10, 2014)
(finding a client's statement to the newspaper that he relied on a lawyer's advice did not trigger an at issue or an implied waiver; "Plaintiff does provide an exhibit of an article from the local newspaper stating that Richland School Board Chairman Rick Jansons said that 'We followed all the directions of our attorney and were within the law.'. . . Insofar as Plaintiff relies on this statement to show that Defendants put privileged information at issue, the Court disagrees. A statement by a board member, before litigation begins, does not rise to the level of 'at issue' represented by case law, in which parties put privileged information at issue by raising a defense relying on the information.")

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

Chapter: 29.2
Case Name: TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985 (Ind. 2014)
October 29, 2014 (PRIVILEGE POINT)

“Can Companies Rely on a Special Litigation Committee Report to Dismiss Derivative Cases — Without Disclosing the Report?”

When shareholders file a derivative case, companies often form a special litigation committee to investigate the alleged wrongdoing. If the report exonerates management, the company then relies on the report to seek the derivative case's dismissal. If the plaintiffs seek access to the report, can the company withhold privileged or work product-protected portions?

In TP Orthodontics, Inc. v. Kesling, the company redacted 120 pages of a special litigation committee's 140-page report before producing it to the derivative plaintiffs. The trial court granted plaintiffs' motion to compel production of the entire report. The appellate court affirmed — but the Supreme Court reversed. 15 N.E.3d 985 (Ind. 2014). The Court upheld the company's redaction of any opinion work product, which deserves absolute protection under Indiana law. The Court also rejected the derivative plaintiffs' argument that the company had put the special litigation committee's good faith "at issue" and thus impliedly waived its attorney-client privilege. The Court noted that "it is the . . . shareholders who put the [special litigation committee's] good faith, or lack thereof, at issue by filing a derivative suit." Id. at 966. The Court ultimately ordered an in camera review to gauge the company's protection claims.

Although litigants' reliance on privileged communications to gain an advantage in litigation normally creates a recipe for an implied waiver, most courts conduct a different analysis in the derivative context.

Case Date Jurisdiction State Cite Checked
2014-01-01 State IN
Comment:

key case


Chapter: 29.2
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 Jurisdiction State Cite Checked
2013-04-12 Federal SC B 7/13

Chapter: 29.6
Case Name: Koss v. Palmer Water Dep't, Civ. A. No. 12-30170-MAP, 2013 U.S. Dist. LEXIS 144702, at *3 (D. Mass. Oct. 7, 2013)
(analyzing the Faragher-Ellerth doctrine; "As the court stated in its original order, 'when a Title VII defendant affirmatively invokes a Faragher-Ellerth defense [Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998)] that is premised . . . on the results of an internal investigation, the defendant waives the attorney-client privilege and work product protections for not only the report itself, but for all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-10-07 Federal MA B 5/14

Chapter: 29.9
Case Name: Fencerov v. Gelita USA, Inc., No. 16-0775, 2018 Iowa Sup. LEXIS 17 (Iowa Feb. 23, 2018)
(in a Faragher-Ellerth investigation case, holding that the defendant could retract its affirmative defense on remand; also holding that the opinion work product still applied to certain documents; "The Faragher-Ellerth affirmative defense. Our law has long recognized that employers have a duty to take reasonable measures to investigate and eliminate workplace discrimination. At the same time, growing attention has focused on workplace discrimination committed by supervisors and managers, largely due to their authority over subordinate employees bestowed on them by the employer. . . . This attention has made employers vicariously liable for discriminatory harassment by supervisors and heightened the importance for employers to affirmatively act to prevent workplace discriminatory conduct and properly respond to employee claims of workplace discrimination when they arise. . . It has also led to a two-part affirmative defense to claims of vicarious liability for employers who responsibly act to avoid workplace discrimination. . . . This defense allows these employers to escape vicarious liability for claims that do not involve tangible employment action. Id."; "The policy behind the affirmative defense is simple and direct. By offering a complete defense to vicarious liability, it encourages employers to prevent workplace discrimination and harassment by adopting antidiscrimination policies and complaint procedures or by taking other suitable action."; "Courts in other jurisdictions, however, have held that when a defendant asserts the Faragher-Ellerth defense and then relies on an internal investigation to support the defense, it waives attorney-client privilege over the investigation."; "We agree that an employer who relies on a presuit investigation to support a Faragher-Ellerth affirmative defense waives attorney-client privilege when the investigation is conducted by an attorney."; "The key element behind this authority is that the Faragher-Ellerth defense must not only be pled, but the employer must then rely on the attorney's investigation into plaintiff's discrimination allegations in proving the defense. When the reasonableness of the investigation into the allegations is relied upon as a defense, the contents of the investigation are placed into issue and become subject to disclosure."; "The critical question presented when discovery of an attorney investigation is sought in a lawsuit based on workplace discrimination is whether the employer intends to rely on the investigation as evidence to help prove the Faragher-Ellerth defense. When confronted with a discovery request, the employer controls the outcome of the waiver issue. The employer may decide to simply refrain from referencing the investigation in the civil action, in which case it will remain confidential. Or, the employer may choose to explicitly cabin its defense to the period of plaintiff's employment, in which case any reference to the investigation will be met with a relevance objection rather than a notice for deposition. Of course, the employer may also choose to offer the investigation as evidence of its proper corrective actions and waive any privilege over the investigation. The employer's decision must be clear because it will become the basis for the court's ruling."; "Defendants plainly relied on Horvatich's investigation to support their affirmative defense in their motion for summary judgment. The district court, therefore, did not abuse its discretion in finding defendants waived attorney-client privilege over the investigation.")

Case Date Jurisdiction State Cite Checked
2018-02-23 Federal IA
Comment:

key case


Chapter: 29.9
Case Name: Fencerov v. Gelita USA, Inc., No. 16-0775, 2018 Iowa Sup. LEXIS 17 (Iowa Feb. 23, 2018)
(in a Faragher-Ellerth investigation case, holding that the defendant could retract its affirmative defense on remand; also holding that the opinion work product still applied to certain documents; "If defendants wish to retract their waiver, they may make a new record before the district court that clearly and unequivocally establishes the investigation will not be used to support the defense.")

Case Date Jurisdiction State Cite Checked
2018-02-23 Federal IA

Chapter: 29.9
Case Name: Ambrose-Frazier v. Herzing Inc., Civ. A. No. 15-1324 Section: "E" (3), 2016 U.S. Dist. LEXIS 30174 (E.D. La. March 9, 2016)
(holding that an investigation into alleged racial discrimination conducted by the HR director who also happened to be a lawyer did not deserve work product protection, because it was undertaken in the ordinary course of business pursuant to an internal requirement to investigate all such claims; also finding the company's Faragher-Ellerth defense waived any privilege and work product protection that would have existed; "Even if the attorney-client or work-product privileges were to apply, Herzing waived the privileges by asserting the Faragher-Ellerth defense. When a Title VII defendant affirmatively invokes a Faragher-Ellerth defense that is premised at least in part on an internal investigation, the defendant waives the attorney-client privilege and work-product doctrine for all documents created as part of that investigation.")

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

Chapter: 29.9
Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948 (S.D.N.Y. March 4, 2016)
(holding that work product doctrine was prepared during a resources consulting group's investigation into a company employee's allegation that she was raped; noting that the defendant dropped an affirmative defense that arguably asserted a Faragher-Ellerth defense, and disclaimed relying on Faragher-Ellerth; "Here, Defendants appear to assert a Faragher-Ellerth defense."; "However, Defendants affirmatively represented on the record at the February 1, 2016 conference and in their letters to the Court that they are not asserting the reasonableness of any investigation as a defense in this litigation. As to any post-employment investigation, Defendants state as follows: 'Most significantly, Defendants do not rely in this litigation on any investigation conducted [sic] Vineyard Vines or its agents or representatives in response to Plaintiff's post-employment allegations, particularly because Plaintiff did not complain of any alleged harassment until after she resigned her employment. To the extent that Defendants assert in their Twelfth Affirmative Defense that Plaintiff 'unreasonably failed to avail herself of . . . Remedial measures,' this refers to her failure to complain of any alleged sexual harassment during her employment. Should this Affirmative Defense be read by the Court to suggest that Defendants are asserting an affirmative defense that they investigated any allegations by Plaintiff after her resignation, Defendants are prepared to amend their Answer to specify that it applies to Plaintiff's term of employment only.'"; "It appears that Defendants are merely asserting as a defense: (1) the existence of anti-harassment policies; and (2) Plaintiff's failure to take advantage of those policies during her term of employment. In other words, Defendants have clarified that they never meant to assert a Faragher/Ellerth defense, or are at the very least 'dropping the asserted defense,' as to any investigation conducted into Plaintiff's claims on behalf of Vineyard Vines. Sealy, 1998 U.S. Dist. LEXIS 15654, 1998 WL 698257, at *5."; "Given these representations by Defendants' counsel, I find that Defendants have not waived any privilege as to the Investigative Documents by asserting the Twelfth Affirmative Defense.")

Case Date Jurisdiction State Cite Checked
2016-03-04 Federal NY

Chapter: 29.9
Case Name: Mendez v. St. Alphonsus Regional Medical Ctr., Case No. 1:12-cv-26-EJL-CWD, 2014 U.S. Dist. LEXIS 94818 (D. Idaho July 10, 2014)
(analyzing the privilege and work product implications of a company's investigation of a harassment claim; "In this case, Associate General Counsel for SARMC, Jacqueline Fearnside, directed the Employee Relations Manager, Dennis Wedman, to investigate Mendez's claims of 'unlawful harassment' and 'hostile work environment' raised by Mendez on his own behalf and that of a co-worker in the email sent to SARMC's Local Integrity Officer on May, 2010. . . . Fearnside 'anticipated that [Mendez's] claims would ultimately result in litigation' because his complaint alleged 'unlawful harassment' and 'hostile work environment.'. . . Fearnside directed Wedman to prepare a report on the investigation in a specific format 'for purposes of preparing for any potential litigation and to enable [Fearnside] to provide SARMC with legal advice.'. . . The Report was communicated in confidence and labeled 'Confidential -- Attorney/Client Privileged.'"; "Due to the nature of these allegations, Fearnside directed Wedman to conduct an investigation regarding Mendez's complaint. . . . This investigation was more extensive than most investigations into OIP complaints, because most OIP complaints are handled by the Local Integrity Officer without any direction from the Office of General Counsel. . . . According to Fearnside's sworn declaration, she anticipated litigation and directed Wedman to conduct the investigation 'for purposes of preparing for any potential litigation and to enable [her] to provide SARMC with legal advice.'. . . Thus, the OIP Report exists because SARMC anticipated a lawsuit and the investigation was undertaken at the specific direction of the Associate General Counsel. Therefore, the OIP report is protected from disclosure by the work product doctrine, absent waiver.")

Case Date Jurisdiction State Cite Checked
2014-07-10 Federal ID

Chapter: 29.9
Case Name: Mendez v. St. Alphonsus Regional Medical Ctr., Case No. 1:12-cv-26-EJL-CWD, 2014 U.S. Dist. LEXIS 94818 (D. Idaho July 10, 2014)
(analyzing the privilege and work product implications of a company's investigation of a harassment claim; "Although SARMC pled an Ellerth-Faragher defense in its Answer, (. . . 'Fourth Defense'), it has not used the OIP investigation to support the defense. Had SARMC done so, it may have waived any applicable discovery protections. However, SARMC's Motion for Summary Judgment does not raise an Ellerth-Faragher defense and does not rely on the OIP investigation or report in any manner. . . . Moreover, SARMC claims the OIP Report was not the factual basis for asserting the Ellerth-Faragher defense in its Answer in the first instance. Instead, this defense was based on other 'mechanisms through which employees can report illegal discrimination and harassment.'")

Case Date Jurisdiction State Cite Checked
2014-07-10 Federal ID

Chapter: 29.9
Case Name: Weinberg v. William Blair & Co, LLC, No. 12 CV 9846, 2014 U.S. Dist. LEXIS 80627, at *3-4 (N.D. Ill. June 13, 2014)
(analyzing the scope of a Faragher-Ellerth waiver; also concluding that the waiver did not include documents created after the investigation; "Under the Faragher/Ellerth defense, absent a tangible employment action, an employer may defend against liability if it can prove that: (a) the employer exercised reasonable care to prevent and promptly correct any discriminatory or harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. . . . Because William Blair is asserting this defense, information pertinent to the reasonableness and adequacy of its investigation and response to Weinberg's claims is discoverable.")

Case Date Jurisdiction State Cite Checked
2014-06-13 Federal IL

Chapter: 29.9
Case Name: McCullough v. Fraternal Order of Police, Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 79281, at *11 (N.D. Ill. June 11, 2014)
(analyzing defendant's investigation of possible sexual harassment; holding that the investigation-related documents deserved privilege protection and work product protection; holding that the defendant could refer to remedial steps and the investigation, but would waive any protection by using investigation-related documents at the trial; "FOP will not, however, be precluded from offering evidence of corrective steps that were unrelated to the D'Alba investigation or even evidence of corrective steps that were suggested in the D'Alba report, as long as FOP does not disclose the fact of the D'Alba investigation and report. FOP does not waive its privileges by offering evidence regarding the reasonableness of its conduct in response to McCullough's allegations, as long as that evidence does not explicitly pertain to the D'Alba investigation and/or report. In other words, FOP cannot refer to the D'Alba investigation (or the D'Alba report) as a corrective step itself without waiving its privilege. FOP can refer to other corrective steps, even if those corrective steps originated in the D'Alba report (again, only if the source is kept hidden).")

Case Date Jurisdiction State Cite Checked
2014-06-11 Federal IL

Chapter: 29.9
Case Name: McCullough v. Fraternal Order of Police, Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 79281, at *10 (N.D. Ill. June 11, 2014)
(analyzing defendant's investigation of possible sexual harassment; holding that the investigation-related documents deserved privilege protection and work product protection; holding that the defendant could refer to remedial steps and the investigation, but would waive any protection by using investigation-related documents at the trial; "Having asserted privilege to prevent discovery of the D'Alba Report, FOP cannot introduce evidence regarding the fact or contents of the D'Alba investigation or the ensuing report in an attempt to defend itself against McCullough's claim that FOP did not take reasonable corrective action. Further, any claim by FOP that McCullough did not object to sexual harassment during the D'Alba investigation will be deemed a waiver of its privilege as to the investigation and report because it will have placed the investigation and report at issue (which it has not done yet)").

Case Date Jurisdiction State Cite Checked
2014-06-11 Federal IL

Chapter: 29.9
Case Name: Alomari v. Ohio Dept. of Pub. Safety, Civ. A. 2:11-cv-00613, 2013 U.S. Dist. LEXIS 118754, at *14 (S.D. Ohio Aug. 21, 2013)
("The Faragher-Ellerth [Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998)] defense permits an employer defending a hostile work environment claim to assert that it exercised reasonable care to prevent and correct discriminatory behavior. . . . In the absence of any allegation of a failure to investigate, the Faragher-Ellerth defense neither applies nor is helpful in this case.")

Case Date Jurisdiction State Cite Checked
2013-08-21 Federal OH B 4/14

Chapter: 29.9
Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *35 n.19 (S.D. Ga. May 8, 2013)
(in an employment discrimination case against celebrity Paula Deen and her brother "Bubba" Hiers, ultimately concluding that Deen's three outside consultants were outside the attorney-client privilege protection; "What is determinative here is not a particular defense like Ellerth/Faragher [Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998)], but a range of defenses. Boiled down, the defenses raised here range from: (1) the offensive conduct never occurred (hence, plaintiff is lying or exaggerating about it); (2) if it did, plaintiff never complained about it to management; (3) it did occur and plaintiff complained but management non-negligently addressed it; or (4) it did occur but supports no recovery because, for example, it crossed no legal line.")

Case Date Jurisdiction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 29.9
Case Name: Moore v. Dan Holdings, Inc., No. 1:12CV503, 2013 U.S. Dist. LEXIS 61378, at *8-10 (M.D.N.C. Apr. 30, 2013)
(although not referring to the Faragher-Ellerth (Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998)) doctrine, describing the difference between reliance on an investigation in a harassment case and in another employment case; "In the harassment context, the reasonableness of remedial measures represents a key issue in determining liability. . . . Plaintiff asserts that, 'although [Chivers v. Cent. Noble Cmty. Sch., No. 1:04-CV-00394, 2005 U.S. Dist. LEXIS 16057 (N.D. Ind. Aug. 4, 2005), and Pray v. N.Y.C. Ballet Co., No. 96 CIV 5723 RLC, 1998 U.S. Dist. LEXIS 2010 (S.D.N.Y. Feb. 13, 1998)] involve sexual harassment claims, the principles underlying those cases (including as to waiver arguments) are fully applicable here' . . ., but offers no reasoning or authority to establish how her claims (none of which involve harassment) depend in any way on any investigation conducted by Defendants' counsel).")

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal NC B 7/13

Chapter: 29.9
Case Name: Oliver v. Microsoft Corp., No. C 12-00943 RS (LB), 2013 U.S. Dist. LEXIS 49721, at *3-4, *4 (N.D. Cal. Apr. 5, 2013)
(analyzing waiver issues in an employment case against Microsoft; ultimately finding that Microsoft did not waive privilege protection; "Courts in the Northern District have held that an employer's reliance on the reasonableness of its investigation and the adequacy of its response can operate as waiver of attorney-client privilege. . . . Microsoft is trying to tread a middle ground, arguing that it is not relying on the adequacy of the investigation but instead it is relying on the fact that it responded and took appropriate remedial steps, and Plaintiff failed to avail herself of what Microsoft offered. Courts recognize that approach as different than relying on the reasonableness of the investigation."; "Under the circumstances of Microsoft's assertion about how it will offer its defense, the court follows the middle ground in Kaiser Foundation Hospitals, Inc. v. Superior Court as the appropriate approach. See 66 Cal. App. 4th 1217, 1226, 1228 (1998). There, the court held that if the employee is afforded the full discovery of the investigation (except for specified communications implicating privilege and work product), then there is no waiver. Id. at 1228. The approach makes more sense than the depositions that Plaintiff wants instead."; "On this record, the court orders disclosure of the factual investigation (but not communications that are privileged) and a privilege log within 14 days. . . . The court observes that privilege does not attach merely because lawyers are involved. Here, the information that Plaintiff seeks is fact investigation [rather] than legal advice.")

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

Chapter: 29.9
Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *16 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "Courts have found it unfair and illogical to allow an employer to assert the reasonableness of an investigation as an affirmative defense, and, at the same time, withhold relevant evidence under the guise of privilege or work product protection. In such situations, courts have found implied waivers as to documents generated in a sexual harassment investigation, where the employer asserts as an affirmative defense that it exercised reasonable care to prevent and correct promptly any discriminatory or sexually harassing behavior.")

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

Chapter: 29.11
Case Name: Fencerov v. Gelita USA, Inc., No. 16-0775, 2018 Iowa Sup. LEXIS 17 (Iowa Feb. 23, 2018)
(in a Faragher-Ellerth investigation case, holding that the defendant could retract its affirmative defense on remand; also holding that the opinion work product still applied to certain documents; "If defendants wish to retract their waiver, they may make a new record before the district court that clearly and unequivocally establishes the investigation will not be used to support the defense.")

Case Date Jurisdiction State Cite Checked
2018-02-23 Federal IA

Chapter: 29.11
Case Name: Fencerov v. Gelita USA, Inc., No. 16-0775, 2018 Iowa Sup. LEXIS 17 (Iowa Feb. 23, 2018)
(in a Faragher-Ellerth investigation case, holding that the defendant could retract its affirmative defense on remand; also holding that the opinion work product still applied to certain documents; "The Faragher-Ellerth affirmative defense. Our law has long recognized that employers have a duty to take reasonable measures to investigate and eliminate workplace discrimination. At the same time, growing attention has focused on workplace discrimination committed by supervisors and managers, largely due to their authority over subordinate employees bestowed on them by the employer. . . . This attention has made employers vicariously liable for discriminatory harassment by supervisors and heightened the importance for employers to affirmatively act to prevent workplace discriminatory conduct and properly respond to employee claims of workplace discrimination when they arise. . . It has also led to a two-part affirmative defense to claims of vicarious liability for employers who responsibly act to avoid workplace discrimination. . . . This defense allows these employers to escape vicarious liability for claims that do not involve tangible employment action. Id."; "The policy behind the affirmative defense is simple and direct. By offering a complete defense to vicarious liability, it encourages employers to prevent workplace discrimination and harassment by adopting antidiscrimination policies and complaint procedures or by taking other suitable action."; "Courts in other jurisdictions, however, have held that when a defendant asserts the Faragher-Ellerth defense and then relies on an internal investigation to support the defense, it waives attorney-client privilege over the investigation."; "We agree that an employer who relies on a presuit investigation to support a Faragher-Ellerth affirmative defense waives attorney-client privilege when the investigation is conducted by an attorney."; "The key element behind this authority is that the Faragher-Ellerth defense must not only be pled, but the employer must then rely on the attorney's investigation into plaintiff's discrimination allegations in proving the defense. When the reasonableness of the investigation into the allegations is relied upon as a defense, the contents of the investigation are placed into issue and become subject to disclosure."; "The critical question presented when discovery of an attorney investigation is sought in a lawsuit based on workplace discrimination is whether the employer intends to rely on the investigation as evidence to help prove the Faragher-Ellerth defense. When confronted with a discovery request, the employer controls the outcome of the waiver issue. The employer may decide to simply refrain from referencing the investigation in the civil action, in which case it will remain confidential. Or, the employer may choose to explicitly cabin its defense to the period of plaintiff's employment, in which case any reference to the investigation will be met with a relevance objection rather than a notice for deposition. Of course, the employer may also choose to offer the investigation as evidence of its proper corrective actions and waive any privilege over the investigation. The employer's decision must be clear because it will become the basis for the court's ruling."; "Defendants plainly relied on Horvatich's investigation to support their affirmative defense in their motion for summary judgment. The district court, therefore, did not abuse its discretion in finding defendants waived attorney-client privilege over the investigation.")

Case Date Jurisdiction State Cite Checked
2018-02-23 Federal IA
Comment:

key case


Chapter: 29.11
Case Name: Aboudara v. City of Santa Rosa, Case No. 17-cv-01661-HSG (JSC), 2018 U.S. Dist. LEXIS 10033 (N.D. Cal. Jan. 22, 2018)
(allowing a defendant to withdraw its reliance on legal advice to demonstrate its "good faith" in an FLSA case, thus eliminating any implied waiver risk; "Defendant's willfulness is an issue in this case. If Plaintiff proves Defendant violated the FLSA and that the violation was willful, that finding lengthens the statute of limitations and requires an award of liquidated damages. 29 U.S.C. § 255(a); 29 U.S.C. § 260. Accordingly, in its Amended Answer Defendant raises an affirmative defense of good faith and specifically alleges that it acted in good faith because, among other things, 'Defendant consulted with legal counsel regarding its FLSA compliance.' (Dkt. No. 31 at 8:4-5.) There is no question that this reliance on the advice of legal counsel waives the privilege as to that advice."; "Since the filing of its Amended Answer, however, Defendant has had a change of heart and has decided not to rely on any advice of counsel. When Ms. Keeton was deposed, Defendant prohibited her from answering any questions as to advice she received and Defendant has refused to produce any documents reflecting such advice. It asserts that it has offered to stipulate that it will not in any way rely on advice of counsel in support of its good faith defense and will move to amend its answer if need be. Plaintiff does not dispute this offer, but instead maintains that Defendant's good faith defense in itself waives the privilege. The Court disagrees."; "To accept Plaintiff's argument would mean that any time a defendant disputes a plaintiff's willfulness allegation the plaintiff would be entitled to discovery regarding any legal advice the defendant received on the relevant issue. The defendant would therefore, in effect, be required to admit to willfulness (assuming an FLSA violation is found) if it wanted to maintain its attorney-client privilege."; "Such a consequence would discourage parties from obtaining legal advice in the first instance, and thus run contrary to the very purpose of the attorney-client privilege. . . . To the extent the out-of-circuit district court cases cited by Plaintiff hold to the contrary, this Court simply disagrees. The Ninth Circuit has never held that merely asserting good faith waives the attorney-client privilege as to communications with counsel regarding the topic at issue. This Court, too, declines to do so."; "The outcome of this motion might be different if Defendant had followed up on its affirmative defense with reliance on the fact that it sought advice of counsel in its discovery responses. But Plaintiff does not point to any such reliance and does not otherwise identify how it would be prejudiced by allowing Defendant to withdraw its statement in its Amended Answer. Of course, Defendant is now bound by its current representation and may not in any way rely on the fact that legal advice was sought.")

Case Date Jurisdiction State Cite Checked
2018-01-22 Federal CA
Comment:

key case


Chapter: 29.11
Case Name: Secretary U.S. Dept. of Labor v. Am. Future Sys., Inc., No. 16-2685, 2017 U.S. App. LEXIS 19991 (3rd Cir. Oct. 13, 2017)
(in an FLSA case; of liquidated damages based in part on defendant's refusal to waive its attorney-client privilege; "In assessing liquidated damages, the District Court noted that Satell sought advice of counsel, but he refused to waive the attorney-client privilege and disclose this advice to the court. Satell's testimony placed the court in an untenable position of having to assume that counsel's advice was consistent with the adopted policy while ignoring the fact that Satell refused to tell the court what counsel advised. The District Court concluded that, given the unwillingness to share what it was told by counsel, 'it is entirely possible that Defendants implemented the new break policy in 2009, despite being told by one or more of its lawyers that the policy violated the FLSA. It would be an absurd result to classify such conduct as 'good faith' . . . .'"; "Progressive argues that the District Court abused its discretion in finding that it did not act in good faith when setting its break policy simply because Progressive refused to waive its attorney-client privilege. It claims that the District Court's decision punishes Progressive for seeking legal advice that was not essential to a good-faith determination, as employers are not required to seek legal advice to demonstrate good faith. Thus, according to Progressive, the District Court's decision will discourage open and confident relationships between clients and attorneys. That may be so, but we, like Judge Restrepo, are incredulous that an employer in this situation would decline to share the legal advice it received when the issue of good faith is raised, and we will not preclude a court from considering this in its thought process.")

Case Date Jurisdiction State Cite Checked
2017-10-13 Federal
Comment:

key case


Chapter: 29.11
Case Name: Secretary U.S. Dept. of Labor v. Am. Future Sys., Inc., No. 16-2685, 2017 U.S. App. LEXIS 19991 (3rd Cir. Oct. 13, 2017)
("In assessing liquidated damages, the District Court noted that Satell sought advice of counsel, but he refused to waive the attorney-client privilege and disclose this advice to the court. Satell's testimony placed the court in an untenable position of having to assume that counsel's advice was consistent with the adopted policy while ignoring the fact that Satell refused to tell the court what counsel advised. The District Court concluded that, given the unwillingness to share what it was told by counsel, 'it is entirely possible that Defendants implemented the new break policy in 2009, despite being told by one or more of its lawyers that the policy violated the FLSA. It would be an absurd result to classify such conduct as 'good faith' . . . .'"; "Progressive argues that the District Court abused its discretion in finding that it did not act in good faith when setting its break policy simply because Progressive refused to waive its attorney-client privilege. It claims that the District Court's decision punishes Progressive for seeking legal advice that was not essential to a good-faith determination, as employers are not required to seek legal advice to demonstrate good faith. Thus, according to Progressive, the District Court's decision will discourage open and confident relationships between clients and attorneys. That may be so, but we, like Judge Restrepo, are incredulous that an employer in this situation would decline to share the legal advice it received when the issue of good faith is raised, and we will not preclude a court from considering this in its thought process.")

Case Date Jurisdiction State Cite Checked
2017-10-13 Federal

Chapter: 29.11
Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)
("The next 'issue injection' issue to consider is whether Defendants have expressly waived the attorney-client privilege by asserting certain affirmative defenses. Specifically, Defendants have asserted good faith affirmative defenses . . . and they have asserted that Plaintiffs were exempt from the FLSA's minimum wage and overtime compensation requirements . . . . But importantly, Defendants have never expressly stated that they are relying upon advice of counsel to support any defense in this case. An express reliance upon advice of counsel to support Defendants' affirmative defenses would waive the attorney-client privilege as to attorney-client communications related to such advice. However, Defendants are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case. In fact, they have specifically stated that they are not going to adduce any evidence or testimony about any advice of counsel Defendants received."; "The above cited relevant case law, when read carefully as a whole, puts cases into three general categories. First, the case law is in agreement that a mere denial of willfulness does not amount to issue injection which would impliedly waive the attorney-client privilege. Second, asserting an affirmative defense (such as good faith in an FLSA case) that explicitly states that a defendant relied on the advice of counsel, or refers to advice or consultation with counsel to support such affirmative defense, does amount to issue injection sufficient to waive the attorney-client privilege. Third, the more nuanced situation, which is similar to what we have here, is whether issue injection sufficient to waive the attorney-client privilege occurs when a defendant in an FLSA case asserts a good faith (or outside sales exemption) affirmative defense, but does not explicitly mention reliance on advice of counsel in that affirmative defense and further represents that it does not intend to rely on counsel's advice to support such defense. Courts seem to require something additional to find issue injection in this third category of cases.")

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

Chapter: 29.11
Case Name: Johnson v. J. Walter Thompson U.S. A., LLC, 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
(in an opinion by Magistrate Judge Francis, holding that drafts of and communications relating to an investigation conducted by the Proskauer Rose law firm into client's alleged Title VII violation deserved both privilege and work product protection; also noting that the defendant had abandoned a Faragher-Ellerth defense, but that the court would have to review the withheld documents in camera to determine if defendant waived either protection by using the report for "context" in connection with its "good faith" defense; "In this case, the Corporate Defendants raised a Faragher/Ellerth defense in their Answer. . . . However, they have since disavowed use of the Proskauer Report in connection with any Farragher/Ellerth defense. They first made this clear at a court conference. . . and they state unequivocally in their reply memorandum that 'Defendants will not be using the legal conclusions in the Proskauer Report . . . to support their position that there has been no violation of the law . . . . ' (Reply Memorandum of Law in further Support of Defendants' Motion for Protective Order)."; "This does not, however, end the inquiry. The Corporate Defendants have indicated that they do not intend to rely on the Proskauer Report 'to provide context for the actions they took as a result of the business recommendations in the Report.'. . . Reliance by the Corporate Defendants on the conclusions of the report does not open up to discovery the details of the investigation that led to the report. . . . Therefore, there is no waiver with respect to the categories of the Proskauer Documents that could be relevant, if at all, only to the accuracy of the findings in the report, specifically, notes of interviews of JWT employees, drafts of the report, and invoices."; "However, when a party asserts a good faith defense, as the Corporate Defendants appear to do here, it may not selectively proffer the information upon which it relied. . . . Here, the extent to which the Corporate Defendants acted in good faith on the basis of the Proskauer Report is dependent upon the totality of the legal advice they received. Thus, the communications related to Proskauer's conclusions, but not the reliabililty of the investigation lending to those conclusions, are discoverable. Accordingly, if they intend to introduce the Proskauer Report in evidence, the Corporate Defendants shall produce for my in camera review any documents withheld on grounds of privilege that reflect communications between themselves and Proskauer or between Proskauer and David & Gilbert concerning the subject matter of the Proskauer Report. In that way, I can determine whether fairness necessitates the disclosure of these documents to the plaintiff.")

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 29.11
Case Name: Johnson v. J. Walter Thompson U.S. A., LLC, 16 Civ. 1805 (JPO) (JCF), 2017 U.S. Dist. LEXIS 126185 (S.D.N.Y. Aug. 9, 2017)
(in an opinion by Magistrate Judge Francis, holding that drafts of and communications relating to an investigation conducted by the Proskauer Rose law firm into client's alleged Title VII violation deserved both privilege and work product protection; also noting that the defendant had abandoned a Faragher-Ellerth defense, but that the court would have to review the withheld documents in camera to determine if defendant waived either protection by using the report for "context" in connection with its "good faith" defense; "Proskauer has declined to disclose (1) electronic and handwritten notes taken by Proskauer attorneys during the investigation interviews; (2) earlier drafts of the Proskauer Report containing attorney comments; (3) invoices submitted to the Corporate Defendants; (4) documents provided to Proskauer by JWT and the interviewees in the course of the investigation; and (5) emails among Proskauer attorneys and between Proskauer attorneys and JWT witnesses or outside counsel regarding the investigation and the lawsuit (collectively, the 'Proskauer Documents')."; "[I]t is not the Report itself that is at issue, but rather the documents generated during the investigation."; "With respect to many of the Proskauer Documents, I disagree. 'Rare is the case that a troubled corporation will initiate an internal investigation solely for legal, rather than business, purposes; indeed, the very prospect of legal action against a company necessarily implicates larger concerns about a company's internal procedures and controls, not to mention its bottom line.'. . . Yet the purpose of a communication need not be exclusively legal in order for the privilege to attach. . . . Rather, the legal purpose need only be predominant, and identification of such a purpose 'may [] be informed by the overall needs and objectives that animate the client's request for advice.'. . . Here, there were no doubt multiple motivations for commencing an internal investigation and engaging in the subject communications: to gather information to defend this lawsuit; to determine whether systemic changes were necessary; to decide on a course of action specifically with respect to Mr. Martinez; and to ameliorate a public relations problem. Yet all of these purposes were suffused with the need for legal advice triggered by a lawsuit that had already been filed. This is confirmed by the fact that the Proskauer report contains multiple references to the allegations contained in the lawsuit . . . as well as the fact that its recommendations reflect the application of legal expertise . . . . The plaintiff complains that any claim that the Proskauer investigation had a primarily legal purpose is undermined by the fact that the Corporate Defendants' outside counsel, Davis & Gilbert, had already conducted one . . . . But, surely, the fact that a client chooses to seek legal advice from multiple attorneys does not cast doubt on the privileged nature of communications with any one of them."; "This is true even where the document in its final form is intended to be disseminated publicly. . . . As discussed above, the Proskauer Report reflects the provision of legal advice so the drafts of that report are similarly privileged. Moreover, even if the drafts are not privileged in their entirety, they are also subject to work product protection, as will be discussed below."; "In this case, the Corporate Defendants raised a Faragher/Ellerth defense in their Answer. . . . However, they have since disavowed use of the Proskauer Report in connection with any Farragher/Ellerth defense. They first made this clear at a court conference. . . and they state unequivocally in their reply memorandum that 'Defendants will not be using the legal conclusions in the Proskauer Report . . . to support their position that there has been no violation of the law . . . . ' (Reply Memorandum of Law in further Support of Defendants' Motion for Protective Order)."; "This does not, however, end the inquiry. The Corporate Defendants have indicated that they do not intend to rely on the Proskauer Report 'to provide context for the actions they took as a result of the business recommendations in the Report.'. . . Reliance by the Corporate Defendants on the conclusions of the report does not open up to discovery the details of the investigation that led to the report. . . . Therefore, there is no waiver with respect to the categories of the Proskauer Documents that could be relevant, if at all, only to the accuracy of the findings in the report, specifically, notes of interviews of JWT employees, drafts of the report, and invoices."; "However, when a party asserts a good faith defense, as the Corporate Defendants appear to do here, it may not selectively proffer the information upon which it relied. . . . Here, the extent to which the Corporate Defendants acted in good faith on the basis of the Proskauer Report is dependent upon the totality of the legal advice they received. Thus, the communications related to Proskauer's conclusions, but not the reliabililty of the investigation lending to those conclusions, are discoverable. Accordingly, if they intend to introduce the Proskauer Report in evidence, the Corporate Defendants shall produce for my in camera review any documents withheld on grounds of privilege that reflect communications between themselves and Proskauer or between Proskauer and David & Gilbert concerning the subject matter of the Proskauer Report. In that way, I can determine whether fairness necessitates the disclosure of these documents to the plaintiff.")

Case Date Jurisdiction State Cite Checked
2017-08-09 Federal NY
Comment:

key case


Chapter: 29.11
Case Name: Leftwich v. City of Pittsburgh, Case No. 16-2112-JWL-GLR, 2017 U.S. Dist. LEXIS 56627 (D. Kansas April 12, 2017)
(holding that a litigant claiming an affirmative defense of qualified immunity did not waive privilege protection, but that the defendant did waive privilege protection through deposition testimony about the reasons for an employment termination; "Defendants essentially argue that the first condition is not met, because they have not taken an affirmative act to put the privileged information at issue by making it relevant to the case. Plaintiff, however, suggests their assertion of the defense of qualified immunity is itself an affirmative act. Qualified immunity serves 'to protect public officials who act in good faith, on the basis of objectively reasonable understandings of the law at the time of their actions, from personal liability on account of later-announced, evolving constitutional norms.' Defendants contend they have 'made it abundantly clear that Defendants do not intend to rely on advice or counsel from the city attorney in furtherance of [their defense(s)] . . . Defendants are not relying on the privileged legal advice from the city attorney as part of any defense in this case and have not otherwise put the legal advice at issue.'"; "The mere assertion of a defense, here qualified immunity, does not operate to waive the privilege. Similar to Heglet [Heglet v. City of Hays, Kan., No. 13-2228-KHV/KGG, 2014 U.S. Dist. LEXIS 35738, 2014 WL 1094458, at *3 (D. Kan. Mar. 19, 2014)], there is here no clear showing that Defendants have gone further than to merely assert the defense. If Defendants assert that their consultation with the City Attorney caused or justified their conduct (which, as quoted above, they adamantly deny they will do), that affirmative act would waive the privilege. At this point, however, Defendants have not waived attorney-client privilege by merely asserting a defense of qualified immunity.")

Case Date Jurisdiction State Cite Checked
2017-04-12 Federal KS

Chapter: 29.11
Case Name: United States ex rel. Calilung v. Ormat Industries, Ltd., No. 3:14-cv-00325-RCJ-VPC, 2016 U.S. Dist. LEXIS 100292, at *5 (D. Nev. Aug. 1, 2016)
October 19, 2016 (PRIVILEGE POINT)

"Can You "Undo" an Implied Waiver?"

An intentional express disclosure of privileged communications normally triggers an irreversible waiver, although the disclosure might or might not cause a subject matter waiver. The waiver implications of implied waivers present more subtle issues, because clients can impliedly waive their privilege protection without disclosing privileged communications. For instance, pleading an "advice of counsel" defense impliedly waives privilege protection for pertinent privileged communications.

In United States ex rel. Calilung v. Ormat Industries, Ltd., a qui tam defendant filed an affirmative defense that it "'acted reasonably and in good faith in light of all circumstances and in compliance with all applicable legal requirements.'" No. 3:14-cv-00325-RCJ-VPC, 2016 U.S. Dist. LEXIS 100292, at *5 (D. Nev. Aug. 1, 2016) (internal citation omitted). The court found that defendant's "affirmative defenses go beyond mere denial of scienter to put its state of mind and knowledge of the [legal] requirements at issue." Id. at *14. The court thus held that defendant's implied waiver required it to produce all privileged communications about the applicable legal provisions. But then the court found it "appropriate to give [defendant] a choice": (1) "proceed with its good faith defenses and produce the relevant documents," or (2) "preserve the communications' confidentiality by abandoning the defenses that giv[e] rise to the waiver." Id. at *18.

Not all courts would be this generous, but most courts allow litigants to "undo" implied waivers by withdrawing the assertion that would otherwise require disclosure of privileged communications.

Case Date Jurisdiction State Cite Checked
2016-08-01 Federal NV B 10/16
Comment:

key case


Chapter: 29.11
Case Name: Roberts v. Clark County School District, Case No. 2:15-cv-00388-JAD-PAL, 2016 U.S. Dist. LEXIS 60995 (D. Nev. May 9, 2016)
(holding that disclosing privileged documents to the EEOC waived the attorney-client privilege, but not the work product doctrine; "Applying these principles the court finds that many of the documents CCSD has withheld on the grounds of attorney-client privilege are not privileged or that CCSD has waived any potential privilege by voluntarily disclosing the advice of its counsel relied upon to support its good-faith defense in this case. It is undisputed that CCSD disclosed some of the documents withheld in its privileged document logs to the EEOC in its response to Plaintiff's administrative claims. CCSD relied upon legal advice of in-house counsel and conveyed that legal advice to the EEOC to explain and justify its decision to deny Roberts' use of the men's restroom associated with his gender identity. Although counsel for CCSD argues that CCSD is not relying on the advice of counsel as a defense to this action, CCSD disclosed the advice of counsel to the EEOC to support its claim that its actions with respect to Bradley were justified and complied with existing law. CCSD has also asserted an affirmative good-faith defense in its answer which claims its actions were justified and complied with existing law.")

Case Date Jurisdiction State Cite Checked
2016-05-09 Federal NV

Chapter: 29.11
Case Name: Bowman v. Washington County Kennel Club, Inc., Case No. 5:15cv257-RH/GRJ, 2016 U.S. Dist. LEXIS 18948 (N.D. Fla. Feb. 17, 2016)
(noting that the defendant had abandoned a Faragher-Ellerth defense, and therefore did not trigger a waiver; "In its answer to the complaint in this action, the Club apparently invokes Faragher and Ellerth as the ninth defense."; "Ms. Bowman says Ms. Faragasso's March 5 letter and related communications are relevant to the ninth defense and that a party who asserts such a defense waives the attorney-client privilege for communications like these. In response, the Club has explicitly abandoned the ninth defense. The defense apparently would fail anyway, because Ms. Bowman asserts discrimination only in tangible employment actions -- actions to which the Faragher and Ellerth defense does not apply."; "Ms. Faragasso's letter fits squarely within the attorney-client privilege. The letter sets out the attorney's opinion responding to the client's request for advice on a legal matter, and the letter almost certainly includes factual information provided by the client. The advice was provided in confidence and has not been disclosed to others."; "In addition, these circumstances illustrate the utility of the attorney-client privilege when functioning as intended. One of the most important tools for bringing about corporate compliance with governing laws is free communication between a corporate decision maker and an attorney who will speak truth to power. The privilege exists to promote free communication of that kind. This record includes only allegations; nothing has been proved. But one assertion is that after this investigation, Ms. Bowman's hours were restored. It is at least possible that Ms. Faragasso's report caused the restoration of hours that had been discriminatorily reduced. If that is what happened, it is also possible that without an effective attorney-client privilege, the Club would not have consulted Ms. Faragasso, and the discriminatory reduction of hours would not have ended. Bringing about compliance with governing laws is one goal of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-02-17 Federal FL
Comment:

key case


Chapter: 29.11
Case Name: Lillieroos v. Starr Indemnity & Liability Co., Case No. CIV-12-1359-D, 2016 U.S. Dist. LEXIS 14876 (W.D. Okla. Feb. 8, 2016)
(finding that defendant had not triggered an "at issue" waiver while seeking indemnification based on an earlier settlement agreement; "Upon review of the parties' submissions, including the documents for which the attorney-client privilege is invoked, the Court finds that all of the so-called Hearn factors militate against waiver, and that CBP's motion should be denied. As previously noted by the Court, the first two factors, assertion of the privilege as the result of an affirmative act, which renders the protected information at issue, are crucial requirements. . . . Simply bringing a claim for indemnification, and mere relevance of the protected information, are not enough. . . . Here, in seeking indemnification Starr did not inject advice of its counsel into the case, nor did it rely on advice of counsel to supply an element of its indemnification claim. Starr has affirmatively asserted that it will not rely on the advice of counsel in attempting to meet its burden at trial to establish the reasonableness of the settlement.")

Case Date Jurisdiction State Cite Checked
2016-02-08 Federal OK

Chapter: 29.11
Case Name: United States v. Wells Fargo Bank, N.A., 12-CV-7527 (JMF), 2015 U.S. Dist. LEXIS 143814 (S.D.N.Y. Oct. 22, 2015)
(ordering the government to produce documents for an in camera review that might show the government's knowledge of certain Wells Fargo conflicts, which implicates the statute of limitations; "If the 'HUD OIG report' refers to an audit of Wells Fargo, for example, then the fact that someone at DOJ received it and the context in which the audit was sent would be 'vital' to Wells Fargo's ability to test the Government's statute-of-limitations argument, as Wells Fargo may be able to argue that the audit either alerted DOJ to Wells Fargo's alleged misconduct or should have alerted it to that misconduct. Accordingly, by no later than two weeks from the date of this Opinion and Order, the Government shall revise its privilege log to clarify the subject of the 'HUD OIG report.' If it was an audit of Wells Fargo, by that same date, it shall disclose Log Entry 18,658 to Wells Fargo (along with, presumably, the letter sent to DOJ referenced in the e-mail, unless that letter was previously produced), although it may redact the entire second paragraph of the e-mail. If it is another type of report, the Government shall, by the same date, advise the Court by letter so that the Court may decide whether the e-mail or the attachments to the e-mail must be disclosed.")

Case Date Jurisdiction State Cite Checked
2015-10-22 Federal NY

Chapter: 29.11
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "If allowed to stand, the District Court's rulings would ring alarm bells in corporate general counsel offices throughout the country about what kinds of descriptions of investigatory and disclosure practices could be used by an adversary to defeat all claims of privilege and protection of an internal investigation."; "These alarm bells would be well founded. If all it took to defeat the privilege and protection attaching to an internal investigation was to notice a deposition regarding the investigations (and the privilege and protection attaching them), we would expect to see such attempts to end-run these barriers to discovery in every lawsuit in which a prior internal investigation was conducted relating to the claims. Accordingly, we think it is essential to act on this Petition in order to protect our privilege waiver jurisprudence.")

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

Chapter: 29.11
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)
September 30, 2015 (PRIVILEGE POINT)

"The D.C. Circuit Issues Another Privilege-Friendly Decision: Part II"

Last week's Privilege Point discussed the D.C. Circuit's refusal to order disclosure of privileged communications a Rule 30(b)(6) deponent reviewed before testifying. In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015). The D.C. Circuit’s other holding rejected plaintiff's argument that defendant KBR triggered an "at issue" waiver.

In a memorandum supporting its summary judgment motion, KBR wrote a lengthy footnote noting that the company investigates claims of possible illegal conduct, and reports to the government if the investigation uncovers any. Id. At *6-7. The footnote then stated that KBR conducted an investigation into plaintiff's allegations, but it did not make any reports to the government. The plaintiff argued that KBR had placed "at issue" (and therefore must produce) the underlying investigation documents – by inferring that its investigation did not uncover any illegal conduct. Perhaps sensing that the plaintiff had a good point, KBR had sought to retract the footnote. The district court denied KBR's attempted retraction. The D.C. Circuit correctly noted that KBR had not disclosed any privileged communications, and had not explicitly indicated that it would rely on the investigation results as a defense. The court also noted that the footnote appeared in the summary judgment motion's introduction rather than its argument section, and that all inference are drawn against a party like KBR which seeks summary judgment.

KBR should consider itself lucky to have avoided an "at issue" waiver." Many courts would have gone the other way, given the fairly obvious implication that KBR sought the court to draw. But those courts probably would have allowed KBR to withdraw the footnote rather than suffer the consequences. Overall, the D.C. Circuit's latest KBR decision represents another victory for corporations' privilege protection.

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

key case


Chapter: 29.11
Case Name: In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)
October 21, 2015 (PRIVILEGE POINT)

"More Courts take a Narrow View of Subject Matter Waivers"

Thanks to common law developments and Federal Rule of Evidence 502, the frightening specter of subject matter waivers now usually only arises when litigants affirmatively rely on privileged communications to gain some litigation advantage.

In In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015), the court handling the GM ignition switch MDL rejected plaintiffs' attempt to depose Jenner & Block partner Anton Valukas about the basis for his widely-publicized report on GM's conduct. The court pointed to GM's pledge not to make offensive use of the Valukas Report at trial, or call Valukas to testify. The court concluded that GM's commitment "undermines" plaintiffs' attempt to explore witnesses' disagreement with Valukas' conclusions. Id. At *1004. One day earlier, another court dealt with a GM trademark issue. In Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015), plaintiff argued that GM triggered a subject matter waiver by pointing to its lawyer's trademark advice as demonstrating its lack of bad faith. The court "agree[d] that GM's use of that fact would place its counsel's advice at issue," but took GM at its word that the company "did not intend to rely on advice of its counsel" at trial. Id. At *24. The court therefore denied plaintiff's motion to compel disclosure of related privileged communications — "without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith." Id.

Corporations should be relieved that courts are increasing focus on documents and arguments the corporations plan to use at trial — rather than on the disclosure of privileged communication during fast-paced discovery or pretrial pleading skirmishes.

Case Date Jurisdiction State Cite Checked
2015-08-11 Federal NY
Comment:

key case


Chapter: 29.11
Case Name: Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)
October 21, 2015 (PRIVILEGE POINT)

"More Courts take a Narrow View of Subject Matter Waivers"

Thanks to common law developments and Federal Rule of Evidence 502, the frightening specter of subject matter waivers now usually only arises when litigants affirmatively rely on privileged communications to gain some litigation advantage.

In In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015), the court handling the GM ignition switch MDL rejected plaintiffs' attempt to depose Jenner & Block partner Anton Valukas about the basis for his widely-publicized report on GM's conduct. The court pointed to GM's pledge not to make offensive use of the Valukas Report at trial, or call Valukas to testify. The court concluded that GM's commitment "undermines" plaintiffs' attempt to explore witnesses' disagreement with Valukas' conclusions. Id. At *1004. One day earlier, another court dealt with a GM trademark issue. In Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015), plaintiff argued that GM triggered a subject matter waiver by pointing to its lawyer's trademark advice as demonstrating its lack of bad faith. The court "agree[d] that GM's use of that fact would place its counsel's advice at issue," but took GM at its word that the company "did not intend to rely on advice of its counsel" at trial. Id. At *24. The court therefore denied plaintiff's motion to compel disclosure of related privileged communications — "without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith." Id.

Corporations should be relieved that courts are increasing focus on documents and arguments the corporations plan to use at trial — rather than on the disclosure of privileged communication during fast-paced discovery or pretrial pleading skirmishes.

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

key case


Chapter: 29.11
Case Name: Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015)
September 2, 2015 (PRIVILEGE POINT)

"Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part I"

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that corporations relying on an affirmative defense that they acted in "good faith" reliance on the law necessarily implicate their lawyer's advice — and therefore trigger such an "at issue" waiver.

In Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015), FLSA defendant KB Home relied upon the 29 U.S.C. § 259 defense of good faith reliance on administrative regulations, etc., in defending its employee classifications. KB Home "emphasize[d] that it is not relying on advice of counsel to prove its good faith defenses" — instead explaining that its "witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the classification was lawful." Id. at *7. The court rejected this argument — concluding that privileged communications "are highly probative of whether [KB Home] had a good faith belief in the lawfulness of its policy." Id. at *9. The court reminded KB Home that it "may elect to withdraw its good faith defenses, in which case the privilege would still attach." Id. at *14. Four days later, another court found that a defendant had waived its privilege by arguing that its patent infringement accusations against the plaintiff "were grounded in a good-faith belief" that the plaintiff had infringed its patent. Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015). The court quoted an earlier decision in holding that defendant cannot "'be permitted, on the one hand, to argue that it acted in good faith and without an improper motive and then, on the other hand, to deny [the adversary] access to the advice given by counsel where that advice . . . played a substantial and significant role in formulating [its] actions.'" Id. at *8-9. (quoting Pereira v. United Jersey Bank, No. 94-CV-1565 (LAP), 1997 WL 773716, at *6 (S.D.N.Y. Dec. 11, 1997).

Litigants putting their mental state at issue or referring to withheld documents to support an assertion might waive their privilege. Next week's Privilege Point discusses two cases going the other way.

Case Date Jurisdiction State Cite Checked
2015-07-22 Federal NY
Comment:

key case


Chapter: 29.11
Case Name: Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015)
September 2, 2015 (PRIVILEGE POINT)

"Does Asserting a 'Good Faith' Affirmative Defense Waive the Attorney-Client Privilege?: Part I'"

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that corporations relying on an affirmative defense that they acted in "good faith" reliance on the law necessarily implicate their lawyer's advice — and therefore trigger such an "at issue" waiver.

In Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015), FLSA defendant KB Home relied upon the 29 U.S.C. § 259 defense of good faith reliance on administrative regulations, etc., in defending its employee classifications. KB Home "emphasize[d] that it is not relying on advice of counsel to prove its good faith defenses" — instead explaining that its "witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the classification was lawful." Id. At *7. The court rejected this argument — concluding that privileged communications "are highly probative of whether [KB Home] had a good faith belief in the lawfulness of its policy." Id. At *9. The court reminded KB Home that it "may elect to withdraw its good faith defenses, in which case the privilege would still attach." Id. At *14. Four days later, another court found that a defendant had waived its privilege by arguing that its patent infringement accusations against the plaintiff "were grounded in a good-faith belief" that the plaintiff had infringed its patent. Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015). The court quoted an earlier decision in holding that defendant cannot "'be permitted, on the one hand, to argue that it acted in good faith and without an improper motive and then, on the other hand, to deny [the adversary] access to the advice given by counsel where that advice . . . Played a substantial and significant role in formulating [its] actions.'" Id. At *8-9. (quoting Pereira v. United Jersey Bank, No. 94-CV-1565 (LAP), 1997 WL 773716, at *6 (S.D.N.Y. Dec. 11, 1997).

Litigants putting their mental state at issue or referring to withheld documents to support an assertion might waive their privilege. Next week's Privilege Point discusses two cases going the other way.

Case Date Jurisdiction State Cite Checked
2015-07-18 Federal TX
Comment:

key case


Chapter: 29.11
Case Name: Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015)
(finding the defendant's "good faith" defense to an FLSA claim waived its privilege protection; "Of course, in light of this ruling, KB Home may elect to withdraw its good faith defenses, in which case the privilege would still attach.")

Case Date Jurisdiction State Cite Checked
2015-07-18 Federal TX

Chapter: 29.11
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Co., Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552, at *9 (D. Mass. June 22, 2015)
September 9, 2015 (PRIVILEGE POINT)

"Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part II"

Last week's Privilege Point described several cases in which litigants waived their privilege protection by filing a statutory "good faith" defense or just arguing that they acted in good faith.

Other courts take a different view. In Bacchi v. Massachusetts Mutual Life Insurance Co., defendant resisting a policyholder class action filed affirmative defenses "that it acted in good faith . . . And that its actions were approved by the appropriate regulatory agency." Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552, at *9 (D. Mass. June 22, 2015). Not surprisingly, plaintiff claimed a waiver. The court rejected plaintiff's argument — noting that defendant "does not intend to rely on counsel's opinion or advice" — but instead "will argue that it took the same types of steps that other similar situated entities would take if they were proceeding in good faith to do what the law required." Id. At *15-16. About five weeks later, the Fourth Circuit reached the same conclusion about plaintiff's claim against an insurance company, based on the company's handling of an underlying lawsuit — about which the company obviously received its lawyers' advice. Smith v. Scottsdale Ins. Co., No. 15-1002, 2015 U.S. App. LEXIS 13290 (4th Cir. July 30, 2015). The plaintiff claimed an "at issue" waiver, but the court disagreed. The court noted that the insurance company "did not assert any claim or defense based on counsel's advice in the underlying case; instead, it maintained that its actions were based on its own evaluation of the case." Id. At *4.

Litigants defending their actions do not automatically waive privilege protection for communications with their lawyers about those actions. But litigants relying on a formal affirmative defense of "good faith" or arguing generally that they acted reasonably must hope that the court will let them support that defense while withholding privileged communication that informed their decisions.

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA
Comment:

key case


Chapter: 29.11
Case Name: Apple Inc. v. Samsung Electronics Co., Case No. 11-CV-01846-LHK, 2015 U.S. Dist. LEXIS 80954 (N.D. Cal. June 19, 2015)
August 19, 2015 (PRIVILEGE POINT)

"Quinn Emanuel Triggers an "At Issue" Waiver in the Apple v. Samsung Case"

A litigant can trigger an "at issue" waiver by affirmatively asserting some position that necessarily implicates privileged communications. These waivers represent the most extreme example of implied waivers, which do not involve the actual disclosure of privileged communications.

In Apple Inc. v. Samsung Electronics Co., Case No. 11-CV-01846-LHK, 2015 U.S. Dist. LEXIS 80954 (N.D. Cal. June 19, 2015), Samsung's law firm Quinn Emanuel improperly disclosed protected Apple information to Samsung employees. In defending against Apple's motion for sanctions, Quinn Emanuel, among other things, "characterized the nature and intent" of its lawyers' communications with Samsung (while withholding them as privileged); pointed to privileged (and withheld) communications "to support its argument that neither Samsung nor Quinn Emanuel" used confidential information; and argued that "Quinn Emanuel at all times complied with the protective order." Id. At *73-75. The court concluded that "[w]ithout access to the documents Samsung put directly at issue, neither Apple nor Nokia [whose information was also improperly disclosed] could evaluate whether Samsung's explanations and arguments lacked credibility." Id. At *76. The court found that Quinn Emanuel had triggered an "at issue" waiver, and denied Samsung's effort to avoid the waiver "by retroactively withdrawing its arguments." Id. At *85. As the court put it, "having already benefited from its arguments . . . About the contents of the privileged documents [by avoiding greater sanctions, Samsung] cannot now seek to withdraw those arguments." Id. At *86.

Although perhaps the "sword-shield" analogy seems trite, it accurately captures the "at issue" doctrine's theme — which can trip up even sophisticated clients and their lawyers.

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal CA
Comment:

key case


Chapter: 29.11
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; "Defendants counter that whatever Defendant Keltz's [General Counsel] deposition testimony, Defendants have no intention of asserting an advice-of-counsel defense or similar claim in this action such that Plaintiffs' allegation of an at-issue waiver is wrong. . . . Instead, Defendants explain that Defendant 'Major's defense here is that they did nothing wrong.'"; "Defendants' representation regarding its approach to this litigation is integral to the resolution of this dispute, and the Court finds no implied privilege waiver here in light of Defendants' representation. . . . Defendants' representation in this case that they will make no reliance defense assures . . . . Plaintiffs will not be disadvantaged before any factfinder by a lack of information relating to this topic.")

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

Chapter: 29.11
Case Name: Heglet v. City of Hays, Case No. 13-2228-KHV/KGG, 2014 U.S. Dist. LEXIS 35738, at *11 12 (D. Kan. Mar. 19, 2014)
(holding that defendant city did not trigger an at issue waiver; "[T]he issue here is not relevance, it is waiver. Merely asserting good faith does not waive the defense. . . . The record in this case is unclear as to whether Defendants have gone further than a mere waiver. Defendants have produced in discovery facts showing that they consulted with counsel prior to making the decision at issue. If Defendants assert that consultation as part of their good faith claim (and they have not indicated in their briefing whether they will do so), that affirmative act would waive the privilege.")

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

Chapter: 29.11
Case Name: Grace Vill. Health Care Facilities, Inc. v. Lancaster Pollard & Co., Civ. No. 3:11cv295, 2013 U.S. Dist. LEXIS 110313, at *9-10 (N.D. Ind. Aug. 6, 2013)
(finding the at issue doctrine inapplicable in a case where the plaintiff claimed that the defendant had botched plaintiffs' claim in the Lehman bankruptcy, which forced plaintiffs to settle with Lehman; "[T]he law is clear that Grace Village does not have to defend the advice it received from its attorneys. Price [Price v. Amoco Oil Co., 527 F. Supp. 364, 365 (S.D. Ind. 1981)], supra; Deutsche Bank [Deutsche Bank Trust Co. of Ams. v. Tri-Links Inv. Trust, 43 A.D.3d 56 (N.Y. App. Div. 2007)], supra. Rather, Grace Village need only prove that the decision to settle, and the terms, were reasonable. This is an objective standard, and the Court sees no need to require Grace Village to divulge the specifics of its communications with counsel regarding the settlement. As the Magistrate Judge noted, Grace Village has not stated that it intends to use privileged materials as proof of its claims (nor is any such implication apparent in the record).")

Case Date Jurisdiction State Cite Checked
2013-08-06 Federal IN B 4/14

Chapter: 29.11
Case Name: Moore v. Dan Holdings, Inc., No. 1:12CV503, 2013 U.S. Dist. LEXIS 61378, at *14, *16 (M.D.N.C. Apr. 30, 2013)
(holding that defendant's acknowledgment that it conducted an investigation into alleged employment discrimination did not trigger a waiver; acknowledging that a deponent indicated that the company's hiring of a lawyer to conduct an investigation represented "good faith," but that the plaintiff's lawyer was the one wgo raised the issue; "Beyond the fact that the testimony cited by Plaintiff does not show that Defendants have injected their counsel's investigation into the case, Defendants expressly have stated that they 'have not raised, and have confirmed that they do not intend to raise, the adequacy of any investigation done by their legal counsel as a defense.'" (internal citation omitted); "This testimony reflects that Defendant Zeifle retained counsel not to conduct an investigation as part of the normal course of business, but rather that he retained counsel to provide legal advice. Moreover, elsewhere in his deposition, Defendant Ziefle testified that he knew of no previous time Defendants used outside counsel to investigate such allegations . . . and that Defendants 'retained counsel to give [them] legal advice about what were apparently -- potential claims from an employee.'")

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal NC B 7/13

Chapter: 29.11
Case Name: JMB/Urban 900 Dev. Partners, Ltd. v. Hazan, 2013 IL App. (1st) 113714-U, ¶¶26, 27
("Defendants nevertheless claim that they withdrew the affidavit and that it cannot be considered as a basis for finding the privilege waived."; "[R]egardless of the affidavit, the defenses asserted in defendants' response to plaintiff's motion to reinstate raised issues that required an examination of the communications between Hazan and Rappaport [defendants' former lawyer]. . . . In their response to plaintiff's motion to reinstate, defendants asserted that Hazan had never signed the settlement agreement and that she was mentally incapacitated during the settlement negotiations. Rappaport served as Hazan's counsel during the settlement negotiations and had exclusive knowledge regarding the agreements that his client signed as well as knowledge of her mental state during settlement negotiations. The communications between Rappaport and Hazan were essential to the truthful resolution of defendants' asserted defenses. Therefore, by raising those defenses, defendants waived the attorney-client privilege.")

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

Chapter: 29.12
Case Name: Amerestate Holdings, LLC v. CBRE, Inc., Dkt. No. A-2416-17T3, 2018 N.J. Super. Unpub. LEXIS 2025 (N.J. Super. Sept. 4, 2018)
(holding that the buyer of real estate triggered an at issue waiver by claiming that it was defrauded in the transaction; pointing to the purchase agreement's provision indicating that the buyer was relying solely upon its own "inspections and examinations and the advice and counsel of its own consultants, agents, counsel and officers"; "[W]e are convinced the motion court correctly determined plaintiffs' communications pertaining to the as-of-right units, size of the site and any due diligence or investigation concerning those matters were placed in issue by plaintiffs' allegation they reasonably relied on the alleged misrepresentations. . . . Indeed, the fulcrum upon which the validity of plaintiffs' causes of action pivots is their assertion that Amerestate entered into the purchase agreement in September 2014, and proceeded to close title and purchase the property on February 5, 2015, based on its reasonable reliance on the broker defendants' representations concerning the site's size and the number of as-of-right units."; "Moreover, Amerestate represented in the September 2014 purchase agreement that it agreed to purchase the site 'in its existing condition AS IS, WHERE IS, AND WITH ALL FAULTS with respect to all facts, circumstances, conditions and defects, and, Seller has no obligation to determine or correct any such facts, circumstances, conditions or defects or to compensate [Amerestate] for same. [Amerestate] is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, counsel and officers. [(emphasis added).]'"; "Thus, Amerestate also placed in issue its reliance on its counsel's advice concerning the 'facts' and 'circumstances' regarding the site, including its size and the number of as-of-right units, by affirmatively representing in the purchase agreement that it relied solely upon its counsel and other consultants and agents, and not on any of the broker defendants' advice, when it agreed to purchase the property."; "Like the plaintiff in Blitz [Blitz v. 970 Realty Assoc., 233 N.J. Super. 29, 557 A.2d 1386 (App. Div. 1989)], plaintiffs placed in issue what they 'knew' about the site size and the as-of-right units. . . . Under the circumstances presented here, however, their relevant knowledge and communications with counsel are not limited to those extant when the purchase agreement was signed. Plaintiffs' complaint expressly alleges they relied on the purported misrepresentations when Amerestate executed the purchase agreement on September 3, 2014, and also when Amerestate closed title on February 5, 2015. We are therefore convinced plaintiffs implicitly waived the attorney-client privilege as to all communications with their counsel prior to the closing of title pertaining to the site's size, the number of as-of-right units and plaintiffs' due diligence in investigating and assessing that information. Plaintiffs could not have relied on attorney-client communications subsequent to the closing of title in making the decision to purchase the site and, for that reason, plaintiffs have not placed those communications in issue.")

Case Date Jurisdiction State Cite Checked
2018-09-04 State NJ
Comment:

Key Case


Chapter: 29.12
Case Name: DeAngelis v. Corzine; In re MF Global Holdings Ltd. Investment Litig., 11 Civ. 7866 (VM) (JCF), 12 MD 2338, 2015 U.S. Dist. LEXIS 18207 (S.D.N.Y. Feb. 9, 2015)
(in an opinion by Judge Francis, analyzing defendants' efforts to obtain background documents prepared by bankruptcy trustee's consultant E&Y's investigation into the trustee's causes of action against the defendants; finding the "at issue" doctrine inapplicable; "The Individual Defendants claim that the Trustee and the Customer Representatives have relied on the Report in both the SIPA Proceeding and in this action. But I fail to see how the Individual Defendants here are affected by any alleged reliance on the document in a different case. . . . Placing a matter at issue in one action generally will not result in waiver of protection in a separate action. This is because it is not likely that unfairness or prejudice to a litigant in one action will result from reliance on privileged material in another unless the two are closely intertwined.")

Case Date Jurisdiction State Cite Checked
2015-02-09 Federal NY
Comment:

key case


Chapter: 29.13
Case Name: In re Oxbow Carbon LLC, Unitholder Litigation, Consol. C.A. No. 12447-VCL, 2017 Del. Ch. LEXIS 425 (Del. Ch. March 7, 2017)
(holding that its point two members of a company's board of directors (appointed by investors) may be so adverse to the company that they can be denied access to privileged communications; "The extent to which the Company can invoke privilege against the Crestview Directors turns on the point at which sufficient adversary existed between them such that the Crestview Directors could no longer have a reasonable expectation that they were clients of Company counsel."; "I conclude that for purposes of discovery, Robert Popeo's email to Michael Carlinsky dated October 23, 2015, was the point at which adversary was established sufficiently to enable the Company to begin asserting privilege. Arguments can be made and evidence cited in support of a finding of adversity before or after that point. Clearly, tensions were rising before then. Equally clearly, there are arguments as to why the Crestview Directors should be able to continue to access privileged material after that date. In my view, it is important for purposes of discovery to have as clear a line of demarcation as possible, and I have selected the date that appears most justified on the facts of the case."; "Consequently, the Company cannot withhold discovery material dated before October 23, 2015, from the Crestview Directors on the basis of the attorney-client privilege or the work product doctrine. The Company shall produce the Crestview Directors all items on its privilege log that pre-date October 23, 2015. Thereafter, the Company can invoke the attorney-client privilege and the work product doctrine, subject to the additional rulings made in this order."; "Because of the nature of the relationship between Crestview and the Crestview Directors, Crestview is entitled to the same information as Crestview Directors and vice versa. . . ."; "Crestview cannot obtain access to otherwise privileged materials separately under Gamer v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). Once sufficient adversity existed for the Crestview Directors not to have access to privileged information, there was insufficient mutuality of interest between Crestview and the Company for Garner to apply."; "The Company has alleged that Crestview sought to undermine the Company 'from the inside' by secretly enlisting McAuliffe and Eric Johnson 'to undercut the advice the Company was receiving from its outside counsel,' which had been retained specifically to analyze to Put Right. . . . The complaint posits that Crestview already was knowledgeable about the two firms' advice. The complaint further alleges that when one of the two firms produced a memo partially supporting Oxbow's position. McAuliffe had the offending passage removed before sharing the memo with Koch. . . . Given these allegations, the Company has placed at issue its communications with its original counsel and the two additional law firms about ThoughtWorks and the legal advice it received from them."; "The Company similarly has put at issue the advice it received from Mintz Levin regarding a potential payment to the Small Holders by asserting in its answer that Popeo only suggested this to Crestview to broker a compromise and not because it represented his belief or the Company's belief. By taking the additional step of drawing a distinction between what was said that what they believed, the Company placed at issue advice showing what Popeo and the Company actually believed on this point. . . ."; "The Company shall produce the items on its privilege log for which no attorney is identified.")

Case Date Jurisdiction State Cite Checked
2017-03-07 State DE
Comment:

key case


Chapter: 29.13
Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017)
May 17, 2017 (PRIVILEGE POINT)

"Privilege Implications of an Explicit or Implicit 'Advice of Counsel' Defense: Part II'"

Last week's Privilege Point described the normal broad subject matter waiver triggered by litigants' explicit defensive reliance on legal advice. Litigants' implicit reliance can have the same effect.

In Maar v. Beall's, Inc., FLSA defendant Beall's contended that any employee miscalculations were "not willful, and made in a good faith attempt to comply with the law." Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017). Answering interrogatories about one of its defenses, Beall's noted that it "'consulted with legal counsel regarding such classification.'" Id. at *5 (emphasis and internal citation omitted). The court concluded that Beall's waived its privilege protection "by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification." Id. at *11. The court even ordered Beall's to produce its lawyer to be deposed "concerning the substance of advice the company received from legal counsel as to the classification of Area Managers." Id. at *12. Beall's argued that the court's draconian standard would give FLSA plaintiffs "automatic access" to companies' legal advice whenever they assert a "good faith" defense. Id. at *11-12. The court rejected what it called Beall's "dire pronouncement" -- explaining that companies "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." Id. at *12 (citation omitted). The court did not explain how that approach would work.

Corporations and their lawyers must remember the scope of any explicit "advice of counsel" defense, and the less obvious danger of implicitly relying on their good faith attempt to comply with the law.

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal FL
Comment:

key case


Chapter: 29.083
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 Jurisdiction State Cite Checked
2016-12-06 Federal KS

Chapter: 29.401
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
(rejecting defendant's argument that it did not discover defendant's misconduct and therefore did not face a statute of limitations bar; describing the various "at issue" doctrines, and finding that they did not apply; "A number of courts have noted that basically three tests have been applied in determining whether an 'at issue' waiver has occurred: (1) the 'automatic waiver' rule, which provides that a party automatically waives the privilege upon assertion that a claim or defense raises an issue to which otherwise privileged information is relevant. This is often called the least restrictive test and is not employed by our Court of Appeals. Courts have also employed the so-called intermediate or Hearn test and the 'anticipatory waiver' test set forth in Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3rd Cir.1994), which provides that the privilege is waived if a party places in issue its reliance upon counsel's advice."; "Most courts have adopted the shield-sword analogy which holds that the privilege only prohibits a party from simultaneously using the confidential information as both a shield and sword -- that is, a party cannot use privileged information both offensively and defensively at the same time. In re County of Erie, 546 F.3d 222, 229 (2nd Cir. 2008)."; "A number of courts agreed that a party does not waive the attorney-client privilege simply by pleading a claim which sounds in fraud or misrepresentation. Indeed, such claims are common, and it would substantially undercut the attorney-client privilege if the privilege were deemed waived in every case where a party made a claim of reasonable reliance upon the misrepresentations or omissions of the other party. In rejecting such a broadside assault on the attorney-client privilege, courts have said, for example, that although 'the client in a fraud or similar action, may be required to disclose its thoughts and knowledge, whether or not those were acquired in whole or in part from conversations with its attorneys . . . [i]t is not required to disclose what was said between client and counsel.'"; "Here, Hytera raised the statute of limitations, not Motorola. Motorola responded by asserting it did not discover the basis of its claim until late 2016. Under these circumstances, and under the holdings of most cases, it didn't inject a new issue into the case."; "In the end, the courts that have found implied waivers have concluded that a party may not advance a claim or defense that relies on materials that the adversary needs to effectively contest or impeach the claim. . . . In this case, it bears repeating that, Hytera concedes that it raised the relevant issue, not Motorola. . . . The filing of a lawsuit did not waive the attorney-client privilege."; "Thus, unlike the situation in Rhone—Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 863 (3d Cir. 1994) and many other cases, 'advice of counsel [has not been] placed in issue' by Motorola; nor has it yet attempted to prove its claim or its defense by disclosing or describing an attorney-client communication. In other words, Motorola isn't using an 'investigation or its results' or privileged communications to defeat Hytera's statute of limitations defense. Of course, that situation may change, and if it does, the issue will have to be revisited.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL

Chapter: 29.401
Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)
("The next 'issue injection' issue to consider is whether Defendants have expressly waived the attorney-client privilege by asserting certain affirmative defenses. Specifically, Defendants have asserted good faith affirmative defenses . . . and they have asserted that Plaintiffs were exempt from the FLSA's minimum wage and overtime compensation requirements . . . . But importantly, Defendants have never expressly stated that they are relying upon advice of counsel to support any defense in this case. An express reliance upon advice of counsel to support Defendants' affirmative defenses would waive the attorney-client privilege as to attorney-client communications related to such advice. However, Defendants are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case. In fact, they have specifically stated that they are not going to adduce any evidence or testimony about any advice of counsel Defendants received."; "The above cited relevant case law, when read carefully as a whole, puts cases into three general categories. First, the case law is in agreement that a mere denial of willfulness does not amount to issue injection which would impliedly waive the attorney-client privilege. Second, asserting an affirmative defense (such as good faith in an FLSA case) that explicitly states that a defendant relied on the advice of counsel, or refers to advice or consultation with counsel to support such affirmative defense, does amount to issue injection sufficient to waive the attorney-client privilege. Third, the more nuanced situation, which is similar to what we have here, is whether issue injection sufficient to waive the attorney-client privilege occurs when a defendant in an FLSA case asserts a good faith (or outside sales exemption) affirmative defense, but does not explicitly mention reliance on advice of counsel in that affirmative defense and further represents that it does not intend to rely on counsel's advice to support such defense. Courts seem to require something additional to find issue injection in this third category of cases.")

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

key case


Chapter: 29.401
Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *13-14, *14-15, *16-17, *18-19 (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 approach; "[T]wo general approaches have emerged to determine whether a client has impliedly waived the attorney-client privilege. The first approach, and the one that Defendants urge the Court to adopt, first was articulated in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)."; "While the Hearn rule often is cited as the 'leading light of implied waiver jurisprudence,' many sources criticize it on the grounds that it is vague and does not afford sufficient protection to the attorney-client privilege. . . . [T]he Rhone court articulated an alternative approach to assessing implied waiver, holding that a party only places the attorney's advice 'at issue' when 'the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney-client communication.'" (citation omitted); "The Fourth Circuit has yet to expressly adopt either test; however, a recent decision provides guidance. In Shaheen v. WellPoint Cos., Inc. [490 Fed. Appx. 552 (4th Cir. 2012)], the plaintiff argued that disclosure was warranted under the 'at-issue' doctrine."; "These opinions make clear that the central inquiry in determining whether a party has impliedly waived the attorney-client privilege is whether that party affirmatively attempts to 'rely' on advice of counsel. To this end, I am persuaded that the Rhone rule is the better reasoned test. It makes clear when there is an implied waiver because it unambiguously identifies the circumstances under which a party places an attorney's advice 'at issue,' which is occasioned by a party clearly injecting attorney advice into the action. Such a rule preserves the spirit of the attorney client privilege and promotes predictability. It also achieves an appropriate level of fairness by preventing a party from asserting advice of counsel only to its benefit, thereby eliminating the risk that a party will attempt to use the advice-of-counsel as both a sword and a shield." (footnote omitted))

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

Chapter: 29.401
Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *20 n.3 (Bankr. E.D. Va. Feb. 14, 2013)
(noting the Western District of Virginia had cited the Hearn [v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)] case in Botkin v. Donegal Mut. Ins. Co., Civ. A. No. 5:10cv000772011, U.S. Dist. LEXIS 63871, at *6 (W.D. Va. June 15, 2011), while the Fourth Circuit had recently cited with approval the Rhone Poulenc standard; "The Fourth Circuit recently cited the Rhone Poulenc Rorer [v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994)] decision with approval, in an unreported opinion. Shaheen v. WellPoint Cos, Inc., 490 F. App'x 552.. 2012 U.S. App. LEXIS 16236, 2012 WL 3140306 (4th Cir. 2012).")

Case Date Jurisdiction State Cite Checked
2013-02-14 Federal VA B 2/14; B 5/16
Comment:

key case


Chapter: 29.402
Case Name: In re Itron, Inc., No. 17-60733, 2018 U.S. App. LEXIS 4136 (5th Cir. App. Feb. 21, 2018)
(analyzing the implied waiver and at issue implications of a corporate buyer who settled a claim by a third party and then sued a corporate seller for negligent misrepresentation; explaining that the corporate buyer sought recovery from the seller of the settlement amount and litigation costs; holding that the reasonableness of the settlement involved an objective standard, and therefore did not trigger an implied waiver or at issue waiver; "[A] client waives the privilege by affirmatively relying on attorney-client communications to support an element of a legal claim or defense -- thereby putting those communications 'at issue' in the case."; "This opinion does not concern the 'anticipatory waiver' version of this rule, which finds waiver 'when a privilege-holder pleads a claim or a defense in such a way that he will be forced inevitably to draw upon a privileged communication at trial in order to prevail,' Smith v. Kavanaugh, Pierson & Talley, 513 So. 2d 1138, 1145 (La. 1987), and which no party has invoked."; "Defendants would have us broaden the Jackson Medical [Jackson Medical Clinic for Women, P.A. v. Moore, 836 So. 2d 767, 773 (Miss. 2003)] rule such that waiver occurs whenever the client files a lawsuit to which privileged communications, if disclosed, might prove 'highly relevant' -- even if the client never relies on or uses those communications to make her legal case. The magistrate judge embraced a more expansive rule, requiring only simple relevance. These expansions of Jackson Medical find no support in the Mississippi Rules of Evidence, see Miss. R. Evid. 502(d), or any Mississippi caselaw. And given Jackson Medical and other persuasive authorities, we conclude this is not the law the Mississippi Supreme Court would apply."; "Our circuit and others agree that '[r]elevance is not the standard for determining whether or not evidence should be protected from disclosure as privileged, . . . even if one might conclude the facts to be disclosed are vital, highly probative, directly relevant or even go to the heart of an issue.' Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994) (emphasis added)."; "Defendants fall back on dicta in an out-of-circuit federal district court opinion, decided in 1975, which no reported Mississippi case has cited. The case is Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)."; "Here, Defendants ask us to apply an interpretation of Hearn that would require only that the privileged material have high relevance to case. But as discussed above, that view has no basis in Mississippi law, contradicts prevailing notions of waiver, and would effectively nullify the privilege."; "Even accepting for the sake of argument that the privilege takes flight whenever privileged communications become 'highly relevant' to an adversary's defense -- which, we emphasize, it does not -- Defendants still fail to show how Itron's privileged communications meet that standard."; "Defendants' primary theory of relevance apparently concerns whether Itron took reasonable steps to mitigate its damages. According to Itron's complaint, Defendants' negligent misrepresentations caused Itron to become liable to Consert, necessitating the Consert litigation which Itron eventually settled. There is thus a colorable argument that, under ordinary tort principles, Itron cannot recover the cost of the settlement as damages to the extent Defendants show the settlement to have been unreasonable. See Rolison v. Fryar, 204 So. 3d 725, 736 (Miss. 2016) ("An injured party has a duty to take reasonable steps to mitigate damages."); see also Wall v. Swilley, 562 So. 2d 1252, 1258 (Miss. 1990) (in Mississippi, failure to mitigate 'is an affirmative defense' defendants must plead and prove)."; "But this does not render the opinions of Itron's counsel 'highly relevant.' Instead, '[t]he reasonableness of the settlement . . . [must] be examined under an objective standard.'"; "Defendants similarly claim they must see Itron's privileged communications to know 'whether Itron's settlement damages are attributable to [Defendants], a third party, or Itron itself.' Although Defendants' argument is not entirely clear, they apparently seek to uncover that Itron followed unreasonable advice from its law firm (Gibson Dunn), which might arguably relieve Defendants of liability as a superseding cause."; "Either way, the argument fails for at least the reasons just discussed: Both potential theories turn on whether Itron engaged in a course of action that was objectively reasonable. And as discussed above, the objective reasonableness of Itron's conduct should be apparent from the facts known to Itron at the time (which again, are not privileged) coupled with objective legal analysis.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal
Comment:

key case


Chapter: 29.402
Case Name: In re Itron, Inc., 883 F.3d 553 (5th Cir. 2018)
May 9, 2018 (PRIVILEGE POINT)

"Fifth Circuit Issues a Favorable 'At Issue' Doctrine Decision'"

The frightening "at issue" variety of implied waiver can destroy privilege protection if litigants affirmatively seek some advantage by (among other things) relying on their actions' "good faith." If the litigants sought legal advice about the actions that they claim to have been taken in "good faith," many courts order discovery of those otherwise privileged communications.

In In re Itron, Inc., 883 F.3d 553 (5th Cir. 2018), plaintiff claimed that three corporate officers of a company it acquired lied about the purchased company's contractual obligations to a third party. Plaintiff litigated with and eventually settled with that third party. Plaintiff then sued the defendant officers for "negligent misrepresentation, seeking as compensatory damages the cost of the . . . litigation and settlement." Id. at *555. The trial court had ordered plaintiff to produce its communications with its Gibson Dunn lawyers – noting that defendants were "seek[ing] to uncover that [plaintiff] followed unreasonable advice from its law firm (Gibson Dunn), which might arguably relieve Defendants of liability as a superseding cause." Id. at *566. The Fifth Circuit took the extraordinary step of granting a petition for writ of mandamus "to correct [the trial court's] significant misapplication of attorney-client privilege law." Id. at *555. The court held that "the mere act of filing this lawsuit effected no waiver of any attorney-client privilege," and that "the objective reasonableness of [plaintiff's] conduct should be apparent from the facts known to [plaintiff] at the time (which again, are not privileged) coupled with objective legal analysis." Id. at *556, *566 (emphases added).

The Fifth Circuit's forceful rejection of a broad "at issue" waiver approach should encourage corporate defendants who seek lawyers' advice before taking actions, if the corporations may later rely on those actions in pursuing or defending litigation.

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

key case


Chapter: 29.402
Case Name: First Am. Title Ins. Co. v. Rice, Civ. A. No. 1:16cv219, 2017 U.S. Dist. LEXIS 203163 (N.D.W. Va. Dec. 11, 2017)
(applying the Hearn at issue doctrine standard, but finding that there had not been an at issue waiver; "But to the extent that Hearn suggests privileged information is at issue merely because it is relevant to a claim, this aspect of the test is difficult to square with West Virginia law. As discussed, although privilege can be waived in West Virginia when a party's claim or defense puts its attorney's advice at issue, advice does not become 'in issue' unless a client takes affirmative action to rely on his or her attorney's advice in subsequent litigation. Indeed, the Supreme Court of Appeals has noted that advice does not become 'in issue' merely because it is relevant or affected the client's state of mind."; "Rather, the better test was articulated by the Second Circuit in Erie. The court there was critical of Hearn and its application by the district court below. More particularly, it found fault with the fact that Hearn appears to make a communication 'at issue' simply because it is relevant to the lawsuit. Erie, 546 F.3d at 229. The Second Circuit instead reasoned that, in order to make privileged information 'at issue' and implicitly waived, 'a party must rely on privileged advice from his counsel to make his claim or defense.' Id. (emphasis in original). This holding is consistent with West Virginia's discussion of waiver, and Magistrate Judge Aloi was correct to apply it."; "Here, First American is not relying on the advice of counsel to establish that its settlement was reasonable, nor does West Virginia law require that it do so. To the contrary, First American has expressly stated its intention to rely solely on the objective factors set forth by the Supreme Court of Appeals in Valloric. Given that it need not present subjective evidence, First American did not impliedly waive its attorney-client privilege by the mere filing of this indemnification lawsuit. . . . Likewise, because First American is not relying on its state of mind to prove that the underlying settlement was reasonable, denying access to privileged material is not unfair, as Bowles Rice argues.")

Case Date Jurisdiction State Cite Checked
2017-12-11 Federal WV

Chapter: 29.402
Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)
("The next 'issue injection' issue to consider is whether Defendants have expressly waived the attorney-client privilege by asserting certain affirmative defenses. Specifically, Defendants have asserted good faith affirmative defenses . . . and they have asserted that Plaintiffs were exempt from the FLSA's minimum wage and overtime compensation requirements . . . . But importantly, Defendants have never expressly stated that they are relying upon advice of counsel to support any defense in this case. An express reliance upon advice of counsel to support Defendants' affirmative defenses would waive the attorney-client privilege as to attorney-client communications related to such advice. However, Defendants are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case. In fact, they have specifically stated that they are not going to adduce any evidence or testimony about any advice of counsel Defendants received."; "The above cited relevant case law, when read carefully as a whole, puts cases into three general categories. First, the case law is in agreement that a mere denial of willfulness does not amount to issue injection which would impliedly waive the attorney-client privilege. Second, asserting an affirmative defense (such as good faith in an FLSA case) that explicitly states that a defendant relied on the advice of counsel, or refers to advice or consultation with counsel to support such affirmative defense, does amount to issue injection sufficient to waive the attorney-client privilege. Third, the more nuanced situation, which is similar to what we have here, is whether issue injection sufficient to waive the attorney-client privilege occurs when a defendant in an FLSA case asserts a good faith (or outside sales exemption) affirmative defense, but does not explicitly mention reliance on advice of counsel in that affirmative defense and further represents that it does not intend to rely on counsel's advice to support such defense. Courts seem to require something additional to find issue injection in this third category of cases.")

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

Chapter: 29.402
Case Name: Lawrence R. Buchalter Alaska Trust v. Philadelphia Financial Assurance Co., No. 12 Civ. 6808 (KMK)(PED), 2016 U.S. Dist. LEXIS 31771 (S.D.N.Y. Mar. 11, 2016)
May 11, 2016 (PRIVILEGE POINT)

"The Southern District of New York Takes a Narrow View of the "At Issue" Waiver Doctrine""

An "at issue" waiver can occur without the client disclosing, relying on or even referring to privileged communications. Instead, such a waiver can result from the client's affirmative assertion of some position that necessarily implicates the client's knowledge — putting the client's knowledge "at issue" and thus requiring the client to disclose any otherwise privileged communications that contributed to the client's knowledge.

However, some courts take a very narrow view of such waivers. In 2002 Lawrence R. Buchalter Alaska Trust v. Philadelphia Financial Assurance Co., No. 12 Civ. 6808 (KMK)(PED), 2016 U.S. Dist. LEXIS 31771 (S.D.N.Y. Mar. 11, 2016), plaintiff sought to rely on Alaska's discovery rule to avoid a statute of limitations bar. Magistrate Judge Davison correctly recognized that "a key issue is when plaintiff had enough information to alert him that he had a potential cause of action or should begin an inquiry to protect his rights." Id. At *2-3. Defendant sought communications between plaintiff and his estate planning attorney from the "key November 2008 timeframe." Id. At *3. Plaintiff withheld three emails from that key time — described on a privilege log as follows: "To litigate or not to litigate, that is the question." Id. (internal citation omitted). Defendant naturally sought discovery of those documents — undoubtedly intrigued by what Judge Davison called "the provocative Shakespearean" log description. Id. But the court denied defendant's discovery efforts, explaining that the Second Circuit followed a very narrow "at issue" doctrine approach. Although the court acknowledged that the withheld emails might be relevant, it concluded that "plaintiff's claim that he was not on notice of actionable conduct by defendant" at the time the emails were written "does not . . . Have anything to do with attorney-client communications or legal advice." Id. At *7.

Other courts adopt a broader "at issue" waiver approach. They understandably conclude that a litigant placing her knowledge (or ignorance) "at issue" as of a certain time to seek some advantage in litigation must disclose all inputs into her brain during that time — including even otherwise privileged communications from a lawyer.

Case Date Jurisdiction State Cite Checked
2016-03-11 Federal NY
Comment:

key case


Chapter: 29.402
Case Name: The 2002 Lawrence R. Buchalter Alaska Trust v. Philadelphia Financial Assurance Co., 12 Civ. 6808 (KMK) (PED), 2016 U.S. Dist. LEXIS 31771 (S.D.N.Y. March 11, 2016)
(noting Second Circuit had rejected the Hearn at issue doctrine approach; holding that the plaintiff had not triggered an at issue waiver by seeking to rely on the discovery rule to avoid a statute of limitations defense, and therefore could continue to withhold documents listed on its privilege log from the pertinent time that would shed light on the litigant's knowledge; "Defendant contends that plaintiffs claims are time-barred under Alaska law. Plaintiff asserts that his claims are timely under Alaska's discovery rule. Thus, a key issue is when plaintiff had enough information to alert him that he had a potential cause of action or should begin an inquiry to protect his rights."; "Against this backdrop, defendant subpoenaed documents from William Lipkind, Esq., plaintiff s estate planning attorney. Responding to the subpoena, attorney Lipkind withheld a number of documents on privilege grounds, itemizing the documents withheld on a privilege log. Defendant's motion focuses on three communications enumerated on the privilege log, each of which occurred during the key November 2008 timeframe associated with the SSR losses and is identified on the log with the subject: 'To litigate or not to litigate, that is the question.' The privilege log indicates that each of the three communications is an e-mail chain between Mr. Buchalter, Attorney Lipkind, and Thomas Gentile, who defendant identifies as Mr. Lipkind's law partner and a 'litigation attorney.'"; "Focusing on the timing, the participants, and the provocative Shakespearean subject description of these e-mails, defendant surmises that these communications 'appear to relate a litigation inquiry, investigation, suspicion of wrongdoing and/or discussion of a perceived injury related to PFLAC and/or SSR in 2008.'. . . Thus, defendant asserts that these e-mails are 'relevant and possibly dispositive on the statute of limitations issue.'"; "Defendant . . . Argues that plaintiff has forfeited the privilege and placed these 2008 communications with counsel 'at issue' by asserting -- in response to the statute of limitations defense -- that there was no investigation of or suspicion of wrongdoing by PFLAC until 2012. Defendant asserts that the touchstone for 'at issue' waiver is unfairness, and that it is unfair for plaintiff to allege that he did not discover his claim against PFLAC until 2012 while withholding 2008 communications with his attorneys that appear relevant to, and might indeed undermine, that contention."; "Defendant's waiver argument fails because the Second Circuit in Erie has 'reined in what it perceived to be . . . Overbroad invocation of the fairness doctrine' in this context."; "Recognizing 'uncertainty' and the 'need for clarification' of the rules regarding 'at issue' waiver, the Court in Erie explicitly rejected the so-called 'Hearn test.' under which "an assertion of privilege by one who pleads a claim or affirmative defense 'put[s] the protected information at issue by making it relevant to the case.' . . . Under Erie, a party "must rely on privileged advice from his counsel to make his claim or defense[,]' so factual relevance is not sufficient to trigger 'at issue' waiver."; "In the instant case, defendant argues that by invoking Alaska's discovery rule to overcome defendant's statute of limitations defense, plaintiff has put his 'state of mind' at issue, triggering waiver. But the discovery rule centers on facts the plaintiff knew or should have known, not on his state of mind concerning some question of law which necessarily implicates contemporaneous attorney-client communications. Although defendant is correct that some post-Erie, decisions have stressed that 'a party need not explicitly rely on advice of counsel to implicate the privileged communications[,]'. . . Review of the post-Erie caselaw confirms that such implied reliance is confined to situations involving a party's state of mind concerning a question of law. Such as the party 's belief as to the lawfulness of its conduct."; "Here, plaintiff's claim that he was not on notice of actionable conduct by defendant until 2012 does not, on its face. Have [sic] anything to do with attorney-client communications or legal advice. Defendant seeks the 'To litigate or not to litigate' e-mails because that provocative subject line suggests that plaintiff may have discussed potential legal claims with counsel in 2008, communications which might shed light on what plaintiff knew or should have known about defendant's role in plaintiff's SSR losses at that time. Those e-mails may well be relevant, but in the Court's view this is no different from any other situation in which a party seeks an adversary's privileged communications in hopes of discovering damaging admissions therein. Under Erie, '[s]imply because . . . Communications might be useful in undermining [plaintiff's claim] does not mean that the attorney-client privilege has been impliedly waived.'")

Case Date Jurisdiction State Cite Checked
2016-03-11 Federal NY

Chapter: 29.402
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Company, Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552 (D. Mass. June 22, 2015)
(finding that defendant did not waive its privilege protection by asserting its good faith in following insurance regulations; "An 'at issue' waiver occurs when a party injects certain claims or defenses into the case which implicate, i.e., put 'at issue' the communications of counsel. . . . The classic example is where a defendant defends itself against a claim on the ground that it relied on the advice of counsel in performing or failing to perform the challenged conduct."; "[M]erely pleading a good faith defense does not by itself waive privilege."; "Some courts in this circuit have used the three factor test first set forth in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). . . . More recently, the trend has been to follow the Second Circuit's approach in In re County of Erie, 546 F.3d 222 (2d Cir. 2008), which limited Hearn by additionally requiring that the privileged information be not only relevant, but also actually relied upon by the privilege holder to support a claim or defense in the case."; "The 'reliance' element in Erie addresses the concern that, as a practical matter, there will be very few privilege disputes where the Hearn factors are not met. Rare is the party who will expend the resources to seek disclosure of an opponent's privileged materials where the privileged materials are not both relevant and helpful to the case of the party seeking disclosure. . . . In this Court's view, the Erie approach more reasonably balances the right of the plaintiff to discover truly relevant and vital information with the right of the defendant to protect from disclosure privileged communications not germane to the instant case. Accordingly, that is the approach the Court applies here."; "Under Erie and similar cases, it is not necessary for purposes of proving the reliance element to show that the defendant has stated an intent to introduce or use evidence of attorney communications at trial. Rather, it is sufficient if the defendant's defense relies on certain facts that can only be tested or rebutted if the adversary is given access to the privileged material. . . . For example, if the defendant were to raise the defense that it acted based on its own subjective good faith belief that its actions were lawful, then the reliance element would likely be met, and that is so even if the defendant were to state that it did not intend to introduce any evidence regarding its attorneys' advice. . . . That is because the plaintiff, in order to test the assertion of good faith, would need to know whether the defendant received any legal advice suggesting that its actions were in fact not lawful."; "By contrast, there is no waiver if the defendant intends to establish its good faith defense by showing that its conduct was actually lawful, or was actually approved by regulators, and does not intend to rely on counsel's opinion or advice. . . . That is because such a defense depends on objective facts, making the advice of the defendant's counsel irrelevant."; "With respect to the present case, it appears undisputed that the defendant's in-house counsel participated in the preparation and submission to the DOI of the filings at issue. Among other things, counsel received guidance via a facsimile from the DOI, notated words or some communication on it, and circulated the facsimile to others within the company. Presumably, counsel at some point during this process also expressed some thought as to how the company should proceed. However, the defendant contends that it does not intend to rely on counsel's advice for purposes of asserting its good faith defense. Rather, it will argue that it took the same types of steps that other similar situated entities would take if they were proceeding in good faith to do what the law required. The defendant says it will argue that it accepted guidance from the DOI regarding the filing of safety fund calculations, followed that advice, and then subsequently inferred from the DOI's response (or lack of response) that it (the defendant) had acted properly. As such, the defendant argues that, while it relied on counsel to some extent in determining how to proceed with respect to the preparation and submission of its filings, it will not rely on the advice of counsel for purposes of showing that it acted in good faith."; "In light of the foregoing, the Court finds that the defendant has not waived any privilege or protection by virtue of asserting the defenses of good faith and regulatory approval.")

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA

Chapter: 29.402
Case Name: Markel American Ins. Co. v. Baker, Case No. 5D14-295, 2014 Fla. App. LEXIS 19141 (Fla. App. Nov. 21, 2014)
(analyzing a third party insurance bad faith case; "[W]e find that the filing of a reformation action, which again involves a question of intent, does not automatically result in a waiver of attorney-client privilege."; "Here, Baker is able to mount a defense without using the privileged communications because Markel has to prove either a mutual mistake among the parties to the agreement, or a unilateral mistake coupled with inequitable conduct by the other parties to the agreement, before the contract may be reformed. Though Baker is not privy to Markel's attorney-client communications, she can defend by presenting her own witnesses showing the absence of a mutual mistake. If Markel claims it committed a unilateral mistake and there was inequitable conduct by Baker, she can likewise defend that claim without Markel's attorney-client communications. In other words, Baker has not shown that she will be disadvantaged without the confidential information.")

Case Date Jurisdiction State Cite Checked
2014-11-21 State FL

Chapter: 29.402
Case Name: In re Processed Egg Prods. Antitrust Litig., MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014)
(analyzing the at issue doctrine; "Judge Rice correctly determined that merely asserting a generalized good faith defense does not waive attorney-client privilege. Rather, a litigant must 'take[] the affirmative step in the litigation to place the advice of [counsel] in issue.'"; "The Court agrees with Judge Rice that advice of counsel is not an essential element of the good faith defense in this case. This situation is, as Judge Rice noted, more like the situation in Rhone-Poulenc [Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994)] than the situation in Livingstone [Livingstone v. N. Belle Vernon Borough, 91 F.3d 515 (3d Cir. 1996)]."; "[S]imilarly, Supplier Defendants have not interjected the advice of counsel as an essential element of their good faith defense. Rather, Supplier Defendants are explicitly asserting that they are not relying on the advice of counsel in asserting their good faith defense, and, like in Rhone-Poulenc, their good faith defense does not necessarily require placing advice of counsel at issue. Admittedly, the advice Supplier Defendants received from legal counsel is likely relevant to their good faith belief. However, as Judge Rice noted, privilege is not waived 'merely by taking a position that [privileged communication] might contradict.'")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal PA

Chapter: 29.402
Case Name: Int'l Union v. Honeywell Int'l, Inc., Civil Action No. 11-14036, 2014 U.S. Dist. LEXIS 81608, at *15 (E.D. Mich. June 12, 2014)
(analyzing the at issue doctrine; although acknowledging that defendant's subjective understanding was important, finding that defendant's disclaimer of a many intent to rely on privileged communications prevented an at issue waiver; "Honeywell must affirmatively place these communications at issue in the case for them to be discoverable. Unless and until that happens, the UAW is not entitled to them.")

Case Date Jurisdiction State Cite Checked
2014-06-12 Federal MI

Chapter: 29.402
Case Name: Ariz. Dream Act Coalition v. Brewer, No. CV-12-02546-PHX-DGC, 2014 U.S. Dist. LEXIS 5802, at *16, *17 (D. Ariz. Jan. 15, 2014)
(rejecting the Hearn (Hearn v. Rhay, 68 F.R.D. 574 (1975)) doctrine, and instead following the Rhone-Poulenc doctrine; "Other courts disagree with the broad scope of waiver articulated in Hearn. See, e.g., In re Cnty. of Erie, 546 F.3d 222, 229 (2d Cir. 2008). The Third Circuit, for example, reviewed the holding in Hearn and similar cases and characterized them as extending 'waiver of the privilege to cases in which the client's state of mind may be in issue in the litigation,' rather than limiting waiver to situations where a party affirmatively asserts that advice of counsel justified his or her actions. Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994)."; "The Court concludes that the reasoning in Rhone-Poulenc and Erie is truer to the intent and nature of the attorney-client privilege than Hearn.")

Case Date Jurisdiction State Cite Checked
2014-01-15 Federal AZ B 6/14

Chapter: 29.402
Case Name: In re Processed Egg Prods. Antitrust Litig., 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. 2014) *22-*26
(holding that an antitrust defendant did not cause an "at issue" waiver by asserting a good faith defense; "Judge Rice determined that the Supplier Defendants had not waived attorney-client privilege by their assertion of a good faith defense. He reasoned that because the 'Supplier Defendants have asserted that their good faith defense is not based on any advice directly obtained from UEP's and USEM's attorneys,' the Supplier Defendants have not put any privileged communications at issue. Order at 2. The Court affirms this outcome and reasoning."; "Judge Rice determined that merely asserting a generalized good faith defense does not waive attorney-client privilege. Rather, a litigant must 'take[] the affirmative step in the litigation to place the advice of [counsel] in issue.' Rhone-Poulenc Rorer, Inc. v. Home Indem., 32 F.3d 851, 863 (3d Cir. 1994)."; "The Court agrees with Judge Rice that advice of counsel is not an essential element of the good faith defense in this case."; "Here . . . Supplier Defendants have not interjected the advice of counsel as an essential element of their good faith defense. Rather, Supplier Defendants are explicitly asserting that they are not relying on the advice of counsel in asserting their good faith defense, and, like in Rhone-Poulenc, their good faith defense does not necessarily require placing advice of counsel at issue. Admittedly, the advice Supplier Defendants received from legal counsel is likely relevant to their good faith belief. However, as Judge Rice noted, privilege is not waived 'merely by taking a position that [privileged communication] might contradict.'. . . Supplier Defendants' good faith defense is based only on what they learned from non-attorney personnel.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal PA

Chapter: 29.402
Case Name: Grace Vill. Health Care Facilities, Inc. v. Lancaster Pollard & Co., Civ. No. 3:11cv295, 2013 U.S. Dist. LEXIS 110313, at *5 (N.D. Ind. Aug. 6, 2013)
(finding the at issue doctrine inapplicable in a case where the plaintiff claimed that the defendant had botched plaintiffs' claim in the Lehman bankruptcy, which forced plaintiffs to settle with Lehman; "According to Indiana law, a plaintiff puts the attorney-client privilege 'at issue' -- and thus waives the privilege -- only where the 'client relies specifically on advice of counsel to support a claim'; in other words, '[o]nly when the client seeks to take advantage of the privileged communications themselves should a waiver be found on the theory that the client has put the attorney's advice in issue.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-08-06 Federal IN B 4/14

Chapter: 29.402
Case Name: First S. Bank v. Fifth Third Bank, N.A., Civ. A. No. 7:10-2097-MGL, 2013 U.S. Dist. LEXIS 62238, at *39 (D.S.C. May 1, 2013)
(declining to find an at issue doctrine, and relying on Rhone Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994); "[T]he court agrees with Defendant and would not find a waiver in these circumstances unless Defendant specifically relies on communications with its counsel or advice from its counsel as grounds for defending itself against Plaintiff's claims. Here the Defendant has made no attempt to prove a 'claim or defense by disclosing or describing an attorney client communication' and represents that it has no intention to do so.")

Case Date Jurisdiction State Cite Checked
2013-05-01 Federal SC B 12/13

Chapter: 29.402
Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *21-23 (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; "Plaintiff neither affirmatively injected attorney-client communications, nor sought to rely on advice of counsel. Further, she has not pleaded advice of counsel as an affirmative defense, or made it an element of her claim in this case. . . . Therefore, pursuant to the standard articulated in Rhone, I find Plaintiff has not impliedly waived the attorney client privilege.")

