Showing 181 of 181 results

Chapter: 31.2

Case Name: Theranos, Inc. v. Fuisz Techs., Ltd., Case No. C 11-5236 PSG, 2013 U.S. Dist. LEXIS 70564, at *10-11 (N.D. Cal. May 16, 2013)
("In previous incarnations of privilege waiver, courts have found that once a particular communication is intentionally disclosed, the only issue is the scope of the subject matter that also should be disclosed. Rule 502(a), however, provides a different procedure for determining the scope of waiver, namely by deciding whether the undisclosed documents 'concern the same subject matter' and 'ought in fairness' be considered with the disclosed documents. If so, the waiver extends to those documents; if not, the privilege remains. The rule in essence creates a two-step inquiry out of a one-step determination. Before the enactment of Rule 502, some courts permitted waiver for all documents on the same subject matter because it was fair, although the scope of the subject matter often involved a fairness inquiry. Rule 502 makes that fairness inquiry separate and explicit. Notably, the standard for fairness under Rule 502 is the same as for Fed. R. Evid. 106, and the court finds nothing in Rule 502 that shifts the burden away from the party asserting the privilege to show that the privilege remains intact and has not been waived. It therefore is Fuisz's burden to show that fairness does not require waiver of the privilege over documents relating to the same subject matter as the documents disclosed." (footnotes omitted))

Case Date Jurisidction State Cite Checked
2013-05-16 Federal CA B 3/14

Chapter: 31.2

Case Name: City of Capitola v. Lexington Ins. Co., Case No. 12-3428 LHK (PSG), 2013 U.S. Dist. LEXIS 34900, at *5-6 (N.D. Cal. Mar. 13, 2013)
(analyzing a first party insurance issue; ultimately applying Rule 502 to pre-litigation disclosures; "Although Fed. R. Evid. 502(a) does not apply because the disclosure occurred prior to the initiation of the suit, its methodology for determining the scope of waiver is instructive. Here, Capitola intentionally shared the May 31 and the October 24 letters. Those letters cover the same subject matter as the files Capitola intends to withhold, namely URS's investigation. Based on Capitola's attempt selectively to use URS's [defendant's consultant) investigation to its benefit, in fairness Lexington ought to have access to the withheld documents.")

Case Date Jurisidction State Cite Checked
2013-03-13 Federal CA B 3/14

Chapter: 31.302

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 66 N.Y.S. 3d 135, 2018 N.Y. App. Div. LEXIS 85 (N.Y. App. 1d Jan. 4, 2018)
(holding that a businessman waived privilege protection by sending an email to an investor that attributed his lawyer the actions that he intended to take in the future; inexplicably finding a subject matter waiver, although the disclosure occurred in a non-judicial setting; "Siras proffers an email dated March 24, 2016 from Dai to a third-party investor, Lou Ceruzzi, concerning the UBS loan: 'I was about to write, to you this email last Friday but I decided to 'wait until we all sit down with attorneys this morning. It is concluded by legal counsels that we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'"; "I find that Dai waived the attorney-client privilege as to any communications and documents dealing with his counsel's advice that 'we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'. . . Contrary to the cases defendants' 'rely upon, Dai's communication to Ceruzzi goes beyond a client conveying to a third-party the decision to settle an action or withdraw a claim based on advice of counsel. . . . Dai's communication provided a detailed description of specific legal advice and the course of action given to him by his attorneys, which he voluntarily divulged to a third party. Accordingly, defendants are directed to produce any communications and documents 'pertaining to the subject matter of the email.'").; AFFIRMED: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017) (affirming the lower court's subject matter waiver holding; "By disclosing to a third party by email certain advice given to them by counsel, defendants waived the attorney-client privilege as to other documents pertaining to that advice (see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 NY3d 616, 624, 36 N.Y.S. 3d 838, 57 N.E. 3d 30 [2016]; Arkin Kaplan Rice LLP v. Kaplan, 118 AD-3d 492, 988 N.Y.S.2d 22 [1st Dept 2014]).")

Case Date Jurisidction State Cite Checked
2018-01-04 Federal NY
Comment:

key case


Chapter: 31.302

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "The SCO also contends that the Targets impliedly waived the attorney-client privilege as to the testimony sought from the Witness by disclosing the 2016 and 2017 FARA Submissions to DOJ. The waiver extends to the Targets' specific conversations with the Witness that were released in substance to DOJ in these FARA Submissions."; "Upon sending the FARA Submissions to DOJ, the Targets waived, through voluntary disclosure, any attorney-client privilege in their contents. White, 887 F.2d at 271; In re Subpoenas Duces Tecum, 738 F.2d at 1370; Permian Corp., 665 F.2d at 1219. In fact, the FARA Submissions made specific factual representations to DOJ that are unlikely to have originated from sources other than the Targets, and, in large part, were explicitly attributed to one or both Targets' recollections. . . . Additionally, the Targets impliedly waived the privilege as to their communications with the Witness to the extent that these communications related to the FARA Submissions' contents.")

Case Date Jurisidction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 31.302

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "'Target 1 argues that the SCO has not shown that the 2016 FARA Submission contained representations sourced to the Targets themselves rather than to publicly-available sources such as 'media reports, or a corporate registry or similar database,'. . . but even a cursory review of this letter shows otherwise. The 2016 FARA Submission contained representations the Witness could not plausibly have gathered solely from publicly-available sources, such as that the Targets had no agreement to provide the ECFMU services or were counterparties to any service agreements between ECFMU and the GR Companies. . . . The Targets repeated these representations in the 2017 FARA Submission.'")

Case Date Jurisidction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 31.302

Case Name: QBE Insurance Corp. v. Jorda Enterprises, Inc., Case No. 10-21107-CIV-GOLD/GOODMAN, 286 F.R.D. 661, 2012 U.S. Dist. LEXIS 132020 (S.D. Fla. Sept. 17, 2017)
(holding that plaintiff's reliance on privileged communications will trigger a broad subject matter waiver, but not a broad work product waiver; "If QBE decides to rely on attorney-client privileged information at the evidentiary hearing, then it will have generated a waiver applicable to all other attorney-client communications relating to the same subject matter. . . . There is no bright line test for determining what constitutes the subject matter of a waiver, and courts weigh the circumstances of the disclosure, the nature of the advice and whether permitting or prohibiting further disclosures would prejudice the parties. . . . Because the Undersigned does not know whether QBE will finally decide to waive the privilege by affirmatively relying on privileged information and also does not know which documents and testimony will be placed at issue, I cannot now determine with specificity the scope of the waiver."; "As a general rule, the smaller the amount of privileged information disclosed, the narrower the scope of the waiver. Thus, if QBE opts to elicit privileged information from many of its attorneys and to introduce into evidence reports and comprehensive memoranda, then it is likely that the waiver will be substantial. On the other hand, if it discloses only one, two-sentence email and no further privileged documents or testimony, then the subject matter may well be narrow and discrete. The Undersigned cannot pinpoint the scope of the waiver until events unfold at the evidentiary hearing."; "Unlike waiver of attorney-client material, work-product waiver, however, is not a broad waiver of all work-product related to the same subject matter. Instead, it extends only to 'factual' or 'non-opinion' work-product concerning the same subject matter as the disclosed work-product.")

Case Date Jurisidction State Cite Checked
2017-09-17 Federal FL
Comment:

key case


Chapter: 31.302

Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA (JSC), 2017 U.S. Dist. LEXIS 135366 (N.D. Cal. Aug. 23, 2017)
(analyzing the scope of Uber's waiver resulting from its intentional disclosure of privileged communications; "The parties agree that the scope of Uber's waiver is all privileged conversations in which Mr. Levandowski [former Google affiliate employee accused of stealing information and taking it to his new employer Uber] discussed his downloading of Waymo's files and his decision to invoke the Fifth Amendment, along with Uber's response. The difficulty is that Mr. Levandowski has asserted his own attorney-client privilege in those conversations, including the March 29 conversation that Uber disclosed, pursuant to his and Uber's Joint Defense Agreement. . . . All parties also agree that Uber cannot waive Mr. Levandowski's privilege and thus that the Court cannot order Uber to testify as to what was said in the conversations covered by Uber's waiver. . . . Finally, Uber and Waymo also agree that Uber should therefore be precluded from offering into evidence the contents of the March 29, 2017 conversation. . . . The Court agrees that result makes sense. Thus, Uber's inability to waive the privilege as to all conversations which in fairness it should disclose is an additional reason to preclude it from offering the March 29, 2017 conversation into evidence.")

Case Date Jurisidction State Cite Checked
2017-08-23 Federal CA

Chapter: 31.302

Case Name: In re Global Computer Enterprises, Inc. v. Steese, Evans & Frankel, P.C., Case No. 14-13290-BFK, Ch. 11, Adversary Proceeding No. 15-01063-BFK, 2017 Bankr. LEXIS 2291 (E.D. Va. Aug. 15, 2017)
(explaining Virginia's approach to a subject matter waiver; "A client can waive the attorney-client privilege by placing the attorney-client relationship in issue, 'for example, by affirmatively invoking a defense of good faith reliance on advice of counsel.' United States v. Moazzeni, 906 F.Supp.2d 505, 512 (E.D. Va. 2012); LifeNet, Inc. v. Musculoskeletal Transplant Found., Inc., 490 F.Supp.2d 681, 685 (E.D. Va. 2007) ('Once a party announces that it will rely on advice of counsel . . . in response to an assertion of willful infringement, the attorney-client privilege is waived."); see also Edna Sela Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, at 511 (5th ed. 2007) ('A client may not rely on 'advice of counsel' as the basis of a defense of a claim without waiving all privileged communications on that issue.") The Fourth Circuit has embraced the concept of subject matter waiver, so that the waiver will encompass all communications on the same subject matter. Sheet Metal Workers Int'l Ass'n v. Sweeney, 29 F.3d 120, 125 (4th Cir. 1994); United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). Although GCE argues that Mr. Janacek's advice on ReThink India on the SAM Task Order was separate and apart from that of his advice on the use of H1-B labor on the DoL and EEOC contracts, no one could have predicted with any certainty just how far the waiver of GCE's attorney-client privilege would have extended had GCE asserted the advice of counsel defense on the SAM Task Order and ReThink India. Had the government been able to compel the production of SEF's advice e-mails on the use of H1-B labor on the DoL and EEOC contracts (that is, SEF's advice that GCE seek a waiver from the contracting officers), the disclosure of these e-mails could have made matters worse for GCE, in effect, establishing a willful blindness to the risks of proceeding to use H1-B labor without seeking a contract waiver.")

Case Date Jurisidction State Cite Checked
2017-08-15 Federal VA

Chapter: 31.302

Case Name: In re Global Computer Enterprises, Inc. v. Steese, Evans & Frankel, P.C., Case No. 14-13290-BFK, Ch. 11, Adversary Proceeding No. 15-01063-BFK, 2017 Bankr. LEXIS 2291 (E.D. Va. Aug. 15, 2017)
(explaining Virginia's approach to a subject matter waiver; "A client can waive the attorney-client privilege by placing the attorney-client relationship in issue, 'for example, by affirmatively invoking a defense of good faith reliance on advice of counsel.' United States v. Moazzeni, 906 F.Supp.2d 505, 512 (E.D. Va. 2012); LifeNet, Inc. v. Musculoskeletal Transplant Found., Inc., 490 F.Supp.2d 681, 685 (E.D. Va. 2007) ('Once a party announces that it will rely on advice of counsel . . . in response to an assertion of willful infringement, the attorney-client privilege is waived."); see also Edna Sela Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, at 511 (5th ed. 2007) ('A client may not rely on 'advice of counsel' as the basis of a defense of a claim without waiving all privileged communications on that issue.") The Fourth Circuit has embraced the concept of subject matter waiver, so that the waiver will encompass all communications on the same subject matter. Sheet Metal Workers Int'l Ass'n v. Sweeney, 29 F.3d 120, 125 (4th Cir. 1994); United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). Although GCE argues that Mr. Janacek's advice on ReThink India on the SAM Task Order was separate and apart from that of his advice on the use of H1-B labor on the DoL and EEOC contracts, no one could have predicted with any certainty just how far the waiver of GCE's attorney-client privilege would have extended had GCE asserted the advice of counsel defense on the SAM Task Order and ReThink India. Had the government been able to compel the production of SEF's advice e-mails on the use of H1-B labor on the DoL and EEOC contracts (that is, SEF's advice that GCE seek a waiver from the contracting officers), the disclosure of these e-mails could have made matters worse for GCE, in effect, establishing a willful blindness to the risks of proceeding to use H1-B labor without seeking a contract waiver.")

Case Date Jurisidction State Cite Checked
2017-08-15 Federal VA

Chapter: 31.302

Case Name: Regeneron Pharmaceuticals, Inc. v. Merus N.V., 2016-1346, 2017 U.S. App. LEXIS 13578 (Fed. Cir. App. July 27, 2017)
("During litigation, Regeneron made a choice to maintain the attorney-client privilege as to Dr. Smeland's knowledge and thoughts about the Withheld References during prosecution of the '176 application. In maintaining its assertion of privilege, Regeneron shielded Dr. Smeland's documents relating to his knowledge and thoughts about the Withheld References during prosecution from disclosure. As with any affirmative disclosure of information otherwise protected by the attorney-client privilege, however, once the disclosure of the trial affidavit was made, as it was not inadvertent, the waiver was complete."; "Thus, on the day that Regeneron disclosed Dr. Smeland's trial affidavit, it waived the privilege as to the subject matter of each of the topics the affidavit addressed. In particular, Regeneron waived privilege as to Dr. Smeland's views on the broadest reasonable construction of the claim language, understanding of the technology, and materiality (including cumulativeness) of each of the Withheld References.")

Case Date Jurisidction State Cite Checked
2017-07-27 Federal

Chapter: 31.302

Case Name: Leftwich v. City of Pittsburgh Kansas, Case No. 16-2112-JWL, 2017 U.S. Dist. LEXIS 99009 (D. Kansas June 27, 2017)
(analyzing the scope of a subject matter waiver; "As defendants concede, there is no 'bright line test for determining what constitutes the subject matter of a waiver.'. . . Here, the magistrate judge reasonably concluded that the decision to terminate plaintiff's employment and plaintiff's appeal of that decision -- both of which undisputedly involved significant input and advice from the city attorney -- constituted the same subject matter for purposes of Rule 502(a). The key fact underlying the magistrate judge's ruling is that the termination decision and the appeal of that decision were inextricably linked by defendants themselves, as evidenced in an email concerning the termination decision in which the city attorney wrote that plaintiff should be given the reasons for his termination only if he appealed that decision. Further evidence that the termination decision and the appeal process were linked by defendants is found in the documents provided to the magistrate judge for in camera review.")

Case Date Jurisidction State Cite Checked
2017-06-27 Federal KS

Chapter: 31.302

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; "Plaintiffs also contend that Brownlee [Executive] waived the privilege when he testified, without objection, to the report's specific recommendations during his deposition. Unlike Warren, Brownlee, as part-owner and managing partner of Ergo, has the authority to waive attorney-client privilege on behalf of Ergo. . . During Brownlee's deposition, the following exchanges took place: '(Q): Can you describe for the record what the recommendations were [of the investigation]? (A): That I stay away from the building for six months. (A): I went with the recommendations and I followed it. And I had to pay a fine. (Q): Okay. What was the fine? (A): I think it might be $10,000. (A): I've gone to a therapist. But that was -- oh, that was under the recommendation of the internal investigation."; "By discussing Hartman's specific recommendations -- that Brownlee stay away from Ergo for six months, pay a $10,000 fine, and see a therapist -- Brownlee revealed Hartman's key conclusions and thus disclosed the 'gist' of the report. . . . Brownlee, on behalf of himself and Ergo, cannot reveal important conclusions from the report yet continue to maintain that the report itself is privileged. Hence, the Court concludes that Brownlee waived attorney-client privilege for the internal investigation report.")

Case Date Jurisidction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 31.302

Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
July 26, 2017 (PRIVILEGE POINT)

"Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part II"

Last week's Privilege Point explained that Cadwalader Wickersham & Taft's client Washington Metropolitan Transit Authority (WMATA) lost a work product claim for 51 witness interviews the firm prepared during its internal investigation into self-dealing at WMATA. Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017).

