Showing 79 of 79 results

Chapter: 4.5

Case Name: Total Recall Technologies v. Luckey, Case No. 15-cv-02281-WHA (SK), 2016 U.S. Dist. LEXIS 65673 (N.D. Cal. May 17, 2016)
(holding that two general partners who were in a dispute did not waive any privilege by talking to the general partnership's lawyer; "The lawsuit in this Court was brought by the partnership, TRT. TRT hired the Quinn Emmanuel firm. The claims asserted here and the attorney-client privilege belong to the partnership, TRT. As partners to TRT, both Igra and Seidl are considered clients of TRT's counsel with respect to the counsel's litigation advice.")

Case Date Jurisidction State Cite Checked
2016-05-17 Federal CA

Chapter: 4.5

Case Name: Virtue Global Holdings Ltd. v. Rearden LLC, Case No. 15-cv-00797-JST (SK), 2016 U.S. Dist. LEXIS 53076, at *10 (N.D. Cal. Apr. 5, 2016)
("A limited liability company possesses an attorney-client privilege, and, although the Ninth Circuit has not yet addressed this question, at least two District Court opinions have held that the privilege is similar to the type of privilege held by a corporation. . . . The LLC can act only through its management, so management exercises that privilege.")

Case Date Jurisidction State Cite Checked
2016-04-20 Federal CA B 8/16

Chapter: 4.5

Case Name: Loop Ai Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2016 U.S. Dist. LEXIS 22656 (N.D. Cal. Feb. 24, 2016)
(analyzing the fiduciary exception's applicability to law firms; finding internal Orrick documents were not covered by the fiduciary exception, because the law firm withdrew from representing the plaintiff client twelve days after learning of its conflict; "As discussed above, federal common law governs here. The attorney-client privilege may apply to a law firm's communications with its own lawyers within the firm.")

Case Date Jurisidction State Cite Checked
2016-02-24 Federal CA

Chapter: 4.5

Case Name: Hasrbor Mktg. v. Newman (In re Newman), 500 B.R. 328, 330, 330-31, 331 (Bankr. D. Conn. Oct. 23, 2015)
(holding that a member of a limited liability company can obtain otherwise privileged documents between management of the LLC and its lawyer if it was "just and reasonable" to require production of the documents; "Clearly, a Connecticut LLC has the ability to claim documents are subject to the attorney-client privilege. The respondents in their submissions repeatedly express their concern that the court's conclusion in this matter could potentially 'obliterate' or 'eviscerate the attorney-client privilege belonging to LLCs' in Connecticut. The court neither intends nor foresees such an extreme or generalized result as a consequence of its conclusions here and emphasizes that it is not advancing a bright line rule but rather a limited and fact-specific holding based on the particular circumstances of this case."; "The court does not see this as a privilege question but as an access question under the LLC statute. Conn. Gen. Stat. § 34-144(d) as quoted above, expressly requires, inter alia, that an LLC render full information of all things affecting LLC members to those members, to the extent the circumstances render it just and reasonable."; "The documents at issue in this case are sought for use in litigation between members and the managing member based on the managing member's conduct in operation of the LLCs, including solicitation of their investments in the LLCs. This court cannot think of circumstances more reasonable than that for allowing access to those LLC documents. Further, in these circumstances allowing a manager accused of fraud to utilize the LLCs' the LLCs' privilege as a shield to insulate himself from allegations of fraud brought by members of the LLCs strikes the court as palpably unjust, particularly where the LLCs themselves are not even parties to the action.")

Case Date Jurisidction State Cite Checked
2015-10-23 Federal CT B 7/16

Chapter: 4.5

Case Name: United States v. Avery, Case No. 3:07-cr-00028-RRB-KFM, 2015 U.S. Dist. LEXIS 136461 (D. Alaska Oct. 1, 2015)
("A charitable trust can seek legal advice through its authorized representative and, like other entities, through its authorized representatives can assert or waive a trust's attorney-client privilege. But, a former employee of a trust lacks any authority to waive the trust's attorney-client privilege. In 2006, the San Francisco Superior Court removed Avery as trustee for the Trusts for alleged misconduct. Thus, Avery is not authorized to waive the attorney-client privilege on behalf of the Trusts. Indeed, only the Trusts' current management is empowered to waive the privilege.")

Case Date Jurisidction State Cite Checked
2015-10-01 Federal AK

Chapter: 4.5

Case Name: Turubchuk v. E.T. Simonds Construction Co., Case No. 3:12-cv-594-SMY-DGW, 2015 U.S. Dist. LEXIS 133512 (S.D. Ill. Sept. 30, 2015)
(analyzing privilege issues in connection with a joint venture against who the plaintiff made a personal injury claim; "ETS argues that communications with Bituminous Insurance Company ('BIC') is privileged because it represented the joint venture in the 2007 Case. Defendant does not explain, however, how BIC's communications with a joint venture are subject to a privilege that ETS can assert as an individual entity. While '[j]oint ventures are not distinct legal entities'. . . ETS does not provide any explanation or legal authority that a privilege that inures to the joint venture can also extend to ETS as a member of that joint venture. In light of the strict construction of this privilege, ETS must do more than just assert that the privilege applies. As noted above, the privilege applies when the dominant purpose of the communication is made to secure an attorney to protect the interests of the insured. In the 2007 case, the dominant purpose of any communication was to protect the joint venture, not ETS. Any communication regarding ETS as an individual company, then, would not be protected. Second, it appears that ETS had an individual policy with BIC, separate from BIC's joint venture policy. There is no claim that communications as to that separate policy are privileged. And, ETS makes no showing that there was a duty to defend ETS in the 2007 Case such that its communications with BIC would be privileged. Finally, ETS' communications with other insurance companies are not privileged because there has been no showing (by ETS) that they had a duty to defend."; "'ETS has not provided the Court with a copy of the Joint Venture agreement or any case authority that states that a member of the joint venture could unilaterally assert a privilege on behalf of the joint venture (especially since Southern Illinois Asphalt Company, Inc. has seemingly waived such a privilege).'")

Case Date Jurisidction State Cite Checked
2015-09-30 Federal IL

Chapter: 4.5

Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
(analyzing privilege protection and the common interest doctrine in a trade association context; "[I]t appears from the context of all thirty-seven communications or documents that the LTA group, all of whom were attorneys and whose clients were members of NCFC [Association], were wearing their LTA-NCFC hats, not that of their respective client, when they rendered advice to NCFC. And, all thirty-seven communications or documents relate to NCFC's legal strategy on behalf of all its members given the threat of DOJ litigation against its agricultural cooperative members.")

Case Date Jurisidction State Cite Checked
2015-03-17 Federal ID

Chapter: 4.5

Case Name: Pia v. Supernova Media, Inc., Case No. 2:09-cv-00840-DN-EJF, 2014 U.S. Dist. LEXIS 175028 (D. Utah Dec. 18, 2014)
(holding that a manager/member of an LLC can waive its privilege; "[B]ecause Supernova is a current manager of Shannon's Delaware, it can waive attorney-client privilege on behalf of Shannon's Delaware."; "[T]his case involves an LLC a legally different business organization than a corporation, with a different management structure (manager-managed as opposed to a board of directors). Further, to the extent a corporation and board of directors can be analogized to a manager-managed LLC, Mr. Pia [Lawyer] has not presented any evidence that the majority of the management of Shannon's Delaware wishes to assert the attorney-client privilege, as the majority of the corporation in Milroy [Milroy v. Hanson, 875 F. Supp. 646 (D. Neb. 1995)] desired to do. Rather, the only argument Mr. Pia makes is that Supernova is a 'dissident manager' because it seeks to waive the privilege. Milroy referred to the 'dissident director' because he was the only director voting against the majority of the board of directors. No such evidence is presented by Mr. Pia. Thus, Milroy is factually much different than this case and is not persuasive."; "The attorney-client privilege belongs to the entity, and the entity's management holds the power to assert or waive the privilege. Here, a manager (Supernova) of the entity (Shannon's Delaware) has waived the privilege and there is no evidence that by so doing Supernova is taking an action contrary to the will of the majority.")

Case Date Jurisidction State Cite Checked
2014-12-18 Federal UT

Chapter: 4.5

Case Name: North Dakota v. United States, Case No. 1:12-CV-125, 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
January 7, 2015 (PRIVILEGE POINT)

“Courts Examine Privilege Issues in Government and Association Contexts”

Most case law focuses on attorney-client privilege issues involving individual or corporate clients. Fewer decisions address that protection in other contexts.