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

Chapter: 29.402
Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *13-14, *14-15, *16-17, *18-19 (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 approach; "[T]wo general approaches have emerged to determine whether a client has impliedly waived the attorney-client privilege. The first approach, and the one that Defendants urge the Court to adopt, first was articulated in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)."; "While the Hearn rule often is cited as the 'leading light of implied waiver jurisprudence,' many sources criticize it on the grounds that it is vague and does not afford sufficient protection to the attorney-client privilege. . . . [T]he Rhone court articulated an alternative approach to assessing implied waiver, holding that a party only places the attorney's advice 'at issue' when 'the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney-client communication.'" (citation omitted); "The Fourth Circuit has yet to expressly adopt either test; however, a recent decision provides guidance. In Shaheen v. WellPoint Cos., Inc. [490 Fed. Appx. 552 (4th Cir. 2012)], the plaintiff argued that disclosure was warranted under the 'at-issue' doctrine."; "These opinions make clear that the central inquiry in determining whether a party has impliedly waived the attorney-client privilege is whether that party affirmatively attempts to 'rely' on advice of counsel. To this end, I am persuaded that the Rhone rule is the better reasoned test. It makes clear when there is an implied waiver because it unambiguously identifies the circumstances under which a party places an attorney's advice 'at issue,' which is occasioned by a party clearly injecting attorney advice into the action. Such a rule preserves the spirit of the attorney client privilege and promotes predictability. It also achieves an appropriate level of fairness by preventing a party from asserting advice of counsel only to its benefit, thereby eliminating the risk that a party will attempt to use the advice-of-counsel as both a sword and a shield." (footnote omitted))

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

Chapter: 29.402
Case Name: Hurley v. State Farm Mut. Auto. Ins. Co., No. Civ. 10-4165-KES, 2013 U.S. Dist. LEXIS 12558, at *5, *6 (D.S.D. Jan. 30, 2013)
(applying a modified version of Hearn based on the earlier case of Bertelsen v. Allstate Ins. Co., 796 N.W.2d 685, 701 (S.D. 2011); "After determining that Hearn provides insufficient guidance on its own, the Supreme Court added additional considerations to the Hearn analysis. 'First, the analysis . . . should begin with a presumption in favor of preserving the privilege.'. . . 'Second, a client only waives the privilege by expressly or impliedly injecting his attorney's advice into the case.'. . . Under this analysis, '[t]he key factor is reliance of the client upon the advice of his attorney.'. . . 'Finally, a client only waives the privilege to the extent necessary to reveal the advice of counsel he placed at issue.'" (Bertelsen, 796 N.W.2d at 703); "The law in South Dakota, however, only requires some affirmative act, not necessarily an express claim of the advice-of-counsel defense, to waive the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-30 Federal SD B 1/14

Chapter: 29.402
Case Name: Shaheen v. Wellpoint Cos., 490 F. App'x 552, 557 (4th Cir. 2012)
(rejecting the "at issue" doctrine in an employment wrongful termination case; "WellPoint never asserted advice of counsel as an affirmative defense. Indeed, neither Ingle nor Lohmeyer indicated that they relied on advice of counsel in terminating Shaheen, or in making the alleged defamatory statements. Thus, the 'at issue' doctrine does not apply. See, e.g., Rhone-Poulenc Rorer Inc. v. Home Indemn. Co., 32 F.3d 851, 863 (3d Cir. 1994) ('Advice is not in issue merely because it is relevant . . . . The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication.'); Billings [v. Stonewall Jackson Hosp.], 635 F. Supp. 2d [442,] 446 [(W.D. Va. 2009)] ('[Defendant] does not assert the defense of advice of counsel in this case; thus, the narrow 'at-issue' exception does not apply.'); Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wa. 1975) (noting that cases finding a waiver of attorney-client privilege share a 'common denominator' in that 'the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit').")

Case Date Jurisdiction State Cite Checked
2012-08-03 Federal B 7/16

Chapter: 29.402
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *18-21 (W.D. Va. June 15, 2011)
("Much like this case, the plaintiff in Sayre [Sayre Enterprises, Inc. v. Allstate Insurance Company, No. 5:06cv36, 2006 U.S. Dist. LEXIS 89097 (W.D. Va. Dec. 11, 2006)] argued its bad faith claim was integral to its claim, which was factually intertwined with the advice of counsel. Id. at *11. Also as in Sayre, Donegal has not taken the affirmative step of placing the advice of counsel in issue. It has neither pled advice of counsel as an affirmative defense, nor made it an element of its defense in this case. See Rhone-Poulenc Rorer Inc., 32 F.3d at 863 (noting the privilege can be impliedly waived when a party asserts reliance on the advice of counsel as an affirmative defense or as an essential element of its defense); Balt. Scrap Corp. v. David J. Joseph Co., No. L-96-827, 1996 U.S. Dist. LEXIS 18597, 1996 WL 720785, at *24 (D. Md. Nov. 20, 1996) ('In the majority of cases where courts have found this form of waiver, the party asserting the privilege has taken affirmative steps to place the privileged communication into issue for his or her own benefit.'). Plaintiffs have offered no evidence other than Stacey Callahan's deposition testimony to suggest that Donegal interjected the advice of counsel into this litigation. And Callahan's response to a question about whether Niles Barton's advice factored into Donegal's decision to deny coverage is not enough to show that Donegal put its communications with counsel at issue. See Cincinnati Ins. Co. v. Zurich Ins. Co., 198 F.R.D. 81, 88 (W.D.N.C. 2000) ('While it is true that Cincinnati has placed [counsel's] knowledge and opinions at issue, Cincinnati has not so implicated the contents of confidential communications to mandate their production.' (emphasis in original)). The mere fact that Donegal relied on the opinion of coverage counsel in denying plaintiffs' claim does not waive the attorney-client privilege. Certainly, when Donegal enlisted the assistance of Niles Barton in this matter, it intended to rely on counsel's advice. There would be little point in retaining coverage counsel to issue an opinion if a party did not intend to rely on it. Likewise, if reliance always gave rise to waiver in this circumstance, no one would seek coverage counsel's advice. The court in Baltimore Scrap Corp. explained: 'The justification for finding waiver of the privilege in these cases is that it would be inequitable to permit the party to use the attorney-client privilege as a sword by placing the advice of the attorney at issue while permitting the same party to use the attorney-client relationship as a shield to prevent inquiry into the asserted claim or defense.' 1996 U.S. Dist. LEXIS 18597, 1996 WL 720785, at *24. Donegal has not used the attorney-client privilege as a sword in this litigation. See also 1996 U.S. Dist. LEXIS 18597, [WL] at *26 ('In determining whether a party has impliedly waived the attorney-client privilege, I am persuaded that the principal inquiry should focus upon whether or not the proponent of the privilege is relying upon the privileged communication to prove his or her case.'). Donegal's reliance on coverage counsel's opinion, without more, is not sufficient enough to show it put the advice of counsel 'at issue.' Thus, the first Hearn factor has not been met. While Callahan's deposition testimony may have made the Niles Barton opinion letter relevant to the litigation, '[r]elevance is not the standard for determining whether or not evidence should be protected from disclosure as privileged, and that remains the case even if one might conclude the facts to be disclosed are vital, highly probative, directly relevant or even go to the heart of an issue.' Rhone-Poulenc Rorer Inc., 32 F.3d at 864. If relevance were the standard, the interest served by the attorney-client privilege ensuring a client that he or she can consult with counsel in confidence would be completely undermined. Id.")

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

Chapter: 29.403
Case Name: Utility Constructors, Inc. v. Perez, Civ. A. No. 15-4675 Section "I" (2), 2016 U.S. Dist. LEXIS 111206 (E.D. La. Aug. 22, 2016)
(applying the "anticipatory waiver" doctrine, and concluding that defendant did not trigger an "at issue" waiver by claiming that her lawyer had made a mistake in drafting an agreement; "Perez negotiated the Agreement on behalf of the Perez entities from November 2011 into January 2012. On November 4, 2011, defendants' counsel sent a first draft of an Agreement to Perez. Perez sent a redlined draft back on November 10, 2011. Perez testified at his deposition that the striking through (signifying a proposed deletion) of the original Paragraph 2 in this draft was a mistake by his lawyers at Kean Miller, who had sent the redlined version to him. Perez averred that all parties intended and understood at the time that the language of original Paragraph 2 was a part of their Agreement. He testified that the deletion was a mistake that 'we all overlooked"'at the time and that the parties did not realize until three years later that Paragraph 2 had been 'accidentally struck.'"; "It is undisputed that the information sought by the subject subpoenas is attorney-client privileged. However, Utility argues that the Perez entities have negated their privilege by asserting in this litigation a breach of duty by their own attorneys in deleting Paragraph 2 from the draft Agreement."; "'[P]lacing at issue' waiver does not depend upon the relevance of the privileged communications or on the adversary's need, no matter how strong, for the privileged matters."; "This kind of waiver occurs only when the party allegedly waiving the privilege has 'committed himself to a course of action that will require the disclosure of a privileged communication.'. . . A finding of waiver must be based on an affirmative act by the privilege holder that creates some further detriment to the truth-seeking process in addition to that already taken into account in the creation of the privilege itself."; "To determine whether the Perez entities have waived their privilege as to their communications with their lawyers, the court focuses on (1) whether Perez has already revealed privileged communications and (2) the Perez entities' intended use of their protected communications, i.e., whether they 'have committed [themselves] to a course of action that will require the disclosure of a privileged communication, and not on [Utility's] alleged need for the testimony of a non-party like [Charpentier] to resolve any dispute.'"; "Perez did not reveal any privileged communications with his attorneys when he testified that his lawyers sent to him the redlined draft that deleted Paragraph 2 from the original draft and that the deletion was a mistake. The Perez entities have placed at issue whether all parties made a mutual mistake regarding that deletion, but they will not inevitably be forced to disclose privileged communications to prove their contention. They can present other evidence regarding the parties' understanding and intentions, such as the testimony of Perez and other parties to the Agreement, and other relevant documents. Whether the evidence is credible or sufficient to prove their claim will be up to the jury."; "The information sought by Utility is protected from disclosure by the attorney-client privilege, which has not been waived by placing at issue any breach of duty by the Perez entities' lawyers or inevitably forcing plaintiffs to draw upon privilege communications to prove their claim.")

Case Date Jurisdiction State Cite Checked
2016-08-22 Federal LA

Chapter: 29.403
Case Name: Gibbens v. Quality Rental Tools, Inc., Civ. A. No. 13-6401C/W14-288 Section "E" (3), 2014 U.S. Dist. LEXIS 151891 (E.D. La. Oct. 24, 2014)
(analyzing the at issue doctrine; "In Louisiana, 'placing at issue' waiver means that the waiving party "'pleads a claim or defense in such a way that he will be forced inevitably to draw upon a privileged communication at trial in order to prevail. Consequently, he places at issue and waives his privilege as to communications on the same subject under his control.'"; "'[P]lacing at issue" waiver does not depend on the relevance of the privileged communications or on the adversary's need, no matter how strong, for the privileged matters. . . . Instead, this kind of waiver occurs only when the party waiving the privilege has "'committed himself to a course of action that will require the disclosure of a privileged communication.'")

Case Date Jurisdiction State Cite Checked
2014-10-24 Federal LA

Chapter: 29.403
Case Name: Waste Mgmt. of Louisiana v. Jefferson Parish, Civil Action No. 13-226 SECTION "F" (3), 2014 U.S. Dist. LEXIS 83665, at *5 (E.D. La. June 19, 2014)
(examining the scope of the subject matter waiver when a litigant pleads advice of counsel; "Under the anticipatory waiver theory, the Court must concern itself solely with whether the privilege holder has committed himself/herself to a course of action that will require the disclosure of a privileged communication.")

Case Date Jurisdiction State Cite Checked
2014-06-19 Federal LA

Chapter: 29.403
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *13 (W.D. Va. June 15, 2011)
("The court in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), set forth a framework for determining whether the party asserting a privilege has impliedly waived it through his own affirmative conduct. Courts must determine whether: a) the assertion of privilege was the result of some affirmative act, such as filing suit, by the asserting party; b) through this act, the asserting party put the protected information at issue by making it relevant to the case; and c) application of the privilege would have denied the opposing party access to information vital to his defense. Id. at 581. Although the Hearn framework has not been met with universal acceptance, it remains the most widely accepted approach. Metric Constructors, Inc. v. The Bank of Tokyo- Mitsubishi, Ltd., No. 5:97-CV-369BR1, 1998 U.S. Dist. LEXIS 18428, 1998 WL 1742589, at *6 n.6 (E.D.N.C. Sept. 28, 1998); see also City of Myrtle Beach v. United Nat'l Ins. Co., No. 4:08-1183-TLW-SVH, 2010 U.S. Dist. LEXIS 89725, 2010 WL 3420044 (D.S.C. Aug. 27, 2010).")

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

Chapter: 29.404
Case Name: Kehle v. USAA Casualty Ins. Co., Case No. 17-80447-CV-MARRA/MATTHEWMAN, 2018 U.S. Dist. LEXIS 89846 (S.D. Fla. May 30, 2018)
(holding that the at issue doctrine applied, because the plaintiff must carry the burden of proving good faith of an earlier arbitration; apply the Hearn doctrine (mentioning attorney-client privilege protection but then apparently addressing only work product protection); "The subject-matter waiver doctrine provides that a party who injects into the case an issue that in fairness requires an examination of communications otherwise protected by the attorney-client privilege loses that privilege."; "In Cox [Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.1994)], the Eleventh Circuit stated that the 'subject matter waiver doctrine does not extend to materials protected by the opinion work product privilege.'"; "To establish that Plaintiff has indeed waived her opinion work-product objections to the emails which pertain to the good faith and reasonableness of the hybrid Coblentz agreement/arbitration award between Plaintiff and Mr. Henderson, Defendant must satisfy the three-part Hearn test."; "The Court finds that Defendant has met the first element of the Hearn test because it has shown that the assertion of the opinion work-product privilege was affirmatively raised by Plaintiff when she filed the lawsuit."; "Defendant has met the second element of the Hearn test by demonstrating that Plaintiff has put the protected information at issue by making it relevant to this case."; "Finally, the Court finds that allowing Plaintiff to maintain her work-product privilege would deny USAA access to information vital to its defense because it would preclude USAA from probing into the primary source of evidence of alleged bad faith, fraud, and collusion. Plaintiff has brought a breach of contract action and seeks to enforce the hybrid Coblentz agreement/arbitration award against Defendant USAA in the amount of $8,818,804. As stated above, the spirit of the at-issue waiver doctrine is to encourage fairness. Enforcing the hybrid Coblentz agreement/arbitration award requires Plaintiff to establish, by a prima facie showing, that the hybrid Coblentz agreement/arbitration award was reasonable and made in good faith, but the ultimate burden of proof will rest with USAA. . . . It would be manifestly unfair to prohibit Defendant from discovery into the communications between Plaintiff's former and current attorneys regarding the settlement agreement, the arbitration proceedings, and the arbitration award which are directly relevant to the reasonableness and good faith of the hybrid Coblentz agreement/arbitration award, and to issues of alleged collusion.")

Case Date Jurisdiction State Cite Checked
2018-05-30 Federal FL

Chapter: 29.404
Case Name: Kehle v. USAA Casualty Ins. Co., Case No. 17-80447-CV-MARRA/MATTHEWMAN, 2018 U.S. Dist. LEXIS 89846 (S.D. Fla. May 30, 2018)
(adopting the Hearn standard, and applying the at issue doctrine because the plaintiff had relied on the reasonableness of an earlier settlement in a bad faith case against an insurance company; "The subject-matter waiver doctrine provides that a party who injects into the case an issue that in fairness requires an examination of communications otherwise protected by the attorney-client privilege loses that privilege. . . . '[T]he plain language of Fed.R.Civ.P. 26(b)(3) suggests that opinion work product should not be subject to such an implied waiver, and that the rationale behind the doctrine (the fear that a party might 'make affirmative testimonial use' of a communication and then seek to shield it from disclosure) does not apply to mental impressions and legal theories.'"; "In Cox [Cox v. Administrator US. Steel & Carnegie, 17 F.3d 1386, 1421 (11th Cir.1994)], the Eleventh Circuit stated that the 'subject matter waiver doctrine does not extend to materials protected by the opinion work product privilege.'. . . Cox considered the 'very rare and extraordinary circumstances' under which opinion work product can be discovered. The Eleventh Circuit found that the crime-fraud exception presented one of the very rare and exceptional circumstances in which opinion work product is discoverable, but declined to declare the subject matter waiver doctrine as a rare and exceptional circumstance. Id. However, several courts have held, subsequent to Cox, that a party can waive its opinion work-product privilege pursuant to the doctrine of at-issue waiver if it concerns the mental impressions and opinions of counsel in the context of bad faith litigation."; "Both Tolz [Tolz v. Geico Gen. Ins. Co., No. 08-80663-CIV, 2010 U.S. Dist. LEXIS 6709, 2010 WL 384745 (S.D. Fla. Jan. 27, 2010)] and Maplewood Partners [Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 624 (S.D.Fla. 2013)] demonstrate that there are certain situations, often involving cases against an insurer for alleged violations of the duty of good faith, or, as in the instant case, alleged violations of the duty of good faith and reasonableness on the part of the plaintiff, or collusion, where the doctrine of at-issue waiver could constitute one of the 'very rare and extraordinary circumstances' in which opinion work product may be discoverable."; "The instant case involves alleged violations of the duty of good faith and reasonableness on the part of Plaintiff. It would be unfair to prevent Defendant from discovery into information which could potentially shed light on the alleged bad faith conduct of the parties, or lack of good faith and unreasonableness, when it is Plaintiff who is inserting the issues of reasonableness and good faith of the agreement into this case.")

Case Date Jurisdiction State Cite Checked
2018-05-20 Federal FL

Chapter: 29.404
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
(rejecting defendant's argument that it did not discover defendant's misconduct and therefore did not face a statute of limitations bar; describing the various "at issue" doctrines, and finding that they did not apply; "A number of courts have noted that basically three tests have been applied in determining whether an 'at issue' waiver has occurred: (1) the 'automatic waiver' rule, which provides that a party automatically waives the privilege upon assertion that a claim or defense raises an issue to which otherwise privileged information is relevant. This is often called the least restrictive test and is not employed by our Court of Appeals. Courts have also employed the so-called intermediate or Hearn test and the 'anticipatory waiver' test set forth in Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3rd Cir.1994), which provides that the privilege is waived if a party places in issue its reliance upon counsel's advice."; "Most courts have adopted the shield-sword analogy which holds that the privilege only prohibits a party from simultaneously using the confidential information as both a shield and sword -- that is, a party cannot use privileged information both offensively and defensively at the same time. In re County of Erie, 546 F.3d 222, 229 (2nd Cir. 2008)."; "A number of courts agreed that a party does not waive the attorney-client privilege simply by pleading a claim which sounds in fraud or misrepresentation. Indeed, such claims are common, and it would substantially undercut the attorney-client privilege if the privilege were deemed waived in every case where a party made a claim of reasonable reliance upon the misrepresentations or omissions of the other party. In rejecting such a broadside assault on the attorney-client privilege, courts have said, for example, that although 'the client in a fraud or similar action, may be required to disclose its thoughts and knowledge, whether or not those were acquired in whole or in part from conversations with its attorneys . . . [i]t is not required to disclose what was said between client and counsel.'"; "Here, Hytera raised the statute of limitations, not Motorola. Motorola responded by asserting it did not discover the basis of its claim until late 2016. Under these circumstances, and under the holdings of most cases, it didn't inject a new issue into the case."; "In the end, the courts that have found implied waivers have concluded that a party may not advance a claim or defense that relies on materials that the adversary needs to effectively contest or impeach the claim. . . . In this case, it bears repeating that, Hytera concedes that it raised the relevant issue, not Motorola. . . . The filing of a lawsuit did not waive the attorney-client privilege."; "Thus, unlike the situation in Rhone—Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 863 (3d Cir. 1994) and many other cases, 'advice of counsel [has not been] placed in issue' by Motorola; nor has it yet attempted to prove its claim or its defense by disclosing or describing an attorney-client communication. In other words, Motorola isn't using an 'investigation or its results' or privileged communications to defeat Hytera's statute of limitations defense. Of course, that situation may change, and if it does, the issue will have to be revisited.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL

Chapter: 29.404
Case Name: In re Itron, Inc., No. 17-60733, 2018 U.S. App. LEXIS 4136 (5th Cir. App. Feb. 21, 2018)
(analyzing the implied waiver and at issue implications of a corporate buyer who settled a claim by a third party and then sued a corporate seller for negligent misrepresentation; explaining that the corporate buyer sought recovery from the seller of the settlement amount and litigation costs; holding that the reasonableness of the settlement involved an objective standard, and therefore did not trigger an implied waiver or at issue waiver; "[A] client waives the privilege by affirmatively relying on attorney-client communications to support an element of a legal claim or defense -- thereby putting those communications 'at issue' in the case."; "This opinion does not concern the 'anticipatory waiver' version of this rule, which finds waiver 'when a privilege-holder pleads a claim or a defense in such a way that he will be forced inevitably to draw upon a privileged communication at trial in order to prevail,' Smith v. Kavanaugh, Pierson & Talley, 513 So. 2d 1138, 1145 (La. 1987), and which no party has invoked."; "Defendants would have us broaden the Jackson Medical [Jackson Medical Clinic for Women, P.A. v. Moore, 836 So. 2d 767, 773 (Miss. 2003)] rule such that waiver occurs whenever the client files a lawsuit to which privileged communications, if disclosed, might prove 'highly relevant' -- even if the client never relies on or uses those communications to make her legal case. The magistrate judge embraced a more expansive rule, requiring only simple relevance. These expansions of Jackson Medical find no support in the Mississippi Rules of Evidence, see Miss. R. Evid. 502(d), or any Mississippi caselaw. And given Jackson Medical and other persuasive authorities, we conclude this is not the law the Mississippi Supreme Court would apply."; "Our circuit and others agree that '[r]elevance is not the standard for determining whether or not evidence should be protected from disclosure as privileged, . . . even if one might conclude the facts to be disclosed are vital, highly probative, directly relevant or even go to the heart of an issue.' Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994) (emphasis added)."; "Defendants fall back on dicta in an out-of-circuit federal district court opinion, decided in 1975, which no reported Mississippi case has cited. The case is Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)."; "Here, Defendants ask us to apply an interpretation of Hearn that would require only that the privileged material have high relevance to case. But as discussed above, that view has no basis in Mississippi law, contradicts prevailing notions of waiver, and would effectively nullify the privilege."; "Even accepting for the sake of argument that the privilege takes flight whenever privileged communications become 'highly relevant' to an adversary's defense -- which, we emphasize, it does not -- Defendants still fail to show how Itron's privileged communications meet that standard."; "Defendants' primary theory of relevance apparently concerns whether Itron took reasonable steps to mitigate its damages. According to Itron's complaint, Defendants' negligent misrepresentations caused Itron to become liable to Consert, necessitating the Consert litigation which Itron eventually settled. There is thus a colorable argument that, under ordinary tort principles, Itron cannot recover the cost of the settlement as damages to the extent Defendants show the settlement to have been unreasonable. See Rolison v. Fryar, 204 So. 3d 725, 736 (Miss. 2016) ("An injured party has a duty to take reasonable steps to mitigate damages."); see also Wall v. Swilley, 562 So. 2d 1252, 1258 (Miss. 1990) (in Mississippi, failure to mitigate 'is an affirmative defense' defendants must plead and prove)."; "But this does not render the opinions of Itron's counsel 'highly relevant.' Instead, '[t]he reasonableness of the settlement . . . [must] be examined under an objective standard.'"; "Defendants similarly claim they must see Itron's privileged communications to know 'whether Itron's settlement damages are attributable to [Defendants], a third party, or Itron itself.' Although Defendants' argument is not entirely clear, they apparently seek to uncover that Itron followed unreasonable advice from its law firm (Gibson Dunn), which might arguably relieve Defendants of liability as a superseding cause."; "Either way, the argument fails for at least the reasons just discussed: Both potential theories turn on whether Itron engaged in a course of action that was objectively reasonable. And as discussed above, the objective reasonableness of Itron's conduct should be apparent from the facts known to Itron at the time (which again, are not privileged) coupled with objective legal analysis.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal
Comment:

key case


Chapter: 29.404
Case Name: First Am. Title Ins. Co. v. Rice, Civ. A. No. 1:16cv219, 2017 U.S. Dist. LEXIS 203163 (N.D.W. Va. Dec. 11, 2017)
(applying the Hearn at issue doctrine standard, but finding that there had not been an at issue waiver; "But to the extent that Hearn suggests privileged information is at issue merely because it is relevant to a claim, this aspect of the test is difficult to square with West Virginia law. As discussed, although privilege can be waived in West Virginia when a party's claim or defense puts its attorney's advice at issue, advice does not become 'in issue' unless a client takes affirmative action to rely on his or her attorney's advice in subsequent litigation. Indeed, the Supreme Court of Appeals has noted that advice does not become 'in issue' merely because it is relevant or affected the client's state of mind."; "Rather, the better test was articulated by the Second Circuit in Erie. The court there was critical of Hearn and its application by the district court below. More particularly, it found fault with the fact that Hearn appears to make a communication 'at issue' simply because it is relevant to the lawsuit. Erie, 546 F.3d at 229. The Second Circuit instead reasoned that, in order to make privileged information 'at issue' and implicitly waived, 'a party must rely on privileged advice from his counsel to make his claim or defense.' Id. (emphasis in original). This holding is consistent with West Virginia's discussion of waiver, and Magistrate Judge Aloi was correct to apply it."; "Here, First American is not relying on the advice of counsel to establish that its settlement was reasonable, nor does West Virginia law require that it do so. To the contrary, First American has expressly stated its intention to rely solely on the objective factors set forth by the Supreme Court of Appeals in Valloric. Given that it need not present subjective evidence, First American did not impliedly waive its attorney-client privilege by the mere filing of this indemnification lawsuit. . . . Likewise, because First American is not relying on its state of mind to prove that the underlying settlement was reasonable, denying access to privileged material is not unfair, as Bowles Rice argues.")

Case Date Jurisdiction State Cite Checked
2017-12-11 Federal WV

Chapter: 29.404
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 105619 (N.D. Cal. Aug. 9, 2016)
(analyzing the at issue doctrine; finding that defendant's testimony about subjective beliefs relating an earlier settlement triggered a waiver, on a statement-by-statement basis; "Attorney-client privilege issues lie at the heart of litigation over a settlement alleged to be anticompetitive when a party's lawyers are the principal negotiators and advisors regarding the agreement. That party cannot testify to its subjective beliefs about the reasons for entering into the settlement and preclude its adversaries from discovering the content of the lawyers' advice by simply asserting that the attorney-client advice was irrelevant to those subjective beliefs. Instead, when the record shows that attorney-client advice played a significant role in formulating a party's subjective beliefs on central issues in the case, the adversaries are entitled to disclosure of the otherwise privileged material to test the credibility of those subjective beliefs. But if a party relies solely on objective evidence, or subjective beliefs derived exclusively from business judgment and experience, the attorney-client privilege should be protected."; "[G]iven the evidence plaintiffs have presented showing that defendants actually relied on attorney advice in reaching their subjective beliefs, I conclude that defendants will be precluded from relying on specific subjective beliefs unless they choose to waive the privilege as to communications and information regarding the same. This does not mean that defendants will be unable to rely on any evidence with respect to those topics or defenses. Defendants may rely on objective evidence from experts that does not cross into what defendants believed or why defendants were motivated to agree to certain terms in the Watson settlement."; "[T]he actual use of attorney client information in prosecuting or defending this case is not necessary to effect an implied waiver under Hearn."; "'Many of defendants' cases are inapposite because they cite to or rely on the Third Circuit's analysis in Rhone-Poulenc Rorer which, contrary to Hearn, requires affirmative use of the privileged information to find implied waiver.'"; "That said, a simple showing of relevance to a case will not suffice. The information sought must be directly relevant and necessary to allow a party to fully challenge the claims or defenses of the party asserting the privilege, and the information cannot be secured through other sources."; "[D]efendants cannot avoid waiver by offering to rely at summary judgment or trial solely on non-legal justifications for certain subjective beliefs. There is no doubt -- given the question at issue is whether anticompetitive goals motivated defendants' settlement -- that business advice and non-legal facts were considered by settlement decision-makers. But if defendants inject their subjective beliefs on specific topics as part of their defense of the Watson settlement -- like a subjective belief that patent litigation is inherently uncertain --where evidence establishes that the subjective belief was also informed by attorney advice, it would be unfair to not allow plaintiffs access to defendants' contemporaneous attorney-client information to test the veracity of the defendants' justifications in this litigation even though that belief is based in part on business judgment and executive experience."; "As to many of the subjective beliefs . . . defendants' position is essentially this: 'Trust us. The justifications we are putting forward here are why we settled.' But in order to test or rebut defendants' assertions, in fairness, plaintiffs should be given access to contemporaneous information regarding those topics that necessarily implicate attorney-client advice."; "At summary judgment or trial, defendants' experts will be allowed to testify on these topics based on objective evidence (including the pleadings and transcripts from the Watson patent litigation). Those experts may also opine on the timing of the trial court decision, post-trial motions, and resolution of appeals to the Federal Circuit. Those experts, however, will not be allowed to discuss or suggest what the defendants' actual subjective beliefs may have been on these topics."; "[A]ll subjective beliefs about the FDA's actions with respect to Watson's ANDA, including its potential approval, put at issue attorney-client advice because the record in this case shows that defendants' attorneys were extensively involved in advising whether and when the ANDA might be approved. While it is true that defendants' scientists and employees working on regulatory matters could testify as to how the FDA handles ANDAs generally and the timeframe for regulatory action on ANDAs in general, the direct and unmistakable implication of testimony from defendants' employees is that those considerations weighed on decisions made with respect to the Watson ANDA and, therefore, the settlement of the Watson litigation. . . . Defendants can present testimony about the Watson ANDA and the FDA's actions on it, not as subjective beliefs but by objective expert testimony."; "Endo cannot provide subjective testimony on these subject matters (contents, chances of success, and timing) without putting all related attorney-client information on those matters at issue.")

Case Date Jurisdiction State Cite Checked
2016-08-09 Federal CA

Chapter: 29.404
Case Name: Lillieroos v. Starr Indemnity & Liability Co., Case No. CIV-12-1359-D, 2016 U.S. Dist. LEXIS 14876 (W.D. Okla. Feb. 8, 2016)
(finding that defendant had not triggered an "at issue" waiver while seeking indemnification based on an earlier settlement agreement; "Upon review of the parties' submissions, including the documents for which the attorney-client privilege is invoked, the Court finds that all of the so-called Hearn factors militate against waiver, and that CBP's motion should be denied. As previously noted by the Court, the first two factors, assertion of the privilege as the result of an affirmative act, which renders the protected information at issue, are crucial requirements. . . . Simply bringing a claim for indemnification, and mere relevance of the protected information, are not enough. . . . Here, in seeking indemnification Starr did not inject advice of its counsel into the case, nor did it rely on advice of counsel to supply an element of its indemnification claim. Starr has affirmatively asserted that it will not rely on the advice of counsel in attempting to meet its burden at trial to establish the reasonableness of the settlement.")

Case Date Jurisdiction State Cite Checked
2016-02-08 Federal OK

Chapter: 29.404
Case Name: Lillieroos v. Starr Indemnity & Liability Co., Case No. CIV-12-1359-D, 2015 U.S. Dist. LEXIS 112988 (W.D. Okla. Aug. 26, 2015)
(applying the Hearn at issue doctrine, and ordering an in camera review)

Case Date Jurisdiction State Cite Checked
2015-08-26 Federal OK

Chapter: 29.404
Case Name: UUSI, LLC v. United States, No. 12-216C, 2015 U.S. Claims LEXIS 545 (Fed. Cl. May 5, 2015)
(adopting the Hearn approach to the "at issue" doctrine; concluding that a laches defense triggered an at issue waiver; "The 'at-issue' waiver applies where the privilege holder makes assertions, the truth of which can only be assessed by the examination of the privileged communications.")

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

Chapter: 29.404
Case Name: Chimney Rock Pub. Power Dist. v. Tri-State Generation & Transmission Ass'n., Civ. A. No. 10-cv-02349-WJM-KMT, 2013 U.S. Dist. LEXIS 67714, at *7-8 (D. Colo. May 13, 2013)
("The Colorado Supreme Court has cautioned against the excessive application of the 'in issue' exception to the attorney-client privilege, noting that the 'general policy against invading the privacy of an attorney's course of preparation' is 'well recognized and . . . essential to an orderly working of our system of legal procedure,' and cautioning that exceptions to attorney-client privilege' are simply exceptions and that 'the rule is that attorney-client communications are privileged and protected from discovery by opposing parties.' DiFede [Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533, 543-44 (Colo. 1989)]. Consequently, DiFede adopted a three-prong test to determine whether there has been an implied waiver of the attorney-client privilege by putting a matter in issue: (1) when assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party, and (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case, and (3) application of the privilege denies the opposing party access to information vital to his defense. . . . Even where there has been an implied waiver of the privilege, the scope of the implied waiver must be carefully delineated.")

Case Date Jurisdiction State Cite Checked
2013-05-13 Federal CO B 3/14

Chapter: 29.404
Case Name: Hurley v. State Farm Mut. Auto. Ins. Co., No. Civ. 10-4165-KES, 2013 U.S. Dist. LEXIS 12558, at *5, *6 (D.S.D. Jan. 30, 2013)
(applying a modified version of Hearn based on the earlier case of Bertelsen v. Allstate Ins. Co., 796 N.W.2d 685, 701 (S.D. 2011); "After determining that Hearn provides insufficient guidance on its own, the Supreme Court added additional considerations to the Hearn analysis. 'First, the analysis . . . should begin with a presumption in favor of preserving the privilege.'. . . 'Second, a client only waives the privilege by expressly or impliedly injecting his attorney's advice into the case.'. . . Under this analysis, '[t]he key factor is reliance of the client upon the advice of his attorney.'. . . 'Finally, a client only waives the privilege to the extent necessary to reveal the advice of counsel he placed at issue.'" (Bertelsen, 796 N.W.2d at 703); "The law in South Dakota, however, only requires some affirmative act, not necessarily an express claim of the advice-of-counsel defense, to waive the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-30 Federal SD B 1/14

Chapter: 29.404
Case Name: Gefre v. Davis Wright Tremaine, 306 P.3d 1264, 1279-80, 1280 (Alaska 2013)
(applying the "at issue" doctrine; holding that shareholders suing a company director and the company's law firm had placed their ignorance "at issue" by claiming that they were unaware of the defendants' wrongful conduct; requiring the shareholders to produce communications with the lawyer representing them at the time they claimed ignorance; "The Shareholders argue the court applied the incorrect standard for finding a waiver of the attorney-client privilege. The Shareholders suggest the court should have adopted the waiver test established in Rhone-Poulenc Rorer Inc. v. Home Indemnity Co., [32 F.3d 851 (3d Cir. 1994),] instead of the test established in Hearn v. Rhay [68 F.R.D. 574 (E.D. Wash. 1975)]."; "Because we continue to believe fairness to the opposing party should be included in the implied waiver analysis, we adopt the Hearn test."; "Applying the Hearn test, we conclude the superior court did not err in finding the Shareholders placed their communications with Keene at issue by raising the discovery rule and estoppel in response to DWT's statutes-of-limitations defenses. The communications are material to the defenses because the Shareholders claimed they had no knowledge, either direct or constructive, of DWT's identity or role with regard to Steffen's conduct. The Shareholders cannot be permitted to thrust their lack of knowledge into the litigation while simultaneously retaining the attorney-client privilege to frustrate proof of knowledge that negates the very foundation necessary to their positions. The superior court correctly found fairness dictated that DWT be permitted to discover from Gefre, Beck, and Keene [plaintiff's lawyer] what they knew about Steffen [president of company he formed with plaintiffs] and DWT.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State AK B 4/14

Chapter: 29.404
Case Name: Shaheen v. Wellpoint Cos., 490 F. App'x 552, 557 (4th Cir. 2012)
(rejecting the "at issue" doctrine in an employment wrongful termination case; "WellPoint never asserted advice of counsel as an affirmative defense. Indeed, neither Ingle nor Lohmeyer indicated that they relied on advice of counsel in terminating Shaheen, or in making the alleged defamatory statements. Thus, the 'at issue' doctrine does not apply. See, e.g., Rhone-Poulenc Rorer Inc. v. Home Indemn. Co., 32 F.3d 851, 863 (3d Cir. 1994) ('Advice is not in issue merely because it is relevant . . . . The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication.'); Billings [v. Stonewall Jackson Hosp.], 635 F. Supp. 2d [442,] 446 [(W.D. Va. 2009)] ('[Defendant] does not assert the defense of advice of counsel in this case; thus, the narrow 'at-issue' exception does not apply.'); Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wa. 1975) (noting that cases finding a waiver of attorney-client privilege share a 'common denominator' in that 'the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit').")

Case Date Jurisdiction State Cite Checked
2012-08-03 Federal B 7/16

Chapter: 29.404
Case Name: Botkin v. Donegal Mut. Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *13, *14, *18-19, *20 (W.D. Va. June 15, 2011)
(analyzing privilege and work product issues in a first party insurance case; after citing Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994); analyzing the "at issue" doctrine under the Hearn standard; "The court in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), set forth a framework for determining whether the party asserting a privilege has impliedly waived it through his own affirmative conduct. Courts must determine whether: a) the assertion of privilege was the result of some affirmative act, such as filing suit, by the asserting party; b) through this act, the asserting party put the protected information at issue by making it relevant to the case; and c) application of the privilege would have denied the opposing party access to information vital to his defense. Id. at 581. Although the Hearn framework has not been met with universal acceptance, it remains the most widely accepted approach."; "Plaintiffs . . . contend that Stacey Callahan's deposition testimony, in which she acknowledged that Donegal relied on the advice of counsel in denying the Botkins' claim, is enough to constitute waiver. Stacey Callahan testified as follows: '(Q) Did Mr. Roswell [of Niles Barton], anything that Mr. Roswell or his opinion or anything else -- I'm not asking what it was. I'm just asking you, did that have anything to do with Donegal's decision to deny coverage?' (A) The Niles Barton firm had given us the coverage analysis, and based on their analysis -- partially based on their analysis, we denied coverage.'" (internal citation omitted); "Plaintiffs have offered no evidence other than Stacey Callahan's deposition testimony to suggest that Donegal interjected the advice of counsel into this litigation. And Callaghan's response to a question about whether Niles Barton's advice factored into Donegal's decision to deny coverage is not enough to show that Donegal put its communications with counsel at issue. . . . The mere fact that Donegal relied on the opinion of coverage counsel in denying plaintiffs' claim does not waive the attorney-client privilege. Certainly, when Donegal enlisted the assistance of Niles Barton in this matter, it intended to rely on counsel's advice. There would be little point in retaining coverage counsel to issue an opinion if a party did not intend to rely on it. Likewise, if reliance always gave rise to waiver in this circumstance, no one would seek coverage counsel's advice."; "Donegal has not used the attorney-client privilege as a sword in this litigation. . . . Donegal's reliance on coverage counsel's opinion, without more, is not sufficient enough to show it put the advice of counsel 'at issue.' Thus, the first Hearn factor has not been met.")

Case Date Jurisdiction State Cite Checked
2011-06-15 Federal VA B 7/16

Chapter: 29.404
Case Name:


Case Date Jurisdiction State Cite Checked

Chapter: 29.502
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 168187, at *11, *12 (S.D.N.Y. Nov. 21, 2013)
("Courts in this Circuit often rely on the test enunciated in Hearn v. Rhay [68 F.R.D. 574 (E.D. Wash. 1975)] in determining whether a party impliedly has waived a privilege claim."; "Thus, implied waiver may be found where a party puts a claim or defense at issue that in fairness requires disclosure of privileged material, whether or not the privileged material explicitly was relied upon in making the claim or defense.")

Case Date Jurisdiction State Cite Checked
2013-11-21 Federal NY B 5/14

Chapter: 29.502
Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *20 n.3 (E.D. Va. Feb. 14, 2013)
(noting the Western District of Virginia had cited the Hearn [Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)] case in Botkin v. Donegal Mut. Ins. Co., Civ. A. No. 5:10cv000772011, U.S. Dist. LEXIS 63871, at *6 (W.D. Va. June 15, 2011), while the Fourth Circuit had recently cited with approval the Rhone Poulenc [Rhone Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir.1994)] standard; "The Fourth Circuit recently cited the Rhone Poulenc Rorer decision with approval, in an unreported opinion. Shaheen v. WellPoint Cos, Inc., 2012 U.S. App. LEXIS 16236, 2012 WL 3140306 (4th Cir. 2012).")

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

Chapter: 29.503
Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)
(ultimately not deciding whether a deponent's one word deposition answers triggered an at issue waiver; "We turn now to the question of at-issue waiver. While our supreme court has recognized some implied waivers of the attorney-client privilege . . . it has not yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that federal caselaw has recognized an at-issue waiver, but the court declined to address the issue because it was not necessary in the case before it. . . . Nor has this court recognized an at-issue waiver."; "Truscott was compelled in a deposition -- in a case in which she is a defendant -- to answer respondents' questions as to whether she relied on the advice of her counsel. She gave one-word responses to the questions. These compelled responses are not affirmative steps taken by a client to place privileged communications 'at issue.' . . . Respondents have cited no case where a defendant's answer to such a question in a deposition effects an implied waiver of the attorney-client privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants in depositions if they relied on the advice of their counsel in taking an action. Defendants who wisely sought legal advice before terminating an employee, publishing a news article, or taking any other number of actions later giving rise to a claim where their state of mind is at issue would find their privileged communications subject to discovery simply because they truthfully responded in a deposition that they relied on the advice of counsel. Such an implied waiver could chill parties from being candid with their counsel or even seeking legal advice."; "Truscott insists that she has no plans to assert a reliance-on-counsel defense in this case. She made the same assertion to the district court in her memorandum of law supporting her motion to quash. We agree with Truscott that she has not raised a reliance-on-counsel defense through the generic statement in her answer that respondents' claims 'may be barred . . . by any or all of the affirmative defenses contemplated by the Minnesota Rules of Civil Procedure.'. . . If Truscott attempts to raise the defense, respondents may seek appropriate relief and the district court may consider whether such an affirmative step implies a waiver of the attorney-client privilege. At present, however, Truscott has not affirmatively asserted the reliance-on-counsel defense and has not by implication waived the attorney-client privilege.")

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

key case


Chapter: 29.503
Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)
(ultimately not deciding whether a deponent's one word deposition answers triggered an at issue waiver; "We turn now to the question of at-issue waiver. While our supreme court has recognized some implied waivers of the attorney-client privilege . . . It has not yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that federal caselaw has recognized an at-issue waiver, but the court declined to address the issue because it was not necessary in the case before it. . . . Nor has this court recognized an at-issue waiver."; "Truscott was compelled in a deposition -- in a case in which she is a defendant -- to answer respondents' questions as to whether she relied on the advice of her counsel. She gave one-word responses to the questions. These compelled responses are not affirmative steps taken by a client to place privileged communications 'at issue.' . . . Respondents have cited no case where a defendant's answer to such a question in a deposition effects an implied waiver of the attorney-client privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants in depositions if they relied on the advice of their counsel in taking an action. Defendants who wisely sought legal advice before terminating an employee, publishing a news article, or taking any other number of actions later giving rise to a claim where their state of mind is at issue would find their privileged communications subject to discovery simply because they truthfully responded in a deposition that they relied on the advice of counsel. Such an implied waiver could chill parties from being candid with their counsel or even seeking legal advice."; "Truscott insists that she has no plans to assert a reliance-on-counsel defense in this case. She made the same assertion to the district court in her memorandum of law supporting her motion to quash. We agree with Truscott that she has not raised a reliance-on-counsel defense through the generic statement in her answer that respondents' claims 'may be barred . . . By any or all of the affirmative defenses contemplated by the Minnesota Rules of Civil Procedure.'. . . If Truscott attempts to raise the defense, respondents may seek appropriate relief and the district court may consider whether such an affirmative step implies a waiver of the attorney-client privilege. At present, however, Truscott has not affirmatively asserted the reliance-on-counsel defense and has not by implication waived the attorney-client privilege.")

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

key case


Chapter: 29.503
Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *15 (C.D. Cal. Sept. 11, 2014)
("I have not found any cases applying the general California standard for 'at issue' waiver to Chase's type of waiver (which is applicable in this case): where the plaintiff has made a claim that requires examination of attorney-client communications for truthful resolution. Thus, this Court is without California case law guidance as to (i) whether California 'at issue' waiver indeed extends beyond situations where the attorneys' advice or mental state is at issue (which is at least suggested by the open wording of the general standard) and (ii) if so, how to apply California's general standard to these particular facts.")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal CA

Chapter: 29.503
Case Name: Ariz. Dream Act Coalition v. Brewer, No. CV-12-02546-PHX-DGC, 2014 U.S. Dist. LEXIS 5802, at *16, *17 (D. Ariz. Jan. 15, 2014)
(rejecting the Hearn (Hearn v. Rhay, 68 F.R.D. 574 (1975)) doctrine, and instead following the Rhone-Poulenc doctrine; "Other courts disagree with the broad scope of waiver articulated in Hearn. See, e.g., In re Cnty. of Erie, 546 F.3d 222, 229 (2d Cir. 2008). The Third Circuit, for example, reviewed the holding in Hearn and similar cases and characterized them as extending 'waiver of the privilege to cases in which the client's state of mind may be in issue in the litigation,' rather than limiting waiver to situations where a party affirmatively asserts that advice of counsel justified his or her actions. Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994)."; "The Court concludes that the reasoning in Rhone-Poulenc and Erie is truer to the intent and nature of the attorney-client privilege than Hearn.")

Case Date Jurisdiction State Cite Checked
2014-01-15 Federal AZ B 6/14

Chapter: 29.503
Case Name: Ariz. Dream Act Coalition v. Brewer, No. CV-12-02546-PHX-DGC, 2014 U.S. Dist. LEXIS 5802, at *15 (D. Ariz. Jan. 15, 2014)
(rejecting the Hearn doctrine, and instead following the Rhone-Poulenc (Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994) doctrine; "Courts outside the Ninth Circuit have taken a variety approaches to this issue. At one end of the spectrum, the Eastern District of Washington in Hearn v. Rhay, 68 F.R.D. 574 (1975), took a broad view of waiver.")

Case Date Jurisdiction State Cite Checked
2014-01-15 Federal AZ B 6/14

Chapter: 29.503
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 168187, at *11, *12 (S.D.N.Y. Nov. 21, 2013)
("Courts in this Circuit often rely on the test enunciated in Hearn v. Rhay [68 F.R.D. 574 (E.D. Wash. 1975)] in determining whether a party impliedly has waived a privilege claim."; "Thus, implied waiver may be found where a party puts a claim or defense at issue that in fairness requires disclosure of privileged material, whether or not the privileged material explicitly was relied upon in making the claim or defense.")

Case Date Jurisdiction State Cite Checked
2013-11-21 Federal NY B 5/14

Chapter: 29.503
Case Name: Hurley v. State Farm Mut. Auto. Ins. Co., No. Civ. 10-4165-KES, 2013 U.S. Dist. LEXIS 12558, at *5, *6 (D.S.D. Jan. 30, 2013)
(applying a modified version of Hearn based on the earlier case of Bertelsen v. Allstate Ins. Co., 796 N.W.2d 685, 701 (S.D. 2011); "After determining that Hearn provides insufficient guidance on its own, the Supreme Court added additional considerations to the Hearn analysis. 'First, the analysis . . . should begin with a presumption in favor of preserving the privilege.'. . . 'Second, a client only waives the privilege by expressly or impliedly injecting his attorney's advice into the case.'. . . Under this analysis, '[t]he key factor is reliance of the client upon the advice of his attorney.'. . . 'Finally, a client only waives the privilege to the extent necessary to reveal the advice of counsel he placed at issue.'" (Bertelsen, 796 N.W.2d at 703); "The law in South Dakota, however, only requires some affirmative act, not necessarily an express claim of the advice-of-counsel defense, to waive the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-30 Federal SD B 1/14

Chapter: 29.504
Case Name: Morris v. Spectra Energy Partners (DE) GP, LP, Civ. A. No. 12110-VCG, 2018 Del. Ch. LEXIS 146 (Del. Ch. May 7, 2018)
(analyzing a dispute in a master limited partnership, involving the general partner's transfer of assets to the principal; holding that the at issue doctrine did not apply because the plaintiff rather than the defendant raised the key issue; also holding that the Garner fiduciary exception did not apply to limited partnerships; "Here, by contrast, SEP GP did not raise the issue that led the Plaintiff to seek discovery regarding the Committee's beliefs about 'Reduced GP Cash Flow.' Instead, the Plaintiff is simply seeking discovery relevant to allegations he himself advanced in his Complaint. That does not give him carte blanche to invade the attorney-client privilege as to discovery material that bears on those allegations. Thus, JP Morgan [JP Morgan Chase & Co. v. American Century Cos., Inc., 2013 Del. Ch. LEXIS 101, 2013 WL 1668393 (Del. Ch. Apr. 18, 2013)] does not help the Plaintiff, and the at-issue exception is inapplicable.")

Case Date Jurisdiction State Cite Checked
2018-05-07 State DE

Chapter: 29.504
Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)
("The next 'issue injection' issue to consider is whether Defendants have expressly waived the attorney-client privilege by asserting certain affirmative defenses. Specifically, Defendants have asserted good faith affirmative defenses . . . and they have asserted that Plaintiffs were exempt from the FLSA's minimum wage and overtime compensation requirements . . . . But importantly, Defendants have never expressly stated that they are relying upon advice of counsel to support any defense in this case. An express reliance upon advice of counsel to support Defendants' affirmative defenses would waive the attorney-client privilege as to attorney-client communications related to such advice. However, Defendants are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case. In fact, they have specifically stated that they are not going to adduce any evidence or testimony about any advice of counsel Defendants received."; "The above cited relevant case law, when read carefully as a whole, puts cases into three general categories. First, the case law is in agreement that a mere denial of willfulness does not amount to issue injection which would impliedly waive the attorney-client privilege. Second, asserting an affirmative defense (such as good faith in an FLSA case) that explicitly states that a defendant relied on the advice of counsel, or refers to advice or consultation with counsel to support such affirmative defense, does amount to issue injection sufficient to waive the attorney-client privilege. Third, the more nuanced situation, which is similar to what we have here, is whether issue injection sufficient to waive the attorney-client privilege occurs when a defendant in an FLSA case asserts a good faith (or outside sales exemption) affirmative defense, but does not explicitly mention reliance on advice of counsel in that affirmative defense and further represents that it does not intend to rely on counsel's advice to support such defense. Courts seem to require something additional to find issue injection in this third category of cases.")

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

key case


Chapter: 29.504
Case Name: (United States v. Kmart Corp., Case No. 12-CV-881-NJR-RJD, 2017 U.S. Dist. LEXIS 110613 (S.D. Ill. July 17, 2017)
(finding that defendant's denial of scienter did not trigger an at issue waiver; "Relator asserts that these statements, indicating Kmart employees acted on the 'good faith' belief their conduct was within the bounds of applicable regulations, implicitly waives the attorney-client privilege because the truthful resolution of these statements requires the examination of confidential communications."; "In response, Kmart avers it did not place its own attorney-client communications 'at issue' in this case merely by denying scienter has been proven."; "[T]he Court concludes that Kmart has not waived the attorney-client privilege. As an initial matter, more than three years ago, Magistrate Judge Frazier found no waiver of the attorney-client privilege . . . . Magistrate Judge Frazier stated that the privilege would not be waived unless Kmart affirmatively adduced evidence at trial indicating a Kmart employee relied on legal advice . . . . Magistrate Judge Frazier also noted that if Kmart did not intend to raise such a defense, then no witness would be allowed, under anyone's questioning, to say they 'ran it by counsel.'. . . Since that day, Kmart has continued to affirmatively disavow a reliance on counsel defense. In its response to Relator's motion for summary judgment on scienter, Kmart did not raise any matter outside the scope of Relator's prima facie case, and it did not attempt to prove any defense by referring to attorney-client communications. Kmart merely denied Relator's allegations that it had the requisite knowledge to establish the scienter element of Relator's case."; "Kmart is not wielding any swords in this case. Kmart has assured the Court on multiple occasions that it will not assert a good faith reliance on counsel defense at trial. It has not affirmatively placed its communications with counsel at issue in the case.")

Case Date Jurisdiction State Cite Checked
2017-07-17 Federal IL

Chapter: 29.504
Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017)
May 17, 2017 (PRIVILEGE POINT)

"Privilege Implications of an Explicit or Implicit 'Advice of Counsel' Defense: Part II'"

Last week's Privilege Point described the normal broad subject matter waiver triggered by litigants' explicit defensive reliance on legal advice. Litigants' implicit reliance can have the same effect.

In Maar v. Beall's, Inc., FLSA defendant Beall's contended that any employee miscalculations were "not willful, and made in a good faith attempt to comply with the law." Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017). Answering interrogatories about one of its defenses, Beall's noted that it "'consulted with legal counsel regarding such classification.'" Id. at *5 (emphasis and internal citation omitted). The court concluded that Beall's waived its privilege protection "by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification." Id. at *11. The court even ordered Beall's to produce its lawyer to be deposed "concerning the substance of advice the company received from legal counsel as to the classification of Area Managers." Id. at *12. Beall's argued that the court's draconian standard would give FLSA plaintiffs "automatic access" to companies' legal advice whenever they assert a "good faith" defense. Id. at *11-12. The court rejected what it called Beall's "dire pronouncement" -- explaining that companies "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." Id. at *12 (citation omitted). The court did not explain how that approach would work.

Corporations and their lawyers must remember the scope of any explicit "advice of counsel" defense, and the less obvious danger of implicitly relying on their good faith attempt to comply with the law.

