Showing 410 of 410 results

Chapter: 52.2

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)
("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

Case Date Jurisidction State Cite Checked
2018-09-30 Federal SC
Comment:

key case


Chapter: 52.2

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)
("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal SC
Comment:

key case


Chapter: 52.2

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)
("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal SC
Comment:

key case


Chapter: 52.2

Case Name: Abila v. Funk, No. CIV 14-1002 JB/SV, 2016 U.S. Dist. LEXIS 131121 (D.N.M. Sept. 20, 2016)
("Analysis of whether a communication falls within the attorney-client privilege should precede any inquiry into whether the work-product protection applies.")

Case Date Jurisidction State Cite Checked
2016-09-20 Federal NM

Chapter: 52.2

Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)
(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "'The categories of the Reuther Spreadsheet evaluated in the Court's attorney-client privilege analysis above are not addressed by this section because the Court deems them subject to the more robust protection of the attorney-client privilege. The lack of inclusion should in no way be construed as meaning that those categories could not obtain work product protection if a reviewing court did not find them privileged attorney-client communications.'")

Case Date Jurisidction State Cite Checked
2016-08-26 Federal IL

Chapter: 52.2

Case Name: Berens v. Berens, 785 S.E.2d 733, 742 (N.C. Ct. App. 2016)
("We also are unable to determine based on the limited record whether the documents requested, or any of them, are subject to the work product doctrine. This determination is necessary only for documents which Defendant asserts are work product and which the trial court concludes are not protected by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-04-19 Federal NC B 8/16

Chapter: 52.2

Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948, at *11 n.6 (S.D.N.Y. Mar. 4, 2016)
(holding that work product doctrine was prepared during a resources consulting group's investigation into a company employee's allegation that she was raped; noting that the defendant dropped an affirmative defense that arguably asserted a Faragher-Ellerth defense, and disclaimed relying on Faragher-Ellerth; "'Defendants also assert the attorney-client privilege with respect to certain correspondence between Vineyard Vines' counsel and Vineyard Vines employees. . . . However, because the Court finds that all of the Investigative Documents are protected by the work-product doctrine, and because Plaintiff does not dispute Defendant' [sic] assertion of the attorney-client privilege except to argue that the privilege has been waived, . . . the Court will not analyze whether a subset of the Investigative Documents is doubly shielded by the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-03-04 Federal NY B 8/16

Chapter: 52.2

Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2015 U.S. Dist. LEXIS 100109 (E.D. Tex. July 31, 2015)
(holding that a relator's disclosure statement to the government deserved at least fact work product protection; noting that the Fifth Circuit had not decided whether the opinion work product doctrine applied as well; "'The Court will not address Relators' claim that the disclosure statement is protected by attorney-client privilege. However, reported decisions expressly addressing the issue have uniformly concluded that disclosure statements are not protected by the attorney-client privilege.'")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal TX

Chapter: 52.2

Case Name: La Suisse, Societe D'Assurances Sur La Vie v. Kraus, 06 Civ. 4404 (CM) (GWG), 2014 U.S. Dist. LEXIS 166673 (S.D.N.Y. Dec. 1, 2014)
(analyzing a lawsuit in which an insurance holder sued Swiss Life, which in turn sued an insurance broker; analyzing communications between plaintiffs' former lawyer Mahon and the broker Kraus; noting that Mahon had not claimed work product protection; "'Mahon alludes to the existence of 'attorney work product' within the materials sought, see Mahon Letter at 4, but nowhere makes an objection to the subpoena based on the work product doctrine, see Fed. R. Civ. P. 26(b)(3). Accordingly, we do not discuss and do not reach the question of whether any of the material sought consists of attorney work product.'")

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

Chapter: 52.2

Case Name: Skepnek v. Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *12 (D. Kan. Sept. 4, 2014)
("While Judge O'Hara may have applied federal common law instead of Kansas state law in conducting his privilege analysis, the two bodies of law do not appear to differ in any material respect. In fact, as will be discussed below, the Kansas Supreme Court has cited with approval federal court discussions of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-09-04 Federal KS

Chapter: 52.2

Case Name: AKH Co., Inc. v. Universal Underwriter Ins. Co., Case No. 13-2003-JAR-KGG, 2014 U.S. Dist. LEXIS 115750 (D. Kansas Aug. 20, 2014)
("An unresolved issue in this case is whether Kansas or California law will apply. However, the analysis of this issue under Kansas privilege law yields the same result.")

Case Date Jurisidction State Cite Checked
2014-08-20 Federal KS

Chapter: 52.2

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-13-0273, 2014 Ill. App. Unpub. LEXIS 1789 (Ill. 5th Dist. App. Aug. 18, 2014)
(applying the "no secrets" rule in a joint representation context, and requiring jointly represented clients to turn over all otherwise privileged documents to the other in a dispute between them; extending the rule even to documents created three years after the joint representation ended; "We first note that the parties agree that this case involves a choice-of-law issue between Missouri and Illinois law. However, they also agree that there is no conflict between the law of the two states on the relevant issues.")

Case Date Jurisidction State Cite Checked
2014-08-18 State IL

Chapter: 52.2

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794, at *5 (W.D. Va. Aug. 14, 2014)
("State law governs an evidentiary privilege where, as here, the underlying claim or defense is governed by state law. See Fed. R. Evid. 501. The parties thus agree that Virginia law controls this privilege issue. Under Virginia law, confidential attorney-client communications are privileged from disclosure.")

Case Date Jurisidction State Cite Checked
2014-08-14 Federal VA B 3/16

Chapter: 52.2

Case Name: FDIC v. The Coleman Law Firm, Case No. 11 C 8823, 2014 U.S. Dist. LEXIS 102931 (N.D. Ill. July 29, 2014)
("At the outset, the parties dispute whether federal or Illinois law controls the privilege and work-product doctrine analysis in this case. . . . It does not seem to matter which underlying privilege or work-product doctrine law applies because no relevant difference regarding the common interest exception has been identified by the parties.")

Case Date Jurisidction State Cite Checked
2014-07-29 Federal IL

Chapter: 52.2

Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)
("'Because the Court finds that the subject documents qualify as opinion work product (or fact work-product unavailable due to the lack of substantial need and hardship), and therefore, warrant immunity from disclosure, the Court need not reach the question of whether the documents also constitute attorney-client privileged material. At first blush, they do not, however, appear to qualify as attorney-client privilege, and are properly analyzed under the work product doctrine.'")

Case Date Jurisidction State Cite Checked
2014-07-11 Federal MD

Chapter: 52.2

Case Name: Gardner v. Major Automobile Co., Inc., 11 Civ. 1664 (FB) (VMS), 2014 U.S. Dist. LEXIS 44877 (E.D.N.Y. March 31, 2014)
("'District Judge Block has held that under New York's choice-of-law rules, Nevada law governs Plaintiffs' substantive claims against Defendants. . . . ('Under New York's choice-of-law rules, the law of Nevada Major's state of incorporation governs the claim.'). Based on the submissions on this privilege issue, the Parties are in apparent agreement that Second Circuit precedent and its progeny govern this privilege dispute insofar as this is the law that both Parties present to the Court in support of their positions. . . . No Party requested the application of Nevada law.'")

