Showing 452 of 452 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: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("Defendants primarily raise two types of privilege claims -- attorney-client and work product. While both doctrines protect from disclosure documents and other information, there are differences between the two. With regard to attorney-client privilege the underlying purpose of the doctrine is to encourage the client to communicate freely with the attorney. Work product protection on the other hand encourages careful and thorough preparation by the attorney. And sometimes both doctrines may apply to a single communication. An email or memo may contain confidential legal discussions between client and lawyer and at the same time disclose the preparation by the attorney in anticipation of legal proceedings. But even though a party claims both privileges or protections as to the same document the Court must analyze the applicability of each privilege or protection separately.")

Case Date Jurisidction State Cite Checked
2017-12-29 Federal FL

Chapter: 52.2

Case Name: Western Challenger, LLC v. DNV GL Group, Case No. C16-0915-JCC, 2017 U.S. Dist. LEXIS 182249 (W.D. Wash. Nov. 2, 2017)
("Plaintiff asserts the emails are subject to both the attorney-client and work-product privileges. . . . As discussed below, the Court finds that Plaintiff has met its burden in establishing that the emails are work-product. Therefore, the Court need not decide whether the emails are also subject to the attorney-client privilege."; "'Defendants do not meaningfully argue that production of the emails is required based on Defendant's substantial need. See Fed. R. of Civ. P. 26(b)(3)(A)(ii).'")

Case Date Jurisidction State Cite Checked
2017-11-02 Federal WA

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: Mooney v. Diversified Bus. Communs., 2017 Mass. Super. LEXIS 133, 34 Mass L. Rep. 352, 2017 WL 4172592, Dkt. No. SUCV2016-3726-BLS2 (Mass. Super. July 24, 2017)
(applying Massachusetts rather than Delaware law in concluding that a company's former CEO could be denied access to privileged communications that were available to him when he was at the company; "Because there is indeed a conflict between Massachusetts and Delaware law in connection with the present discovery dispute, the Court must determine which law applies. Massachusetts appellate courts have not directly addressed which standard must be used to resolve a conflict of laws question with respect to privilege in the corporate context. The plaintiffs argue that the analysis should be undertaken using the so-called 'internal affairs doctrine,' a choice-of-law principle articulated in the Restatement (Second) of Conflict of Laws §302 which says that the law of the state in which a corporation is incorporated (here Delaware) should be applied to issues concerning relationships among or between the corporation and its officers, directors and shareholders. Certainly, Massachusetts has long recognized the internal affairs doctrine. . . . However, no Massachusetts court has employed the doctrine in connection with a privilege issue. Moreover, the purposes behind the doctrine do not seem to be directly applicable where the issue concerns attorney-client communications."; "This Court . . . finds it significant that the Restatement (Second) of Conflict of Laws provides a conflict of laws rule specifically for privileged communications, directing courts to apply the law with 'the most significant relationship' to the communications. See Restatement (Second) of Conflict of Laws §139. But, Section 139 makes no reference at all to Section 302 of the Restatement describing the internal affairs doctrine. Such a reference would be expected if the internal affairs doctrine were to be an exception to the general rule articulated in Section 139."; "Applying the test outlined in Section 139 of the Restatement (a section embraced by the SJC in other contexts), this Court concludes that Massachusetts has the most significant relationship to the issue at hand. Pri-Med is based in Massaschusetts and directs substantially all its operations from the state. Pri-Med made and received the privileged communications in Massachusetts. Those communications reflected legal advice sought and rendered in the state by local attorneys. They were made in connection with disputes that arose in the state. Massachusetts law thus applies to the question of whether Mooney as a former director of Pri-Med has access to communications between and among Pri-Med and its corporate counsel. If Massachusetts law is as this Court has construed it, Pri-Med is not prevented from asserting a privilege as to Mooney.")

Case Date Jurisidction State Cite Checked
2017-07-24 State MA

Chapter: 52.5

Case Name: Mooney v. Diversified Business Communications, Dkt. No. SUCV2016-3726-BLS2, 2017 Mass. Super. LEXIS 133 (Mass. Super. Ct. July 20, 2017)
November 22, 2017 (PRIVILEGE POINT)

"Choice of Laws Analyses Can Be Dispositive"

Although most jurisdictions agree on many basic privilege issues, some important variations remain. The most important involves a few states' rejection of the majority Upjohn v. United States, 449 U.S. 383 (1981) rule protecting corporations' lawyers' communications with middle and lower level corporate employees. But there are other significant distinctions among states that can make a big difference in a corporate context.

