Showing 158 of 158 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: 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: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017)
(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.'")

Case Date Jurisidction State Cite Checked
2017-06-05 State NY
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: 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: 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: 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: 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: 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, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017)
(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.'")

Case Date Jurisidction State Cite Checked
2017-06-05 State 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)
("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: 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: 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: 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)
("Whether a party disclosed information in order to gain a tactical advantage in litigation may inform a fairness determination."; "TMC's [plaintiff] disclosure constitutes a complete subject matter waiver on the subject of Lot No. 1344985. In this case the scope of the waiver extends beyond the actual conversation disclosed in Dr. Kuzmich's [plaintiff's outside lawyer] deposition -- fairness dictates this broad scope."; "As a result of its waiver by disclosure TMC must produce: (1) privileged and non-privileged documents and items in TMC's possession mentioning, discussing, listing, or otherwise relating to Angiomax® Lot No. 1344985; and (2) privileged and non-privileged documents mentioning, reflecting, or relating to communications between Fromer [plaintiff's outside law firm] attorneys or employees and TMC mentioning, discussing, listing, or otherwise relating to Angiomax® Lot No. 1344985."; "This production is not limited to communications involving just Dr. Motheram [plaintiff's scientist] and Frommer employees -- it extends to communications relating to Lot No. 1344985 between any TMC scientist or employee and any Frommer employee or attorney.")

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

Chapter: 31.403

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 905, 907 (N.D. Ill. 2013)
(finding an implied waiver in a patent case; "TMC [plaintiff] has waived privilege through its reliance on Dr. Motheram's [plaintiff's scientist] assertion that the New Process was not followed in Lot No. 1344985 to shield it from Mylan's inequitable conduct defense."; finding a subject matter waiver; "The scope of the implied waiver is thus the same as the scope of the waiver by express disclosure of Dr. Kuzmich's [plaintiff's outside lawyer] conversation with Dr. Motheram during Dr. Kuzmich's deposition. It extends to the subject matter of Lot No. 1344985, which includes: (1) privileged and non-privileged documents and items in TMC's possession mentioning, discussing, listing, or otherwise relating to Angiomax® Lot No. 1344985; and (2) privileged and non-privileged documents mentioning, reflecting, or relating to communications between attorneys or employees of Frommer Lawerence [sic] & Haug law firm ('Frommer') and The Medicine Company mentioning, discussing, listing, or otherwise relating to Angiomax® Lot No. 1344985.")

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

Chapter: 31.403

Case Name: Lifenet, Inc. v. Musculoskeletal Transplant Found., Inc., 490 F. Supp. 2d 681, 686, 689 (E.D. Va. 2007)
("The reasoning of the EchoStar opinion, as well as the supporting citation to Akeva, indicates that the Federal Circuit would extend this waiver to all attorney/client relationships, irrespective of whether it involves trial counsel or not.")

Case Date Jurisidction State Cite Checked
2007-01-01 Federal VA

Chapter: 31.403

Case Name: Lifenet, Inc. v. Musculoskeletal Transplant Found., Inc., 490 F. Supp. 2d 681, 686, 688-89, 689 n.3 (E.D. Va. 2007)
(assessing the scope of waiver in a patent infringement case in which a party relies on advice of counsel; noting that In re Echostar, 448 F.3d 1294, 1298 (Fed. Cir. 2006) supplied the guiding principles; "Given such controlling guidance, LifeNet attempts to reach too far in seeking all documents relating to MTF's bone cleaning technology and demineralization technology and products. Instead, discovery should be limited to those documents or opinions embodying or discussing a communication to or from MTF concerning whether MTF's patents are valid, enforceable, or are otherwise infringing or potentially infringing against those of LifeNet. . . . The parties must be mindful that documents reflecting the attorney's mental impressions, but which were not given to the client, are not discoverable (because they offer no guidance into MTF's state of mind)."; noting that "[s]ubstantively, EchoStar did not address whether the advice-of-counsel waiver would extend to trial counsel"; "In the wake of EchoStar, some courts have concluded that waiver should extend to trial counsel, while other courts have disagreed; and still others have found waiver, but only on a limited basis."; adopting the "majority approach" that the waiver extends to trial counsel; "[S]uch waiver must logically also extend to legal opinions of trial counsel if there are allegations of continuing infringement. If trial counsel opined to MTF regarding its continuing alleged infringement of LifeNet's patents, then such an opinion is discoverable under EchoStar. If such an opinion contradicts the 2002 Opinion, then such evidence, if omitted from the factfinder's consideration, could be used as an impermissible sword in MTF's defense (because it could provide insight into MTF's state-of-mind regarding ongoing willful infringement, but yet would never be disclosed). If such an opinion buttresses that of the 2002 Opinion, then MTF should not fear its disclosure at this juncture of the proceedings. . . . [I]n a patent case, the party against whom waiver is sought makes the voluntary decision to rely on advice of counsel and, in making such a decision, the waiving party must assume the risk in accepting the benefit of its election."; also holding that the waiver "does not extend to 'documents analyzing the law, facts, trial strategy, and so forth that reflect the attorney's mental impressions but were not given to the client'" (citation omitted))