Case Date Jurisidction State Cite Checked
2014-03-31 Federal NY

Chapter: 52.2

Case Name: Shakima O. v. Westchester Cnty., No. 12 CV 9468 (VB), 2014 U.S. Dist. LEXIS 18644, at *17 n.7 (S.D.N.Y. Feb. 10, 2014)
("Because the Court holds the e-mail at issue is protected by the attorney-client privilege, it is not necessary to examine whether the e-mail is also privileged attorney work product.")

Case Date Jurisidction State Cite Checked
2014-02-10 Federal NY B 7/15

Chapter: 52.2

Case Name: Gresser v. Wells Fargo Bank, N.A., Case No. CCB-12-0987, 2014 U.S. Dist. LEXIS 9021, at *18-19, *19, *20 (D. Md. Jan. 24, 2014)
("While it is true that the Plaintiffs may have stood to benefit from the legal advice Wells Fargo received from Thompson Hine, that benefit was indirect, and would have been owed to Wells Fargo discharging its obligations under its contract with KH Funding. The need to protect Wells Fargo's privileged communications with Thompson Hine far outweighs any benefit the Plaintiffs might have indirectly stood to gain from the advice."; "Wells Fargo retained Thompson Hine for legal advice related to its obligations under the indenture. Wells Fargo and Plaintiffs were not co-clients and Thompson Hine had no duty to act in the Plaintiffs' best interest. Accordingly, I find that no exception to the attorney-client privilege applies in this case that would entitle Plaintiffs to the communications they now seek."; "Wells Fargo's privilege log indicates that all documents were withheld on the basis of the attorney-client privilege, and several documents were withheld on the basis of both the attorney client-privilege and the work-product doctrine. Because I have found that the attorney-client privilege protects all of the documents at issue from disclosure to Plaintiffs, I am not required to address the issue of whether the fiduciary exception applies to the documents Wells Fargo has designated as protected from disclosure by the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2014-01-24 Federal MD B 6/14

Chapter: 52.2

Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 204, at *21 (Del. Ch. July 25, 2013)
("Because I have found that the Petition Action Documents are protected by the attorney-client privilege under the analysis set forth in Riggs [Riggs Nat'l Bank of Wash. D.C. v. Zimmer, 355 A.2d 709 (Del. Ch. 1976)], I do not reach the question of work product protection at this time.")

Case Date Jurisidction State Cite Checked
2013-07-25 State DE B 4/14

Chapter: 52.2

Case Name: Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968, at *13 n.2 (D.S.C. May 23, 2013)
(holding that the attorney-client privilege protected a collection of historical data; not addressing any possible work product protection; noting that the party produced the raw data to the adversary; "In light of the Court's conclusion that the spreadsheets are protected by the attorney-client privilege, the Court does not reach the issue of whether the spreadsheets also are protected by the work product doctrine.")

Case Date Jurisidction State Cite Checked
2013-05-23 Federal SC B 12/13

Chapter: 52.2

Case Name: Random Ventures, Inc. v. Advanced Armament Corp., No. 12 Civ. 6792 (KBF), 2013 U.S. Dist. LEXIS 20513, at *7 (S.D.N.Y. Feb. 5, 2013)
("The attorney-client privilege alone is sufficient to protect the recording from disclosure. The Court therefore declines to reach the question of whether some or all of the recording would be independently protected under the work product doctrine.")

Case Date Jurisidction State Cite Checked
2013-02-05 Federal NY B 2/14

Chapter: 52.2

Case Name: State v. Lead Indus. Assoc., 64 A.3d 1183, 1200 (R.I. 2013)
(holding that a Sherwin-Williams PowerPoint presentation to its board of directors about available insurance coverage deserved fact work product protection; finding that Sherwin-Williams did not waive the applicable work product protection by sharing the PowerPoint with a blogger and a LexisNexis representative in the company's efforts to find out how the PowerPoint had been leaked to the public; "Because we hold that the slides were protected under the work-product doctrine and that this doctrine was not waived, we do not reach the claim of attorney-client privilege.")

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

Chapter: 52.2

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *72 n.19 (S.D. Ohio Nov. 13, 2012)
("Because the Court determines these documents are protected by the attorney-client privilege, there is no need to determine whether they are also documents prepared in anticipation of litigation and qualify as work product.")

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

Chapter: 52.4

Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 226 (4th Cir. 2011)
("Intended to encourage 'full and frank communication between attorneys and their clients,' the attorney-client privilege is 'the oldest of the privileges for confidential communications known to the common law.' Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Nonetheless, the privilege is not absolute, and this court has noted that it 'is to be strictly confined within the narrowest possible limits consistent with the logic of its principle.' United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996) (internal citations and quotation marks omitted).")

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 52.5

Case Name: Hyatt v. Cal. Franchise Tax Board, 962 N.Y.S.2d 282, 295 (N.Y. App. Div. 2013)
(analyzing a choice of laws issue, and ultimately relying on the New York "significant relationship" test; "To determine which state's privilege law should apply, New York courts apply an interest analysis. '[T]he law of the jurisdiction having the greatest interest in the litigation will be applied and . . . the facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict.'" (citation omitted); "Here, despite Hyatt's alleged (and disputed) residency in Nevada during a portion of the relevant period, New York has the greatest interest in applying its privilege law to the subject subpoenas, which seek documents created in New York regarding a licensing program administered in New York by Philips, a New York corporation, and to depose New York-based attorneys.")

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

Chapter: 52.5

Case Name:


Case Date Jurisidction State Cite Checked
2010-05-31

Chapter: 52.5

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
(applying Delaware rather than Massachusetts privilege law, and ultimately finding that the attorney-client privilege protected the client's communications with its investment banker Goldman Sachs; "This particular challenge raises a choice-of-law dispute over whether Delaware or Massachusetts law should apply. 3Com would apply the law of Delaware, which extends a wider privilege for communications made between a client and its attorney in the presence of an investment banker than that recognized by Massachusetts.")

Case Date Jurisidction State Cite Checked
2010-05-31 State DE

Chapter: 52.5

Case Name:


Case Date Jurisidction State Cite Checked
2010-05-31

Chapter: 52.302

Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("'There is no material difference between Ohio's attorney-client privilege and the federal attorney-client privilege.'")

Case Date Jurisidction State Cite Checked
2017-04-11 Federal OH

Chapter: 52.302

Case Name: Huntington Chase Condominium Assoc. v. Mid-Century Ins. Co., No. 16 C 4877, 2017 U.S. Dist. LEXIS 14082 (N.D. Ill. Feb. 1, 2017)
("As agreed by the parties, because this case is a diversity action arising out of a contractual dispute in which Illinois law governs the rules of decision, this Court must apply Illinois law to determine whether the attorney-client privilege applies to the subject documents.")

