Showing 195 of 195 results

Chapter: 56.3

Case Name: Nalco Co., Inc. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127 (S.D. Tex. July 18, 2017)
(holding that the attorney-client privilege can protect employee-to-employee communications under certain circumstances; "The 7:57 a.m. email reflects that Dr. Weers told Ralph Navarrete about a specific request he made for legal advice to an attorney regarding the patent. The attorney-client privilege protects this exchange because, on its face, the email reflects that Dr. Weers communicated that he sought legal advice from a lawyer."; "In the 12:55 p.m. email, Baker seeks to redact a question from Mr. Navarrete to Dr. Weers about the effect of an expired patent on the enforceability of Baker's patent. In the email, Mr. Navarrete does not ask Dr. Weers to forward this question to counsel or state that that Mr. Navarrete intended to do so. Baker submitted Mr. Navarrete's affidavit in support of its position that the communication was privileged. Mr. Navarrete stated that he responded to Dr. Weers' email 'with a question I had for counsel concerning the scope of the 943 patent.'"; "Nothing in the email chain indicates that the question was to be proposed to counsel. . . . Even assuming Mr. Navarrete had such an unexpressed intent, Baker has not submitted evidence that the substance of this communication was in fact conveyed to an attorney.")

Case Date Jurisidction State Cite Checked
2017-07-18 Federal TX
Comment:

key case


Chapter: 56.3

Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs also argue that Wells Fargo improperly designated as confidential documents containing only factual information. Plaintiffs cite as exemplars three charts . . . to demonstrate that many of the allegedly privileged documents are spreadsheets summarizing trust data and are therefore factual business documents that should be disclosed."; "The relevant inquiry with respect to Exhibits 11 (and the related chart in Exhibit 14), 15, and 16 is whether these charts were created for the purpose of obtaining legal advice or whether they were otherwise created in the ordinary course of Wells Fargo's business. . . . Based on the current record, Wells Fargo has not met its burden of establishing that these charts should be withheld. Exhibit 11 (and Exhibit 14) appears to be a chart that was prepared in the ordinary course of Wells Fargo's business. Indeed, the Court suspects that this document (at least in large part) was generated by Wells Fargo as part of its management of the trusts, not by counsel. It would be surprising that a lawyer would have been responsible for inputting this sheer volume of data into a spreadsheet. Similarly, Exhibit 15 is a compilation of repurchase and loan file review information that appears to have been extracted from a database. In its February 7, 2017 submission, Wells Fargo represented that it has already produced the non-privileged portions of Exhibit 15 but does not indicate what those portions were. Regarding Exhibit 16, Wells Fargo asserts that it consists of documents and communications shared between Wells Fargo and its attorneys in order for counsel to determine whether and EOD had occurred. But it is not clear what the role of counsel was in preparing Exhibit 16."; "[T]he Court will reserve decision pending further submission by Wells Fargo."; "Wells Fargo shall submit a declaration of a person with knowledge to show that these charts were created for the purpose of obtaining legal advice, not for the purpose of conducting its ordinary business. The declarant should describe, in detail, each column in each of the charts and explain whether the information in each column reflected attorney advice or was compiled for the purpose of obtaining legal advice.")

Case Date Jurisidction State Cite Checked
2017-03-09 Federal NY

Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "As with the last document, it does not include or reference an attorney or legal advice."; "Moreover, the mere inclusion of Mr. Moodliar [Lawyer] earlier in the email chain is irrelevant, as merely copying an attorney on an email is insufficient to establish the attorney-client privilege.")

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

Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "The privilege log refers to this document as an email forwarding legal advice. However, the actual document contains little to no substance. Nor has Defendant established that it is to or from an attorney. Nor are any of the recipients employees of the sole Defendant in this case. Nor has Defendant established that all individuals copied are necessary intermediaries such that they fall within the small group in the company that 'needs to know' of an attorney's legal advice. Defendant has not carried its burden to show that this document is privileged.")

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

Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "First, the document includes as a carbon copy a Xerox employee, Ms. Weston. Ms. Weston is not an attorney or client in any way relating to Hertz, nor has Defendant established that she is an 'agent' for purposes of expanding the attorney-client privilege."; "Second, the document itself is a training document that is not 'legal' but part of the Hertz 'business.' Thus, any attorney included in the email is acting in a business capacity, not in the capacity of an attorney providing legal advice. Thus, there is no privilege that applies."; "Third, apart from Ms. Weston, there are numerous recipients of the email (direct and cc'd) that Defendant has not established are necessary intermediaries for Hertz's counsel to provide legal advice. Only those employees that 'need to know' are permitted to be included in privileged communications and Defendant has failed to establish that each and every recipient involved 'needed to know' attorney-client privileged communications.")

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

Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "The document involves CYC revenue in a year-to-year comparison."; "While an attorney -- Mr. Moodliar -- is copied on the document, it could only be for 'business' and not legal purposes. Indeed, the Subject of the email is 'DCC – Revenue Decrease.'")

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

Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "It involves the revenue associated with CYC. It is a business document."; "Again, while Mr. Moodliar [Lawyer] is copied on the email, he is neither the author nor recipient and no legal advice is given, asked for, or received in the communication. Nor does the communication reflect any legal advice that was given.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "It does not expressly refer to any attorney's legal advice, nor is it sent to or from an attorney.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "It involves the revenue associated with CYC. It is a business document."; "Again, while Mr. Moodliar [Lawyer] is copied on the email, he is neither the author nor recipient and no legal advice is given, asked for, or received in the communication. Nor does the communication reflect any legal advice that was given.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "The document does not include or reference an attorney or any legal advice."; "It is a 'business' rather than 'legal document, as no attorney or legal advice is involved.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "This document is not privileged."; "It does not expressly refer to any attorney's legal advice, nor is it sent to or from an attorney.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 56.3

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)
(holding that a corporate family was not "one" client, but that a United States law firm jointly represented a U.S. company and an overseas affiliate; "The privilege log refers to this document as an email forwarding legal advice. However, the actual document contains little to no substance. Nor has Defendant established that it is to or from an attorney. Nor are any of the recipients employees of the sole Defendant in this case. Nor has Defendant established that all individuals copied are necessary intermediaries such that they fall within the small group in the company that 'needs to know' of an attorney's legal advice. Defendant has not carried its burden to show that this document is privileged.")

Case Date Jurisidction State Cite Checked
2017-02-28 Federal NJ
Comment:

key case


Chapter: 56.3

Case Name: Bloomingburg Jewish Education Center v. Village of Bloomingburg, 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192 (S.D.N.Y. March 18, 2016)
(finding that defendant Town had not presented sufficient evidence to support privilege or work product protection for a communications between the Town and West End, described as "a public relations and communications strategy firm"; "Resolution of the privilege must be made on a document-by-document basis in light of the particular contents of each document. It is certainly the case that large swaths of responsive documents and communications in West End's possession do not constitute protected work product. . . . In the absence of any support for the assertion that any particular documents are privileged, the Court cannot rule that there are any documents in West End's possession as to which the work-product privilege applies."; "Thus, while the Town Defendants did not automatically waive the work-product privilege by sharing materials with West End, their failure to conduct the basic work (even at this late stage of discovery) necessary to allow the Court to consider the documents on a case-by-case basis justifies the determination that all documents and communications in West End's possession that are responsive to the subpoena must be disclosed immediately.")

Case Date Jurisidction State Cite Checked
2016-03-18 Federal NY

Chapter: 56.3

Case Name: Americus Mortg. Corp. v. Mark, Civ. A. No. 12-10158-GAO, 2013 U.S. Dist. LEXIS 148820, at *17 (D. Mass. Oct. 16, 2013)
("Belli's [defendant's partial owner] forwarding the letter to Attorney Hadlock does not convert the document into a privileged communication. . . . There is no introductory request seeking legal advice.")

Case Date Jurisidction State Cite Checked
2013-10-16 Federal MA B 5/14

Chapter: 56.3

Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *7 (W.D. Va. Oct. 6, 2011)
("The communications 'do not explicitly ask for legal advice, opinions, or oversight,' or otherwise suggest that the purpose of the documents is to obtain or provide 'an opinion on law, legal services, or . . . assistance in some legal context.' Scott & Stringfellow, [LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD,] 2011 U.S. Dist. LEXIS 51028, at *10 [(E.D. Va. May 12, 2011)]. While the table of contents in one of the exhibit binders indicates that the exhibit contains 'counterclaim analysis,' the actual documents, consisting of spreadsheets prepared by WGI, were generated months before SNC filed the instant action in December of 2010. The same is true with all of the other documents, which were drafted between March and September of that year. Because neither the documents themselves nor any other evidence proffered by ATK establishes that the documents were 'made for the purpose of facilitating the rendition of legal services,' In re Grand Jury Proceedings, 947 F.2d at 1191, the court concludes that ATK has failed to meet its burden of demonstrating that the attorney-client privilege immunizes the documents from disclosure.")

Case Date Jurisidction State Cite Checked
2011-10-06 Federal VA B 3/16

Chapter: 56.3

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *9-10 (E.D. Va. May 12, 2011)
("Document 1 involves an email chain of communications between various AIG employees and general counsel. The subject of the communications concerns a business meeting. The document makes no reference to any particular legal issue. While general counsel is a recipient of the email chain, the communications do not explicitly ask for legal advice, opinions, or oversight. Furthermore, the attorney's response is limited to clarifying a business issue and scheduling a meeting. Consequently, though the communication is between a client and attorney, Document 1 is not subject to the attorney client privilege because the purpose of the document is not to provide an opinion on law, legal services, or to provide assistance in some legal context.")

Case Date Jurisidction State Cite Checked
2011-05-12 Federal VA B 4/13

Chapter: 56.3

Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *20-21 (E.D. Va. June 10, 2004)
("Item 15 is an e-mail with a two-page spreadsheet attached. The spreadsheets are marked 'Confidential Not for Distribution Protected by Attorney-Client Privilege.' The spreadsheets outline male/female ratios, transfers, and voluntary attrition in a particular group. Defendant has attached the declaration of Katrina C. Randolph, which shows that Item 15 was created at the direction of the assistant general counsel for the purpose of providing confidential legal advice to a business client about employment issues related to anticipated litigation. The document was intended to be confidential communication between corporate counsel and a business client, and was not distributed to individuals other than those who had a 'need to know' in connection with the data.")

Case Date Jurisidction State Cite Checked
2004-06-10 Federal VA

Chapter: 56.3

Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 326 (2000)
("The privilege attaches to a document even if the document does not contain, or is not accompanied by, a written request for legal advice, if the proponent of the privilege sustains its burden of proof to show that the document was prepared with the intention of securing legal advice on its contents. Robertson, 181 Va. at 540, 25 S.E.2d at 360. As we have said, the record in this case contains the testimony of Brown that when he drafted the letter he intended to get legal advice on its content and on whether he should deliver it to Mable.")