Case Date Jurisidction State Cite Checked
2007-01-01 Federal VA B 3/16
Comment:

key case


Chapter: 31.403

Case Name: Lifenet, Inc. v. Musculoskeletal Transplant Found., Inc., 490 F. Supp. 2d 681, 686 (E.D. Va. 2007)
("Given such controlling guidance, LifeNet attempts to reach too far in seeking all documents relating to MTF's bone cleaning technology and demineralization technology and products. Instead, discovery should be limited to those documents or opinions embodying or discussing a communication to or from MTF concerning whether MTF's patents are valid, enforceable, or are otherwise infringing or potentially infringing against those of LifeNet. . . . The parties must be mindful that documents reflecting the attorney's mental impressions, but which were not given to the client, are not discoverable (because they offer no guidance into MTF's state of mind)." (emphasis in original))

Case Date Jurisidction State Cite Checked
2007-01-01 Federal VA

Chapter: 31.403

Case Name: Lifenet, Inc. v. Musculoskeletal Transplant Found., Inc., 490 F. Supp. 2d 681, 686, 688-89, 689 n.3 (E.D. Va. 2007)
("Substantively, Echostar did not address whether the advice-of-counsel waiver would extend to trial counsel. See Ampex Corp. v. Eastman Kodak Co., No. 04-1373-KAJ, 2006 U.S. Dist. LEXIS 48702, at *11 (D. Del. July 17, 2006). . . . In the wake of Echostar, some courts have concluded that waiver should extend to trial counsel, while other courts have disagreed; and still others have found waiver, but only on a limited basis."; "[S]uch waiver must logically also extend to legal opinions of trial counsel if there are allegations of continuing infringement. If trial counsel opined to MTF regarding its continuing alleged infringement of LifeNet's patents, then such an opinion is discoverable under EchoStar. If such an opinion contradicts the 2002 Opinion, then such evidence, if omitted from the factfinder's consideration, could be used as an impermissible sword in MTF's defense because it could provide insight into MTF's state of mind regarding ongoing willful infringement, but yet would never be disclosed). If such an opinion buttresses that of the 2002 Opinion, then MTF should not fear its disclosure at this juncture of the proceedings. . . . [I]n a patent case, the party against whom waiver is sought makes the voluntary decision to rely on advice of counsel and, in making such a decision, the waiving party must assume the risk in accepting the benefit of its election."; also holding that the waiver "does not extend to 'documents analyzing the law, facts, trial strategy, and so forth that reflect the attorney's mental impressions but were not given to the client'" (citation omitted))

Case Date Jurisidction State Cite Checked
2007-01-01 Federal VA

Chapter: 31.403

Case Name: Commonwealth v. Edwards, 235 Va. 499, 509-10, 370 S.E.2d 296, 301 (Va. 1988)
("When a client communicates information to his attorney with the understanding that the information will be revealed to others, the disclosure to others effectively waives the privilege 'not only to the transmitted data but also as to the details underlying that information.' In other words, 'The client's offer of his own or the attorney's testimony as to a part of any communication to the attorney is a waiver as to the whole of that communication, on the analogy of the principle of completeness.'" (citation omitted) (emphasis added))

Case Date Jurisidction State Cite Checked
1988-01-01 State VA

Chapter: 31.601

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 907 (N.D. Ill. 2013)
("The scope of the implied waiver is thus the same as the scope of the waiver by express disclosure of Dr. Kuzmich's [plaintiff's outside lawyer] conversation with Dr. Motheram [plaintiff's scientist] during Dr. Kuzmich's deposition.")

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

Chapter: 31.603

Case Name: Windsor Securities, LLC v. Arent Fox LLP, 16 Civ. 1533 (GBD) (GWG), 2017 U.S. Dist. LEXIS 127984 (S.D.N.Y. Aug. 11, 2017)
(in an opinion by Judge Gorenstein, holding that a defendant law firm sued for malpractice could not obtain the former client's communications with replacement counsel; "New York courts have defined 'at issue' waiver as occurring 'where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information.'"; "'New York courts have frequently cited to federal case law in applying the 'at issue' waiver doctrine. . . . Consistent with this practice and because we discern no difference in these two courts' applications of the 'at issue' waiver doctrine, we cite to both state and federal law.'"; "Because Windsor does not intend to use any of its communications with replacement counsel as evidence in this case -- and in any event will now be precluded from doing so -- there is no obvious unfairness to defendants in upholding Windsor's claim of privilege. Indeed, case law frequently ends the inquiry into 'at issue' waiver once it is established that the party does not intend to use such materials as proof."; "Federal court decisions from this district have similarly held that defendants in a legal malpractice case were not entitled to invade the attorney-client privilege for successor counsel.")