Unlike the court's focus on the investigation's primary business motivation in rejecting the work product claim, the court's privilege analysis found that WMATA waived its privilege protection. The court noted that WMATA publicly released the final Cadwalader report -- which "disclosed counsel's legal and factual conclusions," and "cite[d] extensively to the interview memoranda throughout the entirety of the document." Id. at *18-19. The court acknowledged a Cadwalader lawyer's declaration that the interview memoranda references "were intended only for use by Cadwalader" -- but noted that "WMATA failed to remove the references . . . from the version of the [Cadwalader] Report that was made available to the public." Id. at *19 n.1. The court also noted that WMATA "has also used the [Cadwalader] Report to its advantage in this litigation" – by "us[ing] the [Cadwalader] Report and facts disclosed in that report to support its claims and defenses." Id. at *19. The court therefore found a subject matter waiver, and ordered WMATA to produce all of Cadwalader's 51 witness interview memoranda except the portions which (1) "contain subjects not covered by the [Cadwalader] Report," and (2) "material and other comments, if any, as to a lawyer's mental impressions." Id. at *20.

Case Date Jurisidction State Cite Checked
2017-05-16 Federal DC
Comment:

key case


Chapter: 31.302

Case Name: City of Pontiac General Employees' Retirement Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378 (W.D. Ark. May 5, 2017)
(allowing plaintiffs suing Wal-Mart in connection with its investigation into Mexican corruption to explore content and underlying facts related to a privileged document that The New York Times acquired from someone without authority to waive Wal-Mart's privilege protection; "PGRS argues that it is entitled to fully examine witnesses regarding documents posted to The New York Times and/or Congressional websites that are no longer subject to a claim of privilege. Defendants assert that because the publication of these was unauthorized or involuntary, the attorney-privilege and/or work product protection still applies to the broad subject matter of Halter's internal investigation."; "Regardless of whether the publication of these documents was unauthorized, the Court has previously recognized that Wal-Mart lost an claim of privilege regarding documents posted to The New York Times and/or Congressional websites as of May 16, 2013, ECF No. 127. Thus, PGERS is entitled to fully examine relevant witnesses regarding the content of these documents and the factual details underlying the specific information contained in the documents.")

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

key case


Chapter: 31.302

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

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

key case


Chapter: 31.302

Case Name: United States v. Trotter, Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681, at *2 (E.D. Mich. Mar. 7, 2017)
May 10, 2017 (PRIVILEGE POINT)

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

All lawyers know that pleading an "advice of counsel" affirmative defense waives privilege protection. But lawyers must remember such waivers' breadth.

In United States v. Trotter, defendant Trotter announced his intent to assert a "good faith reliance on the advice of counsel" defense, and "submitted waivers" from three lawyers. Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681, at *2 (E.D. Mich. Mar. 7, 2017). But the government noted that Trotter had received pertinent advice from four other lawyers. The court ordered Trotter to “(1) identify all attorneys who advised him on his management practices, (2) waive the attorney-client privilege for these attorneys, and (3) produce all materials relating to legal advice on these management practices in his possession." Id. at *3. The court specifically rejected Trotter's lawyers' argument that they had already produced all pertinent documents in their possession – ordering his lawyers "to request these materials from" Trotter. Id.

Pleading an "advice of counsel" defense normally waives privilege protection for the client's communications with any lawyers providing advice on the pertinent matter, and usually also extends to the client's communication of facts to such lawyers that preceded the advice. Next week's Privilege Point will describe another defendant's less explicit reliance on advice of counsel, but which had the same waiver impact.

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

key case


Chapter: 31.302

Case Name: SEC v. ITT Educational Services, Inc., No. 1:15-cv-00758-JMS-MJD, 2017 U.S. Dist. LEXIS 164 (S.D. Ind. Jan. 3, 2017)
(a bankruptcy trustee could not assert privilege after the pre-bankruptcy company had agreed to waive the privilege; "The winding saga in this SEC enforcement action has made its way before the Court on Plaintiff's unopposed Motion to Compel Discovery. Plaintiff alleges that Defendants fraudulently concealed the poor performance of a student loan program from investors in violation of federal securities laws. . . . Part of Defendants' defense rests upon the legal advice they received about the loan program. As a consequence, each of the parties, by counsel, executed an agreement waiving attorney client-privilege as to certain subjects."; "'ITT is deemed to have waived the attorney-client privilege as to the Waived Subjects: . . .'"; "The Court finds that Defendant ITT knowingly and intentionally waived its privilege as to the topics identified in the Protective Order, excerpted above. Therefore, the Trustee may not reassert the waived privilege, and Plaintiff is entitled to depose Blankenship and conduct discovery into the attorney-client communications for which the privilege has been waived."; "The genie is out of the bottle; Pandora's box has been opened; '[t]he Moving Finger writes; and, having writ, Moves on.' Omar Khayyám, The Rubáiyát of Omar Khayyám 71. . . . Each of these maxims aptly describes the issue before the Court. It takes no stretch of the imagination to foresee the games that counsel would play if they were permitted to revoke an intentional and knowing waiver of attorney-client privilege as the Bankruptcy Trustee has sought to do here.")

Case Date Jurisidction State Cite Checked
2017-01-03 Federal ID
Comment:

key case


Chapter: 31.302

Case Name: Spear v. Fenkell, Civ. A. No. 13-2391, 2016 U.S. Dist. LEXIS 179622 (E.D. Pa. Dec. 29, 2016)
(holding that litigant who intends to put an investigator on as a witness (even as to logistics rather than facts) must disclose the investigators report; "In this instance Alliance must make an election: produce Roberts' [a CPA who participated in the internal investigation of Fenkell after Fenkell left Alliance in 2011] reports, including those reports previously withheld as privileged, on or before January 3, 2017 in unredacted form, and waive attorney-client privilege and the work-product doctrine, or be barred from using Roberts as a witness. I am not willing, at this late hour, to engage in a detailed and protracted battle over the extent to which the reports are related (or not) to the subject matter of Roberts' testimony.")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal PA

Chapter: 31.302

Case Name: Wadler v. Bio-Rad Laboratories, Inc., Case No. 15-cv-02356-JCS, 2016 U.S. Dist. LEXIS 176166 (N.D. Cal. Dec. 20, 2016)
("Bio-Rad contends these declarations do not disclose any privileged communications -- that they merely reveal certain 'historical facts necessary to rebut Plaintiff's claims,' and that they at most reveal facts that were either disclosed to Bio-Rad's outside auditors at the time (thus waiving any privilege) or were never privileged. . . . Yet Plaintiffs have highlighted at least three examples in the Drapeau Declaration that appear to implicate privilege: (1) his statement that Wadler [] offered 'far more than management was willing to pay' to settle with Life Technologies; (2) his statement that Wadler objected to Bio-Rad's accrual for the Life Technologies Audit prior to the filing of a Form 10-K; and 3) his statement that Wadler 'took actions to undermine Bio-Rad's new Compliance Officer.'. . . To the extent that these statements disclose privileged communications between Wadler and Bio-Rad, any privilege as to these communications or communications on the same subject matter has been waived (particular as Bio-Rad has now expressly stated that nothing in these declarations is protected by privilege). Further, the response and declarations submitted in the DOL broadly accuse Wadler of misconduct and incompetence even while Bio-Rad attempts to prevent Wadler from introducing any privileged or confidential communications to show that these allegations are pretextual. That is the sort of unfairness that Rule 502 does not permit. Accordingly, the Court finds that the waiver that results from Bio-Rad's submissions to the DOL extends to communications on the topics addressed in those documents relating to his alleged misconduct and incompetence.")

Case Date Jurisidction State Cite Checked
2016-12-20 Federal CA

Chapter: 31.302

Case Name: Wadler v. Bio-Rad Laboratories, Inc., Case No. 15-cv-02356-JCS, 2016 U.S. Dist. LEXIS 176166 (N.D. Cal. Dec. 20, 2016)
(holding that disclosure to the government waived privilege protection; also finding that the company waived the privilege by disclosing privileged communications to the department of labor and rejecting the company's argument that the disclosure only included historical facts; "The primary disclosure in the SEC Proceeding that relates to Wadler's claims in this action is the DPW Presentation. Although that document was filed under seal in this action, by disclosing it to the SEC and DOJ there is no doubt that Bio-Rad waived any privilege it might have claimed as to the document itself. Indeed, Bio-Rad now concedes that it has waived attorney-client privilege as to this document. See Reply at 7 ('For the purposes of this Motion, Bio-Rad recognizes that its report to the government of its investigation is not privileged.'). The Court further finds that under Rule 502(a), fairness requires that the waiver extend beyond the DPW Presentation because Bio-Rad has repeatedly relied on that document as a sword by citing to its conclusion that Wadler's concerns about possible FCPA violations in China were unjustified."; "Based on the reasoning of IGT [IGT v. Alliance Gaming Corp., No. 04-cv-1676 RCJ (RJJ), 2006 U.S. Dist. LEXIS 72165, 2006 WL 8071393 (D. Nev. Sept. 28, 2006)], the Court concludes that the disclosure of the DPW Presentation, like the disclosures in IGT, resulted in waiver of attorney-client privilege not only as to the document itself but also any privileged communications about the specific matters disclosed in the DPW Presentation. For example, the DPW repeatedly references specific issues Wadler brought to the attention of the Audit Committee relating to possible FCPA violations in China. At a minimum, then, there is a waiver as to Wadler's Audit Committee Memo and any other communications between Wadler and Bio-Rad relating to those concerns. The DPW Presentation also references communications between outside counsel and Wadler and between outside counsel and Bio-Rad as to his concerns. Therefore, the waiver extends to these communications to the extent they are related to the same subject matter as the communications disclosed in the DPW Presentation. As a practical matter, then, this waiver extends to privileged communications and confidential information that Wadler reasonably believes are necessary to show that he had an objectively reasonable belief that Bio-Rad was violating the FCPA in China in the ways suggested in the Audit Committee Memo and addressed in the DPW Presentation."; "This case differs from General Motors [In re General Motors LLC Ignition Switch Litigation, 80 F. Supp. 3d 521 (S.D.N.Y. 2015)] in that the DPW Presentation does not just state conclusions; it also describes the underlying investigation by outside counsel in great detail. Moreover, in contrast to the facts of that case, Bio-Rad is poised to use the conclusions of outside counsel offensively at trial to defeat Wadler's retaliation claim while precluding Wadler from presenting related communications to rebut this evidence, as discussed above. Therefore, the General Motors case is not on point.")

Case Date Jurisidction State Cite Checked
2016-12-20 Federal CA
Comment:

key case


Chapter: 31.302

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

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

Chapter: 31.302

Case Name: Ingenito v. Riri USA, Inc., No. 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. Apr. 25, 2016)
June 15, 2016 (PRIVILEGE POINT)

"Court Analyzes a Subject Matter Waiver's Scope"

Once a feared effect of disclosing privileged communications (sometimes even inadvertently), subject matter waivers now occur in most courts only when a litigant attempts to gain some advantage in litigation by affirmatively using privileged communications. Surprisingly few courts deal with the scope of waiver in those limited circumstances.

In Ingenito v. Riri USA, Inc., No. 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. Apr. 25, 2016), plaintiff claimed that her employer terminated her upon learning on December 3, 2009, that she was pregnant. The company produced and intended to rely on two admittedly privileged communications between the company and its outside counsel Fox Rothschild to prove that plaintiff actually "'broke the news that she is pregnant'" a week later. Id. At *3 (internal citation omitted). The plaintiff claimed waiver, and sought the production of all emails between the company and Fox Rothschild about her employment. The magistrate judge held that the waiver extended only to communications involving "'the timing of the decision to terminate.'" Id. At *5 (internal citation omitted). The magistrate judge also acknowledged that the defendant had made a supplemental production of additional communications with Fox Rothschild, but that the company stated at the time "its intention to not broaden any waiver of attorney-client privilege." Id. At *9. Although such disclaimers normally do not work, the judge concluded that the supplemental production was made "'as a response to Plaintiff's request rather than as a proactive attempt to inject the communication into the litigation.'" Id. At *10 (citation omitted). Although the court did not explain this conclusion, presumably the defendant assured the court that it would not use any documents from the supplemental production to advance its positions.

Although the previously frightening specter of a subject matter waiver has receded, litigants deliberately disclosing privileged communications must hope that a sophisticated court will limit the waiver to the appropriately narrow subject matter.

Case Date Jurisidction State Cite Checked
2016-04-25 Federal NY
Comment:

key case


Chapter: 31.302

Case Name: Ingenito v. RIRI USA, Inc., 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. April 25, 2016)
("On September 21, 2015, Judge Mann heard oral argument on Plaintiff's motion to compel and denied Plaintiff's motion. As to the scope of the subject matter waiver of attorney-client privilege, Judge Mann explained that, '[d]espite the fact that the waiver is a subject matter waiver, [P]laintiff has moved to compel all communications between counsel and Mr. Howell with respect to [P]laintiff,' instead of limiting her request to the relevant subject matter. . . . Judge Mann determined that 'there was a selective waiver in order to establish the timing of the decision to terminate [Plaintiff],'. . . and thus the scope of the subject matter waiver was 'simply a question of timing' as to Plaintiff's termination . . . and did not 'extend[] to the actual underlying reasons for the termination'. . . . Moreover, Judge Mann noted that references by Rosen to Howell's legitimate reasons for terminating Plaintiff appeared only in the Supplemental Production 'in connection with a motion to compel' and in an attempt 'to moot the issue,' rather than in the initial voluntary disclosure, which is the source of the waiver. . . . She determined that the waiver did not cover 'all communications' between Howell and Rosen because the Initial Production '[did] not in any way touch upon the reason for [Plaintiff's] termination.'")

Case Date Jurisidction State Cite Checked
2016-04-25 Federal NY
Comment:

key case


Chapter: 31.302

Case Name: The Hawk Mountain LLC v. Mirra, Civ. A. No. 13-2083-SLR-SRF, 2016 U.S. Dist. LEXIS 20232 (D. Del. Feb. 19, 2016)
(finding a broad subject matter waiver based on a criminal defendant's disclosure of legal advice she had received; "In the present case, Jordan intentionally filed the Woodhouse Affidavit in her state court criminal proceeding in support of her motion for bail. The Woodhouse Affidavit is a factual summary of the advice provided by Woodhouse to Jordan in 2009 and 2010 in Woodhouse's capacity as Jordan's attorney. The case law supports a subject matter waiver under such circumstances. '[C]alling one's attorney as a fact witness in a prior proceeding constitutes a waiver of the attorney-client privilege, at least regarding the subject of the testimony adduced in the prior proceeding." U.S. v. Titchell, 261 F.3d 348, 352 (3d Cir. 2001). The information that the RAM Defendants intend to pursue during Woodhouse's deposition relates to the same subject matter as the Woodhouse Affidavit. Jordan cannot fairly use Woodhouse's characterizations of her legal advice in support of her motion for bail while shielding further exploration of the nature of that advice during her deposition under the guise of the attorney-client privilege."; "The subject matter waiver is limited to the concerns expressed by Jordan that Mirra had committed fraud against her and intended to have her harmed, and that Jordan wanted to cease relying on Mirra and his associates for help with financial services.")

Case Date Jurisidction State Cite Checked
2016-02-19 Federal DE

Chapter: 31.302

Case Name: Ingenito v. Riri USA, Inc., 11-CV-2569 (MKB) (RLM), 2015 U.S. Dist. LEXIS 171728 (E.D.N.Y. Dec. 22, 2015)
(analyzing the scope of privilege waiver based on the defendant's termination of the plaintiff in defending against a pregnancy discrimination case; concluding defendant's production in discovery rather than use at trial limited affected the subject matter waiver analysis, and that defendant could waive the privilege as it related to the timing of plaintiff's termination rather than the reason for the termination, by disclosing documents establishing the defendant had resolved to terminate the plaintiff before knowing she was pregnant; "Where a court determines a party has implicitly waived attorney-client privilege, similar fairness considerations limit the scope of that waiver to the subject matter of the disclosed communication."; "Riri SA states that it produced the December 10, 2009 Email and the December 14, 2009 Email in its Initial Production to establish the timing of Howell's decision to terminate Plaintiff and concedes that, in so doing, it selectively waived attorney-client privilege as to that issue. . . . Judge Mann determined that the Initial Production therefore triggered Riri SA's obligation to disclose all privileged communications regarding the timing of Plaintiff's termination. . . . Such a waiver is exactly the type that fairness considerations require, as it prevents Defendants from using privileged materials to attempt to bolster their defense while preventing Plaintiff from countering the assertion by blocking 'access to privileged material potentially capable of rebutting the assertion.' In re Cty. Of Erie, 546 F.3d at 229. According to Riri SA, it has produced all emails related to the timing of Plaintiff's termination.").