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

Chapter: 56.3

Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 325-26 (2000)
("Virginia Power apparently considers the privilege applicable only to a document which by its own terms conveys a request for legal advice. Such an application of the privilege requirement is too narrow.")

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

Chapter: 56.3

Case Name: Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987)
("In fact for the privilege to apply, the client's confidential communication 'must be for the primary purpose of soliciting legal, rather than business, advice.'" (quoting North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M.D.N.C. 1986); finding it "remarkable" that the documents claimed to be privileged "do not contain specific requests for legal advice or services"))

Case Date Jurisidction State Cite Checked
1987-01-01 Federal VA

Chapter: 56.3

Case Name: Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587-588 (W.D. Va. 1987)
(holding that the lawyer "must be acting as an attorney and not simply as a business advisor" for communications to be privileged; finding that memoranda claimed to be privileged by Wyeth instead related to a business transaction and primarily contained business advice; "Remarkably, [the memoranda] do not contain specific requests for legal advice of services, and Wyeth has done little to show this court how these documents primarily could be tied to legal advice as opposed to business advice. . . . The court finds the documents to have been prepared primarily in a business capacity and not primarily in a legal capacity. Business advice is not privileged.")

Case Date Jurisidction State Cite Checked
1987-01-01 Federal VA

Chapter: 56.4

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)
("As to the remaining email documents on pages one through six of the privilege log, OneBeacon has not presented any evidence, by affidavit or otherwise, to demonstrate that the email documents for which it has not identified a recipient were prepared in anticipation of litigation or for trial. The Court is unable to discern from the cursory descriptions of the emails that they were prepared at the request of counsel and in anticipation of litigation so as to qualify for protection as work product. Thus, OneBeacon must either revise the privilege log to provide the missing information, or else it must produce those communications for which it has improperly asserted work product protection.")

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

Chapter: 56.4

Case Name: Hunton & Williams LLP v. U.S. Environmental Protection Agency, Civ. A. No. 15-1203 (RC), Civ. A. No. 15-1207 (RC), Civ. A. No. 15-1208 (RC), 2017 U.S. Dist. LEXIS 48907 (D.D.C. March 31, 2017)
("Nor can the information missing from the Corps' Vaughn index be drawn from its declaration. . . . The Corps' declaration states only that, in general: 'Information that was withheld pursuant to the Attorney-Client Privilege contained confidential communications regarding legal consultation regarding the jurisdictional determination and other legal issues related to the Saltworks between the USACE and personnel and their attorneys, and between USACE, EPA, and Army attorneys. The subject of these confidential communications were not released or made known to third parties and therefore these communications are protected from disclosure.' However, these broad and vague statements, in conjunction with a bare Vaughn index, are insufficient. The agency may not 'offer[] nothing more than conclusory assertions and blanket affirmations' to support its use of the attorney-client privilege. . . . This general statement cannot overcome the otherwise inadequate Vaughn index because it fails to provide necessary document-specific information such as the identities of the client and lawyer and whether legal advice was sought. . . . Thus, because the Corps has not satisfactorily demonstrated the elements of the attorney-client privilege, the Court denies it summary judgment on the basis of that privilege.")

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

Chapter: 56.4

Case Name: Paramount Financial Communications, Inc. v. Broadridge Investor Communication Solutions, Inc., Civ. A. No. 15-405, 2016 U.S. Dist. LEXIS 133105 (E.D. Pa. Sept. 28, 2016)
("[W]hile defendant provided plaintiffs with a privilege log which identifies the Twenty-Four Documents as privileged, defendant has offered no affidavit or other evidence in support of its burden of proof on the privilege issue."; "Plaintiffs contend that Mr. Glantz [Defendant's in-house lawyer] was acting as a business decision-maker when he sent the communications in question, and as such, the Twenty-Four Documents are not subject to the attorney-client privilege."; "Defendant has not met its initial burden of proof with respect to the applicability of the attorney-client privilege to the Twenty-Four Documents. In addition, defendant did not address in its written submission plaintiff's argument that the attorney-client privilege is inapplicable to the Twenty-Four Documents because Mr. Glantz acted in his capacity as business advisor when he drafted the communications contained within the Twenty-Four Documents. On the present state of the record, the court cannot determine whether the Glantz communications contained in the Twenty-Four Documents are privileged in that the communications constitute legal advice or business advice."; "In view of the above, the court will defer ruling on the request for in camera review of the Twenty-Four Documents until after the deposition of Stephen Glantz and the conclusion of the deposition of Vincent Roux. After that time, plaintiffs may renew their request for in camera review and shall support such application with any new information discovered in the aforementioned depositions.")

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

Chapter: 56.4

Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("'In reviewing this material, the Court would agree that it is 'confidential,' but struggles with the notion that it is privileged. To the extent Perrigo still maintains that these documents are privileged, it must provide a further explanation in writing to the Court within ten (10) days of this Order. This submission may be filed ex parte via fax to Chambers at 631-712-5766.'")

Case Date Jurisidction State Cite Checked
2016-09-27 Federal NY

Chapter: 56.4

Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("'In reviewing this material, the Court would agree that it is 'confidential,' but struggles with the notion that it is privileged. To the extent Perrigo still maintains that these documents are privileged, it must provide a further explanation in writing to the Court within ten (10) days of this Order. This submission may be filed ex parte via fax to Chambers at 631-712-5766.'")

Case Date Jurisidction State Cite Checked
2016-09-27 Federal NY

Chapter: 56.4

Case Name: Fox Paine & Co., LLC v. Houston Cas. Co., No. 52607/2014, 2016 NY Slip Op 50635(U), at 15 (N.Y. Sup. Ct. Apr. 21, 2016)
("The burden cannot be satisfied by counsel's conclusory assertions of privilege and competent evidence establishing the privilege must be set forth by the party asserting the privilege.")

Case Date Jurisidction State Cite Checked
2016-04-21 Federal NY B 8/16

Chapter: 56.4

Case Name: Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, No. 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192, at *3, *14-15, *16 (S.D.N.Y. Mar. 18, 2016)
(finding that defendant town had not presented sufficient evidence to support privilege or work product protection for a communications between the town and West End, described as "a public relations and communications strategy firm"; "[T]he Town Defendants, relying solely on Mr. Holland's vague and highly generalized declaration, have failed to present the Court with adequate competent evidence to meet their affirmative burden to prove the applicability of either the attorney-client or work-product privileges. They have not submitted a privilege log, provided or offered to provide copies of any of the documents or communications in dispute for in camera review (based on the Town Defendants' representations, it appears that no subset of documents has even been gathered together in a manner that would allow this to occur easily), or even described with any particularity exemplars of any of the documents or communications that may be in West End's possession."; "In short, the Town Defendants have failed to conduct the basic work that is a prerequisite to allowing this Court to understand the documents and communications at issue such that it can find in their favor. It was the Town Defendants' burden to make a compelling case that the privilege is applicable here. They have failed to meet it.")

Case Date Jurisidction State Cite Checked
2016-03-18 Federal NY B 8/16

Chapter: 56.4

Case Name: Motion Indus., Inc. v. Superior Derrick Servs., LLC, Civ. A. No. 15-1958 SECTION: "H"(5), 2016 U.S. Dist. LEXIS 23826, at *12-13, *13-14, *14 (E.D. La. Feb. 26, 2016)
(analyzing an internal corporate investigation into possibly improper transactions; holding that in the Fifth Circuit litigation need not be imminent to trigger the work product doctrine protection; finding plaintiff's brief provided inadequate for supporting protection internal corporate investigation documents; "In the present case, there is literally nothing in the record, including the documents themselves, that would allow this Court to undertake the inquiry necessary to find these documents to be privileged. As for what the 'primary motivating purpose behind the creation of the document' might have been, the Court can only guess. This is the sum total information provided by the Plaintiff in brief to explain the documents' genesis: 'An employee contacted Movant's human resources department in July 2013 and as a result of that contact, an investigation was initiated. Movant retained Asset Protection as a contractor to assist in the process of the investigation.'" (internal citation omitted); "As a statement in support of a privilege claim, this one leaves much to be desired, as it creates far more questions than it provides answers. Who was the employee that contacted human resources and why? An 'investigation was initiated' by whom and why? What is 'Asset Protection?' Where are the privilege logs referenced in the brief? Who are the six employees identified? Are any of them attorneys? Were any attorneys involved in this investigation? Why, if at all, did anyone anticipate litigation resulting from this human resources 'contact?'"; "It should be noted that the documents themselves do not in any way help the Court answer any of these questions. The mere statement by counsel in brief that '[t]he motivation for the investigation and the preparation of the documents in relation to the investigation was an anticipation of litigation' is woefully insufficient to carry Plaintiff's burden in the absence of any supporting evidence in the record.")

Case Date Jurisidction State Cite Checked
2016-02-26 Federal LA B 8/16

Chapter: 56.4

Case Name: Certain Underwriters at Lloyd's v. AMTRAK, No. 14-CV-4717 (FB), 2016 U.S. Dist. LEXIS 27041, at *73 (E.D.N.Y. Feb. 19, 2016)
(holding that London insurance brokers were outside privilege protection because they did not meet the Kovel [United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)] standard; noting the difference between New York state and New York federal court law on the issue of client agents within privilege protection; "Moreover, the record contains no evidence whatsoever regarding the confidential treatment of the Attorney Reports or other communications through the London brokers, such as whether the Attorney Reports were stamped confidential or what precautions were taken to ensure that those communications remained confidential.")

Case Date Jurisidction State Cite Checked
2016-02-19 Federal NY B 8/16

Chapter: 56.4

Case Name: Sun v. Ikea US West, Inc., Case No. 15-cv-01146-MEJ, 2015 U.S. Dist. LEXIS 150544 (N.D. Cal. Nov. 4, 2015)
(denying privilege and work product protection for an investigation of a plaintiff's injury at a store; "Defendant fails to show it created the incident report outside the normal course of business. As noted above, Defendant provided extensive documentation detailing its Incident Reporting System, which indicates the incident report is a business record created in the normal course of business. Defendant offers no evidence to support its assertion that the report was created in anticipation of litigation."; also denying privilege protection).