Case Date Jurisidction State Cite Checked
2017-08-11 Federal NY

Chapter: 31.603

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2017 U.S. Dist. 7137 (N.D. Ga. Jan. 18, 2017)
(holding that plaintiff's malpractice case against its former lawyer impliedly waived opinion work product protection for documents created by replacement counsel; "Monitronics has alleged that the Veasley verdict was the result of Defendants' malpractice in their representation of Monitronics before they were discharged. In doing so, Monitronics must show, among other things, that the alleged malpractice was the proximate cause of the damage alleged. Monitronics has directly implicated the relevance of the Production Documents because it alleges that Defendants were the sole proximate cause of the Veasley verdict, even though Defendants were replaced by successor counsel months before the verdict was returned."; "Defendants have asserted several affirmative defenses to Monitronics' malpractice claim, including lack of causation and comparative negligence, and they have filed a notice seeking to apportion fault to successor counsel. 'It would undermine the most basic concepts of fairness to allow [Monitronics] to claim [Defendants are] liable for the entirety of their damages, while precluding the discovery of contrary evidence.'. . . This is especially true considering that the Court's review of the Production Documents submitted for in camera review disclosed specific reasons for the fact and magnitude of the Veasley verdict based on reasons other than Defendants' alleged professional conduct."; "The Court has reviewed the opinion work product materials submitted by Monitronics and the Nonparties. The Court finds in the particular circumstances of this legal malpractice case -- where Plaintiff claims the Defendant lawyers are responsible for the entirety of an adverse jury verdict issued months after Defendants were replaced by successor counsel, where Defendants did not participate in the trial or the unsuccessful appeal, and where a number of the submitted opinion work product materials are central to the causation issue in this case -- that portions of the Productions Documents submitted for review are required to be produced.")

Case Date Jurisidction State Cite Checked
2017-01-18 Federal GA

Chapter: 31.603

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2016 U.S. Dist. LEXIS 166402 (N.D. Ga. Dec. 2, 2016)
(ordering malpractice plaintiff suing its former lawyer to turn over privileged communications with successor counsel; "In most malpractice cases involving implied waiver of the attorney-client privilege, the issue is whether the privilege between the plaintiff-client and the defendant-attorney has been waived. This case presents a different question. Monitronics has not asserted the attorney-client privilege over its communications with Defendants. Instead, Monitronics asserts the privilege with respect to its communications with other lawyers who worked on the Veasley case after Defendants were terminated. The question is whether Monitronics, by suing Defendants for malpractice, has waived its privilege with respect to these documents."; "Monitronics has implicated the relevance of the Requested Documents because it alleges that Defendants were the sole proximate cause of the Veasley verdict, even though Defendants were replaced by successor counsel months before the verdict was returned."; "The Court also finds that, subject to certain exceptions noted below, the Requested Documents are vital to Defendants' defense. The court in Lyon reasoned that, absent production of communications between the plaintiff-client and subsequent counsel, defendant-attorneys 'would be effectively precluded from challenging the causation and actual damages prongs for legal malpractice,' because they would not be allowed to advocate fully their defense that other persons were responsible, in whole or in part, for plaintiff's damages."; "For example, if Monitronics' successor counsel chose not to engage in all or part of the discovery it claims Defendants should have conducted regarding Okrah, Veasley's son, Warren's husband, and Veasley's neighbors, the reason for not engaging in this discovery may discredit Monitronics' allegation that it was malpractice for Defendants not to do so. If successor counsel was able to, but did not, procure ATM or McDonald's security video footage for March 29, 2006, that failure may have proximately caused some of Monitronics' damages. If successor counsel made pretrial and trial decisions independent of the conduct Monitronics alleges constitutes malpractice, those decisions may undercut Monitronics' malpractice claim against Defendants. It would be odd -- if not unfair -- to preclude Defendants from discovering documents showing whether successor counsel or insurers had views of the evidence and trial presentation that aligned with Defendants'. These kinds of strategy evaluation and litigation decision materials are largely, if not exclusively, the kind of documents maintained in the file of Monitronics and its lawyers and not available to Defendants unless produced.")