In Mooney v. Diversified Business Communications, Dkt. No. SUCV2016-3726-BLS2, 2017 Mass. Super. LEXIS 133 (Mass. Super. Ct. July 20, 2017), a corporation's former CEO/director (now adverse to the corporation) sought access to privileged communications from his time at the corporation. The court acknowledged that "[t]he choice of law issue is an important one" -- because under Delaware law "former directors or officers are entitled to privileged communications created during their tenure," while other states (including Massachusetts) "do not permit former officers and directors to access privileged information for use in litigation where the corporation asserts a privilege." Id. at *6, *7. The court had to decide between applying (1) Delaware law (because that is the defendant's state of incorporation), or (2) Massachusetts law (under the Restatement (Second) of Conflict of Laws § 139 choice of law approach). The court applied the latter standard in denying plaintiff access to the privileged documents.

Although privilege choice of law disputes rarely arise, they occasionally have dispositive effects.

Case Date Jurisidction State Cite Checked
2017-07-20 State MA
Comment:

key case


Chapter: 52.5

Case Name: Harris Management, Inc. v. Coulombe, 2016 ME 166, ¶ 15, A.3d (11/8/2016)
January 4, 2017 (PRIVILEGE POINT)

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

Every privilege analysis should start with determining the applicable law. In the corporate context, federal courts handling federal question cases and nearly every state follow the Upjohn standard. Upjohn v. United States, 449 U.S. 383 (1981). Under this standard, the privilege can protect a corporation's lawyer's communications with any corporate employee possessing information the lawyer needs. A handful of states continue to follow the pre-Upjohn "control group" standard – under which the privilege generally protects only communications with upper-level corporate management.

In Harris Management, Inc. v. Coulombe, 2016 ME 166, ¶ 15, ---A.3d ---, Maine's highest court reaffirmed Maine's reliance on the old "control group" standard – extending privilege protection only to employees (usually officers) who direct the corporation's response to its lawyers' legal advice, and other individuals with authority to make corporate decisions. Although Maine corporations feel the main brunt of this narrow approach, corporations from Upjohn states might also lose their privilege if they are sued in Maine.

In some cases, a choice of law analysis will result in application of the narrow "control group" corporate privilege standard. In other cases, courts applying other states' privilege law relieve corporations of that troublesome standard. Next week's Privilege Point will describe such a decision from another "control group" hold-out state – Illinois. Decided on the same day as Harris Management, the decision looked outside Illinois for applicable privilege law.

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

key case


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: 52.5

Case Name: Upjohn v. United States, 449 U.S. 383 (1981)
January 4, 2017 (PRIVILEGE POINT)

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

Every privilege analysis should start with determining the applicable law. In the corporate context, federal courts handling federal question cases and nearly every state follow the Upjohn standard. Upjohn v. United States, 449 U.S. 383 (1981). Under this standard, the privilege can protect a corporation's lawyer's communications with any corporate employee possessing information the lawyer needs. A handful of states continue to follow the pre-Upjohn "control group" standard – under which the privilege generally protects only communications with upper-level corporate management.

In Harris Management, Inc. v. Coulombe, 2016 ME 166, ¶ 15, ---A.3d ---, Maine's highest court reaffirmed Maine's reliance on the old "control group" standard – extending privilege protection only to employees (usually officers) who direct the corporation's response to its lawyers' legal advice, and other individuals with authority to make corporate decisions. Although Maine corporations feel the main brunt of this narrow approach, corporations from Upjohn states might also lose their privilege if they are sued in Maine.

In some cases, a choice of law analysis will result in application of the narrow "control group" corporate privilege standard. In other cases, courts applying other states' privilege law relieve corporations of that troublesome standard. Next week's Privilege Point will describe such a decision from another "control group" hold-out state – Illinois. Decided on the same day as Harris Management, the decision looked outside Illinois for applicable privilege law.

Case Date Jurisidction State Cite Checked
1981-01-01 Federal
Comment:

key case


Chapter: 52.302

Case Name: Dansko Holdings, Inc. v. Benefit Trust Co., Civ. A. No. 16-324, 2017 U.S. Dist. LEXIS 192230 (E.D. Pa. Nov. 21, 2017)
("'Pennsylvania privilege law applies because Pennsylvania tort law governs the fraud in the inducement claim. . . . The parties make no argument regarding choice of law with respect to the attorney client privilege; however, the Court notes that the only law cited by the parties on this issue.'")

Case Date Jurisidction State Cite Checked
2017-11-21 Federal PA

Chapter: 52.302

Case Name: In re Daya Ram Chandar v. Meyer Wilson Co., LPA, Case No. 11-37360-B-7, Adversary No. 17-2057, DC No. BHS-1, 2017 Bankr. LEXIS 3903 (E.D. Cal. Nov. 13, 2017)
("'Federal law governs privileges in a bankruptcy case. See Fed. R. Bankr. P. 9017; Fed. R. Evid. 501; Ginzburg, 517 B.R. at 180. However, the result would be the same even if California law applied.'")