Case Date Jurisidction State Cite Checked
2015-11-04 Federal CA

Chapter: 56.4

Case Name: Peterson v. Martin Marietta Materials, Inc., No. C14-3059-DEO, 2015 U.S. Dist. LEXIS 138822 (N.D. Iowa Oct. 13, 2015)
(analyzing work product protection for a voice mail message; "[T]he record contains no evidence of when the message was left, to whom it was directed or the speaker's motivation for leaving the message. While I can guess, from context, that the unnamed employee may have directed the message to Peterson, and that Peterson then forwarded it to his attorney, the lack of evidence renders this purely speculative. And, of course, Peterson's suggestion that the unnamed employee who left the message did so in preparation for litigation is even more speculative."; "In short, Peterson has not come close to making the factual showing necessary to support his claim that the Voicemail Message constitutes ordinary work product. Moreover, even if I could assume (a) that the Voicemail Message was left for Peterson, (b) that Peterson forwarded it to his attorney and © that the unnamed employee who left the message did so for the purpose of providing assistance to Peterson, that scenario would not give rise to a valid work product argument.")

Case Date Jurisidction State Cite Checked
2015-10-13 Federal IA

Chapter: 56.4

Case Name: Pate v. Winn-Dixie Stores, Inc., CV 213-166, 2014 U.S. Dist. LEXIS 151914 (S.D. Ga. Oct. 27, 2014)
(analyzing a work product protection for a slip-and-fall injury incident report; finding that the work product claim would be advanced if the defendant could prove that the incident reports were forwarded to counsel; "With that requirement in mind, the Court now examines Defendant's statement that '[a]fter [incident] reports are created, they are promptly provided to Winn-Dixie's corporate claims/risk management department, which in turn provides the report to defense counsel when litigation is imminent.'. . . This statement, if true, would support a showing that the incident report forms in this case were created for their potential use in future litigation."; "Thus, the Defendant has not produced any evidence, such as depositions or affidavits, showing that the incident report forms filled out by Winn-Dixie employees are created primarily so they can be used in potential litigation. While Defendant has stated that litigation was the motivating purpose for creating the forms in its Response to Plaintiff's Objections . . . This ipse dixit assertion alone will not satisfy Defendant's burden to show it is entitled to the protection of the work product doctrine.")

Case Date Jurisidction State Cite Checked
2014-10-27 Federal GA

Chapter: 56.4

Case Name: SEC v. Yorkville Advisors, LLC, 12 Civ. 7728 (GBD) (HBP), 2014 U.S. Dist. LEXIS 72090 (S.D.N.Y. May 27, 2014)
(finding that the SEC waived its work product protection by producing an inadequate log late; "Here, the descriptions in the SEC's Privilege Logs, which are unaccompanied by 'supporting affidavits or other documentation,' provide even less information than those the Second Circuit rejected in Constr. Prods. Research. 73 F.3d at 474 [United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir. 1996)]. Moreover, the SEC's failure to address the adequacy of the Privilege Logs and its exclusive reliance on an 'amended privilege log is essentially a concession that the initial privilege log[s] [were] inadequate.'")

Case Date Jurisidction State Cite Checked
2014-05-27 Federal NY

Chapter: 56.4

Case Name: Federal Housing Finance Agency v. HSBC North America Holdings Inc., 11 Civ. 6189 (DLC),11 Civ. 6190 (DLC),11 Civ. 6193 (DLC),11 Civ. 6198 (DLC),11 Civ. 6200 (DLC),11 Civ. 6201 (DLC),11 Civ. 7010 (DLC), 2014 U.S. Dist. LEXIS 46519 (S.D.N.Y. April 3, 2014)
("[T]o the extent an attorney is making a judgment about the probability of a loan requiring repurchase, it is not clear from the submissions why the exercise of that judgment constitutes legal advice. Accordingly, it is hereby" ORDERED that Nomura may make a supplemental submission to support a finding of privilege.")

Case Date Jurisidction State Cite Checked
2014-04-03 Federal NY

Chapter: 56.4

Case Name: McNamee v. Clemens, 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338 (E.D.N.Y. April 2, 2014)
(finding that defendant Roger Clemens' late and inadequate log resulted in a waiver; "It is Defendant's burden to establish, with 'competent' evidence, the factual basis for their claims of privilege.")

Case Date Jurisidction State Cite Checked
2014-04-02 Federal NY

Chapter: 56.4

Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *20-21, *21 (E.D.N.Y. Jan. 21, 2014)
(not for publication) ("Defendants contend that Judge Scanlon 'committed clear error' by permitting Plaintiffs to submit a declaration, instead of a privilege log, documenting advice they received from their attorney about internal complaints and LPL's [defendant] investigation. . . . This contention is meritless."; "Judge Scanlon properly exercised her discretion to allow Plaintiffs to use a declaration to satisfy their disclosure obligation under FRCP 26(b)(5)(A). The rule does not prescribe any particular format for disclosing privilege claims.")

Case Date Jurisidction State Cite Checked
2014-01-21 Federal NY B 6/14

Chapter: 56.4

Case Name: Charter Oak Fire Ins. Co. v. Am. Capital, Ltd., Civ. A. No. DKC 09-0100, 2013 U.S. Dist. LEXIS 180504, at *25-26 (D. Md. Dec. 24, 2013)
("A party can sustain this burden through a properly prepared privilege log that identifies each document withheld, and contains information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document's general subject matter. . . . If, after this has been done, the requesting party challenges the sufficiency of the asserted privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis -- by affidavit, deposition transcript, or other evidence -- for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden.")

Case Date Jurisidction State Cite Checked
2013-12-24 Federal MD B 5/14

Chapter: 56.4

Case Name: Tucker v. Jefferson Operator, LLC, No. 3:13-CV-200, 2013 U.S. Dist. LEXIS 175905, at *8 (E.D. Tenn. Dec. 16, 2013)
("Further, the attorney-client privilege must be established through certain factual assertions, including an assertion that legal advice was given and that no third-party was present. The Defendants have not attempted to establish any of these elements of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-12-16 Federal TN B 5/14

Chapter: 56.4

Case Name: Gomez v. Metro. Dist., Civ. No. 3:11cv1934 (JBA), 2013 U.S. Dist. LEXIS 168707, at *13, *13 14 (D. Conn. Nov. 27, 2013)
("Defendant had the burden to present sufficient facts to Magistrate Judge Margolis and to this Court to sustain its claim of attorney-client privilege, and this burden could not be discharged by conclusory assertions in its legal memorandum. Rather, Defendant was required to present competent evidence in the first instance to support its claim of privilege."; "Defendant did not submit an affidavit from Attorney Ryan to provide context regarding her notes to support its privilege assertion. Context was particularly important here, because Magistrate Judge Margolis determined that all ten pages of Attorney Ryan's handwritten notes from the relevant meeting reflected 'simply fact finding' rather than containing 'some degree of [legal] analysis,' and thus were not privileged. . . . Defendant did not object to this determination beyond asserting that the four lines of text from these ten pages were privileged. But it adduced no evidence to discharge its burden. Defendant continues to simply argue that the four lines of text are actually privileged, rather than attempting to prove that it is so.")

Case Date Jurisidction State Cite Checked
2013-11-27 Federal CT B 5/14

Chapter: 56.4

Case Name: Gomez v. Metro. Dist., Civ. No. 3:11cv1934 (JBA), 2013 U.S. Dist. LEXIS 168707, at *13, *13 14 (D. Conn. Nov. 27, 2013)
("Defendant had the burden to present sufficient facts to Magistrate Judge Margolis and to this Court to sustain its claim of attorney-client privilege, and this burden could not be discharged by conclusory assertions in its legal memorandum. Rather, Defendant was required to present competent evidence in the first instance to support its claim of privilege."; "Defendant did not submit an affidavit from Attorney Ryan to provide context regarding her notes to support its privilege assertion. Context was particularly important here, because Magistrate Judge Margolis determined that all ten pages of Attorney Ryan's handwritten notes from the relevant meeting reflected 'simply fact finding' rather than containing 'some degree of [legal] analysis,' and thus were not privileged. . . . Defendant did not object to this determination beyond asserting that the four lines of text from these ten pages were privileged. But it adduced no evidence to discharge its burden. Defendant continues to simply argue that the four lines of text are actually privileged, rather than attempting to prove that it is so.")

Case Date Jurisidction State Cite Checked
2013-11-27 Federal CT B 5/14

Chapter: 56.4

Case Name: Saliga v. Chemtura Corp., Case No. 3:12cv832(RNC), 2013 U.S. Dist. LEXIS 167801, at *3-4 (D. Conn. Nov. 26, 2013)
("Defense counsel shall submit evidence, by way of affidavit, setting forth the context and description of the discussion documented in the handwritten notes and providing sufficient detail to permit a judgment as to whether the document is protected from disclosure.")

Case Date Jurisidction State Cite Checked
2013-11-26 Federal CT B 5/14

Chapter: 56.4

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 868 (Tex. Ct. App. 2013)
("In some instances, the documents themselves may constitute the only evidence substantiating the claim of privilege.")

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

Chapter: 56.4

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 584-85 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "A review of these decisions demonstrates that -- at least in the federal courts -- a party does not satisfy its burden of proving that a privilege applies by merely asserting a privilege. Nor does a party satisfy its burden by simply asking that the court conduct an in camera review of documents which the party hopes to keep confidential -- instead, the party first must present some evidence to convince the court that the privilege might apply.")

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

Chapter: 56.4

Case Name: JMB/Urban 900 Dev. Partners, Ltd. v. Hazan, 2013 IL App. (1st) 113714-U, ¶22
("The party claiming the attorney-client privilege bears the burden of presenting factual evidence that establishes the privilege.")

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

Chapter: 56.4

Case Name: Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 370 (Pa. Super. Ct. 2012)
("Sherwin-Williams has not presented an affidavit, statement or testimony by Tamburino [Sherwin-Williams lawyer] to clarify whether he requested Schreck [Sherwin-Williams marketing representative] produce the memoranda at issue or for what purpose he requested the documents. In fact, Sherwin-Williams attempts to place the burden on Custom Designs to produce evidence that the memoranda were created for a purpose other than to secure legal advice.")

Case Date Jurisidction State Cite Checked
2012-01-01 State PA B 1/13

Chapter: 56.4

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("The party withholding a document under a claim of privilege 'must specifically and factually support its claim of privilege 'by way of evidence, not just argument.' SNC-Lavalin Am., Inc., 2011 U.S. Dist. LEXIS 115535, 2011 WL 4716225, at *2 (quoting Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust, 230 F.R.D. 398, 410 (D. Md. 2005)).")