Case Date Jurisidction State Cite Checked
2015-12-22 Federal NY

Chapter: 31.302

Case Name: Ingenito v. Riri USA, Inc., 11-CV-2569 (MKB) (RLM), 2015 U.S. Dist. LEXIS 171728 (E.D.N.Y. Dec. 22, 2015)
(analyzing the scope of privilege waiver based on the defendant's termination of the plaintiff in defending against a pregnancy discrimination case; concluding defendant's production in discovery rather than use at trial limited affected the subject matter waiver analysis, and that defendant could waive the privilege as it related to the timing of plaintiff's termination rather than the reason for the termination, by disclosing documents establishing the defendant had resolved to terminate the plaintiff before knowing she was pregnant; "'Riri SA has not placed information from a privileged communication before a factfinder; the Supplemental Production was made in the context of discovery, not as 'an assertion of fact to influence the decisionmaker.'. . . This consideration further weighs against a finding of prejudice or unfairness to Plaintiff.'").

Case Date Jurisidction State Cite Checked
2015-12-22 Federal NY

Chapter: 31.302

Case Name: Agility Public Warehousing Company K.S.C. v. DOD, Civ. A. No. 14-1064 (JDB), 2015 U.S. Dist. LEXIS 81071 (D.D.C. June 23, 2015)
("'Generally, the privilege is waived only for materials 'relevant to a particular, narrow subject matter.'")

Case Date Jurisidction State Cite Checked
2015-06-23 Federal DC

Chapter: 31.302

Case Name: Kickflip, Inc. v. Facebook, Inc., Civ. No. 12-1369-LPS, 2015 U.S. Dist. LEXIS 9162 (D. Del. Jan. 21, 2015)
(in connection with a Rule 30(b)(6) deposition, inexplicably finding a broad subject matter waiver; "In arguing that no waiver occurred, Kickflip asserts that the invocation of attorney-client privilege was appropriate, with regard to the deposition question, 'Why was [the December] agreement needed?'. . . In Kickflip's view, the later Declaration addressed the unrelated, and unasked, questions of, 'What effect did the December Agreement have?' or 'Did Gambit . . . Benefit from the December Agreement?'. . . Kickflip asserts that responding to the latter questions did not require reliance on confidential communications and, therefore, there was no waiver."; "The Court finds Kickflip's arguments unconvincing and further finds that the Declaration constituted a waiver of attorney-client privilege. The disclosures in the Declaration were included for the purpose of showing that the reason for (i.e., why) the December Agreement was 'a substantially more favorable tax treatment for Gambit,' and that if not for Facebook's actions, Kickflip would never have transferred assets to Gambit."; "The Court sees no meaningful distinction between the questions asked during the deposition -- e.g., 'why' was the December Agreement needed -- and the disclosure in the Declaration regarding the 'effect' of the December Agreement. Instead, in the Court's view, the substantive disclosures in the Declaration regarding the November and December Agreements provide information it appears Facebook was attempting to elicit in the deposition, which Facebook was unable to do as a consequence of Kickflip's invocation of the attorney-client privilege. Thus, there has been a waiver of the attorney-client privilege by Kick flip as a result of the Declaration.")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal DE
Comment:

key case


Chapter: 31.302

Case Name: Kickflip, Inc. v. Facebook, Inc., Civ. No. 12-1369-LPS, 2015 U.S. Dist. LEXIS 9162 (D. Del. Jan. 21, 2015)
(in connection with a Rule 30(b)(6) deposition, inexplicably finding a broad subject matter waiver; "[T]he Court finds the scope of the waiver to extend to, but only to, the November and December Agreements, including the motives for and effects of entering into them, as well as the negotiation, performance, and implementation of these Agreements. Limiting the waiver and discovery just to issues relating to tax treatment would be too narrow, and would deprive Facebook (and the Court) of information that ought in fairness be considered with the information Kickflip has disclosed, for reasons including that Kickflip has indicated it would not have undertaken the November and December Agreements were it not for Facebook (i.e., regardless of any tax benefits).")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal DE
Comment:

key case


Chapter: 31.302

Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 99257 (D. Kan. July 22, 2014)
(finding a narrow scope of waiver after an intentionally expressed waiver at trial; "The Court concludes that in one instance, Sprint did disclose the substance of a privileged communication between attorney and client. In the Vonage trial, Sprint's trial attorney stated in opening statement that Sprint believed that Vonage had infringed 43 patents, a Sprint attorney had an outside law firm look at the issue, the law firm 'agreed,' and Sprint then contacted Vonage and accused it of infringement. By this statement, Sprint disclosed the substance of legal advice received from an outside law firm, namely that outside counsel agreed that Vonage had infringed."; "[T]he Court concludes that Sprint should be deemed to have waived the attorney-client privilege with respect to the specific subject of the advice received by Sprint from the law firm concerning whether Vonage had infringed Sprint's patents. There is no basis to extend the scope of the waiver to the broader subject of Sprint's actions generally to investigate possible infringement by Vonage.")

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

Chapter: 31.302

Case Name: City of Glendale v. Nat'l Union Fire Ins. Co., No. CV-12-380-PHX-BSB, 2013 U.S. Dist. LEXIS 60711, at *26-27, *27 (D. Ariz. Apr. 29, 2013)
(accessing privilege issues in a first party insurance case; holding that defendant insurance company triggered a subject matter waiver by relying on advice of counsel; further holding that the subject matter waiver extended beyond what the insurance company argued, but did not include documents that the lawyer had not provided to the insurance company; further holding that the subject matter waiver extended to the lawyer's advice to the insurance company on the same clauses but in different cases; "Here, the coverage opinions that Defendants received from CKGH or Berger Kahn in other matters involving the same policy language as in this case may be relevant to demonstrate that Defendants have received inconsistent coverage advice or have acted inconsistently in response to coverage advice. Therefore, the coverage advice that Defendants have received in other matters related to the same policy language at issue in this case may be relevant to the City's bad faith claim."; "Defendants, however, are not required to produce any coverage opinions from other matters that it received after issuing its coverage decisions in this case.")

Case Date Jurisidction State Cite Checked
2013-04-29 Federal AZ B 7/13

Chapter: 31.302

Case Name: City of Glendale v. Nat'l Union Fire Ins. Co., No. CV-12-380-PHX-BSB, 2013 U.S. Dist. LEXIS 60711, at *9-10, *10, *11, *16 (D. Ariz. Apr. 29, 2013)
(assessing privilege issues in a first party insurance case; holding that defendant insurance company triggered a subject matter waiver by relying on advice of counsel; further holding that the subject matter waiver extended beyond what the insurance company argued, but did not include documents that the lawyer had not provided to the insurance company; further holding that the subject matter waiver extended to the lawyer's advice to the insurance company on the same clauses but in different cases; "Defendants acknowledge that by asserting an advice-of-counsel defense to the City's bad faith claims, they have waived the attorney-client privilege with respect to communications from their counsel providing advice on the insurance coverage issues that are in dispute in this matter."; "Defendants, however, have asserted that this waiver does not extend to their communications with Berger Kahn in August 2011 because they did not rely upon any coverage advice from that firm in 2011."; "The City argues that by asserting the advice of counsel defense, Defendants have waived the attorney-client privilege as to any communications with their attorneys regarding their coverage analysis, including communications with Berger Kahn in 2011. . . . The City argues that this waiver of the attorney-client privilege extends to internal documents contained in the files of Defendants' outside counsel, Berger Kahn and CKGH, even if these documents were not communicated to Defendants."; "[T]he Court finds that Defendants have waived the attorney-client privilege for all communications they received from either Berger Kahn or CKGH regarding insurance coverage advice or opinions related to this matter, including communications from Berger Kahn regarding coverage advice in 2011 and copies or descriptions of those communications contained in the CKGH file.")

Case Date Jurisidction State Cite Checked
2013-04-29 Federal AZ B 7/13

Chapter: 31.302

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 55877, at *24-25 (S.D.N.Y. Apr. 12, 2013)
("Magistrate Judge Francis held that all of the documents listed on Garr's [former intern for defendant] and Kohn's [third party] privilege logs were within Donziger's control and thus subject to his waiver. The LAP [Ecuadorean plaintiffs in underlying trial] Representatives objected to Magistrate Judge Francis' holding on the ground that it 'broadened the scope of that purported waiver so as to reach Donziger's former co-counsel. . . and a former intern, [neither] of whom had any part in any activities that this Court would deem an implied waiver.' This contention is not meritorious.")

Case Date Jurisidction State Cite Checked
2013-04-12 Federal NY B 3/14

Chapter: 31.302

Case Name: JJK Mineral Co., LLC v. Swiger, 292 F.R.D. 323, 327-28, 338 (N.D. W. Va. 2013)
(addressing the horizontal and temporal scope of an advice of counsel waiver; "In order for JJK to oppose the defense of reliance on advice of counsel asserted by Swiger, JJK must be able to discover the information that was conveyed by Swiger to counsel and vice-versa; discover what facts were provided by Swiger to the Daniels Law Firm; discover what facts the Daniels Law Firm may have obtained from any other sources other than Swiger; discover the legal research conducted by and considered by the Daniels Law firm; discover the opinions that the Daniels Law Firm gave Swiger and discover whether Swiger selectively ignored any of the facts and opinions given him by the Daniels Law Firm in reaching a decision to authorize claims being made against JJK in the state court action."; "Based on the foregoing analysis, the waiver created by assertion of the advice of counsel defense includes work product of the Daniels Law Firm, whether opinion or fact, whether the same was communicated to Swiger or was only considered in the process of forming any opinion that Swiger had a right to sue JJK in state court. JJK has no other source from which to get this information and the information is relevant to the defense asserted by Swiger.")

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

Chapter: 31.302

Case Name: Mills v. Iowa, 285 F.R.D. 411, 417 (S.D. Iowa 2012)
(analyzing the waiver implication of a state university's disclosure of an investigative report and investigation notes following an internal investigation in an alleged sexual assault; "With the report and investigative notes in the domain of the case, Mr. Mills is entitled to discover the complete picture of what Stolar may have learned from the Board during the investigation."; "The Court will grant the motion to compel the disclosure of undisclosed communications and information that passed between any member of the Board or its staff and the Stolar firm from July 22, 2008 to September 18, 2008 which relate or refer to the following: (1) the purposes, scope, or direction of the investigation; (2) information provided or requested pertaining to the subject matter of the investigation; (3) the identification of persons who were involved in the subject matter of the investigation and any information concerning their involvement including specifically any mention of Mr. Mills; (4) any kind of assistance in the conduct of the investigation; or (5) the progress of the investigation including specifically progress reports.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal IA B 8/13

Chapter: 31.302

Case Name: QBE Ins. Corp. v. Jorda Enters., Inc., 286 F.R.D. 661, 666 (S.D. Fla. 2012)
(holding that a litigant cannot rely on privileged documents filed in camera to avoid Rule 11 sanctions without producing them to the adversary; "As a general rule, the smaller the amount of privileged information disclosed, the narrower the scope of the waiver. Thus, if QBE opts to elicit privileged information from many of its attorneys and to introduce into evidence reports and comprehensive memoranda, then it is likely that the waiver will be substantial. On the other hand, if it discloses only one, two-sentence email and no further privileged documents or testimony, then the subject matter may well be narrow and discrete. The Undersigned cannot pinpoint the scope of the waiver until events unfold at the evidentiary hearing.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal FL
Comment:

key case


Chapter: 31.302

Case Name: SEC v. Brady, 238 F.R.D. 429, 2006 U.S. Dist. LEXIS 74979, Civ. A. No. 3:05-CV-1416-M, 67 Fed. R. Serv. 3d (Callaghan) 26 (N.D. Tex. Oct. 16, 2006)
(analyzing attorney-client privilege and work product issues in an action by the SEC against a former corporate officer, who sought discovery of his former company's investigation into improper accounting and revenue recognition; explaining that the company's Audit Committee hired the law firm of Baker Botts to conduct an internal investigation with the assistance of KPMG, after which Baker Botts met with the company's new auditor Deloitte; holding that the company and Baker Botts waived privilege protection by disclosing the investigation results to the SEC, and therefore could not withhold them from the former officer; "Brady [former officer] asserts that materials related to the Phase II investigation were provided to the SEC, thereby waiving the attorney-client privilege as to Categories 5 and 6. . . . With regard to the Phase II materials, i2 and Baker Botts concede that they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning Phase II, in addition to interview observations and summaries, exhibits used during witness interviews, and other documents uncovered during its Phase II investigation. Indeed, they state that pursuant to a confidentiality agreement with Brady, he will receive all of the materials presented to the SEC. . . . i2 and Baker Botts contend that despite the disclosure of Phase II materials to the SEC, they did not waive the attorney-client privilege; however, to the extent they have waived attorney-client privilege, they urge the court to adopt the Eighth Circuit's selective waiver doctrine."; "As noted, the Fifth Circuit has yet to adopt the selective waiver doctrine. Moreover, this court is persuaded by the reasoning of the great weight of authority which has declined to adopt the selective waiver doctrine. Therefore, the court finds that i2 and Baker Botts waived the attorney-client privilege as to Categories 5 and 6 by disclosing Phase II privileged information to a third-party."; finding a subject matter waiver; "Brady argues that i2 and Baker Botts' waiver of attorney-client privilege as to the Phase I Report and the Phase II investigation extends to the entire subject matter related to the disclosures."; "The disclosure of any significant portion of a confidential communication waives the privilege as to the whole.'. . . Moreover, waiver of an attorney-client communication waives the privilege as to all other communications relating to the same subject matter. . . . Here, Brady disclosed the Phase I Report, which summed up Baker Botts' entire Phase I investigation, to Deloitte and Touche. Additionally, they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning the ultimate findings of Phase II, interview observations and summaries, and exhibits used during witness interviews. Based on that evidence, the court finds that these disclosures amount to a significant portion of attorney-client privileged information, and thus, the waiver of attorney-client privilege extends to all responsive documents relating to the Phase I and Phase II subject matter. Accordingly, the attorney-client privilege has been waived as to all documents responsive to Categories 3, 4, 5, and 6.")

Case Date Jurisidction State Cite Checked
2006-10-16 Federal TX
Comment:

key case


Chapter: 31.302

Case Name: Ziemack v. Centel Corporation, No. 92 C 3551, 1995 U.S. Dist. LEXIS 6942 (N.D. Ill. May 19, 1995)
(noting that defendant voluntarily waived privilege protection for certain documents, but could not narrowly define the scope of the waiver; "[O]n January 11, 1995, Defendants informed Plaintiffs of their waiver of the attorney-client privilege with respect to the SAP, and their intention to produce those documents for the date between January 23, 1992 and May 27, 1992 (the class period)."; "Defendants' unduly limited definition of, and time frame for, the SAP are untenable. The class period dates dictate neither the duration of the SAP nor the permissible dates of discovery. It seems extremely unlikely that there was absolutely no discussion of the SAP before or after the class period. Defendants would apparently have this Court believe that Centel announced its intention to explore strategic alternatives which would maximize shareholder value, including the possible sale of the company, without previously analyzing or discussing the consequences of that announcement. To accept such an assertion would strain credulity. In fact, Plaintiffs refer to several documents, including documents from August 1991, which illustrate that the SAP occurred much earlier than the beginning of the class period. . . . Moreover, the merger was not 'finalized' by shareholder vote and 'closed' under the merger agreement until March 8, 1993. Although it seems unlikely that copious discussion about alternatives ensued once the merger was announced, there may have been discussions concerning contingency plans, in the event that the merger failed."; "Defendants observe that '[a] clear cut-off date for [Defendants'] waiver is desirable.' Nye, 98 F.R.D. at 454. This court agrees and finds that the end of the (SAP related) waiver is the finalization date of the merger, March 8, 1993.")