In North Dakota v. United States, Case No. 1:12-CV-125, 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014), the court dealt with the federal government's privilege — recognizing both broader and narrower privilege aspects in that setting. Among other things, the court (1) applied "the broadest approach to claims of privilege by a governmental entity," pointing to the "commonsense notion that governmental decisions based on sound legal advice advance the public interest" (id. at *63); but (2) acknowledged that the privilege does not apply to otherwise protected communications that "form the basis of federal policy" (although rejecting plaintiffs' argument that the withheld documents "represented the official Department of Agricultural policy") (id. at *64-65). A week earlier, another court dealt with the privilege in the association context. In In re Processed Egg Products Antitrust Litigation, MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014), the court held that (1) the privilege could protect communications between trade association lawyers and association members if the communications involved the association lawyers' advice "within the scope of the member's role within the association and given for the sake of advising the association" (id. at *34); (2) the association would own that privilege; (3) other communications between trade association lawyers and association members might not be privileged at all if they did not meet that standard; and (4) if those other communications deserved privilege protection, the association members owned the privilege.

Corporations' lawyers who deal with the government and with associations should familiarize themselves with the unique privilege aspects applicable in those contexts.

Case Date Jurisidction State Cite Checked
2014-11-25 Federal ND
Comment:

key case


Chapter: 4.5

Case Name: In re Processed Egg Products Antitrust Litigation, MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014)
January 7, 2015 (PRIVILEGE POINT)

“Courts Examine Privilege Issues in Government and Association Contexts”

Most case law focuses on attorney-client privilege issues involving individual or corporate clients. Fewer decisions address that protection in other contexts.

In North Dakota v. United States, Case No. 1:12-CV-125, 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014), the court dealt with the federal government's privilege — recognizing both broader and narrower privilege aspects in that setting. Among other things, the court (1) applied "the broadest approach to claims of privilege by a governmental entity," pointing to the "commonsense notion that governmental decisions based on sound legal advice advance the public interest" (id. at *63); but (2) acknowledged that the privilege does not apply to otherwise protected communications that "form the basis of federal policy" (although rejecting plaintiffs' argument that the withheld documents "represented the official Department of Agricultural policy") (id. at *64-65). A week earlier, another court dealt with the privilege in the association context. In In re Processed Egg Products Antitrust Litigation, MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014), the court held that (1) the privilege could protect communications between trade association lawyers and association members if the communications involved the association lawyers' advice "within the scope of the member's role within the association and given for the sake of advising the association" (id. at *34); (2) the association would own that privilege; (3) other communications between trade association lawyers and association members might not be privileged at all if they did not meet that standard; and (4) if those other communications deserved privilege protection, the association members owned the privilege.

Corporations' lawyers who deal with the government and with associations should familiarize themselves with the unique privilege aspects applicable in those contexts.

Case Date Jurisidction State Cite Checked
2014-11-17 Federal PA
Comment:

key case


Chapter: 4.5

Case Name: In re Processed Egg Products Antitrust Litigation, MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014)
January 7, 2015 (PRIVILEGE POINT)

“Courts Examine Privilege Issues in Government and Association Contexts”

Most case law focuses on attorney-client privilege issues involving individual or corporate clients. Fewer decisions address that protection in other contexts.

In North Dakota v. United States, Case No. 1:12-CV-125, 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014), the court dealt with the federal government's privilege — recognizing both broader and narrower privilege aspects in that setting. Among other things, the court (1) applied "the broadest approach to claims of privilege by a governmental entity," pointing to the "commonsense notion that governmental decisions based on sound legal advice advance the public interest" (id. at *63); but (2) acknowledged that the privilege does not apply to otherwise protected communications that "form the basis of federal policy" (although rejecting plaintiffs' argument that the withheld documents "represented the official Department of Agricultural policy") (id. at *64-65). A week earlier, another court dealt with the privilege in the association context. In In re Processed Egg Products Antitrust Litigation, MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014), the court held that (1) the privilege could protect communications between trade association lawyers and association members if the communications involved the association lawyers' advice "within the scope of the member's role within the association and given for the sake of advising the association" (id. at *34); (2) the association would own that privilege; (3) other communications between trade association lawyers and association members might not be privileged at all if they did not meet that standard; and (4) if those other communications deserved privilege protection, the association members owned the privilege.

Corporations' lawyers who deal with the government and with associations should familiarize themselves with the unique privilege aspects applicable in those contexts.

Case Date Jurisidction State Cite Checked
2014-11-17 Federal PA
Comment:

key case


Chapter: 4.5

Case Name: In re Processed Egg Prods. Antitrust Litig., MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014)
(analyzing privilege issues in a trade association context; "The limited scope of the attorney-client privilege creates definitional difficulties in the context of entities such as corporations or, as here, trade associations. The primary definitional difficulty is determining who (or what) in the corporate or associational context is 'the client' who holds the privilege and is, therefore, capable of waiving the privilege.")

Case Date Jurisidction State Cite Checked
2014-11-17 Federal PA

Chapter: 4.5

Case Name: In re Processed Egg Prods. Antitrust Litig., MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014)
(analyzing privilege issues in a trade association context; "A trade association, like a corporation, does not have a blanket of privilege that it can toss over every communication between its lawyers and its members, dimming the light of discovery. Rather, the communications must be within the scope of the attorney-associational client relationship. This requires further analysis into the content and context of the communications between counsel for the association and its members.")

Case Date Jurisidction State Cite Checked
2014-11-17 Federal PA

Chapter: 4.5

Case Name: In re Processed Egg Prods. Antitrust Litig., MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014)
(analyzing privilege issues in a trade association context; "Who holds the privilege depends on the content and context of the communications. If the communications were within the attorney-associational client relationship that is, if the communications were attorney advice within the scope of the member's role within the association and given for the sake of advising the association then the privilege would belong to UEP and USEM, and only they could waive the privilege. . . . If, on the other hand, the communications were outside the scope of the members' roles in the association and were not given for the sake of advising the association, then UEP and USEM would not hold privilege over such communications, no matter which party possessed the documents. In the latter case, the communications might concern legal advice for the individual member of UEP and USEM, in which case the member would hold the privilege and could waive it, or the communications might not be privileged at all.")

Case Date Jurisidction State Cite Checked
2014-11-17 Federal PA

Chapter: 4.5

Case Name: In re Baytown Nissan Inc. v. Gray, No. 01-14-00704-CV, 2014 Tex. App. LEXIS 12197 (Tex. Ct. App. Nov. 7, 2014)
(granting a writ of mandamus, and holding that the privilege did not protect communications between a lawyer for an automobile dealer and the general counsel of a dealer association; also finding that the association general counsel was not a "representative" of the dealer for work product purposes; "We similarly decline to adopt a blanket rule of privilege between a trade association's members and the association's counsel. Consistent with our precedent, we instead examine the objective evidence in the record supporting an attorney-client relationship between the association's counsel and this particular member. The record cannot support an implied relationship here.")

Case Date Jurisidction State Cite Checked
2014-11-07 State TX

Chapter: 4.5

Case Name: Carpenters Pension Trust v. Lindquist Family, LLC, No. C-13-01063 DMR, 2014 U.S. Dist. LEXIS 54335 (N.D. Cal. April 18, 2014)
(treating an LLC the same way as a corporation for privilege purposes; "Plaintiffs argue that Elsie Lindquist testified that she was the sole manager of the LLC. Bockmiller concedes that Elsie Lindquist is 'nominally the Manager of the Family LLC,' but avers that the members of the LLC make decisions on a consensus or joint basis. . . . The court has reviewed the relevant documents in camera. The documents show that Bockmiller, Ward, Kurt Lindquist, and Elsie Lindquist, or combinations thereof, all communicated with each other and with the LLC's attorneys about legal advice relating to the LLC's business. The documents also show that Elsie Lindquist was not solely responsible for the decisions of the LLC, as Bockmiller, Ward, and Kurt Lindquist appear to play a significant role in the management of the LLC.")