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

Chapter: 56.4

Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *5-7 (W.D. Va. Oct. 6, 2011)
("The burden is on the proponent of the privilege "to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' Edwards, 370 S.E.2d at 301. . . ."; "[T]he party withholding the document must specifically and factually support its claim of privilege 'by way of evidence, not just argument.' Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust, 230 F.R.D. 398, 410 (D. Md. 2005)."; "Applying these principles, and having reviewed each of the documents withheld from production, the court concludes that ATK has failed to demonstrate that the documents are protected by the attorney client privilege. The documents were prepared by employees of WGI and ATK, and include no communications from ATK's legal counsel. While ATK has submitted emails indicating that each of the documents was intended to be shared with legal counsel, neither the documents themselves, nor any other evidence presented by ATK, establishes that the documents were 'prepared primarily in a legal capacity,' as opposed to a 'business capacity.' Henson, 118 F.R.D. at 588.").

Case Date Jurisidction State Cite Checked
2011-10-06 Federal VA

Chapter: 56.5

Case Name: Nalco Co., Inc. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127 (S.D. Tex. July 18, 2017)
(holding that the attorney-client privilege can protect employee-to-employee communications under certain circumstances; "The 7:57 a.m. email reflects that Dr. Weers told Ralph Navarrete about a specific request he made for legal advice to an attorney regarding the patent. The attorney-client privilege protects this exchange because, on its face, the email reflects that Dr. Weers communicated that he sought legal advice from a lawyer."; "In the 12:55 p.m. email, Baker seeks to redact a question from Mr. Navarrete to Dr. Weers about the effect of an expired patent on the enforceability of Baker's patent. In the email, Mr. Navarrete does not ask Dr. Weers to forward this question to counsel or state that that Mr. Navarrete intended to do so. Baker submitted Mr. Navarrete's affidavit in support of its position that the communication was privileged. Mr. Navarrete stated that he responded to Dr. Weers' email 'with a question I had for counsel concerning the scope of the 943 patent.'"; "Nothing in the email chain indicates that the question was to be proposed to counsel. . . . Even assuming Mr. Navarrete had such an unexpressed intent, Baker has not submitted evidence that the substance of this communication was in fact conveyed to an attorney.")

Case Date Jurisidction State Cite Checked
2017-07-18 Federal TX
Comment:

key case


Chapter: 56.5

Case Name: Hunton & Williams LLP v. U.S. Environmental Protection Agency, Civ. A. No. 15-1203 (RC), Civ. A. No. 15-1207 (RC), Civ. A. No. 15-1208 (RC), 2017 U.S. Dist. LEXIS 48907 (D.D.C. March 31, 2017)
("Nor can the information missing from the Corps' Vaughn index be drawn from its declaration. . . . The Corps' declaration states only that, in general: 'Information that was withheld pursuant to the Attorney-Client Privilege contained confidential communications regarding legal consultation regarding the jurisdictional determination and other legal issues related to the Saltworks between the USACE and personnel and their attorneys, and between USACE, EPA, and Army attorneys. The subject of these confidential communications were not released or made known to third parties and therefore these communications are protected from disclosure.' However, these broad and vague statements, in conjunction with a bare Vaughn index, are insufficient. The agency may not 'offer[] nothing more than conclusory assertions and blanket affirmations' to support its use of the attorney-client privilege. . . . This general statement cannot overcome the otherwise inadequate Vaughn index because it fails to provide necessary document-specific information such as the identities of the client and lawyer and whether legal advice was sought. . . . Thus, because the Corps has not satisfactorily demonstrated the elements of the attorney-client privilege, the Court denies it summary judgment on the basis of that privilege.")

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

Chapter: 56.5

Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs also argue that Wells Fargo improperly designated as confidential documents containing only factual information. Plaintiffs cite as exemplars three charts . . . to demonstrate that many of the allegedly privileged documents are spreadsheets summarizing trust data and are therefore factual business documents that should be disclosed."; "The relevant inquiry with respect to Exhibits 11 (and the related chart in Exhibit 14), 15, and 16 is whether these charts were created for the purpose of obtaining legal advice or whether they were otherwise created in the ordinary course of Wells Fargo's business. . . . Based on the current record, Wells Fargo has not met its burden of establishing that these charts should be withheld. Exhibit 11 (and Exhibit 14) appears to be a chart that was prepared in the ordinary course of Wells Fargo's business. Indeed, the Court suspects that this document (at least in large part) was generated by Wells Fargo as part of its management of the trusts, not by counsel. It would be surprising that a lawyer would have been responsible for inputting this sheer volume of data into a spreadsheet. Similarly, Exhibit 15 is a compilation of repurchase and loan file review information that appears to have been extracted from a database. In its February 7, 2017 submission, Wells Fargo represented that it has already produced the non-privileged portions of Exhibit 15 but does not indicate what those portions were. Regarding Exhibit 16, Wells Fargo asserts that it consists of documents and communications shared between Wells Fargo and its attorneys in order for counsel to determine whether and EOD had occurred. But it is not clear what the role of counsel was in preparing Exhibit 16."; "[T]he Court will reserve decision pending further submission by Wells Fargo."; "Wells Fargo shall submit a declaration of a person with knowledge to show that these charts were created for the purpose of obtaining legal advice, not for the purpose of conducting its ordinary business. The declarant should describe, in detail, each column in each of the charts and explain whether the information in each column reflected attorney advice or was compiled for the purpose of obtaining legal advice.")

Case Date Jurisidction State Cite Checked
2017-03-09 Federal NY

Chapter: 56.5

Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs also argue that Wells Fargo improperly designated as confidential documents containing only factual information. Plaintiffs cite as exemplars three charts . . . to demonstrate that many of the allegedly privileged documents are spreadsheets summarizing trust data and are therefore factual business documents that should be disclosed."; "The relevant inquiry with respect to Exhibits 11 (and the related chart in Exhibit 14), 15, and 16 is whether these charts were created for the purpose of obtaining legal advice or whether they were otherwise created in the ordinary course of Wells Fargo's business. . . . Based on the current record, Wells Fargo has not met its burden of establishing that these charts should be withheld. Exhibit 11 (and Exhibit 14) appears to be a chart that was prepared in the ordinary course of Wells Fargo's business. Indeed, the Court suspects that this document (at least in large part) was generated by Wells Fargo as part of its management of the trusts, not by counsel. It would be surprising that a lawyer would have been responsible for inputting this sheer volume of data into a spreadsheet. Similarly, Exhibit 15 is a compilation of repurchase and loan file review information that appears to have been extracted from a database. In its February 7, 2017 submission, Wells Fargo represented that it has already produced the non-privileged portions of Exhibit 15 but does not indicate what those portions were. Regarding Exhibit 16, Wells Fargo asserts that it consists of documents and communications shared between Wells Fargo and its attorneys in order for counsel to determine whether and EOD had occurred. But it is not clear what the role of counsel was in preparing Exhibit 16."; "[T]he Court will reserve decision pending further submission by Wells Fargo."; "Wells Fargo shall submit a declaration of a person with knowledge to show that these charts were created for the purpose of obtaining legal advice, not for the purpose of conducting its ordinary business. The declarant should describe, in detail, each column in each of the charts and explain whether the information in each column reflected attorney advice or was compiled for the purpose of obtaining legal advice.")

Case Date Jurisidction State Cite Checked
2017-03-09 Federal NY

Chapter: 56.5

Case Name: Peerless Indemnity Ins. Co. v. Sushi Avenue, Inc., Civ. No. 15-4112 ADM/LIB, 2017 U.S. Dist. LEXIS 22436 (D. Minn. Feb. 15, 2017)
("Peerless thus recognized that in establishing privilege, it had the burden to convince Judge Brisbois that the communications at issue were not disseminated beyond those persons who needed to know their contents. Peerless did not explain the corporate role of any individuals other than the four identified for purposes of the second element, electing instead to broadly assert the conclusion that the communications were not shared beyond those who needed to know their contents."; "In viewing the disputed communications in camera, Judge Brisbois discovered that many of the communications were copied to individuals whose identity and role Peerless did not explain.")

Case Date Jurisidction State Cite Checked
2017-02-15 Federal MN

Chapter: 56.5

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)
("Mid-Century pointed out that HCCA did not disclose Mr. Rutenbar in its disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) as an individual with discoverable information; nor did it identify him in its answers to Mid-Century's interrogatories."; "Because the party asserting the privilege must prove that the privilege exists, plaintiff was required to inform this Court why the privilege applied to communications involving Mr. Rutenbar. . . . Plaintiff's failure of proof leaves us with no basis to treat Mr. Rutenbar as anything other than a person outside the control group, which is fatal to plaintiff's assertion of privilege.")

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

Chapter: 56.5

Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("Having considered the parties' arguments, the Court will deny Boehringer's motion for leave to file Persky's [Defendant's Senior Vice President, General Counsel, and Secretary] ex parte affidavit because it has not met its high burden to show that the affidavit is necessary or appropriate in these circumstances. It is true that the complexities of the pharmaceutical industry and patent litigation are daunting. It is also true that Persky's affidavit gives some context to those complexities. Nevertheless, the business interests implicated in the instant dispute fall well short of the types of interests that appropriately deserve ex parte treatment - i.e., national security and grand jury matters."; "Accordingly, the Court will deny Boehringer's motion for leave to file in camera and ex parte the supplemental affidavit of attorney Persky."; "Although the Court declines to admit Persky's supplemental, ex parte affidavit as evidence to support Boehringer's claims of work-product protection, the Court has reviewed it, and the context Persky provides therein actually undermines rather than strengthens Boehringer's arguments.")

Case Date Jurisidction State Cite Checked
2016-09-27 Federal DC

Chapter: 56.5

Case Name: Bloomingburg Jewish Education Center v. Village of Bloomingburg, 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192 (S.D.N.Y. March 18, 2016)
(finding that defendant Town had not presented sufficient evidence to support privilege or work product protection for a communications between the Town and West End, described as "a public relations and communications strategy firm"; "The Town Defendants support their broad assertions of privilege solely with the following representations. In their opposition letter, the Town Defendants represent that West End was hired at the behest of counsel in the Lamm action to assist in litigation strategy after counsel 'determined a public relations firm would be useful in preparing for the litigation.' As an exhibit to their letter, the Town Defendants also provided the Court with an attorney declaration dated October 6, 2015 from David C. Holland, Esq., who served as their counsel in the Lamm action. . . . This declaration, which is just over two pages, is the Town Defendants' only factual support for their invocation of privilege.")