Case Date Jurisidction State Cite Checked
2017-11-13 Federal CA

Chapter: 52.302

Case Name: In re Premera Blue Cross Customer Data Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Ore. Oct. 27, 2017)
(holding that Premera Blue Cross's investigation did not protect its investigation into a data breach; "Plaintiffs originally argued that Oregon law, as the law of the forum state, applies to the parties' dispute regarding the scope of the attorney-client privilege. Premera responds that Washington law applies. In supplemental briefing, Plaintiffs concede that there is no material conflict between Oregon and Washington law on the specific issues of attorney-client privilege relevant to the pending motion. Thus, Plaintiffs do not oppose the application of Washington law. The parties also agree that federal law governs the work-product doctrine in federal court.")

Case Date Jurisidction State Cite Checked
2017-10-27 Federal OR

Chapter: 52.302

Case Name: In re Bair Hugger Force Air Warming Devices Prods. Liability Litig., MDL No. 15-2666 (JNE/FLN), 2017 U.S. Dist. LEXIS 141023 (D. Minn. Aug. 30, 2017)
("To determine which state's crime-fraud exception applies, this Court must first analyze state choice-of-law principles. When used in federal court, choice-of-law principles are substantive state law. . . . An MDL transferee court must use the substantive law, including the choice-of-law principles, of the states where the MDL's member actions would have been filed but for transfer. . . . As the MDL transferee, this Court must use a choice-of-law principle consistent with every state's principle."; "As to the crime-fraud exception, a state's choice-of-law principle depends on whether the state considers privilege procedural or substantive. . . . This Court need not decide which choice-of-law principle to use because both have the same result here."; "Using either choice-of-law principle, Minnesota privilege applies. Minnesota is the current forum state. . . . Minnesota also is the state having the most significant relationship to the Documents. The Documents were prepared by a Minnesota entity for another Minnesota entity's benefit and were communicated between those Minnesota entities. Minnesota privilege thus applies.")

Case Date Jurisidction State Cite Checked
2017-08-30 Federal MN

Chapter: 52.302

Case Name: Windsor Securities, LLC v. Arent Fox LLP, 16 Civ. 1533 (GBD) (GWG), 2017 U.S. Dist. LEXIS 127984 (S.D.N.Y. Aug. 11, 2017)
("Here, both parties agree that New York law applies to the Court's determination of privilege.")

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

Chapter: 52.302

Case Name: In re Optuminsight, Inc., 2017-116, 2017 U.S. App. LEXIS 13483 (Fed. Cir. App. July 20, 2017)
("OptumInsight contends that Federal Circuit law regarding attorney-client privilege applies. CC Group does not challenge this assertion on appeal. Accordingly, we apply Federal Circuit precedent. But like the district court, we see no reason why the outcome here would be different under Ninth Circuit law.")

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

Chapter: 52.302

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("The parties cite and apply federal privilege law to the instant dispute. Because no federal claim remains in this litigation, however, the court questions the applicability of federal law. When jurisdiction is based on diversity of citizenship, 'state law supplies the rule of decision on privilege' by operation of Fed. R. Evid. 501. 'Since this is a multidistrict proceeding, the question arises as to what state's law of privilege the court should apply.' Because the parties seem to agree that federal common-law standards should govern the privilege determinations in this case, because 'no real conflict between federal and Kansas law regarding the attorney-client privilege [exists],' and because 'the Kansas statute concerning the attorney-client privilege and its exceptions is typical of the laws of other jurisdictions,' the court will apply federal law in reaching its determinations on privilege issues.")

Case Date Jurisidction State Cite Checked
2017-06-13 Federal KS

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: 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: Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, A.3d (11/8/2016)
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 ME
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: Osborn v. Griffin, Civ. A. No. 11-89-WOB-CJS, Civ. A. No. 13-32-WOB-CJS, 2013 U.S. Dist. LEXIS 201059 (E.D. Ky. Nov. 19, 2013)
(holding that Kentucky applied the common interest doctrine only in pending litigation; "The parties briefed the issue of the common interest doctrine under federal common law, and the Court ordered supplemental briefing on the issue of why Kentucky law would not apply given Osborn's case is before the Court on the basis of diversity of citizenship. See Fed. R. Evid. 501 ('state law governs privilege regarding a claim or defense for which state law supplies the rule of decision'). The parties concede in their supplemental briefing that Kentucky law applies to determine the extent and scope of the attorney-client privilege in the Osborn matter. . . . The Court agrees.")

Case Date Jurisidction State Cite Checked
2013-11-19 Federal KY

Chapter: 52.302

Case Name: Osborn v. Griffin, Civ. A. No. 11-89-WOB-CJS, Civ. A. No. 13-32-WOB-CJS, 2013 U.S. Dist. LEXIS 201059 (E.D. Ky. Nov. 19, 2013)
(holding that Kentucky applied the common interest doctrine only in pending litigation; "'While Defendants and Griffin Industries did not specifically state Kentucky law applies, their concession is illustrated by their briefing of why Kentucky law, in their opinion, is consistent with the federal case law cited in their original briefing on the issue.'")

Case Date Jurisidction State Cite Checked
2013-11-19 Federal KY

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