Case Date Jurisidction State Cite Checked
1995-05-19 Federal IL
Comment:

key case


Chapter: 31.303

Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA (JSC), 2017 U.S. Dist. LEXIS 135366 (N.D. Cal. Aug. 23, 2017)
(analyzing the scope of Uber's waiver resulting from its intentional disclosure of privileged communications; "The parties agree that the scope of Uber's waiver is all privileged conversations in which Mr. Levandowski [former Google affiliate employee accused of stealing information and taking it to his new employer Uber] discussed his downloading of Waymo's files and his decision to invoke the Fifth Amendment, along with Uber's response. The difficulty is that Mr. Levandowski has asserted his own attorney-client privilege in those conversations, including the March 29 conversation that Uber disclosed, pursuant to his and Uber's Joint Defense Agreement. . . . All parties also agree that Uber cannot waive Mr. Levandowski's privilege and thus that the Court cannot order Uber to testify as to what was said in the conversations covered by Uber's waiver. . . . Finally, Uber and Waymo also agree that Uber should therefore be precluded from offering into evidence the contents of the March 29, 2017 conversation. . . . The Court agrees that result makes sense. Thus, Uber's inability to waive the privilege as to all conversations which in fairness it should disclose is an additional reason to preclude it from offering the March 29, 2017 conversation into evidence.")

Case Date Jurisidction State Cite Checked
2017-08-23 Federal CA

Chapter: 31.303

Case Name: In re Optuminsight, Inc., 2017-116, 2017 U.S. App. LEXIS 13483 (Fed. Cir. App. July 20, 2017)
(filing a petition of writ of mandamus, and holding that an acquired company's premerger waiver in a patent matter extended to post-merger communications; "OptumInsight urges this court to accept 'the general principle that a predecessor's privilege waiver is not attributed to a successor entity.'. . . We decline to adopt such a categorical rule. Although Rule 502 is silent on the effect of corporate mergers, it makes clear that the scope of intentional waiver is based on subject matter, and should be analyzed 'through a fairness lens.'"; "OptumInsight contends that allowing waiver to reach post-merger communications would effectively preclude successor companies from having privileged discussions about the waived subject matter. However, courts have noted similar concerns regarding prospective waivers generally (i.e., waivers that apply to communications after the intentional disclosure) because they can deter privileged communications. . . . But instead of imposing categorical rules, courts have evaluated the proper scope of waiver on a case-by-case basis to determine whether it would be fair to impose a prospective waiver.")

Case Date Jurisidction State Cite Checked
2017-07-20 Federal

Chapter: 31.303

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

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

key case


Chapter: 31.303

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

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

Chapter: 31.303

Case Name: Theranos, Inc. v. Fuisz Techs., Ltd., Case No. C 11-5236 PSG, 2013 U.S. Dist. LEXIS 70564, at *16, *17 (N.D. Cal. May 16, 2013)
("The court also rejects Fuisz Technologies' argument that the waiver should be limited to the time period prior to the filing of the nonprovisional application. Through its disclosure of the documents in this litigation, Fuisz Technologies has put at issue that communications between Fuisz [defendant's founder] and ATSK [defendant's lawyers] provide evidence that he and the company did not engage in the conduct of which Theranos accuses them. Those communications continued long past the filing of the provisional patent, and so Theranos should have the opportunity to consider the rest of the communications to test whether they provide the evidence Fuisz Technologies asserts."; "Fuisz offered the documents to show that he had not engaged in using Theranos' confidential information when he invented the '612 Patent. The prosecution of the '612 Patent, especially given Fuisz's admissions of the closeness of that invention to the Theranos patents, would give further context to the disclosed emails and therefore fall within the subject matter that in fairness ought to be disclosed to Theranos.")

Case Date Jurisidction State Cite Checked
2013-05-16 Federal CA B 3/14

Chapter: 31.303

Case Name: JJK Mineral Co., LLC v. Swiger, 292 F.R.D. 323, 338 (N.D. W. Va. 2013)
(addressing the horizontal and temporal scope of an advice of counsel waiver; "JJK's right to know extends from the beginning of the process that led to any advice given by the Daniels Law Firm to Swiger that he had a valid right to prosecute said Mon County civil action against JJK. It is unknown when that process began. Only the Daniels Law Firm and Swiger know that date. That date must have been sometime in the continuum between when Swiger first consulted the Daniels Law Firm concerning the property dispute and when he filed the amended complaint joining JJK as a party defendant in the Mon County Civil Action. JJK's right to know ceases with the filing of the state court action against it. JJK is not entitled to the trial strategy developed by the Daniels Law Firm after the JJK was joined in the state court action. Nor is JJK entitled to attorney -client communications, fact work product and opinion work product solely dealing with Swiger's claims against the Wangs [who sole same property to plaintiff and to defendant] unless the same were also used in forming the opinion to bring JJK in to the state court action.")

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

Chapter: 31.303

Case Name: Diesel Mach., Inc. v. Manitowoc Crane Grp., No. CIV. 09-4087, 2010 U.S. Dist. LEXIS 115625, at *8 9, *11 (D.S.D. Oct. 28, 2010)
(holding that a company could not allow its in house lawyer to testify about pre litigation facts, but withhold testimony about post litigation facts, because some of the pertinent events occurred after the litigation began; "The problem is this: DMI sued Manitowoc two days after receiving Manitowoc's notice of termination. But it was not until about three months later, after suit was started, that Manitowoc rescinded its notice of termination. Manitowoc desires to introduce attorney client evidence about its notice of termination before suit while at the same time Manitowoc desires to protect from disclosure its attorney client evidence about rescinding notice after suit. Something relevant happened between the notice of termination and the notice of rescinding termination. During that same time the lawsuit was pending. The strategy about defending the lawsuit and the strategy about rescinding the termination are surely so inextricably entwined that the strategies cannot be separated. And that same post-lawsuit attorney client or work product evidence is surely directly related to the pre lawsuit, pre termination attorney client or work product evidence. So, if the privileges are waived for pre litigation purposes, the waiver cannot exclude the post litigation strategy which is directly related. And of course some of the post[-]litigation strategy occurred before the notice to rescind termination and is inextricably entwined."(footnote omitted); "Manitowoc has not yet waived the attorney client privilege for Mark Klaiber. Manitowoc is asking for the court's blessing to limit waiver of the attorney client privilege to Mark Klaiber only, and only to documents authored by him only for the period before litigation was commenced, i.e. so that Mark Klaiber can testify about the reasons for the termination notice but not about the reasons for withdrawing the termination notice. Manitowoc's request cannot be granted because it appears the post litigation legal advice given by Mark Klaiber is directly related to his pre litigation advice. Manitowoc has a choice to make: either to waive the privilege for all of Mark Klaiber's legal advice to Manitowoc about the termination of DMI's dealership franchise, or none of it. Manitowoc's motion for a protective order to limit the proposed waiver of attorney client evidence from Mark Klaiber is DENIED." (footnote omitted))

Case Date Jurisidction State Cite Checked
2010-10-28 Federal SD B 10/11

Chapter: 31.303

Case Name: Ziemack v. Centel Corporation, No. 92 C 3551, 1995 U.S. Dist. LEXIS 6942 (N.D. Ill. May 19, 1995)
(noting that defendant voluntarily waived privilege protection for certain documents, but could not narrowly define the scope of the waiver; "[O]n January 11, 1995, Defendants informed Plaintiffs of their waiver of the attorney-client privilege with respect to the SAP, and their intention to produce those documents for the date between January 23, 1992 and May 27, 1992 (the class period)."; "Defendants' unduly limited definition of, and time frame for, the SAP are untenable. The class period dates dictate neither the duration of the SAP nor the permissible dates of discovery. It seems extremely unlikely that there was absolutely no discussion of the SAP before or after the class period. Defendants would apparently have this Court believe that Centel announced its intention to explore strategic alternatives which would maximize shareholder value, including the possible sale of the company, without previously analyzing or discussing the consequences of that announcement. To accept such an assertion would strain credulity. In fact, Plaintiffs refer to several documents, including documents from August 1991, which illustrate that the SAP occurred much earlier than the beginning of the class period. . . . Moreover, the merger was not 'finalized' by shareholder vote and 'closed' under the merger agreement until March 8, 1993. Although it seems unlikely that copious discussion about alternatives ensued once the merger was announced, there may have been discussions concerning contingency plans, in the event that the merger failed."; "Defendants observe that '[a] clear cut-off date for [Defendants'] waiver is desirable.' Nye, 98 F.R.D. at 454. This court agrees and finds that the end of the (SAP related) waiver is the finalization date of the merger, March 8, 1993.")

Case Date Jurisidction State Cite Checked
1995-05-19 Federal IL
Comment:

key case


Chapter: 31.402

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 66 N.Y.S. 3d 135, 2018 N.Y. App. Div. LEXIS 85 (N.Y. App. 1d Jan. 4, 2018)
(holding that a businessman waived privilege protection by sending an email to an investor that attributed his lawyer the actions that he intended to take in the future; inexplicably finding a subject matter waiver, although the disclosure occurred in a non-judicial setting; "Siras proffers an email dated March 24, 2016 from Dai to a third-party investor, Lou Ceruzzi, concerning the UBS loan: 'I was about to write, to you this email last Friday but I decided to 'wait until we all sit down with attorneys this morning. It is concluded by legal counsels that we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'"; "I find that Dai waived the attorney-client privilege as to any communications and documents dealing with his counsel's advice that 'we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out.'. . . Contrary to the cases defendants' 'rely upon, Dai's communication to Ceruzzi goes beyond a client conveying to a third-party the decision to settle an action or withdraw a claim based on advice of counsel. . . . Dai's communication provided a detailed description of specific legal advice and the course of action given to him by his attorneys, which he voluntarily divulged to a third party. Accordingly, defendants are directed to produce any communications and documents 'pertaining to the subject matter of the email.'").; AFFIRMED: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017) (affirming the lower court's subject matter waiver holding; "By disclosing to a third party by email certain advice given to them by counsel, defendants waived the attorney-client privilege as to other documents pertaining to that advice (see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 NY3d 616, 624, 36 N.Y.S. 3d 838, 57 N.E. 3d 30 [2016]; Arkin Kaplan Rice LLP v. Kaplan, 118 AD-3d 492, 988 N.Y.S.2d 22 [1st Dept 2014]).")

Case Date Jurisidction State Cite Checked
2018-01-04 Federal NY
Comment:

key case


Chapter: 31.402

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "The SCO also contends that the Targets impliedly waived the attorney-client privilege as to the testimony sought from the Witness by disclosing the 2016 and 2017 FARA Submissions to DOJ. The waiver extends to the Targets' specific conversations with the Witness that were released in substance to DOJ in these FARA Submissions."; "Upon sending the FARA Submissions to DOJ, the Targets waived, through voluntary disclosure, any attorney-client privilege in their contents. White, 887 F.2d at 271; In re Subpoenas Duces Tecum, 738 F.2d at 1370; Permian Corp., 665 F.2d at 1219. In fact, the FARA Submissions made specific factual representations to DOJ that are unlikely to have originated from sources other than the Targets, and, in large part, were explicitly attributed to one or both Targets' recollections. . . . Additionally, the Targets impliedly waived the privilege as to their communications with the Witness to the extent that these communications related to the FARA Submissions' contents.")

Case Date Jurisidction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 31.402

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "'Target 1 argues that the SCO has not shown that the 2016 FARA Submission contained representations sourced to the Targets themselves rather than to publicly-available sources such as 'media reports, or a corporate registry or similar database,'. . . but even a cursory review of this letter shows otherwise. The 2016 FARA Submission contained representations the Witness could not plausibly have gathered solely from publicly-available sources, such as that the Targets had no agreement to provide the ECFMU services or were counterparties to any service agreements between ECFMU and the GR Companies. . . . The Targets repeated these representations in the 2017 FARA Submission.'")

Case Date Jurisidction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 31.402

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)
December 27, 2017 (PRIVILEGE POINT)

"Trump-Related Circuit Court Decision Includes Troubling Waiver Analysis"

Because historical facts do not deserve privilege protection, disclosing those facts does not trigger a privilege waiver. Thus, disclosing historical facts to the government should not waive the disclosing client's privilege protection for communications with her lawyer about those facts.

But some decisions take a different, troubling, approach. In In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017), the court ordered former Trump campaign manager Paul Manafort's lawyer to testify before a grand jury. In addition to applying the crime-fraud exception, the court held that the lawyer waived her clients' privilege protection by making representations about historical facts in submissions to the DOJ. The court noted that the lawyer's submissions "made specific factual representations to DOJ that are unlikely to have originated from sources other than [Manafort and a colleague], and, in large part, were explicitly attributed to one or both [of their] recollections." Id. at *32. The court relied on this unsurprising circumstance in holding that the representations "impliedly waived the privilege as to [the clients'] communications with [their lawyer] to the extent that these communications related to the . . . Submissions' contents." Id.

A lawyer's disclosure of historical facts should not strip away privilege protection from the lawyer's communications with her client about those facts.

Case Date Jurisidction State Cite Checked
2017-10-02 Federal DC
Comment:

key case


Chapter: 31.402

Case Name: QBE Insurance Corp. v. Jorda Enterprises, Inc., Case No. 10-21107-CIV-GOLD/GOODMAN, 286 F.R.D. 661, 2012 U.S. Dist. LEXIS 132020 (S.D. Fla. Sept. 17, 2017)
(holding that plaintiff's reliance on privileged communications will trigger a broad subject matter waiver, but not a broad work product waiver; "If QBE decides to rely on attorney-client privileged information at the evidentiary hearing, then it will have generated a waiver applicable to all other attorney-client communications relating to the same subject matter. . . . There is no bright line test for determining what constitutes the subject matter of a waiver, and courts weigh the circumstances of the disclosure, the nature of the advice and whether permitting or prohibiting further disclosures would prejudice the parties. . . . Because the Undersigned does not know whether QBE will finally decide to waive the privilege by affirmatively relying on privileged information and also does not know which documents and testimony will be placed at issue, I cannot now determine with specificity the scope of the waiver."; "As a general rule, the smaller the amount of privileged information disclosed, the narrower the scope of the waiver. Thus, if QBE opts to elicit privileged information from many of its attorneys and to introduce into evidence reports and comprehensive memoranda, then it is likely that the waiver will be substantial. On the other hand, if it discloses only one, two-sentence email and no further privileged documents or testimony, then the subject matter may well be narrow and discrete. The Undersigned cannot pinpoint the scope of the waiver until events unfold at the evidentiary hearing."; "Unlike waiver of attorney-client material, work-product waiver, however, is not a broad waiver of all work-product related to the same subject matter. Instead, it extends only to 'factual' or 'non-opinion' work-product concerning the same subject matter as the disclosed work-product.")

Case Date Jurisidction State Cite Checked
2017-09-17 Federal FL
Comment:

key case


Chapter: 31.402

Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date Jurisidction State Cite Checked
2017-08-28 Federal MI

Chapter: 31.402

Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)
(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date Jurisidction State Cite Checked
2017-08-28 Federal MI

Chapter: 31.402

Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA (JSC), 2017 U.S. Dist. LEXIS 135366 (N.D. Cal. Aug. 23, 2017)
(analyzing the scope of Uber's waiver resulting from its intentional disclosure of privileged communications; "The parties agree that the scope of Uber's waiver is all privileged conversations in which Mr. Levandowski [former Google affiliate employee accused of stealing information and taking it to his new employer Uber] discussed his downloading of Waymo's files and his decision to invoke the Fifth Amendment, along with Uber's response. The difficulty is that Mr. Levandowski has asserted his own attorney-client privilege in those conversations, including the March 29 conversation that Uber disclosed, pursuant to his and Uber's Joint Defense Agreement. . . . All parties also agree that Uber cannot waive Mr. Levandowski's privilege and thus that the Court cannot order Uber to testify as to what was said in the conversations covered by Uber's waiver. . . . Finally, Uber and Waymo also agree that Uber should therefore be precluded from offering into evidence the contents of the March 29, 2017 conversation. . . . The Court agrees that result makes sense. Thus, Uber's inability to waive the privilege as to all conversations which in fairness it should disclose is an additional reason to preclude it from offering the March 29, 2017 conversation into evidence.")