Case Date Jurisidction State Cite Checked
2016-03-18 Federal NY

Chapter: 56.5

Case Name: Motion Industries, Inc. v. Superior Derrick Services, LLC, Civ. A. No. 15-1958 Section: "H"(5), 2016 U.S. Dist. LEXIS 23826 (E.D. La. Feb. 26, 2016)
(analyzing an internal corporate investigation into possibly improper transactions; holding that in the Fifth Circuit litigation need not be imminent to trigger the work product doctrine protection; finding plaintiff's brief provided inadequate supporting protection internal corporate investigation documents; "In the present case, there is literally nothing in the record, including the documents themselves, that would allow this Court to undertake the inquiry necessary to find these documents to be privileged. As for what the 'primary motivating purpose behind the creation of the document' might have been, the Court can only guess. This is the sum total information provided by the Plaintiff in brief to explain the documents' genesis: 'An employee contacted Movant's human resources department in July 2013 and as a result of that contact, an investigation was initiated. Movant retained Asset Protection as a contractor to assist in the process of the investigation.'"; "As a statement in support of a privilege claim, this one leaves much to be desired, as it creates far more questions than it provides answers. Who was the employee that contacted human resources and why? An 'investigation was initiated' by whom and why? What is 'Asset Protection?' Where are the privilege logs referenced in the brief? Who are the six employees identified? Are any of them attorneys? Were any attorneys involved in this investigation? Why, if at all, did anyone anticipate litigation resulting from this human resources 'contact?'"; "It should be noted that the documents themselves do not in any way help the Court answer any of these questions. The mere statement by counsel in brief that '[t]he motivation for the investigation and the preparation of the documents in relation to the investigation was an anticipation of litigation' is woefully insufficient to carry Plaintiff's burden in the absence of any supporting evidence in the record.")

Case Date Jurisidction State Cite Checked
2016-02-28 Federal LA

Chapter: 56.5

Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
("[A] document may 'be created for both use in the ordinary course of business and in anticipation of litigation without losing its work product privilege.'. . . Thus, the Court is not persuaded by Defendant's contention that the documents created after March 6, 2006, are similar to the documents created before that date. Even assuming that documents created before March 6, 2006, were created for purely business purposes, it does not follow that substantially similar documents created after that date could not be created for both business and litigation purposes."; "Nevertheless, 'A party asserting the work product privilege bears the burden of establishing that the documents he or she seeks to protect were prepared 'in anticipation of litigation.'. . . Plaintiffs' sweeping assertion that the documents at issue 'were undoubtedly generated in anticipation of litigation with MichCon' is insufficient to meet this burden, particularly where the examples cited in their brief related to litigation support activities are no longer at issue.")

Case Date Jurisidction State Cite Checked
2015-10-27 Federal MI
Comment:

key case


Chapter: 56.5

Case Name: Peterson v. Martin Marietta Materials, Inc., No. C14-3059-DEO, 2015 U.S. Dist. LEXIS 138822 (N.D. Iowa Oct. 13, 2015)
(analyzing work product protection for a voice mail message; "[T]he record contains no evidence of when the message was left, to whom it was directed or the speaker's motivation for leaving the message. While I can guess, from context, that the unnamed employee may have directed the message to Peterson, and that Peterson then forwarded it to his attorney, the lack of evidence renders this purely speculative. And, of course, Peterson's suggestion that the unnamed employee who left the message did so in preparation for litigation is even more speculative."; "In short, Peterson has not come close to making the factual showing necessary to support his claim that the Voicemail Message constitutes ordinary work product. Moreover, even if I could assume (a) that the Voicemail Message was left for Peterson, (b) that Peterson forwarded it to his attorney and © that the unnamed employee who left the message did so for the purpose of providing assistance to Peterson, that scenario would not give rise to a valid work product argument.")

Case Date Jurisidction State Cite Checked
2015-10-13 Federal IA

Chapter: 56.5

Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("'There is no indication as to who authored this document. Although it does concern antitrust issues, it could have been written by anyone within RockTenn's management. As the proponent of the privilege, RockTenn bears the burden of establishing that the document at issue is indeed attorney-client material.'")

Case Date Jurisidction State Cite Checked
2014-11-12 Federal IL

Chapter: 56.5

Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
(finding defendants' affidavits insufficient to justify privilege protection or allow defendants to retrieve one document claimed to be inadvertently produced out of 30,000 produced; analyzing the privilege protection issue for the inadvertently produced document; "Prior Counsel's declaration fails because it does not provide a precise factual basis of all elements to be satisfied. That is, Prior Counsel's declaration fails to show who exactly sent the Draft Document, whether the primary purpose of the communication was for legal advice, or whether the communication was indeed confidential. Inasmuch as Prior Counsel asserts that the Draft Document, in his opinion, was privileged and that it was communicated to him for the purposes of obtaining legal advice . . . Such statements do not carry Defendants' burden.")

Case Date Jurisidction State Cite Checked
2014-11-05 Federal GA

Chapter: 56.5

Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
(finding defendants' affidavits insufficient to justify privilege protection or allow defendants to retrieve one document claimed to be inadvertently produced out of 30,000 produced; analyzing the privilege protection issue for the inadvertently produced document; "Beyond being a mere ipse dixit assertion of privilege, Defendants claim shows nothing as to the confidentiality of the retention of and the communications between Defendants' legal team and the outside consultants. Relator's Complaint appears to say nothing beyond the mere fact Defendants retained an outside consultant to evaluate their physician compensation arrangement. It is doubtful that the mere fact of retention of an outside consultant is privileged. . . To the extent that Relator's Complaint can be read to reference communications, the Court knows nothing about whether those communications were kept confidential and, most importantly, Defendants provide the Court nothing showing that any communication was in fact confidential."; "Thus, Defendants have failed to present evidence as to the very essence of attorney-client privilege -- i.e., confidentiality.")

Case Date Jurisidction State Cite Checked
2014-11-05 Federal GA

Chapter: 56.5

Case Name: United States ex rel. Schaengold v. Memorial Health, Inc., No. 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
December 17, 2014 (PRIVILEGE POINT)

“It Can be Nearly Impossible to Satisfy Some Courts' Privilege Protection Standards: Part I”

Although federal courts generally articulate the same basic attorney-client privilege principles, they can demonstrate enormous variation when applying those principles. In some situations, it might be nearly impossible for companies to successfully assert privilege protection.

In United States ex rel. Schaengold v. Memorial Health, Inc., No. 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014), defendants sought to retrieve one document (out of 30,000 documents produced) that they claimed to have inadvertently produced to the government. They described the document as a draft sent to the company's lawyer, portions of which the client deleted at the lawyer's request before disclosing the final version to third parties. The court found that the document did not deserve privilege protection, because the lawyer's supporting affidavit "fails to show who exactly sent the Draft Document, whether the primary purpose of the communication was for legal advice, or whether the communication was indeed confidential." Id. at *9. Turning to the inadvertent production issue, the court found defendants' "naked assertion of a privilege review" inadequate — because defendants did not describe "'when [the] review occurred, how much time [Prior Counsel] took to review the documents, what ['certain'] documents were reviewed, and other basic details of the review process.'" Id. at *17 (citation omitted; alterations in original).

The next Privilege Point will describe another federal court's similar decision issued seven days later.

Case Date Jurisidction State Cite Checked
2014-11-05 Federal GA
Comment:

key case


Chapter: 56.5

Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
(finding defendants' affidavits insufficient to justify privilege protection or allow defendants to retrieve one document claimed to be inadvertently produced out of 30,000 produced; analyzing the privilege protection issue for the inadvertently produced document; "Notably absent from Defendants' naked assertion of a privilege review is 'when [the] review occurred, how much time [Prior Counsel] took to review the documents, what ['certain'] documents were reviewed, and other basic details of the review process.'")

Case Date Jurisidction State Cite Checked
2014-11-05 Federal GA

Chapter: 56.5

Case Name: Safety Text & Equip. Co. Inc. v. Am. Safety Util. Corp., 13 CVS 1037, 2014 NCBC 40, at *14, *15 (N.C. Super. Ct. Sept. 2, 2014)
("Some courts expressly presume that there has been no waiver until a party opposing privilege demonstrates a factual predicate for claiming waiver."; "Other courts, including the Fourth Circuit, implicitly presume the absence of waiver absent contrary evidence."; "The court concludes that this burden-shifting approach is consistent with North Carolina precedent and should be followed here. The approach prevents placing an initial heavy and unrealistic burden on the privilege holder to account for and disprove every possibility of waiver.")

Case Date Jurisidction State Cite Checked
2014-09-02 State NC

Chapter: 56.5

Case Name: Ishee v. Federal National Mortgage Association, Civ. A. No. 2:13-cv-234-KS-MTP, 2014 U.S. Dist. LEXIS 71141 (S.D. Miss. May 23, 2014)
("Plaintiff argues that none of the documents are protected by the work product doctrine because they were not made in anticipation of litigation. Underwood asserts that the documents were prepared in anticipation of litigation. These assertions, however, are not accompanied by any facts demonstrating that the documents were produced in anticipation of litigation. Underwood does not point to a time when it and GMAC began to reasonably anticipate litigation and does not demonstrate that the documents would not have been prepared even if litigation was never expected. Accordingly, Underwood has not met its burden of establishing that the sought-after documents are protected by the work product doctrine.")

Case Date Jurisidction State Cite Checked
2014-05-23 Federal MS

Chapter: 56.5

Case Name: Niceforo v. UBS Global Asset Mgmt. Americas, Inc., 12 Civ. 0033 (KPF) (FM), 12 Civ. 4830 (KPF) (FM), 2014 U.S. Dist. LEXIS 69724 (S.D.N.Y. May 16, 2014)
(holding that plaintiff waived any action for a notebook that she left in her work desk; describing the context; "The only support for Niceforo's privilege claim is a statement in her memorandum of law that several pages of the notebook 'contain[] attorney-client communications between the plaintiff and her attorney.'. . . Tellingly, Niceforo has not submitted any admissible evidence to support that assertion. For example, there is no affidavit establishing that the notations on the disputed pages actually relate to a conversation between Niceforo and her counsel. Indeed, the only support for Niceforo's claim is her attorney's unsworn representation that she 'consulted with and hired an attorney when she received the final written warning' on October 12, 2011."; "[T]here is no evidence that Niceforo made a reasonable attempt to keep these statements confidential. As previously discussed, Niceforo was on notice of UBS's privacy policy. Her decision to record her communications with counsel in a notebook kept in her desk drawer, combined with her failure to seek the notebook's return for more than a year, destroys any claim that she intended to keep the communications confidential.")