Case Date Jurisidction State Cite Checked
2016-12-02 Federal GA

Chapter: 31.603

Case Name: Cook v. Bradley, C.A. No. 15CA010726, 2015 Ohio App. LEXIS 4886 (Ohio App. Dec. 7, 2015)
(holding that a client suing her lawyer for malpractice did not have to produce communications with replacement counsel; "The self-defense exception is not a rule of discovery; rather, it is a rule of disclosure that allows an attorney to disclose his or her communications with a former client to support a claim for outstanding legal fees or defend against a claim of malpractice or other wrongdoing. As applied to this situation, the exception is designed to put the defending attorney on the same plane as other civil defendants, as well as the plaintiff, by allowing him or her to testify about relevant facts that are within the attorney's personal knowledge. . . . Since the exception is simply designed to equalize the defending attorney's footing, it makes little sense to expand the self-protection exception so that the defending attorney can breach the attorney-client relationship between the plaintiff/former client and his or her new attorney, an avenue that is unavailable to other civil defendants.")

Case Date Jurisidction State Cite Checked
2015-12-07 Federal OH

Chapter: 31.603

Case Name: DeVault v. Isdale, Case No.: 6:15-cv-135-Orl-37TBS, 2015 U.S. Dist. LEXIS 144895 (M.D. Fla. Oct. 26, 2015)
(analyzing the at issue doctrine in connection with a wife's lawsuit against her lawyer for malpractice in connection for her agreeing to a marital settlement; analyzing the malpractice defendant's attempt to review the files of the wife's divorce lawyer; finding a narrow at issue doctrine; "Plaintiff did not waive the attorney-client and work product privileges simply by bringing this lawsuit. She also did not waive a privilege by including attorney's fees from the dissolution of marriage case in her damage claim. Nothing has been presented to suggest that the amounts Plaintiff paid her lawyer for legal work relating to the marital settlement agreement cannot be broken out and proven without resort to privileged communications. Plaintiff and Nathan are the parties to the settlement agreement. Defendant is free to ask both of them what factors they considered during the negotiations, as well as how they evaluated and weighed each of those factors. Defendant can also discover the written and oral communications between the attorneys representing Plaintiff and Nathan. There is no evidence that Plaintiff intends to use privilege as both a shield and sword as would be the case if she attempted to disclose favorable communications with her attorney while at the same time, insisting upon the protection of the privilege for damaging communications. While the presentation of Defendant's case might be aided if she had access to Plaintiff's confidential communications with her former attorney, that is not a sufficient reason to find a waiver of the attorney-client or work product privileges. And, Defendant did not attempt to make the showing required by FED. R. CIV. P. 26(b)(3) to discover work product privileged information. Accordingly, Defendant Holly Isdale's Motion to Compel Discovery is DENIED.")

Case Date Jurisidction State Cite Checked
2015-10-26 Federal FL

Chapter: 31.603

Case Name: Shaub and Williams, L.L.P. v. Augme Techs., Inc., No. 13 Civ. 1101 (GBD) (JCF), 2014 U.S. Dist. LEXIS 34438 (S.D.N.Y. Mar. 13, 2014)
(holding that a legal malpractice defendant was not entitled to discovery of documents reflecting communications between its former client and replacement counsel)

Case Date Jurisidction State Cite Checked
2014-03-13 Federal NY B 8/14

Chapter: 31.603

Case Name: FDIC v. Lowis & Gellen LLP, No. 11 CV 5902, 2014 U.S. Dist. LEXIS 21022, at *24-25 (N.D. Ill. Feb. 20, 2014)
(in a malpractice case, finding that plaintiff had not triggered an at issue waiver; holding that if the plaintiff sought fees as damages, redaction may result in the inability to recover those fees; "A party seeking to recover attorneys' fees ultimately bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness. . . . Because FDIC has decided to preserve privilege and work-product protection over Katten's invoices by using redactions, it has also assumed the risk that the court will decline to award the full requested amount of fees on the basis of FDIC's failure to meet its burden. . . . As the privilege-holder and the party seeking attorneys' fees, FDIC is entitled to make that choice.")

Case Date Jurisidction State Cite Checked
2014-02-20 Federal IL B 7/14

Chapter: 31.603

Case Name: FDIC v. Lowis & Gellen LLP, No. 11 CV 5902, 2014 U.S. Dist. LEXIS 21022, at *22 (N.D. Ill. Feb. 20, 2014)
(in a malpractice case, finding that plaintiff had not triggered an at issue waiver; holding that if the plaintiff sought fees as damages, redaction may result in the inability to recover those fees; "[S]eeking attorneys' fees in a malpractice action is, in itself, insufficient to put damages at issue for waiver purposes.")