Case Date Jurisidction State Cite Checked
2017-08-23 Federal CA

Chapter: 31.402

Case Name: Regeneron Pharmaceuticals, Inc. v. Merus N.V., 2016-1346, 2017 U.S. App. LEXIS 13578 (Fed. Cir. App. July 27, 2017)
("During litigation, Regeneron made a choice to maintain the attorney-client privilege as to Dr. Smeland's knowledge and thoughts about the Withheld References during prosecution of the '176 application. In maintaining its assertion of privilege, Regeneron shielded Dr. Smeland's documents relating to his knowledge and thoughts about the Withheld References during prosecution from disclosure. As with any affirmative disclosure of information otherwise protected by the attorney-client privilege, however, once the disclosure of the trial affidavit was made, as it was not inadvertent, the waiver was complete."; "Thus, on the day that Regeneron disclosed Dr. Smeland's trial affidavit, it waived the privilege as to the subject matter of each of the topics the affidavit addressed. In particular, Regeneron waived privilege as to Dr. Smeland's views on the broadest reasonable construction of the claim language, understanding of the technology, and materiality (including cumulativeness) of each of the Withheld References.")

Case Date Jurisidction State Cite Checked
2017-07-27 Federal

Chapter: 31.402

Case Name: Leftwich v. City of Pittsburgh Kansas, Case No. 16-2112-JWL, 2017 U.S. Dist. LEXIS 99009 (D. Kansas June 27, 2017)
(analyzing the scope of a subject matter waiver; "As defendants concede, there is no 'bright line test for determining what constitutes the subject matter of a waiver.'. . . Here, the magistrate judge reasonably concluded that the decision to terminate plaintiff's employment and plaintiff's appeal of that decision -- both of which undisputedly involved significant input and advice from the city attorney -- constituted the same subject matter for purposes of Rule 502(a). The key fact underlying the magistrate judge's ruling is that the termination decision and the appeal of that decision were inextricably linked by defendants themselves, as evidenced in an email concerning the termination decision in which the city attorney wrote that plaintiff should be given the reasons for his termination only if he appealed that decision. Further evidence that the termination decision and the appeal process were linked by defendants is found in the documents provided to the magistrate judge for in camera review.")

Case Date Jurisidction State Cite Checked
2017-06-27 Federal KS

Chapter: 31.402

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; "Plaintiffs also contend that Brownlee [Executive] waived the privilege when he testified, without objection, to the report's specific recommendations during his deposition. Unlike Warren, Brownlee, as part-owner and managing partner of Ergo, has the authority to waive attorney-client privilege on behalf of Ergo. . . During Brownlee's deposition, the following exchanges took place: '(Q): Can you describe for the record what the recommendations were [of the investigation]? (A): That I stay away from the building for six months. (A): I went with the recommendations and I followed it. And I had to pay a fine. (Q): Okay. What was the fine? (A): I think it might be $10,000. (A): I've gone to a therapist. But that was -- oh, that was under the recommendation of the internal investigation."; "By discussing Hartman's specific recommendations -- that Brownlee stay away from Ergo for six months, pay a $10,000 fine, and see a therapist -- Brownlee revealed Hartman's key conclusions and thus disclosed the 'gist' of the report. . . . Brownlee, on behalf of himself and Ergo, cannot reveal important conclusions from the report yet continue to maintain that the report itself is privileged. Hence, the Court concludes that Brownlee waived attorney-client privilege for the internal investigation report.")

Case Date Jurisidction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 31.402

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 16, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part II"

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017). Another court dealt with a similar situation about two weeks later.

In Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017), Title VII plaintiffs sought to discover an outside lawyer’s report produced after that lawyer investigated an earlier sexual harassment claim against defendant's managing partner. The court found that the report deserved privilege protection, but that the managing partner waived that protection in deposition testimony describing the report's recommendations and his compliance with them. As the court put it, "[b]y discussing [the investigating lawyer's] specific recommendations – that [the managing partner] stay away from [the company] for six months, pay a $10,000 fine, and see a therapist – [he] revealed [the lawyer's] key conclusions and thus disclosed the 'gist' of the report." Id. at *11-12. Based on this waiver, the court ordered the report produced.

Most courts are more forgiving when considering the waiver implications of fast-paced deposition testimony. But the managing partner defendant presumably could have avoided a waiver risk by declining to testify about the report's recommendations – and instead simply describing what he did after the company received the report. Corporations' lawyers should educate their clients' executives and employees about the dispositive distinction between (1) describing the companies' or their own past actions or future intended actions (without attributing them to lawyers' advice), and (2) disclosing privileged communications' content. The former does not waive anything, while the latter waives privilege protection and may trigger a subject matter waiver. Next week's Privilege Point discusses subject matter waiver issues.

Case Date Jurisidction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 31.402

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisidction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 31.402

Case Name: SCF Waxler Marine LLC v. M/V Aris T, C. A. No. 16-902C/W16-959,16-1022,16-1060,16-1134,16-1614 Sec. "A"(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017)
(holding that a draft incident report deserved privilege protection, although the final version was intended to be disclosed; "[J]ust because a factual statement is ultimately disclosed to the public, this does not mean that all drafts of the factual statement automatically lose any privilege that is attached to them. Natta v. Hogan, 392 F.2d 686, 692 (10th Cir. 1968) ('The situation is like that where a client gives general information to his lawyer so that the lawyer may prepare a complaint in any ordinary civil action. The fact that some of the information is thus publicly disclosed does not waive the privilege.'); Buford v. Holladay, 133 F.R.D. 487, 492 (S.D. Miss. 1990) (holding that the ultimate publication of Attorney General Opinions did not waive the privilege as to the communications leading up to the creation of the Opinions). Often, drafts of a document exchanged between an attorney and client will reflect the client's request for advice regarding how to present the facts and the attorney's advice in response. Ideal Electric Company v. Flowserve Corporation, 230 F.R.D. 603, 605 (D. Nev. 2005) ('Drafts often contain attorney's and client's mental impressions, strategies, and either solicit or provide legal advice.'). Such drafts are protected by the attorney client privilege. Total E & P USA Inc. v. Kerr-McGee Oil & Gas Corp., No. CIV.A. 09-6644, 2014 U.S. Dist. LEXIS 93881, 2014 WL 3385130, at *4 (E.D. La. July 10, 2014) (holding that redacted draft affidavits were protected by the attorney client privilege); United States v. N.Y. Metro. Transp. Auth., No. 03CV02139-SLT-MDG, 2006 U.S. Dist. LEXIS 93920, 2006 WL 3833120, at *2 (E.D.N.Y. Dec. 29, 2006) (holding that draft uniform policy bulletins 'need not be produced since they are draft documents that were submitted to attorneys for the purpose of obtaining legal advice'); Ideal Electric Company, 230 F.R.D. at 605 (holding that draft affidavits were protected from disclosure by the attorney-client privilege); Long v. Anderson Univ., 204 F.R.D. 129, 135 (S.D. Ind. 2001) (holding draft answer to a complaint was privileged); Apex Mun. Fund v. N-Grp. Sec., 841 F. Supp. 1423, 1428 (S.D. Tex. 1993) ('[P]reliminary drafts of documents and communications made between attorney and client during the drafting process are privileged.'); Allegheny Ludlum Corp. v. Nippon Steel Corp., No. CIV. A. 89-5940, 1991 U.S. Dist. LEXIS 5173, 1991 WL 61144, at *5 (E.D. Pa. Apr. 15, 1991) (holding that a draft patent application was privileged because the draft was not intended to be publicly transmitted and contained a communication within the attorney-client relationship for the purposes of rendering a confidential opinion)."; "Genesis now knows that contrary to what he suggested in his deposition, Leone [Ship Pilot] did not appear at his counsel's office with a contemporaneous written statement of events. Rather, it has been firmly established through in camera review and oral argument, that the first narrative of the accident was prepared by the attorney based on an interview of the client, Leone. Leone then handwrote in some changes to that draft prior to it becoming a final document, which was produced to NOBRA and others. Nonetheless, Genesis continues to insist that the drafts be discoverable so it can see any changes made. As reiterated in Ideal Electric Company and as discussed further below, however, it is 'these differences [that] are protected by the attorney client privilege and the work product privilege.'"; "[T]he Court finds that the ultimate disclosure of the final draft of the NOBRA Pilot Incident Report does not result in a waiver of the privilege. Just as in Ideal Electric Company, the Court finds that the drafts and notes were never intended to be made public. They were conveyed in confidence in the course of obtaining and giving legal advice. While Leone and his counsel were obviously working towards a document that would be made public, they did not intend that their drafts and analysis would be subject to disclosure. As the Court in Buford observed, the argument raised by Genesis here would result in disclosure of every draft of a pleading, brief, or affidavit that is exchanged between counsel and client merely because such drafts concern facts and the final draft is made public. At oral argument, counsel for Genesis seemed willing to live with this extraordinary result, but the Court finds that such a holding goes too far.")

Case Date Jurisidction State Cite Checked
2017-06-13 Federal LA
Comment:

key case


Chapter: 31.402

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 16, 2017 (PRIVILEGE PONT)

"Drawing the Line Between Waiver and Non-Waiver: Part II"

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017). Another court dealt with a similar situation about two weeks later.

In Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017), Title VII plaintiffs sought to discover an outside lawyer’s report produced after that lawyer investigated an earlier sexual harassment claim against defendant's managing partner. The court found that the report deserved privilege protection, but that the managing partner waived that protection in deposition testimony describing the report's recommendations and his compliance with them. As the court put it, "[b]y discussing [the investigating lawyer's] specific recommendations – that [the managing partner] stay away from [the company] for six months, pay a $10,000 fine, and see a therapist – [he] revealed [the lawyer's] key conclusions and thus disclosed the 'gist' of the report." Id. at *11-12. Based on this waiver, the court ordered the report produced.

Most courts are more forgiving when considering the waiver implications of fast-paced deposition testimony. But the managing partner defendant presumably could have avoided a waiver risk by declining to testify about the report's recommendations – and instead simply describing what he did after the company received the report. Corporations' lawyers should educate their clients' executives and employees about the dispositive distinction between (1) describing the companies' or their own past actions or future intended actions (without attributing them to lawyers' advice), and (2) disclosing privileged communications' content. The former does not waive anything, while the latter waives privilege protection and may trigger a subject matter waiver. Next week's Privilege Point discusses subject matter waiver issues.

Case Date Jurisidction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 31.402

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisidction State Cite Checked
2017-06-05 Federal NY
Comment:

key case


Chapter: 31.402

Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
July 26, 2017 (PRIVILEGE POINT)

"Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part II"

Last week's Privilege Point explained that Cadwalader Wickersham & Taft's client Washington Metropolitan Transit Authority (WMATA) lost a work product claim for 51 witness interviews the firm prepared during its internal investigation into self-dealing at WMATA. Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017).

Unlike the court's focus on the investigation's primary business motivation in rejecting the work product claim, the court's privilege analysis found that WMATA waived its privilege protection. The court noted that WMATA publicly released the final Cadwalader report -- which "disclosed counsel's legal and factual conclusions," and "cite[d] extensively to the interview memoranda throughout the entirety of the document." Id. at *18-19. The court acknowledged a Cadwalader lawyer's declaration that the interview memoranda references "were intended only for use by Cadwalader" -- but noted that "WMATA failed to remove the references . . . from the version of the [Cadwalader] Report that was made available to the public." Id. at *19 n.1. The court also noted that WMATA "has also used the [Cadwalader] Report to its advantage in this litigation" – by "us[ing] the [Cadwalader] Report and facts disclosed in that report to support its claims and defenses." Id. at *19. The court therefore found a subject matter waiver, and ordered WMATA to produce all of Cadwalader's 51 witness interview memoranda except the portions which (1) "contain subjects not covered by the [Cadwalader] Report," and (2) "material and other comments, if any, as to a lawyer's mental impressions." Id. at *20.

Case Date Jurisidction State Cite Checked
2017-05-16 Federal DC
Comment:

key case


Chapter: 31.402

Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
("The Court begins by noting that attorney-client privilege 'only protects disclosure of communications; it does not protect disclosure of the underlying facts.'. . . Thus, Banneker could, through a well-written interrogatory, request the disclosure of all facts unearthed during the 51 witness interviews and WMATA would have no legitimate basis to refuse to respond. Banneker need not draft such an interrogatory, however, because the Court finds WMATA has waived the attorney-client privilege with respect to the interview memoranda."; "As originally commissioned, the Bondi Report was intended to be an internal document for WMATA's purposes and not slated for public disclosure. Upon receipt of the Bondi Report, the WMATA Board decided to release it to the public in its entirety. By disclosing the Bondi Report, WMATA chose to disclose the legal and factual conclusions that were contained in the report and, therefore, waived any claim of attorney-client privilege that existed with respect to the Bondi Report itself. The Court must now consider whether the public disclosure of the Bondi Report also resulted in subject-matter waiver of the attorney-client privilege covering the interview memoranda used to compile the report."; "The Court finds that the waiver of privilege as to the Bondi Report was intentional. . . . the Bondi Report cites extensively to the interview memoranda throughout the entirety of the document. The Court notes multiple references to at least 23 different witness interviews. Additionally, WMATA has not argued that the interview memoranda contain information outside the scope of the investigation or Bondi Report."; "'Ms. Rockwood notes in her declaration that the references to the interview memoranda in the Bondi Report were intended only for use by Cadwalader. . . . However, WMATA failed to remove the references and citations from the version of the Bondi Report that was made available to the public.'"; "WMATA has not zealously protected the information contained in the interview memoranda. Instead, WMATA has permitted direct citation and reference to confidential communications to be disclosed publically in the Bondi Report. WMATA has also used the Bondi Report to its advantage in this litigation. Fairness dictates that if WMATA is able to use the Bondi Report and facts disclosed in that report to support its claims and defenses, then Banneker is entitled to the remaining facts and information contained in the interview memoranda that were not included in the Bondi Report. The intent of subject matter waiver is to prevent a party from selectively disclosing information and documents that would otherwise be privileged to gain a tactical advantage. WMATA cannot both benefit from the disclosure of the Bondi Report and prevent further disclosure of the remaining information in the interview memoranda.")

Case Date Jurisidction State Cite Checked
2017-05-16 Federal DC
Comment:

key case


Chapter: 31.402

Case Name: City of Pontiac General Employees' Retirement Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378 (W.D. Ark. May 5, 2017)
(allowing plaintiffs suing Wal-Mart in connection with its investigation into Mexican corruption to explore content and underlying facts related to a privileged document that The New York Times acquired from someone without authority to waive Wal-Mart's privilege protection; "PGRS argues that it is entitled to fully examine witnesses regarding documents posted to The New York Times and/or Congressional websites that are no longer subject to a claim of privilege. Defendants assert that because the publication of these was unauthorized or involuntary, the attorney-privilege and/or work product protection still applies to the broad subject matter of Halter's internal investigation."; "Regardless of whether the publication of these documents was unauthorized, the Court has previously recognized that Wal-Mart lost an claim of privilege regarding documents posted to The New York Times and/or Congressional websites as of May 16, 2013, ECF No. 127. Thus, PGERS is entitled to fully examine relevant witnesses regarding the content of these documents and the factual details underlying the specific information contained in the documents.")

Case Date Jurisidction State Cite Checked
2017-05-05 Federal AR

Chapter: 31.402

Case Name: City of Pontiac General Employees' Retirement Sys. v. Wal-Mart, Inc., Case No. 5:12-cv-5162, 2017 U.S. Dist. LEXIS 69378 (W.D. Ark. May 5, 2017)
(allowing plaintiffs suing Wal-Mart in connection with its investigation into Mexican corruption to explore content and underlying facts related to a privileged document that The New York Times acquired from someone without authority to waive Wal-Mart's privilege protection; "PGRS argues that it is entitled to fully examine witnesses regarding documents posted to The New York Times and/or Congressional websites that are no longer subject to a claim of privilege. Defendants assert that because the publication of these was unauthorized or involuntary, the attorney-privilege and/or work product protection still applies to the broad subject matter of Halter's internal investigation."; "Regardless of whether the publication of these documents was unauthorized, the Court has previously recognized that Wal-Mart lost an claim of privilege regarding documents posted to The New York Times and/or Congressional websites as of May 16, 2013, ECF No. 127. Thus, PGERS is entitled to fully examine relevant witnesses regarding the content of these documents and the factual details underlying the specific information contained in the documents.")