Case Date Jurisidction State Cite Checked
2014-05-16 Federal NY

Chapter: 56.5

Case Name: Rank Group Ltd. v. ALCOA, Inc., 12 Civ. 3769 (VSB) (RLE), 2014 U.S. Dist. LEXIS 64508 (S.D.N.Y. May 9, 2014)
(finding an employee's unauthorized disclosure did not result in a waiver; "Here, the evidence submitted by Rank -- an Affidavit from a partner at Baker [Baker & McKenzie] and a Declaration from the former Latin American regional financial controller -- show by a preponderance that the disclosure was unauthorized and inadvertent. The affidavit produced establishes that Larrain Abascal, who was personally involved in Rank's privileged communications with Baker in May 2008, did not authorize the production of the information, and that there was no written evidence of anyone else having authorized such disclosure. The declaration from Borja also indicates there was no authority from Alusud Chile to forward the emails in question to anyone at Alcoa. Together, the sworn statements are enough to carry the burden of showing that the disclosure was unauthorized. They persuasively demonstrate that neither person who had the authority to make the disclosure did.")

Case Date Jurisidction State Cite Checked
2014-05-09 Federal NY

Chapter: 56.5

Case Name: Bonnell v. Carnival Corp., Case No. 13-22265-CIV-WILLIAMS/GOODMAN, 2014 U.S. Dist. LEXIS 22459, at *16, *4-5 (S.D. Fla. Jan. 31, 2014)
(finding that a post-accident investigation deserved work product protection, but that a later different consultant report prepared "in an effort to curb litigation" did not deserve work product protection; "Courts in this District have reached differing outcomes on the issue of whether incident reports created by cruise ship operators are protected by the work product doctrine. The Undersigned, however, has previously (and in more than one case) concluded that incident reports are protected by the work product doctrine, assuming that the defendant cruise ship operator submits the requisite affidavit." (footnote omitted))

Case Date Jurisidction State Cite Checked
2014-01-31 Federal FL B 6/14

Chapter: 56.5

Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *7-8 (N.D. Cal. Dec. 17, 2013)
(holding that documents prepared by Ben & Jerry's parent Unilever did not deserve privilege or work product protection, because they were prepared in the ordinary course of business, and there was no "actual litigation" anticipated; analyzing two documents; "Defendant has attached a declaration from Nancy Schnell, then an in-house counsel, which states that the document relates 'to the efforts by the company's U.S. and Global Regulatory and Legal Departments to create guidelines relating to 'natural' and 'all natural' claims.'. . . Defendant also points out that the document notes that formal approval by Legal and Regulatory is required before making any 'natural' claims and that 'Legal' is listed as the owner of the Global Policy on Guidance on the use of Natural Claims on Foods.")

Case Date Jurisidction State Cite Checked
2013-12-17 Federal CA B 5/14

Chapter: 56.5

Case Name: Tucker v. Jefferson Operator, LLC, No. 3:13-CV-200, 2013 U.S. Dist. LEXIS 175905, at *8 (E.D. Tenn. Dec. 16, 2013)
("Further, the attorney-client privilege must be established through certain factual assertions, including an assertion that legal advice was given and that no third-party was present. The Defendants have not attempted to establish any of these elements of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-12-16 Federal TN B 5/14

Chapter: 56.5

Case Name: Skepnek v. Roper & Twardowsky, LLC, Case No. 11-4102-KHV, 2013 U.S. Dist. LEXIS 163475, at *6 (D. Kan. Nov. 18, 2013)
("'[A privilege log should contain, among other things, [t]he identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-11-18 Federal KS B 5/14

Chapter: 56.5

Case Name: Skepnek v. Roper & Twardowsky, LLC, Case No. 11-4102-KHV, 2013 U.S. Dist. LEXIS 163475, at *6-7(D. Kan. Nov. 18, 2013)
(inexplicably requiring that a litigant withholding documents demonstrated that the documents did not contain any facts; "'The purpose of preparing the document, including an evidentiary showing, based on competent evidence, supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent; a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, that the documents do not contain or incorporate non-privileged underlying facts.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-11-18 Federal KS B 5/14

Chapter: 56.5

Case Name: Guidiville Rancheria of Cal. v. United States, Case No. 12-cv-1326 YGR (KAW), 2013 U.S. Dist. LEXIS 120509, at *8, *8-9, *10 (N.D. Cal. Aug. 23, 2013)
(analyzing the government's effort to claw-back a document it claimed was inadvertently disclosed; "Defendants admit that the document was not marked 'privileged' or 'confidential.'"; "Defendants have failed to submit evidence showing that it did not voluntarily disclose the contents of the draft memo. Nor have they explained what steps, if any, were taken to protect the privileged nature of the document, whom the document was provided to, or how it or its contents were released to a newspaper. Nor have Defendants attempted to explain the statement in the letter from a member of Stand Up for California to the Acting Director of the Office of Indian Gaming that, 'as we discussed on Friday, we both know that the memo exists.' The implication of this statement is that the Director of the Office of Indian Gaming had discussed the existence and relevant contents of the draft memo with the representative of Stand Up California. If this is true, the disclosure was voluntary and the attorney-client privilege was waived."; "Defendants have not met their burden of showing non-waiver, as they have submitted no evidence to the Court attesting to how the draft memo was kept confidential.")

Case Date Jurisidction State Cite Checked
2013-08-23 Federal CA B 4/14

Chapter: 56.5

Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *37-38 (E.D. Wis. July 10, 2013)
("The contents of these documents are privileged, with one caveat. The documents reflect that they came from the email or computer of a Jennifer Nagle. The court has looked, without success, for reference to Nagle in the record. Assuming Nagle is affiliated with the law office of one of the joint defense attorneys the privilege applies. If she is a third party, the privilege has been waived. The parties should advise the court in writing if there is any dispute as to whether disclosure to Nagle waived the privilege.")

Case Date Jurisidction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 56.5

Case Name: Heckler & Koch, Inc. v. German Sport Guns GMBH, Case No. 1:11-cv-1108-SEB-TAB, 2013 U.S. Dist. LEXIS 76580, at *5, *6, *8-9, *9 n.2 (S.D. Ind. May 31, 2013)
(finding the common interest doctrine inapplicable; "To show that this exception was applicable, Plaintiffs asserted that they have a 'nearly identical' legal interest with Umarex [plaintiff's licensee] based on an exclusive license agreement. Defendants responded by arguing that a common legal interest cannot be 'nearly identical.'"; "Plaintiffs' motion correctly points out that the common interest doctrine does not require that the interests be comparable in all respects. . . . But while interests need not be comparable in all respects, case law also states that the interests cannot merely be similar."; "The Court recognizes that Plaintiffs submitted an affidavit to support their position that an exclusive license agreement with Umarex created a common interest. . . . But that affidavit was the source of Defendants' challenge because it concluded that the interest was 'nearly identical.'. . . As the Court noted, '[n]o agreement or other evidence has been submitted to suggest otherwise.'. . . In other words, the Court was unable to confirm Plaintiffs' interpretation of the license agreement and accurately determine what Plaintiffs meant by 'nearly identical.' It was incumbent upon the Plaintiffs to present the Court with an adequate factual basis to support application of the common interest doctrine. Plaintiffs failed to do so." (footnote omitted); "Plaintiffs now submit a common interest agreement between Plaintiffs and Umarex to support their position. . . . This agreement was executed in October 2012 and could have been submitted to the Court in conjunction with the briefing on Defendants' motion to compel. Belatedly introducing this agreement does not warrant its consideration.")

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

Chapter: 56.5

Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *43, *43-44, *44, *45, *46, *47, *48 (S.D. Ga. May 8, 2013)
(in an employment discrimination case against celebrity Paula Deen and her brother "Bubba" Hiers, ultimately concluding that Deen's three outside consultants were outside the attorney-client privilege protection; "[T]he defendants rely on Paula Deen's affidavit. . . . She attests that Barry Weiner is her 'agent and business adviser.'. . . Lucie Salhany is 'a business consultant for' Paula Deen Enterprises, LLC (PDE)), . . . and she works 'with designated PDE personnel on staffing and salary issues, and the improvement of hiring practices,' plus marketing and public relations functions. . . . She is 'an integral person in a group dealing with issues that are completely intertwined with PDE's litigation and legal strategies.' . . . And Jeff Rose is affiliated with 'The Rose Group,' which is a 'brands relation agency.' . . . That group provides 'marketing and public relations services for PDE.' . . . Rose thus is an integral part of the Weiner-Salhany-Rose cluster that gathers 'to discuss litigation and legal strategies.' . . . Rose, then, 'must hear the advice of legal counsel regarding these matters.'"; "Those three contractors, Deen concludes, 'are indistinguishable from my employees because each, in their individual capacity, acts for me and my business entities and possesses the information needed by attorneys in rendering legal advice.'"; "Plaintiff insists that the documents Gerard copied to them are discoverable because Deen's affidavit at most speaks of her general reliance on them, while they themselves have not provided affidavits showing they possess sufficient, specific knowledge of this case to place them within that protection zone."; "It is true that there is no per se rule restricting a corporation's assertion of its attorney-client based privilege to employees, as it is common to seek legal assistance from third parties who are neither employees nor lawyers."; "Those third parties, however, must be nearly indispensable to that effort."; "Significant here is what the defendants do not say. They do not supply: (a) any affidavit from any of the agents showing what specific role they have played with respect to this case; and (b) what communications in fact were sent to them and for what purpose. There is a difference, for example, between helping to formulate and factually support a legal strategy versus damage control-based, publicity management -- a patently commercial endeavor."; "Deen's affidavit, meanwhile, speaks only in general terms. Nothing approaching the 'nearly indispensable role' is described."; "Waiver thus has occurred, so defendants must disclose all of Gerard's communications regarding Jackson's complaints, where these individuals were in the loop.")

Case Date Jurisidction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 56.5

Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *46, *47 (S.D. Ga. May 8, 2013)
(in an employment discrimination case against celebrity Paula Deen and her brother "Bubba" Hiers, ultimately concluding that Deen's three outside consultants were outside the attorney-client privilege protection; rejecting Deen's functional equivalent argument; "Significant here is what the defendants do not say. They do not supply: (a) any affidavit from any of the agents showing what specific role they have played with respect to this case; and (b) what communications in fact were sent to them and for what purpose. There is a difference, for example, between helping to formulate and factually support a legal strategy versus damage control-based, publicity management -- a patently commercial endeavor."; "Deen's affidavit, meanwhile, speaks only in general terms. Nothing approaching the 'nearly indispensable role' is described.")