Case Date Jurisidction State Cite Checked
2014-02-20 Federal IL B 7/14

Chapter: 31.603

Case Name: EMC Ins. Co. v. Zicolello, No. 4:13-cv-00825, 2014 U.S. Dist. LEXIS 4785, at *6, *7, *14-15 (M.D. Pa. Jan. 13, 2014)
(holding that the client's waiver caused by filing a malpractice suit against a former lawyer does not extend to communications with replacement counsel; also finding that the client did not trigger an "at issue" waiver by seeking malpractice damages that included fees paid to replacement counsel; "Because Plaintiffs did not file a lawsuit against Hare [replacement counsel] or attack his competence, there is no basis for the Court to find that Plaintiffs waived the privilege regarding confidential communications between Plaintiffs and Hare as a result of filing the malpractice action."; "[O]nce communications are shown to be privileged, the burden shifts to the opposing party to show waiver of the privilege."; "Consistent with persuasive authority, the Court finds that a claim for attorney's fees in the context of a legal malpractice suit does not place 'in issue' that attorney's advice, and does not serve to destroy the privilege.")

Case Date Jurisidction State Cite Checked
2014-01-13 Federal PA B 6/14

Chapter: 31.603

Case Name: Waite, Schneider, Bayless & Chesley Co., L.P.A. v. Davis, Case No. 1:11CV00851, 2013 U.S. Dist. LEXIS 123936, at *46, *46-47 (S.D. Ohio July 12, 2013)
(finding a lawyer sued for malpractice could conduct discovery into communications between the plaintiff former client suing the firm for malpractice and the replacement lawyer; "I find, accordingly, that the self-protection exception to the attorney-client privilege and attorney work product doctrine supports the Waite firm's demand for extensive discovery into otherwise privileged communications. That I view these circumstances through the lens of that exception, rather than that of implied waiver, does not matter. The result is the same here as in the implied waiver cases from other jurisdictions."; "The Waite firm can only defend against Davis's multiple claims of misconduct by having access to Davis's 'other-attorney communications' in the related cases. This is especially so given Davis's claim that the Waite firm abruptly refused to represent him in those cases. Most simply put, a reading of the materials produced for in camera review discloses information and evidence that might be of considerable assistance to the Waite firm and, it is likely, admissible at trial.")

Case Date Jurisidction State Cite Checked
2013-07-12 Federal OH B 7/14

Chapter: 31.603

Case Name: Scheurer Hosp. v. Lancaster Pollard & Co., Case No. 12 cv 11536, 2012 U.S. Dist. LEXIS 160842, at *17 (E.D. Mich. Nov. 9, 2012)
(holding that a plaintiff's malpractice case against the lawyer, based on an allegation that the defendant's malpractice required plaintiffs to settle a dispute with a third party triggered an at issue waiver; "Plaintiff's claims for damages stem from the liability it incurred to Lehman (as evidenced by the settlement agreement) which Plaintiff contends was a direct result of its reliance on erroneous advice given by Defendants. As a result, the Court concludes that Defendants have demonstrated that the communications between Plaintiff and its counsel during the Lehman settlement negotiations are relevant to the scope of their potential liability and that Plaintiff's assertion of the privilege seriously undermines their ability to defend against Plaintiff's claims, which are solely based upon those communications.")

Case Date Jurisidction State Cite Checked
2012-11-09 Federal MI B 7/13

Chapter: 31.603

Case Name: Woodbury Knoll, LLC v. Shipman and Goodwin, LLP, 48 A.3d 16, 38 (Conn. 2012)
(holding that a law firm sued for malpractice cannot discover communications between its former client and the replacement law firm; "The plaintiffs' malpractice claim concerns only the allegedly negligent representation by the defendants, which is separate from the plaintiffs' subsequent representation by Finn Dixon. Although the issue of damages will likely involve the reasonableness of the settlements entered into on Finn Dixon's advice, the fact finder should be able to assess damages adequately through other means without resorting to privileged communications between the plaintiffs and Finn Dixon. We decline to adopt the contrary rule urged by the defendants because it lacks precedential support and runs counter to our narrow construction of exceptions to the attorney-client privilege. . . . Therefore, we conclude that the plaintiffs did not waive the attorney-client privilege with respect to their communications with Finn Dixon, that the defendants' subpoena sought, inter alia, privileged communications in violation of the rules of practice, and that it was an abuse of the trial court's discretion to order compliance with such an overbroad subpoena.")