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal FL
Comment:

key case


Chapter: 29.504
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 Jurisdiction State Cite Checked
2016-12-06 Federal KS

Chapter: 29.504
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 Jurisdiction State Cite Checked
2016-12-06 Federal KS

Chapter: 29.504
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("The mere desire to test the veracity of a discovery response is an insufficient justification to burst through the attorney-client privilege, if it is applicable here, when there is no indication that the response is false or questionable. There also is no information in the record at this juncture as to whether additional, non-privileged information, whether already produced or not yet provided, would not be sufficient to clear up any issues with the failure rate about which Plaintiffs may have legitimate concerns. Plaintiffs also have not identified any evidence indicating that Fluidmaster has manipulated the data it has provided, and speculation is not sufficient to show that disclosure is 'essential for a fair adjudication.'")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 29.504
Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)
(holding that plaintiff had not triggered an at issue waiver by claiming that the defendant had defrauded her; "A party places the communications at issue by: (1) engaging in some affirmative act for her own benefit; (2) making the protected information relevant to the case; and (3) applying the privilege denies the opposing party access to information vital to a defense.")

Case Date Jurisdiction State Cite Checked
2016-09-19 Federal NE

Chapter: 29.504
Case Name: Lillieroos v. Starr Indemnity & Liability Co., Case No. CIV-12-1359-D, 2016 U.S. Dist. LEXIS 14876 (W.D. Okla. Feb. 8, 2016)
(finding that defendant had not triggered an "at issue" waiver while seeking indemnification based on an earlier settlement agreement; "Upon review of the parties' submissions, including the documents for which the attorney-client privilege is invoked, the Court finds that all of the so-called Hearn factors militate against waiver, and that CBP's motion should be denied. As previously noted by the Court, the first two factors, assertion of the privilege as the result of an affirmative act, which renders the protected information at issue, are crucial requirements. . . . Simply bringing a claim for indemnification, and mere relevance of the protected information, are not enough. . . . Here, in seeking indemnification Starr did not inject advice of its counsel into the case, nor did it rely on advice of counsel to supply an element of its indemnification claim. Starr has affirmatively asserted that it will not rely on the advice of counsel in attempting to meet its burden at trial to establish the reasonableness of the settlement.")

Case Date Jurisdiction State Cite Checked
2016-02-08 Federal OK

Chapter: 29.504
Case Name: UUSI, LLC v. United States, No. 12-216C, 2015 U.S. Claims LEXIS 545 (Fed. Cl. May 5, 2015)
(adopting the Hearn approach to the "at issue" doctrine; concluding that a laches defense triggered an at issue waiver; "The 'at-issue' waiver applies where the privilege holder makes assertions, the truth of which can only be assessed by the examination of the privileged communications.")

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

Chapter: 29.504
Case Name: TP Orthodontics, Inc. v. Kesling, No. 46S03-1405-MI-337, 2014 Ind. LEXIS 715, at *23-24 (Ind. Sept. 3, 2014)
(analyzing privilege protection for a report prepared by a special committee in a derivative case; holding that any opinion work product deserved absolute protection, and that a company did not trigger an "at issue" waiver by relying on the report; remanding for an in camera review to assess privilege claims; "Also unpersuasive is the sibling shareholders' claim that TPO put good faith at issue in its motion to dismiss and thus implicitly waived any privilege contained within the SLC report. Though the sibling shareholders are correct to note that TPO stated 'the filing of TPO's Motion to Dismiss puts only two issues "at issue." They are the disinterestedness of the SLC and the good faith nature of the SLC's investigation' . . . , this can hardly be viewed as a dispositive concession where the siblings are trying to force TPO to waive privilege. . . . Ind. Code § 23-1-32-4(C) presumes the SLC's determination, if made following a good faith investigation, is conclusive. Unlike the Court of Appeals, we do not think that the circumstances before us constitute another instance where privilege is implicitly waived. . . . [I]t is the sibling shareholders who put the SLC's good faith, or lack thereof, at issue by filing a derivative suit.")

Case Date Jurisdiction State Cite Checked
2014-09-03 State IN

Chapter: 29.504
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; "Plaintiffs argue that it is irrelevant whether Defendants intend to themselves defend by stating that they were relying on Littman's advice because, according to Plaintiffs, their complaint is such that Defendants cannot avoid the question of good faith. . . . Plaintiffs argue that their action against Defendants raises the question, whether Defendants like it or not, of whether 'Defendants acted in good faith and in accordance with their fiduciary duties.' Id. Assuming, for the sake of argument, that Plaintiffs are correct that their complaint would require Defendants to discuss their reliance upon Littman's counsel in defending themselves, Plaintiffs' argument is unavailing. As the court held in Chase Manhattan Bank N.A. v. Drysdale Sec. Corp., 587 F. Supp. 57, 58 (S.D.N.Y. 1984), a party cannot effectively force its adversary to waive its privilege implicitly with a pleading that brought the adversary's knowledge and good faith into issue, because '[t]hat would give an adversary who is a skillful pleader the ability to render the privilege a nullity.'")

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

Chapter: 29.504
Case Name: Barrack v. Pailet, Meunier & LeBlanc, L.L.P., Civ. A. No. 12-2716 SECTION "B" (2), 2014 U.S. Dist. LEXIS 8331 (E.D. La. Jan. 23, 2014)
(finding the "at issue" doctrine inapplicable because there was no shifting of the burden of proof on the statute of limitations issue to the plaintiff)

Case Date Jurisdiction State Cite Checked
2014-01-23 Federal LA B 6/14

Chapter: 29.504
Case Name: Barrack v. Pailet, Meunier & LeBlanc, L.L.P., Civ. A. No. 12-2716 SECTION "B" (2), 2014 U.S. Dist. LEXIS 8331, at *21 (E.D. La. Jan. 23, 2014)
(finding the "at issue" doctrine inapplicable; "The Barrack Parties' mere denial of the Pailet Parties' affirmative defense does not mean that the Barrack Parties have committed themselves to a course of action that will require them to disclose privileged communications.")

Case Date Jurisdiction State Cite Checked
2014-01-23 Federal LA B 6/14

Chapter: 29.504
Case Name: TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985 (Ind. 2014)
October 29, 2014 (PRIVILEGE POINT)

“Can Companies Rely on a Special Litigation Committee Report to Dismiss Derivative Cases — Without Disclosing the Report?”

When shareholders file a derivative case, companies often form a special litigation committee to investigate the alleged wrongdoing. If the report exonerates management, the company then relies on the report to seek the derivative case's dismissal. If the plaintiffs seek access to the report, can the company withhold privileged or work product-protected portions?

In TP Orthodontics, Inc. v. Kesling, the company redacted 120 pages of a special litigation committee's 140-page report before producing it to the derivative plaintiffs. The trial court granted plaintiffs' motion to compel production of the entire report. The appellate court affirmed — but the Supreme Court reversed. 15 N.E.3d 985 (Ind. 2014). The Court upheld the company's redaction of any opinion work product, which deserves absolute protection under Indiana law. The Court also rejected the derivative plaintiffs' argument that the company had put the special litigation committee's good faith "at issue" and thus impliedly waived its attorney-client privilege. The Court noted that "it is the . . . shareholders who put the [special litigation committee's] good faith, or lack thereof, at issue by filing a derivative suit." Id. at 966. The Court ultimately ordered an in camera review to gauge the company's protection claims.

Although litigants' reliance on privileged communications to gain an advantage in litigation normally creates a recipe for an implied waiver, most courts conduct a different analysis in the derivative context.

Case Date Jurisdiction State Cite Checked
2014-01-01 State IN
Comment:

key case


Chapter: 29.504
Case Name: JP Morgan Chase & Co. v. Am. Century Cos., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 265, at *4-5 (Del Ch. Oct. 31, 2013)
(analyzing the at issue doctrine; "It should be noted that American Century is not deemed to have waived its attorney-client privilege to its valuation of the Arbitration, as guided by its attorneys, because JPMorgan was deemed to have waived its attorney-client privilege with respect to its valuation of the Arbitration. If that were the proper approach, one party could put a privileged matter at issue, be deemed to have waived its attorney-client privilege, and, through its own machinations, find a way to pierce the attorney-client privilege held by an adverse party. There is a certain element of fairness that comes with both sides having to provide comparable information, but the attorney-client privilege cannot be avoided so easily."; ultimately finding a narrow scope of waiver)

Case Date Jurisdiction State Cite Checked
2013-10-31 State DE B 5/14

Chapter: 29.504
Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 23, at *15 (Del. Ch. Sept. 18, 2013)
("The privilege is not unqualified, however, and may be waived when a party injects either (1) the privileged communications themselves into litigation, or (2) an issue into the litigation, the truthful resolution of which requires an examination of confidential communications. This 'at issue' exception is based on principles of waiver and fairness, and operates to prevent a party from using privilege as both a 'shield' during discovery and a 'sword' through the remainder of the litigation." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-09-18 State DE B 4/14

Chapter: 29.504
Case Name: Phelps v. MC Commc'ns, Inc., No. 2:11-cv-00423-PMP-VCF, 2013 U.S. Dist. LEXIS 101965, at *42-43 (D. Nev. July 22, 2013)
(finding that a defendant asserting its good faith under the Fair Labor Standards Act triggered a limited at issue waiver; "Defendants stress to the court that their affirmative defenses are not based on attorney-client communications. . . . Defendants contend that '[n]umerous courts have recognized that the affirmative defenses of good faith and lack willfulness under the FLSA [Fair Labor Standards Act] may be established based on information other than the advice of counsel,' and that 'nothing in the text of the FLSA requires that these defenses be based on advice of counsel. See 29 U.S.C. §§ 255,260.' . . . The court in Harter v. Univ. of Indianapolis, 5 F.Supp.2d 657, 664 (S.D. Ind. 1998), held that '[t]he better-reasoned cases hold, however, that when a client files a lawsuit in which his or her state of mind (such as good faith or intent) may be relevant, the client does not implicitly waive the attorney-client privilege as to all relevant communications unless the client relies specifically on advice of counsel to support a claim or defense.' Defendants argue that this seems to be the majority view, and cite several cases for this position." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-07-22 Federal NV B 4/14

Chapter: 29.504
Case Name: Phelps v. MC Commc'ns, Inc., No. 2:11-cv-00423-PMP-VCF, 2013 U.S. Dist. LEXIS 101965, at *61 (D. Nev. July 22, 2013)
(finding that a defendant asserting its good faith under the Fair Labor Standards Act triggered a limited at issue waiver; "The court finds that 'the truth of [defendants' 9th and 11th affirmative defenses] can only be assessed by examination' of communications demonstrating defendants' knowledge of the legalities of its alleged actions and of its obligations relating thereto under the FLSA [Fair Labor Standards Act], and that the 'at issue' exception applies to these communications outlined above only." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-07-22 Federal NV B 4/14

Chapter: 29.504
Case Name: JPMorgan Chase & Co. v. Am. Century Co., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 101, at *12 (Del. Ch. Apr. 18, 2013)
("The at-issue waiver applies when: '(1) the party injects the communications themselves into the litigation, or (2) the party injects an issue into the litigation, the truthful resolution of which requires an examination of the confidential communications.' . . . 'Application of the at-issue exception is guided by considerations of "fairness and discouraging use of the attorney-client privilege as a litigation weapon."'" (citations omitted))

Case Date Jurisdiction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 29.504
Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *6-7, *7-8, *8, *10, *11, *15-16 (Del. Ch. Apr. 10, 2013)
("Plaintiffs base their contentions on several assertions made by the Comverge Defendants. These assertions include that: (1) '[t]he Board discussed with its legal advisors what action, if any, it could and/or should take relative to HIG's actions'; (2) 'the Committee and Board were exceptionally active and well informed. . . . The Board received advice throughout this period from five different teams of financial advisors, and the Committee received advice from three different financial advisors and three law firms'; (3) 'the Committee, the full Board, and management, with the advice of outside counsel, actively considered the question of whether to sue HIG for allegedly breaching the NDA'; and (4) '[the Board] sought legal advice from board and company counsel on multiple occasions.'" (internal citation omitted); analyzing what the court called "Prong 1: Injecting privileged communications into the litigation."; "The first prong of the at issue exemption is whether the party injected privileged lawyer--client communications into the litigation. The first prong usually applies when a party asserts lawyer-client privilege to protect a communication and then later seeks to admit that same communication as evidence."; "Here, the Comverge Defendants have not injected or sought to inject any specific attorney-client communications into the litigation. Questions regarding the existence or nonexistence of such communications were raised by Plaintiffs and not the Comverge Defendants. Therefore, the first prong of the 'at issue' exemption does not apply to the circumstances of this case. The at issue exemption, however, still would apply if Plaintiffs prove the second prong."; analyzing what the court called "Prong 2: 'Injecting an issue into the litigation, the truthful resolution of which requires an examination of confidential communications"; "The Comverge Defendants are correct that it was Plaintiffs who first raised the issue of whether the Board solicited the advice of legal counsel. Moreover, the examination of privileged communications is not required for the truthful resolution of this litigation because the Comverge Defendants merely seek to rely on the fact that they sought and obtained legal advice rather than that they relied on the substance of privileged communications to prove that the Board was fully informed. Thus, the Comverge Defendants did not 'inequitably us[e] attorney-client privilege as a sword' or inject a privilege-laden issue into the litigation." (citation and footnote omitted); "[A] number of cases have held that it is the existence of legal advice that is material to the question of whether the board acted with due care, not the substance of that advice."; "[T]he Comverge Defendants have not injected a privilege-laden issue into this litigation, attempted to rely on the substance of a privileged communication, or partially disclosed such a communication. Indeed, a close examination of the Comverge Defendants' statements reveals that they have adhered fairly assiduously to assertions that the Board sought, obtained, received, or considered the advice of counsel. Those statements, however, do not go as far as to say that the Comverge Defendants acted in accordance with the legal advice they received or that those Defendants cannot be liable because they relied on some specific advice of legal counsel. Instead, the information the Comverge Defendants have disclosed in this action regarding any privileged communications is summary in nature and comparable to what would be disclosed in a privilege log. I therefore reject Plaintiffs' argument that the Comverge Defendants waived the attorney--client privilege through the at issue exception." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-04-10 State DE B 3/14

Chapter: 29.504
Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *5 (Del. Ch. Apr. 10, 2013)
(in a derivative case, concluding that defendants had not triggered an "at issue" waiver; "A party places lawyer-client communications at issue and waives lawyer-client privilege when '(1) a party injects the privileged communications themselves into the litigation, or (2) a party injects an issue into the litigation, the truthful resolution of which requires an examination of confidential communications.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-04-10 State DE B 3/14

Chapter: 29.504
Case Name: Ivins v. Corr. Corp. of Am., 291 F.R.D. 517, 525 (D. Mont. 2013)
("[T]he Court concludes that CCA did not waive attorney-client privilege, as Ivins argues, by placing employment actions at issue. Reviewing the pleadings, the Court concludes that it was Ivins, and not CCA, who raised the employment actions in his Complaint, as follows: (1) that CCA failed to follow its own policies and procedures in disciplining Ivins in January 2011 . . .; (2) that CCA terminated Ivins without good cause . . .; and (3) that there existed alleged problems with the grievance process in which Ivins participated . . . . CCA's Answer and discovery responses merely respond to issues raised by Ivins in his Complaint and do not raise new issues that operate to waive CCA's reliance on attorney-client privilege or work product protection." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal MT B 4/14

Chapter: 29.504
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *13 (W.D. Va. June 15, 2011)
("The court in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), set forth a framework for determining whether the party asserting a privilege has impliedly waived it through his own affirmative conduct. Courts must determine whether: a) the assertion of privilege was the result of some affirmative act, such as filing suit, by the asserting party; b) through this act, the asserting party put the protected information at issue by making it relevant to the case; and c) application of the privilege would have denied the opposing party access to information vital to his defense. Id. at 581. Although the Hearn framework has not been met with universal acceptance, it remains the most widely accepted approach. Metric Constructors, Inc. v. The Bank of Tokyo- Mitsubishi, Ltd., No. 5:97-CV-369BR1, 1998 U.S. Dist. LEXIS 18428, 1998 WL 1742589, at *6 n.6 (E.D.N.C. Sept. 28, 1998); see also City of Myrtle Beach v. United Nat'l Ins. Co., No. 4:08-1183-TLW-SVH, 2010 U.S. Dist. LEXIS 89725, 2010 WL 3420044 (D.S.C. Aug. 27, 2010).")

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

Chapter: 29.504
Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 446 (W.D. Va. 2009)
("Nor has Carilion [defendant] 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 Jurisdiction State Cite Checked
2009-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 29.504
Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *12-13 (W.D. Va. Dec. 8, 2006)
("Allstate's seventh affirmative says no more than that it's [sic] actions were reasonable, appropriate, and legal. Such a general pleading is insufficient to set forth a cognizable 'advice of counsel' defense and insufficient even to inject a new factual defense. It does no more than deny the plaintiff's principle allegations." See Chicago Meat Processors, Inc. V. Mid-Century Ins. Co., 1996 U.S.Dist. LEXIS 4495, 7-8 (NDIll.).")

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

Chapter: 29.505
Case Name: In re Itron, Inc., No. 17-60733, 2018 U.S. App. LEXIS 4136 (5th Cir. App. Feb. 21, 2018)
(analyzing the implied waiver and at issue implications of a corporate buyer who settled a claim by a third party and then sued a corporate seller for negligent misrepresentation; explaining that the corporate buyer sought recovery from the seller of the settlement amount and litigation costs; holding that the reasonableness of the settlement involved an objective standard, and therefore did not trigger an implied waiver or at issue waiver; "[A] client waives the privilege by affirmatively relying on attorney-client communications to support an element of a legal claim or defense -- thereby putting those communications 'at issue' in the case."; "This opinion does not concern the 'anticipatory waiver' version of this rule, which finds waiver 'when a privilege-holder pleads a claim or a defense in such a way that he will be forced inevitably to draw upon a privileged communication at trial in order to prevail,' Smith v. Kavanaugh, Pierson & Talley, 513 So. 2d 1138, 1145 (La. 1987), and which no party has invoked."; "Defendants would have us broaden the Jackson Medical [Jackson Medical Clinic for Women, P.A. v. Moore, 836 So. 2d 767, 773 (Miss. 2003)] rule such that waiver occurs whenever the client files a lawsuit to which privileged communications, if disclosed, might prove 'highly relevant' -- even if the client never relies on or uses those communications to make her legal case. The magistrate judge embraced a more expansive rule, requiring only simple relevance. These expansions of Jackson Medical find no support in the Mississippi Rules of Evidence, see Miss. R. Evid. 502(d), or any Mississippi caselaw. And given Jackson Medical and other persuasive authorities, we conclude this is not the law the Mississippi Supreme Court would apply."; "Our circuit and others agree that '[r]elevance is not the standard for determining whether or not evidence should be protected from disclosure as privileged, . . . even if one might conclude the facts to be disclosed are vital, highly probative, directly relevant or even go to the heart of an issue.' Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994) (emphasis added)."; "Defendants fall back on dicta in an out-of-circuit federal district court opinion, decided in 1975, which no reported Mississippi case has cited. The case is Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)."; "Here, Defendants ask us to apply an interpretation of Hearn that would require only that the privileged material have high relevance to case. But as discussed above, that view has no basis in Mississippi law, contradicts prevailing notions of waiver, and would effectively nullify the privilege."; "Even accepting for the sake of argument that the privilege takes flight whenever privileged communications become 'highly relevant' to an adversary's defense -- which, we emphasize, it does not -- Defendants still fail to show how Itron's privileged communications meet that standard."; "Defendants' primary theory of relevance apparently concerns whether Itron took reasonable steps to mitigate its damages. According to Itron's complaint, Defendants' negligent misrepresentations caused Itron to become liable to Consert, necessitating the Consert litigation which Itron eventually settled. There is thus a colorable argument that, under ordinary tort principles, Itron cannot recover the cost of the settlement as damages to the extent Defendants show the settlement to have been unreasonable. See Rolison v. Fryar, 204 So. 3d 725, 736 (Miss. 2016) ("An injured party has a duty to take reasonable steps to mitigate damages."); see also Wall v. Swilley, 562 So. 2d 1252, 1258 (Miss. 1990) (in Mississippi, failure to mitigate 'is an affirmative defense' defendants must plead and prove)."; "But this does not render the opinions of Itron's counsel 'highly relevant.' Instead, '[t]he reasonableness of the settlement . . . [must] be examined under an objective standard.'"; "Defendants similarly claim they must see Itron's privileged communications to know 'whether Itron's settlement damages are attributable to [Defendants], a third party, or Itron itself.' Although Defendants' argument is not entirely clear, they apparently seek to uncover that Itron followed unreasonable advice from its law firm (Gibson Dunn), which might arguably relieve Defendants of liability as a superseding cause."; "Either way, the argument fails for at least the reasons just discussed: Both potential theories turn on whether Itron engaged in a course of action that was objectively reasonable. And as discussed above, the objective reasonableness of Itron's conduct should be apparent from the facts known to Itron at the time (which again, are not privileged) coupled with objective legal analysis.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal
Comment:

key case


Chapter: 29.505
Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-15-0384, 2018 Ill. App. LEXIS 51 (Ill. App. 5d Feb. 7, 2018)
(holding that a doctor who has sued a former lawyer for breach of fiduciary duty must disclose communications with other lawyers at the same time the doctor was represented by that lawyer; holding that the implied waiver extended to communications about the doctor's breach claim, but not about the doctor's settlement of an earlier case – which would be governed by an objective standard; "While the 'at issue' exception to the work product privilege in subsequent litigation only requires the privileged material be the basis of a claim or defense raised in the subsequent suit brought by the client, the 'at issue' exception to the attorney-client privilege can be invoked only if the privileged material is required to truthfully resolve a factual or legal issue in the subsequent suit brought by the client. . . . Accordingly, the question arises of which 'at issue' exception applies to attorney-client communications containing work product. We hold the test for the 'at issue' exception to the attorney-client privilege applies to such documents.")

Case Date Jurisdiction State Cite Checked
2018-02-07 State IL

Chapter: 29.505
Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)
(holding that plaintiff had not triggered an at issue waiver by claiming that the defendant had defrauded her; "A party places the communications at issue by: (1) engaging in some affirmative act for her own benefit; (2) making the protected information relevant to the case; and (3) applying the privilege denies the opposing party access to information vital to a defense.")

Case Date Jurisdiction State Cite Checked
2016-09-19 Federal NE

Chapter: 29.505
Case Name: Executive Mgmt. Svcs., Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2015 U.S. Dist. LEXIS 105600 (S.D. Ind. Aug. 12, 2015)
("As for the allegation that EMS was an 'unsophisticated customer,' that assertion is relevant to a claim for breach of fiduciary duty under New York law. . . . In order for Plaintiffs to succeed on their claim for breach of fiduciary duty, they must prove that EMS was, at the time, an unsophisticated business entity, and Plaintiffs' assertion that EMS was such an 'unsophisticated customer' is relevant to Plaintiffs' claim of breach of fiduciary duty."; "While the content of the sought-after communications might aid in illuminating EMS's level of sophistication during the relevant period, the Leviton [Leviton Mfg. Co. v. Greenberg Traurig LLP, No. 09 CIV 8083 GBD THK, 2010 U.S. Dist. LEXIS 128849, 2010 WL 4983183, at *4 (S.D.N.Y. Dec. 6, 2010)] court clearly noted that mere usefulness of the materials requested is not sufficient; the requested materials must be 'indispensable' to the defense of Plaintiffs' claim in order for Plaintiffs to have waived their privilege. Fortunately for Defendant, there are numerous potential avenues for evaluating EMS's level of sophistication without piercing Plaintiffs' attorney-client privilege; the mere fact that during the relevant time period Plaintiffs had access to outside legal counsel in Bose and outside accountants in Somerset or that Plaintiffs had experience in intricate financial dealings might itself aid in the defense against Plaintiffs' claim of lack of sophistication. . . . Thus, although Plaintiffs' sophistication upon entering into the Agreement with Defendant is relevant to their breach of fiduciary duty claim, the privileged documents requested from Bose are not critical to the defense of Plaintiffs' claim, and Plaintiffs' have not so waived their right to assert their privilege.")

Case Date Jurisdiction State Cite Checked
2015-08-12 Federal IN

Chapter: 29.505
Case Name: Mpala v. Funaro, Civ. No. 3:13-cv-252 (WIG), 2014 U.S. Dist. LEXIS 168407 (D. Conn. Dec. 5, 2014)
(holding the at issue doctrine did not apply; "[I]f the information contained in the privileged communication is truly required for a resolution of the issue, the party must either waive the attorney-client privilege as to that information, or be precluded from using the privileged information to establish the elements of the case. . . . The mere fact that a communication is relevant does not place it at issue. . . . Additionally, if a party fails to allow pre-trial discovery of a confidential matter, the party will be precluded from introducing that evidence.")

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

Chapter: 29.505
Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *24-25 (C.D. Cal. Sept. 11, 2014)
("Relevant California case law allows waiver when the privileged material is at the heart of a claim, but not if it is one of several forms of indirect evidence. By narrowing its claims to issues of mutual mistake and intent, the Trust has removed the Debtor's internal communications with attorneys from the heart of these claims. Instead, these communications are being sought because Chase alleges that direct evidence of the parties negotiating history does not exist and this privileged material provides indirect evidence. While this material may be relevant, under the Trust's proposal it is neither central nor vital to Chase's defense. Chase's need is insufficient for at issue waiver under California law.")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal CA

Chapter: 29.505
Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *21-22 (C.D. Cal. Sept. 11, 2014)
("A quick review of the SAC indicates that the Trust's reformation and restitution claims do put the intent of the parties and their understanding of the Plan and EON squarely at issue. The case law cited by Chase supports this conclusion. Assuming (as appears to be the case) that the attorneys were heavily involved in the negotiation of the Plan and the EON, their communication with clients would contain a great deal of relevant evidence on these issues. Direct relevance alone is not enough, of course. Rather, the communications must be so vital to Chase's defense that equity requires their disclosure, as opposed to being merely 'one of several forms of indirect evidence' about the issue.")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal CA

Chapter: 29.505
Case Name: Norstar Residential, LLLP v. First Mercury Ins. Co., Civ. A. No. 13-cv-00785-WJM-BNB, 2013 U.S. Dist. LEXIS 152194 , at *9-10, *10 (D. Colo. Oct. 23, 2013)
(finding that the plaintiff suing an insurance for failing to defend an underlying action against the plaintiff did not trigger an at issue waiver, and denying defendant insurance company's attempt to discover communications between the plaintiff and its lawyer in the underlying litigation; "The belief of Norstar or its counsel in the reasonableness of Norstar's decision to confess judgment and the appropriate amount of such a judgment are not an element of any of the claims asserted. At most, Norstar's counsel's evaluation of the strengths of the Association's [plaintiff in underlying action] claims and the extent of its damages may be tangentially related to Norstar's recoverable damages, but Norstar eschews any intention to rely on its counsels' opinions in proving damages. Under these circumstances, I conclude that documents concerning evaluation by Norstar's counsel of the strengths of the Association's claims and the extent of its damages in the underlying action are not relevant to any matter at issue in the case."; "Information concerning Norstar's evaluation of the Association's case in the underlying action may be obtained from other, and better, sources including non-privileged documents such as the reports and deposition testimony or experts in the underlying action; non-privileged analyses and the testimony of Norstar's representatives, including responses to written discovery in the underlying action; and the documents of experts and other witnesses who may testify here about Norstar's damages. In view of these alternative sources, it cannot reasonably be said that application of the attorney-client privilege will deny First Mercury of access to information vital to its defense of this action.")

Case Date Jurisdiction State Cite Checked
2013-10-23 Federal CO B 5/14

Chapter: 29.505
Case Name: JPMorgan Chase & Co. v. Am. Century Co., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 101, at *12 (Del. Ch. Apr. 18, 2013)
("The at-issue waiver applies when: '(1) the party injects the communications themselves into the litigation, or (2) the party injects an issue into the litigation, the truthful resolution of which requires an examination of the confidential communications.' . . . 'Application of the at-issue exception is guided by considerations of "fairness and discouraging use of the attorney-client privilege as a litigation weapon."'" (citations omitted))

Case Date Jurisdiction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 29.506
Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)
(holding that plaintiff had not triggered an at issue waiver by claiming that the defendant had defrauded her; "A party places the communications at issue by: (1) engaging in some affirmative act for her own benefit; (2) making the protected information relevant to the case; and (3) applying the privilege denies the opposing party access to information vital to a defense.")

Case Date Jurisdiction State Cite Checked
2016-09-19 Federal NE

Chapter: 29.506
Case Name: Norstar Residential, LLLP v. First Mercury Ins. Co., Civ. A. No. 13-cv-00785-WJM-BNB, 2013 U.S. Dist. LEXIS 152194 , at *9-10, *10 (D. Colo. Oct. 23, 2013)
(finding that the plaintiff suing an insurance for failing to defend an underlying action against the plaintiff did not trigger an at issue waiver, and denying defendant insurance company's attempt to discover communications between the plaintiff and its lawyer in the underlying litigation; "The belief of Norstar or its counsel in the reasonableness of Norstar's decision to confess judgment and the appropriate amount of such a judgment are not an element of any of the claims asserted. At most, Norstar's counsel's evaluation of the strengths of the Association's [plaintiff in underlying action] claims and the extent of its damages may be tangentially related to Norstar's recoverable damages, but Norstar eschews any intention to rely on its counsels' opinions in proving damages. Under these circumstances, I conclude that documents concerning evaluation by Norstar's counsel of the strengths of the Association's claims and the extent of its damages in the underlying action are not relevant to any matter at issue in the case."; "Information concerning Norstar's evaluation of the Association's case in the underlying action may be obtained from other, and better, sources including non-privileged documents such as the reports and deposition testimony or experts in the underlying action; non-privileged analyses and the testimony of Norstar's representatives, including responses to written discovery in the underlying action; and the documents of experts and other witnesses who may testify here about Norstar's damages. In view of these alternative sources, it cannot reasonably be said that application of the attorney-client privilege will deny First Mercury of access to information vital to its defense of this action.")

Case Date Jurisdiction State Cite Checked
2013-10-23 Federal CO B 5/14

Chapter: 29.506
Case Name: Grace Vill. Health Care Facilities, Inc. v. Lancaster Pollard & Co., Civ. No. 3:11cv295, 2013 U.S. Dist. LEXIS 110313, at *7-8 (N.D. Ind. Aug. 6, 2013)
(finding the at issue doctrine inapplicable in a case where the plaintiff claimed that the defendant had botched plaintiffs' claim in the Lehman bankruptcy, which forced plaintiffs to settle with Lehman; "Grace Village claims that to recover the costs of its settlement with Lehman, Grace Village need not defend whatever advice its attorneys gave it regarding settlement. Rather, Grace Village must show that its decision to settle, and the settlement itself, were 'fair and reasonable,'. . . an objective standard that does not take into consideration the subjective opinions of Grace Village's lawyers about the merits or demerits of Lehman's claim against Grace Village.")

Case Date Jurisdiction State Cite Checked
2013-08-06 Federal IN B 4/14

Chapter: 29.506
Case Name: JPMorgan Chase & Co. v. Am. Century Co., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 101, at *15 (Del. Ch. Apr. 18, 2013)
(finding that the work product doctrine protected JPMorgan's reserve figures, but that triggered an at issue waiver requiring production of the litigation reserve numbers; "J.P. Morgan has not used the attorney-client privilege offensively in the sense that it will rely upon privileged information or documents to establish a reasonable fair value estimate of the arbitration claims. However, having injected the valuation issue into the litigation, and then, having denied American Century discovery on the matter, J.P. Morgan has unfairly hindered American Century's defense.")

Case Date Jurisdiction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 29.506
Case Name: JPMorgan Chase & Co. v. Am. Century Co., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 101, at *16 (Del. Ch. Apr. 18, 2013)
("[I]t may be plainly unfair for J.P. Morgan to attack American Century's actions if J.P. Morgan had been complicit in any valuation errors or had made similar estimates as American Century and failed to disclose them to D&P [independent advisor]. Except for American Century's valuation, there is also probably no better contemporaneous estimate of the arbitration claims -- devoid of any hindsight bias -- than J.P. Morgan's own analysis.")

Case Date Jurisdiction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 29.506
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *13 (W.D. Va. June 15, 2011)
("The court in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), set forth a framework for determining whether the party asserting a privilege has impliedly waived it through his own affirmative conduct. Courts must determine whether: a) the assertion of privilege was the result of some affirmative act, such as filing suit, by the asserting party; b) through this act, the asserting party put the protected information at issue by making it relevant to the case; and c) application of the privilege would have denied the opposing party access to information vital to his defense. Id. at 581. Although the Hearn framework has not been met with universal acceptance, it remains the most widely accepted approach. Metric Constructors, Inc. v. The Bank of Tokyo- Mitsubishi, Ltd., No. 5:97-CV-369BR1, 1998 U.S. Dist. LEXIS 18428, 1998 WL 1742589, at *6 n.6 (E.D.N.C. Sept. 28, 1998); see also City of Myrtle Beach v. United Nat'l Ins. Co., No. 4:08-1183-TLW-SVH, 2010 U.S. Dist. LEXIS 89725, 2010 WL 3420044 (D.S.C. Aug. 27, 2010).")

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

Chapter: 29.601
Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)
("The next 'issue injection' issue to consider is whether Defendants have expressly waived the attorney-client privilege by asserting certain affirmative defenses. Specifically, Defendants have asserted good faith affirmative defenses . . . and they have asserted that Plaintiffs were exempt from the FLSA's minimum wage and overtime compensation requirements . . . . But importantly, Defendants have never expressly stated that they are relying upon advice of counsel to support any defense in this case. An express reliance upon advice of counsel to support Defendants' affirmative defenses would waive the attorney-client privilege as to attorney-client communications related to such advice. However, Defendants are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case. In fact, they have specifically stated that they are not going to adduce any evidence or testimony about any advice of counsel Defendants received."; "The above cited relevant case law, when read carefully as a whole, puts cases into three general categories. First, the case law is in agreement that a mere denial of willfulness does not amount to issue injection which would impliedly waive the attorney-client privilege. Second, asserting an affirmative defense (such as good faith in an FLSA case) that explicitly states that a defendant relied on the advice of counsel, or refers to advice or consultation with counsel to support such affirmative defense, does amount to issue injection sufficient to waive the attorney-client privilege. Third, the more nuanced situation, which is similar to what we have here, is whether issue injection sufficient to waive the attorney-client privilege occurs when a defendant in an FLSA case asserts a good faith (or outside sales exemption) affirmative defense, but does not explicitly mention reliance on advice of counsel in that affirmative defense and further represents that it does not intend to rely on counsel's advice to support such defense. Courts seem to require something additional to find issue injection in this third category of cases.")

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

key case


Chapter: 29.602
Case Name: Kehle v. USAA Casualty Ins. Co., Case No. 17-80447-CV-MARRA/MATTHEWMAN, 2018 U.S. Dist. LEXIS 89846 (S.D. Fla. May 30, 2018)
(holding that the at issue doctrine applied, because the plaintiff must carry the burden of proving good faith of an earlier arbitration; apply the Hearn doctrine (mentioning attorney-client privilege protection but then apparently addressing only work product protection); "The subject-matter waiver doctrine provides that a party who injects into the case an issue that in fairness requires an examination of communications otherwise protected by the attorney-client privilege loses that privilege."; "In Cox [Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.1994)], the Eleventh Circuit stated that the 'subject matter waiver doctrine does not extend to materials protected by the opinion work product privilege.'"; "To establish that Plaintiff has indeed waived her opinion work-product objections to the emails which pertain to the good faith and reasonableness of the hybrid Coblentz agreement/arbitration award between Plaintiff and Mr. Henderson, Defendant must satisfy the three-part Hearn test."; "The Court finds that Defendant has met the first element of the Hearn test because it has shown that the assertion of the opinion work-product privilege was affirmatively raised by Plaintiff when she filed the lawsuit."; "Defendant has met the second element of the Hearn test by demonstrating that Plaintiff has put the protected information at issue by making it relevant to this case."; "Finally, the Court finds that allowing Plaintiff to maintain her work-product privilege would deny USAA access to information vital to its defense because it would preclude USAA from probing into the primary source of evidence of alleged bad faith, fraud, and collusion. Plaintiff has brought a breach of contract action and seeks to enforce the hybrid Coblentz agreement/arbitration award against Defendant USAA in the amount of $8,818,804. As stated above, the spirit of the at-issue waiver doctrine is to encourage fairness. Enforcing the hybrid Coblentz agreement/arbitration award requires Plaintiff to establish, by a prima facie showing, that the hybrid Coblentz agreement/arbitration award was reasonable and made in good faith, but the ultimate burden of proof will rest with USAA. . . . It would be manifestly unfair to prohibit Defendant from discovery into the communications between Plaintiff's former and current attorneys regarding the settlement agreement, the arbitration proceedings, and the arbitration award which are directly relevant to the reasonableness and good faith of the hybrid Coblentz agreement/arbitration award, and to issues of alleged collusion.")

Case Date Jurisdiction State Cite Checked
2018-05-30 Federal FL

Chapter: 29.602
Case Name: Hunton v. American Zurich Ins. Co., No. CV-16-00539-PHX-DLR, 2017 U.S. Dist. LEXIS 138532 (D. Ariz. Aug. 29, 2017)
(holding that the defendant triggered an at issue waiver by relying on the subjective belief of its adjuster's good faith; "Defendant, through the testimony and opinion of its bad faith expert, has put the subjective beliefs of the claims adjuster directly at issue, and those beliefs implicate the advice she received from Defendant's ICA counsel, Scott Finical. Indeed, Brown's motives and the advice of counsel appear to be so intertwined that McCoy could not explain what further questions Brown had, what steps she took to get them answered, or what caused her to change her position and ultimately approve the claim; rather, McCoy could only speculate that those explanations lay within Brown's redacted communications with ICA counsel."; "By electing to defend this case based on the subjective, not just objective, reasonableness of its adjuster's actions, Defendant placed at issue its "subjective beliefs and directly implicated the advice and judgment [it] had received from [Defendant's] ICA counsel incorporated in those actions.")

Case Date Jurisdiction State Cite Checked
2017-08-29 Federal AZ

Chapter: 29.602
Case Name: United States v. Owensboro Dermatology Assoc., P.S.C., Civ. A. No. 4:16-mc-00003-JHM, Civ. A. No. 4:16-mc-00004-JHM, Civ. A. No. 4:16-mc-00005-JHM, 2017 U.S. Dist. LEXIS 105099 (D. Ky. July 7, 2017)
(explaining that a "reasonable cause" defense might cause a waiver; "Respondents' petitions before the Tax Court articulate a 'reasonable cause' defense. The undersigned notes that use of the 'reasonable cause' defense may result in an implicit waiver of the attorney-client privilege in proceedings before the Tax Court. . . . However, it bears mentioning that assertion of the 'reasonable cause' defense in a petition before the Tax Court does not necessarily result in the automatic disclosure of privileged documents. . . . Rather, it merely provides the United States with grounds to compel the production of documents subject to the attorney-client privilege. . . . Even when a motion to compel before the Tax Court is meritorious, the case law suggests that disclosure may not necessarily result."; "Here, by raising the 'reasonable cause' defense in their petition, Respondents have provided the Commissioner with grounds to request that the Tax Court compel production of documents subject to the attorney-client privilege. There is no indication in the record that the Commissioner has made such a request before the Tax Court, and even if he had, case law indicates that production does not necessarily follow. In essence, the United States asks this Court to order disclosure of privileged material based on what it believes will happen before the Tax Court. Because the Tax Court litigation is in an early stage, the undersigned hesitates to rely too heavily on the United States' predictions. If respondents persist in asserting the 'reasonable cause' defense, then disclosure of privileged documents may later result before the Tax Court. This, however, is a strategic choice that must be made by Respondents in the Tax Court proceedings at some later point in time. Should Respondents make the strategic choice to persist with their 'reasonable cause' defense and produce the privileged communications setting forth the legal advice they purportedly relied on, the Tax Court will be in a far better position to determine which of these emails are related to the legal advice.")

Case Date Jurisdiction State Cite Checked
2017-07-07 Federal KY

Chapter: 29.602
Case Name: Reyes v. Collins & 74th, Inc., Case No. 16-24362-CIV-Lenard/Goodman, 2017 U.S. Dist. LEXIS 101982 (S.D. Fla. June 30, 2017)
(holding that an FSLA "good faith" defense triggered an at issue waiver; "Although Defendants here have not in their answer expressly asserted the advice of counsel defense, they are, for all practical purposes, using that defense as the foundation for their position that they did not willfully violate the FLSA (and that the statute of limitations is two years, not three years). Moreover, Mr. Hossain's deposition testimony -- including answers to questions posed by Ms. Langbein -- makes it clear that Defendants are, in fact, relying on an advice-of-counsel theory."; "The issue of Defendants' good faith is relevant in this case for an additional issue beyond the 'willfulness' issue for statute of limitations purposes. Under the FLSA, an employer can avoid 'liquidated damages,' otherwise known as double damages, if he proves 'that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation' of the FLSA. 29 U.S.C. § 260. If Plaintiff obtains a trial verdict in his favor, then the issue of Defendants' good faith would arise -- which would then implicate the advice they received from Ms. Langbein."; "This strategic choice (of asserting Ms. Langbein's legal advice as a defense) mandates a finding that Defendants have impliedly waived the attorney-client privilege on matters concerning the advice Ms. Langbein provided to her labor-law clients in this case."; "Under these circumstances, it would be patently unfair to Plaintiff to prevent him from obtaining full discovery on the very advice which Defendants are relying upon to prove that they did not act willfully and that the statute of limitations should be two years, rather than three years. Likewise, it would also be inequitable to prevent Plaintiff from obtaining the specifics about the legal advice provided to Defendants when he might need to address the advice after trial, when advocating for double damages and arguing against Defendants' inevitable argument that liquidated damages are unavailable because they acted in good faith."; "Therefore, Plaintiff may take Ms. Langbein's [] deposition and may retake Mr. Hossain's [] deposition (on the issues raised by Defendants' reliance on their attorney's employment-law advice). He may also obtain any letters, memoranda or notes, which Ms. Langbein provided to her clients about complying with the FLSA.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal FL

Chapter: 29.602
Case Name: In re Namenda Direct Purchaser Antitrust Litig., 15 Civ. 7488 (CM) (JCF), 2017 U.S. Dist. LEXIS 76675 (S.D.N.Y. May 19, 2017)
(concluding that the court could not yet analyze an applicable at issue doctrine argument; "The question here, then, is whether Forest's factual assertions in this litigation regarding the infringement settlements -- that its settlement positions were based on its assessment of the likely outcomes of the actions, that the '703 patent was valid, that the settlements were made in good faith in light of these and other business concerns, and the like -- can only be tested by recourse to attorney-client communications or attorney work product as to the strength of the patent and the legality of the settlement."; "Given the current stage of discovery and Forest's representations, I cannot determine that Forest has broadly waived attorney-client privilege and work product protection at this time."; "Let me be clear: it is Forest's burden to establish that it has not waived privilege. . . . It is not acceptable for Forest to take the position 'Trust us. The justifications we are putting forward here are why we settled.'. . . Thus, Forest will have to back up with argument and evidence any contention as to why the 'subjective beliefs' on which it plans to rely do not, in fact, implicate privileged communications based on the guidelines applied in Lidoderm [Lidoderm, No. 14-md-2521, 2016 U.S. Dist. LEXIS 105619, 2016 WL 4191612, at *1 (N.D. Cal. August 9, 2016)] and similar cases. If there are disputes as to this issue, I will resolve them after receiving submissions on a truncated briefing schedule.")

Case Date Jurisdiction State Cite Checked
2017-05-19 Federal NY

Chapter: 29.602
Case Name: In re Oxbow Carbon LLC, Unitholder Litigation, Consol. C.A. No. 12447-VCL, 2017 Del. Ch. LEXIS 395 (Del. Ch. May 18, 2017)
(holding that both the plaintiff and the defendant had put their understanding of an earlier contract at issue; "The nature and timing of the Crestview Defendants' claim for breach of the implied covenant of good faith and fair dealing injected into this litigation their subjective beliefs about 1.5x Provision and the Small Holders. This claim affirmatively places at issue the Crestview Defendants' understanding of these matters. There is evidence to suggest that the Crestview Defendants' beliefs have evolved opportunistically, rather than reflecting a settled understanding formed at the time of the underlying events. Under the circumstances, fairness requires that the Koch Parties have access both to the Crestview Defendants' non-privileged communications about the 1.5x Provision and the Small Holders, and their communications with their lawyers about these matters. . . . This ruling also helps balance the litigation playing field, because this court previously ruled that the Koch Parties had placed at issue their communications.")

Case Date Jurisdiction State Cite Checked
2017-05-18 State DE

Chapter: 29.602
Case Name: Fifth Third Bancorp v. Certain Underwriters at Lloyd's, Case No. 1:14-cv-869, 2017 U.S. Dist. LEXIS 70639 (S.D. Ohio May 9, 2017)
(holding that plaintiff triggered an at issue waiver when it made an issue of the time that it learned of an employee's misconduct; "Third argues strenuously that '[r]elevance alone is insufficient to overcome privilege.'. . . That is undoubtedly a correct statement of law, but it does not begin to describe the critical nature of information relating to Fifth Third's date of discovery of its loss, or the lack of any alternative source of that information to the Underwriters. Because information vital to the core issues of this case remains within the exclusive control and knowledge of Fifth Third, the requested documents simply are outside the scope of, and are excepted from, any privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-09 Federal OH

Chapter: 29.602
Case Name: In re Frank Michael Mongelluzzi v. Regions Bank, Case No. 8:11-bk-01927-CED, Ch. 7, 2017 Bankr. LEXIS 1264 (M.D. Fla. May 8, 2017)
(holding that defendant's claim of good faith triggered an at issue waiver; "In its seventh affirmative defense, Regions alleges that the Trustees fail to state a claim upon which relief can be granted because it at all times acted in good faith and never exercised dominion or control over the funds held in the deposit accounts. Likewise, in its twelfth affirmative defense, Regions asserts that Trustees fail to state a claim upon which relief can be granted for constructive fraud because it took each transfer in good faith and gave reasonably equivalent value in exchange in the form of satisfaction of the debt owed by Debtors.")

Case Date Jurisdiction State Cite Checked
2017-05-08 Federal FL

Chapter: 29.602
Case Name: In re Frank Michael Mongelluzzi v. Regions Bank, Case No. 8:11-bk-01927-CED, Ch. 7, 2017 Bankr. LEXIS 1264 (M.D. Fla. May 8, 2017)
(holding that defendant's claim of good faith triggered an at issue waiver; "[T]he Court finds that Regions has injected the issue of good faith into these proceedings by asserting good faith as its affirmative defense under § 548(c). As the Court advised the parties at the April 5, 2017 hearing, the Court has not found a blanket waiver of the attorney-client and work-product privileges; rather the Court finds that only those documents or communications that bear on Regions' state of mind during the relevant time period are subject to production. The question then before the Court is whether the subject documentary evidence is the 'most probative, if not the only' evidence of Regions' state of mind, knowledge, and intent during the relevant time periods.")

Case Date Jurisdiction State Cite Checked
2017-05-08 Federal FL

Chapter: 29.602
Case Name: United States v. Micro Cap Ky Ins. Co., Inc., Civil Case No. 5:16-cv-278-JMH-REW,Civil Case No. 5:16-cv-279-JMH-REW, 2017 U.S. Dist. LEXIS 44261 (E.D. Ky. March 27, 2017)
(holding that asserting a "reasonable cause" argument in tax court might trigger an implied waiver; "It is true that use of the 'reasonable cause' defense may result in a waiver of the attorney-client privilege in a variety of proceedings, including those before the Tax Court."; "That being said, the assertion of the 'reasonable cause' defense in a pleading does not lead to the automatic disclosure of privileged documents."; "By raising the 'reasonable cause' defense in their Petition, Respondents gave the Commissioner grounds to request that the Tax Court compel production of documents subject to the attorney-client privilege. The Commissioner has not yet made such a request, and even if he had, case law indicates that production does not necessarily follow. Thus, the United States essentially asks the Court to order the disclosure of privileged material based on what it believes will happen in another forum. Given the early stage of the Tax Court litigation, this Court hesitates to rely too heavily on the United States' predictions. If Respondents persist in asserting the 'reasonable cause' defense, then disclosure of privileged documents may later result in that forum. However, this is a strategic decision that must be made by Respondents. This Court does not wish to force their hand by ordering the disclosure of documents that are otherwise privileged. Thus, the United States' argument fails on the merits.")

Case Date Jurisdiction State Cite Checked
2017-03-27 Federal KY

Chapter: 29.602
Case Name: In re Oxbow Carbon LLC, Unitholder Litigation, Consol. C.A. No. 12447-VCL, 2017 Del. Ch. LEXIS 425 (Del. Ch. March 7, 2017)
(holding that its point two members of a company's board of directors (appointed by investors) may be so adverse to the company that they can be denied access to privileged communications; "The extent to which the Company can invoke privilege against the Crestview Directors turns on the point at which sufficient adversary existed between them such that the Crestview Directors could no longer have a reasonable expectation that they were clients of Company counsel."; "I conclude that for purposes of discovery, Robert Popeo's email to Michael Carlinsky dated October 23, 2015, was the point at which adversary was established sufficiently to enable the Company to begin asserting privilege. Arguments can be made and evidence cited in support of a finding of adversity before or after that point. Clearly, tensions were rising before then. Equally clearly, there are arguments as to why the Crestview Directors should be able to continue to access privileged material after that date. In my view, it is important for purposes of discovery to have as clear a line of demarcation as possible, and I have selected the date that appears most justified on the facts of the case."; "Consequently, the Company cannot withhold discovery material dated before October 23, 2015, from the Crestview Directors on the basis of the attorney-client privilege or the work product doctrine. The Company shall produce the Crestview Directors all items on its privilege log that pre-date October 23, 2015. Thereafter, the Company can invoke the attorney-client privilege and the work product doctrine, subject to the additional rulings made in this order."; "Because of the nature of the relationship between Crestview and the Crestview Directors, Crestview is entitled to the same information as Crestview Directors and vice versa. . . ."; "Crestview cannot obtain access to otherwise privileged materials separately under Gamer v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). Once sufficient adversity existed for the Crestview Directors not to have access to privileged information, there was insufficient mutuality of interest between Crestview and the Company for Garner to apply."; "The Company has alleged that Crestview sought to undermine the Company 'from the inside' by secretly enlisting McAuliffe and Eric Johnson 'to undercut the advice the Company was receiving from its outside counsel,' which had been retained specifically to analyze to Put Right. . . . The complaint posits that Crestview already was knowledgeable about the two firms' advice. The complaint further alleges that when one of the two firms produced a memo partially supporting Oxbow's position. McAuliffe had the offending passage removed before sharing the memo with Koch. . . . Given these allegations, the Company has placed at issue its communications with its original counsel and the two additional law firms about ThoughtWorks and the legal advice it received from them."; "The Company similarly has put at issue the advice it received from Mintz Levin regarding a potential payment to the Small Holders by asserting in its answer that Popeo only suggested this to Crestview to broker a compromise and not because it represented his belief or the Company's belief. By taking the additional step of drawing a distinction between what was said that what they believed, the Company placed at issue advice showing what Popeo and the Company actually believed on this point. . . ."; "The Company shall produce the items on its privilege log for which no attorney is identified.")

Case Date Jurisdiction State Cite Checked
2017-03-07 State DE
Comment:

key case


Chapter: 29.602
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 Jurisdiction State Cite Checked
2017-02-28 Federal FL

Chapter: 29.602
Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017)
May 17, 2017 (PRIVILEGE POINT)

"Privilege Implications of an Explicit or Implicit 'Advice of Counsel' Defense: Part II'"

Last week's Privilege Point described the normal broad subject matter waiver triggered by litigants' explicit defensive reliance on legal advice. Litigants' implicit reliance can have the same effect.

In Maar v. Beall's, Inc., FLSA defendant Beall's contended that any employee miscalculations were "not willful, and made in a good faith attempt to comply with the law." Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017). Answering interrogatories about one of its defenses, Beall's noted that it "'consulted with legal counsel regarding such classification.'" Id. at *5 (emphasis and internal citation omitted). The court concluded that Beall's waived its privilege protection "by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification." Id. at *11. The court even ordered Beall's to produce its lawyer to be deposed "concerning the substance of advice the company received from legal counsel as to the classification of Area Managers." Id. at *12. Beall's argued that the court's draconian standard would give FLSA plaintiffs "automatic access" to companies' legal advice whenever they assert a "good faith" defense. Id. at *11-12. The court rejected what it called Beall's "dire pronouncement" -- explaining that companies "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." Id. at *12 (citation omitted). The court did not explain how that approach would work.