Case Date Jurisidction State Cite Checked
2017-02-01 Federal IL

Chapter: 52.302

Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("The parties agree that California law governs the attorney-client privilege issues now before the Court.")

Case Date Jurisidction State Cite Checked
2016-11-08 Federal IL

Chapter: 52.302

Case Name: Harris Management, Inc. v. Coulombe, Dkt. BCD-15-363, 2016 Me. LEXIS 185 (Me. Nov. 8, 2016)
January 11, 2017 (PRIVILEGE POINT)

"Two Decisions Issued the Same Day Highlight Choice of Laws Issues: Part II"

Last week's Privilege Point described a Maine case applying the narrow pre-Upjohn "control group" standard for corporate communications. Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, ---A.3d---. Illinois is by far the largest state that still follows the worrisome "control group" standard. Illinois federal courts sitting in diversity frequently apply that state's "control group" standard to strip away corporations' privilege protection.

But sometimes Illinois federal courts look elsewhere for privilege law. In In re Fluidmaster, Inc., the court noted that "[t]he parties agree that California law governs the attorney-client privilege issues now before the Court." Case No. 1:14-cv-05696, MDL 2585, 2016 U.S. Dist. LEXIS 154618, at *5 (N.D. Ill. Nov. 8, 2016). The court therefore applied several favorable California statutory law principles to the defendant corporation's privilege protection, including (1) communications "made in the course of an attorney-client relationship" are "presumed to have been made in confidence"; (2) the privilege's opponent must carry the burden of proving that the privilege does not apply; (3) "the privilege may extend to 'communications that merely transmit documents,' even if those documents are publicly available"; and (4) "no heightened [privilege] scrutiny exception [for in-house lawyers] exists in California's statutory regime." Id. at *6, *12, *46 (citations omitted). All of these positions represent a much more corporate-friendly privilege approach than the majority of case law nationally – and obviously much more favorable than Illinois' own harsh "control group" standard.

The Harris Management case should remind lawyers that pockets of unfavorable "control group" privilege law still exist, and the Fluidmaster case should prompt lawyers to look for ways to apply more favorable privilege law wherever they litigate.

Case Date Jurisidction State Cite Checked
2016-11-08 State ME
Comment:

key case


Chapter: 52.302

Case Name: In re Fluidmaster, Inc., Case No. 1:14-cv-05696, MDL 2585, 2016 U.S. Dist. LEXIS 154618, at *5 (N.D. Ill. Nov. 8, 2016)
January 11, 2017 (PRIVILEGE POINT)

"Two Decisions Issued the Same Day Highlight Choice of Laws Issues: Part II"

Last week's Privilege Point described a Maine case applying the narrow pre-Upjohn "control group" standard for corporate communications. Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, ---A.3d---. Illinois is by far the largest state that still follows the worrisome "control group" standard. Illinois federal courts sitting in diversity frequently apply that state's "control group" standard to strip away corporations' privilege protection.

But sometimes Illinois federal courts look elsewhere for privilege law. In In re Fluidmaster, Inc., the court noted that "[t]he parties agree that California law governs the attorney-client privilege issues now before the Court." Case No. 1:14-cv-05696, MDL 2585, 2016 U.S. Dist. LEXIS 154618, at *5 (N.D. Ill. Nov. 8, 2016). The court therefore applied several favorable California statutory law principles to the defendant corporation's privilege protection, including (1) communications "made in the course of an attorney-client relationship" are "presumed to have been made in confidence"; (2) the privilege's opponent must carry the burden of proving that the privilege does not apply; (3) "the privilege may extend to 'communications that merely transmit documents,' even if those documents are publicly available"; and (4) "no heightened [privilege] scrutiny exception [for in-house lawyers] exists in California's statutory regime." Id. at *6, *12, *46 (citations omitted). All of these positions represent a much more corporate-friendly privilege approach than the majority of case law nationally – and obviously much more favorable than Illinois' own harsh "control group" standard.

The Harris Management case should remind lawyers that pockets of unfavorable "control group" privilege law still exist, and the Fluidmaster case should prompt lawyers to look for ways to apply more favorable privilege law wherever they litigate.

Case Date Jurisidction State Cite Checked
2016-11-08 Federal IL
Comment:

key case


Chapter: 52.302

Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "Federal Rule of Evidence 501 governs privilege issues in federal courts. In this case the Court's jurisdiction is based upon diversity. Although applying choice of law principles to this case results in Kansas law defining the scope of the attorney-client privilege, this Court agrees with other cases from this District that there is no conflict between federal and Kansas law regarding the attorney-client privilege and it generally makes no difference which law is applied."; "Plaintiff is entitled to know the factual basis for Defendants' affirmative defenses. Plaintiff's question was a proper inquiry into the facts that support the affirmative defense asserted in paragraph 13 of Defendants' answer. Plaintiff did not ask Naccarato to disclose the substance of any communications he may have had with Defendants' counsel. Following defense counsel's initial objection, Plaintiff's counsel reiterated that she was asking only for the facts upon which Defendant Screenworks relied. Yet, Defendants' counsel persisted in asserting the same objections."; "Defendants' objections were improper for a number of reasons. Because the primary thrust of the objections and the basis upon which Naccarato was instructed not to answer was the attorney-client privilege, the Court will address that issue first. Even presuming Naccarato's answer would have revealed facts from conversations he had with Defendants' counsel, that would not render the 'facts' protected from discovery by the attorney-client privilege. 'A fact is discoverable regardless of how a deponent came to possess it. This is true even if Defendants' attorney informed the deponent of the facts. The instruction by Defendants' counsel to Naccarato not to answer to the extent the question sought 'information gained through conversations with counsel' was an improper and inaccurate assertion of the attorney-client privilege."; "'Defendants' argument that Plaintiff's questions improperly sought the 'theories' upon which Defendants' affirmative defenses are based is simply unsupported by the record. In the line of questioning at issue, Plaintiff expressly asked the 'facts' that support the affirmative defenses and never mentioned or inquired about Defendants' theories.'")

Case Date Jurisidction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 52.302

Case Name: Selective Ins. Co. of Am. v. Smiley Body Shop, Inc., No. 1:16-cv-00062-JMS-MJD, 2016 U.S. Dist. LEXIS 148649 (S.D. Ind. Oct. 27, 2016)
("The Federal Rules of Civil Procedure limit discovery to nonprivileged materials that are relevant and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). In diversity cases such as this one, the Federal Rules of Evidence incorporate by reference the privilege laws of the state providing the underlying substantive law. Fed. R. Evid. 501. Based upon their submissions, the parties appear to agree that Indiana law applies. Regardless, '[c]ourts do not worry about conflict of laws unless the parties disagree on which state's law applies.'")