Case Date Jurisidction State Cite Checked
2012-01-01 State CT B 6/13

Chapter: 31.603

Case Name: Tomblyn v. Compton, 26 Va. Cir. 131, 132 (Va. Cir. Ct. 1991)
(plaintiff's malpractice action against a lawyer "put the privileged information held by [plaintiffs' replacement counsel] directly in issue [because] any such information is part of one continuous course of legal representation that the Plaintiffs pursued, first with the Defendant and then with [replacement counsel]")

Case Date Jurisidction State Cite Checked
1991-01-01 State VA B 3/16
Comment:

key case


Chapter: 31.604

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)
(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The court begins by noting, again, that the Petitioner has intentionally waived the attorney-client privilege with respect to his former counsel's conduct and their communications put into issue and disclosed by his § 2255 Motion and supporting documentation, and he does not dispute this waiver or the government's need for discovery into these privileged communications. . . . Accordingly, under VRPC 1.6(b)(2), the Petitioner's former counsel may reveal information reasonably necessary to respond to allegations concerning their representation of the Petitioner, in connection with this habeas proceeding, without violating the VRPC.")

Case Date Jurisidction State Cite Checked
2017-03-20 Federal VA

Chapter: 31.604

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)
(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "[B]y putting the conduct of his former counsel and their communications into issue in this proceeding, . . . and by filing an affidavit disclosing some of the content of those communications, . . . as well as other exhibits, . . . Petitioner's mother), the Petitioner has intentionally waived the attorney-client privilege with respect to those communications.")

Case Date Jurisidction State Cite Checked
2017-03-20 Federal VA

Chapter: 31.604

Case Name: United States v. Trotter, Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681 (E.D. Mich. March 7, 2017)
(holding that a defendant relying on advice of counsel must produce communications with all of the counsel from who he received pertinent advice, rather than just the three lawyers whose communications he initially wanted to disclose; "Trotter intends to assert a defense of good faith reliance on the advice of counsel and has agreed to waive the attorney-client privilege. Trotter's counsel submitted waivers for three attorneys: Carey Kalmowitz, Abby Pendleton, and Sarif Kasmikha. The Government asserts that Trotter received management advice from additional attorneys, including Louis Szura, David Haron, James Burdick, and Robert Morgan, and requests that Trotter waive privilege to these individuals as well."; "The scope of this waiver 'goes not only to the specific advice of counsel, but also to all other attorney client communications related to the same subject matter. This includes the client's questions to the lawyer and material provided to counsel to help render an opinion.'. . . Defense counsel asserts that they have produced all of the relevant documents in their possession. But, Fed. R. Crim. P. 16(b)(1)(A)(i) requires production of all relevant communications in the defendant's possession, custody, or control. Defense counsel is ordered to request these materials from his client. If Trotter has any such materials, counsel must produce them to the Government. Failure to make a full disclosure constitutes a waiver of the advice of counsel defense."; "For the reasons stated above, the Government's motion is GRANTED. Trotter is ordered 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. Failure to do so will preclude Trotter from raising the good faith reliance of counsel defense at trial.")

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

key case


Chapter: 31.604

Case Name: Mitchell v. United States, Case Nos. 2:15-cv-05501 & 2:13-cr-00201, 2016 U.S. Dist. LEXIS 5758, at *4-5 (S.D. W. Va. Jan. 19, 2016)
("[T]he ABA acknowledges in the opinion [LEO 456] that 'an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information,' but cautions that this waiver does not operate to fully release an attorney from his or her obligation to keep client information confidential unless the client gives informed consent for disclosure or disclosure is sanctioned by an exception contained in Model Rule 1.6. After examining the various exceptions contained in Model Rule 1.6, the ABA concludes that disclosure may be justified in certain circumstances; however, any such disclosure should be limited to that which the attorney believes is reasonably necessary and should be confined to 'court-supervised' proceedings, rather than ex parte meetings with the non-client party.")

Case Date Jurisidction State Cite Checked
2016-01-19 Federal WV B 7/16

Chapter: 31.604

Case Name: Fife v. United States, Case No. 13-C-0579, 2015 U.S. Dist. LEXIS 61309 (E.D. Wis. May 11, 2015)
(finding that an ineffective assistance of counsel claim resulted in a subject matter waiver, but with a narrow scope; "Thus, the court will find that Fife's privilege has been waived implicitly through the ineffective assistance of counsel claim and through Fife's failure to object to disclosure itself as to the matters raised in the ineffective assistance of counsel claim. But to limit the scope of the disclosures, the court specifies that the waiver for trial counsel concerns only the three topics set forth on page 10 of Document 2: (1) Fife's apprising counsel that his civil rights were restored on his prior convictions and counsels' failure to conduct a reasonable investigation into this subject; (2) Fife's apprising counsel that he was never convicted for armed violence; and (3) counsels' failure 'to investigate the relatedness of the priors used to give Fife the ACCA sentence'. . . . The waiver for appellate counsel concerns any communications concerning these three topics and any communications with Fife concerning these alleged omissions by trial counsel.")

