Showing 301 of 301 results

Chapter: 29.1

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

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

Chapter: 29.2

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

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

Chapter: 29.2

Case Name: Seneca Ins. Co., Inc. v. Western Claims, Inc., Nos. 13-6284 and 14-6002, 2014 U.S. App. LEXIS 24172 (10th Cir. Dec. 22, 2014)
("Seneca affirmatively put at issue its attorney's advice by invoking 'advice of counsel' to support its claims in this litigation. Thus, the first two prongs of the Hearn test were met in this case.")

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

Chapter: 29.2

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

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

Chapter: 29.2

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

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

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

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

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

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

key case


Chapter: 29.2

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

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

Chapter: 29.6

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

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

Chapter: 29.9

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

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

key case


Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.9

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

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

Chapter: 29.11

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

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

Chapter: 29.11

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

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

key case


Chapter: 29.11

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

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

key case


Chapter: 29.11

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

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

key case


Chapter: 29.11

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

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

Chapter: 29.11

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

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

Chapter: 29.11

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

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

key case


Chapter: 29.11

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

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

key case


Chapter: 29.11

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

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

Chapter: 29.11

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

"Can You "Undo" an Implied Waiver?"

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

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

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

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

key case


Chapter: 29.11

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

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

Chapter: 29.11

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

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

key case


Chapter: 29.11

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

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

Chapter: 29.11

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

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

Chapter: 29.11

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

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

Chapter: 29.11

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

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

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

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

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

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

key case


Chapter: 29.11

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

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

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

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

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

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

key case


Chapter: 29.11

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