Case Date Jurisidction State Cite Checked
2016-10-27 Federal IN

Chapter: 52.302

Case Name: Airport Fast Park-Austin, L.P. v. John Hancock Life Insurance Company, Case No. 1:15-cv-245, 2016 U.S. Dist. LEXIS 125931 (S.D. Ohio Sept. 15, 2016)
(holding that affiliate corporations with common ownership could communicate within privilege protection; "There are no material differences between Ohio's attorney-client privilege and the federal attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-09-15 Federal OH

Chapter: 52.302

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)
("Courts within the Second Circuit use the 'touch base' test to determine what country's law of privilege applies to 'foreign documents' such as minutes of Belgian board meetings."; "The communications reflected in the contested portions of the RPI board minutes clearly 'relate' to actual or contemplated lawsuits in the United States, under United States law, in which RPI was or would be represented by United States counsel. The Court will therefore apply domestic privilege law to the parties' dispute."; "'The Court turns to New York law because it is the law of the forum state; because it is the law applied to RPI's common-law claims by the Hon. Alison J. Nathan in ruling on Deutsche Bank's motion to dismiss . . . And because no party has suggested that any other state's privilege law is applicable to the present controversy.")

Case Date Jurisidction State Cite Checked
2016-05-20 Federal NY

Chapter: 52.302

Case Name: Guiffre v. Maxwell, 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)
(holding that a media agent was outside privilege protection New York law, which applied to communications with a public relations consultant in Britain; "Defendant's citation does not support the statement for which it is directly cited: that waiver does not apply to communications including a third-party if for the purpose of contemplated litigation. Plaintiff, with the aid of British counsel and without having seen Defendant's British law argument; submits an interpretation of British law directly contradicting Defendant's."; "This precarious support provides an insufficient foundation for the Court to apply foreign law to Defendant's claims."; "Moreover, at least one New York court has found that British privilege law is 'apparently similar' to New York's."; "The privilege analysis under UK law parallels the analysis under New York law, requiring (i) a communication between an attorney and client, (ii) made in the course of the representation, (iii) for the purpose of providing legal advice."; "The potential litigation for which Defendant sought Barden's [Defendant's lawyer] advice never came to fruition and no pending issued in or relating to Britain have been pled. Thus, any consequence resulting from a ruling on the confidentiality of the Barden communications will sound only in New York, the situs of this case and the location of the allegedly defamatory statements at issue. New York therefore has the predominate interest in whether these communications remain confidential. The similarity between New York and British attorney-client privilege' demonstrates that no public policy conflict exists. Consequently, New York law applies to all of Plaintiff's privilege claims.")

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

Chapter: 52.302

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *80 (S.D. W. Va. Mar. 28, 2016)
("The Court has previously noted the complex nature of choosing which forum's law to apply to claims of attorney-client privilege in this action under Federal Rule of Evidence 501. . . . In discussing the issue, the Court has noted that 'the federal law of privilege and the laws of West Virginia and Michigan are compatible.' . . . In their submissions to the Court, neither party has taken an explicit position as to which jurisdiction's law should control. However, the parties primarily cite to federal law and West Virginia law in support of their attorney-client privilege positions. Accordingly, the Court summarizes and applies attorney-client privilege under both federal law and West Virginia state law.")

Case Date Jurisidction State Cite Checked
2016-03-28 Federal WV B 8/16

Chapter: 52.302

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *80 (S.D. W. Va. Mar. 28, 2016)
("The Court has previously noted the complex nature of choosing which forum's law to apply to claims of attorney-client privilege in this action under Federal Rule of Evidence 501. . . . In discussing the issue, the Court has noted that 'the federal law of privilege and the laws of West Virginia and Michigan are compatible.' . . . In their submissions to the Court, neither party has taken an explicit position as to which jurisdiction's law should control. However, the parties primarily cite to federal law and West Virginia law in support of their attorney-client privilege positions. Accordingly, the Court summarizes and applies attorney-client privilege under both federal law and West Virginia state law.")

Case Date Jurisidction State Cite Checked
2016-03-28 Federal WV B 8/16

Chapter: 52.302

Case Name: Lehman Bros. Int'l (Europe) v. AG Fin. Prods., Inc., No. 653284/2011, 2016 N.Y. Slip Op. 30187(U), at 15 (N.Y. Sup. Ct. Jan. 11, 2016)
(analyzing whether various consultants hired by defendant's lawyers were inside privilege protection; ultimately finding after an in camera review that all but KPMG were inside privilege protection; assuming that the consultants' assistance was necessary to help defendant's lawyer; not analyzing work product protection after finding that the privilege protected the consultants' communications; "As the court will affirm the Special Referee's findings that these documents are protected by the attorney-client privilege, it need not, and does not, reach the possible additional protections of the work product and trial preparation privileges.")

Case Date Jurisidction State Cite Checked
2016-01-11 Federal NY B 8/16

Chapter: 52.302

Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
("[F]ederal common law and Louisiana statutory law are materially similar concerning the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-11-13 Federal LA

Chapter: 52.302

Case Name: Johnson v. RLI Insurance Co., Case No. 3:14-cv-00095-SLG, 2015 U.S. Dist. LEXIS 115308 (D. Alaska Aug. 31, 2015)
("Choice of law is a contested issue in the parties' summary judgment motions now pending before this Court. As to the specific attorney-client privilege issue, Alaska and North Dakota law have substantially similar evidence rules that create a privilege that applies to 'confidential communications for the purpose of facilitating the rendition of professional legal services to the client.' As such, the Court need not decide which state's law applies on this one issue.")

Case Date Jurisidction State Cite Checked
2015-08-31 Federal AK

Chapter: 52.302

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; "Plaintiffs also assert that there is no conflict between Nevada and Arizona law on the application of the attorney-client privilege. They therefore analyze the privilege issue under both Nevada or Arizona law. . . . Gallagher & Kennedy states that '[f]or purposes of this motion, we will accept that Nevada law applies, but the basic elements of the attorney-client privilege are the same under Arizona and Nevada law.'")

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

Chapter: 52.302

Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. (July 31, 2015)
("Rule 501 does not instruct as to which state's law should govern, however. . . . The court must therefore apply choice-of-law principles to determine what law to apply here. Consistent with Klaxon, the Court will apply the choice-of-law analysis of the District of Columbia."; "Because both states apply the same formulation of the privilege, the Court can discern no conflict between Maryland and D.C. law. As a result, the Court need not determine whether Maryland or D.C. law should apply (to the exclusion of the other) in this instance.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal DC

Chapter: 52.302

Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
("When, as here, a court's jurisdiction arises under the diversity statute, the court construes most privileges under the law of the state in which it sits. . . . Illinois law is identical to federal law for the purpose of deciding whether the attorney client privilege exists.")