Case Date Jurisidction State Cite Checked
2015-05-11 Federal WI

Chapter: 31.604

Case Name: Belcher v. United States, Case No. 3:12-cv-04717, 2012 U.S. Dist. LEXIS 156730, at *5, *6-7 (S.D. W. Va. Nov. 1, 2012)
("[T]he ABA acknowledges in the opinion [ABA LEO 456] that 'an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information,' but cautions that this waiver does not operate to fully release an attorney from his or her obligation to keep client information confidential unless the client gives informed consent for disclosure or disclosure is sanctioned by an exception contained in Model Rule 1.6."; "[T]he Court finds that Collias [lawyer] may, without violating the applicable Rules of Professional Conduct, disclose information in this proceeding regarding his communications with Movant to the extent reasonably necessary to comply with an order of this Court or to respond to the allegations of ineffective representation.")

Case Date Jurisidction State Cite Checked
2012-11-01 Federal WV B 5/13

Chapter: 31.605

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: 31.605

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: 31.605

Case Name: United States v. Trotter, Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681 (E.D. Mich. March 7, 2017)
(holding that a defendant relying on advice of counsel must produce communications with all of the counsel from who he received pertinent advice, rather than just the three lawyers whose communications he initially wanted to disclose; "Trotter intends to assert a defense of good faith reliance on the advice of counsel and has agreed to waive the attorney-client privilege. Trotter's counsel submitted waivers for three attorneys: Carey Kalmowitz, Abby Pendleton, and Sarif Kasmikha. The Government asserts that Trotter received management advice from additional attorneys, including Louis Szura, David Haron, James Burdick, and Robert Morgan, and requests that Trotter waive privilege to these individuals as well."; "The scope of this waiver 'goes not only to the specific advice of counsel, but also to all other attorney client communications related to the same subject matter. This includes the client's questions to the lawyer and material provided to counsel to help render an opinion.'. . . Defense counsel asserts that they have produced all of the relevant documents in their possession. But, Fed. R. Crim. P. 16(b)(1)(A)(i) requires production of all relevant communications in the defendant's possession, custody, or control. Defense counsel is ordered to request these materials from his client. If Trotter has any such materials, counsel must produce them to the Government. Failure to make a full disclosure constitutes a waiver of the advice of counsel defense."; "For the reasons stated above, the Government's motion is GRANTED. Trotter is ordered 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. Failure to do so will preclude Trotter from raising the good faith reliance of counsel defense at trial.")

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

key case


Chapter: 31.605

Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-Middlebrooks/Lynch, 2017 U.S. Dist. LEXIS 29016 (S.D. Fla. Feb. 28, 2017)
(finding that defendant waived its attorney-client privilege protection by relying on its good faith attempt to comply with the law; "Beall's Answer denies that the company erred in its AM classification . . . but the Third and Fifth Affirmative Defenses also stress that if it did, any such error was, respectively, not willful and made in a good faith attempt to comply with the law. . . . Whether Beall's classification of AMs as exempt employees was willful is a material 'question of law and fact,' . . . because the running of the statute of limitations and availability of liquidated damages both turn on the state of mind of Beall's officials."; "As to the Fifth Defense, Beall's repeated the same answer but added at the end of the sentence that Beall's 'consulted with legal counsel regarding such classification.'"; "There is one material point in dispute: whether Beall's impliedly waived the attorney-client privilege by putting its state of mind directly at issue."; "Plaintiffs contend that Beall's implicated the attorney-client relationship when it asserted the affirmative defense of good faith."; "Beall's waived its attorney-client privilege with respect to the documents in question by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification."; "Beall's warns that a ruling in favor of Plaintiffs raises the specter of plaintiffs receiving automatic access to the substance of an attorney's advice to her clients when a party asserts a good faith defense. But Beall's dire pronouncement need not come to fruition because it is within the power of the holder of the privilege to make or omit a waiving statement. As Cox [Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1417-20 (11th Cir. 1994)] noted, a defendant can always deny the element of a plaintiff's claim alleging a certain mental state "without affirmatively asserting" a good faith belief in an act's legality.")

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

Chapter: 31.605

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

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

key case


Chapter: 31.605

Case Name: Calandro v. Sedgwick Claims Mgmt. Svcs., Inc., Civ. A. No. 15-10533-PBS, 2015 U.S. Dist. LEXIS 163622 (D. Mass. Dec. 7, 2015)
("Since the issue in this litigation is whether Sedgwick appropriately relied on the advice of counsel, only the advice passed on to Sedgwick is relevant. Undisclosed information from counsel is not relevant.")

Case Date Jurisidction State Cite Checked
2015-12-07 Federal MA

Chapter: 31.605

Case Name: In Piazza v. County of Luzerne, Civ. A. No. 3:13-CV-1755, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015)
December 23, 2015 (PRIVILEGE POINT)

"Corporations firing employees normally must explain why. All corporate lawyers recognize that affirmatively pleading "advice of counsel" as an employment case defense normally waives privilege protection, but the risks can be more subtle."

