Showing 280 of 280 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: 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 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: 29.13

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

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

key case


Chapter: 29.13

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

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

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

In Maar v. Beall's, Inc., FLSA defendant Beall's contended that any employee miscalculations were "not willful, and made in a good faith attempt to comply with the law." Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017). Answering interrogatories about one of its defenses, Beall's noted that it "'consulted with legal counsel regarding such classification.'" Id. at *5 (emphasis and internal citation omitted). The court concluded that Beall's waived its privilege protection "by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification." Id. at *11. The court even ordered Beall's to produce its lawyer to be deposed "concerning the substance of advice the company received from legal counsel as to the classification of Area Managers." Id. at *12. Beall's argued that the court's draconian standard would give FLSA plaintiffs "automatic access" to companies' legal advice whenever they assert a "good faith" defense. Id. at *11-12. The court rejected what it called Beall's "dire pronouncement" -- explaining that companies "can always deny the element of a plaintiff's claim alleging a certain mental state 'without affirmatively asserting' a good faith belief in an act's legality." Id. at *12 (citation omitted). The court did not explain how that approach would work.

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

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

key case


Chapter: 29.083

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

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

Chapter: 29.401

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

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

key case


Chapter: 29.401

Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *13-14, *14-15, *16-17, *18-19 (D. Md. Mar. 15, 2013)
(adopting the Rhone [Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir.1994)] rather than the Hearn approach; "[T]wo general approaches have emerged to determine whether a client has impliedly waived the attorney-client privilege. The first approach, and the one that Defendants urge the Court to adopt, first was articulated in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)."; "While the Hearn rule often is cited as the 'leading light of implied waiver jurisprudence,' many sources criticize it on the grounds that it is vague and does not afford sufficient protection to the attorney-client privilege. . . . [T]he Rhone court articulated an alternative approach to assessing implied waiver, holding that a party only places the attorney's advice 'at issue' when 'the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney-client communication.'" (citation omitted); "The Fourth Circuit has yet to expressly adopt either test; however, a recent decision provides guidance. In Shaheen v. WellPoint Cos., Inc. [490 Fed. Appx. 552 (4th Cir. 2012)], the plaintiff argued that disclosure was warranted under the 'at-issue' doctrine."; "These opinions make clear that the central inquiry in determining whether a party has impliedly waived the attorney-client privilege is whether that party affirmatively attempts to 'rely' on advice of counsel. To this end, I am persuaded that the Rhone rule is the better reasoned test. It makes clear when there is an implied waiver because it unambiguously identifies the circumstances under which a party places an attorney's advice 'at issue,' which is occasioned by a party clearly injecting attorney advice into the action. Such a rule preserves the spirit of the attorney client privilege and promotes predictability. It also achieves an appropriate level of fairness by preventing a party from asserting advice of counsel only to its benefit, thereby eliminating the risk that a party will attempt to use the advice-of-counsel as both a sword and a shield." (footnote omitted))

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

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

Chapter: 29.402

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

Case Date Jurisidction State Cite Checked