Case Date Jurisidction State Cite Checked
2014-04-18 Federal CA

Chapter: 4.5

Case Name: Carpenters Pension Trust v. Lindquist Family, LLC, No. C-13-01063 DMR, 2014 U.S. Dist. LEXIS 54335 (N.D. Cal. April 18, 2014)
(treating an LLC the same way as a corporation for privilege purposes; "The court will follow Montgomery [Montgomery v. eTreppid Technologies, LLC, 548 F. Supp. 2d 1175, 1180 (D. Nev. 2008)] and apply corporations law to determine whether disclosure of attorney-client communications to other members of the LLC besides Elsie Lindquist defeats the assertion of privilege. In doing so, the court must consider the scope of the LLC member's duties and whether that member was aware that the information was furnished to enable the attorney to provide legal advice to the LLC.")

Case Date Jurisidction State Cite Checked
2014-04-18 Federal CA

Chapter: 4.5

Case Name: Carpenters Pension Trust v. Lindquist Family, LLC, No. C-13-01063 DMR, 2014 U.S. Dist. LEXIS 54335 (N.D. Cal. April 18, 2014)
(treating an LLC the same way as a corporation for privilege purposes; "The application of attorney-client privilege to members of an LLC is a relatively uncharted area of law.")

Case Date Jurisidction State Cite Checked
2014-04-18 Federal CA

Chapter: 4.5

Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162331, at *26-27, *27 (D. Conn. Nov. 14, 2013)
(finding that the attorney-client privilege did not protect communication between the trade association's lawyer and the trade association's members, but ultimately finding a common interest between the trade association and one of its members; "The IAC [trade association] claims an attorney-client privilege with its third party members, and argues that the subpoenas should be quashed on privilege grounds. Specifically, the IAC argues that it provides legal advice to its members, through its attorneys including Mr. Kehmna and Susan Giacalone, on various state legislative and regulatory matters. In support of its claim of privilege, the IAC relies on the affidavit of Mr. Kehmna, which states that he 'regularly provide[s] counsel, along with Attorney (sic) Susan Giacalone, on legal matters that arise during the course of our legislative and lobbying efforts. Our communications within the IAC fall within the ambit of the attorney-client privilege and work product doctrine.'" (internal citation omitted); "The Court finds that the IAC has failed to meet its burden of establishing the applicability of the attorney-client privilege between the IAC and its members. The record is devoid of evidence establishing any prong of the attorney-client test, save for Mr. Kehmna's affidavit. Such evidence is insufficient to establish the attorney-client privilege. . . . Moreover, the IAC has failed to identify any specific documents it believes are covered by the privilege.")

Case Date Jurisidction State Cite Checked
2013-11-14 Federal CT B 5/14

Chapter: 4.5

Case Name: Cnty. of San Mateo v. v. CSL Ltd. (In re Plasma-Derivative Protein Therapies Antitrust Litig.), No. 09 C 7666, No. 11 C 1468, 2013 U.S. Dist. LEXIS 29624, at *14-15 (N.D. Ill. Mar. 4, 2013)
("Plaintiffs argue that the mere fact that PPTA is a trade association does not automatically establish that all the communications between PPTA's counsel and PPTA members are attorney-client privileged. The Court agrees, as assessments of whether such communications are privileged are made on a case-by-case basis.")

Case Date Jurisidction State Cite Checked
2013-03-04 Federal IL B 3/14

Chapter: 4.5

Case Name: Snow, Christensen & Martineau v. Lindberg, 299 P.3d 1058, 1061, 1070 (Utah 2013)
(holding that a trust that was reformed cy pres [intention of the party is carried out "as near as may be"] was not a continuing client of the law firm that had represented the trust earlier, and was not entitled to the old trust's privileged documents; "This case requires us to determine whether an attorney-client relationship that existed between the United Effort Plan Trust (UEP Trust or Trust) and its attorneys at the law firm Snow, Christensen & Martineau (SCM) continued after the Trust was reformed cy pres."; "We hold that the UEP and the Reformed Trust were not the same client. Therefore, there was no attorney-client relationship between SCM and the Reformed Trust. As a result, the district court erred when it disqualified SCM from representing Movants and ordered SCM to disgorge privileged attorney-client information to the Special Fiduciary of the Reformed Trust."; "In this case, not only is SCM not required to disgorge privileged attorney-client information related to its representation of the UEP Trust, it is prohibited by rule 1.9(c) from so doing. The Reformed Trust is not the same entity as the UEP Trust and therefore it is not entitled to the UEP Trust's privileged attorney-client information. Requiring the UEP Trust to disgorge privileged information to the Reformed Trust would be contrary to the underlying purpose of the attorney-client privilege in encouraging candor between lawyer and client. It would require the UEP trust to turn over possibly embarrassing or legally damaging material to an entity that it perceives as hostile to the FLDS Church and thus hostile to the very purpose of the UEP Trust.")

Case Date Jurisidction State Cite Checked
2013-01-01 State UT B 7/13

Chapter: 4.5

Case Name: Clair v. Clair, 982 N.E.2d 32. 42 (Mass. 2013)
(holding that the executrix of a corporate director did not "step into the shoes" of her late husband's role as director, and therefore could not rely on her executrix role in seeking access to privileged documents to which her late husband had access as a corporate director; "Contrary to Claire's contention, she did not simply assume James's role as a director of the companies when, on his death, she became the executrix of his estate. . . . Claire has not alleged that she has been elected to serve as a director of the companies, which is a necessary precondition to obtaining access to privileged communications given that the attorney client privilege belongs to the companies, not to each individual director. The fact that Claire steps into James's shoes for purposes of administering his estate . . . does not mean that she automatically assumes his role as a director of the companies with access to privileged communications."; "We add that, in his role as a director of the companies, James had an obligation to preserve or waive the companies' attorney client privilege in a manner that was consistent with his fiduciary duty to act in the companies' best interests. . . . If Claire automatically had assumed the position of a director of the companies on James's death, then she would be bound by this same fiduciary duty. The nature of these proceedings is such that Claire seeks access to privileged communications in order to support her lawsuit to protect the interests of James's estate, not the interests of the companies. Thus, not only has Claire not been elected to serve as a director of the companies, but her position is fundamentally inconsistent with being a director." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 State MA B 3/13

Chapter: 4.5

Case Name: Smathers v. GBA Assocs. Ltd. P'ship, 55 Va. Cir. 73, 77 (Va. Cir. Ct. 2001)
(assessing the question of whether a limited partner is a "de facto client of the limited partnership's lawyer"; concluding that the limited partner was not a client of the partnership's lawyer and therefore was not automatically entitled to privilege or work product information; pointing to the affidavit filed by a partnership's lawyer establishing that the protected documents "were prepared in anticipation of, and in hopes of avoiding, imminent litigation"; concluding that the documents were "produced primarily because of the prospect of litigation" and therefore constituted protected work product)

Case Date Jurisidction State Cite Checked
2001-01-01 State VA nsvb 2/23/04

Chapter: 4.202

Case Name: Stradtman v. Republic Services, Inc., 1:14cv1289 (JCC/JFA), 2015 U.S. Dist. LEXIS 66635 (E.D. Va. May 21, 2015)
("The person seeking to invoke the attorney-client privilege must prove that he is a client or that he affirmatively sought to become a client. . . . 'The professional relationship . . . Hinges upon the client's belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.'. . . An individual's subjective belief that he is represented is not sufficient to create an attorney-client relationship.")

Case Date Jurisidction State Cite Checked
2015-05-21 Federal VA

Chapter: 4.202

Case Name: L.W. v. Lackawanna County, Pa., Civ. A. No. 3:14-CV-01610, 2015 U.S. Dist. 65103 (M.D. Pa. May 19, 2015)
(holding that the privilege protected communications between the plaintiff's lawyer and several witness considering retaining the same lawyer; "Defendants contend that the group meeting held between Plaintiffs' counsel, Plaintiffs, and two nonparty witnesses represented by Plaintiffs' counsel for the purpose of determining the claims at issue and to receive informed legal advice effectively waived attorney-client privilege. The crux of this issue is whether Plaintiff and the two nonparty witnesses formed a joint client relationship with the same lawyer. If a co-client relationship is found to exist, then the communications between those co-clients and their commonly retained attorneys are 'in confidence' for privilege purposes."; "Based upon Plaintiffs' representation at the discovery conference that the group meeting was organized for the purpose of evaluating potential claims, discussing a potential litigation strategy and determining whether joint representation would be in Plaintiffs' and the nonparties' best interest, this Court finds that the parties may have intended (though ultimately have not, at least to the extent the parties are not co-parties here) to form a co-client relationship when they came together with the purpose of seeking legal services or advice. Accordingly, Defendants cannot compel disclosure of the communications between counsel, Plaintiffs and the two nonparties at the meeting, because such communication is protected.")