In Piazza v. County of Luzerne, Civ. A. No. 3:13-CV-1755, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015), plaintiff claimed that the county unlawfully fired him. When asked why the county fired plaintiff, the county's decision-maker (and co-defendant) answered "'I did so on the advice of counsel.'" Id. At *2 (internal citation omitted). When asked if there was "'[a]nything else?,'" the witness responded, "'That's all at this point.'" Id. Later in the deposition, the county's lawyer objected to questions about whether the decision-maker's "beliefs were based on advice from counsel," and what "sources of information informed [the decision-maker's] belief that Plaintiff had exceeded his authority." Id. At *4. Acknowledging that the defendants had not filed a formal "advice of counsel" defense, the court nevertheless found a privilege waiver — pointing to (1) the decision-maker's testimony "that he initially had nothing to add to his statement that he terminated Plaintiff 'on the advice of counsel,'" and (2) his later testimony that the firing was based on his belief that the plaintiff acted improperly "and this belief was based on his conversations" with the county's lawyer. Id. At *11. The court held that the waiver extended to all "communication[s] relied on by [the decision-maker] which he testified formed the basis of his termination decision." Id.

Corporations (and other institutions) can impliedly waive their privilege protection without affirmatively pleading an "advice of counsel" defense. In employment cases, decision-makers should rely on underlying facts from sources other than just their lawyers, and should be prepared to testify about the reasons for employment decisions other than those lawyers' advice.

Case Date Jurisidction State Cite Checked
2015-10-30 Federal PA
Comment:

key case


Chapter: 31.605

Case Name: TCV VI, L.P. v. TradingScreen Inc., C.A. No. 10164-VCN, 2015 Del Ch. LEXIS 245 (Del. Ch. Sept. 25, 2015)
(analyzing the scope of a litigant's admitted waiver through reliance on advice of counsel; "This discovery dispute arises from a company's partial refusal to buy back preferred stock under a mandatory redemption provision in its charter. The company hopes to show that its (and its directors') conduct was in good faith. Part of that will involve reliance on the advice of its attorneys. Thus, waiver of the attorney-client privilege -- to some disputed extent -- became necessary as a tactical matter. At issue, as framed by Plaintiffs' motion to compel, are the scope of the company's waiver and whether the company is obligated to prepare a log identifying and supporting its partial redaction of some 1,900 documents on grounds of attorney-client privilege."; "TradingScreen will seek to show at trial that its Special Committee's decision not to pay the full, and otherwise due, redemption amount was made in good faith. One component of its proof of good faith will be the Special Committee's reliance upon legal advice. A consequence of that strategy is that TradingScreen must give up its attorney-client privilege as to the subject matter of the advice upon which it will rely."; "[T]he parties agree that this scope must at least extend to the subject matter of legal advice rendered in a series of four legal memoranda provided to the Special Committee by the law firms Morris, Nichols, Arsht & Tunnell LLP and Greenberg Traurig LLP. These memoranda, dated between March 5, 2014, and February 19, 2015, cover four categories of legal advice for which Defendants have waived privilege."; "Category 1: Legal advice on how, based on applicable law and TradingScreen's charter, the Special Committee should approach the task of determining funds available for redemption."; "Category 2: Legal advice on how, based on applicable law and TradingScreen's charter, the Special Committee should proceed after determining funds available for redemption, including what the company's options are in light of those constraints."; "Category 4: Predictions, based on applicable law and TradingScreen's charter, on whether the charter's 13% interest payment provision will be triggered through the course of this redemption."; "[L]egal advice concerning Categories 1-4 shall only be deemed waived if the advice was presented to the individual members of the Special Committee in any capacity and regardless of which law firm sent it. To be clear, this means that if Mr. Buhannic received a particular bit of legal advice in his capacity as CEO, not as a Special Committee member, documents reflecting that advice will nonetheless be disclosed. Further, if the Special Committee received advice from outside advisors or officers that obviously reflects legal advice concerning a waived Category, that will be disclosed.").

Case Date Jurisidction State Cite Checked
2015-09-25 State DE

Chapter: 31.605

Case Name: Waste Mgmt. of Louisiana v. Jefferson Parish, Civil Action No. 13-226 SECTION "F" (3), 2014 U.S. Dist. LEXIS 83665, at *6 (E.D. La. June 19, 2014)
(examining the scope of the subject matter waiver when a litigant pleads advice of counsel; "The waiver here applies to all privileged communications that are on the 'same subject' -- i.e., the appropriation dependency clause claim and/or the cost/savings to the Parish -- as the privileged communications already produced.")

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