Case Date Jurisidction State Cite Checked
2015-06-18 Federal IL

Chapter: 52.302

Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
("'The parties do not contest that New York's attorney-client privilege rule applies to this case. . . . In their filings, however, both parties cite cases applying the federal attorney-client privilege rule. . . . Judge Peebles considered these cases in his orders. . . . Though there are some differences between the New York and federal attorney-client privilege rules . . . 'New York law governing attorney-client privilege is generally similar to accepted federal doctrine'")

Case Date Jurisidction State Cite Checked
2015-05-28 Federal NY

Chapter: 52.302

Case Name: Conway v. Licata, Civ. A. No. 13-12193-LTS, 2015 U.S. Dist. LEXIS 61276 (D. Mass. May 8, 2015)
("'The parties have not addressed whether federal or state law applies to this claim of privilege. See Fed. R. Evid. 501 ('in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.'). The parties, however, have cited federal caselaw almost exclusively in their papers regarding privilege, and thus, the Court assumes, without deciding, that federal law applies.'")

Case Date Jurisidction State Cite Checked
2015-05-08 Federal MA

Chapter: 52.302

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)
(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "[G]iven that the instant action involves claims from multiple states that have been consolidated for discovery, the choice of which state law to apply is not obvious. Conceivably, the law of all twenty-two involved states could or should be consulted. Plaintiffs choose to resolve the dilemma by citing to the law of West Virginia, the state in which this Court sits, and to federal law, and Ford did not object to that approach. Certainly, in cases of complex litigation, federal courts have analyzed the applicability of the attorney-client privilege using federal law despite the language of Rule 501. . . . Another option is to apply the law of the state with the most significant relationship to the communication. . . . In this case, that state would presumably be Michigan as the employees involved in the communication were in Ford's corporate headquarters located in Michigan. Fortunately, the federal law of privilege and the laws of West Virginia and Michigan are compatible.")

Case Date Jurisidction State Cite Checked
2015-04-14 Federal WV

Chapter: 52.302

Case Name: Alliance Industries Ltd. v. A-1 Specialized Svcs. & Supplies, Inc., Civ. A. No. 13-2510, 2015 U.S. Dist. LEXIS 45983 (E.D. Pa. April 8, 2015)
(analyzing privilege issues in connection with two closely held corporations owned by two brothers in varying percentages; "To determine which law governs, the Court refers to the choice-of-law rules in the jurisdiction in which it sits, Pennsylvania."; "To the extent that New Jersey law could apply because Suresh and Kumar are New Jersey residents, the Court will apply Pennsylvania law because there is no conflict between Pennsylvania and New Jersey privilege law."; "Because Plaintiffs have not met their burden of showing that Gibraltar law applies and Mr. Phillips's statement indicates there are no significant differences between Gibraltar law and Pennsylvania law on the attorney-client privilege issue, the Court will apply Pennsylvania law to assertions of privilege regarding Mr. Massias.")

Case Date Jurisidction State Cite Checked
2015-04-08 Federal PA

Chapter: 52.302

Case Name: Lislewood Corp. v. AT&T Corp.; AT&T Corp. v. Marriott Int'l, Inc., No. 13 CV 1418, 2015 U.S. Dist. LEXIS 43089 (N.D. Ill. March 31, 2015)
("In a diversity action such as this one, the applicability and scope of attorney-client privilege is governed by the law of the forum state. . . . Illinois law regarding attorney-client privilege is identical to federal law in that they both require the court to determine whether legal advice of any kind was sought from an attorney in his or her capacity as an attorney, whether the material sought in discovery contains communication related to the purpose of seeking such legal advice, and whether such communication was made in confidence.")

Case Date Jurisidction State Cite Checked
2015-03-31 Federal IL

Chapter: 52.302

Case Name: Carlyle Investment Mgmt L.L.C. v. Moonmouth Co. S.A., C.A. No. 7841-VCP, 2015 Del. Ch. LEXIS 42 (Del. Ct. Ch. Feb. 24, 2015)
(holding that Delaware rather than Guernsey law applied to a litigation funding agreement; "Before this Memorandum Opinion, neither Delaware nor Guernsey squarely had addressed whether third-party funding agreements and related documents deserve work product protection. In these circumstances, the Tysons Foods [2011 Del. Super. LEXIS 379, 2011 WL 3926195, at *6] approach seems preferable: 'Since neither jurisdiction has decided the issue using its own laws, the Court will not read a conflict where none exists and will apply the law of the forum state, Delaware.")

Case Date Jurisidction State Cite Checked
2015-02-24 State DE

Chapter: 52.302

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civ. A. No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *3 (W.D. Va. July 9, 2014)
("Under Federal Rules of Evidence Rule 501, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. See FED. R. EVID. 501. The court's jurisdiction in this case is based on diversity, and the parties agree that Virginia state law controls this privilege issue. Virginia law recognizes 'that confidential communications between an attorney and his client, made because of that relationship and concerning the subject-matter of the attorney's employment, are privileged from disclosure." (citation omitted)).

Case Date Jurisidction State Cite Checked
2014-07-09 Federal VA B 5/16

Chapter: 52.302

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("This court finds that Plaintiffs have waived their choice-of-law argument. . . . In relying solely on Illinois law, Plaintiffs' previous briefs did not assert that California law controlled or cite to any California cases. . . . Since Plaintiffs did not raise any choice-of-law issues in previous briefing on whether privilege should attach to Janick's documents, they cannot do so here.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 52.302

Case Name: Tessera, Inc. v. UTAC (Taiwan) Corp., No. C10-04435 EJD (HRL), 2013 U.S. Dist. LEXIS 80605, at *2, *3 n.1 (N.D. Cal. June 6, 2013)
(not for publication) (finding that a Taiwanese "legal executive" was not actually a lawyer and therefore could not engage in privileged communication; "'Both sides agree that in this diversity case California law controls questions about privilege.'")

Case Date Jurisidction State Cite Checked
2013-06-06 Federal CA B 3/14

Chapter: 52.302

Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *23 (D. Ariz. Apr. 17, 2013)
("The parties seem to agree that Arizona law applies on the privilege issue.")

Case Date Jurisidction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 52.302

Case Name: Page v. Unimerica Ins. Co., Case No. 3:12-cv-103, 2013 U.S. Dist. LEXIS 4575, at *9 (S.D. Ohio Mar. 29, 2013)
("There is no material difference between Ohio's attorney-client privilege and the federal attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-03-29 Federal OH B 3/14

Chapter: 52.302

Case Name: Thai-Lao Lignite (Thai.) Co., Ltd. v. Gov't of Lao People's Democratic Republic, 945 F. Supp. 2d 431, 433-34 (S.D.N.Y. 2013)
(analyzing choice of laws issues involving a Malaysian company; "Given that, based on Respondent's submission, Malaysian privilege law does appear to be at [sic] broad as New York privilege law, Petitioners' raising a choice-of-law issue does not help them here. To the extent that Respondent has shown certain communications to be privileged under New York law, it would appear that Respondent has similarly shown those communications to be privileged under Malaysian law, and Petitioners do not seriously argue to the contrary.")