Case Date Jurisidction State Cite Checked
2015-05-19 Federal PA

Chapter: 4.202

Case Name: Hudson v. Preckwinkle, No. 13 CV 8752, 2014 U.S. Dist. LEXIS 78995, *8-10 (N.D. Ill. June 10, 2014)
(holding that the privilege did not protect questionnaires that plaintiff's lawyer sent to Cook County Jail inmates, because the questionnaire was not specific enough; "This court finds that attorney-client privilege does not protect the questionnaire responses from disclosure. Although the form gave detainees the opportunity to request a 'legal visit,' courts in this district have required that offers to provide legal assistance be more explicit before privilege will attach. . . . [T]he questionnaire here only offered an opportunity for detainees to discuss 'issues' relating to jail conditions with an attorney or law student. Such a vague invitation is a far cry from the express language other courts have relied upon to find that privilege applies. Also, unlike in the cases discussed above, the detainees had the option of completing and returning the form regardless of whether they wanted to have a follow-up discussion with an attorney or law student. Furthermore, rather than conveying that the information collected would be used to evaluate potential claims on behalf of the detainee, the questionnaire's stated purpose was 'to find out more information about conditions in Cook County.'")

Case Date Jurisidction State Cite Checked
2014-06-10 Federal IL

Chapter: 4.202

Case Name: In re Kaufman, No. 355054/H, 2013 N.Y. Misc. 3817, at *7 (N.Y. Sur. Ct. Aug. 28, 2013)
("Here, an attorney-client relationship was established between Ken [brother of petitioner] and Farrell Fritz [petitioner's law firm, also interviewed by brother] because an initial consultation creates an attorney-client relationship even if the lawyer is not subsequently retained.")

Case Date Jurisidction State Cite Checked
2013-08-28 State NY B 4/14

Chapter: 4.202

Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *6 (N.D. Cal. June 10, 2013)
("Plaintiff need not have actually hired Williams [a lawyer who is also a personal friend of plaintiff]; it is enough that she sought legal advice from Williams in her capacity as an attorney. According to Plaintiff, the only reason Williams did not represent her in this litigation is the conflict rule against serving as both an attorney and a witness.")

Case Date Jurisidction State Cite Checked
2013-06-10 Federal CA B 4/14

Chapter: 4.202

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 332 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Document No. 20 is a letter dated August 4, 2011, to Ted Simon, one of Reed Dempsey's criminal defense attorneys, from Clifford Rieders, an attorney whom Simon had consulted regarding the latter's possible retention by the Dempsey family to bring a civil action related to Reed Dempsey's criminal prosecution and student conduct proceedings. Dempsey claims attorney-client privilege. With respect to this document, Dempsey's objection to production shall be SUSTAINED. The attorney-client privilege protects communications between prospective clients and counsel as well as retained counsel. . . . Whether the communication was between client and prospective attorney directly or through retained criminal defense counsel, acting as the client's agent for the purpose of seeking a civil litigation attorney, is immaterial.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 4.202

Case Name: Gay v. Luihn Food Sys., Inc., 54 Va. Cir. 468, 472, 473 (Va. Cir. Ct. 2001)
("A long line of Legal Ethics Opinions issued by disciplinary committees of the Virginia State Bar likewise recognizes that a prospective client's 'initial consultation with an attorney creates an expectation of confidentiality which must be protected by the attorney even where no attorney-client relationship arises in other respects.' . . . An attorney, therefore, has a 'duty to keep confidential those consultations that occur outside formal attorney-client relationships which nonetheless create an expectation of confidentiality.' Va. Legal Ethics Op. 1642 (June 9, 1995)."; "In this case, however, the Court finds that Gay did not provide any information to Nexsen that could be fairly characterized as a confidential communication. The Court, therefore, denies Gay's motion to disqualify Stackhouse, Smith & Nexsen from representing the defendant in this case. It is so ordered.")

Case Date Jurisidction State Cite Checked
2001-01-01 State VA

Chapter: 4.202

Case Name: Dulles Corner Props. II, L.P. v. Smith, 38 Va. Cir. 507 (Fairfax 1992)
(refusing to disqualify a lawyer who had engaged in a 65-minute telephone conversation about a possible representation but later declined the representation and started representing the adversary).

Case Date Jurisidction State Cite Checked
1992-01-01 State VA

Chapter: 4.202

Case Name: Romenesko v. Romenesko, 25 Va. Cir. 220, 220 (Albemarle 1991)
(finding that communication between a potential client and a legal aid "intake paralegal" was not privileged because "communications made before such a [attorney-client] relationship has been established are not privileged")

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

Chapter: 4.202

Case Name: Romenesko v. Romenesko, 25 Va. Cir. 220 (Va. Cir. Ct. 1991)
(finding that communication between a potential client and a "legal aid intake paralegal" was not privileged because "communications made before such a [attorney-client] relationship has been established are not privileged")

Case Date Jurisidction State Cite Checked
1991-01-01 Federal

Chapter: 4.303

Case Name: In re Cutuli, Ch. 7 Case No. 11-35256-BKC-AJC, 2013 Bankr. LEXIS 3843, at *7 8, *10, *10 11 (S.D. Fla. Sept. 13, 2013)
(holding that a trustee for a bankrupt individual could obtain the files of a lawyer who jointly represented the now-bankrupt individual and her husband; "The Andersen Firm has represented the Debtor and 'also represented the debtor's husband in interrelated matters.'. . . The Trustee has discovered that an attorney from The Andersen Firm concurrently communicated with 'Greg, Kathy,' and others unknown to the court. . . . It appears that to the extent Greg Cutuli was a client of The Andersen Firm, he was a co-client with the Debtor."; "Here, the Debtor's privilege (stemming from her former legal representation by The Andersen Firm) 'passed to the Trustee's control on the Petition Date.'. . . As such, the Trustee is entitled to invoke the 'co-client exception' to obtain otherwise privileged documents relating to The Andersen Firm's former co-client(s) with the Debtor."; "Thus, to the extent The Andersen Firm may have represented Greg Cutuli, it did so while jointly representing the Debtor. The Trustee, now standing in the shoes of the Debtor, is adverse to Greg Cutuli; the Trustee has filed adversary proceedings against Greg Cutuli for the benefit of the Debtor's estate . . . and is attempting to liquidate assets that Greg Cutuli claims are owned by him, for the benefit of the Debtor's estate.")

Case Date Jurisidction State Cite Checked
2013-09-13 Federal FL B 4/14

Chapter: 4.401

Case Name: United States v. BAE Systems Tactical Vehicle Systems, LP, Case No. 15-12225, 2017 U.S. Dist. LEXIS 62301 (E.D. Mich. April 25, 2017)
("When the government is involved in civil litigation, it may claim the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2017-04-25 Federal MI

Chapter: 4.401

Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114 (E.D.N.Y. Sept. 18, 2015)
(finding that a Town could not assert privilege for documents to which Town employees without a "need to know" and members of the public had access; holding that the Town had the duty to show that no one actually accessed the documents, and had fallen short of that burden; "One of the underlying issues here pertains to changes made to the certificate of occupancy ('C/O') for the property. Norton argues that the privilege was waived because the Memos were made accessible to Town employees who did not need to know the privileged contents regarding those changes, i.e., the autoworker in the Verschoth [Verschoth v. Time Warner, Inc., No. 00CIV1339, 2001 U.S. Dist. LEXIS 3174, 2001 WL 286763, at *2 (S.D.N.Y. Mar. 22, 2001)] example. Defendants argue without elaboration that 'Building Department or other property-related officials' have a need to know and thus may view privileged communications between the Town Attorney's Office and the Building Department without waiving the privilege, i.e, the engineer in the Verschoth example."; "Applying the standards above, Defendants have failed to carry their burden of establishing that the privileges have not been waived. All of the Memos were contained in the Building Department file and were apparently accessible by all Town employees within that department. . . . (if non-Building Division Town personnel wish to review a document, unspecified 'Building Division staff retrieve the document and provide a copy'). Defendants have presented no reason, however, why all or even most Building Department personnel have a need to know confidential legal communications in order to perform their jobs. As Defendants have failed to carry their burden, the Court finds that they have waived attorney-client privilege as to the Memos."; "The Memos were found in the paper files and Defendants have provided no evidence to counter the plain suggestion that the Memos resided in the paper files for some indeterminate time period for anyone in the public to see, if they asked for the file. Further and conspicuously absent from Defendants' submissions is any argument, let alone supporting evidence such as log books, that the paper files at issue were never checked out by a member of the public. Absent this type of evidence, Defendants have failed to meet their burden of establishing a lack of public access and the Court concludes that they have waived both work product and attorney-client privileges.").