Corporations and their lawyers must remember the scope of any explicit "advice of counsel" defense, and the less obvious danger of implicitly relying on their good faith attempt to comply with the law.

Case Date Jurisdiction State Cite Checked
2017-02-28 Federal FL
Comment:

key case


Chapter: 29.602
Case Name: Roberts v. Clark County School District, Case No. 2:15-cv-00388-JAD-PAL, 2016 U.S. Dist. LEXIS 60995 (D. Nev. May 9, 2016)
(holding that disclosing privileged documents to the EEOC waived the attorney-client privilege, but not the work product doctrine; "Applying these principles the court finds that many of the documents CCSD has withheld on the grounds of attorney-client privilege are not privileged or that CCSD has waived any potential privilege by voluntarily disclosing the advice of its counsel relied upon to support its good-faith defense in this case. It is undisputed that CCSD disclosed some of the documents withheld in its privileged document logs to the EEOC in its response to Plaintiff's administrative claims. CCSD relied upon legal advice of in-house counsel and conveyed that legal advice to the EEOC to explain and justify its decision to deny Roberts' use of the men's restroom associated with his gender identity. Although counsel for CCSD argues that CCSD is not relying on the advice of counsel as a defense to this action, CCSD disclosed the advice of counsel to the EEOC to support its claim that its actions with respect to Bradley were justified and complied with existing law. CCSD has also asserted an affirmative good-faith defense in its answer which claims its actions were justified and complied with existing law.")

Case Date Jurisdiction State Cite Checked
2016-05-09 Federal NV

Chapter: 29.602
Case Name: Enea v. Bloomberg, L.P., 12cv4656-GBD-FM, 2015 U.S. Dist. LEXIS 111901 (S.D.N.Y. Aug. 20, 2015)
(initially concluding that there had been no implied waiver, but revisiting the issue and ordering an in camera review of documents that support defendant's good faith defense in an FLSA case; "Bloomberg has served (albeit in stages) a lengthy privilege log reflecting its FLSA-related communications, other than those that are contained in documents solely in the possession of its outside counsel. Although the documents set forth in that log have not been reviewed in camera, they logically could fall into only one of two buckets: documents that are consistent with Bloomberg's affirmative defenses of good faith and lack of willfulness and documents that are inconsistent with those defenses. To the extent that the documents on Bloomberg's privilege log are consistent with its affirmative defenses, there is no reason to invade the company's attorney-client privilege or work product protection. On the other hand, if Bloomberg is relying on an alleged finding by the DOL or its investigator that is contradicted by Bloomberg's own internal documents, a finder of fact is entitled to know about that discrepancy since it obviously would speak to Bloomberg's good faith."; "Bloomberg protests that any decision with respect to its affirmative defenses at this juncture would be premature because the company has yet to rely on the advice of counsel as a basis for its defenses. . . . Such reliance, however, is not a necessary predicate to the disclosure of otherwise-protected information. Indeed, in Scott, Magistrate Judge Netburn noted that an employer may not avoid the disclosure of otherwise undiscoverable documents through 'artful pleading' of 'only some of the necessary elements' of the statutory defense of good faith. [Scott v. Chipotle Mexican Grill Inc., 67 F. Supp. 3d 607, 610 (S.D.N.Y. 2014)] 67 F. Supp. 3d at 614. The defendant employer therefore was required to disclose its privileged documents despite its express disclaimer of any reliance on counsel as part of its affirmative defense of good faith.")

Case Date Jurisdiction State Cite Checked
2015-08-20 Federal NY

Chapter: 29.602
Case Name: Enea v. Bloomberg, L.P., 12cv4656-GBD-FM, 2015 U.S. Dist. LEXIS 111901 (S.D.N.Y. Aug. 20, 2015)
(initially concluding that there had been no implied waiver, but revisiting the issue and ordering an in camera review of documents that support defendant's good faith defense in an FLSA case; "Bloomberg has served (albeit in stages) a lengthy privilege log reflecting its FLSA-related communications, other than those that are contained in documents solely in the possession of its outside counsel. Although the documents set forth in that log have not been reviewed in camera, they logically could fall into only one of two buckets: documents that are consistent with Bloomberg's affirmative defenses of good faith and lack of willfulness and documents that are inconsistent with those defenses. To the extent that the documents on Bloomberg's privilege log are consistent with its affirmative defenses, there is no reason to invade the company's attorney-client privilege or work product protection. On the other hand, if Bloomberg is relying on an alleged finding by the DOL or its investigator that is contradicted by Bloomberg's own internal documents, a finder of fact is entitled to know about that discrepancy since it obviously would speak to Bloomberg's good faith."; "Bloomberg protests that any decision with respect to its affirmative defenses at this juncture would be premature because the company has yet to rely on the advice of counsel as a basis for its defenses. . . . Such reliance, however, is not a necessary predicate to the disclosure of otherwise-protected information. Indeed, in Scott, Magistrate Judge Netburn noted that an employer may not avoid the disclosure of otherwise undiscoverable documents through 'artful pleading' of 'only some of the necessary elements' of the statutory defense of good faith. [Scott v. Chipotle Mexican Grill Inc., 67 F. Supp. 3d 607, 610 (S.D.N.Y. 2014)] 67 F. Supp. 3d at 614. The defendant employer therefore was required to disclose its privileged documents despite its express disclaimer of any reliance on counsel as part of its affirmative defense of good faith.")

Case Date Jurisdiction State Cite Checked
2015-08-20 Federal NY

Chapter: 29.602
Case Name: Enea v. Bloomberg, L.P., 12cv4656-GBD-FM, 2015 U.S. Dist. LEXIS 111901 (S.D.N.Y. Aug. 20, 2015)
(initially concluding that there had been no implied waiver, but revisiting the issue and ordering an in camera review of documents that support defendant's good faith defense in an FLSA case; "During a telephone conference on July 30, 2014, I denied the Plaintiffs' motion, relying, in part, on Brackett v. St. Louis Board of Police Commissioners, 12-CV-898-JAR, 2014 U.S. Dist. LEXIS 95899, 2014 WL 3451197, at *2 (E.D. Mo. July 15, 2014). As in that case, I found that the distinction 'between a good faith defense and a potential advice of counsel defense creates a thin line that the party seeking to put forward the privilege through testimony may cross,' but that Bloomberg had yet to cross that line.")

Case Date Jurisdiction State Cite Checked
2015-08-20 Federal NY

Chapter: 29.602
Case Name: Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015)
September 2, 2015 (PRIVILEGE POINT)

"Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part I"

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that corporations relying on an affirmative defense that they acted in "good faith" reliance on the law necessarily implicate their lawyer's advice — and therefore trigger such an "at issue" waiver.

In Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015), FLSA defendant KB Home relied upon the 29 U.S.C. § 259 defense of good faith reliance on administrative regulations, etc., in defending its employee classifications. KB Home "emphasize[d] that it is not relying on advice of counsel to prove its good faith defenses" — instead explaining that its "witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the classification was lawful." Id. at *7. The court rejected this argument — concluding that privileged communications "are highly probative of whether [KB Home] had a good faith belief in the lawfulness of its policy." Id. at *9. The court reminded KB Home that it "may elect to withdraw its good faith defenses, in which case the privilege would still attach." Id. at *14. Four days later, another court found that a defendant had waived its privilege by arguing that its patent infringement accusations against the plaintiff "were grounded in a good-faith belief" that the plaintiff had infringed its patent. Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015). The court quoted an earlier decision in holding that defendant cannot "'be permitted, on the one hand, to argue that it acted in good faith and without an improper motive and then, on the other hand, to deny [the adversary] access to the advice given by counsel where that advice . . . played a substantial and significant role in formulating [its] actions.'" Id. at *8-9. (quoting Pereira v. United Jersey Bank, No. 94-CV-1565 (LAP), 1997 WL 773716, at *6 (S.D.N.Y. Dec. 11, 1997).

Litigants putting their mental state at issue or referring to withheld documents to support an assertion might waive their privilege. Next week's Privilege Point discusses two cases going the other way.

Case Date Jurisdiction State Cite Checked
2015-07-22 Federal NY
Comment:

key case


Chapter: 29.602
Case Name: Skyline Steel, LLC v. Pilepro, LLC, 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS 95929 (S.D.N.Y. July 22, 2015)
(finding that a claim of "good faith" resulted in a waiver; "At bottom, given that Skyline must prove that PilePro acted in bad faith with respect to the accusing activities remaining in this case -- a claim that PilePro has both indirectly and directly sought to refute by referring to conversations with counsel -- PilePro's actions, particularly its decision to elicit the substance of specific conversations that a former PilePro employee had with counsel, compel a finding of waiver here. Put simply, PilePro 'may not assert that it believed its conduct was lawful, and simultaneously claim privilege to block inquiry into the basis for the party's state of mind or belief.' . . . Nor can it 'be permitted, on the one hand, to argue that it acted in good faith and without an improper motive and then, on the other hand, to deny [Skyline] access to the advice given by counsel where that advice . . . Played a substantial and significant role in formulating [its] actions.'")

Case Date Jurisdiction State Cite Checked
2015-07-22 Federal NY

Chapter: 29.602
Case Name: Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015)
(finding the defendant's "good faith" defense to an FLSA claim waived its privilege protection; "Attempting to avoid this body of law concerning waiver in which disclosing any privileged communications in support of its defenses would unquestionably constitute a waiver, KB Home emphasizes that it is not relying on advice of counsel to prove its good faith defenses. In other words, the KB Home witnesses testifying about good faith will not say 'lawyers advised us that the employees do not qualify as outside salespeople'; instead those witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the classification was lawful. If KB Home employees made that assessment about the classification's lawfulness without ever consulting its lawyers, the Court would agree that the privilege is not pierced."; "Two basic aspects of the good faith defenses compel the Court to conclude that KB Home is drawing too fine a line: the defenses requires a good faith belief about the lawfulness of a classification decision. Communications from lawyers -- whose very job is to advise the company on the lawfulness of its policies -- concerning the company's classification decision necessarily influence the reasonableness of any belief the company has about the lawfulness of its policy. Otherwise, why seek legal advice (which isn't cheap) at all? And as a psychological matter, it seems very difficult, if not impossible, for a witness to compartmentalize his reliance on what he may have independently understood regarding the law and what he was told by attorneys."; "Whether the legal advice supports or undermines KB Home's defense, such communications are highly probative of whether it had a good faith belief in the lawfulness of its policy. Consider a hypothetical conversation during 2010 in which KB Home's attorneys informed KB Home's decisionmakers that the earlier 'outside salesperson' classification was wrong. Or consider legal advice during 2007 in which counsel opined that the DOL letters confirmed the lawfulness of the outside sales classification. Either of those communications inevitably would have affected the decisionmakers' beliefs about the policy's lawfulness. And the first hypothetical, in which the legal advice substantially undermines a belief in the policy's lawfulness, directly implicates the fairness concerns that arise when a party injects into the case an issue about its supposed belief in the lawfulness of its action, yet continues to 'shield' communication that might undermine that belief."; holding that defendant could drop its good faith defense, and thereafter claim privilege protection)'

Case Date Jurisdiction State Cite Checked
2015-07-18 Federal TX
Comment:

key case


Chapter: 29.602
Case Name: Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015)
September 2, 2015 (PRIVILEGE POINT)

"Does Asserting a 'Good Faith' Affirmative Defense Waive the Attorney-Client Privilege?: Part I'"

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that corporations relying on an affirmative defense that they acted in "good faith" reliance on the law necessarily implicate their lawyer's advice — and therefore trigger such an "at issue" waiver.

In Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015), FLSA defendant KB Home relied upon the 29 U.S.C. § 259 defense of good faith reliance on administrative regulations, etc., in defending its employee classifications. KB Home "emphasize[d] that it is not relying on advice of counsel to prove its good faith defenses" — instead explaining that its "witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the classification was lawful." Id. At *7. The court rejected this argument — concluding that privileged communications "are highly probative of whether [KB Home] had a good faith belief in the lawfulness of its policy." Id. At *9. The court reminded KB Home that it "may elect to withdraw its good faith defenses, in which case the privilege would still attach." Id. At *14. Four days later, another court found that a defendant had waived its privilege by arguing that its patent infringement accusations against the plaintiff "were grounded in a good-faith belief" that the plaintiff had infringed its patent. Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015). The court quoted an earlier decision in holding that defendant cannot "'be permitted, on the one hand, to argue that it acted in good faith and without an improper motive and then, on the other hand, to deny [the adversary] access to the advice given by counsel where that advice . . . Played a substantial and significant role in formulating [its] actions.'" Id. At *8-9. (quoting Pereira v. United Jersey Bank, No. 94-CV-1565 (LAP), 1997 WL 773716, at *6 (S.D.N.Y. Dec. 11, 1997).

Litigants putting their mental state at issue or referring to withheld documents to support an assertion might waive their privilege. Next week's Privilege Point discusses two cases going the other way.

Case Date Jurisdiction State Cite Checked
2015-07-18 Federal TX
Comment:

key case


Chapter: 29.602
Case Name: United States v. Juan, Crim. No. 3:14cr25-2, 2014 U.S. Dist. LEXIS 121258, at *9 (E.D. Va. Aug. 29, 2014)
October 15, 2014 (PRIVILEGE POINT)

“Several Courts Deal with the "At Issue" Doctrine: Part I”

The "at issue" doctrine stands at the extreme end of the implied waiver spectrum. In courts recognizing the doctrine, litigants can trigger an attorney-client privilege waiver without disclosing, relying on, or even referring to privileged communications. The waiver instead results from the litigant's affirmative reliance on some argument that necessarily implicates privileged communications.

In United States v. Juan, Eastern District of Virginia Judge Robert Payne dealt with a criminal defendant who signed a statement indicating that he fully understood a plea agreement — but later argued (through counsel) that there was "'utter confusion'" about what he was admitting in his statement. Crim. No. 3:14cr25-2, 2014 U.S. Dist. LEXIS 121258, at *9 (E.D. Va. Aug. 29, 2014) (internal citation omitted). Although the defendant argued that "he has not challenged the effectiveness or the competency of his former counsel," Judge Payne found that defendant's arguments "necessarily mean that he is calling into question" his previous lawyer's competence and adequacy — thus entitling the government "to elicit testimony from [the defendant's ] former counsel on those issues." Id. at *13, *14. The court limited the discovery to the defendant's "claims of 'utter confusion' without any testimony about possible defenses or potential claims of innocence." Id. at *15.

"At issue" waivers can arise even if the privilege's owner disclaims any intent to disclose or rely on withheld communications. Although it can be risky to apply criminal privilege case law in the civil context, litigants should assess "at issue" waiver risks whenever they seek some advantage by claiming confusion or ignorance. Next week's Privilege Point will address another "at issue" decision decided the same day — which reached a different conclusion.

Case Date Jurisdiction State Cite Checked
2014-08-29 Federal VA
Comment:

key case


Chapter: 29.602
Case Name: Barker v. Columbus Regional Healthcare System, Inc., Case No. 4:12-cv-108 (CDL), 2014 U.S. Dist. LEXIS 120504 (M.D. Ga. Aug. 29, 2014)
October 22, 2014 (PRIVILEGE POINT)

“Several Courts Deal with the "At Issue" Doctrine: Part II”

Last week's Privilege Point discussed the "at issue" doctrine, which can trigger an attorney-client privilege waiver without the litigant disclosing, relying on, or referring to privileged communications. Most courts recognizing the doctrine apply it only if the litigant affirmatively raises an issue to gain some advantage in litigation, rather than simply denies the adversary's allegations.

In Barker v. Columbus Regional Healthcare System, Inc., Case No. 4:12-cv-108 (CDL), 2014 U.S. Dist. LEXIS 120504 (M.D. Ga. Aug. 29, 2014), the court took a far more expansive approach. The plaintiff claimed that defendants violated the False Claims Act and other statutes by submitting false claims "with the intent to violate the law." Id. at *4. Defendant Columbus disclaimed an "advice of counsel" defense, and also disclaimed any intent to rely on privileged communications — but stated its intent "to offer evidence at trial that it believed its conduct was lawful." Id. at *4-5. The court concluded that Columbus "intend[ed] to do more than merely deny the essential elements of Plaintiff's claim" or "simply to argue that Plaintiff failed to carry its burden of proof." Id. at *11. Instead, the court held that by intending to assert its good faith belief that it had complied with the law, Columbus "injected its belief as to the lawfulness of its conduct." Id. at *7. That triggered a privilege waiver "as to communications relating to the legality of the transactions that form the basis of Plaintiff's claims." Id. The court therefore ordered Columbus to produce "all communications between it and its attorneys" relating to the lawfulness of its pertinent conduct — up to the date Plaintiff filed his compliant. Id. at *12.

Most courts do not recognize such a broad "at issue" doctrine. However, "at issue" waivers represent the most frightening way that litigants can lose their privilege — because "at issue" waivers do not depend on a litigant disclosing, relying on, or referring to privileged communications.

Case Date Jurisdiction State Cite Checked
2014-08-29 Federal GA
Comment:

key case


Chapter: 29.602
Case Name: Cambios v. Morgenthau, 109227/07, 2014 N.Y. Misc. LEXIS 3155, at *8, *9, *10, *10-11 (N.Y. Sup. Ct. July 7, 2014)
(finding an "at issue" waiver, because the timing of the plaintiff's knowledge was a key fact; "'At issue' waiver is often found in cases where a client asserts reliance on counsel's advice as a defense to an action. See, e.g., Orco Bank, supra. 'However, the waiver has been applied more broadly to cover circumstances in which a client does not expressly claim that he has relied on counsel's advice, but where the truth of the parties' position can only be assessed by examination of a privileged communication (citations omitted).'"; "[I]n the case at bar, witnesses for both plaintiffs testified at their depositions that they became aware of the forfeiture action when their accounts maintained through BHSC at JPMorgan Chase were frozen and they no longer had access to their funds, thus prompting the retention of FHC as counsel. Plaintiffs retained FHC for the purpose of keeping them abreast of the status of proceedings involving BHSC as such proceedings pertained to their frozen accounts. Testifying on Tupi's behalf, Lovera Bareiro disclosed that counsel recommended a 'wait and see' approach, i.e., to wait until the proceedings against BHSC were resolved." (footnotes omitted); "Indeed, plaintiffs' own counsel questioned both witnesses at their depositions regarding advice received from FHC. Testifying for Slemish, Costa Meza stated that FHC never advised him that restrained funds were at risk of being forfeited, that he was never notified as to the nature of charges pending against BHSC and that he had not been advised that BHSC was required to have a New York banking license to operate its business." (footnotes omitted); "In the case at bar, plaintiffs' actual notice and/or knowledge with respect to the forfeiture action against BHSC and the restraint of their funds has been placed at issue. After their funds were frozen, FHC as counsel provided information to plaintiffs with respect to the BHSC proceedings. The specifics of what plaintiffs knew and when they knew it are key to the viability of their remission causes of action and communications with FHC are likely to shed light on these questions. Tupi makes no claim that the DA could obtain such information from another non-privileged source.")

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

Chapter: 29.602
Case Name: Ad Investment 2000 Fund LLC v. Commissioner of Internal Revenue; Ad Global 2000 Fund LLC v. Commissioner of Internal Revenue, Dkt. Nos. 9177-08, 9178-08, 2014 U.S. Tax Ct. LEXIS 14 (U.S.T.C. Apr. 16, 2014)
("Petitioners' averments that the partnerships satisfied the belief requirement by the first method put into dispute the partnerships' knowledge of the pertinent legal authorities. Petitioners' averments also put into contention the partnerships' understanding of those legal authorities and their application of the legal authorities (i.e., the law) to the facts. Finally, the averments put into contention the basis for the partnership' belief that, if challenged, their tax positions would more likely than not succeed in the courts. Petitioners have thus placed the partnerships' legal knowledge, understanding, and beliefs into contention, and those are topics upon which the opinions may bear. If petitioners are to rely on the legal knowledge and understanding of someone acting for the partnerships to establish that the partnerships reasonably and in good faith believed that their claimed tax treatment of the items in question was more likely than not the proper treatment, it is only fair that respondent be allowed to inquire into the bases of that person's knowledge, understanding, and beliefs including the opinions (if considered)."; "Petitioners' averments in support of their affirmative defenses to respondent's determination of accuracy-related penalties put into contention the state of mind of those who acted for the partnership and the partnerships' good-faith efforts to comply with the tax law. If petitioners persist in those defenses, it would be unfair to deprive respondent of knowledge of the contents of the opinions and the opportunity to put those opinions into evidence. If petitioners persist, they sacrifice the privilege to withhold the contents of the opinions.")

Case Date Jurisdiction State Cite Checked
2014-04-16 Federal Other

Chapter: 29.602
Case Name: Ad Investment 2000 Fund LLC v. Commissioner of Internal Revenue , Dkt. Nos. 9177-08, 9178-08, 2014 U.S. Tax Ct. LEXIS 13 (Tx. Ct. April 16, 2014)
("By putting the LLCs' legal knowledge and understanding into contention in order to establish a good-faith and state-of-mind defenses, Ps forfeit the LLCs' privilege protecting attorney-client communications relevant to the content and the formation of their legal knowledge, understanding, and beliefs; an order directing production will be issued."; "Held, further, if Ps fail to comply with the order directing protection, the Court will consider the sanction of preventing Ps, in support of affirmative defenses, from introducing evidence of the LLCs' reasonable beliefs and state of mind.")

Case Date Jurisdiction State Cite Checked
2014-04-16 State TX

Chapter: 29.602
Case Name: Ad Investment 2000 Fund LLC v. Comm'r of Internal Revenue, Dkt. Nos. 9177-08, 2014 U.S. Tax Ct. LEXIS 13 (Tx. Ct. April 16, 2014)
(holding that plaintiffs' assertion of a good faith state-of-mind defense triggered an at issue waiver; "In defense to respondent's [IRS] determination of accuracy-related penalties generally, petitioners aver: 'Any underpayment of tax was due to reasonable cause and with respect to which the Partnership and its partners acted in good faith.' . . . Petitioners deny, however, that their averments bring professional advice (i.e., the opinions) into question."; "When a person puts into issue his subjective intent in deciding how to comply with the law, he may forfeit the privilege afforded attorney-client communications."; "To satisfy the belief requirement by the first method (i.e., under section 1.6662-4(g)(4)(i)(A), Income Tax Regs.) petitioners must show that partnerships 'analyze[d] the pertinent facts and [legal] authorities . . . and in reliance upon that analysis, reasonably . . . conclude[d] in good faith that there . . . [was] a greater than 50-percent likelihood that the tax treatment of the item . . . [would] be upheld if challenged by the Internal Revenue Service.' Petitioners' averments that the partnerships satisfied the belief requirement by the first method put into dispute the partners' knowledge of the pertinent legal authorities. Petitioners' averments also put into contention the partnerships' understanding of those legal authorities and their application of the legal authorities (i.e., the law) to the facts. Finally, the averments put into contention the basics for the partners' belief that, if challenged, their tax positions would more likely than not succeed in the courts. Petitioners have thus placed the partnerships' legal knowledge, understanding, and beliefs into contention, and those are topics upon which the opinions may bear. If petitioners are to rely on the legal knowledge and understanding of someone acting for the partnerships to establish that the partnerships reasonably and in good faith believed that their claimed tax treatment of the items in question was more likely than not the proper treatment, it is only fair that respondent be allowed to inquire into the bases of that person's knowledge, understanding, and beliefs including the opinions (if considered)." (emphasis added); "Petitioners' averments in support of their affirmative defenses to respondent's determination of accuracy-related penalties put into contention the state of mind of those who acted for the partnerships and the partnerships' good faith efforts to comply with the tax law. If petitioners persist in those defenses, it would be unfair to deprive respondent of knowledge of the contents of the opinions and the opportunity to put those opinions into evidence. If petitioners persist, they sacrifice the privilege to withhold the contents of the opinions." (emphasis added); "We will set the motions for hearing insofar as they ask us to sanction petitioners for failure to comply with our order granting the motions, with an eye, if there is noncompliance, toward prohibiting petitioners from introducing evidence that the partnerships met the belief requirement by self-determination or that someone acting for the partnership had a good-faith and honest misunderstanding." (emphases added)).

Case Date Jurisdiction State Cite Checked
2014-04-16 Federal TX

Chapter: 29.602
Case Name: Klemp v. Columbia Collection Serv., Inc., No. 3:13-cv-01577-PK, 2014 U.S. Dist. LEXIS 6248, at *2, *8-10 (D. Ore. Jan. 17, 2014)
("On December 27, 2013, plaintiff deposed Joseph Galvan, Columbia's Federal Rule of Civil Procedure 30(b)(6) representative. During the deposition, plaintiff asked Galvan how Columbia arrived at the amounts requested in its counterclaims filed in the small-claims actions. Galvan declined to answer, citing attorney-client privilege. Plaintiff also asked Galvan about a conversation Columbia's attorney, David Schumacher, had with a court clerk. Again, Galvan refused to answer on the basis of attorney-client privilege."; "Applying the Hearn test, I find that Columbia waived its attorney-client privilege with respect to its communications with Mr. Schumacher about the amount of its counterclaims. Under the first prong of the Hearn test, Columbia is asserting its privilege as a result of the affirmative act of filing counterclaims in the underlying small-claims cases. Second, Columbia has placed the privileged communications at issue. The record reflects numerous instances in which plaintiff's counsel asked Galvan, Columbia's Rule 30(b)(6) representative, what evidence Columbia relied on in filing its counterclaims. Galvan primarily responded that he relied on privileged communications with Columbia's attorney, Mr. Schumacher. . . . Finally, under the third prong of the Hearn test, the substance of the communications Columbia had with Mr. Schumacher is vital to plaintiff's case. Absent disclosure of the privileged communications, plaintiff has no means of determining why Columbia asserted counterclaims for $10,000 to $35,000, which is highly relevant to plaintiff's second claim. In light of the foregoing, I find that Columbia impliedly waived its attorney-client privilege and, therefore, must disclose the substance of the communications it had with Mr. Schumacher concerning the amount of the counterclaims filed in small-claims court.")

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

Chapter: 29.602
Case Name: In re Processed Egg Prods. Antitrust Litig., 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. 2014) *22-*26
(holding that an antitrust defendant did not cause an "at issue" waiver by asserting a good faith defense; "Judge Rice determined that the Supplier Defendants had not waived attorney-client privilege by their assertion of a good faith defense. He reasoned that because the 'Supplier Defendants have asserted that their good faith defense is not based on any advice directly obtained from UEP's and USEM's attorneys,' the Supplier Defendants have not put any privileged communications at issue. Order at 2. The Court affirms this outcome and reasoning."; "Judge Rice determined that merely asserting a generalized good faith defense does not waive attorney-client privilege. Rather, a litigant must 'take[] the affirmative step in the litigation to place the advice of [counsel] in issue.' Rhone-Poulenc Rorer, Inc. v. Home Indem., 32 F.3d 851, 863 (3d Cir. 1994)."; "The Court agrees with Judge Rice that advice of counsel is not an essential element of the good faith defense in this case."; "Here . . . Supplier Defendants have not interjected the advice of counsel as an essential element of their good faith defense. Rather, Supplier Defendants are explicitly asserting that they are not relying on the advice of counsel in asserting their good faith defense, and, like in Rhone-Poulenc, their good faith defense does not necessarily require placing advice of counsel at issue. Admittedly, the advice Supplier Defendants received from legal counsel is likely relevant to their good faith belief. However, as Judge Rice noted, privilege is not waived 'merely by taking a position that [privileged communication] might contradict.'. . . Supplier Defendants' good faith defense is based only on what they learned from non-attorney personnel.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal PA

Chapter: 29.602
Case Name: Phelps v. MC Commc'ns, Inc., No. 2:11-cv-00423-PMP-VCF, 2013 U.S. Dist. LEXIS 101965, at *61 (D. Nev. July 22, 2013)
(finding that a defendant asserting its good faith under the Fair Labor Standards Act triggered a limited at issue waiver; "The court finds that 'the truth of [defendants' 9th and 11th affirmative defenses] can only be assessed by examination' of communications demonstrating defendants' knowledge of the legalities of its alleged actions and of its obligations relating thereto under the FLSA [Fair Labor Standards Act], and that the 'at issue' exception applies to these communications outlined above only." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-07-22 Federal NV B 4/14

Chapter: 29.602
Case Name: Phelps v. MC Commc'ns, Inc., No. 2:11-cv-00423-PMP-VCF, 2013 U.S. Dist. LEXIS 101965, at *42-43 (D. Nev. July 22, 2013)
(finding that a defendant asserting its good faith under the Fair Labor Standards Act triggered a limited at issue waiver; "Defendants stress to the court that their affirmative defenses are not based on attorney-client communications. . . . Defendants contend that '[n]umerous courts have recognized that the affirmative defenses of good faith and lack willfulness under the FLSA [Fair Labor Standards Act] may be established based on information other than the advice of counsel,' and that 'nothing in the text of the FLSA requires that these defenses be based on advice of counsel. See 29 U.S.C. §§ 255,260.' . . . The court in Harter v. Univ. of Indianapolis, 5 F.Supp.2d 657, 664 (S.D. Ind. 1998), held that '[t]he better-reasoned cases hold, however, that when a client files a lawsuit in which his or her state of mind (such as good faith or intent) may be relevant, the client does not implicitly waive the attorney-client privilege as to all relevant communications unless the client relies specifically on advice of counsel to support a claim or defense.' Defendants argue that this seems to be the majority view, and cite several cases for this position." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-07-22 Federal NV B 4/14

Chapter: 29.602
Case Name: Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist. LEXIS 179609, at *7 (S.D.N.Y. Dec. 19, 2012)
(finding defendant Hearst's "good faith" defense to a Fair Labor Standards Act claim triggered an at issue waiver; "Thus, Defendant's good faith defense in this case undoubtedly raises the possibility of implied waiver, and the question before this Court is '[w]hether fairness requires disclosure' in the 'specific context in which the privilege is asserted.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-12-19 Federal NY B 9/13

Chapter: 29.602
Case Name: Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist. LEXIS 179609, at *5 (S.D.N.Y. Dec. 19, 2012)
(finding defendant Hearst's "good faith" defense to a Fair Labor Standards Act claim triggered an at issue waiver; "Defendant contends that the attorney-client privilege applies because its good faith defense would not rely on 'legal advice,' citing court cases from other circuits for the proposition that '[t]here are many ways to establish good faith under the FLSA that do not involve the advice of counsel.' Not so here. In Bilzerian [United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991)], for instance, the Second Circuit squarely rejected the defendant's argument that there was no waiver because 'the testimony he sought to introduce regarding his good faith . . . would not have disclosed the content or even the existence of any privileged communications or asserted a reliance of counsel advice.' . . . The Circuit reasoned that the waiver principle was nonetheless applicable because the defendant's 'testimony that he thought his actions were legal would have put his knowledge of the law and the basis of his understanding of what the law required in issue,' and that '[h]is conversations with counsel regarding the legality of his schemes would have been directly relevant in determining the extent of his knowledge and, as a result, his intent.' (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-12-19 Federal NY B 9/13

Chapter: 29.602
Case Name: Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist. LEXIS 179609, at *8 (S.D.N.Y. Dec. 19, 2012)
(finding defendant Hearst's "good faith" defense to a Fair Labor Standards Act claim triggered an at issue waiver; "I find it difficult to imagine that a good faith defense regarding the FLSA raised by a corporation as large and as sophisticated as Hearst would not involve the advice of its legal department, and the section of the deposition provided to me confirms at least that much. The deposition, for instance, suggests that the human resources department may not itself be familiar with the reason why Defendant's magazines require interns to submit school credit letters, which raises rather than diminishes the possibility of the legal department's involvement.")

Case Date Jurisdiction State Cite Checked
2012-12-19 Federal NY B 9/13

Chapter: 29.602
Case Name: Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist. LEXIS 179609, at *3 (S.D.N.Y. Dec. 19, 2012)
February 20, 2013 (PRIVILEGE POINT)

"Does Asserting a "Good Faith" Defense Trigger a Privilege Waiver?"

In contrast to express waivers (which involve the disclosure of privileged communications), implied waivers can occur without such disclosure. The most common type of implied waiver involves the client's explicit reliance on the fact of a privileged communication – such as filing an "advice of counsel" affirmative defense.

The most extreme form of implied waiver is called an "at issue" waiver. This type of waiver can occur if the client affirmatively advances some position that justifies analyzing the client's mental state or motivation – including any legal input. In Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist. LEXIS 179609, at *3 (S.D.N.Y. Dec. 19, 2012), defendant Hearst Corp. filed an affirmative defense that it had acted in "good faith" in trying to comply with the Fair Labor Standards Act and a parallel New York law. Plaintiff claimed that the defense triggered an "at issue" waiver. Hearst resisted, "citing court cases from other circuits for the proposition that '[t]here are many ways to establish good faith under the FLSA that do not involve the advice of counsel.'" Id. At *5. Judge Harold Baer rejected defendant's argument, citing an earlier Second Circuit case holding that "'testimony that [a litigant] thought his actions were legal would have put his knowledge of the law and the basis of his understanding of what the law required in issue.'" Id. At *6 (citation omitted). The court did not order defendant to immediately produce the documents, instead directing an in camera review which presumably would use this unforgiving standard.

"At issue" waivers represent a real danger, because corporations can trigger such waivers without disclosing any privileged communications, or explicitly relying on or even referencing privileged communications.

Case Date Jurisdiction State Cite Checked
2012-12-19 Federal NY
Comment:

key case


Chapter: 29.603
Case Name: In re Itron, Inc., No. 17-60733, 2018 U.S. App. LEXIS 4136 (5th Cir. App. Feb. 21, 2018)
(analyzing the implied waiver and at issue implications of a corporate buyer who settled a claim by a third party and then sued a corporate seller for negligent misrepresentation; explaining that the corporate buyer sought recovery from the seller of the settlement amount and litigation costs; holding that the reasonableness of the settlement involved an objective standard, and therefore did not trigger an implied waiver or at issue waiver; "Itron objected that many if not all of these materials are shielded from disclosure by the attorney-client privilege. But the magistrate judge disagreed, concluding that Itron waived its privilege by filing a lawsuit to which the attorney-client communications would be relevant. That was error."; "We hold that the mere act of filing this lawsuit effected no waiver of any attorney-client privilege. We further hold that the magistrate judge's contrary ruling amounted to clear error warranting mandamus relief. We therefore GRANT Itron's petition for mandamus, VACATE the magistrate judge's order, and REMAND the case with instructions to re-evaluate Defendants' motion in a manner consistent with this opinion.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal
Comment:

key case


Chapter: 29.603
Case Name: In re Itron, Inc., No. 17-60733, 2018 U.S. App. LEXIS 4136 (5th Cir. App. Feb. 21, 2018)
(analyzing the implied waiver and at issue implications of a corporate buyer who settled a claim by a third party and then sued a corporate seller for negligent misrepresentation; explaining that the corporate buyer sought recovery from the seller of the settlement amount and litigation costs; holding that the reasonableness of the settlement involved an objective standard, and therefore did not trigger an implied waiver or at issue waiver; "[A] client waives the privilege by affirmatively relying on attorney-client communications to support an element of a legal claim or defense -- thereby putting those communications 'at issue' in the case."; "This opinion does not concern the 'anticipatory waiver' version of this rule, which finds waiver 'when a privilege-holder pleads a claim or a defense in such a way that he will be forced inevitably to draw upon a privileged communication at trial in order to prevail,' Smith v. Kavanaugh, Pierson & Talley, 513 So. 2d 1138, 1145 (La. 1987), and which no party has invoked."; "Defendants would have us broaden the Jackson Medical [Jackson Medical Clinic for Women, P.A. v. Moore, 836 So. 2d 767, 773 (Miss. 2003)] rule such that waiver occurs whenever the client files a lawsuit to which privileged communications, if disclosed, might prove 'highly relevant' -- even if the client never relies on or uses those communications to make her legal case. The magistrate judge embraced a more expansive rule, requiring only simple relevance. These expansions of Jackson Medical find no support in the Mississippi Rules of Evidence, see Miss. R. Evid. 502(d), or any Mississippi caselaw. And given Jackson Medical and other persuasive authorities, we conclude this is not the law the Mississippi Supreme Court would apply."; "Our circuit and others agree that '[r]elevance is not the standard for determining whether or not evidence should be protected from disclosure as privileged, . . . even if one might conclude the facts to be disclosed are vital, highly probative, directly relevant or even go to the heart of an issue.' Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994) (emphasis added)."; "Defendants fall back on dicta in an out-of-circuit federal district court opinion, decided in 1975, which no reported Mississippi case has cited. The case is Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)."; "Here, Defendants ask us to apply an interpretation of Hearn that would require only that the privileged material have high relevance to case. But as discussed above, that view has no basis in Mississippi law, contradicts prevailing notions of waiver, and would effectively nullify the privilege."; "Even accepting for the sake of argument that the privilege takes flight whenever privileged communications become 'highly relevant' to an adversary's defense -- which, we emphasize, it does not -- Defendants still fail to show how Itron's privileged communications meet that standard."; "Defendants' primary theory of relevance apparently concerns whether Itron took reasonable steps to mitigate its damages. According to Itron's complaint, Defendants' negligent misrepresentations caused Itron to become liable to Consert, necessitating the Consert litigation which Itron eventually settled. There is thus a colorable argument that, under ordinary tort principles, Itron cannot recover the cost of the settlement as damages to the extent Defendants show the settlement to have been unreasonable. See Rolison v. Fryar, 204 So. 3d 725, 736 (Miss. 2016) ("An injured party has a duty to take reasonable steps to mitigate damages."); see also Wall v. Swilley, 562 So. 2d 1252, 1258 (Miss. 1990) (in Mississippi, failure to mitigate 'is an affirmative defense' defendants must plead and prove)."; "But this does not render the opinions of Itron's counsel 'highly relevant.' Instead, '[t]he reasonableness of the settlement . . . [must] be examined under an objective standard.'"; "Defendants similarly claim they must see Itron's privileged communications to know 'whether Itron's settlement damages are attributable to [Defendants], a third party, or Itron itself.' Although Defendants' argument is not entirely clear, they apparently seek to uncover that Itron followed unreasonable advice from its law firm (Gibson Dunn), which might arguably relieve Defendants of liability as a superseding cause."; "Either way, the argument fails for at least the reasons just discussed: Both potential theories turn on whether Itron engaged in a course of action that was objectively reasonable. And as discussed above, the objective reasonableness of Itron's conduct should be apparent from the facts known to Itron at the time (which again, are not privileged) coupled with objective legal analysis.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal
Comment:

key case


Chapter: 29.603
Case Name: Aboudara v. City of Santa Rosa, Case No. 17-cv-01661-HSG (JSC), 2018 U.S. Dist. LEXIS 10033 (N.D. Cal. Jan. 22, 2018)
(allowing a defendant to withdraw its reliance on legal advice to demonstrate its "good faith" in an FLSA case, thus eliminating any implied waiver risk; "Defendant's willfulness is an issue in this case. If Plaintiff proves Defendant violated the FLSA and that the violation was willful, that finding lengthens the statute of limitations and requires an award of liquidated damages. 29 U.S.C. § 255(a); 29 U.S.C. § 260. Accordingly, in its Amended Answer Defendant raises an affirmative defense of good faith and specifically alleges that it acted in good faith because, among other things, 'Defendant consulted with legal counsel regarding its FLSA compliance.' (Dkt. No. 31 at 8:4-5.) There is no question that this reliance on the advice of legal counsel waives the privilege as to that advice."; "Since the filing of its Amended Answer, however, Defendant has had a change of heart and has decided not to rely on any advice of counsel. When Ms. Keeton was deposed, Defendant prohibited her from answering any questions as to advice she received and Defendant has refused to produce any documents reflecting such advice. It asserts that it has offered to stipulate that it will not in any way rely on advice of counsel in support of its good faith defense and will move to amend its answer if need be. Plaintiff does not dispute this offer, but instead maintains that Defendant's good faith defense in itself waives the privilege. The Court disagrees."; "To accept Plaintiff's argument would mean that any time a defendant disputes a plaintiff's willfulness allegation the plaintiff would be entitled to discovery regarding any legal advice the defendant received on the relevant issue. The defendant would therefore, in effect, be required to admit to willfulness (assuming an FLSA violation is found) if it wanted to maintain its attorney-client privilege."; "Such a consequence would discourage parties from obtaining legal advice in the first instance, and thus run contrary to the very purpose of the attorney-client privilege. . . . To the extent the out-of-circuit district court cases cited by Plaintiff hold to the contrary, this Court simply disagrees. The Ninth Circuit has never held that merely asserting good faith waives the attorney-client privilege as to communications with counsel regarding the topic at issue. This Court, too, declines to do so."; "The outcome of this motion might be different if Defendant had followed up on its affirmative defense with reliance on the fact that it sought advice of counsel in its discovery responses. But Plaintiff does not point to any such reliance and does not otherwise identify how it would be prejudiced by allowing Defendant to withdraw its statement in its Amended Answer. Of course, Defendant is now bound by its current representation and may not in any way rely on the fact that legal advice was sought.")

Case Date Jurisdiction State Cite Checked
2018-01-22 Federal CA
Comment:

key case


Chapter: 29.603
Case Name: Secretary U.S. Dept. of Labor v. Am. Future Sys., Inc., No. 16-2685, 2017 U.S. App. LEXIS 19991 (3rd Cir. Oct. 13, 2017)
(in an FLSA case; of liquidated damages based in part on defendant's refusal to waive its attorney-client privilege; "In assessing liquidated damages, the District Court noted that Satell sought advice of counsel, but he refused to waive the attorney-client privilege and disclose this advice to the court. Satell's testimony placed the court in an untenable position of having to assume that counsel's advice was consistent with the adopted policy while ignoring the fact that Satell refused to tell the court what counsel advised. The District Court concluded that, given the unwillingness to share what it was told by counsel, 'it is entirely possible that Defendants implemented the new break policy in 2009, despite being told by one or more of its lawyers that the policy violated the FLSA. It would be an absurd result to classify such conduct as 'good faith' . . . .'"; "Progressive argues that the District Court abused its discretion in finding that it did not act in good faith when setting its break policy simply because Progressive refused to waive its attorney-client privilege. It claims that the District Court's decision punishes Progressive for seeking legal advice that was not essential to a good-faith determination, as employers are not required to seek legal advice to demonstrate good faith. Thus, according to Progressive, the District Court's decision will discourage open and confident relationships between clients and attorneys. That may be so, but we, like Judge Restrepo, are incredulous that an employer in this situation would decline to share the legal advice it received when the issue of good faith is raised, and we will not preclude a court from considering this in its thought process.")

Case Date Jurisdiction State Cite Checked
2017-10-13 Federal
Comment:

key case


Chapter: 29.603
Case Name: Secretary U.S. Dept. of Labor v. Am. Future Sys., Inc., No. 16-2685, 2017 U.S. App. LEXIS 19991 (3rd Cir. Oct. 13, 2017)
("In assessing liquidated damages, the District Court noted that Satell sought advice of counsel, but he refused to waive the attorney-client privilege and disclose this advice to the court. Satell's testimony placed the court in an untenable position of having to assume that counsel's advice was consistent with the adopted policy while ignoring the fact that Satell refused to tell the court what counsel advised. The District Court concluded that, given the unwillingness to share what it was told by counsel, 'it is entirely possible that Defendants implemented the new break policy in 2009, despite being told by one or more of its lawyers that the policy violated the FLSA. It would be an absurd result to classify such conduct as 'good faith' . . . .'"; "Progressive argues that the District Court abused its discretion in finding that it did not act in good faith when setting its break policy simply because Progressive refused to waive its attorney-client privilege. It claims that the District Court's decision punishes Progressive for seeking legal advice that was not essential to a good-faith determination, as employers are not required to seek legal advice to demonstrate good faith. Thus, according to Progressive, the District Court's decision will discourage open and confident relationships between clients and attorneys. That may be so, but we, like Judge Restrepo, are incredulous that an employer in this situation would decline to share the legal advice it received when the issue of good faith is raised, and we will not preclude a court from considering this in its thought process.")

Case Date Jurisdiction State Cite Checked
2017-10-13 Federal

Chapter: 29.603
Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)
("The next 'issue injection' issue to consider is whether Defendants have expressly waived the attorney-client privilege by asserting certain affirmative defenses. Specifically, Defendants have asserted good faith affirmative defenses . . . and they have asserted that Plaintiffs were exempt from the FLSA's minimum wage and overtime compensation requirements . . . . But importantly, Defendants have never expressly stated that they are relying upon advice of counsel to support any defense in this case. An express reliance upon advice of counsel to support Defendants' affirmative defenses would waive the attorney-client privilege as to attorney-client communications related to such advice. However, Defendants are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case. In fact, they have specifically stated that they are not going to adduce any evidence or testimony about any advice of counsel Defendants received."; "The above cited relevant case law, when read carefully as a whole, puts cases into three general categories. First, the case law is in agreement that a mere denial of willfulness does not amount to issue injection which would impliedly waive the attorney-client privilege. Second, asserting an affirmative defense (such as good faith in an FLSA case) that explicitly states that a defendant relied on the advice of counsel, or refers to advice or consultation with counsel to support such affirmative defense, does amount to issue injection sufficient to waive the attorney-client privilege. Third, the more nuanced situation, which is similar to what we have here, is whether issue injection sufficient to waive the attorney-client privilege occurs when a defendant in an FLSA case asserts a good faith (or outside sales exemption) affirmative defense, but does not explicitly mention reliance on advice of counsel in that affirmative defense and further represents that it does not intend to rely on counsel's advice to support such defense. Courts seem to require something additional to find issue injection in this third category of cases.")

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

Chapter: 29.603
Case Name: In re Namenda Direct Purchaser Antitrust Litig., 15 Civ. 7488 (CM) (JCF), 2017 U.S. Dist. LEXIS 76675 (S.D.N.Y. May 19, 2017)
(concluding that the court could not yet analyze an applicable at issue doctrine argument; "The question here, then, is whether Forest's factual assertions in this litigation regarding the infringement settlements -- that its settlement positions were based on its assessment of the likely outcomes of the actions, that the '703 patent was valid, that the settlements were made in good faith in light of these and other business concerns, and the like -- can only be tested by recourse to attorney-client communications or attorney work product as to the strength of the patent and the legality of the settlement."; "Given the current stage of discovery and Forest's representations, I cannot determine that Forest has broadly waived attorney-client privilege and work product protection at this time."; "Let me be clear: it is Forest's burden to establish that it has not waived privilege. . . . It is not acceptable for Forest to take the position 'Trust us. The justifications we are putting forward here are why we settled.'. . . Thus, Forest will have to back up with argument and evidence any contention as to why the 'subjective beliefs' on which it plans to rely do not, in fact, implicate privileged communications based on the guidelines applied in Lidoderm [Lidoderm, No. 14-md-2521, 2016 U.S. Dist. LEXIS 105619, 2016 WL 4191612, at *1 (N.D. Cal. August 9, 2016)] and similar cases. If there are disputes as to this issue, I will resolve them after receiving submissions on a truncated briefing schedule.")

Case Date Jurisdiction State Cite Checked
2017-05-19 Federal NY

Chapter: 29.603
Case Name: Leftwich v. City of Pittsburgh, Case No. 16-2112-JWL-GLR, 2017 U.S. Dist. LEXIS 56627 (D. Kansas April 12, 2017)
(holding that a litigant claiming an affirmative defense of qualified immunity did not waive privilege protection, but that the defendant did waive privilege protection through deposition testimony about the reasons for an employment termination; "Defendants essentially argue that the first condition is not met, because they have not taken an affirmative act to put the privileged information at issue by making it relevant to the case. Plaintiff, however, suggests their assertion of the defense of qualified immunity is itself an affirmative act. Qualified immunity serves 'to protect public officials who act in good faith, on the basis of objectively reasonable understandings of the law at the time of their actions, from personal liability on account of later-announced, evolving constitutional norms.' Defendants contend they have 'made it abundantly clear that Defendants do not intend to rely on advice or counsel from the city attorney in furtherance of [their defense(s)] . . . Defendants are not relying on the privileged legal advice from the city attorney as part of any defense in this case and have not otherwise put the legal advice at issue.'"; "The mere assertion of a defense, here qualified immunity, does not operate to waive the privilege. Similar to Heglet [Heglet v. City of Hays, Kan., No. 13-2228-KHV/KGG, 2014 U.S. Dist. LEXIS 35738, 2014 WL 1094458, at *3 (D. Kan. Mar. 19, 2014)], there is here no clear showing that Defendants have gone further than to merely assert the defense. If Defendants assert that their consultation with the City Attorney caused or justified their conduct (which, as quoted above, they adamantly deny they will do), that affirmative act would waive the privilege. At this point, however, Defendants have not waived attorney-client privilege by merely asserting a defense of qualified immunity.")

Case Date Jurisdiction State Cite Checked
2017-04-12 Federal KS

Chapter: 29.603
Case Name: N.J. Manufacturers Ins. Co. v. Brady, Civ. A. No. 3:15-CV-02236, 2017 U.S. Dist. LEXIS 8268 (M.D. Pa. Jan. 20, 2017)
(finding that litigant did not trigger an at issue doctrine waiver by saying that it relied on advice of counsel; "The Court concludes that NJM has not waived its privilege with respect to the confidential communications in the NJM file by affirmatively placing its attorneys' advice at issue. First, NJM is not attempting to prove a claim or defense by disclosing or describing an attorney-client communication. Rather, it is the Defendants who seek confidential communications between NJM and Curtin & Heefner to ultimately support their own defenses that (1) NJM would have successfully molded the arbitration award to the policy limits had it not elected to settle, and (2) NJM was motivated to settle because of its exposure to bad faith liability. . . . Because NJM has not taken an affirmative step to place the advice of counsel in issue in order to prove an essential element of its malpractice claim or any defense, the Court concludes it has not implicitly waived the attorney-client privilege with respect to the confidential communications in the NJM file."; "[J]ust as the content of the deposition testimony of Bartolino and Buurma does not constitute an express waiver, it also does not place the confidential communications sought "at issue" in the litigation. No testimony cited by Defendants disclosed or described the details of any confidential communication made between NJM and Curtin & Heefner. . . . The mere fact that a party states that it relied on the advice of counsel in making a decision, standing alone, does not show that the party took an 'affirmative step' to place that advice in issue.")

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

key case


Chapter: 29.603
Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640 (D. Ariz. Dec. 21, 2016)
(holding that Union Pacific did not waive its privilege protection by contending that it acted lawfully; "Plaintiffs claim that Defendants have waived the attorney-client privilege for Exhibits A-F by asserting that their easement practices are lawful. Specifically, Plaintiffs cite an affirmative defense asserted by Union Pacific which states that 'conduct alleged in the Complaint conformed with all state and federal statutes, regulations, and other law based upon the state of knowledge at all relevant times alleged in the Complaint.'. . . Plaintiffs claim that this puts in issue Union Pacific's knowledge of legal matters during the relevant times periods, and note that Kinder Morgan has adopted the same defense by incorporation."; "The Court finds the reasoning in Rhone-Poulenc [Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994)] and Erie [In re Cnty. of Erie, 546 F.3d 222, 228 (2d Cir. 2008)] truer to the intent and nature of the attorney-client privilege than Hearn [Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)]. Waiver requires that a party put the advice of counsel at issue, either by asserting that it relied on that advice or, as in Amlani, placing the attorney-client communications squarely in the case. Defendants have not done so. They do not claim that they should prevail in this case because they relied on advice of counsel. Nor do Plaintiff's claims lend themselves to such a defense. Plaintiffs sue for trespass, quiet title, ejectment, inverse condemnation, unjust enrichment, recovery of rents, and an accounting. . . . These claims will turn on whether Defendants had title to the property they occupied, not whether they reasonably believed so based on the advice of counsel.")