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

Chapter: 52.302

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 625 (D. Nev. 2013)
("Plaintiff asserts that in accordance with Federal Rule of Evidence 501, Nevada law is applicable. . . . Bard agrees, but suggests that because most of the communications at issue were made by attorneys in New Jersey to employees of Bard in Arizona, it is possible that Arizona or New Jersey law should govern this dispute. . . . Nonetheless, Bard recognizes that under New Jersey, Arizona, and Nevada law, the basic substantive elements of the attorney-client privilege are the same; therefore, Nevada law should apply."; "Federal courts sitting in diversity apply the choice of law rule of the state in which it sits. . . . Applying Nevada's choice of law principles, and with no conflict among the laws of these states, Nevada law should apply.")

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

Chapter: 52.302

Case Name: Adobe Sys. Inc. v. Wowza Media Sys., Case No. 11-2243 CW (JSC), 2012 U.S. Dist. LEXIS 177567, at *4 (N.D. Cal. Dec. 14, 2012)
(holding an invalidity defense did not privilege communications at issue; "[T]he Court notes that the parties appear to agree that the law of the Federal Circuit governs whether there has been a waiver of attorney-client privilege and the scope of any such waiver.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal CA B 9/13

Chapter: 52.302

Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09-2051-MD-ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *37 (S.D. Fla. Oct. 18, 2012)
("[I]t is not necessary to determine whether Ohio attorney-client privilege law rather than the Florida attorney-client privilege law should apply because, even assuming that the standards differ under Florida and Ohio law, it is clear that the documents satisfy both standards.")

Case Date Jurisidction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 52.302

Case Name: Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Civ. A. No. 2:07-CV-116, 2012 U.S. Dist. LEXIS 121830, at *5 (S.D. Ohio Aug. 28, 2012)
("There is, however, no material difference between Ohio's attorney client privilege and the federal common law privilege.")

Case Date Jurisidction State Cite Checked
2012-08-28 Federal OH B 10/13

Chapter: 52.303

Case Name: Del Giudice v. Harlan, 15 Civ. 7330 (LTS) (JCF), 2016 U.S. Dist. LEXIS 129938 (S.D.N.Y. Sept. 22, 2016)
(applying Delaware law based on the pertinent LLC operating agreement choice of law provision, concluding that an LLC's directors were entitled to access privileged communications even though they were adverse to the corporation; "However, the defendants' analysis is flawed. They recognize that in a diversity case a federal court faced with the possibility that the law of two or more states might govern applies the choice-of-law rules of the forum state to answer the question. . . . Nevertheless, they inexplicably fail to apply New York choice of law rules to the privilege issue. . . . federal law deems the privilege to be a substantive matter."; "In contract cases in New York courts, the 'center of gravity' or 'grouping of contacts' [is] the appropriate analytical approach' to determine 'which State has 'the most significant relationship to the transaction and the parties.'. . . However, New York's Court of Appeals has recently reaffirmed that 'courts should not engage in any conflicts analysis where the parties include a choice-of-law provision in their contract.'. . . under New York state law, where the contract sued upon contains a choice-of-law provision, that choice will generally govern what state's privilege law applies. Here, the Operating Agreement specifies Delaware law. . . . Delaware law therefore applies to issues of attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-09-22 Federal NY
Comment:

key case


Chapter: 52.303

Case Name: FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. April 29, 2016)
("Under Federal Rule of Evidence 501, in diversity actions such as this one, the state law that governs the underlying action defines the elements of the attorney-client privilege. Fed. R. Evid. 501. Here, the contract at issue includes a choice-of-law provision designating New York law as the governing authority. . . . Accordingly, the New York law of privilege applies.")

Case Date Jurisidction State Cite Checked
2016-04-29 Federal NY

Chapter: 52.303

Case Name: FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. April 29, 2016)
("Under Federal Rule of Evidence 501, in diversity actions such as this one, the state law that governs the underlying action defines the elements of the attorney-client privilege. Fed. R. Evid. 501. Here, the contract at issue includes a choice-of-law provision designating New York law as the governing authority. . . . Accordingly, the New York law of privilege applies.")

Case Date Jurisidction State Cite Checked
2016-04-29 Federal NY

Chapter: 52.303

Case Name: Wellin v. Wellin, C.A. Nos. 2:13-CV-1831 & -3595-DCN, and 2:14-CV-4067-DCN, 2016 U.S. Dist. LEXIS 5364, at *13 (D.S.C. Jan. 8, 2016)
March 9, 2016 (PRIVILEGE POINT)

"Courts Wrestle with Privilege Choice of Law Issues"

Although most jurisdictions agree on the basic elements of the attorney-client privilege, some differences among the jurisdictions' standards could be important. For instance, some states take a narrower view than others about client agents/consultants deemed inside privilege protection. Because of these differences, and for obvious other reasons, lawyers should know what privilege law a court will apply — which implicates the court's choice of law rules.

Federal courts sitting in diversity should apply their host state's choice of law approach. This can lead to some odd results. In Wellin v. Wellin, the court applied its host state South Carolina's choice of law rules in selecting South Dakota privilege law — because the trust at issue "contains a choice of law provision specifying that South Dakota law applies." C.A. Nos. 2:13-CV-1831 & -3595-DCN, and 2:14-CV-4067-DCN, 2016 U.S. Dist. LEXIS 5364, at *13 (D.S.C. Jan. 8, 2016). Federal courts handling federal question cases apply federal common law to federal issues, but under Fed. R. Evid. 501 apply state law to "a claim or defense for which state law supplies the rule of decision." Taking it a step further, in Hunt v. Schauerhamer, Case No. 2:15-CV-1-TC-PMW, 2016 U.S. Dist. LEXIS 1744, at *6 (D. Utah Jan. 6, 2016), the court handling a § 1983 action applied Utah privilege law to the "discrete issue now before the court concern[ing] the existence and interpretation of a settlement agreement . . . Requir[ing] application of the rules of state contract law." But in analyzing the scope of waiver, the court concluded that it "must consider Rule 502 of the Federal Rules of Evidence, which provides some federal limitations on the scope of the waiver, even if state privilege law controls." So the court applied Utah privilege law in analyzing waiver but returned to federal law to determine the waiver's scope.

Many litigants and even some judges do not undertake this sort of technically proper choice of laws analysis, and instead apply generic privilege law. But in some situations, the laws and rules must be pieced together to be properly applied.

Case Date Jurisidction State Cite Checked
2016-01-08 Federal SC
Comment:

key case


Chapter: 52.303

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("Because both states apply the same formulation of the privilege, the Court can discern no conflict between Maryland and D.C. law. As a result, the Court need not determine whether Maryland or D.C. law should apply (to the exclusion of the other) in this instance.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal DC

Chapter: 52.303

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
(applying Delaware rather than Massachusetts privilege law, and ultimately finding that the attorney-client privilege protected the client's communications with its investment banker Goldman Sachs; "The parties . . . selected Delaware law to govern and interpret the Merger Agreement.")