Case Date Jurisidction State Cite Checked
2015-09-18 Federal NY

Chapter: 4.401

Case Name: Grand Canyon Skywalk Development LLC v. Cieslak, Case Nos.: 2:15-cv-01189-JAD-HWF2:13-cv-00596-JAD-GWF, 2015 U.S. Dist. LEXIS 107457 (D. Nev. Aug. 13, 2015)
(analyzing many opinions dealing with the role of public relations consultants in privilege and work product analyses; ultimately concluding that a public relations consultant was the "functional equivalent" of an employee, and therefore was within privilege protection; "The Upjohn test is applicable to confidential communications between counsel for a governmental entity and its employees.")

Case Date Jurisidction State Cite Checked
2015-08-13 Federal NV

Chapter: 4.401

Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
("[D]istrict courts in this circuit have found privilege where government attorneys act not just in a broad policy capacity but in a similar capacity to that of a private attorney advising a client about its interests.")

Case Date Jurisidction State Cite Checked
2014-12-01 Federal KY

Chapter: 4.401

Case Name: Fountain v. United States Dept. of Agriculture; Karim v. United States, Civ. No. 8:13-CV-255 (NAM/RFT) [Lead Case], Civ. No. 3:14-CV-964 (NAM/RFT) [Related Case], 2014 U.S. Dist. LEXIS 141194 (N.D.N.Y. Sept. 30, 2014)
(analyzing attorney-client privilege protection in the government context; "Hence, the predominant purpose of the communication must be to render or gain legal advice.")

Case Date Jurisidction State Cite Checked
2014-09-30 Federal NY

Chapter: 4.401

Case Name: Fountain v. United States Dept. of Agriculture; Karim v. United States, Civ. No. 8:13-CV-255 (NAM/RFT) [Lead Case], Civ. No. 3:14-CV-964 (NAM/RFT) [Related Case], 2014 U.S. Dist. LEXIS 141194 (N.D.N.Y. Sept. 30, 2014)
(analyzing attorney-client privilege protection in the government context; "The attorney-client privilege protects communications between governmental agencies and officials with governmental counsel if they are made for the purpose of obtaining or providing legal assistance.")

Case Date Jurisidction State Cite Checked
2014-09-30 Federal NY

Chapter: 4.401

Case Name: Vicknair v. La. Dep't of Pub. Safety & Corr., No. 13-30244, 2014 U.S. App. LEXIS 2129, at *19 (5th Cir. Feb. 4, 2014)
("The confidential document was between the 'confidential assistant' to DPS' deputy secretary and its general counsel, concerning a pending internal investigation.")

Case Date Jurisidction State Cite Checked
2014-02-04 Federal B 6/14

Chapter: 4.401

Case Name: Hoffman v. City & Cnty. of S.F., Case No. 4:11-cv-4016 CW (KAW), 2013 U.S. Dist. LEXIS 77076, at *3 (N.D. Cal. May 31, 2013)
(finding that sending privileged communications to other government employees did not waive the privilege; "[T]he fact that members of the Civil Service Commission and the City's Human Resources department were also recipients of the documents sent to the City Attorney's office does not render the documents unprivileged, because these individuals were the employees of the City that could have been seeking legal advice.")

Case Date Jurisidction State Cite Checked
2013-05-31 Federal CA B 4/14

Chapter: 4.401

Case Name: Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-FtM-SPC, 2013 U.S. Dist. LEXIS 67797, at *28 & n.8 (M.D. Fla. May 10, 2013)
("The Court is unable to glean whether Ms. Spiegel conducted factual and legal analysis as counsel to the revenue agents or as one of the revenue agents. As the proponent of the privilege, Defendant bears the burden of but has failed to identify 'the underlying facts demonstrating the existence of the privilege.'"; "'[T]he IRS may not invoke the attorney-client privilege simply because an attorney was involved in evaluating Plaintiffs' tax returns and assessing their tax obligations.'")

Case Date Jurisidction State Cite Checked
2013-05-10 Federal FL B 3/14

Chapter: 4.401

Case Name: RFF Family P'ship, LP v. Burns & Levinson, LLP, 991 N.E.2d 1066, 1067-68, 1071 (Mass. 2013)
(finding that a plaintiff suing a law firm for malpractice could not obtain access to communications during a five-day period before the firm withdrew from representing the client; "[W]hen a governmental entity employs an attorney to serve as its in-house legal counsel, the entity is the client, but confidential communications between the counsel and the entity's employees 'undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 State MA B 4/14

Chapter: 4.401

Case Name: Menasha Corp. v. United States DOJ, 707 F.3d 846, 852 (7th Cir. 2013)
(in a FOIA action, finding that the disclosure by certain Department of Justice lawyers to other lawyers did not waive the government's work product protection; "The only federal party was the United States, a single party represented by a single legal representative, the Justice Department.")

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

Chapter: 4.401

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 376 (4th Cir. 2009)
("'[A]n agency can be a "client" and agency lawyers can function as "attorneys" within the relationship contemplated by the privilege.' Coastal States Gas Corp., 617 F.2d at 863; see also Mead Data Cent., Inc., 566 F.2d at 252.")

Case Date Jurisidction State Cite Checked
2009-01-01 Federal

Chapter: 4.401

Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *13-15 (W.D. Va. Apr. 15, 2008)
("The only information provided by the United States in support of its contention that the attorney client privilege applies to the physician and nursing peer review documents is that 'these reviews and reports were prepared at the request of Kathleen Oddo, Attorney, Office of VA Regional Counsel, for use in the performance of her duties as an attorney for the DVA. Should the Court require more information regarding these documents, the United States requests the opportunity to have Ms. Oddo provide that information directly to the Court.' Letter dated April 10, 2008 accompanying material for in camera review. There is no indication from this brief assertion or from the materials themselves that they were communicated to an attorney for the purposes of seeking legal advice. Hawkins, 148 F.3d at 383 (holding that the privilege only applies when the communication between counsel and client is for the purpose of securing either an opinion on law, legal services, or assistance in some legal proceeding). The United States' bald assertion that certain documents were 'prepared at the request' of counsel 'for use in the performance of her duties as an attorney for the DVA' does not meet its burden of establishing that these documents are privileged from discovery under the attorney client privilege. The mere fact that counsel requested certain documents to be prepared does not, in and of itself, meet the government's burden of establishing that the attorney client privilege applies. For the privilege to apply, there must be a communication between the client and its counsel for the purpose of seeking legal advice. While the United States asserts that Ms. Oddo was counsel for the VA and that she requested these documents for use in the performance of her duties, there has been no assertion, much less any showing sufficient to meet its burden, that these documents were communicated to counsel for the purposes of seeking legal advice. As such, the United States has not demonstrated that they are protected from discovery under the attorney client privilege."; finding that the documents deserved work product protection)

Case Date Jurisidction State Cite Checked
2008-04-15 Federal B 5/09

Chapter: 4.401

Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *13 (W.D. Va. Apr. 15, 2008)
("When dealing with a government agency like the Veterans Administration, the client is the agency and the attorney may be an agency lawyer. See Syngenta Crop Prot., Inc. v. United States EPA, 2002 U.S. Dist. LEXIS 22885, 14 (M.D. N.C. 2002).")

Case Date Jurisidction State Cite Checked
2008-04-15 Federal B 5/09

Chapter: 4.401

Case Name: Deichman v. United States, Civ. A. No. 2:05cv680, 2006 U.S. Dist. LEXIS 77155 (E.D. Va. Oct. 19, 2006)
(recognizing that the attorney-client privilege can cover communications between the United States Joint Forces Command and its lawyer)

Case Date Jurisidction State Cite Checked
2006-10-19 Federal N 5/07

Chapter: 4.401

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 266 (E.D. Va. 2006)
("This is a classic example of a confidential communication. A client, here a Council Member, approached his or her attorney, the City Attorney, for legal advice relating to an existing legal problem. Certainly some public information was involved in the City Attorney's analysis: the governing laws, the details of the permit, and other information. But these public facts are intermixed with confidential information: the Council Members' own opinions and concerns and the City Attorney's opinions and analysis. Given confidential treatment and the absence of any waiver, this information may be protected under the attorney-client privilege.)