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

Chapter: 29.603
Case Name: Roseman v. Bloomberg L.P., No. 14-CV-2657 (TPG) (KNF), 2016 U.S. Dist. LEXIS 89595, at *19-20 (S.D.N.Y. June 17, 2016)
("The defendant asserts that it did not waive its attorney-client privilege or work-product protection merely by denying the plaintiffs' allegations that the defendant acted willfully in violating the Fair Labor Standards Act ('FLSA'), while not injecting any new legal or factual issue into the action, and the plaintiffs' mischaracterization of the defendant's denial of willfulness as an affirmative defense is 'a flawed effort to shift the burdens and support their waiver argument.' The defendant maintains that it does not intend to rely on the advice of counsel or any other state-of-mind evidence or assert an affirmative good faith defense in defeating Me plaintiffs' willfulness claim."; "[T]he plaintiffs asserted that they intend to question Asman and Golden [defendant's lawyers] concerning their advice to the defendant about overtime pay decisions. Moreover, the plaintiffs contend in their opposition that the purpose of deposing counsel is to ascertain from counsel: (a) what the defendant did to learn about its legal wage-hour obligations; (b) what it learned; and (c) what it did to comply with its obligations. These questions appear certain to involve privileged communications between counsel and the defendant as well as the work-product doctrine. Indeed, the plaintiffs concede that they seek privileged and protected information by arguing that the attorney-client privilege or work-product protection have been waived by the defendant. Upon considering the circumstances of this case, including the fact that the purpose of deposing the defendant's counsel is almost exclusively to elicit privileged communications and protected information, the Court finds that the defendant established good cause for the issuance of a protective order.")

Case Date Jurisdiction State Cite Checked
2016-06-17 Federal NY
Comment:

key case


Chapter: 29.603
Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)
(ultimately not deciding whether a deponent's one word deposition answers triggered an at issue waiver; "We turn now to the question of at-issue waiver. While our supreme court has recognized some implied waivers of the attorney-client privilege . . . it has not yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that federal caselaw has recognized an at-issue waiver, but the court declined to address the issue because it was not necessary in the case before it. . . . Nor has this court recognized an at-issue waiver."; "Truscott was compelled in a deposition -- in a case in which she is a defendant -- to answer respondents' questions as to whether she relied on the advice of her counsel. She gave one-word responses to the questions. These compelled responses are not affirmative steps taken by a client to place privileged communications 'at issue.' . . . Respondents have cited no case where a defendant's answer to such a question in a deposition effects an implied waiver of the attorney-client privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants in depositions if they relied on the advice of their counsel in taking an action. Defendants who wisely sought legal advice before terminating an employee, publishing a news article, or taking any other number of actions later giving rise to a claim where their state of mind is at issue would find their privileged communications subject to discovery simply because they truthfully responded in a deposition that they relied on the advice of counsel. Such an implied waiver could chill parties from being candid with their counsel or even seeking legal advice."; "Truscott insists that she has no plans to assert a reliance-on-counsel defense in this case. She made the same assertion to the district court in her memorandum of law supporting her motion to quash. We agree with Truscott that she has not raised a reliance-on-counsel defense through the generic statement in her answer that respondents' claims 'may be barred . . . by any or all of the affirmative defenses contemplated by the Minnesota Rules of Civil Procedure.'. . . If Truscott attempts to raise the defense, respondents may seek appropriate relief and the district court may consider whether such an affirmative step implies a waiver of the attorney-client privilege. At present, however, Truscott has not affirmatively asserted the reliance-on-counsel defense and has not by implication waived the attorney-client privilege.")

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

key case


Chapter: 29.603
Case Name: Lawrence R. Buchalter Alaska Trust v. Philadelphia Financial Assurance Co., No. 12 Civ. 6808 (KMK)(PED), 2016 U.S. Dist. LEXIS 31771 (S.D.N.Y. Mar. 11, 2016)
May 11, 2016 (PRIVILEGE POINT)

"The Southern District of New York Takes a Narrow View of the "At Issue" Waiver Doctrine""F

An "at issue" waiver can occur without the client disclosing, relying on or even referring to privileged communications. Instead, such a waiver can result from the client's affirmative assertion of some position that necessarily implicates the client's knowledge — putting the client's knowledge "at issue" and thus requiring the client to disclose any otherwise privileged communications that contributed to the client's knowledge.

However, some courts take a very narrow view of such waivers. In 2002 Lawrence R. Buchalter Alaska Trust v. Philadelphia Financial Assurance Co., No. 12 Civ. 6808 (KMK)(PED), 2016 U.S. Dist. LEXIS 31771 (S.D.N.Y. Mar. 11, 2016), plaintiff sought to rely on Alaska's discovery rule to avoid a statute of limitations bar. Magistrate Judge Davison correctly recognized that "a key issue is when plaintiff had enough information to alert him that he had a potential cause of action or should begin an inquiry to protect his rights." Id. At *2-3. Defendant sought communications between plaintiff and his estate planning attorney from the "key November 2008 timeframe." Id. At *3. Plaintiff withheld three emails from that key time — described on a privilege log as follows: "To litigate or not to litigate, that is the question." Id. (internal citation omitted). Defendant naturally sought discovery of those documents — undoubtedly intrigued by what Judge Davison called "the provocative Shakespearean" log description. Id. But the court denied defendant's discovery efforts, explaining that the Second Circuit followed a very narrow "at issue" doctrine approach. Although the court acknowledged that the withheld emails might be relevant, it concluded that "plaintiff's claim that he was not on notice of actionable conduct by defendant" at the time the emails were written "does not . . . Have anything to do with attorney-client communications or legal advice." Id. At *7.

Other courts adopt a broader "at issue" waiver approach. They understandably conclude that a litigant placing her knowledge (or ignorance) "at issue" as of a certain time to seek some advantage in litigation must disclose all inputs into her brain during that time — including even otherwise privileged communications from a lawyer.

Case Date Jurisdiction State Cite Checked
2016-03-11 Federal NY
Comment:

key case


Chapter: 29.603
Case Name: In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)
October 21, 2015 (PRIVILEGE POINT)

"More Courts take a Narrow View of Subject Matter Waivers"

Thanks to common law developments and Federal Rule of Evidence 502, the frightening specter of subject matter waivers now usually only arises when litigants affirmatively rely on privileged communications to gain some litigation advantage.

In In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015), the court handling the GM ignition switch MDL rejected plaintiffs' attempt to depose Jenner & Block partner Anton Valukas about the basis for his widely-publicized report on GM's conduct. The court pointed to GM's pledge not to make offensive use of the Valukas Report at trial, or call Valukas to testify. The court concluded that GM's commitment "undermines" plaintiffs' attempt to explore witnesses' disagreement with Valukas' conclusions. Id. At *1004. One day earlier, another court dealt with a GM trademark issue. In Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015), plaintiff argued that GM triggered a subject matter waiver by pointing to its lawyer's trademark advice as demonstrating its lack of bad faith. The court "agree[d] that GM's use of that fact would place its counsel's advice at issue," but took GM at its word that the company "did not intend to rely on advice of its counsel" at trial. Id. At *24. The court therefore denied plaintiff's motion to compel disclosure of related privileged communications — "without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith." Id.

Corporations should be relieved that courts are increasing focus on documents and arguments the corporations plan to use at trial — rather than on the disclosure of privileged communication during fast-paced discovery or pretrial pleading skirmishes.

Case Date Jurisdiction State Cite Checked
2015-08-11 Federal NY
Comment:

key case


Chapter: 29.603
Case Name: Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)
October 21, 2015 (PRIVILEGE POINT)

"More Courts Take a Narrow View of Subject Matter Waivers"

Thanks to common law developments and Federal Rule of Evidence 502, the frightening specter of subject matter waivers now usually only arises when litigants affirmatively rely on privileged communications to gain some litigation advantage.

In In re General Motors LLC Ignition Switch Litigation, Nos. 14-MD-2543 & 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015), the court handling the GM ignition switch MDL rejected plaintiffs' attempt to depose Jenner & Block partner Anton Valukas about the basis for his widely-publicized report on GM's conduct. The court pointed to GM's pledge not to make offensive use of the Valukas Report at trial, or call Valukas to testify. The court concluded that GM's commitment "undermines" plaintiffs' attempt to explore witnesses' disagreement with Valukas' conclusions. Id. At *1004. One day earlier, another court dealt with a GM trademark issue. In Cue, Inc. v. General Motors LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015), plaintiff argued that GM triggered a subject matter waiver by pointing to its lawyer's trademark advice as demonstrating its lack of bad faith. The court "agree[d] that GM's use of that fact would place its counsel's advice at issue," but took GM at its word that the company "did not intend to rely on advice of its counsel" at trial. Id. At *24. The court therefore denied plaintiff's motion to compel disclosure of related privileged communications — "without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith." Id.

Corporations should be relieved that courts are increasing focus on documents and arguments the corporations plan to use at trial — rather than on the disclosure of privileged communication during fast-paced discovery or pretrial pleading skirmishes.

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

key case


Chapter: 29.603
Case Name: Khan v. United States, Case No. 13-24366-CIV-ALTONAGA/O'SULLIVAN, 2015 U.S. Dist. LEXIS 88672 (S.D. Fla. July 8, 2015)
(holding that work product created by government lawyers remains protected in a later malicious prosecution lawsuit; "In its memorandum, the plaintiff argues that the 'defendant's intent is at issue' because the defendant 'filed affirmative defenses arguing that they [sic] prosecuted Mr. Khan in good faith.'. . . In its amended answer, the Government 'denies that it prosecuted plaintiff without probable cause or with malice. The government denies that it intentionally or recklessly disregarded the truth in the course of Plaintiff's prosecution. . . .'"; "The Government argues that in light of its revised answer to the plaintiff's interrogatory seeking the reason for the dismissal of the charges against him, and its previous identification of the evidence on which its earlier decision to prosecute the plaintiff was based, the plaintiff has no need for the USAO and DOJ memoranda regarding the decisions to prosecute and dismiss the charges. The Government maintains that it has identified the facts underlying the decisions for the plaintiff. Because the memoranda at issue contain opinion work product, the USAO and DOJ memoranda are privileged and should not be disclosed.")

Case Date Jurisdiction State Cite Checked
2015-07-08 Federal FL

Chapter: 29.603
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Company, Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552 (D. Mass. June 22, 2015)
(finding that defendant did not waive its privilege protection by asserting its good faith in following insurance regulations; "An 'at issue' waiver occurs when a party injects certain claims or defenses into the case which implicate, i.e., put 'at issue' the communications of counsel. . . . The classic example is where a defendant defends itself against a claim on the ground that it relied on the advice of counsel in performing or failing to perform the challenged conduct."; "[M]erely pleading a good faith defense does not by itself waive privilege."; "Some courts in this circuit have used the three factor test first set forth in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). . . . More recently, the trend has been to follow the Second Circuit's approach in In re County of Erie, 546 F.3d 222 (2d Cir. 2008), which limited Hearn by additionally requiring that the privileged information be not only relevant, but also actually relied upon by the privilege holder to support a claim or defense in the case."; "The 'reliance' element in Erie addresses the concern that, as a practical matter, there will be very few privilege disputes where the Hearn factors are not met. Rare is the party who will expend the resources to seek disclosure of an opponent's privileged materials where the privileged materials are not both relevant and helpful to the case of the party seeking disclosure. . . . In this Court's view, the Erie approach more reasonably balances the right of the plaintiff to discover truly relevant and vital information with the right of the defendant to protect from disclosure privileged communications not germane to the instant case. Accordingly, that is the approach the Court applies here."; "Under Erie and similar cases, it is not necessary for purposes of proving the reliance element to show that the defendant has stated an intent to introduce or use evidence of attorney communications at trial. Rather, it is sufficient if the defendant's defense relies on certain facts that can only be tested or rebutted if the adversary is given access to the privileged material. . . . For example, if the defendant were to raise the defense that it acted based on its own subjective good faith belief that its actions were lawful, then the reliance element would likely be met, and that is so even if the defendant were to state that it did not intend to introduce any evidence regarding its attorneys' advice. . . . That is because the plaintiff, in order to test the assertion of good faith, would need to know whether the defendant received any legal advice suggesting that its actions were in fact not lawful."; "By contrast, there is no waiver if the defendant intends to establish its good faith defense by showing that its conduct was actually lawful, or was actually approved by regulators, and does not intend to rely on counsel's opinion or advice. . . . That is because such a defense depends on objective facts, making the advice of the defendant's counsel irrelevant."; "With respect to the present case, it appears undisputed that the defendant's in-house counsel participated in the preparation and submission to the DOI of the filings at issue. Among other things, counsel received guidance via a facsimile from the DOI, notated words or some communication on it, and circulated the facsimile to others within the company. Presumably, counsel at some point during this process also expressed some thought as to how the company should proceed. However, the defendant contends that it does not intend to rely on counsel's advice for purposes of asserting its good faith defense. Rather, it will argue that it took the same types of steps that other similar situated entities would take if they were proceeding in good faith to do what the law required. The defendant says it will argue that it accepted guidance from the DOI regarding the filing of safety fund calculations, followed that advice, and then subsequently inferred from the DOI's response (or lack of response) that it (the defendant) had acted properly. As such, the defendant argues that, while it relied on counsel to some extent in determining how to proceed with respect to the preparation and submission of its filings, it will not rely on the advice of counsel for purposes of showing that it acted in good faith."; "In light of the foregoing, the Court finds that the defendant has not waived any privilege or protection by virtue of asserting the defenses of good faith and regulatory approval.")

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA

Chapter: 29.603
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Co., Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552, at *9 (D. Mass. June 22, 2015)
September 9, 2015 (PRIVILEGE POINT)

"Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part II"

Last week's Privilege Point described several cases in which litigants waived their privilege protection by filing a statutory "good faith" defense or just arguing that they acted in good faith.

Other courts take a different view. In Bacchi v. Massachusetts Mutual Life Insurance Co., defendant resisting a policyholder class action filed affirmative defenses "that it acted in good faith . . . And that its actions were approved by the appropriate regulatory agency." Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552, at *9 (D. Mass. June 22, 2015). Not surprisingly, plaintiff claimed a waiver. The court rejected plaintiff's argument — noting that defendant "does not intend to rely on counsel's opinion or advice" — but instead "will argue that it took the same types of steps that other similar situated entities would take if they were proceeding in good faith to do what the law required." Id. At *15-16. About five weeks later, the Fourth Circuit reached the same conclusion about plaintiff's claim against an insurance company, based on the company's handling of an underlying lawsuit — about which the company obviously received its lawyers' advice. Smith v. Scottsdale Ins. Co., No. 15-1002, 2015 U.S. App. LEXIS 13290 (4th Cir. July 30, 2015). The plaintiff claimed an "at issue" waiver, but the court disagreed. The court noted that the insurance company "did not assert any claim or defense based on counsel's advice in the underlying case; instead, it maintained that its actions were based on its own evaluation of the case." Id. At *4.

Litigants defending their actions do not automatically waive privilege protection for communications with their lawyers about those actions. But litigants relying on a formal affirmative defense of "good faith" or arguing generally that they acted reasonably must hope that the court will let them support that defense while withholding privileged communication that informed their decisions.

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA
Comment:

key case


Chapter: 29.603
Case Name: McKee v. Petsmart, Inc., Civ. A. No. 12-1117-SLR-SRF, 2014 U.S. Dist. LEXIS 146583 (D. Del. Oct. 15, 2014)
(analyzing the implied waiver doctrine in the context of a compliance review; "The case law cited by plaintiffs stands for the proposition that when a defendant relies on a defense placing its state of mind at issue, the plaintiff may review privileged communications if doing so is the only way to assess the truth of the factual claim. . . . However, the Burris deposition transcript reflects that privileged communications are not the only evidence of defendant's state of mind in the present case, as Burris testified that he visited stores and held discussions with store operations, human resources, legal, finance, and field operations to gain an understanding of the duties performed by operations managers.")

Case Date Jurisdiction State Cite Checked
2014-10-15 Federal DE

Chapter: 29.603
Case Name: DeWitt v. Southwestern Bell Telephone Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014)
May 7, 2014 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 29.603
Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014)
May 7, 2014 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 29.603
Case Name: Safety Dynamics Inc. v. Gen. Star Indem. Co., No. CV-09-00695-TUC-CKJ (DTF), 2014 U.S. Dist. LEXIS 9045, at *6, *7, *12-13, *12 n.3 (D. Ariz. Jan. 24, 2014)
(finding that a litigant claiming good faith as a defense to a bad faith claim did not trigger an at issue waiver under Hearn (Hearn v. Rhay, 68 F.R.D. 574 (1975)); "While Defendant raised an affirmative defense of good faith in response to the claim of bad faith brought by Plaintiff, the mere filing of a bad faith action or the affirmative claim of good faith do not by themselves constitute an implied waiver of the attorney client privilege."; "While Mr. Fanelli's deposition testimony indicates that he sought the advice of counsel during the claims process, the fact that he conferred with counsel about an issue arising in an ongoing litigation does not waive the privilege. . . . The mere fact that a litigant confers with counsel and takes actions based on counsel's advice does not waive the attorney client privilege."; "This Court disagrees with Magistrate Judge Ferraro's conclusion that Defendant does not have to produce a privilege log unless its non-privilege based objections are unfounded. . . . This Court has not identified any authority in the Ninth Circuit that creates an exception to this rule for parties that raise multiple objections in addition to privilege to a single request for documents."; "'Defendants argues that since it objected to the scope of some discovery requests, it should not be required to log all privileged documents that may fall within the objectionable scope of the request. However, in situations where it may be unduly burdensome to specifically identify each privileged document, due to the amount of documents claimed to be privileged, a party may identify privileged documents by categories as long as it's still consistent with federal law.'")

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

Chapter: 29.603
Case Name: In re Processed Egg Prods. Antitrust Litig., 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. 2014) *22-*26)
(holding that an antitrust defendant did not cause an "at issue" waiver by asserting a good faith defense; "Judge Rice determined that the Supplier Defendants had not waived attorney-client privilege by their assertion of a good faith defense. He reasoned that because the 'Supplier Defendants have asserted that their good faith defense is not based on any advice directly obtained from UEP's and USEM's attorneys,' the Supplier Defendants have not put any privileged communications at issue. Order at 2. The Court affirms this outcome and reasoning."; "Judge Rice determined that merely asserting a generalized good faith defense does not waive attorney-client privilege. Rather, a litigant must 'take[] the affirmative step in the litigation to place the advice of [counsel] in issue.' Rhone-Poulenc Rorer, Inc. v. Home Indem., 32 F.3d 851, 863 (3d Cir. 1994)."; "The Court agrees with Judge Rice that advice of counsel is not an essential element of the good faith defense in this case."; "Here . . . Supplier Defendants have not interjected the advice of counsel as an essential element of their good faith defense. Rather, Supplier Defendants are explicitly asserting that they are not relying on the advice of counsel in asserting their good faith defense, and, like in Rhone-Poulenc, their good faith defense does not necessarily require placing advice of counsel at issue. Admittedly, the advice Supplier Defendants received from legal counsel is likely relevant to their good faith belief. However, as Judge Rice noted, privilege is not waived 'merely by taking a position that [privileged communication] might contradict.'. . . Supplier Defendants' good faith defense is based only on what they learned from non-attorney personnel.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal PA

Chapter: 29.603
Case Name: Grace Vill. Health Care Facilities, Inc. v. Lancaster Pollard & Co., Civ. No. 3:11cv295, 2013 U.S. Dist. LEXIS 110313, at *9-10 (N.D. Ind. Aug. 6, 2013)
(finding the at issue doctrine inapplicable in a case where the plaintiff claimed that the defendant had botched plaintiffs' claim in the Lehman bankruptcy, which forced plaintiffs to settle with Lehman; "[T]he law is clear that Grace Village does not have to defend the advice it received from its attorneys. Price [Price v. Amoco Oil Co., 527 F. Supp. 364, 365 (S.D. Ind. 1981)], supra; Deutsche Bank [Deutsche Bank Trust Co. of Ams. v. Tri-Links Inv. Trust, 43 A.D.3d 56 (N.Y. App. Div. 2007)], supra. Rather, Grace Village need only prove that the decision to settle, and the terms, were reasonable. This is an objective standard, and the Court sees no need to require Grace Village to divulge the specifics of its communications with counsel regarding the settlement. As the Magistrate Judge noted, Grace Village has not stated that it intends to use privileged materials as proof of its claims (nor is any such implication apparent in the record).")

Case Date Jurisdiction State Cite Checked
2013-08-06 Federal IN B 4/14

Chapter: 29.603
Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *6-7, *7 (D. Nev. June 18, 2013)
(finding that an affirmative defense that the defendant acted in good faith did not result in an express or implied waiver; "The Defendants have asserted an affirmative defense that they relied in good faith upon the U.S. Department of Labor's ('DOL') approval of the policies in dispute in this case."; "Defendants have also asserted a second affirmative defense under § 260 of the FLSA [Fair Labor Standards Act]. 29 U.S.C. § 260 authorizes a court to withhold or reduce liquidated damages 'if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation' of the FLSA.")

Case Date Jurisdiction State Cite Checked
2013-06-18 Federal NV B 4/14

Chapter: 29.603
Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *27-28 (D. Nev. June 18, 2013)
(finding that an affirmative defense that the defendant acted in good faith did not result in an express or implied waiver; "The disclosures which have been made to support the defenses the employer has asserted are limited to the advice the Defendants received from Mr. Huebner [a lawyer and a consultant, upon whose consulting expertise the defendant relied] who was not acting in his capacity as a legal advisor in developing the trailer guard compensation policy and ensuring that it complied with all applicable state and federal wage and hour laws. Similarly, communications to and from the DOL [Dep't of Labor], and the DOL's opinions about whether the policy complied, do not constitute a waiver of all confidential attorney-client communications on the same subject.")

Case Date Jurisdiction State Cite Checked
2013-06-18 Federal NV B 4/14

Chapter: 29.603
Case Name: First Coast Energy, L.L.P. v. Mid-Continent Cas. Co., Case No. 3:12-cv-281-J-32MCR, 2013 U.S. Dist. LEXIS 69078, at *4 (M.D. Fla. May 15, 2013)
(analyzing privilege issues in a first party bad faith insurance case; "Plaintiff alleges Defendant waived its right to assert the attorney-client privilege by placing the advice of its counsel at issue in this case. Specifically, Plaintiff claims Defendant is relying on the legitimacy of its coverage defenses to support its denial of Plaintiff's claim. Defendant responds that at no time did it ever raise advice of counsel as a defense. Instead, as its Motion for Summary Judgment . . . demonstrates, Defendant is taking the position that based on the record evidence, including expert testimony, it acted in good faith in raising valid policy provisions and exclusions which supported its decision to deny Plaintiff's claim."; "The Court agrees with Defendant that it has not placed the advice of its counsel at issue and therefore, has not waived the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-05-15 Federal FL B 3/14

Chapter: 29.702
Case Name: Amerestate Holdings, LLC v. CBRE, Inc., Dkt. No. A-2416-17T3, 2018 N.J. Super. Unpub. LEXIS 2025 (N.J. Super. Sept. 4, 2018)
(holding that the buyer of real estate triggered an at issue waiver by claiming that it was defrauded in the transaction; pointing to the purchase agreement's provision indicating that the buyer was relying solely upon its own "inspections and examinations and the advice and counsel of its own consultants, agents, counsel and officers"; "[W]e are convinced the motion court correctly determined plaintiffs' communications pertaining to the as-of-right units, size of the site and any due diligence or investigation concerning those matters were placed in issue by plaintiffs' allegation they reasonably relied on the alleged misrepresentations. . . . Indeed, the fulcrum upon which the validity of plaintiffs' causes of action pivots is their assertion that Amerestate entered into the purchase agreement in September 2014, and proceeded to close title and purchase the property on February 5, 2015, based on its reasonable reliance on the broker defendants' representations concerning the site's size and the number of as-of-right units."; "Moreover, Amerestate represented in the September 2014 purchase agreement that it agreed to purchase the site 'in its existing condition AS IS, WHERE IS, AND WITH ALL FAULTS with respect to all facts, circumstances, conditions and defects, and, Seller has no obligation to determine or correct any such facts, circumstances, conditions or defects or to compensate [Amerestate] for same. [Amerestate] is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, counsel and officers. [(emphasis added).]'"; "Thus, Amerestate also placed in issue its reliance on its counsel's advice concerning the 'facts' and 'circumstances' regarding the site, including its size and the number of as-of-right units, by affirmatively representing in the purchase agreement that it relied solely upon its counsel and other consultants and agents, and not on any of the broker defendants' advice, when it agreed to purchase the property."; "Like the plaintiff in Blitz [Blitz v. 970 Realty Assoc., 233 N.J. Super. 29, 557 A.2d 1386 (App. Div. 1989)], plaintiffs placed in issue what they 'knew' about the site size and the as-of-right units. . . . Under the circumstances presented here, however, their relevant knowledge and communications with counsel are not limited to those extant when the purchase agreement was signed. Plaintiffs' complaint expressly alleges they relied on the purported misrepresentations when Amerestate executed the purchase agreement on September 3, 2014, and also when Amerestate closed title on February 5, 2015. We are therefore convinced plaintiffs implicitly waived the attorney-client privilege as to all communications with their counsel prior to the closing of title pertaining to the site's size, the number of as-of-right units and plaintiffs' due diligence in investigating and assessing that information. Plaintiffs could not have relied on attorney-client communications subsequent to the closing of title in making the decision to purchase the site and, for that reason, plaintiffs have not placed those communications in issue.")

Case Date Jurisdiction State Cite Checked
2018-09-04 State NJ
Comment:

Key Case


Chapter: 29.702
Case Name: Outpost Solar, LLC v. Henry, Henry & Underwood, P.C., No. M2016-00297-COA-R9-CV, 2017 Tenn. App. LEXIS 841 (Tenn. Ct. App. Dec. 29, 2017)
March 14, 2018 (PRIVILEGE POINT)

"State Appellate Courts Assess Implied and 'At Issue' Waivers: Part II'"

Last week's Privilege Point discussed the implied privilege waiver sometimes triggered by a litigant's attempt to recover attorney's fees. An even more counter-intuitive implied waiver involves what courts frequently call an "at issue" waiver.

In Outpost Solar, LLC v. Henry, Henry & Underwood, P.C., No. M2016-00297-COA-R9-CV, 2017 Tenn. App. LEXIS 841 (Tenn. Ct. App. Dec. 29, 2017), two companies sued their former lawyer for malpractice. The defendant sought to dismiss one of the plaintiff's claims, noting that it was filed after Tennessee's one year legal malpractice statute of limitations had run. The plaintiff responded to the statute of limitations defense by arguing that "it discovered the [malpractice] cause of action within the limitations period." Id. at *2-3. Defendant "then sought through discovery to have the former client produce communications from the client's new counsel." Id. at *1. The plaintiff claimed privilege protection – but the trial court found a waiver. The appellate court upheld the lower court's conclusion "that Plaintiffs put their privileged information at issue by pleading the discovery rule" – because "by pleading ignorance of this cause of action against Defendants, Plaintiffs have made 'what Plaintiffs knew and when Plaintiffs knew it' the dispositive issue of this case." Id. at *21-22.

Not all courts would take this draconian approach, but it makes some sense. And it would be easy for lawyers to overlook the privilege waiver risk of asserting ignorance in this setting – because the assertion does not disclose, explicitly rely on, or even refer to, any privileged communications. This is why "at issue waivers" represent the most frightening form of implied waiver.

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal TN
Comment:

key case


Chapter: 29.702
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 Jurisdiction State Cite Checked
2016-04-14 Federal MI B 8/16

Chapter: 29.702
Case Name: United States v. Wells Fargo Bank, N.A., 12-CV-7527 (JMF), 2015 U.S. Dist. LEXIS 143814 (S.D.N.Y. Oct. 22, 2015)
(ordering the government to produce documents for an in camera review that might show the government's knowledge of certain Wells Fargo conflicts, which implicates the statute of limitations; "If the 'HUD OIG report' refers to an audit of Wells Fargo, for example, then the fact that someone at DOJ received it and the context in which the audit was sent would be 'vital' to Wells Fargo's ability to test the Government's statute-of-limitations argument, as Wells Fargo may be able to argue that the audit either alerted DOJ to Wells Fargo's alleged misconduct or should have alerted it to that misconduct. Accordingly, by no later than two weeks from the date of this Opinion and Order, the Government shall revise its privilege log to clarify the subject of the 'HUD OIG report.' If it was an audit of Wells Fargo, by that same date, it shall disclose Log Entry 18,658 to Wells Fargo (along with, presumably, the letter sent to DOJ referenced in the e-mail, unless that letter was previously produced), although it may redact the entire second paragraph of the e-mail. If it is another type of report, the Government shall, by the same date, advise the Court by letter so that the Court may decide whether the e-mail or the attachments to the e-mail must be disclosed.")

Case Date Jurisdiction State Cite Checked
2015-10-22 Federal NY

Chapter: 29.702
Case Name: Turubchuk v. E.T. Simonds Construction Co., Case No. 3:12-cv-594-SMY-DGW, 2015 U.S. Dist. LEXIS 133512 (S.D. Ill. Sept. 30, 2015)
(analyzing privilege issues in connection with a joint venture against who the plaintiff made a personal injury claim; "Part of ETS' defense is that it is not liable for the actions of Mr. Green [joint venture's lawyer] in the 2007 Case . . . . ETS argues that 'where a plaintiff seeks to hold a client vicariously liable for the attorney's allegedly intentional tortious conduct, a plaintiff must prove facts demonstrating either that the client specifically directed, controlled, or authorized the attorney's precise method of performing the work . . . .' . . . It goes on to argue that '[t]here is no evidence that any representations were ever made by ETS or SIAC to Richard Green that could constitute direction, control or authorization . . . ' (Id.). Essentially, ETS contends that Mr. Green acted independently and it is not liable because it did not ratify, direct, or approve his actions. This constitutes waiver of the attorney-client privilege. ETS' communications with Mr. Green are necessary to determine whether it committed fraud in the 2007 Case either by withholding information from Mr. Green or ratifying the information that Mr. Green supplied to Plaintiff's in the 2007 Case. ETS contends that it had no communications with Mr. Green as to the underlying Rule 26 disclosures (both in its briefs and in deposition testimony) -- Plaintiffs are entitled to test this statement of fact through discovery.")

Case Date Jurisdiction State Cite Checked
2015-09-30 Federal IL

Chapter: 29.702
Case Name: Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015)
September 2, 2015 (PRIVILEGE POINT)

"Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part I"

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that corporations relying on an affirmative defense that they acted in "good faith" reliance on the law necessarily implicate their lawyer's advice — and therefore trigger such an "at issue" waiver.

In Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015), FLSA defendant KB Home relied upon the 29 U.S.C. § 259 defense of good faith reliance on administrative regulations, etc., in defending its employee classifications. KB Home "emphasize[d] that it is not relying on advice of counsel to prove its good faith defenses" — instead explaining that its "witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the classification was lawful." Id. At *7. The court rejected this argument — concluding that privileged communications "are highly probative of whether [KB Home] had a good faith belief in the lawfulness of its policy." Id. At *9. The court reminded KB Home that it "may elect to withdraw its good faith defenses, in which case the privilege would still attach." Id. At *14. Four days later, another court found that a defendant had waived its privilege by arguing that its patent infringement accusations against the plaintiff "were grounded in a good-faith belief" that the plaintiff had infringed its patent. Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015). The court quoted an earlier decision in holding that defendant cannot "'be permitted, on the one hand, to argue that it acted in good faith and without an improper motive and then, on the other hand, to deny [the adversary] access to the advice given by counsel where that advice . . . Played a substantial and significant role in formulating [its] actions.'" Id. At *8-9. (quoting Pereira v. United Jersey Bank, No. 94-CV-1565 (LAP), 1997 WL 773716, at *6 (S.D.N.Y. Dec. 11, 1997).

Litigants putting their mental state at issue or referring to withheld documents to support an assertion might waive their privilege. Next week's Privilege Point discusses two cases going the other way.

Case Date Jurisdiction State Cite Checked
2015-07-22 Federal NY
Comment:

key case


Chapter: 29.702
Case Name: Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015)
September 2, 2015 (PRIVILEGE POINT)

"Does Asserting a 'Good Faith' Affirmative Defense Waive the Attorney-Client Privilege?: Part I'"

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that corporations relying on an affirmative defense that they acted in "good faith" reliance on the law necessarily implicate their lawyer's advice — and therefore trigger such an "at issue" waiver.

In Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015), FLSA defendant KB Home relied upon the 29 U.S.C. § 259 defense of good faith reliance on administrative regulations, etc., in defending its employee classifications. KB Home "emphasize[d] that it is not relying on advice of counsel to prove its good faith defenses" — instead explaining that its "witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the classification was lawful." Id. At *7. The court rejected this argument — concluding that privileged communications "are highly probative of whether [KB Home] had a good faith belief in the lawfulness of its policy." Id. At *9. The court reminded KB Home that it "may elect to withdraw its good faith defenses, in which case the privilege would still attach." Id. At *14. Four days later, another court found that a defendant had waived its privilege by arguing that its patent infringement accusations against the plaintiff "were grounded in a good-faith belief" that the plaintiff had infringed its patent. Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015). The court quoted an earlier decision in holding that defendant cannot "'be permitted, on the one hand, to argue that it acted in good faith and without an improper motive and then, on the other hand, to deny [the adversary] access to the advice given by counsel where that advice . . . Played a substantial and significant role in formulating [its] actions.'" Id. At *8-9. (quoting Pereira v. United Jersey Bank, No. 94-CV-1565 (LAP), 1997 WL 773716, at *6 (S.D.N.Y. Dec. 11, 1997).

Litigants putting their mental state at issue or referring to withheld documents to support an assertion might waive their privilege. Next week's Privilege Point discusses two cases going the other way.

Case Date Jurisdiction State Cite Checked
2015-07-18 Federal TX
Comment:

key case


Chapter: 29.702
Case Name: UUSI, LLC v. United States, No. 12-216C, 2015 U.S. Claims LEXIS 545 (Fed. Cl. May 5, 2015)
(adopting the Hearn approach to the "at issue" doctrine; concluding that a laches defense triggered an at issue waiver; "Apparently, KDS never told GHSP about Nartron's potential infringement claims in the acquisition, because it believed Nartron's patent infringement claims were meritless based at least in part upon counsel Ethington's advice. In GHSP's view, KDS' failure to provide notice of Nartron's potential infringement claims in the acquisition and Plaintiffs' delay in filing suit, caused GHSP to forfeit its rights under the Stock Purchase Agreement for indemnification. Stated differently, the crux of GHSP's economic prejudice claim underlying its laches defense is its inability to seek indemnification from KDS. That inability stems from KDS' failure to disclose Nartron's infringement claims based on KDS' alleged belief, informed by discussions with counsel, that Nartron's infringement claim had no merit. In order for there to be a fair and level playing field for adjudicating GHSP's laches defense, both GHSP and Plaintiffs need to have access to materials reflecting these privileged communications."; "While the record at this juncture is not a model of clarity, in this Court's view, it is most reasonably interpreted to mean that Mr. Kasiewicz relied on the advice of both Ms. Gapinski and Paul Ethington to conclude that Nartron's infringement claims were meritless. Because GHSP affirmatively injected attorney-client privileged communications between KDS and its patent counsel on the merits of Nartron's infringement claims in pressing its laches defense, Plaintiffs deserve access to additional privileged communications on this same subject to provide them a fair opportunity to rebut GHSP's laches defense.")

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

Chapter: 29.702
Case Name: UUSI, LLC v. United States, No. 12-216C, 2015 U.S. Claims LEXIS 545 (Fed. Cl. May 5, 2015)
(adopting the Hearn approach to the "at issue" doctrine; concluding that a laches defense triggered an at issue waiver; "Plaintiffs claim that GHSP impliedly waived the attorney-client privilege with respect to the Ethington Memorandum and the Lieb Notes when it placed these privileged documents 'at issue' by invoking its laches defense. The Court agrees.'; "The Federal Circuit has recognized the implicit waiver of the attorney-client privilege when privileged information is 'at issue.' This concept was first articulated in Hearn v. Rhay, 68 F.R.D. 574, 581 (E. D. Wash. 1975) and later adopted by the Federal Circuit in Zenith Radio Corporation v. United States, 764 F.2d 1577, 1579 (Fed. Cir. 1985).")

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

Chapter: 29.702
Case Name: United States v. Juan, Crim. No. 3:14cr25-2, 2014 U.S. Dist. LEXIS 121258 (E.D. Va. Aug. 29, 2014)
(finding that in a criminal defendant's claim that he was "confused" by a plea bargain he agreed to while represented by a lawyer triggered an "at issue" waiver, even if the criminal defendant said he was not criticizing that lawyer; "To rebut a defense of 'utter confusion' about the content of the Statement and the implications of paragraph 14 of the Agreement, the Government is entitled to elicit testimony from the Juan's former counsel on those issues."; "Testimony by Juan's former counsel will be admissible at trial only if Juan again either expressly or impliedly waives the attorney-client privilege by making a similar argument at that time.")

Case Date Jurisdiction State Cite Checked
2014-08-29 Federal VA

Chapter: 29.702
Case Name: United States v. Juan, Crim. No. 3:14cr25-2, 2014 U.S. Dist. LEXIS 121258 (E.D. Va. Aug. 29, 2014)
(finding that in a criminal defendant's claim that he was "confused" by a plea bargain he agreed to while represented by a lawyer triggered an "at issue" waiver, even if the criminal defendant said he was not criticizing that lawyer; "Even though Juan says that he has not challenged the effectiveness or the competency of his former counsel, his arguments necessarily mean that he is calling into question both Jones' competence and the adequacy of his representation because a lawyer must be sure that his client knows and understands the meaning of the documents that the lawyer advises the client to sign. Nowhere is that obligation more important than when the client is pleading guilty to a crime, forfeiting his rights, and confessing to details of his criminal behavior.")

Case Date Jurisdiction State Cite Checked
2014-08-29 Federal VA

Chapter: 29.702
Case Name: LendingTree, LLC v. Zillow, Inc., Civ. A. No. 3:10-CV-439-FDW-DCK, 2013 U.S. Dist. LEXIS 172206, at *7, *21, *21 n.1, *21-22, *26, *26-27 (W.D.N.C. Dec. 5, 2013)
(finding that a laches defense focusing on the timing of knowledge triggered an at issue waiver, although allowing redaction of unrelated privileged communications; discussing both Hearn (Hearn v. Rhay, 68 F.R.D. 574 (E.D.Wash. 1975)) and Rhone-Poulenc (Rhone—Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994)) without adopting either approach; "By the instant motion, NexTag seeks to compel the production of documents that it believes are relevant to its affirmative defense of laches. . . . In particular, NexTag seeks documents that might show that LendingTree knew or should have known of NexTag's allegedly infringing activity on or about September 8, 2004 -- the 'Laches Critical Date.'. . .LendingTree asserts that it 'first became aware of the infringing NexTag system on or around October 6, 2004.'" (internal citation omitted); "It appears that LendingTree is relying on its attorney-client communication to rebut NexTag's laches defense, while withholding all details of such communication."; "LendingTree has stated that it found out about the alleged infringement 'on or around October 6, 2004.' . . . It is unclear how LendingTree defines 'around October 6, 2004,' or whether 'around' might include dates before and/or after September 8, 2004."; "Although this case presents a close call, the undersigned is inclined to find that LendingTree placed the advice of its attorney in issue -- the advice that NexTag's system was infringing upon LendingTree's patent. . . . LendingTree asserts that NexTag's affirmative defense of laches is without merit, based primarily on its disclosure and description of attorney-client communication that occurred 'on or around October 6, 2004.'. . . Thus, it appears that LendingTree placed that advice in issue. . . . Based on LendingTree's interrogatory responses, the only persons employed or retained by LendingTree who have information about LendingTree's first awareness of NexTag's alleged infringement are an unidentified 'counsel for LendingTree' and Lebda [plaintiff's CEO]. . . . As noted above, Lebda has refused to elaborate on what and when he knew about NexTag's alleged infringement, asserting attorney-client privilege."; "Here, LendingTree's rebuttal of the laches defense has placed its communications with counsel directly at issue. The undersigned finds that NexTag has appropriately sought facts regarding LendingTree's knowledge of NexTag's allegedly infringing behavior, rather than legal opinions of LendingTree's counsel. To date, LendingTree has declined to fully respond to NexTag's inquiries because it contends that it became aware of the alleged infringement through counsel."; "[I]t appears that NexTag has presented a 'cabined inquiry,' regarding when LendingTree knew of the existence of NexTag's allegedly infringing product, that will likely provide information relevant to NexTag's affirmative defense. To the extent responsive documents also contain privileged information that is unrelated to information requested by the '. . . Motion To Compel . . . ,' LendingTree may redact as necessary.")

Case Date Jurisdiction State Cite Checked
2013-12-05 Federal NC B 5/14

Chapter: 29.702
Case Name: Sullivan v. Alcatel-Lucent USA, Inc., Case No. 12 C 7528, 2013 U.S. Dist. LEXIS 82407, at *26 (N.D. Ill. June 12, 2013)
("Defendant, therefore, has placed at issue any previously privileged communications that show or support that Defendant was fully informed concerning, and knew the amount of, Plaintiffs' fees or the potential scope of such fees.")

Case Date Jurisdiction State Cite Checked
2013-06-12 Federal IL B 4/14

Chapter: 29.702
Case Name: Sullivan v. Alcatel-Lucent USA, Inc., Case No. 12 C 7528, 2013 U.S. Dist. LEXIS 82407, at *26 (N.D. Ill. June 12, 2013)
("Defendant has . . . asserted an affirmative defense contending that Plaintiffs are estopped from recovering legal fees in connection with the property tax appeal because of an alleged failure to communicate with Defendant regarding their expected fees for their work on the settlement.")

Case Date Jurisdiction State Cite Checked
2013-06-12 Federal IL B 4/14

Chapter: 29.702
Case Name: United States v. Hassan-Gouda, Crim. A. No. 07-258 (JBS), 2013 U.S. Dist. LEXIS 39297, at *21, *22-23, *23, *23-24 (D.N.J. Mar. 21, 2013)
(holding the criminal defendant's denial of knowledge of his indictment resulted in a waiver of any privilege covering communications with his lawyer; "[I]t is clear that Gouda has placed the issue of his notice of the Indictment's charges into contention. He has denied prior knowledge of the Indictment in his certification filed herein."; "Gouda is essentially asserting that Gindhart [Lawyer] failed to advise him of the Indictment and the court date on or before April 6th. This necessarily means Gouda is claiming he had no communication with Gindhart between March 28th and April 6th about the Indictment and court date. Where the accused affirmatively raises the absence of communication from counsel as a basis for dismissal of the charges, he has opened the door to inquiry of counsel whether such information was transmitted to the accused. If it was not transmitted, there is no concern with attorney-client privilege because there was no communication. If it was transmitted, that fact can be probed because the privilege is waived to that extent."; "There is an implied waiver in the case at bar because, by claiming that he was unaware of the Indictment, and seeking dismissal of the case based on that fact, Gouda has placed in issue any conversation that he may have had with his attorney about the issuance of the Indictment."; "Waiver by implication only extends to communications between attorney and client that lie within the scope of that narrow subject matter, namely, whether Gindart informed Gouda of the indictment and his need to appear in court during the time frame of March 27 to April 6, 2007. Other communications, such as legal strategies, tactics, weight of evidence and the like, remain privileged." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-03-21 Federal NJ B 3/14

Chapter: 29.702
Case Name: Gefre v. Davis Wright Tremaine, 306 P.3d 1264, 1279-80, 1280 (Alaska 2013)
(applying the "at issue" doctrine; holding that shareholders suing a company director and the company's law firm had placed their ignorance "at issue" by claiming that they were unaware of the defendants' wrongful conduct; requiring the shareholders to produce communications with the lawyer representing them at the time they claimed ignorance; "The Shareholders argue the court applied the incorrect standard for finding a waiver of the attorney-client privilege. The Shareholders suggest the court should have adopted the waiver test established in Rhone-Poulenc Rorer Inc. v. Home Indemnity Co., [32 F.3d 851 (3d Cir. 1994),] instead of the test established in Hearn v. Rhay [68 F.R.D. 574 (E.D. Wash. 1975)]."; "Because we continue to believe fairness to the opposing party should be included in the implied waiver analysis, we adopt the Hearn test."; "Applying the Hearn test, we conclude the superior court did not err in finding the Shareholders placed their communications with Keene at issue by raising the discovery rule and estoppel in response to DWT's statutes-of-limitations defenses. The communications are material to the defenses because the Shareholders claimed they had no knowledge, either direct or constructive, of DWT's identity or role with regard to Steffen's conduct. The Shareholders cannot be permitted to thrust their lack of knowledge into the litigation while simultaneously retaining the attorney-client privilege to frustrate proof of knowledge that negates the very foundation necessary to their positions. The superior court correctly found fairness dictated that DWT be permitted to discover from Gefre, Beck, and Keene [plaintiff's lawyer] what they knew about Steffen [president of company he formed with plaintiffs] and DWT.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State AK B 4/14

Chapter: 29.702
Case Name: Clair v. Clair, 982 N.E.2d 32, 44 (Mass. 2013)
(analyzing a possible "at issue" waiver caused by a company's allegation that a shareholder breached his fiduciary duty by failing to disclose possible tax liability caused by the sale an insurance policy; finding an "at issue" waiver; "In Count I of their counterclaims, Clair International and Clair LP allege that 'James breached his fiduciary duties to his fellow shareholders by failing to fairly value his insurance policies as of the date of sale, or alternatively, failing to fully and fairly disclose the potential tax liability and consequences of the sale of his insurance policies to his fellow shareholders.' As a consequence of James's actions, the Clair brothers 'suffered damages and harm.' Based on these allegation, the disclosures that James may or may not have made to the Clair brothers and to corporate counsel regarding the life insurance policies, and their related communications about whether to proceed with the transfer of ownership of the policies, are at the heart of proving or disproving the counterclaim. The substance of these communications is essential to determining whether the Clair brothers were fully and accurately informed about the material facts and legal effects of the transfers." (footnote omitted); "The companies have resisted discovery on the basis of attorney client privilege, but Clair International and Clair LP have relied on privileged communications about the life insurance policies to support their counterclaim that James breached his fiduciary duties to his fellow shareholders. They cannot have it both ways. Because this counterclaim depends on an assessment of James's disclosures regarding the life insurance policies, and on an assessment of the Clair brothers' actual knowledge about the detail surrounding the transfer of those policies, the companies have placed their otherwise privileged communications 'at issue.'")

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

Chapter: 29.702
Case Name: Thai-Lao Lignite (Thai.) Co., Ltd. v. Gov't of Lao People's Democratic Republic, 945 F. Supp. 2d 431, 435, 436, 437 (S.D.N.Y. 2013)
("Petitioners argue that, when Respondent represented to the Malaysian courts that 'the reason that it failed to timely file the Malaysian proceeding was due to its arbitration counsel's failure to advise it of the statute of limitations'. . . and that it 'acted expediently to file the [set-aside] application as soon as it was informed by its legal counsel about the timeframes applicable' . . . ., Respondent placed 'at issue' the reasons for its failure to make a timely filing."; "Although Respondent concedes that its statements gave rise to an 'at-issue' waiver, it contends that this waiver should be found to cover only to those communications 'reflecting legal advice about the existence of the 90-day deadline and whether it could be extended,' and not to cover attorney-client communications regarding any other possible reasons for its delay in filing." (internal citation omitted); "[U]nder Erie [In re Cnty. of Erie, 546 F.3d 222 (2d Cir. 2008)], the 'at-issue' waiver of attorney-client privilege that was effected by Respondent's statements to the Malaysian courts must be held to extend only to communications concerning the advice that Respondent did or did not receive regarding the existence of the 90-day deadline and whether that deadline could be extended. Similarly, any 'at-issue' waiver that was effected by Respondent's statements to this Court must be limited to communications concerning the monetary issue that purportedly kept Respondent from filing the Malaysian set-aside application in September, 2010.")

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

Chapter: 29.702
Case Name: Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264 (Alaska 2013)
October 23, 2013 (PRIVILEGE POINT)

"Court Applies the "At Issue" Doctrine"

The "at issue" doctrine represents the most frightening type of implied waiver. Litigants can trigger such a waiver without disclosing, referring to, or relying on privileged communications. Instead, an "at issue" waiver can occur if litigants assert some position that necessarily places "at issue" such privileged communications.

In Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264 (Alaska 2013), shareholders filed a derivative action against a company's director and former law firm. The shareholders alleged that defendants engaged in fraudulent conduct of which the shareholders were unaware – although they were represented at the time by their own lawyer. The court found an "at issue" waiver – explaining that the shareholders "cannot be permitted to thrust their lack of knowledge into the litigation while simultaneously retaining the attorney-client privilege to frustrate proof of knowledge that negates the very foundation necessary to their positions." Id. At 1280. The court ordered the shareholders to produce communications with their lawyer during the time they claimed ignorance of defendants' alleged wrongdoing.

Corporations and their lawyers should be wary of assertions that might trigger a stealthy "at issue" doctrine waiver.

Case Date Jurisdiction State Cite Checked
2013-01-01 State AK
Comment:

key case


Chapter: 29.702
Case Name: Peterson v. Fairfax Hosp. Sys., Inc., 37 Va. Cir. 535, 542 (Va. Cir. Ct. 1994)
(holding that "where the plaintiffs rely on estoppel to combat a plea of the statute of limitations, fairness requires that the attorney-client privilege be deemed waived" because "what counsel knows and when he knew it are issues dragged into the case by invoking the defense of estoppel"; explaining that because "[t]he defendants maintain that the plaintiffs were on inquiry notice of the possibility of fraudulent actions in the previous case more than two years before this action was filed. Counsel's knowledge, or lack thereof, is relevant, probative and discoverable")

Case Date Jurisdiction State Cite Checked
1994-01-01 State VA B 3/16
Comment:

key case


Chapter: 29.702
Case Name: Peterson v. Fairfax Hosp. Sys., Inc., 37 Va. Cir. 535, 541-42 (Fairfax 1994)
(holding that "where the plaintiffs rely on estoppel to combat a plea of the statute of limitations, fairness requires that the attorney-client privilege be deemed waived" because "what counsel knows and when he knew it are issues dragged into the case by invoking the defense of estoppel"; explaining that because "[t]he defendants maintain that the plaintiffs were on inquiry notice of the possibility of fraudulent actions in the previous case more than two years before this action was filed. . . . [c]ounsel's knowledge, or lack thereof, is relevant, probative and discoverable").

Case Date Jurisdiction State Cite Checked
1994-01-01 State VA

Chapter: 29.703
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
(rejecting defendant's argument that it did not discover defendant's misconduct and therefore did not face a statute of limitations bar; describing the various "at issue" doctrines, and finding that they did not apply; "A number of courts have noted that basically three tests have been applied in determining whether an 'at issue' waiver has occurred: (1) the 'automatic waiver' rule, which provides that a party automatically waives the privilege upon assertion that a claim or defense raises an issue to which otherwise privileged information is relevant. This is often called the least restrictive test and is not employed by our Court of Appeals. Courts have also employed the so-called intermediate or Hearn test and the 'anticipatory waiver' test set forth in Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3rd Cir.1994), which provides that the privilege is waived if a party places in issue its reliance upon counsel's advice."; "Most courts have adopted the shield-sword analogy which holds that the privilege only prohibits a party from simultaneously using the confidential information as both a shield and sword -- that is, a party cannot use privileged information both offensively and defensively at the same time. In re County of Erie, 546 F.3d 222, 229 (2nd Cir. 2008)."; "A number of courts agreed that a party does not waive the attorney-client privilege simply by pleading a claim which sounds in fraud or misrepresentation. Indeed, such claims are common, and it would substantially undercut the attorney-client privilege if the privilege were deemed waived in every case where a party made a claim of reasonable reliance upon the misrepresentations or omissions of the other party. In rejecting such a broadside assault on the attorney-client privilege, courts have said, for example, that although 'the client in a fraud or similar action, may be required to disclose its thoughts and knowledge, whether or not those were acquired in whole or in part from conversations with its attorneys . . . [i]t is not required to disclose what was said between client and counsel.'"; "Here, Hytera raised the statute of limitations, not Motorola. Motorola responded by asserting it did not discover the basis of its claim until late 2016. Under these circumstances, and under the holdings of most cases, it didn't inject a new issue into the case."; "In the end, the courts that have found implied waivers have concluded that a party may not advance a claim or defense that relies on materials that the adversary needs to effectively contest or impeach the claim. . . . In this case, it bears repeating that, Hytera concedes that it raised the relevant issue, not Motorola. . . . The filing of a lawsuit did not waive the attorney-client privilege."; "Thus, unlike the situation in Rhone—Poulenc Rorer, Inc. v. Home Indemnity Co., 32 F.3d 851, 863 (3d Cir. 1994) and many other cases, 'advice of counsel [has not been] placed in issue' by Motorola; nor has it yet attempted to prove its claim or its defense by disclosing or describing an attorney-client communication. In other words, Motorola isn't using an 'investigation or its results' or privileged communications to defeat Hytera's statute of limitations defense. Of course, that situation may change, and if it does, the issue will have to be revisited.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL

Chapter: 29.703
Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)
(holding that plaintiff had not triggered an at issue waiver by claiming that the defendant had defrauded her; "Pillen argues Rasby waived the attorney-client privilege with regard to the redacted emails either by placing her attorney communications at issue or partially disclosing the communications. . . . Specifically, Pillen contends the communications are necessary for him to establish Rasby's state of mind when she entered the into the Purchase Agreement and may reveal whether Rasby was motivated by legal advice rather than Pillen's alleged actions.")