Case Date Jurisidction State Cite Checked
2013-05-08 Federal GA B 8/13

Chapter: 56.5

Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *17, *18-19 (N.D. Cal. Mar. 26, 2013)
(holding that a publication by the New York Times of a 1995 Akin Gump memorandum to its client Wal-Mart did not result in a waiver; also finding that Wal-Mart disclosed part of the memorandum in responding to the New York Times story, but that the disclosure did not trigger a subject matter waiver under the von Bulow (In re von Bulow, 828 F.2d 94 (2d Cir. 1987)) doctrine; "Plaintiffs nonetheless argue that the Wal-Mart has not met its burden of showing that it took sufficient precautions to maintain the Memo's confidentiality. They contend that the Court should infer from the disclosures themselves that Wal-Mart 'has not safeguarded its attorney-client communication like 'crown jewels.'" (citation omitted); "Wal-Mart has submitted evidence under penalty of perjury establishing its extensive efforts to maintain the Memo's confidentiality. Indeed, when Sellers found the Memo on his desk, he did not read past the top of the first page because the Memo was so distinctively marked as confidential and attorney-client privileged.")

Case Date Jurisidction State Cite Checked
2013-03-26 Federal CA B 3/14

Chapter: 56.5

Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *33 (S.D. Ohio Feb. 19, 2013)
(finding that the privilege log should include the following information: "'The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, "including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney."'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 56.5

Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *34 (S.D. Ohio Feb. 19, 2013)
(finding that the privilege log should include the following information: "'The purpose of preparing the document, including an evidentiary showing, based on competent evidence, "supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent;" a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, 'that the documents do not contain or incorporate non-privileged underlying facts."'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 56.5

Case Name: Prowess, Inc. v. Raysearch Labs. AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 14433, at *11-12 (D. Md. Jan. 18, 2013)
(recognizing courts' different approaches to privilege protection for communications to and from patent agents, and ultimately concluding that the privilege did not protect them unless a patent agent was acting as a lawyer's agent; "UMB also asserts the attorney-client privilege for documents whose author is 'Unknown -- Presumably David Marks.'. . . [T]he proponent of the attorney-client privilege in a privilege log must provide 'the name of the person making/receiving the communication.'. . . Again, because it is UMB's burden to prove that these documents are privileged, this Court cannot find that documents are privileged based solely on UMB's representation that documents were presumably authored by Mr. Marks.")

Case Date Jurisidction State Cite Checked
2013-01-18 Federal MD B 1/14

Chapter: 56.5

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 871 (Tex. Ct. App. 2013)
("Metzger [Bank's lawyer] stated that he had reviewed the documents described in item numbers 1 through 54, 490 through 513, and 531 through 637 of the privilege log. He also identified the various senders and recipients of the documents as representatives of Metzger & McDonald who were assisting in the performance of professional legal services for the Bank, or persons employed by the Bank 'and/or were representatives of the Bank,' and explained why they were entitled to receive confidential communications. He also stated that he was familiar with the definition of 'work product' included in Rule 192.5. Finally, Metzger expressed his opinion that, applying this definition of 'work product,' the documents corresponding to the item numbers of the privilege log referred to in his affidavit are 'material prepared or mental impressions developed in anticipation of litigation or for trial by or for [the Bank] or its representatives, or a communication made in anticipation of litigation or for trial between [the Bank] and its representatives or among its representatives.'"; "Mouse's [outside lawyer for bank] affidavit was in the same form as Metzger's and contained similar information pertaining to the documents corresponding to item numbers 55 through 437 of the privilege log. He identified certain senders and recipients of the documents and explained their relationship to KRCL [outside lawyers for bank], the Bank, or other entities and explained why they were entitled to receive privileged communications. He also stated that he was familiar with the definition of 'work product' included in Rule 192.5. In his opinion, Mouse stated further, the documents corresponding to the item numbers referred to in his affidavit are 'material prepared or mental impressions developed in anticipation of litigation or for trial by or for [the Bank] or its representatives, or a communication made in anticipation of litigation or for trial between [the Bank] and its representatives or among its representatives.'"; "We conclude that through the affidavits of Reed [Bank Executive Vice President], Metzger, and Mouse, Relators established a prima facie case that the documents specifically mentioned in the affidavits were protected from discovery by the work product privilege.")

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

Chapter: 56.5

Case Name: Adair v. EQT Prod. Co., 294 F.R.D. 1, 6 (W.D. Va. 2013)
(finding that an administrative hearing did not count as "litigation" for work product purposes; "With regard to the second category of documents withheld -- documents that EQT [Defendant] created from its own records at the request of counsel, EQT argues that these documents would not have existed but for litigation. In particular, EQT has provided evidence to the court by way of affidavit and deposition testimony that the remaining documents withheld in this category were prepared at the request of counsel for use in this or other litigation or were requests for information to respond to the requests of counsel. . . . Based on this, the court will find that this category of documents is protected from production by the work-product doctrine.")

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

Chapter: 56.5

Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 35, 36 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "Attorneys Flanagan and Johnson determined that in order to understand the dispute between Bryan and ChemWerth, and to provide legal advice to Bryan, they needed the assistance of someone who could understand and interpret Bryan's application to the FDA, the FDA's requirements and practices concerning new drug applications, DMFs [drug master files] and other data, and the impact that ChemWerth's alleged failure to provide documents had on Bryan's application to the FDA and the amount of money spent on the application. . . . They also determined that they would need someone to interpret all of the relevant communications involving ChemWerth, Bryan, Bryan's manufacturers, Bryan's testing laboratories, and the FDA."; "Waldman took on the task of translating and interpreting various communications involving Bryan, ChemWerth and the FDA, including communications in which Dr. Waldman [plaintiff's FDA consultant] had participated in his capacity as Bryan's agent on the TS project."; "Both MLA [plaintiff's outside law firm] and Bryan viewed Waldman's assistance as indispensable to MLA's ability to provide its client with legal advice regarding its dispute with ChemWerth and its potential communications with the FDA. . . . [B]oth MLA and Bryan understood that only MLA, Bryan and Waldman had access to those communications."; "Following ChemWerth's filing of a third-party complaint against Waldman on September 24, 2012, counsel for Bryan and Waldman agreed orally that their clients had a common interest in the case. . . . [A]lthough all of the documents which ChemWerth is seeking were created before Waldman retained its own counsel, Bryan took steps to preserve its claims of privilege over those documents in the event they were shared with Waldman's counsel.")

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

Chapter: 56.5

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 633 (D. Nev. 2013)
(holding that consultants were the "functional equivalent" of employees; "[T]he court will turn to the Ninth Circuit's application of the 'functional equivalent' of an employee theory in deciding whether specific communications are covered by the attorney-client privilege."; quoting a lengthy affidavit supporting the functional equivalent claim)

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

Chapter: 56.5

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 329-30 (M.D. Pa. 2013)
("[I]t is clear from the record before the Court that Dempsey's parents played two different roles in his legal defense, both of which permitted them to participate in or receive disclosure of confidential communications without waiver of the attorney-client privilege. From the earliest stages of this affair, Dempsey's parents played an essential role in securing legal representation for Dempsey. After the retention of legal counsel, Dempsey's parents actively assisted his attorneys in preparing a defense to criminal charges and, later, student conduct charges against Dempsey. In particular, the Court notes Attorney Stephen Becker's unrebutted affidavit . . . in which Becker stated that, due to their professional backgrounds (John Dempsey is a forensic investigator and Shelley Dempsey is a retired attorney) and their relationship and knowledge of their son, he enlisted the assistance of Dempsey's parents in gathering and analyzing information and helping to prepare Dempsey's defense. It is also abundantly clear from the Court's in camera review of the documents at issue that Dempsey's parents functioned just as Attorney Becker represented, operating in concert with and at the direction of defense counsel, and providing substantial assistance in preparation of the case. Whether they came upon these roles as paid professionals or as family member volunteers is immaterial.")

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

Chapter: 56.5

Case Name: Tudor Ins. Co. v. Stay Secure Constr. Corp., 390 F.R.D. 37, 40-41 (S.D.N.Y. 2013)
(in a first party insurance case, finding that the litigant had not supplied an affidavit supporting the "because of" work product standard; "By seeking to protect certain portions of Hannon's [investigator hired by insurance company's lawyer] investigation, Tudor is apparently arguing that these particular portions were prepared in 'anticipation of litigation' while at the same time conceding that the remaining parts of the investigatory reports were not. . . . But Tudor has provided no competent evidence to support its implicit factual argument that the Hannon reports would not have been prepared 'in essentially similar form,'. . . had the personal injury actions not already been filed. Indeed, Tudor submits not a single affidavit from anyone at Hannon, the Congdon, Flaherty firm [plaintiff's lawyer], or Tudor on this question. Because Tudor bears the burden of proof on this issue, . . . its effort to protect the redacted portions necessarily fails simply based on this lack of proof.")

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

Chapter: 56.5

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

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

Chapter: 56.5

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 330 (M.D. Pa. 2013)
("[T]he evidence of record establishes that Dempsey's parents were also clients of Attorney Stephen Becker with respect to non-criminal matters involving Bucknell University. In his unrebutted affidavit, Attorney Becker stated unequivocally that he was engaged to represent Dempsey and his parents with respect to non-criminal matters involving Bucknell University.")

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

Chapter: 56.5

Case Name: Galvan v. Mississippi Power Co., Civ. A. No. 1:10CV159-KS-MTP, 2012 U.S. Dist. LEXIS 165558 (S.D. Miss. Nov. 20, 2012)
January 9, 2013 (PRIVILEGE POINT)

"Where Do Courts Look When Determining Whether a Litigant has Proven Attorney Client Privilege or Work Product Protection?: Part I"

Every court agrees that a litigant withholding documents must carry the burden of proving some protection. But where do courts look when deciding whether the litigant has justified withholding responsive documents? Three federal court cases decided in a two-week period shed some light.

In Galvan v. Mississippi Power Co., Civ. A. No. 1:10CV159-KS-MTP, 2012 U.S. Dist. LEXIS 165558 (S.D. Miss. Nov. 20, 2012), the court rejected a company's work product claim. The court "decline[d] the parties' invitation to review all of the withheld documents in camera." Id. At *9. Instead, the court bluntly noted that "[t]here is no factual information submitted to support the work-product claims, such as an affidavit, deposition testimony, or other document." Id. At *7 n.3.

Some courts decline to review withheld documents, and instead look for some extrinsic evidence supporting any protection claims. This normally includes an affidavit explaining the documents' evidence context, and justifying the withholding. The next two Privilege Points will discuss the other two cases that dealt with this issue.

Case Date Jurisidction State Cite Checked
2012-11-20 Federal MI
Comment:

key case


Chapter: 56.5

Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159 KS MTP, 2012 U.S. Dist. LEXIS 165558, at *7 n.3 (S.D. Miss. Nov. 20, 2012)
(holding that a root cause analysis did not deserve work product protection, because the party did not support the work product claim; "'There is no factual information submitted to support the work-product claims, such as an affidavit, deposition testimony, or other document.")