Case Date Jurisidction State Cite Checked
2006-01-01 Federal B 11/06

Chapter: 4.401

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006)
("It has long been held that an entity can assert the attorney-client privilege. United States v. Louisville & Nashville R. Co., 236 U.S. 318, 336, 35 S. Ct. 363, 59 L. Ed. 598 (1915) (cited in Upjohn Co. v. United States, 449 U.S. 383, 390, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). As an entity, a municipal organization may invoke the privilege. Res. (3d) of Law Governing Lawyers § 74 (2000).")

Case Date Jurisidction State Cite Checked
2006-01-01 Federal

Chapter: 4.401

Case Name: In re Allen, 106 F.3d 582, 600 n.8 (4th Cir. 1997)
(citing numerous cases recognizing that "governmental officials can rely on the attorney-client privilege to protect confidential communications in certain circumstances" (citations omitted)), cert. denied, 522 U.S. 1047 (1998)

Case Date Jurisidction State Cite Checked
1997-01-01 Federal

Chapter: 4.402

Case Name: United States v. BAE Systems Tactical Vehicle Systems, LP, Case No. 15-12225, 2017 U.S. Dist. LEXIS 62301 (E.D. Mich. April 25, 2017)
("[T]he attorney-client privilege does not cover communications adopted as or incorporated into final agency actions or decisions.")

Case Date Jurisidction State Cite Checked
2017-04-25 Federal MI

Chapter: 4.402

Case Name: Public Employees for Environmental Responsibility v. U.S. Environmental Protection Agency, Case No. 15-cv-1012 (CRC), 2016 U.S. Dist. LEXIS 135155 (D.D.C. Sept. 30, 2016)
(analyzing privilege in the government context; "PEER insists otherwise, arguing that the attorney-client privilege does not apply 'when agency communications do not concern 'the legal ramifications of [the agency's] action.'"; "This argument rests on false premises."; "Another defect in PEER's argument is the exceedingly narrow conception of the attorney-client privilege it advances. PEER's rule -- that the attorney-client privilege under Exemption 5 covers only communications regarding 'the legal ramifications of [an agency's] action,' meaning that the communication implicates information 'damaging' to the agency or involves a 'potential [agency] misdeed,'. . . simply cannot be squared with the relevant cases. Courts have applied the attorney-client privilege in the FOIA context to protect legal advice from agency attorneys to agency investigators concerning the legal parameters of third-party conduct."; "As detailed in a declaration submitted by the agency, the EPA-OIG has tagged the relevant records with 'restricted' and 'official use only' labels, and has stored them in a database accessible only to authorized EPA-OIG employees. . . . This case also differs because it involves advice given in response to a particular complaint regarding a specific suspicion of illegal misconduct, and there is no contention that the advice contained in these withheld documents has been applied in some precedential way beyond those particular circumstances."; "As an alternative argument, PEER suggests that even if the attorney-client privilege is applicable to the withheld documents, the factual findings in those documents are 'reasonably segregable' from the remainder, and therefore as '[n]on-privileged factual material . . . must still be disclosed' under FOIA. . . . That argument, too, is unavailing. As discussed above, the attorney-client privilege protects not only legal advice, but the confidentially conveyed facts upon which that advice is based. Attorney-client communications are a two-way street. . . . Indeed, '[f]actual information provided by the client to the attorney is the essence of the privilege.'. . . And although it is far from clear that the information at issue here itself derived from a third party (as opposed to EPA-OIG and CSB employees), it is established that the attorney-client privilege may apply even where the relevant 'legal advice concern[s] information originating with a third party.'")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal DC

Chapter: 4.402

Case Name: Ocampo v. Harrington, No. 14-3134, 2015 U.S. Dist. LEXIS 108157 (C.D. Ill. Aug. 17, 2015)
(applying the attorney-client privilege in the government setting; "The Supreme Court clearly stated that the attorney-client privilege is the same for both governmental and non-governmental parties.")

Case Date Jurisidction State Cite Checked
2015-08-17 Federal IL

Chapter: 4.402

Case Name: Ocampo v. Harrington, No. 14-3134, 2015 U.S. Dist. LEXIS 108157 (C.D. Ill. Aug. 17, 2015)
(applying the attorney-client privilege in the government setting; "The Court disagrees with Ocampo's conclusion. The Court agrees that the attorney-client privilege does not apply when attorneys are not acting as attorneys, but rather are performing administrative or regulatory functions. . . . Attorneys Lundgren and Kucik, however, were acting as attorneys and provided legal advice in these documents. Specifically, the redacted information in the Lundgren memo gives legal conclusions and recommendations to the client from the Office of Chief Counsel. The two contested Kucik emails do the same. These communications were made for the purpose of providing legal advice. The fact that ICE policies and procedures may have required attorneys to provide legal advice did not transform their communications into something other than legal advice. Lundgren and Kucik were not performing administrative or regulatory functions. They were providing confidential legal advice. The Court sustains the Defendants' claim of attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-08-17 Federal IL

Chapter: 4.402

Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)
("Communications seeking information from -- or sharing information with -- the Virginia Attorney General's office, however, do not fall within the attorney-client privilege. The Attorney General provides legal advice to the executive branch and its constituents. No legislator or legislative entity could reasonably expect that an attorney-client relationship would be created or that the attorney-client privilege would attach as a result of a request for a legal opinion or position from the executive.")

Case Date Jurisidction State Cite Checked
2015-05-26 Federal VA

Chapter: 4.402

Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
("[D]istrict courts in this circuit have found privilege where government attorneys act not just in a broad policy capacity but in a similar capacity to that of a private attorney advising a client about its interests.")

Case Date Jurisidction State Cite Checked
2014-12-01 Federal KY

Chapter: 4.402

Case Name: North Dakota v. United States, Case No. 1:12-CV-125 (Lead Case), Case No. 1:12-CV-102 (Consolidated Case), 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
(analyzing privilege protection for a government entity; "[T]he court believes the Supreme Court and the Eighth Circuit would conclude that the reasons for applying the broadest approach to claims of privilege by a governmental entity outweigh the considerations for not doing so, keeping in mind that Congress has the authority to decide differently for some or all attorney opinions and communications. . . . These reasons include the commonsense notion that governmental decisions based on sound legal advice advance the public interest and that the broadest approach facilitates this by not only encouraging public officials to seek legal advice but also by encouraging governmental attorneys to respond with frank, candid advice.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal ND

Chapter: 4.402

Case Name: North Dakota v. United States, Case No. 1:12-CV-125 (Lead Case), Case No. 1:12-CV-102 (Consolidated Case), 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
(analyzing privilege protection for a government entity; "Plaintiffs contend that the opinions by OGC attorneys Hankins and Wood are not privileged because they form the basis of federal policy with respect to the application of R.S. 2477."; "There is no evidence the Forest Service represented to the public that the particular OGC opinions in question represented the official Department of Agricultural policy (as opposed to, perhaps, indicating that guidance needed to be obtained from the OGC).")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal ND

Chapter: 4.402

Case Name: North Dakota v. United States, Case No. 1:12-CV-125 (Lead Case), Case No. 1:12-CV-102 (Consolidated Case), 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
(analyzing privilege protection for a government entity; "It may be that, when the federal government is involved, a court should be extra cautious about concluding that a waiver of the privilege should extend to other documents involving the same subject matter given: its size and complexity; the difficulty of individual government employees focused on one mission being able to appreciate the consequences of disclosure with respect to what may be broader governmental interests; questions of authority of the person disclosing the material to waive the privilege; and other like considerations. But, even if so, 'fairness' requires here that the waiver occasioned by the disclosure of the 'Gippert memorandum' should extend to the 1962 and the 1980 OGC opinions by Hankins and Wood, as well as the other documents referencing them.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal ND

Chapter: 4.402

Case Name: North Dakota v. United States, Case No. 1:12-CV-125 (Lead Case), Case No. 1:12-CV-102 (Consolidated Case), 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
(analyzing privilege protection for a government entity; "[T]here has been some question as to when the privilege can be claimed by a governmental entity given the competing desires for open, accessible, transparent, and honest government.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal ND

Chapter: 4.402

Case Name: North Dakota v. United States, Case No. 1:12-CV-125, 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014)
January 7, 2015 (PRIVILEGE POINT)

“Courts Examine Privilege Issues in Government and Association Contexts”

Most case law focuses on attorney-client privilege issues involving individual or corporate clients. Fewer decisions address that protection in other contexts.