Case Date Jurisdiction State Cite Checked
2016-09-19 Federal NE

Chapter: 29.703
Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)
(holding that plaintiff had not triggered an at issue waiver by claiming that the defendant had defrauded her; "Pillen argues Rasby placed the attorney-client communications at issue when she 'thrust her state of mind in issue as a condition necessary to sustain' fraud and duress claims. . . . Pillen relies on League [League v. Vanice, 221 Neb. 34, 374 N.W.2d 849, 856 (Neb. 1985)] where the court concluded the plaintiff placed attorney-client communications bearing on his knowledge at issue when he 'injected his knowledge, or lack of knowledge, into the litigation as a crucial issue relevant to disposition of the claims' by arguing his claims survived the statute of limitations because the defendant concealed triggering events. . . . In the same manner, Pillen contends Rasby's communications with counsel, who she employed throughout the contract negotiation period, could establish Rasby's state of mind and whether Pillen's actions or counsel's legal advice motivated Rasby to execute the Purchase Agreement. . . . Absent full disclosure, Pillen contends he cannot properly defend against the claims by showing Rasby's decision to execute the Purchase Agreement was actually 'an informed choice made after considering careful legal analysis and counsel.'"; "Here, Rasby placed only Pillen's conduct at issue when she alleged fraud and duress. Rasby did not engage in an affirmative act which placed her confidential attorney-client communications at issue. Although she consulted with counsel, counsel's advice is not at issue. Neither is counsel's advice, about Pillen's conduct or the Purchase Agreement's soundness, relevant. The facts associated with Rasby's claims, including Pillen's alleged conduct, whether Rasby sought and received the advice of counsel, and other influences on Rasby's state of mind, may be relevant. Pillen has means to access such facts, for example by asking Rasby what alternatives she considered. Rasby's confidential attorney-client communications extend beyond the facts to encompass matters sheltered in the interests of justice by an important privilege and the ultimate issues for resolution by the jury.")

Case Date Jurisdiction State Cite Checked
2016-09-19 Federal NE

Chapter: 29.703
Case Name: Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966, 2016 Fla. App. LEXIS 9575 (Fla. Dist. Ct. App. June 22, 2016)
September 7, 2016 (PRIVILEGE POINT)

"Drawing the Line Between Unprotected Logistics About Privileged Communications and Their Protected Content"

Courts agree that in nearly every situation the attorney-client privilege does not protect the logistics of privileged communications — such as when and where clients and lawyers communicate. Similarly, the privilege normally does not protect clients' or lawyers' identities, or the general subject matter of their communications. But of course the privilege can protect such communications' content.

In Coffey-Garcia v. South Miami Hospital, Inc., No. 3D15-1966, 2016 Fla. App. LEXIS 9575 (Fla. Dist. Ct. App. June 22, 2016), defendant hospital wanted to depose a sick child's mother, whose lawsuit arguably missed the statute of limitations. The appellate court allowed questions about "the names of attorneys and dates of [the mother's] consultation[s]" — concluding that "these questions do not require her to disclose any communication she had with any attorney [but] merely require her to disclose the occurrence of a consultation with a lawyer regarding a general topic." Id. at *7. Nevertheless, the court reversed the trial court order requiring the mother to answer questions about "'the reasons why she first sought out legal counsel.'"Id. at *9. The court gave an example of an improper question: "'after consulting the first lawyer, why did you seek out a second lawyer?'" Id. at *10.

Most deposing lawyers know that they cannot explicitly seek the substance of adversaries' privileged communications. But the issue can sometimes be more subtle in a deposition setting. One simple way to draw the line between appropriate questions about privileged communications' logistics and improper questions that might invade the privilege is to distinguish between permissible "who, what, when, where" questions and improper "why" questions.

Case Date Jurisdiction State Cite Checked
2016-06-22 State FL B 9/16
Comment:

key case


Chapter: 29.703
Case Name: The 2002 Lawrence R. Buchalter Alaska Trust v. Philadelphia Financial Assurance Co., 12 Civ. 6808 (KMK) (PED), 2016 U.S. Dist. LEXIS 31771 (S.D.N.Y. March 11, 2016)
(noting Second Circuit had rejected the Hearn at issue doctrine approach; holding that the plaintiff had not triggered an at issue waiver by seeking to rely on the discovery rule to avoid a statute of limitations defense, and therefore could continue to withhold documents listed on its privilege log from the pertinent time that would shed light on the litigant's knowledge; "Defendant contends that plaintiffs claims are time-barred under Alaska law. Plaintiff asserts that his claims are timely under Alaska's discovery rule. Thus, a key issue is when plaintiff had enough information to alert him that he had a potential cause of action or should begin an inquiry to protect his rights."; "Against this backdrop, defendant subpoenaed documents from William Lipkind, Esq., plaintiff s estate planning attorney. Responding to the subpoena, attorney Lipkind withheld a number of documents on privilege grounds, itemizing the documents withheld on a privilege log. Defendant's motion focuses on three communications enumerated on the privilege log, each of which occurred during the key November 2008 timeframe associated with the SSR losses and is identified on the log with the subject: 'To litigate or not to litigate, that is the question.' The privilege log indicates that each of the three communications is an e-mail chain between Mr. Buchalter, Attorney Lipkind, and Thomas Gentile, who defendant identifies as Mr. Lipkind's law partner and a 'litigation attorney.'"; "Focusing on the timing, the participants, and the provocative Shakespearean subject description of these e-mails, defendant surmises that these communications 'appear to relate a litigation inquiry, investigation, suspicion of wrongdoing and/or discussion of a perceived injury related to PFLAC and/or SSR in 2008.'. . . Thus, defendant asserts that these e-mails are 'relevant and possibly dispositive on the statute of limitations issue.'"; "Defendant . . . Argues that plaintiff has forfeited the privilege and placed these 2008 communications with counsel 'at issue' by asserting -- in response to the statute of limitations defense -- that there was no investigation of or suspicion of wrongdoing by PFLAC until 2012. Defendant asserts that the touchstone for 'at issue' waiver is unfairness, and that it is unfair for plaintiff to allege that he did not discover his claim against PFLAC until 2012 while withholding 2008 communications with his attorneys that appear relevant to, and might indeed undermine, that contention."; "Defendant's waiver argument fails because the Second Circuit in Erie has 'reined in what it perceived to be . . . Overbroad invocation of the fairness doctrine' in this context."; "Recognizing 'uncertainty' and the 'need for clarification' of the rules regarding 'at issue' waiver, the Court in Erie explicitly rejected the so-called 'Hearn test.' under which "an assertion of privilege by one who pleads a claim or affirmative defense 'put[s] the protected information at issue by making it relevant to the case.' . . . Under Erie, a party "must rely on privileged advice from his counsel to make his claim or defense[,]' so factual relevance is not sufficient to trigger 'at issue' waiver."; "In the instant case, defendant argues that by invoking Alaska's discovery rule to overcome defendant's statute of limitations defense, plaintiff has put his 'state of mind' at issue, triggering waiver. But the discovery rule centers on facts the plaintiff knew or should have known, not on his state of mind concerning some question of law which necessarily implicates contemporaneous attorney-client communications. Although defendant is correct that some post-Erie, decisions have stressed that 'a party need not explicitly rely on advice of counsel to implicate the privileged communications[,]'. . . Review of the post-Erie caselaw confirms that such implied reliance is confined to situations involving a party's state of mind concerning a question of law. Such as the party 's belief as to the lawfulness of its conduct."; "Here, plaintiff's claim that he was not on notice of actionable conduct by defendant until 2012 does not, on its face. Have [sic] anything to do with attorney-client communications or legal advice. Defendant seeks the 'To litigate or not to litigate' e-mails because that provocative subject line suggests that plaintiff may have discussed potential legal claims with counsel in 2008, communications which might shed light on what plaintiff knew or should have known about defendant's role in plaintiff's SSR losses at that time. Those e-mails may well be relevant, but in the Court's view this is no different from any other situation in which a party seeks an adversary's privileged communications in hopes of discovering damaging admissions therein. Under Erie, '[s]imply because . . . Communications might be useful in undermining [plaintiff's claim] does not mean that the attorney-client privilege has been impliedly waived.'")

Case Date Jurisdiction State Cite Checked
2016-03-11 Federal NY

Chapter: 29.703
Case Name: Executive Mgmt. Svcs., Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2015 U.S. Dist. LEXIS 105600 (S.D. Ind. Aug. 12, 2015)
("Defendant contends that Plaintiffs' assertions that (1) EMS was an 'unsophisticated customer' of Defendant's upon entering into the Agreement and (2) EMS 'reasonably relied on [Defendant] to advise it regarding all aspects of its corporate debt' have put the advice Plaintiffs received from Bose during the relevant period at issue. . . . In response, Plaintiffs attempt to distinguish between 'financial advice' received from Defendant and 'legal advice' received from Bose and assert that, because Bose did not specifically advise Plaintiffs with regard to the Agreement at issue, the doctrine of 'at issue' waiver does not apply and the communications in question remain privileged.")

Case Date Jurisdiction State Cite Checked
2015-08-12 Federal IN

Chapter: 29.703
Case Name: Neuman v. The State, S15A0011, 2015 Ga. LEXIS 444 (Ga. June 15, 2015)
(reversing a murder conviction because the court had improperly allowed the state to discover defendant's non-testifying experts opinions; finding that the defendant's insanity defense did not waive the attorney-client privilege protection; "The State asserts that Neuman waived all privileges by raising an insanity defense. However, the attorney-client privilege is vital in cases such as this one where the defendant's sanity is at issue because the privilege allows the attorneys to consult with the non-testifying expert in order to familiarize themselves with central medical concepts, assess the soundness and advantages of a insanity defense, evaluate potential specialists, and probe adverse testimony.")

Case Date Jurisdiction State Cite Checked
2015-06-15 State GA

Chapter: 29.704
Case Name: United States v. Hassan-Gouda, Crim. A. No. 07-258 (JBS), 2013 U.S. Dist. LEXIS 39297, at *21, *22-23, *23, *23-24 (D.N.J. Mar. 21, 2013)
(holding the criminal defendant's denial of knowledge of his indictment resulted in a waiver of any privilege covering communications with his lawyer; "[I]t is clear that Gouda has placed the issue of his notice of the Indictment's charges into contention. He has denied prior knowledge of the Indictment in his certification filed herein."; "Gouda is essentially asserting that Gindhart [Lawyer] failed to advise him of the Indictment and the court date on or before April 6th. This necessarily means Gouda is claiming he had no communication with Gindhart between March 28th and April 6th about the Indictment and court date. Where the accused affirmatively raises the absence of communication from counsel as a basis for dismissal of the charges, he has opened the door to inquiry of counsel whether such information was transmitted to the accused. If it was not transmitted, there is no concern with attorney-client privilege because there was no communication. If it was transmitted, that fact can be probed because the privilege is waived to that extent."; "There is an implied waiver in the case at bar because, by claiming that he was unaware of the Indictment, and seeking dismissal of the case based on that fact, Gouda has placed in issue any conversation that he may have had with his attorney about the issuance of the Indictment."; "Waiver by implication only extends to communications between attorney and client that lie within the scope of that narrow subject matter, namely, whether Gindart informed Gouda of the indictment and his need to appear in court during the time frame of March 27 to April 6, 2007. Other communications, such as legal strategies, tactics, weight of evidence and the like, remain privileged." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-03-21 Federal NJ B 3/14

Chapter: 29.762
Case Name: Outpost Solar, LLC v. Henry, Henry & Underwood, P.C., No. M2016-00297-COA-R9-CV, 2017 Tenn. App. LEXIS 841 (Tenn. App. Dec. 29, 2017)
(applying the Hearn doctrine in holding that a client had triggered an at issue waiver by suing a former lawyer for malpractice, and claiming ignorance to toll the statute of limitations which would otherwise have run out before the client filed the lawsuit; "This interlocutory appeal arises out of an action in which two companies brought suit against their former attorney for legal malpractice. The attorney moved for summary judgment as to one client's claim, contending that the claim was barred by the statute of limitations; the client responded that it learned of its cause of action within one year of the assertion of the claim. The attorney then sought through discovery to have the former client produce communications from the client's new counsel; the client declined to produce the communications, taking the position that they were protected by the attorney-client privilege. The attorney moved the trial court to compel the client to produce the communications, and the court granted the motion, holding that the client impliedly waived attorney-client privilege in asserting that the client discovered the cause of action within the year preceding the assertion of the claim. Discerning no error, we affirm the trial court's holding.")

Case Date Jurisdiction State Cite Checked
2017-12-29 State TN
Comment:

key case


Chapter: 29.801
Case Name: Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015)
September 2, 2015 (PRIVILEGE POINT)

"Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part I"

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that corporations relying on an affirmative defense that they acted in "good faith" reliance on the law necessarily implicate their lawyer's advice — and therefore trigger such an "at issue" waiver.

In Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015), FLSA defendant KB Home relied upon the 29 U.S.C. § 259 defense of good faith reliance on administrative regulations, etc., in defending its employee classifications. KB Home "emphasize[d] that it is not relying on advice of counsel to prove its good faith defenses" — instead explaining that its "witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the classification was lawful." Id. at *7. The court rejected this argument — concluding that privileged communications "are highly probative of whether [KB Home] had a good faith belief in the lawfulness of its policy." Id. at *9. The court reminded KB Home that it "may elect to withdraw its good faith defenses, in which case the privilege would still attach." Id. at *14. Four days later, another court found that a defendant had waived its privilege by arguing that its patent infringement accusations against the plaintiff "were grounded in a good-faith belief" that the plaintiff had infringed its patent. Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015). The court quoted an earlier decision in holding that defendant cannot "'be permitted, on the one hand, to argue that it acted in good faith and without an improper motive and then, on the other hand, to deny [the adversary] access to the advice given by counsel where that advice . . . played a substantial and significant role in formulating [its] actions.'" Id. at *8-9. (quoting Pereira v. United Jersey Bank, No. 94-CV-1565 (LAP), 1997 WL 773716, at *6 (S.D.N.Y. Dec. 11, 1997).

Litigants putting their mental state at issue or referring to withheld documents to support an assertion might waive their privilege. Next week's Privilege Point discusses two cases going the other way.

Case Date Jurisdiction State Cite Checked
2015-07-22 Federal NY
Comment:

key case


Chapter: 29.801
Case Name: Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015)
September 2, 2015 (PRIVILEGE POINT)

"Does Asserting a 'Good Faith' Affirmative Defense Waive the Attorney-Client Privilege?: Part I'"

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that corporations relying on an affirmative defense that they acted in "good faith" reliance on the law necessarily implicate their lawyer's advice — and therefore trigger such an "at issue" waiver.

In Edwards v. KB Home, Civ. A. No. 3:11-CV-00240, 2015 U.S. Dist. LEXIS 93584 (S.D. Tex. July 18, 2015), FLSA defendant KB Home relied upon the 29 U.S.C. § 259 defense of good faith reliance on administrative regulations, etc., in defending its employee classifications. KB Home "emphasize[d] that it is not relying on advice of counsel to prove its good faith defenses" — instead explaining that its "witnesses will say that their own independent judgment (based on a review of the DOL letters and perhaps other considerations) caused them to conclude that the classification was lawful." Id. At *7. The court rejected this argument — concluding that privileged communications "are highly probative of whether [KB Home] had a good faith belief in the lawfulness of its policy." Id. At *9. The court reminded KB Home that it "may elect to withdraw its good faith defenses, in which case the privilege would still attach." Id. At *14. Four days later, another court found that a defendant had waived its privilege by arguing that its patent infringement accusations against the plaintiff "were grounded in a good-faith belief" that the plaintiff had infringed its patent. Skyline Steel, LLC v. Pilepro, LLC, No. 13-CV-8171 (JMF), 2015 U.S. Dist. LEXIS, at *6 (S.D.N.Y. July 22, 2015). The court quoted an earlier decision in holding that defendant cannot "'be permitted, on the one hand, to argue that it acted in good faith and without an improper motive and then, on the other hand, to deny [the adversary] access to the advice given by counsel where that advice . . . Played a substantial and significant role in formulating [its] actions.'" Id. At *8-9. (quoting Pereira v. United Jersey Bank, No. 94-CV-1565 (LAP), 1997 WL 773716, at *6 (S.D.N.Y. Dec. 11, 1997).

Litigants putting their mental state at issue or referring to withheld documents to support an assertion might waive their privilege. Next week's Privilege Point discusses two cases going the other way.

Case Date Jurisdiction State Cite Checked
2015-07-18 Federal TX
Comment:

key case


Chapter: 29.802
Case Name: Polk v. Sherwin-Williams Co., Case No. 3:16cv1491 (MPS), 2018 U.S. Dist. LEXIS 93201 (D. Conn. June 4, 2018)
(holding that plaintiff's argument that his former lawyer lacked authority to settle a case triggered an implied waiver; "These privileges, however, cannot be used both as a shield and as a sword. Here, plaintiff maintains that he did not agree to settle his claims with Sherwin-Williams . . . yet he refuses to produce communications with the attorneys whom he retained to negotiate a settlement with Sherwin-Williams. By asserting that Fortgang did not have authority to settle with defendant on his behalf, he has waived his attorney-client privilege with respect to communications about settlement.")

Case Date Jurisdiction State Cite Checked
2018-06-04 Federal CT
Comment:

Key Case


Chapter: 29.802
Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-15-0384, 2018 Ill. App. LEXIS 51 (Ill. App. 5d Feb. 7, 2018)
(holding that a doctor who has sued a former lawyer for breach of fiduciary duty must disclose communications with other lawyers at the same time the doctor was represented by that lawyer; holding that the implied waiver extended to communications about the doctor's breach claim, but not about the doctor's settlement of an earlier case – which would be governed by an objective standard; "Based on our analysis of existing Illinois law, as set forth above, we find that documents within Daily, Stinson, and Padberg's files, as set forth in their respective privilege logs, may contain communications that are required to be examined in order to truthfully resolve factual and legal issues that have been injected into the instant litigation by the plaintiffs. . . . Although the plaintiffs are not asserting a cause of action for legal malpractice against Greensfelder, they are asserting a cause of action for breach of fiduciary duty based on Greenfelder's role as their prior counsel and its use of information acquired in that role in its representation of an adverse party leading up to, during, and in settlement of the Missouri litigation. An essential element of a claim for breach of fiduciary duty is damages approximately caused by the breach. . . . there is an issue of whether Greensfelder, Daily, Stinson, and Padberg contributed to cause the Missouri litigation and its outcome and the relative contribution of each to the plaintiffs' damages."; "In order to truthfully resolve the factual and legal issues necessary to adjudicate the causation element of the plaintiffs' claim against Greensfelder, all communications between the plaintiffs and Daily, Stinson, and Padberg that are related to the role Daily, Stinson, and Padberg played in the events leading up to and including the plaintiffs' defense of the Missouri litigation are discoverable pursuant to the 'at issue' exception to the attorney-client privilege. . . . documents evidencing communications between the plaintiffs and Daily, Stinson, and Padberg that are relevant solely to the reasonableness of the plaintiffs' decision to settle the Missouri litigation, and the amount of that settlement, remain privileged because, for the above-stated reasons, they are not 'required to be examined in order to truthfully resolve' the causation element of the plaintiffs' claim against Greensfelder for breach of fiduciary duty. Instead, they are relevant to the issue of the reasonableness of the settlement of the Missouri litigation, which, as explained above, is subject to an objective measure of proof.")

Case Date Jurisdiction State Cite Checked
2018-02-07 State IL

Chapter: 29.802
Case Name: Watchous Enterprises, L.L.C. v. Pacific National Capital, Case No. 16-1432-JTM, 2017 U.S. Dist. LEXIS 176194 (D. Kansas Oct. 24, 2017)
(holding that a litigant triggered an at issue waiver doctrine by alleging that its former lawyer did not have authority to settle a case; "Pacific has placed its communications with Hyland at issue before the court. Pacific's primary (if not only) defense to Watchous's breach-of-settlement-agreement claim is that it 'did not give Charles Hyland express authorization or implied consent to settle with Plaintiff on the terms as alleged by Plaintiff in its First Amended Complaint.' Thus, what Pacific and Hyland discussed regarding the settlement and settlement negotiations is directly at issue; in Pacific's parlance, such communications are 'integral' to Pacific's defense. Because Pacific injected the defense that Hyland did not have the authority needed to bind it to the settlement, Pacific has waived the attorney-client privilege on the issue."; "[I]t would be unfair to allow Pacific to assert its communications (or lack thereof) with Hyland as a defense to liability on the breach-of-settlement claim, but then to foreclose Watchous from discovery needed to test that assertion. Caselaw instructs that the attorney-client privilege may not be used in this manner as both a sword and a shield. Additionally, Pacific states that its principals can testify 'that they were aware of a settlement with the plaintiff and that only the Waterfall defendants were paying the settlement sum,' but such testimony would not address Pacific's asserted defense that it did not authorize Hyland to enter the settlement agreement on Pacific's behalf. And perhaps more importantly, Watchous should not be limited to after-the-fact testimony of its adversaries when real-time, direct documentary evidence is available to shed light on Pacific's asserted denial of providing settlement authority.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal KS

Chapter: 29.802
Case Name: Watchous Enterprises, L.L.C. v. Pacific National Capital, Case No. 16-1432-JTM, 2017 U.S. Dist. LEXIS 176194 (D. Kansas Oct. 24, 2017)
("The issue before the court is whether a client waives the attorney-client privilege over communications related to a settlement agreement by asserting, in a lawsuit brought to enforce the settlement agreement, it did not authorize its attorney to settle. Because the court finds that such an assertion places the subject communications 'at issue,' the court finds the privilege waived as to those communications.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal KS

Chapter: 29.802
Case Name: In re Oxbow Carbon LLC Unitholder Litig., Consol. C.A. No. 12447-VCL, 2017 Del. Ch. LEXIS 43 (Ch. Ct. Del. March 13, 2017)
(analyzing the privilege implications of a company's disclosure of an investigation, including surveillance video tapes; "[T]he Company has waived any protection for documents relating to Elroy's investigation by placing the matter 'at issue' in this litigation. A party waives the attorney-client privilege by 'inject[ing] the communications themselves into the litigation' or 'inject[ing] an issue into the litigation, the truthful resolution of which requires an examination of the confidential communications.'. . . Here, the Koch Parties have put at issue the results of Elroy's investigation of O'Donnell by arguing to the court that the investigation 'revealed evidence suggesting that Ms. O'Donnell may have inappropriately used her Renegade administrative assistant (paid for by Renegade) as her personal nanny and house manager.'. . . Having used the results of the investigation as a sword, the Koch Parties cannot invoke privilege as a shield.")

Case Date Jurisdiction State Cite Checked
2017-03-13 Federal DE
Comment:

key case


Chapter: 29.802
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 105619 (N.D. Cal. Aug. 9, 2016)
(analyzing the at issue doctrine; finding that defendant's testimony about subjective beliefs relating an earlier settlement triggered a waiver, on a statement-by-statement basis; "Attorney-client privilege issues lie at the heart of litigation over a settlement alleged to be anticompetitive when a party's lawyers are the principal negotiators and advisors regarding the agreement. That party cannot testify to its subjective beliefs about the reasons for entering into the settlement and preclude its adversaries from discovering the content of the lawyers' advice by simply asserting that the attorney-client advice was irrelevant to those subjective beliefs. Instead, when the record shows that attorney-client advice played a significant role in formulating a party's subjective beliefs on central issues in the case, the adversaries are entitled to disclosure of the otherwise privileged material to test the credibility of those subjective beliefs. But if a party relies solely on objective evidence, or subjective beliefs derived exclusively from business judgment and experience, the attorney-client privilege should be protected."; "[G]iven the evidence plaintiffs have presented showing that defendants actually relied on attorney advice in reaching their subjective beliefs, I conclude that defendants will be precluded from relying on specific subjective beliefs unless they choose to waive the privilege as to communications and information regarding the same. This does not mean that defendants will be unable to rely on any evidence with respect to those topics or defenses. Defendants may rely on objective evidence from experts that does not cross into what defendants believed or why defendants were motivated to agree to certain terms in the Watson settlement."; "[T]he actual use of attorney client information in prosecuting or defending this case is not necessary to effect an implied waiver under Hearn."; "'Many of defendants' cases are inapposite because they cite to or rely on the Third Circuit's analysis in Rhone-Poulenc Rorer which, contrary to Hearn, requires affirmative use of the privileged information to find implied waiver.'"; "That said, a simple showing of relevance to a case will not suffice. The information sought must be directly relevant and necessary to allow a party to fully challenge the claims or defenses of the party asserting the privilege, and the information cannot be secured through other sources."; "[D]efendants cannot avoid waiver by offering to rely at summary judgment or trial solely on non-legal justifications for certain subjective beliefs. There is no doubt -- given the question at issue is whether anticompetitive goals motivated defendants' settlement -- that business advice and non-legal facts were considered by settlement decision-makers. But if defendants inject their subjective beliefs on specific topics as part of their defense of the Watson settlement -- like a subjective belief that patent litigation is inherently uncertain --where evidence establishes that the subjective belief was also informed by attorney advice, it would be unfair to not allow plaintiffs access to defendants' contemporaneous attorney-client information to test the veracity of the defendants' justifications in this litigation even though that belief is based in part on business judgment and executive experience."; "As to many of the subjective beliefs . . . defendants' position is essentially this: 'Trust us. The justifications we are putting forward here are why we settled.' But in order to test or rebut defendants' assertions, in fairness, plaintiffs should be given access to contemporaneous information regarding those topics that necessarily implicate attorney-client advice."; "At summary judgment or trial, defendants' experts will be allowed to testify on these topics based on objective evidence (including the pleadings and transcripts from the Watson patent litigation). Those experts may also opine on the timing of the trial court decision, post-trial motions, and resolution of appeals to the Federal Circuit. Those experts, however, will not be allowed to discuss or suggest what the defendants' actual subjective beliefs may have been on these topics."; "[A]ll subjective beliefs about the FDA's actions with respect to Watson's ANDA, including its potential approval, put at issue attorney-client advice because the record in this case shows that defendants' attorneys were extensively involved in advising whether and when the ANDA might be approved. While it is true that defendants' scientists and employees working on regulatory matters could testify as to how the FDA handles ANDAs generally and the timeframe for regulatory action on ANDAs in general, the direct and unmistakable implication of testimony from defendants' employees is that those considerations weighed on decisions made with respect to the Watson ANDA and, therefore, the settlement of the Watson litigation. . . . Defendants can present testimony about the Watson ANDA and the FDA's actions on it, not as subjective beliefs but by objective expert testimony."; "Endo cannot provide subjective testimony on these subject matters (contents, chances of success, and timing) without putting all related attorney-client information on those matters at issue.")

Case Date Jurisdiction State Cite Checked
2016-08-09 Federal CA

Chapter: 29.802
Case Name:


Case Date Jurisdiction State Cite Checked
2016-08-09 Federal CA

Chapter: 29.802
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 105619 (N.D. Cal. Aug. 9, 2016)
(analyzing the at issue doctrine; finding that defendant's testimony about subjective beliefs relating an earlier settlement triggered a waiver, on a statement-by-statement basis; "Attorney-client privilege issues lie at the heart of litigation over a settlement alleged to be anticompetitive when a party's lawyers are the principal negotiators and advisors regarding the agreement. That party cannot testify to its subjective beliefs about the reasons for entering into the settlement and preclude its adversaries from discovering the content of the lawyers' advice by simply asserting that the attorney-client advice was irrelevant to those subjective beliefs. Instead, when the record shows that attorney-client advice played a significant role in formulating a party's subjective beliefs on central issues in the case, the adversaries are entitled to disclosure of the otherwise privileged material to test the credibility of those subjective beliefs. But if a party relies solely on objective evidence, or subjective beliefs derived exclusively from business judgment and experience, the attorney-client privilege should be protected."; "[G]iven the evidence plaintiffs have presented showing that defendants actually relied on attorney advice in reaching their subjective beliefs, I conclude that defendants will be precluded from relying on specific subjective beliefs unless they choose to waive the privilege as to communications and information regarding the same. This does not mean that defendants will be unable to rely on any evidence with respect to those topics or defenses. Defendants may rely on objective evidence from experts that does not cross into what defendants believed or why defendants were motivated to agree to certain terms in the Watson settlement."; "[T]he actual use of attorney client information in prosecuting or defending this case is not necessary to effect an implied waiver under Hearn."; "'Many of defendants' cases are inapposite because they cite to or rely on the Third Circuit's analysis in Rhone-Poulenc Rorer which, contrary to Hearn, requires affirmative use of the privileged information to find implied waiver.'"; "That said, a simple showing of relevance to a case will not suffice. The information sought must be directly relevant and necessary to allow a party to fully challenge the claims or defenses of the party asserting the privilege, and the information cannot be secured through other sources."; "[D]efendants cannot avoid waiver by offering to rely at summary judgment or trial solely on non-legal justifications for certain subjective beliefs. There is no doubt -- given the question at issue is whether anticompetitive goals motivated defendants' settlement -- that business advice and non-legal facts were considered by settlement decision-makers. But if defendants inject their subjective beliefs on specific topics as part of their defense of the Watson settlement -- like a subjective belief that patent litigation is inherently uncertain --where evidence establishes that the subjective belief was also informed by attorney advice, it would be unfair to not allow plaintiffs access to defendants' contemporaneous attorney-client information to test the veracity of the defendants' justifications in this litigation even though that belief is based in part on business judgment and executive experience."; "As to many of the subjective beliefs . . . defendants' position is essentially this: 'Trust us. The justifications we are putting forward here are why we settled.' But in order to test or rebut defendants' assertions, in fairness, plaintiffs should be given access to contemporaneous information regarding those topics that necessarily implicate attorney-client advice."; "At summary judgment or trial, defendants' experts will be allowed to testify on these topics based on objective evidence (including the pleadings and transcripts from the Watson patent litigation). Those experts may also opine on the timing of the trial court decision, post-trial motions, and resolution of appeals to the Federal Circuit. Those experts, however, will not be allowed to discuss or suggest what the defendants' actual subjective beliefs may have been on these topics."; "[A]ll subjective beliefs about the FDA's actions with respect to Watson's ANDA, including its potential approval, put at issue attorney-client advice because the record in this case shows that defendants' attorneys were extensively involved in advising whether and when the ANDA might be approved. While it is true that defendants' scientists and employees working on regulatory matters could testify as to how the FDA handles ANDAs generally and the timeframe for regulatory action on ANDAs in general, the direct and unmistakable implication of testimony from defendants' employees is that those considerations weighed on decisions made with respect to the Watson ANDA and, therefore, the settlement of the Watson litigation. . . . Defendants can present testimony about the Watson ANDA and the FDA's actions on it, not as subjective beliefs but by objective expert testimony."; "Endo cannot provide subjective testimony on these subject matters (contents, chances of success, and timing) without putting all related attorney-client information on those matters at issue.")

Case Date Jurisdiction State Cite Checked
2016-08-09 Federal CA

Chapter: 29.802
Case Name: Martin v. Giordano, 11-CV-4507 (ARR), 2016 U.S. Dist. LEXIS 59940 (E.D.N.Y. May 4, 2016)
(analyzing an at issue waiver based on plaintiff's abandonment of a lawsuit; holding that plaintiff had not triggered a lawsuit, and now has hired a new lawyer; "In this context, the court does not find that fairness requires disclosure. Plaintiff has not injected the privileged communications into this dispute through some affirmative act with the aim of benefiting himself. Nor has plaintiff selectively used the privileged materials. Instead, plaintiff has simply responded to the pending motion for sanctions and attorney's fees. In doing so, plaintiff has advanced multiple arguments for why an evidentiary hearing is unnecessary. These arguments include his claim that a large part of the evidence defendants seek to elicit at that hearing is subject to attorney-client privilege. It is fair to say that plaintiff uses attorney-client privilege as a shield, but he does not use it as a sword."; "The same cannot be said for Mr. Leventhal. He has stated in multiple submissions to the court that '[t]he information that warranted the withdrawal of plaintiff's claims did not implicate the facts that formed the basis of plaintiff's claims.'. . . In making these assertions to the court, Mr. Leventhal has attempted to influence this court with respect to the determination it must make on the bona fides of plaintiff's claims by reference to the allegedly privileged information. Mr. Leventhal essentially asks defendants and this court to take his word for it that the privileged communications did not involve the merits while refusing to reveal what they did involve. This strikes the court as the kind of unfairness the at issue waiver has developed to prevent.")

Case Date Jurisdiction State Cite Checked
2016-05-04 Federal NY

Chapter: 29.802
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 Jurisdiction State Cite Checked
2016-04-19 Federal IN B 8/16
Comment:

key case


Chapter: 29.802
Case Name: Foster v. City of New York, 14 Civ. 4142 (PGG) (JCF), 14 Civ. 9220 (PGG) (JCF), 2016 U.S. Dist. LEXIS 14594 (S.D.N.Y. Feb. 5, 2016)
(in an opinion by Magistrate Judge Francis, finding that the defendant City triggered a waiver by seeking to avoid liquidated damages by claiming subjective good faith in attempting to comply with FLSA guidelines, and finding a broad scope of waiver that included communication with any level of City employees, but not extending to lawyer-to-lawyer communications that did not involve City employees; "[T]o avoid the award of liquidated damages, a defendant who has violated the overtime provisions of the FLSA must prove that it "acted in subjective 'good faith' and had objectively 'reasonable grounds' for believing that the acts or omissions giving rise to the failure did not violate the [statute].". . . To meet the subjective prong, "an employer must show that it took 'active steps to ascertain the dictates of the FLSA and then act to comply with them.'"; "The defendant asserts it implemented policies and procedures 'to ensure compliance with the FLSA after consultation with counsel for the City of New York.'"; "The City's good faith defense has effected an implied waiver here. . . . The question, as noted above, is the waiver's scope."; "The City has said it relied on the advice of counsel in formulating its FLSA compliance policies. It has therefore waived protection over communications related to legal advice about this compliance shared between attorneys and non-attorney employees, whether those employees are 'decision-makers' or 'lower level employees' who might provide input to the process. Indeed, to the extent that such advice was provided to employees completely disconnected from the decision-making chain, the City has waived attorney-client privilege over those communications, as well. . . . Therefore, the defendant shall produce communications between counsel working on behalf of the City (whether from the Law Department, either of the agencies' legal departments, or outside counsel) and any non-attorney employee of the agencies or the City, as long as it is relevant to advice provided to the agencies or the City regarding the agencies' FLSA compliance."; "The remaining category of information at issue is attorney-to-attorney communications. The plaintiffs contend that these are discoverable."; "The City argues that the good faith defense depends on its 'state of mind' which could not have been influenced by information it never heard. . . . To be sure, the reasonableness of the City's reliance on the advice of counsel could be undermined if, for example, the plaintiffs showed that counsel's legal analysis was cursory or otherwise obviously flawed. However, this information would be of limited use to the plaintiffs unless they could show that the City knew (or should have known) that the analysis was deficient.")

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

key case


Chapter: 29.802
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 Jurisdiction State Cite Checked
2016-01-06 Federal UT

Chapter: 29.802
Case Name: Turubchuk v. E.T. Simonds Construction Co., Case No. 3:12-cv-594-SMY-DGW, 2015 U.S. Dist. LEXIS 133512 (S.D. Ill. Sept. 30, 2015)
(analyzing privilege issues in connection with a joint venture against who the plaintiff made a personal injury claim; "Part of ETS' defense is that it is not liable for the actions of Mr. Green [joint venture's lawyer] in the 2007 Case . . . . ETS argues that 'where a plaintiff seeks to hold a client vicariously liable for the attorney's allegedly intentional tortious conduct, a plaintiff must prove facts demonstrating either that the client specifically directed, controlled, or authorized the attorney's precise method of performing the work . . . .' . . . It goes on to argue that '[t]here is no evidence that any representations were ever made by ETS or SIAC to Richard Green that could constitute direction, control or authorization . . . ' (Id.). Essentially, ETS contends that Mr. Green acted independently and it is not liable because it did not ratify, direct, or approve his actions. This constitutes waiver of the attorney-client privilege. ETS' communications with Mr. Green are necessary to determine whether it committed fraud in the 2007 Case either by withholding information from Mr. Green or ratifying the information that Mr. Green supplied to Plaintiff's in the 2007 Case. ETS contends that it had no communications with Mr. Green as to the underlying Rule 26 disclosures (both in its briefs and in deposition testimony) -- Plaintiffs are entitled to test this statement of fact through discovery.")

Case Date Jurisdiction State Cite Checked
2015-09-30 Federal IL

Chapter: 29.802
Case Name: Apple Inc. v. Samsung Electronics Co., Case No. 11-CV-01846-LHK, 2015 U.S. Dist. LEXIS 80954 (N.D. Cal. June 19, 2015)
August 19, 2015 (PRIVILEGE POINT)

"Quinn Emanuel Triggers an "At Issue" Waiver in the Apple v. Samsung Case"

A litigant can trigger an "at issue" waiver by affirmatively asserting some position that necessarily implicates privileged communications. These waivers represent the most extreme example of implied waivers, which do not involve the actual disclosure of privileged communications.

In Apple Inc. v. Samsung Electronics Co., Case No. 11-CV-01846-LHK, 2015 U.S. Dist. LEXIS 80954 (N.D. Cal. June 19, 2015), Samsung's law firm Quinn Emanuel improperly disclosed protected Apple information to Samsung employees. In defending against Apple's motion for sanctions, Quinn Emanuel, among other things, "characterized the nature and intent" of its lawyers' communications with Samsung (while withholding them as privileged); pointed to privileged (and withheld) communications "to support its argument that neither Samsung nor Quinn Emanuel" used confidential information; and argued that "Quinn Emanuel at all times complied with the protective order." Id. At *73-75. The court concluded that "[w]ithout access to the documents Samsung put directly at issue, neither Apple nor Nokia [whose information was also improperly disclosed] could evaluate whether Samsung's explanations and arguments lacked credibility." Id. At *76. The court found that Quinn Emanuel had triggered an "at issue" waiver, and denied Samsung's effort to avoid the waiver "by retroactively withdrawing its arguments." Id. At *85. As the court put it, "having already benefited from its arguments . . . About the contents of the privileged documents [by avoiding greater sanctions, Samsung] cannot now seek to withdraw those arguments." Id. At *86.

Although perhaps the "sword-shield" analogy seems trite, it accurately captures the "at issue" doctrine's theme — which can trip up even sophisticated clients and their lawyers.

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal CA
Comment:

key case


Chapter: 29.802
Case Name: Apple Inc. v. Samsung Electronics Co. Ltd., Case No. 11-CV-01846-LHK, 2015 U.S. Dist. LEXIS 80954 (N.D. Cal. June 19, 2015)
(holding that Quinn Emanuel caused an at issue waiver by relying on privileged communications to defend itself from sanctions after having erroneously transmitted to its client Samsung protected Apple communications subject to a protective order; explaining the context; "Judge Grewal found that Samsung put the contents of these documents at issue because Samsung 'rais[ed] affirmative defenses about inadvertence and whether Nokia's confidential information actually was used.'. . . As to the first point, Judge Grewal found that Samsung relied on privileged communications to argue that there is no evidence that anyone deliberately shared information that should not be shared. . . . Similarly, Judge Grewal found that Samsung also relied on privileged communications to argue that Samsung never used Nokia's confidential information."; "Judge Grewal's finding that Samsung's arguments during the sanctions proceedings put at issue the contents of the privileged communications was not clearly erroneous. During the sanctions proceedings, Samsung raised the following issues bearing upon the contents of communications between Samsung and its attorneys: (1) whether any of the numerous protective order violations were intentional . . . , (2) whether any unauthorized recipient of confidential information used the information . . . And (3) Quinn Emanuel's alleged compliance with the protective order (ECF No. 2835-3 at 18-20). Samsung advanced these arguments through a variety of means: (a) statements by Quinn Emanuel at hearings as to what was and was not communicated in the privileged documents between Samsung and its in-house attorneys and outside counsel in this and other unrelated litigations . . . , (b) briefing by Quinn Emanuel as to what was or was not sent or communicated in the privileged documents between Samsung and its in-house attorneys and outside counsel in this and other unrelated litigations . . . , © the documents themselves submitted unredacted to the Court, but provided to Apple and Nokia with redactions for attorney-client privileged material . . . , and (d) heavily-redacted declarations characterizing the contents of attorney-client privileged material."; "Judge Grewal's finding that Samsung originally put the contents of the Waiver Documents at issue is not clearly erroneous. Specifically, Samsung's response to Judge Grewal's Order to Show Cause as to why sanctions should not be imposed first argued that inadvertence and lack of use should excuse Samsung's conduct. . . . Samsung sought to use the Waiver Documents affirmatively to argue to Judge Grewal that sanctions should not be imposed, while at the same time Samsung sought to shield Apple and Nokia from viewing the Waiver Documents on the basis of privilege. Samsung sought to use these documents as both a sword and a shield."; "In opposing sanctions, Samsung characterized the nature and intent of its communications with outside counsel, discussing what, factually, was communicated and opining about the intent of the authors at the time the communications occurred."; "Samsung also used its privileged communications to support its argument that neither Samsung nor Quinn Emanuel used Nokia's confidential information."; "Finally, Samsung argued that Quinn Emanuel at all times complied with the protective order. . . . This defense put at issue when Quinn Emanuel learned of the breach, how it learned of the breach, and communications between Quinn Emanuel and Samsung regarding the breach."; " For each issue, Samsung argued that there was 'no evidence' to suggest anything other than that each breach of the protective order was inadvertent and that none of the unauthorized recipients used any ill-gotten confidential information. . . . Without access to the documents Samsung put directly at issue, neither Apple nor Nokia could evaluate whether Samsung's explanations and arguments lacked credibility or whether any evidence submitted in camera conflicted with Samsung's explanations and arguments. Indeed, when Judge Grewal questioned Samsung's counsel about inconsistencies in a Samsung employee's deposition testimony, Samsung's counsel answered by referring Judge Grewal to privileged communications that Nokia and Apple had not seen and could not adequately dispute. . . . Moreover, to say that the content of Samsung's privileged documents was not 'at issue' ignores the reality that Judge Grewal did, in fact, consider and cite these privileged documents in his Sanctions Order."; "The Court similarly rejects Samsung's argument that Samsung was entitled to avoid waiver by retroactively withdrawing its arguments. Samsung argues that it should be afforded an opportunity to withdraw any disclosures or arguments that are determined to yield a waiver."; "In the instant case, Samsung has already submitted privileged documents for in camera review, already put the contents of these documents at issue, and already succeeded in avoiding greater sanctions. . . . Samsung, having already benefited from its arguments to Judge Grewal about the contents of the privileged documents, cannot now seek to withdraw those arguments."; "In the instant case . . . It was unfair, and inconsistent with due process, for Samsung to rely on documents that Apple and Nokia were shielded from viewing while Samsung used those documents to argue to Judge Grewal that sanctions were unwarranted.")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal CA
Comment:

key case


Chapter: 29.802
Case Name: Roberts v. Legacy Meridian Park Hosp., Inc., Case No. 3:13-cv-01136-SI, 2015 U.S. Dist. LEXIS 46998 (D. Ore. April 10, 2015)
(finding that a litigant caused an at issue waiver by claiming that his former lawyer lacked authority to settle the case; "Plaintiffs respond with Dr. Roberts's [Plaintiff/Client] declaration asserting that Mr. McDougal [Former lawyer] did not have Plaintiffs' authority to make the representations that Mr. McDougal made. Plaintiffs, through Dr. Roberts's declaration, thereby injected the defense that Mr. McDougal did not have the actual authority needed to bind Plaintiffs to a settlement. Thus, Plaintiffs placed 'at issue' whether Mr. McDougal had actual authority from his clients to extend the settlement offers that he made. Moreover, the only way for Defendants to be able fairly to refute -- or confirm -- Dr. Roberts's assertion is to inquire into otherwise privileged communications. It simply would not be fair to allow Dr. Roberts, in opposing Defendants' motion to enforce settlement, to rely on his statement that he did not authorize his attorney to present a settlement offer to counsel for Defendants while also allowing Dr. Roberts to invoke his attorney-client privilege to prevent Defendants from confirming or refuting that statement.")

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

Chapter: 29.802
Case Name: Barker v. Columbus Regional Healthcare Sys. Inc., Case No. 4:12-cv-108 (CDL), 2014 U.S. Dist. LEXIS 120504 (M.D. Ga. Aug. 29, 2014)
(analyzing the "at issue" doctrine; "Columbus Regional intends to do more than merely deny the essential elements of Plaintiff's claim. Columbus Regional does not plan simply to argue that Plaintiff failed to carry his burden of proof. Columbus Regional understandably intends to explain fully why its conduct was not knowingly and intentionally unlawful.")

Case Date Jurisdiction State Cite Checked
2014-08-29 Federal GA

Chapter: 29.802
Case Name: Barker v. Columbus Regional Healthcare Sys. Inc., Case No. 4:12-cv-108 (CDL), 2014 U.S. Dist. LEXIS 120504 (M.D. Ga. Aug. 29, 2014)
(analyzing the "at issue" doctrine; "Columbus Regional makes the same argument here. It does not intend to raise an advice of counsel defense. It does not intend to rely on attorney-client communications. It simply denies that it knowingly and intentionally violated the law, and it wants to explain why it believed its conduct was lawful.")

Case Date Jurisdiction State Cite Checked
2014-08-29 Federal GA

Chapter: 29.802
Case Name: Barker v. Columbus Regional Healthcare Sys. Inc., Case No. 4:12-cv-108 (CDL), 2014 U.S. Dist. LEXIS 120504 (M.D. Ga. Aug. 29, 2014)
(analyzing the "at issue" doctrine; "Columbus Regional clearly intends to assert affirmatively that it had a good faith belief that it complied with the Anti-Kickback Statute, the Stark Law, and the False Claims Act. Thus, Columbus Regional injected its belief as to the lawfulness of its conduct into the case and waived its attorney-client privilege as to communications relating to the legality of the transactions that form the basis of Plaintiff's claims.")

Case Date Jurisdiction State Cite Checked
2014-08-29 Federal GA

Chapter: 29.802
Case Name: Mine Safety Appliances Co. v. The North River Ins. Co., 2:09cv348, 2014 U.S. Dist. LEXIS 42771 (W.D. Pa. March 31, 2014)
(analyzing work product issues in a first party bad faith case based on a defendant insurance company's failure to pay for asbestos liability; finding the "at issue doctrine inapplicable; "[M]uch if not all these disclosures are 'at issue.' A central component of the parties' dispute is whether a number of the underlying settlements fall within the grant of coverage or were handled and resolved in a manner that places them within it. Significant aspects of this are whether certain of the settled or otherwise resolved claims properly were attributed to the underlying insurance and thus are to be credited in satisfying the exhaustion requirement and whether certain of the settled or otherwise resolved claims involved claimants who had claimed (a) exposure to a harmful substance as a result of using one of plaintiff's products and (b) that the exposure occurred while or before the policy was in effect. Much of the dispute underlying these central matters is grounded in the way plaintiff approached and settled the underlying claims, including the nature and type of information used by plaintiff in making decisions to settle, whether appropriate diligence was employed by plaintiff's underlying counsel to assure that the claimant's asserted claims were grounded in facts that brought the claims within the grant of coverage (i.e., that exposure allegedly occurred at a time that can be attributed to the policy period and from the use of one of plaintiff's products), whether significant value was gained for both parties from the resolution of the underlying claims and so forth. It also involves plaintiff's and the Hartford's treatment and allocation of several of those underlying claims."; "It is clear that plaintiff intends to rely on the communications within categories (i) and (ii) to establish one or both of its claims or to otherwise counter positions advanced by defendant. These communications and information thus fall within the scope of the 'at issue' doctrine. The relinquishment of the privileges under these circumstances waives the ability to claim them as against the world."; "To the extent plaintiff can successfully maintain the privileges, the information will be barred from being used in the public record and plaintiff will gain the benefit of preserving the privilege as to all third parties, including the underlying claimants and their counsel. To the extent the matters are conceded or otherwise determined to have been waived by being placed at issue (or for any other reason other than the mere disclosure of the information to defendant), then the matters may be used by either party in making their election to file judicial documents into the public record in support of an adjudication on the merits.")

Case Date Jurisdiction State Cite Checked
2014-03-31 Federal PA

Chapter: 29.802
Case Name: Galena St. Fund, L.P. v. Wells Fargo Bank, N.A., Civ. A. No. 12-cv-00587-BNB-KMT, 2014 U.S. Dist. LEXIS 31257, at *19-20 (D. Colo. Mar. 10, 2014)
(analyzing a claim by plaintiff, an investor in mortgage backed trusts; "Wells Fargo's non-party claim that WaMu [non-party loan servicer Washington Mutual] is responsible for its own negligence in servicing the loans depends on the underlying premise that WaMu independently decided how to remit liquidation proceeds from the federally insured loans. Having asserted WaMu's conduct as the loan servicer as a sword by means of the Non-Party Designation, Wells Fargo cannot use the attorney-client privilege as a shield to hide communications that indicate that Wells Fargo directed WaMu on how to remit those proceeds. I find that any attorney-client privilege attaching to Exhibit B35 has been put at-issue by the Non-Party Designation and is waived.")

Case Date Jurisdiction State Cite Checked
2014-03-10 Federal CO B 8/14

Chapter: 29.802
Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *35 n.19 (S.D. Ga. May 8, 2013)
(in an employment discrimination case against celebrity Paula Deen and her brother "Bubba" Hiers, ultimately concluding that Deen's three outside consultants were outside the attorney-client privilege protection; "Here the defendants deny negligence and even cite to Jackson's above-mentioned letter to Deen in insisting that they created no hostile environment. By definition, they injected into this case all of their HR responses, including Gerard's [outside counsel, who had both law-related and human resources responsibilities] to the extent it is shown (and two witnesses say it occurred) he wore an 'HR hat' in addition to an outside-counsel hat.")

Case Date Jurisdiction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 29.802
Case Name: Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist. LEXIS 179609, at *3 (S.D.N.Y. Dec. 19, 2012)
February 20, 2013 (PRIVILEGE POINT)

"Does Asserting a "Good Faith" Defense Trigger a Privilege Waiver?"

In contrast to express waivers (which involve the disclosure of privileged communications), implied waivers can occur without such disclosure. The most common type of implied waiver involves the client's explicit reliance on the fact of a privileged communication – such as filing an "advice of counsel" affirmative defense.

The most extreme form of implied waiver is called an "at issue" waiver. This type of waiver can occur if the client affirmatively advances some position that justifies analyzing the client's mental state or motivation – including any legal input. In Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist. LEXIS 179609, at *3 (S.D.N.Y. Dec. 19, 2012), defendant Hearst Corp. filed an affirmative defense that it had acted in "good faith" in trying to comply with the Fair Labor Standards Act and a parallel New York law. Plaintiff claimed that the defense triggered an "at issue" waiver. Hearst resisted, "citing court cases from other circuits for the proposition that '[t]here are many ways to establish good faith under the FLSA that do not involve the advice of counsel.'" Id. At *5. Judge Harold Baer rejected defendant's argument, citing an earlier Second Circuit case holding that "'testimony that [a litigant] thought his actions were legal would have put his knowledge of the law and the basis of his understanding of what the law required in issue.'" Id. At *6 (citation omitted). The court did not order defendant to immediately produce the documents, instead directing an in camera review which presumably would use this unforgiving standard.

"At issue" waivers represent a real danger, because corporations can trigger such waivers without disclosing any privileged communications, or explicitly relying on or even referencing privileged communications.