Case Date Jurisidction State Cite Checked
2010-05-31 State DE

Chapter: 52.402

Case Name: United States v. Deluca, No. 15-12033 Non-Argument Calendar, 2016 U.S. App. LEXIS 19235 (11th Cir. Oct. 25, 2016)
(finding that the government's taint team had not acted properly, which resulted in the government obtaining a criminal defendant's privileged communication; nevertheless affirming the lower court's refusal to dismiss the indictment, despite the constitutional violation; "Thereafter, the FBI computer analyst segregated the data and provided the potentially privileged communications to the filter team, but one of the members of the filter team, John Guard, a former Assistant United States Attorney ('AUSA'), unilaterally decided that the stipulation was not in effect for various reasons. As a result, he gave the prosecution team – without notice to DeLuca – access to communications that he deemed note privileged, including at least some communications between DeLuca and attorneys on DeLuca's list. Guard gave those communications to Vanessa Stelly, the FBI agent assigned to DeLuca's case, who reviewed them and ultimately provided one of the email communications to Russell Stoddard, the AUSA in charge of DeLuca's trial."; "Precedent from this Circuit clearly establishes that dismissal of the indictment as a sanction for a violation of a defendant's attorney-client privilege is inappropriate absent 'demonstrable prejudice.'"; "In sum, because there has been no showing of prejudice based on the government's violation of DeLuca's attorney-client privilege, the district court properly concluded that dismissal of the indictment was not appropriate. DeLuca does not otherwise challenge his convictions or sentences.")

Case Date Jurisidction State Cite Checked
2016-10-25 Federal

Chapter: 52.402

Case Name: Le v. Zuffa, LLC, Case No. 2:15-cv-01045-RFB-PAL, 2016 U.S. Dist. LEXIS 69813 (D. Nev. May 26, 2016)
("The attorney-client privilege is a rule of evidence; it has not been held a constitutional right.")

Case Date Jurisidction State Cite Checked
2016-05-26 Federal NV

Chapter: 52.402

Case Name: Roberts v. Clark County School District, Case No. 2:15-cv-00388-JAD-PAL, 2016 U.S. Dist. LEXIS 60995 (D. Nev. May 9, 2016)
("The attorney-client privilege is a rule of evidence; it has not been held a constitutional right.")

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

Chapter: 52.402

Case Name: Williams v. Russo, 636 F. App'x 527, 532 (11th Cir. 2016)
("Williams had no Fourth Amendment right as an addressee in envelopes seized from his client's prison cell. Because we find that Williams failed to allege a violation of a constitutional right, we need not determine whether the alleged right was clearly established.")

Case Date Jurisidction State Cite Checked
2016-01-22 Federal B 7/16

Chapter: 52.402

Case Name: ACLU v. Livingston County, 15a0182p.06, No. 14-1617, 2015 U.S. App. LEXIS 14022 (6th Dist. App. Aug. 11, 2015)
(enjoining a jail from examining privileged communications with prisoners)

Case Date Jurisidction State Cite Checked
2015-08-11 Federal MI

Chapter: 52.402

Case Name: Gennusa v. Canova, No. 12-13871, 2014 U.S. App. LEXIS 6410 (11th Cir. April 8, 2014)
(finding a warrantless interception of privileged communications amounted to a Fourth Amendment violation; "While investigating an alleged misdemeanor violation of a domestic violence injunction, Detective Thomas Marmo and Sergeant Brian Canova monitored, intercepted, and listened to privileged conversations between their suspect, Joel Studivant, and his attorney, Anne Marie Gennusa, who were in an interview room at the St. Johns County Sheriff's Office. They did so without any notice to Mr. Studivant and Ms. Gennusa, and without a warrant. Det. Marmo also seized from Ms. Gennusa, on Sgt. Canova's order, a statement written by Mr. Studivant. This too was done without a warrant.")

Case Date Jurisidction State Cite Checked
2014-04-08 Federal

Chapter: 52.402

Case Name: Godbey v. Simmons, No. 1:11cv704 (TSE/TCB), 2014 U.S. Dist. LEXIS 11811 (E.D. Va. Jan. 30, 2014)
(holding the seizure of privileged documents did not result in a Fourth Amendment violation)

Case Date Jurisidction State Cite Checked
2014-01-30 Federal VA B 6/14

Chapter: 52.402

Case Name: Elan Microelectronics Corp. v. Pixcir Microelectronics Co., Case No. 2:10-cv-00014-GMN-PAL, 2013 U.S. Dist. LEXIS 114788, at *13 (D. Nev. Aug. 14, 2013)
("The attorney-client privilege is a rule of evidence; it has not been held a constitutional right.")

Case Date Jurisidction State Cite Checked
2013-08-14 Federal NV B 4/14

Chapter: 52.402

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *16 (D. Nev. June 18, 2013)
("The attorney-client privilege is a rule of evidence; it has not been held a constitutional right.")

Case Date Jurisidction State Cite Checked
2013-06-18 Federal NV B 4/14

Chapter: 52.402

Case Name: Marvin v. Clark, Civ. A. No. No. 7:11-cv-00609, 2013 U.S. Dist. LEXIS 36105, at *22 (W.D. Va. Mar. 15, 2013)
("Petitioner alleges in claim 73 that the prosecutor violated marital confidentiality and the attorney-client privilege by obtaining evidence from the mother about petitioner's dishonorable military discharge for selling LSD. These two privileges arise from common law rules and generally do not implicate the Constitution. See Trammel v. United States, 445 U.S. 40, 44, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980) (recognizing the privilege against adverse spousal testimony as a common law rule, modified by rules of evidence and determining only testifying spouse may invoke privilege); Smith v. Moore, 137 F.3d 808, 819 (4th Cir. 1998) (recognizing the attorney-client privilege is a common law rule generally not implicating the constitution). Petitioner does not describe a violation of a marital or attorney-client privilege, and petitioner fails to establish how these common law privileges relate to a federal right.")

Case Date Jurisidction State Cite Checked
2013-03-15 Federal VA

Chapter: 52.402

Case Name: Chittick v. Lafler, 514 F. App'x 614 (6th Cir. 2013)
(finding that the government had violated a criminal defendant's Sixth Amendment rights when it seized privileged communications, but that the violation did not result in any prejudice)

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 2/14

Chapter: 52.402

Case Name: Howell v. Trammell, 728 F.3d 1202, 1222 (10th Cir. 2013)
("To be sure, the former attorneys' testimony may have violated Watson's [plaintiff's girlfriend] attorney-client privilege. On that basis, Watson's trial counsel made an objection, which the judge overruled because he believed that Watson had waived the privilege. And it is true that Watson may in fact have waived her privilege when she testified about some of her communications with the former attorneys."; "But we need not decide whether the privilege was violated, because 'standing alone, the attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional right.'" (citation omitted))