In North Dakota v. United States, Case No. 1:12-CV-125, 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014), the court dealt with the federal government's privilege — recognizing both broader and narrower privilege aspects in that setting. Among other things, the court (1) applied "the broadest approach to claims of privilege by a governmental entity," pointing to the "commonsense notion that governmental decisions based on sound legal advice advance the public interest" (id. at *63); but (2) acknowledged that the privilege does not apply to otherwise protected communications that "form the basis of federal policy" (although rejecting plaintiffs' argument that the withheld documents "represented the official Department of Agricultural policy") (id. at *64-65). A week earlier, another court dealt with the privilege in the association context. In In re Processed Egg Products Antitrust Litigation, MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014), the court held that (1) the privilege could protect communications between trade association lawyers and association members if the communications involved the association lawyers' advice "within the scope of the member's role within the association and given for the sake of advising the association" (id. at *34); (2) the association would own that privilege; (3) other communications between trade association lawyers and association members might not be privileged at all if they did not meet that standard; and (4) if those other communications deserved privilege protection, the association members owned the privilege.

Corporations' lawyers who deal with the government and with associations should familiarize themselves with the unique privilege aspects applicable in those contexts.

Case Date Jurisidction State Cite Checked
2014-11-25 Federal ND
Comment:

key case


Chapter: 4.402

Case Name: In re Processed Egg Products Antitrust Litigation, MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014)
January 7, 2015 (PRIVILEGE POINT)

“Courts Examine Privilege Issues in Government and Association Contexts”

Most case law focuses on attorney-client privilege issues involving individual or corporate clients. Fewer decisions address that protection in other contexts.

In North Dakota v. United States, Case No. 1:12-CV-125, 2014 U.S. Dist. LEXIS 165900 (D.N.D. Nov. 25, 2014), the court dealt with the federal government's privilege — recognizing both broader and narrower privilege aspects in that setting. Among other things, the court (1) applied "the broadest approach to claims of privilege by a governmental entity," pointing to the "commonsense notion that governmental decisions based on sound legal advice advance the public interest" (id. at *63); but (2) acknowledged that the privilege does not apply to otherwise protected communications that "form the basis of federal policy" (although rejecting plaintiffs' argument that the withheld documents "represented the official Department of Agricultural policy") (id. at *64-65). A week earlier, another court dealt with the privilege in the association context. In In re Processed Egg Products Antitrust Litigation, MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014), the court held that (1) the privilege could protect communications between trade association lawyers and association members if the communications involved the association lawyers' advice "within the scope of the member's role within the association and given for the sake of advising the association" (id. at *34); (2) the association would own that privilege; (3) other communications between trade association lawyers and association members might not be privileged at all if they did not meet that standard; and (4) if those other communications deserved privilege protection, the association members owned the privilege.

Corporations' lawyers who deal with the government and with associations should familiarize themselves with the unique privilege aspects applicable in those contexts.

Case Date Jurisidction State Cite Checked
2014-11-17 Federal PA
Comment:

key case


Chapter: 4.402

Case Name: Fountain v. United States Dept. of Agriculture; Karim v. United States, Civ. No. 8:13-CV-255 (NAM/RFT) [Lead Case], Civ. No. 3:14-CV-964 (NAM/RFT) [Related Case], 2014 U.S. Dist. LEXIS 141194 (N.D.N.Y. Sept. 30, 2014)
(analyzing attorney-client privilege protection in the government context; "Although legal consideration may play a role in government policymaking . . . The attorney-client privilege will still protect communications with a governmental lawyer as long as he has no policymaking authority")

Case Date Jurisidction State Cite Checked
2014-09-30 Federal NY

Chapter: 4.402

Case Name: Fountain v. United States Dept. of Agriculture; Karim v. United States, Civ. No. 8:13-CV-255 (NAM/RFT) [Lead Case], Civ. No. 3:14-CV-964 (NAM/RFT) [Related Case], 2014 U.S. Dist. LEXIS 141194 (N.D.N.Y. Sept. 30, 2014)
(analyzing attorney-client privilege protection in the government context; "But the attorney-client privilege is narrowly construed in order to achieve its purpose, especially between governmental agency and its attorneys, where it may render relevant information undiscoverable that which may be juxtaposed against the competing value of open and accessible government.")

Case Date Jurisidction State Cite Checked
2014-09-30 Federal NY

Chapter: 4.402

Case Name: Hoffman v. City & County of San Francisco, Case No. 4:11-cv-4016 CW (KAW), 2013 U.S. Dist. LEXIS 77076 (N.D. Cal. May 31, 2013
July 31, 2013 (PRIVILEGE POINT)

"The Attorney-Client Privilege Protection Applies in Unique Ways to Government Lawyers"

Every court agrees that governments at all levels can enjoy privilege protection when government employees with the appropriate level of authority seek legal advice from government or outside lawyers. However, government lawyers face unique privilege principles.

In Hoffman v. City & County of San Francisco, Case No. 4:11-cv-4016 CW (KAW), 2013 U.S. Dist. LEXIS 77076 (N.D. Cal. May 31, 2013), the court applied the same privilege protection in the governmental context that would apply elsewhere. Among other things, the court rejected plaintiffs' argument that the privilege did not protect otherwise privileged documents sent to "members of the Civil Service Commission and the City's Human Resources department," explaining that "these individuals were the employees of the City that could have been seeking legal advice." Id. At *3. Several weeks earlier, another court applied one of the unique rules governing privilege claims in the governmental context. In Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-FtM-SPC, 2013 U.S. Dist. LEXIS 67797 (M.D. Fla. May 10, 2013), the court ordered disclosure of an IRS lawyer's legal opinion. The court acknowledged that the opinion deserved privilege protection, but ultimately concluded that "the attorney-client privilege may not be invoked to shield a document adopted as, or incorporated by reference into, an agency's policy." Id. At *30.

Lawyers challenging the IRS's and other governmental agencies' privilege claims should familiarize themselves with the unique rules governing privilege protection in that context.

Case Date Jurisidction State Cite Checked
2013-05-31 Federal CA
Comment:

key case


Chapter: 4.402

Case Name: Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-FtM-SPC, 2013 U.S. Dist. LEXIS 67797 (M.D. Fla. May 10, 2013)
July 31, 2013 (PRIVILEGE POINT)

"The Attorney-Client Privilege Protection Applies in Unique Ways to Government Lawyers"

Every court agrees that governments at all levels can enjoy privilege protection when government employees with the appropriate level of authority seek legal advice from government or outside lawyers. However, government lawyers face unique privilege principles.

In Hoffman v. City & County of San Francisco, Case No. 4:11-cv-4016 CW (KAW), 2013 U.S. Dist. LEXIS 77076 (N.D. Cal. May 31, 2013), the court applied the same privilege protection in the governmental context that would apply elsewhere. Among other things, the court rejected plaintiffs' argument that the privilege did not protect otherwise privileged documents sent to "members of the Civil Service Commission and the City's Human Resources department," explaining that "these individuals were the employees of the City that could have been seeking legal advice." Id. At *3. Several weeks earlier, another court applied one of the unique rules governing privilege claims in the governmental context. In Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-FtM-SPC, 2013 U.S. Dist. LEXIS 67797 (M.D. Fla. May 10, 2013), the court ordered disclosure of an IRS lawyer's legal opinion. The court acknowledged that the opinion deserved privilege protection, but ultimately concluded that "the attorney-client privilege may not be invoked to shield a document adopted as, or incorporated by reference into, an agency's policy." Id. At *30.

Lawyers challenging the IRS's and other governmental agencies' privilege claims should familiarize themselves with the unique rules governing privilege protection in that context.

Case Date Jurisidction State Cite Checked
2013-05-10 Federal FL
Comment:

key case


Chapter: 4.402

Case Name: Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-FtM-SPC, 2013 U.S. Dist. LEXIS 67797, at *30 (M.D. Fla. May 10, 2013)
("Like the deliberative process privilege, the attorney-client privilege may not be invoked to shield a document adopted as, or incorporated by reference into, an agency's policy.")