Case Date Jurisdiction State Cite Checked
2012-12-19 Federal NY
Comment:

key case


Chapter: 29.802
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *53 (S.D. Ohio Nov. 13, 2012)
(finding that an audit by a third party consultant hired by a company's outside lawyer deserved privilege protection; but finding a waiver; "The undersigned finds that it would be unfair to permit defendants to produce the final version of the ERM audit which concludes that HNCC was compliant with regulatory requirements, yet withhold the draft versions of the audit and other communications that may undermine or help explain the factual basis for this conclusion. . . . [D]efendants' affirmative defenses assert that HNCC has been in substantial compliance with federal, state, and local statutes and regulations, and by making the subject matter of the final ERM audit (compliance with regulatory requirements) a defense in this action, defendants have placed the subject matter of the audit at issue.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 29.803
Case Name: In re Itron, Inc., No. 17-60733, 2018 U.S. App. LEXIS 4136 (5th Cir. App. Feb. 21, 2018)
(analyzing the implied waiver and at issue implications of a corporate buyer who settled a claim by a third party and then sued a corporate seller for negligent misrepresentation; explaining that the corporate buyer sought recovery from the seller of the settlement amount and litigation costs; holding that the reasonableness of the settlement involved an objective standard, and therefore did not trigger an implied waiver or at issue waiver; "Itron objected that many if not all of these materials are shielded from disclosure by the attorney-client privilege. But the magistrate judge disagreed, concluding that Itron waived its privilege by filing a lawsuit to which the attorney-client communications would be relevant. That was error."; "We hold that the mere act of filing this lawsuit effected no waiver of any attorney-client privilege. We further hold that the magistrate judge's contrary ruling amounted to clear error warranting mandamus relief. We therefore GRANT Itron's petition for mandamus, VACATE the magistrate judge's order, and REMAND the case with instructions to re-evaluate Defendants' motion in a manner consistent with this opinion.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal
Comment:

key case


Chapter: 29.803
Case Name: In re Itron, Inc., No. 17-60733, 2018 U.S. App. LEXIS 4136 (5th Cir. App. Feb. 21, 2018)
(analyzing the implied waiver and at issue implications of a corporate buyer who settled a claim by a third party and then sued a corporate seller for negligent misrepresentation; explaining that the corporate buyer sought recovery from the seller of the settlement amount and litigation costs; holding that the reasonableness of the settlement involved an objective standard, and therefore did not trigger an implied waiver or at issue waiver; "[A] client waives the privilege by affirmatively relying on attorney-client communications to support an element of a legal claim or defense -- thereby putting those communications 'at issue' in the case."; "This opinion does not concern the 'anticipatory waiver' version of this rule, which finds waiver 'when a privilege-holder pleads a claim or a defense in such a way that he will be forced inevitably to draw upon a privileged communication at trial in order to prevail,' Smith v. Kavanaugh, Pierson & Talley, 513 So. 2d 1138, 1145 (La. 1987), and which no party has invoked."; "Defendants would have us broaden the Jackson Medical [Jackson Medical Clinic for Women, P.A. v. Moore, 836 So. 2d 767, 773 (Miss. 2003)] rule such that waiver occurs whenever the client files a lawsuit to which privileged communications, if disclosed, might prove 'highly relevant' -- even if the client never relies on or uses those communications to make her legal case. The magistrate judge embraced a more expansive rule, requiring only simple relevance. These expansions of Jackson Medical find no support in the Mississippi Rules of Evidence, see Miss. R. Evid. 502(d), or any Mississippi caselaw. And given Jackson Medical and other persuasive authorities, we conclude this is not the law the Mississippi Supreme Court would apply."; "Our circuit and others agree that '[r]elevance is not the standard for determining whether or not evidence should be protected from disclosure as privileged, . . . even if one might conclude the facts to be disclosed are vital, highly probative, directly relevant or even go to the heart of an issue.' Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994) (emphasis added)."; "Defendants fall back on dicta in an out-of-circuit federal district court opinion, decided in 1975, which no reported Mississippi case has cited. The case is Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)."; "Here, Defendants ask us to apply an interpretation of Hearn that would require only that the privileged material have high relevance to case. But as discussed above, that view has no basis in Mississippi law, contradicts prevailing notions of waiver, and would effectively nullify the privilege."; "Even accepting for the sake of argument that the privilege takes flight whenever privileged communications become 'highly relevant' to an adversary's defense -- which, we emphasize, it does not -- Defendants still fail to show how Itron's privileged communications meet that standard."; "Defendants' primary theory of relevance apparently concerns whether Itron took reasonable steps to mitigate its damages. According to Itron's complaint, Defendants' negligent misrepresentations caused Itron to become liable to Consert, necessitating the Consert litigation which Itron eventually settled. There is thus a colorable argument that, under ordinary tort principles, Itron cannot recover the cost of the settlement as damages to the extent Defendants show the settlement to have been unreasonable. See Rolison v. Fryar, 204 So. 3d 725, 736 (Miss. 2016) ("An injured party has a duty to take reasonable steps to mitigate damages."); see also Wall v. Swilley, 562 So. 2d 1252, 1258 (Miss. 1990) (in Mississippi, failure to mitigate 'is an affirmative defense' defendants must plead and prove)."; "But this does not render the opinions of Itron's counsel 'highly relevant.' Instead, '[t]he reasonableness of the settlement . . . [must] be examined under an objective standard.'"; "Defendants similarly claim they must see Itron's privileged communications to know 'whether Itron's settlement damages are attributable to [Defendants], a third party, or Itron itself.' Although Defendants' argument is not entirely clear, they apparently seek to uncover that Itron followed unreasonable advice from its law firm (Gibson Dunn), which might arguably relieve Defendants of liability as a superseding cause."; "Either way, the argument fails for at least the reasons just discussed: Both potential theories turn on whether Itron engaged in a course of action that was objectively reasonable. And as discussed above, the objective reasonableness of Itron's conduct should be apparent from the facts known to Itron at the time (which again, are not privileged) coupled with objective legal analysis.")

Case Date Jurisdiction State Cite Checked
2018-02-21 Federal
Comment:

key case


Chapter: 29.803
Case Name: In re Itron, Inc., 883 F.3d 553 (5th Cir. 2018)
May 9, 2018 (PRIVILEGE POINT)

"Fifth Circuit Issues a Favorable 'At Issue' Doctrine Decision'"

The frightening "at issue" variety of implied waiver can destroy privilege protection if litigants affirmatively seek some advantage by (among other things) relying on their actions' "good faith." If the litigants sought legal advice about the actions that they claim to have been taken in "good faith," many courts order discovery of those otherwise privileged communications.

In In re Itron, Inc., 883 F.3d 553 (5th Cir. 2018), plaintiff claimed that three corporate officers of a company it acquired lied about the purchased company's contractual obligations to a third party. Plaintiff litigated with and eventually settled with that third party. Plaintiff then sued the defendant officers for "negligent misrepresentation, seeking as compensatory damages the cost of the . . . litigation and settlement." Id. at *555. The trial court had ordered plaintiff to produce its communications with its Gibson Dunn lawyers – noting that defendants were "seek[ing] to uncover that [plaintiff] followed unreasonable advice from its law firm (Gibson Dunn), which might arguably relieve Defendants of liability as a superseding cause." Id. at *566. The Fifth Circuit took the extraordinary step of granting a petition for writ of mandamus "to correct [the trial court's] significant misapplication of attorney-client privilege law." Id. at *555. The court held that "the mere act of filing this lawsuit effected no waiver of any attorney-client privilege," and that "the objective reasonableness of [plaintiff's] conduct should be apparent from the facts known to [plaintiff] at the time (which again, are not privileged) coupled with objective legal analysis." Id. at *556, *566 (emphases added).

The Fifth Circuit's forceful rejection of a broad "at issue" waiver approach should encourage corporate defendants who seek lawyers' advice before taking actions, if the corporations may later rely on those actions in pursuing or defending litigation.

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

key case


Chapter: 29.803
Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640 (D. Ariz. Dec. 21, 2016)
(holding that Union Pacific did not waive its privilege protection by contending that it acted lawfully; "Plaintiffs claim that Defendants have waived the attorney-client privilege for Exhibits A-F by asserting that their easement practices are lawful. Specifically, Plaintiffs cite an affirmative defense asserted by Union Pacific which states that 'conduct alleged in the Complaint conformed with all state and federal statutes, regulations, and other law based upon the state of knowledge at all relevant times alleged in the Complaint.'. . . Plaintiffs claim that this puts in issue Union Pacific's knowledge of legal matters during the relevant times periods, and note that Kinder Morgan has adopted the same defense by incorporation."; "The Court finds the reasoning in Rhone-Poulenc [Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (3d Cir. 1994)] and Erie [In re Cnty. of Erie, 546 F.3d 222, 228 (2d Cir. 2008)] truer to the intent and nature of the attorney-client privilege than Hearn [Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)]. Waiver requires that a party put the advice of counsel at issue, either by asserting that it relied on that advice or, as in Amlani, placing the attorney-client communications squarely in the case. Defendants have not done so. They do not claim that they should prevail in this case because they relied on advice of counsel. Nor do Plaintiff's claims lend themselves to such a defense. Plaintiffs sue for trespass, quiet title, ejectment, inverse condemnation, unjust enrichment, recovery of rents, and an accounting. . . . These claims will turn on whether Defendants had title to the property they occupied, not whether they reasonably believed so based on the advice of counsel.")

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

Chapter: 29.803
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 Jurisdiction State Cite Checked
2016-12-06 Federal KS

Chapter: 29.803
Case Name: Hawa v. Coatesville Area School District, Civ. A. No. 15-4828, 2016 U.S. Dist. LEXIS 122912 (E.D. Pa. Sept. 12, 2016)
November 2, 2016 (PRIVILEGE POINT)

"Does Releasing an Internal Investigation Report Always Trigger a Subject Matter Privilege Waiver?"

One might think that a corporation or government entity would always trigger a subject matter privilege waiver by disclosing an internal investigation report. But subject matter waiver risks have been receding.

In Hawa v. Coatesville Area School District, Civ. A. No. 15-4828, 2016 U.S. Dist. LEXIS 122912 (E.D. Pa. Sept. 12, 2016), defendant school district released its investigation report into racist text messaging among administrators. Not surprisingly, plaintiffs claimed a waiver, and sought all related documents and privileged communications. The court rejected plaintiffs' efforts, noting that "[t]he 'central element' in determining whether a partial waiver exists is the question of fairness." Id. at *6 (citation omitted). The court noted that plaintiffs "have not argued that [defendant] has made any strategic use of the Report in this litigation, that it relies on the Attorneys' investigation as a form of defense in this action or that it has 'made factual assertions, the truth of which can only be assessed by examination of the privileged communications.'" Id. at *7 (citation omitted). The court also concluded that plaintiffs could obtain "non-privileged materials the Attorneys collected in their investigation . . . through ordinary discovery addressed to the materials' original sources." Id. at *7-8.

Some courts might find that such a release constitutes an effort to gain some advantage in the "court of public opinion," but cases like this continue the trend toward courts' rejection of broad subject matter waivers.

Case Date Jurisdiction State Cite Checked
2016-09-12 Federal PA B 11/16
Comment:

key case


Chapter: 29.803
Case Name: Loguidice v. McTiernan, 1:14-CV-1323 (TJM/CFH), 2016 U.S. Dist. LEXIS 113745 (N.D.N.Y. Aug. 25, 2016)
("Plaintiff argues that by raising the Mount Healthy defense, defendants have waived their right to assert attorney-client privilege because the defense puts the privileged information at issue. The Mount Healthy defense is an affirmative defense arising out of Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co v. White, 548 U.S. 53, 67, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). If a plaintiff demonstrates a prima facie retaliation claim, a defendant may assert the Mount Healthy defense, which requires the defendant to demonstrate 'by a preponderance of the evidence that it would have taken the same adverse employment action 'even in the absence of the protected conduct.'"; "The parties provide no cases, nor did independent research reveal such a case, where a court held that asserting the Mount Healthy defense waives the attorney-client privilege. Thus, whether assertion of the Mount Healthy defense waives the attorney-client privilege appears to be an issue of first impression. Some courts, largely from outside of the Second Circuit, although not addressing the waiver issue, have generally indicated that the defendant's burden in the Mount Healthy defense takes into account the defendants' subjective motivation."; "Although a defendant's state of mind or motivation may be a relevant factor in asserting the Mount Healthy defense, it does not necessarily follow that the defense puts the advice of counsel at issue. In order to determine that answer, it must be known whether the defendants relied on the advice of counsel in making their decision to terminate plaintiff. In contending that they would have terminated plaintiff even in the absence of her protected conduct, although possible that they relied on counsel's advice, reliance on counsel's advice is not necessarily required."; "Accordingly, at this time, the undersigned refrains from determining whether assertion of the Mount Healthy defense waives any aspect of the attorney-client privilege with respect to advice defendants received. It is not until defendants are asked whether they relied on certain communications in making the decision to terminate plaintiff that the undersigned can assess whether that reliance puts attorney-client privileged advice 'at issue.'")

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

Chapter: 29.803
Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)
(ultimately not deciding whether a deponent's one word deposition answers triggered an at issue waiver; "We turn now to the question of at-issue waiver. While our supreme court has recognized some implied waivers of the attorney-client privilege . . . it has not yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that federal caselaw has recognized an at-issue waiver, but the court declined to address the issue because it was not necessary in the case before it. . . . Nor has this court recognized an at-issue waiver."; "Truscott was compelled in a deposition -- in a case in which she is a defendant -- to answer respondents' questions as to whether she relied on the advice of her counsel. She gave one-word responses to the questions. These compelled responses are not affirmative steps taken by a client to place privileged communications 'at issue.' . . . Respondents have cited no case where a defendant's answer to such a question in a deposition effects an implied waiver of the attorney-client privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants in depositions if they relied on the advice of their counsel in taking an action. Defendants who wisely sought legal advice before terminating an employee, publishing a news article, or taking any other number of actions later giving rise to a claim where their state of mind is at issue would find their privileged communications subject to discovery simply because they truthfully responded in a deposition that they relied on the advice of counsel. Such an implied waiver could chill parties from being candid with their counsel or even seeking legal advice."; "Truscott insists that she has no plans to assert a reliance-on-counsel defense in this case. She made the same assertion to the district court in her memorandum of law supporting her motion to quash. We agree with Truscott that she has not raised a reliance-on-counsel defense through the generic statement in her answer that respondents' claims 'may be barred . . . by any or all of the affirmative defenses contemplated by the Minnesota Rules of Civil Procedure.'. . . If Truscott attempts to raise the defense, respondents may seek appropriate relief and the district court may consider whether such an affirmative step implies a waiver of the attorney-client privilege. At present, however, Truscott has not affirmatively asserted the reliance-on-counsel defense and has not by implication waived the attorney-client privilege.")

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

key case


Chapter: 29.803
Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)
(ultimately not deciding whether a deponent's one word deposition answers triggered an at issue waiver; "We turn now to the question of at-issue waiver. While our supreme court has recognized some implied waivers of the attorney-client privilege . . . It has not yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that federal caselaw has recognized an at-issue waiver, but the court declined to address the issue because it was not necessary in the case before it. . . . Nor has this court recognized an at-issue waiver."; "Truscott was compelled in a deposition -- in a case in which she is a defendant -- to answer respondents' questions as to whether she relied on the advice of her counsel. She gave one-word responses to the questions. These compelled responses are not affirmative steps taken by a client to place privileged communications 'at issue.' . . . Respondents have cited no case where a defendant's answer to such a question in a deposition effects an implied waiver of the attorney-client privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants in depositions if they relied on the advice of their counsel in taking an action. Defendants who wisely sought legal advice before terminating an employee, publishing a news article, or taking any other number of actions later giving rise to a claim where their state of mind is at issue would find their privileged communications subject to discovery simply because they truthfully responded in a deposition that they relied on the advice of counsel. Such an implied waiver could chill parties from being candid with their counsel or even seeking legal advice."; "Truscott insists that she has no plans to assert a reliance-on-counsel defense in this case. She made the same assertion to the district court in her memorandum of law supporting her motion to quash. We agree with Truscott that she has not raised a reliance-on-counsel defense through the generic statement in her answer that respondents' claims 'may be barred . . . By any or all of the affirmative defenses contemplated by the Minnesota Rules of Civil Procedure.'. . . If Truscott attempts to raise the defense, respondents may seek appropriate relief and the district court may consider whether such an affirmative step implies a waiver of the attorney-client privilege. At present, however, Truscott has not affirmatively asserted the reliance-on-counsel defense and has not by implication waived the attorney-client privilege.")

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

key case


Chapter: 29.803
Case Name: Martin v. Giordano, 11-CV-4507 (ARR), 2016 U.S. Dist. LEXIS 59940 (E.D.N.Y. May 4, 2016)
(analyzing an at issue waiver based on plaintiff's abandonment of a lawsuit; holding that plaintiff had not triggered a lawsuit, and now has hired a new lawyer; "In this context, the court does not find that fairness requires disclosure. Plaintiff has not injected the privileged communications into this dispute through some affirmative act with the aim of benefiting himself. Nor has plaintiff selectively used the privileged materials. Instead, plaintiff has simply responded to the pending motion for sanctions and attorney's fees. In doing so, plaintiff has advanced multiple arguments for why an evidentiary hearing is unnecessary. These arguments include his claim that a large part of the evidence defendants seek to elicit at that hearing is subject to attorney-client privilege. It is fair to say that plaintiff uses attorney-client privilege as a shield, but he does not use it as a sword."; "The same cannot be said for Mr. Leventhal. He has stated in multiple submissions to the court that '[t]he information that warranted the withdrawal of plaintiff's claims did not implicate the facts that formed the basis of plaintiff's claims.'. . . In making these assertions to the court, Mr. Leventhal has attempted to influence this court with respect to the determination it must make on the bona fides of plaintiff's claims by reference to the allegedly privileged information. Mr. Leventhal essentially asks defendants and this court to take his word for it that the privileged communications did not involve the merits while refusing to reveal what they did involve. This strikes the court as the kind of unfairness the at issue waiver has developed to prevent.")

Case Date Jurisdiction State Cite Checked
2016-05-04 Federal NY

Chapter: 29.803
Case Name: Lillieroos v. Starr Indemnity & Liability Co., Case No. CIV-12-1359-D, 2016 U.S. Dist. LEXIS 14876 (W.D. Okla. Feb. 8, 2016)
(finding that defendant had not triggered an "at issue" waiver while seeking indemnification based on an earlier settlement agreement; "Upon review of the parties' submissions, including the documents for which the attorney-client privilege is invoked, the Court finds that all of the so-called Hearn factors militate against waiver, and that CBP's motion should be denied. As previously noted by the Court, the first two factors, assertion of the privilege as the result of an affirmative act, which renders the protected information at issue, are crucial requirements. . . . Simply bringing a claim for indemnification, and mere relevance of the protected information, are not enough. . . . Here, in seeking indemnification Starr did not inject advice of its counsel into the case, nor did it rely on advice of counsel to supply an element of its indemnification claim. Starr has affirmatively asserted that it will not rely on the advice of counsel in attempting to meet its burden at trial to establish the reasonableness of the settlement.")

Case Date Jurisdiction State Cite Checked
2016-02-08 Federal OK

Chapter: 29.803
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "Barko cannot 'overcome the privilege by putting [the COBC investigation] in issue' at the deposition . . . and then demanding under Rule 612 to see the investigatory documents the witness used to prepare. Allowing privilege and protection to be so easily defeated would defy 'reason and experience,' FED. R. EVID. 501, and 'potentially upend certain settled understandings and practices' about the protections for such investigations. . . ."; "In sum, the District Court's Rule 612 ground for its production order was clear error because there was no basis for the fairness balancing test it conducted and, even had there been, the test failed to give due weight to the privilege and protection attached to the internal investigation materials.")

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

key case


Chapter: 29.803
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "There's the rub: Where KBR neither directly stated that the COBC investigation had revealed no wrongdoing nor sought any specific relief because of the results of the investigation, KBR has not 'based a claim or defense upon the attorney's advice.'")

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

Chapter: 29.803
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "'KBR has an internal Code of Business Conduct ('COBC') investigative mechanism that provides a means of identifying any potentially illegal activities within the company. When a COBC investigation reveals reasonable grounds to believe that a violation of 41 U.S.C. §§ 51-58 (the 'Anti-Kickback Act') may have occurred requiring disclosure to the government under FAR 52.203-7, KBR makes such disclosures. . . . KBR represents that KBR did perform COBC investigations related to [the KBR subcontractor and employee at the center of the fraud alleged by Barko], and made no reports to the Government following those investigations. Id."; "Although KBR argued that it should be permitted to amend its pleadings to strike the sections the District Court found created a waiver, the District Court rejected the request to vacate its production order unless KBR elected to default on the entire suit.")

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

key case


Chapter: 29.803
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "If allowed to stand, the District Court's rulings would ring alarm bells in corporate general counsel offices throughout the country about what kinds of descriptions of investigatory and disclosure practices could be used by an adversary to defeat all claims of privilege and protection of an internal investigation."; "These alarm bells would be well founded. If all it took to defeat the privilege and protection attaching to an internal investigation was to notice a deposition regarding the investigations (and the privilege and protection attaching them), we would expect to see such attempts to end-run these barriers to discovery in every lawsuit in which a prior internal investigation was conducted relating to the claims. Accordingly, we think it is essential to act on this Petition in order to protect our privilege waiver jurisprudence.")

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

Chapter: 29.803
Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)
September 30, 2015 (PRIVILEGE POINT)

"The D.C. Circuit Issues Another Privilege-Friendly Decision: Part II"

Last week's Privilege Point discussed the D.C. Circuit's refusal to order disclosure of privileged communications a Rule 30(b)(6) deponent reviewed before testifying. In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015). The D.C. Circuit’s other holding rejected plaintiff's argument that defendant KBR triggered an "at issue" waiver.

In a memorandum supporting its summary judgment motion, KBR wrote a lengthy footnote noting that the company investigates claims of possible illegal conduct, and reports to the government if the investigation uncovers any. Id. At *6-7. The footnote then stated that KBR conducted an investigation into plaintiff's allegations, but it did not make any reports to the government. The plaintiff argued that KBR had placed "at issue" (and therefore must produce) the underlying investigation documents – by inferring that its investigation did not uncover any illegal conduct. Perhaps sensing that the plaintiff had a good point, KBR had sought to retract the footnote. The district court denied KBR's attempted retraction. The D.C. Circuit correctly noted that KBR had not disclosed any privileged communications, and had not explicitly indicated that it would rely on the investigation results as a defense. The court also noted that the footnote appeared in the summary judgment motion's introduction rather than its argument section, and that all inference are drawn against a party like KBR which seeks summary judgment.

KBR should consider itself lucky to have avoided an "at issue" waiver." Many courts would have gone the other way, given the fairly obvious implication that KBR sought the court to draw. But those courts probably would have allowed KBR to withdraw the footnote rather than suffer the consequences. Overall, the D.C. Circuit's latest KBR decision represents another victory for corporations' privilege protection.

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

key case


Chapter: 29.803
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Co., Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552, at *9 (D. Mass. June 22, 2015)
September 9, 2015 (PRIVILEGE POINT)

"Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part II"

Last week's Privilege Point described several cases in which litigants waived their privilege protection by filing a statutory "good faith" defense or just arguing that they acted in good faith.

Other courts take a different view. In Bacchi v. Massachusetts Mutual Life Insurance Co., defendant resisting a policyholder class action filed affirmative defenses "that it acted in good faith . . . And that its actions were approved by the appropriate regulatory agency." Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552, at *9 (D. Mass. June 22, 2015). Not surprisingly, plaintiff claimed a waiver. The court rejected plaintiff's argument — noting that defendant "does not intend to rely on counsel's opinion or advice" — but instead "will argue that it took the same types of steps that other similar situated entities would take if they were proceeding in good faith to do what the law required." Id. At *15-16. About five weeks later, the Fourth Circuit reached the same conclusion about plaintiff's claim against an insurance company, based on the company's handling of an underlying lawsuit — about which the company obviously received its lawyers' advice. Smith v. Scottsdale Ins. Co., No. 15-1002, 2015 U.S. App. LEXIS 13290 (4th Cir. July 30, 2015). The plaintiff claimed an "at issue" waiver, but the court disagreed. The court noted that the insurance company "did not assert any claim or defense based on counsel's advice in the underlying case; instead, it maintained that its actions were based on its own evaluation of the case." Id. At *4.

Litigants defending their actions do not automatically waive privilege protection for communications with their lawyers about those actions. But litigants relying on a formal affirmative defense of "good faith" or arguing generally that they acted reasonably must hope that the court will let them support that defense while withholding privileged communication that informed their decisions.

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA
Comment:

key case


Chapter: 29.803
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Company, Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552 (D. Mass. June 22, 2015)
(finding that defendant did not waive its privilege protection by asserting its good faith in following insurance regulations; "An 'at issue' waiver occurs when a party injects certain claims or defenses into the case which implicate, i.e., put 'at issue' the communications of counsel. . . . The classic example is where a defendant defends itself against a claim on the ground that it relied on the advice of counsel in performing or failing to perform the challenged conduct."; "[M]erely pleading a good faith defense does not by itself waive privilege."; "Some courts in this circuit have used the three factor test first set forth in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). . . . More recently, the trend has been to follow the Second Circuit's approach in In re County of Erie, 546 F.3d 222 (2d Cir. 2008), which limited Hearn by additionally requiring that the privileged information be not only relevant, but also actually relied upon by the privilege holder to support a claim or defense in the case."; "The 'reliance' element in Erie addresses the concern that, as a practical matter, there will be very few privilege disputes where the Hearn factors are not met. Rare is the party who will expend the resources to seek disclosure of an opponent's privileged materials where the privileged materials are not both relevant and helpful to the case of the party seeking disclosure. . . . In this Court's view, the Erie approach more reasonably balances the right of the plaintiff to discover truly relevant and vital information with the right of the defendant to protect from disclosure privileged communications not germane to the instant case. Accordingly, that is the approach the Court applies here."; "Under Erie and similar cases, it is not necessary for purposes of proving the reliance element to show that the defendant has stated an intent to introduce or use evidence of attorney communications at trial. Rather, it is sufficient if the defendant's defense relies on certain facts that can only be tested or rebutted if the adversary is given access to the privileged material. . . . For example, if the defendant were to raise the defense that it acted based on its own subjective good faith belief that its actions were lawful, then the reliance element would likely be met, and that is so even if the defendant were to state that it did not intend to introduce any evidence regarding its attorneys' advice. . . . That is because the plaintiff, in order to test the assertion of good faith, would need to know whether the defendant received any legal advice suggesting that its actions were in fact not lawful."; "By contrast, there is no waiver if the defendant intends to establish its good faith defense by showing that its conduct was actually lawful, or was actually approved by regulators, and does not intend to rely on counsel's opinion or advice. . . . That is because such a defense depends on objective facts, making the advice of the defendant's counsel irrelevant."; "With respect to the present case, it appears undisputed that the defendant's in-house counsel participated in the preparation and submission to the DOI of the filings at issue. Among other things, counsel received guidance via a facsimile from the DOI, notated words or some communication on it, and circulated the facsimile to others within the company. Presumably, counsel at some point during this process also expressed some thought as to how the company should proceed. However, the defendant contends that it does not intend to rely on counsel's advice for purposes of asserting its good faith defense. Rather, it will argue that it took the same types of steps that other similar situated entities would take if they were proceeding in good faith to do what the law required. The defendant says it will argue that it accepted guidance from the DOI regarding the filing of safety fund calculations, followed that advice, and then subsequently inferred from the DOI's response (or lack of response) that it (the defendant) had acted properly. As such, the defendant argues that, while it relied on counsel to some extent in determining how to proceed with respect to the preparation and submission of its filings, it will not rely on the advice of counsel for purposes of showing that it acted in good faith."; "In light of the foregoing, the Court finds that the defendant has not waived any privilege or protection by virtue of asserting the defenses of good faith and regulatory approval.")

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA

Chapter: 29.803
Case Name: Davis v. Drake, Case No. 3:14 CV 113, 2014 U.S. Dist. LEXIS 157313 (N.D. Ohio Nov. 6, 2014)
(analyzing at issue doctrine in connection with a GM employee's executor suing the widow for benefits; "[T]he undersigned Magistrate is not persuaded that the attorney-client privilege concerning U.A.W. Legal Plans representation in Mr. Davis' estate planning has been waived. Despite Defendant's contention that Plaintiff has put such materials at issue, Defendant does not cite and this Court is otherwise unaware of any legal precedent finding waiver under the same or analogous circumstances. To the extent that Plaintiff put Mr. Davis' will at issue by arguing that Defendant is not mentioned therein, Defendant has suffered no prejudice since the will is part of the record in this case. Mr. Davis' will and estate planning is also irrelevant to the disposition of this case since the dispute before this Court relates to ERISA plan benefits.")

Case Date Jurisdiction State Cite Checked
2014-11-06 Federal OH

Chapter: 29.803
Case Name: Freedman v. Weatherford International Ltd., 12 Civ. 2121 (LAK) (JCF), 2014 U.S. Dist. LEXIS 102248 (S.D.N.Y. July 25, 2014)
(denying plaintiffs' effort to obtain documents created during a company's audit committee's investigation; "The same subject matter waiver analysis applied above to the Audit Committee investigation also largely applies to the Latham investigation. The plaintiffs also allege, however, that subject matter waiver is warranted because Weatherford placed the Latham investigation at issue by raising an affirmative defense of good faith, which they equate with an advice of counsel defense. . . . While the defendants have pled good faith in their Answer, it is unclear whether they will ultimately present state of mind evidence warranting a waiver."; reaching the same conclusion about an investigation conducted by the Latham law firm)

Case Date Jurisdiction State Cite Checked
2014-07-25 Federal NY

Chapter: 29.803
Case Name: Empire West Title Agency, L.L.C. v. Talamante, No. CV-13-0268-PR, 2014 Ariz. LEXIS 97 (Ariz. May 7, 2014)
("In this contract case, the issue is whether the plaintiff impliedly waived the attorney client privilege by alleging that it 'reasonably believed' the defendant had met its contractual obligations. We find no waiver and hold that merely alleging the reasonableness of one's beliefs does not, in itself, waive the privilege; rather, the litigant must advance a subjective evaluation or understanding that incorporates the advice of counsel."; "Although DOS's knowledge of the alleged title defect might be material to Empire's defense, DOS has done nothing to inject that issue into the litigation. Merely pleading a claim, as we noted in Lee [State Farm Mutual Automobile Insurance Co. v. Lee, 199 Ariz. 52, 13 P.3d 1169 (2000)], does not waive the attorney client privilege."; "The statement in DOS's complaint that it 'reasonably believed' that the CIL's property description, including the easement, was included in all closing documents does not alter our analysis.")

Case Date Jurisdiction State Cite Checked
2014-05-07 State AZ

Chapter: 29.803
Case Name: Ad Investment 2000 Fund LLC v. Commissioner of Internal Revenue , Dkt. Nos. 9177-08, 9178-08, 2014 U.S. Tax Ct. LEXIS 13 (Tx. Ct. April 16, 2014)
("Petitioners respond: '[T]he petitions do not assert any advice-of-counsel defense, nor do they mention (or even allude to) any advice from their attorneys. The Petitions do allege that * * * [the partnerships] and their partners reasonably believed the positions on the Partnerships' tax returns to be correct, but such a defense need not reply on professional advice.'")

Case Date Jurisdiction State Cite Checked
2014-04-16 State TX

Chapter: 29.803
Case Name: Heglet v. City of Hays, Case No. 13-2228-KHV/KGG, 2014 U.S. Dist. LEXIS 35738, at *11 12 (D. Kan. Mar. 19, 2014)
(holding that defendant city did not trigger an at issue waiver; "[T]he issue here is not relevance, it is waiver. Merely asserting good faith does not waive the defense. . . . The record in this case is unclear as to whether Defendants have gone further than a mere waiver. Defendants have produced in discovery facts showing that they consulted with counsel prior to making the decision at issue. If Defendants assert that consultation as part of their good faith claim (and they have not indicated in their briefing whether they will do so), that affirmative act would waive the privilege.")

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

Chapter: 29.803
Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014)
May 7, 2014 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 29.803
Case Name: Safety Dynamics Inc. v. Gen. Star Indem. Co., No. CV-09-00695-TUC-CKJ (DTF), 2014 U.S. Dist. LEXIS 9045, at *6, *7, *12-13, *12 n.3 (D. Ariz. Jan. 24, 2014)
(finding that a litigant claiming good faith as a defense to a bad faith claim did not trigger an at issue waiver under Hearn (Hearn v. Rhay, 68 F.R.D. 574 (1975)); "While Defendant raised an affirmative defense of good faith in response to the claim of bad faith brought by Plaintiff, the mere filing of a bad faith action or the affirmative claim of good faith do not by themselves constitute an implied waiver of the attorney client privilege."; "While Mr. Fanelli's deposition testimony indicates that he sought the advice of counsel during the claims process, the fact that he conferred with counsel about an issue arising in an ongoing litigation does not waive the privilege. . . . The mere fact that a litigant confers with counsel and takes actions based on counsel's advice does not waive the attorney client privilege."; "This Court disagrees with Magistrate Judge Ferraro's conclusion that Defendant does not have to produce a privilege log unless its non-privilege based objections are unfounded. . . . This Court has not identified any authority in the Ninth Circuit that creates an exception to this rule for parties that raise multiple objections in addition to privilege to a single request for documents."; "'Defendants argues that since it objected to the scope of some discovery requests, it should not be required to log all privileged documents that may fall within the objectionable scope of the request. However, in situations where it may be unduly burdensome to specifically identify each privileged document, due to the amount of documents claimed to be privileged, a party may identify privileged documents by categories as long as it's still consistent with federal law.'")

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

Chapter: 29.803
Case Name: Accomazzo v. Kemp, 319 P.3d 231, 233, 234 (Ariz. Ct. App. 2014)
(finding that the "at issue" waiver was not triggered by a wife's allegation that she was under duress when she signed a prenuptial agreement, and that the prenuptial agreement was unintelligible; "Wife contended that the Agreement was unenforceable under theories of breach of fiduciary duty, failure of consideration, lack of voluntariness, and unconscionability, all based on Husband's alleged failure to fully disclose his income and assets during the Agreement's negotiation. Wife further contended that the Agreement was unenforceable because it was unintelligible, Husband had materially breached it, and it was effectively a postnuptial agreement that did not meet the legal criteria for such agreements."; "Here, Husband contends that Wife 'injected into this case factual issues about disclosure of information, whether Wife was under duress during the negotiation and signing of the Pre-nuptial Agreement, and the date Wife signed [the] Pre-nuptial Agreement.' Husband is correct that Wife has placed these matters at issue. His waiver argument fails, however, because Wife has not used privileged communications in aid of her position."; "First, while Wife's attack on the Agreement's intelligibility could well relate to her communications with counsel, there is nothing in the record to suggest that she has based her legal position on the fact or content of those communications. A party may place the advice of counsel at issue by asserting that she acted based on counsel's explanation of a document's legal significance. But Wife has not done so here. Instead, she has argued that '[a]n inexperienced, legally unsophisticated woman, under emotional and time pressure, could not conceivabl[y] digest and comprehend the structure and consequences' of the Agreement, and that the Agreement as written defied interpretation '[e]ven with the assistance of counsel.' This argument is a general criticism of the agreement's wording, not a disclosure of communications between Wife and her attorney, or even an admission that her attorney actually attempted to interpret any provision of the agreement in dispute. To be sure, Wife's insistence on maintaining the privilege may damage her position on the merits because she may be unable to inform the court of facts that might bear on her level of understanding. But the decision to waive the privilege rests with the client.")

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

Chapter: 29.803
Case Name: Norstar Residential, LLLP v. First Mercury Ins. Co., Civ. A. No. 13-cv-00785-WJM-BNB, 2013 U.S. Dist. LEXIS 152194 , at *9-10, *10 (D. Colo. Oct. 23, 2013)
(finding that the plaintiff suing an insurance for failing to defend an underlying action against the plaintiff did not trigger an at issue waiver, and denying defendant insurance company's attempt to discover communications between the plaintiff and its lawyer in the underlying litigation; "The belief of Norstar or its counsel in the reasonableness of Norstar's decision to confess judgment and the appropriate amount of such a judgment are not an element of any of the claims asserted. At most, Norstar's counsel's evaluation of the strengths of the Association's [plaintiff in underlying action] claims and the extent of its damages may be tangentially related to Norstar's recoverable damages, but Norstar eschews any intention to rely on its counsels' opinions in proving damages. Under these circumstances, I conclude that documents concerning evaluation by Norstar's counsel of the strengths of the Association's claims and the extent of its damages in the underlying action are not relevant to any matter at issue in the case."; "Information concerning Norstar's evaluation of the Association's case in the underlying action may be obtained from other, and better, sources including non-privileged documents such as the reports and deposition testimony or experts in the underlying action; non-privileged analyses and the testimony of Norstar's representatives, including responses to written discovery in the underlying action; and the documents of experts and other witnesses who may testify here about Norstar's damages. In view of these alternative sources, it cannot reasonably be said that application of the attorney-client privilege will deny First Mercury of access to information vital to its defense of this action.")

Case Date Jurisdiction State Cite Checked
2013-10-23 Federal CO B 5/14

Chapter: 29.803
Case Name: Grace Vill. Health Care Facilities, Inc. v. Lancaster Pollard & Co., Civ. No. 3:11cv295, 2013 U.S. Dist. LEXIS 110313, at *7-8 (N.D. Ind. Aug. 6, 2013)
(finding the at issue doctrine inapplicable in a case where the plaintiff claimed that the defendant had botched plaintiffs' claim in the Lehman bankruptcy, which forced plaintiffs to settle with Lehman; "Grace Village claims that to recover the costs of its settlement with Lehman, Grace Village need not defend whatever advice its attorneys gave it regarding settlement. Rather, Grace Village must show that its decision to settle, and the settlement itself, were 'fair and reasonable,'. . . an objective standard that does not take into consideration the subjective opinions of Grace Village's lawyers about the merits or demerits of Lehman's claim against Grace Village.")

Case Date Jurisdiction State Cite Checked
2013-08-06 Federal IN B 4/14

Chapter: 29.803
Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *22-23 (D. Nev. June 18, 2013)
(finding that an affirmative defense that the defendant acted in good faith did not result in an express or implied waiver; "Defendants have put Mr. Huebner's [a lawyer and a consultant, upon whose consulting expertise the defendant relied] advice at issue by disclosing that they relied on his advice in his capacity as a management consultant. His advice is fully discoverable. However, by relying on his advice, the Defendants have not waived all confidential attorney-client communications on the same subject matter concerning all advice received from all counsel on the trailer guard compensation policy's compliance with the FLSA [Fair Labor Standards Act]. The fact that Mr. Huebner is a management consultant who is also a lawyer admitted to the bar does not compel a different result. On the record before this court, Defendants have not sought legal advice from Mr. Huebner in his capacity as a lawyer. Rather, the uncontroverted testimony in the record is that Mr. Huebner was hired as a management consultant to develop the trailer guard compensation policy and ensure that it complied with all applicable state and federal wage and hour laws. Mr. Huebner's communications were not held in confidence by the Defendants and Defendants have never claimed that Mr Huebner's advice was privileged.")

Case Date Jurisdiction State Cite Checked
2013-06-18 Federal NV B 4/14

Chapter: 29.803
Case Name: Walter v. Travelers Pers. Ins. Co., Civ. No. 4:12-CV-346, 2013 U.S. Dist. LEXIS 72771, at *16, *18 (M.D. Pa. May 22, 2013)
(in a first party insurance case, finding that insurance company documents deserved privilege and work product protection; "[W]e find persuasive another district court's reasoning [in George v. Wausau Ins. Co., Civ. A. No. 99-CV-6130, 2000 U.S. Dist. LEXIS 16813 (E.D. Pa. Mar. 13, 2000)] that merely asserting a defense that the defendant complied with the law is not tantamount to asserting an 'advice of counsel' defense that might result in a broad waiver of the privilege."; "We are persuaded by the reasoning in these decisions, and similarly agree that in this case the defendant's general defense that it conducted itself lawfully does not negate its ability to protect from disclosure confidential attorney-client communications. Accordingly, we do not embrace the plaintiff's argument that the defendant has waived the attorney-client privilege in this case with respect to the documents that are the subject of the instant dispute.")

Case Date Jurisdiction State Cite Checked
2013-05-22 Federal PA B 4/14

Chapter: 29.803
Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *6-7, *7-8, *8, *10, *11, *15-16 (Del. Ch. Apr. 10, 2013)
("Plaintiffs base their contentions on several assertions made by the Comverge Defendants. These assertions include that: (1) '[t]he Board discussed with its legal advisors what action, if any, it could and/or should take relative to HIG's actions'; (2) 'the Committee and Board were exceptionally active and well informed. . . . The Board received advice throughout this period from five different teams of financial advisors, and the Committee received advice from three different financial advisors and three law firms'; (3) 'the Committee, the full Board, and management, with the advice of outside counsel, actively considered the question of whether to sue HIG for allegedly breaching the NDA'; and (4) '[the Board] sought legal advice from board and company counsel on multiple occasions.'" (internal citation omitted); analyzing what the court called "Prong 1: Injecting privileged communications into the litigation."; "The first prong of the at issue exemption is whether the party injected privileged lawyer--client communications into the litigation. The first prong usually applies when a party asserts lawyer-client privilege to protect a communication and then later seeks to admit that same communication as evidence."; "Here, the Comverge Defendants have not injected or sought to inject any specific attorney-client communications into the litigation. Questions regarding the existence or nonexistence of such communications were raised by Plaintiffs and not the Comverge Defendants. Therefore, the first prong of the 'at issue' exemption does not apply to the circumstances of this case. The at issue exemption, however, still would apply if Plaintiffs prove the second prong."; analyzing what the court called "Prong 2: 'Injecting an issue into the litigation, the truthful resolution of which requires an examination of confidential communications"; "The Comverge Defendants are correct that it was Plaintiffs who first raised the issue of whether the Board solicited the advice of legal counsel. Moreover, the examination of privileged communications is not required for the truthful resolution of this litigation because the Comverge Defendants merely seek to rely on the fact that they sought and obtained legal advice rather than that they relied on the substance of privileged communications to prove that the Board was fully informed. Thus, the Comverge Defendants did not 'inequitably us[e] attorney-client privilege as a sword' or inject a privilege-laden issue into the litigation." (citation and footnote omitted); "[A] number of cases have held that it is the existence of legal advice that is material to the question of whether the board acted with due care, not the substance of that advice."; "[T]he Comverge Defendants have not injected a privilege-laden issue into this litigation, attempted to rely on the substance of a privileged communication, or partially disclosed such a communication. Indeed, a close examination of the Comverge Defendants' statements reveals that they have adhered fairly assiduously to assertions that the Board sought, obtained, received, or considered the advice of counsel. Those statements, however, do not go as far as to say that the Comverge Defendants acted in accordance with the legal advice they received or that those Defendants cannot be liable because they relied on some specific advice of legal counsel. Instead, the information the Comverge Defendants have disclosed in this action regarding any privileged communications is summary in nature and comparable to what would be disclosed in a privilege log. I therefore reject Plaintiffs' argument that the Comverge Defendants waived the attorney--client privilege through the at issue exception." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-04-10 State DE B 3/14

Chapter: 29.803
Case Name: Oliver v. Microsoft Corp., No. C 12-00943 RS (LB), 2013 U.S. Dist. LEXIS 49721, at *3-4, *4 (N.D. Cal. Apr. 5, 2013)
(analyzing waiver issues in an employment case against Microsoft; ultimately finding that Microsoft did not waive privilege protection; "Courts in the Northern District have held that an employer's reliance on the reasonableness of its investigation and the adequacy of its response can operate as waiver of attorney-client privilege. . . . Microsoft is trying to tread a middle ground, arguing that it is not relying on the adequacy of the investigation but instead it is relying on the fact that it responded and took appropriate remedial steps, and Plaintiff failed to avail herself of what Microsoft offered. Courts recognize that approach as different than relying on the reasonableness of the investigation."; "Under the circumstances of Microsoft's assertion about how it will offer its defense, the court follows the middle ground in Kaiser Foundation Hospitals, Inc. v. Superior Court as the appropriate approach. See 66 Cal. App. 4th 1217, 1226, 1228 (1998). There, the court held that if the employee is afforded the full discovery of the investigation (except for specified communications implicating privilege and work product), then there is no waiver. Id. at 1228. The approach makes more sense than the depositions that Plaintiff wants instead."; "On this record, the court orders disclosure of the factual investigation (but not communications that are privileged) and a privilege log within 14 days. . . . The court observes that privilege does not attach merely because lawyers are involved. Here, the information that Plaintiff seeks is fact investigation [rather] than legal advice.")

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

Chapter: 29.803
Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *21 (E.D. Va. Feb. 14, 2013)
(noting the Western District of Virginia had cited the Hearn [Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)] case in Botkin v. Donegal Mut. Ins. Co., Civ. A. No. 5:10cv000772011, U.S. Dist. LEXIS 63871 (W.D. Va. June 15, 2011), while the Fourth Circuit had recently cited with approval the Rhone-Poulenc [Rhone Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir.1994)] standard in Shaheen v. WellPoint Cos., 490 Fed. Appx. 552 (4th Cir. 2012); "The assertion of a good faith transferee defense under Section 548(c) of the Bankruptcy Code does not in and of itself cause a waiver of the attorney-client privilege and the work product doctrine. There has to be more -- some affirmative act to put the attorney's advice at issue in the case.")

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

Chapter: 29.803
Case Name: Iguaçu, Inc. v. Filho, No. C 09 0380 RS, 2012 U.S. Dist. LEXIS 174758, at *4 (N.D. Cal. Dec. 10, 2012)
(holding that a plaintiff's argument that contracting parties mistakenly transposed terms did not trigger an at issue waiver; "The magistrate judge's order effectively precludes Iguaçu from blaming its attorneys at trial or referring to any role they may have had in preparation of the document. Whether Iguaçu will be able to meet its burden to establish grounds for reformation absent evidence from its attorneys involved in the preparation of the document is a separate question. Under these circumstances, though, Iguaçu is not impermissibly using its claim of privilege both as a 'sword' and a 'shield.'")

Case Date Jurisdiction State Cite Checked
2012-12-10 Federal CA B 9/13

Chapter: 29.803
Case Name: Franklin United Methodist Home, Inc. v. Lancaster Pollard & Co., 909 F. Supp. 2d 1037, 1047, 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; "Defendants argue that FUMH's professional-malpractice and breach-of-fiduciary-duty claims against them has placed the cause of its settlement with Lehman directly in-issue and, thereby, waived FUMH's attorney-client and work-product privileges regarding any materials relevant to the causes of that settlement, including communications with its attorneys regarding, e.g., litigation strategy, investigation of the facts, legal evaluations, and advice, and its attorneys' work involving these matters."; "The Court agrees with FUMH's description of its causation burden: Defendants' bad advice caused Lehman to assert the Lehman Claims against FUMH, the natural, foreseeable, and proximate result of which was FUMH incurring defense costs and being placed in the position of either litigating the Claims or making a reasonable settlement (and incurring the costs of either choice). To recover the cost of its settlement, FUMH must prove that its settlement was objectively reasonable considering the circumstances that it faced."; "As FUMH concedes, Defendants are free to utilize all the tools of discovery, including a Fed. R. Civ. P. 30(b)(6) deposition, to inquire into the facts relating to FUMH's decision to settle with Lehman, including the information that it knew at the time and information on which it relied in making that decision, including whether such information was obtained through privileged sources. However, Defendants may not discover the content of any privileged attorney-client communications or work product.")

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

Chapter: 29.803
Case Name: In re Exxon Mobil Corp., 389 S.W.3d 577, 580, 581, 582 (Tex. Ct. App. 2012)
(granting a petition of writ of mandamus and, reversing a trial court order that would have required the disclosure of privileged communication; "A party seeking indemnity in connection with settlement of litigation must show its potential liability in the underlying litigation and establish that the settlement was reasonable, prudent, and made in good faith under the circumstances."; "According to Exxon, it need only establish that the underlying settlement was reasonable and made in good faith as measured by an objective standard through expert testimony and the like. . . . In contrast, the Wagner Group contends that an inquiry into Exxon's good faith unavoidably entails an inquiry into the subjective beliefs of Exxon and its lawyers with respect to settlement of the underlying lawsuit as reflected in their communications."; "These cases support Exxon's contention that the inquiry here is objective rather than subjective so as to put attorney-client communications beyond the offensive-use doctrine's reach."; "The question of whether the settlement was reasonable and made in good faith is an objective determination, not a subjective one.")

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

Chapter: 29.803
Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 698, 699-700 (N.D. Ga. 2012)
(analyzing a bad faith claim against an insurance company by the insured's assignee; ultimately holding the plaintiff assignee could obtain communications with the insured's outside lawyer but not the insurance company's in-house lawyer, and could overcome any work product protection other than opinion work product protection; "In the true spirit of the proverbial argument 'what's good for the goose is good for the gander,' Nationwide asserts that it 'is entitled to the communications between Plaintiffs and Charles McAleer, Plaintiffs' attorney in the underlying tort suit [and] McAleer's mental impressions related to the demand and issues surrounding settlement of the underlying action.'"; "Nationwide has failed to demonstrate extraordinary circumstances warranting the disclosure of protected information. Accordingly, Nationwide is not entitled to discover Plaintiffs' attorney-client communications with McAleer or his mental impressions related to the demand and issues surrounding settlement of the underlying action. However, Nationwide may develop evidence for a defense, consistent with this order, that it was set up for a bad faith action. For example, Nationwide may re-depose Plaintiffs on a time-limited basis solely for the purpose of discovering whether Plaintiffs possess facts, independent from their communications with their attorneys, regarding the terms of the settlement demand, i.e. whether Plaintiffs have any knowledge of the basis underlying the 10 day deadline and whether the demand was made on behalf of the estate or only on behalf of Jesus Camacho as the survivor." (footnote omitted))

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

Chapter: 29.803
Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *12-13 (W.D. Va. Dec. 8, 2006)
("Allstate's seventh affirmative says no more than that it's [sic] actions were reasonable, appropriate, and legal. Such a general pleading is insufficient to set forth a cognizable 'advice of counsel' defense and insufficient even to inject a new factual defense. It does no more than deny the plaintiff's principle allegations." See Chicago Meat Processors, Inc. V. Mid-Century Ins. Co., 1996 U.S.Dist. LEXIS 4495, 7-8 (NDIll.).")

Case Date Jurisdiction State Cite Checked
2006-12-08 Federal VA B 3/16
Comment:

key case


Chapter: 29.803
Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *14 n.6 (W.D. Va. Dec. 8, 2006)
("The fundamental holding in Lee [State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 13 P.3d 1169 (Ariz. 2000)] is that in Arizona the attorney-client privilege is waived in any case where the party asserting the privilege contends that its conduct was proper and legally permissible [sic]. State Farm Mut. Auto. Ins. Co. V. Lee, 13 P.3d at 1179. On its face this holding appears to stand in stark contrast to the holding of the Virginia Supreme Court that the privilege exists even when its assertion works contrary to the general administration of justice.")

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

Chapter: 29.1202
Case Name: TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985 (Ind. 2014)
October 29, 2014 (PRIVILEGE POINT)

“Can Companies Rely on a Special Litigation Committee Report to Dismiss Derivative Cases — Without Disclosing the Report?”

When shareholders file a derivative case, companies often form a special litigation committee to investigate the alleged wrongdoing. If the report exonerates management, the company then relies on the report to seek the derivative case's dismissal. If the plaintiffs seek access to the report, can the company withhold privileged or work product-protected portions?

In TP Orthodontics, Inc. v. Kesling, the company redacted 120 pages of a special litigation committee's 140-page report before producing it to the derivative plaintiffs. The trial court granted plaintiffs' motion to compel production of the entire report. The appellate court affirmed — but the Supreme Court reversed. 15 N.E.3d 985 (Ind. 2014). The Court upheld the company's redaction of any opinion work product, which deserves absolute protection under Indiana law. The Court also rejected the derivative plaintiffs' argument that the company had put the special litigation committee's good faith "at issue" and thus impliedly waived its attorney-client privilege. The Court noted that "it is the . . . shareholders who put the [special litigation committee's] good faith, or lack thereof, at issue by filing a derivative suit." Id. at 966. The Court ultimately ordered an in camera review to gauge the company's protection claims.

Although litigants' reliance on privileged communications to gain an advantage in litigation normally creates a recipe for an implied waiver, most courts conduct a different analysis in the derivative context.

Case Date Jurisdiction State Cite Checked
2014-01-01 State IN
Comment:

key case