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

key case


Chapter: 31.402

Case Name: SEC v. ITT Educational Services, Inc., No. 1:15-cv-00758-JMS-MJD, 2017 U.S. Dist. LEXIS 164 (S.D. Ind. Jan. 3, 2017)
(a bankruptcy trustee could not assert privilege after the pre-bankruptcy company had agreed to waive the privilege; "The winding saga in this SEC enforcement action has made its way before the Court on Plaintiff's unopposed Motion to Compel Discovery. Plaintiff alleges that Defendants fraudulently concealed the poor performance of a student loan program from investors in violation of federal securities laws. . . . Part of Defendants' defense rests upon the legal advice they received about the loan program. As a consequence, each of the parties, by counsel, executed an agreement waiving attorney client-privilege as to certain subjects."; "'ITT is deemed to have waived the attorney-client privilege as to the Waived Subjects: . . .'"; "The Court finds that Defendant ITT knowingly and intentionally waived its privilege as to the topics identified in the Protective Order, excerpted above. Therefore, the Trustee may not reassert the waived privilege, and Plaintiff is entitled to depose Blankenship and conduct discovery into the attorney-client communications for which the privilege has been waived."; "The genie is out of the bottle; Pandora's box has been opened; '[t]he Moving Finger writes; and, having writ, Moves on.' Omar Khayyám, The Rubáiyát of Omar Khayyám 71. . . . Each of these maxims aptly describes the issue before the Court. It takes no stretch of the imagination to foresee the games that counsel would play if they were permitted to revoke an intentional and knowing waiver of attorney-client privilege as the Bankruptcy Trustee has sought to do here.")

Case Date Jurisidction State Cite Checked
2017-01-03 Federal ID
Comment:

key case


Chapter: 31.402

Case Name: Spear v. Fenkell, Civ. A. No. 13-2391, 2016 U.S. Dist. LEXIS 179622 (E.D. Pa. Dec. 29, 2016)
(holding that litigant who intends to put an investigator on as a witness (even as to logistics rather than facts) must disclose the investigators report; "In this instance Alliance must make an election: produce Roberts' [a CPA who participated in the internal investigation of Fenkell after Fenkell left Alliance in 2011] reports, including those reports previously withheld as privileged, on or before January 3, 2017 in unredacted form, and waive attorney-client privilege and the work-product doctrine, or be barred from using Roberts as a witness. I am not willing, at this late hour, to engage in a detailed and protracted battle over the extent to which the reports are related (or not) to the subject matter of Roberts' testimony.")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal PA

Chapter: 31.402

Case Name: Baxter International, Inc. v. AXA Versicherung, Case No. 11-cv-9131, 2016 U.S. Dist. LEXIS 172234 (N.D. Ill. Dec. 13, 2016)
("The sole selective disclosure that AXA identifies as resulting in waiver under Rule 502(a) is a statement contained in a memorandum drafted by Richard Berkman, one of Baxter's defense attorneys at Dechert. In his memorandum, Mr. Berkman says, 'Carl[ Shapiro's] view is that if we settle the Immuno exposure without paying anything for HCV exposure, we risk losing up to $10 million of insurance coverage for those cases.'. . . Having reviewed in camera the redacted portions of the Shapiro Memos and the cover emails, the Court concludes that this statement does not constitute a selective, misleading disclosure. Mr. Berkman fully stated what he understood Mr. Shapiro's view to be. None of the redacted text reveals either that Mr. Shapiro communicated a different view to Mr. Berkman or that Mr. Berkman actually understood Mr. Shapiro to have a different view. To the extent the Shapiro Memos or the cover emails further reflect Mr. Shapiro's view, there are not inconsistencies that make Mr. Berkman's statement misleading.")

Case Date Jurisidction State Cite Checked
2016-12-13 Federal IL

Chapter: 31.402

Case Name: In re Beltway Law Group, LLP, Case No. 14-00380, (Chapter 7), 2016 Bankr. LEXIS 3345 (D.C. Bankr. Sept. 14, 2016)
(inexplicably holding that asserting an advice of counsel defense does not by itself trigger a waiver, but instead that a waiver occurs only upon the disclosure of privileged communications; "In this instance, Ms. Ray [the document subpoena] disclosed a confidential communication with her attorney, to wit, that her attorney advised her 'that it is necessary and proper for any fees resulting from client fees should be deposited into a separate account.' It follows that she has waived the privilege with respect to the subject matter of that disclosure. I conclude that the subject matter of that disclosure includes communications regarding the handling of client fees and the appropriate account into which such fees should be deposited.")

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

Chapter: 31.402

Case Name: Hawa v. Coatesville Area School Dist., Civ. A. No. 15-4828, 2016 U.S. Dist. LEXIS 122912 (E.D. Pa. Sept. 12, 2016)
(holding that defendant's release of an investigation report about possible management misconduct did not result in a subject matter waiver; explaining that defendant school district investigated allegedly racist text messages, and ultimately publicized the report; "In an effort to be transparent regarding various allegations of misconduct by CASD, CASD released the Report to the public."; "CASD moves to quash the subpoenas, asserting, inter alia, that they seek privileged information. . . . Plaintiffs argue that CASD has waived any claim of privilege over the responsive documents by publishing the Report. . . . In response, CASD contends that its publication of the Report did not act as a waiver with respect to any attorney-client privileged information related to the Report that was not disclosed."; "There is no question that the work of 'an attorney who investigates complaints and conducts interviews within a company or an organization retains the same entitlement to the attorney-client privilege as if he or she were offering pure legal advice.'. . . Here, Plaintiffs argue that by releasing the Report CASD's attorneys had produced as the result of their investigation, CASD has waived its attorney-client privilege as to all documents that were consulted in the preparation of the Report as well as all related communications."; "It is true, as CASD contends, that a party generally waives the privilege if it voluntarily discloses a privileged communication to a third party. . . . However, it also is well-recognized that a party may make a partial waiver of the attorney-client privilege with respect to attorney-client communications actually disclosed without waiving its attorney-client privilege in its entirety unless a partial waiver would be unfair to a party's adversary. . . . The 'central element' in determining whether a partial waiver exists is the question of fairness."; "The doctrine of partial waiver is applicable in cases where attorneys conduct investigations on behalf of a client and the client then releases the attorney's report without releasing underlying documents and communications."; "In the present case, the Attorneys prepared the Report as part of a wide-ranging investigation of an array of improper and potentially unlawful activities allegedly carried out by CASD's former leadership that had become the subject of a publicly-reported investigative grand jury report. . . . as a public entity, released the Report to provide transparency to its constituents as to a matter of significant public interest. Plaintiffs have not argued that CASD has made any strategic use of the Report in this litigation, that it relies on the Attorneys' investigation as a form of defense in this action or that it has "'made factual assertions, the truth of which can only be assessed by examination of the privileged communications.'". . . They have not articulated any basis on which nondisclosure of the communications and materials underlying the Report would impose any unfairness on them. Nor have they argued, or provided any basis for the Court to conclude that any of the non-privileged materials the Attorneys collected in their investigation are not available to them through ordinary discovery addressed to the materials' original sources. Plaintiffs have merely alleged a blanket waiver of the attorney-client privilege for all materials consulted or obtained in the preparation of the Report and all communications relating to it. . . . As the authority discussed above demonstrates, Plaintiffs' blanket-waiver argument is unavailing.")

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

Chapter: 31.402

Case Name: Ingenito v. RIRI USA, Inc., 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. April 25, 2016)
("On September 21, 2015, Judge Mann heard oral argument on Plaintiff's motion to compel and denied Plaintiff's motion. As to the scope of the subject matter waiver of attorney-client privilege, Judge Mann explained that, '[d]espite the fact that the waiver is a subject matter waiver, [P]laintiff has moved to compel all communications between counsel and Mr. Howell with respect to [P]laintiff,' instead of limiting her request to the relevant subject matter. . . . Judge Mann determined that 'there was a selective waiver in order to establish the timing of the decision to terminate [Plaintiff],'. . . and thus the scope of the subject matter waiver was 'simply a question of timing' as to Plaintiff's termination . . . and did not 'extend[] to the actual underlying reasons for the termination'. . . . Moreover, Judge Mann noted that references by Rosen to Howell's legitimate reasons for terminating Plaintiff appeared only in the Supplemental Production 'in connection with a motion to compel' and in an attempt 'to moot the issue,' rather than in the initial voluntary disclosure, which is the source of the waiver. . . . She determined that the waiver did not cover 'all communications' between Howell and Rosen because the Initial Production '[did] not in any way touch upon the reason for [Plaintiff's] termination.'")

Case Date Jurisidction State Cite Checked
2016-04-25 Federal NY
Comment:

key case


Chapter: 31.402

Case Name: Ingenito v. Riri USA, Inc., No. 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. Apr. 25, 2016)
June 15, 2016 (PRIVILEGE POINT)

"Court Analyzes a Subject Matter Waiver's Scope"

Once a feared effect of disclosing privileged communications (sometimes even inadvertently), subject matter waivers now occur in most courts only when a litigant attempts to gain some advantage in litigation by affirmatively using privileged communications. Surprisingly few courts deal with the scope of waiver in those limited circumstances.

In Ingenito v. Riri USA, Inc., No. 11-CV-2569 (MKB) (RLM), 2016 U.S. Dist. LEXIS 54881 (E.D.N.Y. Apr. 25, 2016), plaintiff claimed that her employer terminated her upon learning on December 3, 2009, that she was pregnant. The company produced and intended to rely on two admittedly privileged communications between the company and its outside counsel Fox Rothschild to prove that plaintiff actually "'broke the news that she is pregnant'" a week later. Id. At *3 (internal citation omitted). The plaintiff claimed waiver, and sought the production of all emails between the company and Fox Rothschild about her employment. The magistrate judge held that the waiver extended only to communications involving "'the timing of the decision to terminate.'" Id. At *5 (internal citation omitted). The magistrate judge also acknowledged that the defendant had made a supplemental production of additional communications with Fox Rothschild, but that the company stated at the time "its intention to not broaden any waiver of attorney-client privilege." Id. At *9. Although such disclaimers normally do not work, the judge concluded that the supplemental production was made "'as a response to Plaintiff's request rather than as a proactive attempt to inject the communication into the litigation.'" Id. At *10 (citation omitted). Although the court did not explain this conclusion, presumably the defendant assured the court that it would not use any documents from the supplemental production to advance its positions.

Although the previously frightening specter of a subject matter waiver has receded, litigants deliberately disclosing privileged communications must hope that a sophisticated court will limit the waiver to the appropriately narrow subject matter.

Case Date Jurisidction State Cite Checked
2016-04-25 Federal NY
Comment:

key case


Chapter: 31.402

Case Name: Ingenito v. Riri USA, Inc., 11-CV-2569 (MKB) (RLM), 2015 U.S. Dist. LEXIS 171728 (E.D.N.Y. Dec. 22, 2015)
(analyzing the scope of privilege waiver based on the defendant's termination of the plaintiff in defending against a pregnancy discrimination case; concluding defendant's production in discovery rather than use at trial limited affected the subject matter waiver analysis, and that defendant could waive the privilege as it related to the timing of plaintiff's termination rather than the reason for the termination, by disclosing documents establishing the defendant had resolved to terminate the plaintiff before knowing she was pregnant; "'Riri SA has not placed information from a privileged communication before a factfinder; the Supplemental Production was made in the context of discovery, not as 'an assertion of fact to influence the decisionmaker.'. . . This consideration further weighs against a finding of prejudice or unfairness to Plaintiff.'").

Case Date Jurisidction State Cite Checked
2015-12-22 Federal NY

Chapter: 31.402

Case Name: Ingenito v. Riri USA, Inc., 11-CV-2569 (MKB) (RLM), 2015 U.S. Dist. LEXIS 171728 (E.D.N.Y. Dec. 22, 2015)
(analyzing the scope of privilege waiver based on the defendant's termination of the plaintiff in defending against a pregnancy discrimination case; concluding defendant's production in discovery rather than use at trial limited affected the subject matter waiver analysis, and that defendant could waive the privilege as it related to the timing of plaintiff's termination rather than the reason for the termination, by disclosing documents establishing the defendant had resolved to terminate the plaintiff before knowing she was pregnant; "Where a court determines a party has implicitly waived attorney-client privilege, similar fairness considerations limit the scope of that waiver to the subject matter of the disclosed communication."; "Riri SA states that it produced the December 10, 2009 Email and the December 14, 2009 Email in its Initial Production to establish the timing of Howell's decision to terminate Plaintiff and concedes that, in so doing, it selectively waived attorney-client privilege as to that issue. . . . Judge Mann determined that the Initial Production therefore triggered Riri SA's obligation to disclose all privileged communications regarding the timing of Plaintiff's termination. . . . Such a waiver is exactly the type that fairness considerations require, as it prevents Defendants from using privileged materials to attempt to bolster their defense while preventing Plaintiff from countering the assertion by blocking 'access to privileged material potentially capable of rebutting the assertion.' In re Cty. Of Erie, 546 F.3d at 229. According to Riri SA, it has produced all emails related to the timing of Plaintiff's termination.").

Case Date Jurisidction State Cite Checked
2015-12-22 Federal NY

Chapter: 31.402

Case Name: American Plastics Technologies, Inc. v. Dymond Pharmcare Industries, Ltd., No. 10 C 6832, 2015 U.S. Dist. LEXIS 162716 (N.D. Ill. Dec. 4, 2015)
(analyzing the scope of privilege waiver; "Defendants here have done more than merely raise a defense. They have specifically described the advice given by their attorney and disclosed specific communications with that attorney in an attempt to (a) prove their lack of fault in any delay in complying with this Court's orders, (b) shift any blame to their attorney, and © dispute her right to fees. . . . By doing so, they waived the privilege over not just the specific communications they have disclosed, but also on the broader topic of their reliance on Ekechukwu's advice regarding the retention of counsel in the Nigeria Case. The emails Ekechukwu disclosed related to that subject, and were used to dispute Defendants' affirmative allegations; namely, that Ekechukwu gave incompetent advice and they followed it. 'When either party to the attorney-client relationship alleges a breach of duty by the other, the privilege is waived as to communications between the disputing parties.'").

Case Date Jurisidction State Cite Checked
2015-12-04 Federal IL

Chapter: 31.402

Case Name: Telamon Corp. v. Charter Oak Fire Ins. Co., Case No. 1:13-cv-00382-RLY-DML, 2014 U.S. Dist. LEXIS 6583, at *12, *13-14, *14 n.1 (S.D. Ind. Jan. 17, 2014)
(finding that an internal corporate investigation conducted by Barnes & Thornburg into possible theft of inventory did not deserve privilege or work product protection; addressing these issues in a first party insurance case, in which the defendant insurance company sought documents from the investigation company Chamberlain; finding attorney-client privilege protection inapplicable; "The court's in camera examination reveals that nearly all of Chamberlain's file materials could not be classified as privileged attorney-client communications because they are public records or Telamon's business records. The gathering of public and business records by an investigator, or the funneling of business documents through one's attorney's office (or through one's fraud investigator), does not make those documents privileged."; "[S]ome of the communications obviously were not made to obtain legal advice, were not maintained in confidence, or were not even intended as a confidential communication in the first place. For example, the communications include (a) an email chain sent by the lawyers to Chamberlain lauding its reputation as a fraud investigator; (b) emails to set up meetings; and (c) emails that do not involve counsel at all or any bona fide connection to legal advice. . . . [D]documents within Chamberlain's file reveal that Chamberlain's investigatory work was not inextricable from Barnes & Thornburg's provision of legal advice and that its work was conducted because Telamon had a pressing business reason to uncover what it believed was large-scale inventory fraud by one of its workers. Documents indicate that the use of Barnes & Thornburg as the nominee client to Chamberlain was for the purpose of attempting to shield Chamberlain's work as privileged. It is apparent, however, that Barnes & Thornburg did not in fact direct this investigation, but that Chamberlain designed the investigation and determined the records to gather and review, the persons to interview, the questions to be asked, and the manner of interrogation."; "Moreover, waiver principles would prevent the assertion of the privilege as to the majority of the Chamberlain investigative file. Telamon provided to the insurers a preliminary investigative report prepared by Chamberlain that it otherwise asserts was a privileged communication. That report summarizes 'key' interviews and documents. When the privilege is waived as to an attorney-client communication, the waiver extends to all communications on the same subject matter. . . . The subject matter of the preliminary report is the investigative work conducted by Chamberlain. By producing the preliminary report (apparently for the purpose of proving its insurance claim and the losses suffered), Telamon waived the privilege with respect to the documents in the investigative file that are the 'nuts and bolts' source documents of Chamberlain's work, including the interview summaries, document analyses, and investigative background summaries.")