Case Date Jurisidction State Cite Checked
2013-05-10 Federal FL B 3/14

Chapter: 4.402

Case Name: Earthworks v. U.S. Dept. of the Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *4-5, *5-6 (D.D.C. Apr. 2, 2013)
(holding that a lawyer's draft of contemporaneous documents did not deserve privilege protection; "Whether or not a document styled a draft in a privilege log is privileged can be a multifaceted and fact-bound determination. The transmittal of a communication from a client to a lawyer with an express request for guidance presents the easy case: 'Here is the draft employment agreement I am going to ask my boss to sign. Let me know if it protects my legal rights.' In other circumstances, the absence of an explicit request for advice may not doom the claim of privilege, if the confidential nature of the communication can be discerned from what the lawyer has said or done. For example, a red lined edited draft of the agreement from the lawyer to the client may, in a certain context, itself permit the inference that the client sent the draft to the lawyer expecting the lawyer to provide confidential guidance as to contents of the documents. The process of the exchange may itself bespeak an intention by the client that her transmittal of the draft be a confidential request for guidance."; "On the other hand, and this is particularly true in a governmental situation, the lawyer may be the chief draftsperson of a particular document which she then sends to her co-workers for their views and thoughts. While their responses may qualify as communications to a lawyer intended to be confidential, the lawyer's draft, transmitted to them, does not yield any confidential communication from them. In other words, from the lawyer's draft, we learn only that she wrote a draft and transmitted it to her clients. Thus, while there are circumstances where even a draft might yield a secret, client communication (e.g. the draft of a will that provides for an illegitimate child), the transmittal of drafts in this case does not. That the DOI lawyers and other employees were in the process of drafting new rules and regulations in response to an order in this case is hardly a secret. The privilege log itself indicates that such drafting was taking place.")

Case Date Jurisidction State Cite Checked
2013-04-02 Federal DC B 3/14

Chapter: 4.402

Case Name: A.N.S.W.E.R. Coalition v. Jewell, 292 F.R.D. 44, 48 (D.D.C. 2013)
("[W]hen a government attorney 'act[s] more in the nature of a business advisor, legislator, adjudicator, or regulator, the attorney-client privilege generally does not apply.'" (citation omitted))

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

Chapter: 4.402

Case Name: Under Seal 1 v. United States (In re Grand Jury Subpoena), 542 F. App'x 252, 254, 254-55 (4th Cir. 2013)
(finding it unnecessary to decide if the attorney-client privilege protected communications between a government lawyer and a government official, because the two emails at issue did not relate to legal advice and therefore did not deserve privilege protection; "[T]he government-employed lawyer could not (or at least did not) testify that he was acting as a lawyer or providing an opinion of law or legal services to Appellants with respect to the emails. . . . The lawyer's own declaration fails to state the same. . . . Appellants provided no other affidavits, statements, or witnesses on this point."; "Appellants utterly failed to present any specific underlying facts to establish the privilege and meet their burden. The record contains evidence of not even a single conversation between the government official and the government-employed lawyer that concerned the seeking of legal advice. Thus, Lindsey [In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998)] is unavailing."; "Having decided that Appellants failed to meet their burden as to the two emails, we must now address whether we can review the district court's broad ruling that the attorney-client privilege does not exist between a government official and a government-employed lawyer in the context of a criminal investigation. We conclude that the issue is moot, and to review it at this juncture would be to render an advisory opinion.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 4/15

Chapter: 4.402

Case Name: Judicial Watch, Inc. United States Dep't of Homeland Sec., 926 F. Supp. 2d 121, 146 (D.D.C. 2013)
("[E]ach of these documents, as described by DHS [Department of Homeland Security] in its Vaughn [referring to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973] Index and briefing (and as apparent from the face of many of the redacted documents themselves) provides guidance on the prioritization of cases and instructions regarding scenarios under which ICE attorneys should, or should not, exercise prosecutorial discretion. . . . Put differently, each of these documents appears to concern nothing more than the implementation of an agency policy, the withholding of which runs counter to the Circuit's admonition that a government attorney's 'advice on political, strategic, or policy issues [is] not . . . shielded from disclosure by the attorney-client privilege.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-01-01 Federal DC

Chapter: 4.403

Case Name: In re Grand Jury Subpoena, JK-15-029, United States v. Kitzhaber, No. 15-35434, 2016 U.S. App. LEXIS 12860 (9th Cir. App. July 13, 2016)
("For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon's computer servers. According to Kitzhaber, he was unaware of the archiving of these emails, which include many private details unrelated to his official duties regarding him and his family, as well as private communications with his personal attorneys and with attorneys for the State of Oregon. Because this cache would be turned over to the government under the subpoena, Kitzhaber argues the subpoena is unreasonably broad, as it violates his Fourth Amendment privacy rights and invades his attorney-client privilege. Kitzhaber asserts in particular that the attorney-client privilege protects his communication with attorneys for the State of Oregon regarding issues concerning possible conflicts of interest and ethics violations. The government disclaims any interest in Kitzhaber's communications with his personal attorneys but argues it is otherwise entitled to everything it has requested."; "The public's interest in accountability and transparency is particularly strong when it comes to the investigation of elected officials, and grand juries are appropriately accorded a wide degree of latitude. But we agree with Kitzhaber that he had a reasonable expectation of privacy in much of his personal email (although the Fourth Amendment's protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case -- which is not even minimally tailored to the government's investigatory goals -- is unreasonable and invalid. We do not agree, however, that Kitzhaber may assert the attorney-client privilege for his communications, including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon's attorneys. Whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity.")

Case Date Jurisidction State Cite Checked
2016-07-13 Federal

Chapter: 4.403

Case Name: Humphries v. Chicarelli, Case No. 1:10 cv 749, 2012 U.S. Dist. LEXIS 168038, at *12 (S.D. Ohio Nov. 27, 2012)
(finding that a single member of a city council could not waive the city council's privilege; "The city council is not a separate legal entity from the municipality itself for purposes of applying the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2012-11-27 Federal OH B 8/13

Chapter: 4.405

Case Name: The New York Times Co. v. U.S. Dept. of Justice, 14-CV-3777 (JPO), 2015 U.S. Dist. LEXIS 133520 (S.D.N.Y. Sept. 30, 2015)
(in a FOIA case, analyzing work product protection for taped interviews of criminal detainees; "A document that would ordinarily be protected under Exemption Five loses its protection if 'the agency has chosen 'expressly to adopt [it] or incorporate [it] by reference.'"; "The attorney-client privilege and the work-product doctrine are, if not twins, at least very close siblings. Both privileges exist to protect the public's ability to access legal services. The former does so by allowing a client to communicate frankly and openly with his or her counsel; the latter by permitting the 'lawyer [to] work with a certain degree of privacy.". . . The Second Circuit has held that 'the principal rationale behind the attorney-client privilege -- to promote open communication between attorneys and their clients so that fully informed legal advice may be given -- . . . Evaporates . . . Once an agency adopts or incorporates [a] document.' . . . If publicly adopting a document vitiates the purposes of the attorney-client privilege, it is hard to see why it ought not to do the same to the work product doctrine. Similarly, if justifying agency action on the basis of a document shielded by the attorney-client privilege is offensive to FOIA, it is hard to see why justifying the same action on the basis of a document shielded by the work-product doctrine is not offensive. The Court concludes, accordingly, that express adoption doctrine applies to the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2015-09-30 Federal NY

Chapter: 4.405

Case Name: Virginian-Pilot Media Cos., L.L.C. v. City of Norfolk Sch. Bd, 81 Va. Cir. 450 (Va. Cir. Ct. 2010)
(discussing Virginia's FOIA statute)

Case Date Jurisidction State Cite Checked
2010-01-01 State VA

Chapter: 4.405

Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353 (4th Cir. 2009)
(analyzing a FOIA case)

Case Date Jurisidction State Cite Checked
2009-01-01 Federal N 7/27/09

Chapter: 4.405

Case Name: Shenandoah Publ'g House, Inc. v. City of Winchester, 52 Va. Cir. 111 (Va. Cir. Ct. 2000)
(assessing Virginia's FOIA law)

Case Date Jurisidction State Cite Checked
2000-01-01 State VA