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

Chapter: 52.402

Case Name: United States v. Nelson, 732 F.3d 504, 517-18, 581, 519 (5th Cir. 2013)
("Nelson argues that in testifying about the circumstances surrounding his signing the factual basis, his former attorney violated the attorney-client privilege and Nelson's Sixth Amendment right to counsel. . . . An attorney-client communication is also protected under the Sixth Amendment 'if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential.'" (citation omitted); "The government called Nelson's former attorney, Mary Pierson, to testify regarding the circumstances surrounding Nelson's signing his plea agreement."; "The government admitted the factual basis into evidence through Pierson's testimony, and she read it aloud to the jury. Pierson confirmed the authenticity of the document and of Nelson's signature. She stated that Nelson's signature on the document indicated that she and Nelson had 'read [the document] together, and he had read it, and he understood it and agreed with it.' She testified that before Nelson signed the document, they had a 'lengthy discussion.' She did not discuss the details of the conversation. Pierson confirmed that Nelson came to her office of his own free will to sign the document and there were no government officials present. She stated that she was not aware of any coercion or threats made against Nelson and, when asked if Nelson signed the document 'knowingly and voluntarily,' Pierson responded, 'I believe so.'"; "We have . . . allowed attorneys, in narrow circumstances, to testify about their former clients' mental competence."; "Pierson's testimony, however, was not confined to observations about Nelson's demeanor that could have easily been made by a layperson; nor was it offered outside the presence of a trial jury on a narrow issue like competency or voluntariness. Instead, it was trial testimony that described a meeting held 'for the primary purpose of securing . . . a legal opinion' on whether to sign the agreement. . . . Called by the government, defense counsel Pierson testified that her former client in this case, Nelson, read the plea agreement admitting to federal criminal offense conduct with her, that he 'understood' and 'agreed with' it, and that he signed it only after a 'lengthy discussion' with his experienced attorney. Such information reveals more than the plain fact of the voluntariness of Nelson's signature on a guilty plea attestation and document inclusive of the offense's factual basis, and we conclude that it is protected by the attorney-client privilege." (footnote omitted); "Although Pierson's testimony falls under the attorney-client privilege, we nonetheless conclude that its admission in this case was harmless error.")

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

Chapter: 52.402

Case Name: United States v. Khan, 309 F. Supp. 2d 789 (E.D. Va. 2004)
("Although the attorney-client privilege is a common law right, when, as here, it is invoked by a criminal defendant to protect the confidentiality of his communication with his attorney regarding a law enforcement investigation, the privilege must be considered an extension of the Fifth Amendment right against self-incrimination and the Sixth Amendment right to effective assistance of counsel. See Swidler & Berlin v. United States, 524 U.S. 399, 407, 141 L. Ed. 2d 379, 118 S. Ct. 2081 (1998); Bittaker v. Woodford, 331 F.3d 715, 723 n.9 (9th Cir. 2003) (citing cases).")

Case Date Jurisidction State Cite Checked
2004-01-01 Federal VA

Chapter: 52.402

Case Name: Smith v. Moore, 137 F.3d 808, 819 (4th Cir. Ct. 1998)
("[T]he 'attorney-client privilege is a creation of the common law, not the Constitution.' Lange v. Young, 869 F.2d 1008, 1012 n.2 (7th Cir. 1989).")

Case Date Jurisidction State Cite Checked
1998-01-01 Federal

Chapter: 52.402

Case Name: Smith v. Moore, 137 F.3d 808, 819 (4th Cir. Ct. 1998)
("Because federal habeas review is limited to 'violations of the United States Constitution or its law and treaties,' Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (en banc), cert. denied, 139 L. Ed. 2d 40, 118 S. Ct. 83 (1997), a mere violation of Smith's attorney-client privilege would not warrant habeas relief")

Case Date Jurisidction State Cite Checked
1998-01-01 Federal

Chapter: 52.403

Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "The Regents [Regents of the University of California v. Superior Court, 165 Cal. App. 4th 672, 81 Cal. Rptr. 3d 186 (Cal. App. 4th 2008)] case is not persuasive because it applied a California Evidence Code provision. This case is governed by federal common law principles.")

Case Date Jurisidction State Cite Checked
2016-05-05 Federal NV

Chapter: 52.403

Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)
("In cases such as this where claims are based on federal statutes, the attorney-client privilege is governed by federal common law.")

Case Date Jurisidction State Cite Checked
2015-01-21 Federal NY

Chapter: 52.403

Case Name: In re Info. Mgmt. Servs., Inc. Derivative Litig., 81 A.3d 278, 285 (Del, Ch. 2013)
("Delaware Rule of Evidence 502 establishes the scope of the attorney-client privilege under Delaware law.")

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

Chapter: 52.403

Case Name: Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at *4 (W.D. Va. June 17, 2008)
("In a civil case based on a federal cause of action, questions of privilege are governed by federal common law as interpreted by the court 'in light of reason and experience.' Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir. 1998) (quoting Fed. R. Evid. 501)")

Case Date Jurisidction State Cite Checked
2008-06-17 Federal VA

Chapter: 52.403

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 n.2 (W.D. Va. 2005)
("Because this case is civil and based on a federal cause of action, the Court will apply the principles of common law as they may be interpreted by the courts of the United States in light of reason and experience. Hawkins, 148 F.3d at 382. The Fourth Circuit has approved Supreme Court Standard 503(b) as a 'comprehensive guide to the federal common law of attorney-client privilege.' United States v. (Under Seal) (In re Grand Jury 83-2 John Doe No. 462), 748 F.2d 871, 874 n. 5 (4th Cir. 1984)")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA

Chapter: 52.403

Case Name: Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir. 1998)
("The current matter is a civil case based upon a federal cause of action, 18 U.S.C.A. § 2520 (West. Supp. 1998). Therefore, following the mandate of Rule 501, we must apply 'the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.' Fed. R. Evid. 501.")

Case Date Jurisidction State Cite Checked
1998-01-01 Federal

Chapter: 52.404

Case Name: Endeavor Energy Resources, L.P. v. Gatto & Reitz, LLC, 2:13cv542, 2017 U.S. Dist. LEXIS 48715 (W.D. Pa. March 31, 2017)
("Pennsylvania's attorney-client privilege rule has been codified since 1887.")

Case Date Jurisidction State Cite Checked
2017-03-31 Federal PA

Chapter: 52.404

Case Name: Leblanc v. Texas Brine Co., LLC, Case No. CIV-16-1026-D, 2017 U.S. Dist. LEXIS 31822 (W.D. Okla. March 7, 2017)
("In Louisiana, the attorney-client privilege is governed by Article 506 of the Louisiana Code of Evidence.")

Case Date Jurisidction State Cite Checked
2017-03-07 Federal OK

Chapter: 52.404

Case Name: CAC Atlantic LLC v. Hartford Fire Ins. Co., 16 Civ. 5454 (GHW) (JCF), 2017 U.S. Dist. LEXIS 11010 (S.D.N.Y. Jan. 19, 2017)
("In New York, the attorney-client privilege is governed by section 4503 of the Civil Practice Laws and Rules, which protects 'confidential communication[s] made between the attorney . . . and the client in the course of professional employment . . . . ' CPLR § 4503(a) (1).")

Case Date Jurisidction State Cite Checked
2017-01-19 Federal NY

Chapter: 52.404

Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)