Case Date Jurisidction State Cite Checked
2014-01-17 Federal IN B 6/14

Chapter: 31.402

Case Name: Theranos, Inc. v. Fuisz Techs., Ltd., Case No. C 11-5236 PSG, 2013 U.S. Dist. LEXIS 70564, at *16, *17 (N.D. Cal. May 16, 2013)
("The court also rejects Fuisz Technologies' argument that the waiver should be limited to the time period prior to the filing of the nonprovisional application. Through its disclosure of the documents in this litigation, Fuisz Technologies has put at issue that communications between Fuisz [defendant's founder] and ATSK [defendant's lawyers] provide evidence that he and the company did not engage in the conduct of which Theranos accuses them. Those communications continued long past the filing of the provisional patent, and so Theranos should have the opportunity to consider the rest of the communications to test whether they provide the evidence Fuisz Technologies asserts."; "Fuisz offered the documents to show that he had not engaged in using Theranos' confidential information when he invented the '612 Patent. The prosecution of the '612 Patent, especially given Fuisz's admissions of the closeness of that invention to the Theranos patents, would give further context to the disclosed emails and therefore fall within the subject matter that in fairness ought to be disclosed to Theranos.")

Case Date Jurisidction State Cite Checked
2013-05-16 Federal CA B 3/14

Chapter: 31.402

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 55877, at *24-25 (S.D.N.Y. Apr. 12, 2013)
("Magistrate Judge Francis held that all of the documents listed on Garr's [former intern for defendant] and Kohn's [third party] privilege logs were within Donziger's control and thus subject to his waiver. The LAP [Ecuadorean plaintiffs in underlying trial] Representatives objected to Magistrate Judge Francis' holding on the ground that it 'broadened the scope of that purported waiver so as to reach Donziger's former co-counsel. . . and a former intern, [neither] of whom had any part in any activities that this Court would deem an implied waiver.' This contention is not meritorious.")

Case Date Jurisidction State Cite Checked
2013-04-12 Federal NY B 3/14

Chapter: 31.402

Case Name: City of Capitola v. Lexington Ins. Co., Case No. 12-3428 LHK (PSG), 2013 U.S. Dist. LEXIS 34900, at *5-6 (N.D. Cal. Mar. 13, 2013)
(analyzing a first party insurance issue; ultimately applying Rule 502 to pre-litigation disclosures; "Although Fed. R. Evid. 502(a) does not apply because the disclosure occurred prior to the initiation of the suit, its methodology for determining the scope of waiver is instructive. Here, Capitola intentionally shared the May 31 and the October 24 letters. Those letters cover the same subject matter as the files Capitola intends to withhold, namely URS's investigation. Based on Capitola's attempt selectively to use URS's [defendant's consultant) investigation to its benefit, in fairness Lexington ought to have access to the withheld documents.")

Case Date Jurisidction State Cite Checked
2013-03-13 Federal CA B 3/14

Chapter: 31.402

Case Name: Hopovac v. Tyson Fresh Meats, Inc., No. C11-2070, 2013 U.S. Dist. LEXIS 3508, at *6-7 (N.D. Iowa Jan. 7, 2013)
(finding that an employee waived the attorney-client privilege protection for communications with her lawyer, by advising her doctor that her lawyer told her she could not return to work; "Hopovac's workers' compensation attorney apparently told her that she 'could no longer return to work,' or that she 'may not return to work.' By disclosing the fact that her attorney had told her she could not return to work to a third party, Hopovac waived her attorney/client privilege regarding that communication. . . . Accordingly, Hopovac must respond to questions regarding the subject matter of that communication. . . . That is, Hopovac must respond to questions regarding her attorney's statement that she could no longer return to work or may not return to work. Tyson's motion to compel will be granted to that extent." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-01-07 Federal IA B 7/13

Chapter: 31.402

Case Name: Columbia Data Prods., Inc. v. Autonomy Corp. Ltd., Civ. A. No. 11 12077 NMG, 2012 U.S. Dist. LEXIS 175920, at *49 (D. Mass. Dec. 12, 2012)
(concluding that an audit prepared by PWC for plaintiff CDP did not deserve privilege or work product protection, although CDP's law firm Greenberg Traurig retained PWC; "There is no dispute in this matter that CDP waived any protection over PWC's interim audit report by disclosing the report to the defendants. Nor can there be any dispute that CDP put the audit report directly at issue in the litigation by relying on data and interviews conducted by PWC in support of its breach of contract and 93A claims, by seeking over $23 million in damages based on the conclusions reached by PWC in that report, and by seeking to hold the defendants liable for the cost of the audit pursuant to the terms of the Licensing Agreement. At issue is whether CDP's conduct resulted in an implied waiver of all documents and communications relating to PWC's audit.")

Case Date Jurisidction State Cite Checked
2012-12-12 Federal MA B 9/13
Comment:

key case


Chapter: 31.402

Case Name: Mills v. State of Iowa, No. 3:10-cv-112-RP-RAW, 2012 U.S. Dist. LEXIS 127761 (S.D. Iowa Aug. 28, 2012)
(holding that a university's Board of Regents decided to waive the privilege, which triggered a subject matter waiver; "The Board intended to waive any attorney-client privilege or work-product protection which might have pertained to the content of the Stolar [Law firm] report and notes, by clear implication as to the report and expressly as to the notes. By producing its notes Stolar also waived any independent work-product objection it might have had to disclosure of the notes. The questions at this point are whether these waivers have resulted in a subject matter waiver with respect to Stolar's investigation and if so, the scope of the waiver."; "There is no reason to believe the State defendants or Stolar have sought to mislead or secure unfair advantage by waiving privilege and protection for the Stolar report and notes while objecting to a broader disclosure. There is not much case law on Rule 502, but one court has observed the Advisory Committee notes should not be taken to mean that in addition to a waiver being intentional, it must also be made 'in a selective, misleading and unfair manner' for a subject matter waiver to result."; "For two reasons the Court believes fairness dictates that what passed between Board members or staff and Stolar between the July 22, 2008 Board meeting and the September 18, 2008 Board meeting concerning the scope, conduct, and subject to the investigation should be disclosed under a limited subject matter waiver. First, such disclosure is consistent with the announced purpose of the intentional waiver pertaining to the Stolar report and notes – to be completely open and transparent about the conduct of the investigation and its independence. Second, though the Committee, through Ms. Campbell, has disclaimed any influence on the content or outcome of the investigation, the Committee did provide information to Stolar during the investigation and Stolar updated the Committee weekly on its work. Frequent communication and exchange of information affords an opportunity for influence, even unintended, which disclosure may rule out or support. Mr. Mills was fired as a result of the findings and conclusions in the Stolar report. He alleges these were in material respects untrue and defamatory; that he was a scapegoat. The integrity of the report is thus in issue. With the report and investigative notes in the domain of the case, Mr. Mills is entitled to discover the complete picture of what Stolar may have learned from the Board during the investigation."; "The Court will grant the motion to compel the disclosure of undisclosed communications and information that passed between any member of the Board or its staff and the Stolar firm from July 22, 2008 to September 18, 2008 which relate or refer to the following: (1) the purposes, scope, or direction of the investigation; (2) information provided or requested pertaining to the subject matter of the investigation; (3) the identification of persons who were involved in the subject matter of the investigation and any information concerning their involvement including specifically any mention of Mr. Mills; (4) any kind of assistance in the conduct of the investigation; or (5) the progress of the investigation including specifically progress reports.")

Case Date Jurisidction State Cite Checked
2012-08-28 Federal IA

Chapter: 31.402

Case Name: Mills v. Iowa, 285 F.R.D. 411, 417 (S.D. Iowa 2012)
(analyzing the waiver implication of a state university's disclosure of an investigative report and investigation notes following an internal investigation in an alleged sexual assault; "With the report and investigative notes in the domain of the case, Mr. Mills is entitled to discover the complete picture of what Stolar may have learned from the Board during the investigation."; "The Court will grant the motion to compel the disclosure of undisclosed communications and information that passed between any member of the Board or its staff and the Stolar firm from July 22, 2008 to September 18, 2008 which relate or refer to the following: (1) the purposes, scope, or direction of the investigation; (2) information provided or requested pertaining to the subject matter of the investigation; (3) the identification of persons who were involved in the subject matter of the investigation and any information concerning their involvement including specifically any mention of Mr. Mills; (4) any kind of assistance in the conduct of the investigation; or (5) the progress of the investigation including specifically progress reports.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal IA

Chapter: 31.402

Case Name: QBE Ins. Corp. v. Jorda Enters., Inc., 286 F.R.D. 661, 666 (S.D. Fla. 2012)
(holding that a litigant cannot rely on privileged documents filed in camera to avoid Rule 11 sanctions without producing them to the adversary; "As a general rule, the smaller the amount of privileged information disclosed, the narrower the scope of the waiver. Thus, if QBE opts to elicit privileged information from many of its attorneys and to introduce into evidence reports and comprehensive memoranda, then it is likely that the waiver will be substantial. On the other hand, if it discloses only one, two-sentence email and no further privileged documents or testimony, then the subject matter may well be narrow and discrete. The Undersigned cannot pinpoint the scope of the waiver until events unfold at the evidentiary hearing.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal FL
Comment:

key case


Chapter: 31.402

Case Name: Diesel Mach., Inc. v. Manitowoc Crane Grp., No. CIV. 09-4087, 2010 U.S. Dist. LEXIS 115625, at *8 9, *11 (D.S.D. Oct. 28, 2010)
(holding that a company could not allow its in house lawyer to testify about pre litigation facts, but withhold testimony about post litigation facts, because some of the pertinent events occurred after the litigation began; "The problem is this: DMI sued Manitowoc two days after receiving Manitowoc's notice of termination. But it was not until about three months later, after suit was started, that Manitowoc rescinded its notice of termination. Manitowoc desires to introduce attorney client evidence about its notice of termination before suit while at the same time Manitowoc desires to protect from disclosure its attorney client evidence about rescinding notice after suit. Something relevant happened between the notice of termination and the notice of rescinding termination. During that same time the lawsuit was pending. The strategy about defending the lawsuit and the strategy about rescinding the termination are surely so inextricably entwined that the strategies cannot be separated. And that same post-lawsuit attorney client or work product evidence is surely directly related to the pre lawsuit, pre termination attorney client or work product evidence. So, if the privileges are waived for pre litigation purposes, the waiver cannot exclude the post litigation strategy which is directly related. And of course some of the post[-]litigation strategy occurred before the notice to rescind termination and is inextricably entwined."(footnote omitted); "Manitowoc has not yet waived the attorney client privilege for Mark Klaiber. Manitowoc is asking for the court's blessing to limit waiver of the attorney client privilege to Mark Klaiber only, and only to documents authored by him only for the period before litigation was commenced, i.e. so that Mark Klaiber can testify about the reasons for the termination notice but not about the reasons for withdrawing the termination notice. Manitowoc's request cannot be granted because it appears the post litigation legal advice given by Mark Klaiber is directly related to his pre litigation advice. Manitowoc has a choice to make: either to waive the privilege for all of Mark Klaiber's legal advice to Manitowoc about the termination of DMI's dealership franchise, or none of it. Manitowoc's motion for a protective order to limit the proposed waiver of attorney client evidence from Mark Klaiber is DENIED." (footnote omitted))

Case Date Jurisidction State Cite Checked
2010-10-28 Federal SD

Chapter: 31.402

Case Name: SEC v. Brady, 238 F.R.D. 429, 2006 U.S. Dist. LEXIS 74979, Civ. A. No. 3:05-CV-1416-M, 67 Fed. R. Serv. 3d (Callaghan) 26 (N.D. Tex. Oct. 16, 2006)
(analyzing attorney-client privilege and work product issues in an action by the SEC against a former corporate officer, who sought discovery of his former company's investigation into improper accounting and revenue recognition; explaining that the company's Audit Committee hired the law firm of Baker Botts to conduct an internal investigation with the assistance of KPMG, after which Baker Botts met with the company's new auditor Deloitte; holding that the company and Baker Botts waived privilege protection by disclosing the investigation results to the SEC, and therefore could not withhold them from the former officer; "Brady [former officer] asserts that materials related to the Phase II investigation were provided to the SEC, thereby waiving the attorney-client privilege as to Categories 5 and 6. . . . With regard to the Phase II materials, i2 and Baker Botts concede that they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning Phase II, in addition to interview observations and summaries, exhibits used during witness interviews, and other documents uncovered during its Phase II investigation. Indeed, they state that pursuant to a confidentiality agreement with Brady, he will receive all of the materials presented to the SEC. . . . i2 and Baker Botts contend that despite the disclosure of Phase II materials to the SEC, they did not waive the attorney-client privilege; however, to the extent they have waived attorney-client privilege, they urge the court to adopt the Eighth Circuit's selective waiver doctrine."; "As noted, the Fifth Circuit has yet to adopt the selective waiver doctrine. Moreover, this court is persuaded by the reasoning of the great weight of authority which has declined to adopt the selective waiver doctrine. Therefore, the court finds that i2 and Baker Botts waived the attorney-client privilege as to Categories 5 and 6 by disclosing Phase II privileged information to a third-party."; finding a subject matter waiver; "Brady argues that i2 and Baker Botts' waiver of attorney-client privilege as to the Phase I Report and the Phase II investigation extends to the entire subject matter related to the disclosures."; "The disclosure of any significant portion of a confidential communication waives the privilege as to the whole.'. . . Moreover, waiver of an attorney-client communication waives the privilege as to all other communications relating to the same subject matter. . . . Here, Brady disclosed the Phase I Report, which summed up Baker Botts' entire Phase I investigation, to Deloitte and Touche. Additionally, they disclosed to the SEC the same oral report and power point presentation given to the Audit Committee concerning the ultimate findings of Phase II, interview observations and summaries, and exhibits used during witness interviews. Based on that evidence, the court finds that these disclosures amount to a significant portion of attorney-client privileged information, and thus, the waiver of attorney-client privilege extends to all responsive documents relating to the Phase I and Phase II subject matter. Accordingly, the attorney-client privilege has been waived as to all documents responsive to Categories 3, 4, 5, and 6.")

Case Date Jurisidction State Cite Checked
2006-10-16 Federal TX
Comment:

key case


Chapter: 31.402

Case Name: Ziemack v. Centel Corporation, No. 92 C 3551, 1995 U.S. Dist. LEXIS 6942 (N.D. Ill. May 19, 1995)
(noting that defendant voluntarily waived privilege protection for certain documents, but could not narrowly define the scope of the waiver; "[O]n January 11, 1995, Defendants informed Plaintiffs of their waiver of the attorney-client privilege with respect to the SAP, and their intention to produce those documents for the date between January 23, 1992 and May 27, 1992 (the class period)."; "Defendants' unduly limited definition of, and time frame for, the SAP are untenable. The class period dates dictate neither the duration of the SAP nor the permissible dates of discovery. It seems extremely unlikely that there was absolutely no discussion of the SAP before or after the class period. Defendants would apparently have this Court believe that Centel announced its intention to explore strategic alternatives which would maximize shareholder value, including the possible sale of the company, without previously analyzing or discussing the consequences of that announcement. To accept such an assertion would strain credulity. In fact, Plaintiffs refer to several documents, including documents from August 1991, which illustrate that the SAP occurred much earlier than the beginning of the class period. . . . Moreover, the merger was not 'finalized' by shareholder vote and 'closed' under the merger agreement until March 8, 1993. Although it seems unlikely that copious discussion about alternatives ensued once the merger was announced, there may have been discussions concerning contingency plans, in the event that the merger failed."; "Defendants observe that '[a] clear cut-off date for [Defendants'] waiver is desirable.' Nye, 98 F.R.D. at 454. This court agrees and finds that the end of the (SAP related) waiver is the finalization date of the merger, March 8, 1993.")

Case Date Jurisidction State Cite Checked
1995-05-19 Federal IL
Comment:

key case


Chapter: 31.402

Case Name: In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987)
August 23, 2017 (PRIVILEGE POINT)

"Drawing the Line Between Waiver and Non-Waiver: Part III"

The last two Privilege Points described decisions in which courts found a subject matter waiver when (1) a business executive described his future intended conduct, explicitly attributing it to his lawyers' advice (Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, No. 650868/2015, 2017 NY Slip Op. 31216(U) (N.Y. Sup. Ct. June 5, 2017)); and (2) a business executive described his past conduct, explicitly attributing it to a lawyer's earlier sexual harassment investigation and report (Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)). Both courts' subject matter waiver conclusions seem out of the mainstream.

