Showing 244 of 244 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2013-10-07 Federal MA B 5/14

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

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

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 Jurisidction State Cite Checked
2015-02-09 Federal NY
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 Jurisidction State Cite Checked
2016-12-06 Federal KS

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

key case


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

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2011-06-15 Federal VA B 7/16

Chapter: 29.404

Case Name:


Case Date Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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)