In Siras Partners, the executive's disclosure was in a non-judicial setting. Most courts hold that non-judicial disclosures do not trigger subject matter waivers. In re von Bulow, 828 F. 2d 94, 102 (2d Cir. 1987) ("the extrajudicial disclosure of an attorney-client communication – one not subsequently used by the client in a judicial proceeding to his adversary's prejudice – does not waive the privilege as to the undisclosed portions of the communication"). Federal Rule of Evidence 502 adopts the same narrow approach. In Smith, the executive testified in a deposition about his lawyer's advice. Many if not most courts hold that such deposition testimony does not trigger a subject matter waiver, as long as the deponent disclaims any intent to later rely on the testimony to gain some litigation advantage. The legislative history of Rule 502 explains that subject matter waivers are "limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner" to "mislead the fact finder to the disadvantage of the other party." Fed. R. Evid. 502 advisory committee’s note, subdiv. (a); 154 Cong. Rec. H7817, H7819 (daily ed. Sept. 8, 2008).

Corporations and their executives should not count on courts properly applying the subject matter waiver doctrine. Instead, they should seek to avoid ever waiving privilege protection, thus eliminating the risk that courts will stretch the waiver too far.

Case Date Jurisidction State Cite Checked
1987-01-01 Federal
Comment:

key case


Chapter: 31.402

Case Name: United States v. Jones, No. 82-5209, 1982 U.S. App. LEXIS 23313 (4th Cir. App. Dec. 14, 1982)
(holding that a company's inclusion of a legal opinion in a brochure released to the public triggered a subject matter waiver; "Assuming . . . that the attorney-client privilege applies to the subpoenaed documents and testimony, the privilege was nevertheless waived by the appellants. The success of appellants' business venture depended upon convincing potential investors that purported tax benefits existed in fact, and this rested on interpretation of the tax laws. The appellants not only obtained the tax law opinions for the ultimate use of persons other than themselves, but also publicized portions of the legal opinions in brochures and other printed material. They cannot now assert a right to quash the subpoenas (1) to block the grand jury's access to documents substantial portions of which the appellants have published to the public at large, or (2) to prevent the revelation of the factual communications between the appellants and their attorneys underlying the published opinion letters.")

Case Date Jurisidction State Cite Checked
1982-12-14 Federal
Comment:

key case


Chapter: 31.403

Case Name: In re Alcon Laboratories, Inc., 2018-115 (U.S. App. Feb. 14, 2018)
(holding that defendant's advice of counsel defense in a patent case triggered a subject matter waiver; "Alcon has designated their former in-house counsel as the only trial witness as to its mental state. The court discerns no clear abuse of discretion or otherwise manifest injustice in the trial court's exercise of its discretion in this situation. Additionally, while Alcon states that the order 'could encompass' documents relating to: 'the merits of Alcon's litigation defenses as assessed by in-house counsel; litigation strategy and reasons for pursuing some theories more heavily than others; settlement assessments and internal settlement authorization requests from management; case budget rationales; consultation with specialty counsel in other fields (e.g., regulatory, antitrust); and evaluations assessing situations outside the scope of this lawsuit, e.g., the impact of presenting a given theory on other cases that may involve the company; future licensing efforts for other patents,' Alcon has neither specifically identified nor produced any such documents to the district court or this court for in camera review.")

Case Date Jurisidction State Cite Checked
2018-02-14 Federal

Chapter: 31.403

Case Name: Sprint Communications Co., L.P. v. Comcast Cable Communications, LLC, Case No. 11-2684-JWL, 2017 U.S. Dist. LEXIS 26271 (D. Kan. Feb. 23, 2017)
("A party waives the attorney-client privilege if it discloses the substance of an otherwise-privileged communication. Comcast makes no serious argument that it did not waive privilege by its January 2017 production or by allowing Finnegan's recent testimony. Comcast does note that the judge in the Pennsylvania case affirmatively determined that he need not -- and did not -- decide the question of waiver, but that fact has no bearing on the waiver question which has now come before this court."; "Sprint also argues Finnegan's recent deposition testimony concerning Comcast's due diligence in acquiring defensive patents revealed attorney-client communications. Comcast (again) does not address this assertion in its response brief. The court agrees with Sprint."; "The court has little trouble concluding Comcast's recent disclosure of information in the Pennsylvania case waived the attorney-client privilege. Perhaps the more significant question, however, is the scope of the waiver. Sprint asserts the disclosures waive privilege for all 'information concerning the same subject matter.' Specifically, Sprint argues Comcast must produce all documents it possesses that (1) mention Sprint and concern 'Comcast's patent acquisition[s],' or (2) reflect 'the timing and nature of any Comcast employee's belief that Comcast was preparing for or otherwise anticipated litigation with Sprint.'"; "Comcast has asserted privilege over information on the same subjects, during both depositions and discovery responses. Fairness requires Comcast to disclose all documents on these two subjects 'in order to prevent a selective and misleading presentation of evidence' in this case."; "The court therefore concludes Comcast waived privilege over, and must immediately produce, unredacted copies of all documents not previously produced that (1) mention Sprint and also Comcast's patent acquisitions or (2) reflect the timing and nature of any Comcast employee's belief that Comcast was preparing for or otherwise anticipated litigation with Sprint. As earlier indicated, Sprint has asked that such documents be produced to the court for in camera review. But as Comcast notes, caselaw requires the court to 'have some bases or grounds for conducting an in camera review.' Although the decision to review documents in camera is within the court's sound discretion, such review is not 'to be routinely undertaken.' The court finds no basis on which to conduct an in camera review over all the documents affected by Comcast's subject-matter waiver. Thus, at this time (though without foreclosing the future possibility if issues arise as to specific documents), the court declines to review any documents in camera.")

Case Date Jurisidction State Cite Checked
2017-02-23 Federal KS

Chapter: 31.403

Case Name: Cave Consulting Group, Inc. v. OptumInsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 179966 (N.D. Cal. Dec. 29, 2016)
("Symmetry's attorney-client privilege is waived as to communications pertaining to: (1) the conception date of the ETG software and the '897 patent; (2) the first sale of the ETG software; (3) the effect of that sale on the '897 patent; (4) Aetna's request for proposal and Symmetry's response thereto; (5) the confidentiality of Symmetry's communications with Aetna; (6) capabilities of the ETG software at the time of the RFP and response, and (7) bars to patentability of the '897 patent based on Symmetry's communications with or disclosures to Aetna. In order to allow OptumInsight to fairly and effectively defend itself in the present action, the Court finds that communications and materials generated after April 28, 2014 -- the date claims based on the '897 patent were dismissed from the Cave I litigation -- fall outside the scope of the waiver. See Fed. R. Evid. 502(a)(3) (limiting waiver to documents that 'ought in fairness be considered together').")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal CA

Chapter: 31.403

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

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

Chapter: 31.403

Case Name: The Hawk Mountain LLC v. Mirra, Civ. A. No. 13-2083-SLR-SRF, 2016 U.S. Dist. LEXIS 20232 (D. Del. Feb. 19, 2016)
(finding a broad subject matter waiver based on a criminal defendant's disclosure of legal advice she had received; "In the present case, Jordan intentionally filed the Woodhouse Affidavit in her state court criminal proceeding in support of her motion for bail. The Woodhouse Affidavit is a factual summary of the advice provided by Woodhouse to Jordan in 2009 and 2010 in Woodhouse's capacity as Jordan's attorney. The case law supports a subject matter waiver under such circumstances. '[C]alling one's attorney as a fact witness in a prior proceeding constitutes a waiver of the attorney-client privilege, at least regarding the subject of the testimony adduced in the prior proceeding." U.S. v. Titchell, 261 F.3d 348, 352 (3d Cir. 2001). The information that the RAM Defendants intend to pursue during Woodhouse's deposition relates to the same subject matter as the Woodhouse Affidavit. Jordan cannot fairly use Woodhouse's characterizations of her legal advice in support of her motion for bail while shielding further exploration of the nature of that advice during her deposition under the guise of the attorney-client privilege."; "The subject matter waiver is limited to the concerns expressed by Jordan that Mirra had committed fraud against her and intended to have her harmed, and that Jordan wanted to cease relying on Mirra and his associates for help with financial services.")

Case Date Jurisidction State Cite Checked
2016-02-19 Federal DE

Chapter: 31.403

Case Name: Trustees of Boston University v. Everlight Electronics Co., Ltd., Consolidated Civ. A. No. 12-11935-PBS, Civ. A. No. 12-12326-PBS, Civ. A. No. 12-12330-PBS, 2015 U.S. Dist. LEXIS 68281 (D. Mass. May 27, 2015)
("The fairness concerns that might require an implied subject-matter waiver over all communications between Finnegan and Epistar relating to invalidity or infringement of the '738 patent are not present her. In particular, Epistar has recently decided not to make communications with Finnegan an issue in this case. Nor is it trying to benefit from the disclosure by, for example, using it as part of an advice-of-counsel defense. . . . Epistar referred to Finnegan's non-infringement opinion as a reason not to allow BU's motion to add a willful infringement claim to its complaint. But Epistar has now decided that it will not be raising an advice-of-counsel defense at summary judgment or at trial. . . . As a result, at this time the Court does not compel the production of all attorney-client communications between Epistar and Finnegan regarding the '738 patent. Instead, the Court merely compels Epistar to disclose all attorney-client communications relating to the non-infringement opinion provided by Finnegan in 2007. In all other respects, BU's objection to the magistrate judge's order is overruled.")

Case Date Jurisidction State Cite Checked
2015-05-27 Federal MA

Chapter: 31.403

Case Name: Cormack v. United States, No. 13-232C, 2014 U.S. Claims LEXIS 828 (Fed Cl. Aug. 21, 2014)
(in a patent case, analyzing the subject matter waiver doctrine; "The scope of the subject matter of a waiver is not defined by a bright line test; rather, courts must weigh (1) 'the circumstances of the disclosure,' (2) 'the nature of the legal advice sought,' and (3) 'the prejudice to the parties of permitting or prohibiting further disclosures.'. . . In particular, courts are concerned with basic notions of fairness, aiming to prevent a party from disclosing communications supporting its position while simultaneously withholding communications that do not.")

Case Date Jurisidction State Cite Checked
2014-08-21 Federal Other

Chapter: 31.403

Case Name: Cormack v. United States, No. 13-232C, 2014 U.S. Claims LEXIS 828 (Fed Cl. Aug. 21, 2014)
(in a patent case, analyzing the subject matter waiver doctrine; "Courts in patent cases have defined subject matter to require disclosure of all communications specific to certain statutory requirements for patentability.")

Case Date Jurisidction State Cite Checked
2014-08-21 Federal Other

Chapter: 31.403

Case Name: Cormack v. United States, No. 13-232C, 2014 U.S. Claims LEXIS 828 (Fed Cl. Aug. 21, 2014)
(in a patent case, analyzing the subject matter waiver doctrine; "[T]here is no basis to extend a pre-filing waiver respecting these three issues to the entirety of patent prosecution.")

Case Date Jurisidction State Cite Checked
2014-08-21 Federal Other

Chapter: 31.403

Case Name: Cormack v. United States, No. 13-232C, 2014 U.S. Claims LEXIS 828 (Fed Cl. Aug. 21, 2014)
(in a patent case, analyzing the subject matter waiver doctrine; "Contrary to Northrop Grumman Systems's assertions, temporal considerations can come into play. In a number of patent cases, courts have determined that the filing date of the patent application denotes 'a fundamental divide between patent drafting and patent prosecution that cannot reasonably be bridged by the extension of a waiver,' absent additional facts.")

Case Date Jurisidction State Cite Checked
2014-08-21 Federal Other

Chapter: 31.403

Case Name: Cormack v. United States, No. 13-232C, 2014 U.S. Claims LEXIS 828 (Fed Cl. Aug. 21, 2014)
(in a patent case, analyzing the subject matter waiver doctrine; "As a general matter, the court agrees with the analyses in Phoenix Solutions [Phoenix Solutions, Inc. v. Wells Fargo Bank, N.A., 254 F.R.D. 568 (N.D. Cal. 2008)] and Verinata Health [Verinata Health, Inc. v. Sequenom, Inc., No. C 12-00865 SI, 2014 U.S. Dist. LEXIS 115448, 2014 WL 4076319 (N.D. Cal. Aug. 18, 2014)] that activities prior to filing a patent application, e.g., patent drafting, are fundamentally different from activities after the application is filed, i.e., patent prosecution. . . . The court finds Mr. Cormack's privilege waiver to apply to communications related to the date of conception, date of reduction to practice, and due diligence, generated both before and after the filing of the patent application. In other respects, the filing of the application limits Mr. Cormack's waiver, and he has no obligation to produce documents and communications attendant to patent prosecution regarding other topics . . . .")

Case Date Jurisidction State Cite Checked
2014-08-21 Federal Other

Chapter: 31.403

Case Name: Verinata Health, Inc. v. Sequenom, Inc., No. C 12-00865 SI, 2014 U.S. Dist. LEXIS 115448 (N.D. Cal. Aug. 18, 2014)
(in a patent case, finding that an intentional disclosure resulted in a waiver, and analyzing the scope of the waiver; "[T]he Court concludes that the appropriate subject matter of the waiver is any drafts of the patent applications at issue in Interference No. 105,923 and any pre-filing communications related to (1) the drafting of the patent applications, (2) the prior art discussed in the Lo Email or its attachment, and/or (3) strategies for filing the applications. But, the waiver does not extend to the portions of the documents that contain any draft claims or to any post-filing privileged communications."; "[T]he Court concludes that 'fairness' requires that Sequenom produce any allegedly privileged drafts of the patent applications at issue in Interference No. 105,923 and any allegedly privileged pre-filing communications related to (1) the drafting of the patent applications, (2) the prior art discussed in the Lo Email or its attachment, and/or (3) strategies for filing the applications.")

Case Date Jurisidction State Cite Checked
2014-08-18 Federal CA

Chapter: 31.403

Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 99257 (D. Kan. July 22, 2014)
(finding a narrow scope of waiver after an intentionally expressed waiver at trial; "The Court concludes that in one instance, Sprint did disclose the substance of a privileged communication between attorney and client. In the Vonage trial, Sprint's trial attorney stated in opening statement that Sprint believed that Vonage had infringed 43 patents, a Sprint attorney had an outside law firm look at the issue, the law firm 'agreed,' and Sprint then contacted Vonage and accused it of infringement. By this statement, Sprint disclosed the substance of legal advice received from an outside law firm, namely that outside counsel agreed that Vonage had infringed."; "[T]he Court concludes that Sprint should be deemed to have waived the attorney-client privilege with respect to the specific subject of the advice received by Sprint from the law firm concerning whether Vonage had infringed Sprint's patents. There is no basis to extend the scope of the waiver to the broader subject of Sprint's actions generally to investigate possible infringement by Vonage.")

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

Chapter: 31.403

Case Name: Howmedica Osteonics Corp. v. Depuy Orthopaedics, Inc., Civ. A. No. 11-CV-6498 (Consol.) (SDW) (MCA), 2014 U.S. Dist. LEXIS 11428, at *7 (D.N.J. Jan. 30, 2014)
(analyzing the waiver impact of a patent litigant disclosing privileged communications; finding a broad subject matter waiver; "[T]his Court finds that the attorney-client privilege waiver applies to all communications -- written and non-written -- and not just documents."; analyzing the temporal scope of the subject matter waiver)

Case Date Jurisidction State Cite Checked
2014-01-30 Federal NJ B 7/14

Chapter: 31.403

Case Name: City of Glendale v. Nat'l Union Fire Ins. Co., No. CV-12-380-PHX-BSB, 2013 U.S. Dist. LEXIS 60711, at *61 (D. Ariz. Apr. 29, 2013)
("[T]he Court concludes that Rule 502 does not supplant EchoStar [In re EchoStar, 448 F.3d 1294 (Fed. Cir. 2006)] and the case law addressing the waiver of the attorney-client privilege when a party asserts an advice-of-counsel defense.")

Case Date Jurisidction State Cite Checked
2013-04-29 Federal AZ B 7/13

Chapter: 31.403

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 903, 904 & n.61 (N.D. Ill. 2013)