Case Date Jurisidction State Cite Checked
2012-11-20 Federal MS B 7/13

Chapter: 56.5

Case Name: United States v. Pogson, Crim. No. 2011 017, 2012 U.S. Dist. LEXIS 164935, at *13 n.7 (D. V.I. Nov. 19, 2012)
(holding that the presence of other witnesses during otherwise privileged communication rendered the privilege from protecting the communications; "Also fatal to a claim of confidentiality, Defendant's communications with Attorney Wynter were made in the presence of a third party -- Mr. Felix. . . . While the Court is aware that communications in the presence of Mr. Felix could be confidential if Defendant and Mr. Felix were in a joint client or common interest relationship . . ., Defendant -- who carries the burden with respect to establishing privilege in this matter -- has not raised the possibility, let alone demonstrated, that such a relationship exists in this case.")

Case Date Jurisidction State Cite Checked
2012-11-19 Federal VI B 7/13

Chapter: 56.5

Case Name: Werder v. Marriott Int'l, Inc., No. 2:10cv1656, 2012 U.S. Dist. LEXIS 134719, at *6-7 (W.D. Pa. Sept. 20, 2012)
("Although leaving much to be desired, defendant Otis' repeated description of each document as 'communications regarding instant litigation' does not in itself warrant the production of all withheld documents. Defendant Otis also has provided for each communication the specific dates, the protection invoked, and the name of the sender and recipient along with their respective titles and places of business. Furthermore, the supplementing information found in defendant Otis' Prefatory Statement, Answers to Interrogatories, and Answers to Requests for Production of Documents provides additional context to the communications. Collectively, this information adequately satisfies the standard set forth in Rule 26(b)(5).")

Case Date Jurisidction State Cite Checked
2012-09-20 Federal PA B 10/13

Chapter: 56.5

Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *26-27 (W.D. Va. June 20, 2012)
("Additionally, based on the affidavit submitted by DRHA, the court also concludes that the attached documents drafted by Wasson are protected by the attorney-client privilege, since the affidavit indicates that the documents were written at Byrnes' request, for the purpose of assisting counsel in giving advice to DRHA's Board of Commissioners. See Upjohn, 449 U.S. at 394-395 (holding that communications were protected by the attorney-client privilege since they 'were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel'); In re Allen, 106 F.3d at 607")

Case Date Jurisidction State Cite Checked
2012-06-20 Federal VA

Chapter: 56.5

Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *28 (W.D. Va. June 20, 2012)
(holding that a plaintiff claiming that defendant had waived the privilege did not establish that privileged documents were actually disclosed to a third party; "Finally, the court is constrained to conclude that the privilege has not been waived. While Carnell is of the belief that the documents at issue were likely provided to Robert Owens, DRHA has submitted sworn affidavits which confirm that the documents were not submitted for Owens' review. In the absence of any basis to question the truthfulness of the affidavits, the court must conclude that the attorney-client privilege has not been waived.")

Case Date Jurisidction State Cite Checked
2012-06-20 Federal VA B 12/12

Chapter: 56.5

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 381 (W.D. Va. 2012)
("West's affidavits add little evidence to support the claimed privilege. West stated that he has reviewed the withheld emails. West also stated that he 'consider[ed] the emails to be protected by the attorney-client privilege or by the work[ ]product doctrine.' That, however, is the court's determination to make. West also has stated: 'In my view, I was acting primarily in a legal capacity in investigating and formulating EQT's response to Mr. Gilbert.' Such conclusory statements, however, do not meet the proponent's burden. Again, it is important to note what West's affidavits do not contain. West did not offer any evidence that these emails related to requests for or the rendering of legal advice. Instead, West stated only that the inquiries 'presented legal issues, and EQT anticipated that litigation could ensue.' It is likely this could be said of any of West's work for EQT Production.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 56.5

Case Name: In re Capital One Bank Credit Card Interest Rate Litig., 286 F.R.D. 676, 681 (N.D. Ga. 2012)
("As in Bogle [Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2003)], Capital One has presented no evidence as to whether the communications at issue were designated 'privileged' or 'confidential' or whether the recipients, where listed, understood the communications to be confidential. Where there are no recipients listed, the court has no way of knowing whether the communications remained confidential and were distributed only to those employees who needed to know its contents and/or were authorized to act on behalf of Capital One with respect to the subject matter of the communications. . . . With regard to these documents failing to list a recipient, Plaintiffs' motion to compel is due to be granted. Where recipients are listed but non-lawyers are included on both sides of the communication, the court again does not possess the information required to ascertain whether the employees included needed to know the contents of the communication and/or were authorized to act on the information for the company. With regard to these documents, that do have recipients listed, Capital One should come forward with additional information so that Plaintiffs, and, if necessary, the court, can better evaluate its claims of attorney-client privilege.")

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

Chapter: 56.5

Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *7 (W.D. Va. Oct. 6, 2011)
("The communications 'do not explicitly ask for legal advice, opinions, or oversight,' or otherwise suggest that the purpose of the documents is to obtain or provide 'an opinion on law, legal services, or . . . assistance in some legal context.' Scott & Stringfellow, 2011 U.S. Dist. LEXIS 51028, at *10. While the table of contents in one of the exhibit binders indicates that the exhibit contains 'counterclaim analysis,' the actual documents, consisting of spreadsheets prepared by WGI, were generated months before SNC filed the instant action in December of 2010. The same is true with all of the other documents, which were drafted between March and September of that year. Because neither the documents themselves nor any other evidence proffered by ATK establishes that the documents were 'made for the purpose of facilitating the rendition of legal services,' In re Grand Jury Proceedings, 947 F.2d at 1191, the court concludes that ATK has failed to meet its burden of demonstrating that the attorney-client privilege immunizes the documents from disclosure.")

Case Date Jurisidction State Cite Checked
2011-10-16 Federal VA

Chapter: 56.5

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007)
("First, the party asserting work-product protection bears the burden to show that the 'work product' was prepared in anticipation of litigation. . . . Second, in order to meet this burden, the proponent of the privilege must 'come forward with a specific demonstration of facts supporting the requested protection,' preferably though affidavits from knowledgeable persons. Suggs v. Whitaker, 152 F.R.D. 501, 505 (M.D.N.C. 1993). See also North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 515 (M.D.N.C. 1986).")

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

Chapter: 56.5

Case Name: Sony Computer Entm't Am., Inc. v. Great Am. Ins Co., 229 F.R.D. 632, 633, 634 & n.1 (N.D. Cal. 2005)
("[T]he parties clarified that the only third party at issue is Mr. O'Neil, the insurance broker for SCEA"; "Where a third party is present, no presumption of confidentiality obtains, and the usual allocation of burden of proof, resting with the proponent of the privilege, applies in determining whether confidentiality was preserved under § 952."); "It is appropriate that the proponent of the privilege has the burden of proving that a third party was present to further the interest of the proponent because, in this situation, where the privilege turns on the nature of the relationship and content of communications with the third party in question, the proponent is in the better posture to come forward with specific evidence explaining why confidentiality was not broken."; "Here, SCEA provided no evidentiary support for its claim that Mr. O'Neil was present to further the interest of SCEA in the consultation or someone to whom disclosure was reasonably necessary to accomplish the purpose for which the lawyer was consulted. Although there was a great deal of discussion at the hearing as to whether Mr. O'Neil was present as a claims advocate to assist SCEA and its attorney or as a potential adversary to SCEA, no admissible evidence was presented to the Court as part of the parties' submissions in support of or in opposition to the motion to compel. SCEA did not, for example, provide a declaration from Mr. O'Neil or even from Ms. Liu [plaintiff's director of legan & business affairs] regarding Mr. O'Neil's role with respect to SCEA's insurance claim. Thus, SCEA failed to carry its burden of proving the privilege." (footnote omitted))

Case Date Jurisidction State Cite Checked
2005-01-01 Federal CA B 8/13

Chapter: 56.5

Case Name: Via v. Commonwealth, 590 S.E.2d 583, 595 (Va. Ct. App. 2004)
("Via proffered no evidence for the record in any effort to establish the 'indispensability' of Dr. Conley's services. Thus, there was simply no reason for the trial court to have declared Dr. Conley an 'agent' of Via's counsel.")

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

Chapter: 56.5

Case Name: Smathers v. GBA Assocs. Ltd. P'ship, 55 Va. Cir. 73, 77-78 (Va. Cir. Ct. 2001)
("GBA, as the proponent of the privilege, has the burden of establishing that the challenged documents were in fact prepared in anticipation of litigation."; finding that GBA had met its burden by providing an affidavit from a lawyer in a firm that had represented GBA, which stated that "all of the documents listed on GBA's privilege log were prepared in anticipation of, and in hopes of avoiding, imminent litigation")

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

Chapter: 56.6

Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("Additionally, BDO has not presented affidavits or other evidence that would allow the court to assess whether attorney-client privilege applies to each entry on the log. . . . Even assuming that BDO's position statements are admissible evidence, they do not provide enough information for the court to determine whether specific items on the log are actually privileged.")

Case Date Jurisidction State Cite Checked
2017-05-04 Federal

Chapter: 56.6

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 privilege log itself does not state that the cases were in active litigation. However, that is a reasonable inference. Moreover, Fluidmaster represents that the cases were in active litigation and Plaintiffs do not dispute that assertion.'")

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

Chapter: 56.6

Case Name: Portland Pipe Line Corporation v. City of South Portland, No. 2:15-cv-54-JAW, 2016 U.S. Dist. LEXIS 124950 (D. Me. Sept. 8, 2016)
("I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs' counsel's representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs' counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.")

Case Date Jurisidction State Cite Checked
2016-09-08 Federal ME

Chapter: 56.6

Case Name: Portland Pipe Line Corporation v. City of South Portland, No. 2:15-cv-54-JAW, 2016 U.S. Dist. LEXIS 124950 (D. Me. Sept. 8, 2016)
("I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs' counsel's representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs' counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.")

Case Date Jurisidction State Cite Checked
2016-09-08 Federal ME

Chapter: 56.6

Case Name: Heisenger v. Cleary, X04HHDCV126049497S, 2014 Conn. Super. LEXIS 1835 (Conn. Super. Ct. July 29, 2014)
("The deponent is ethically bound to protect and preserve the confidentiality of privileged communications. That necessarily requires that the deponent first identify what documents are subject to the privilege, and what documents are not privileged. The court has no reason to doubt the representations of an officer of the court that there is a good faith basis for the claim of attorney client privilege for the withheld documents."; "Nonetheless, the preferred practice in modern discovery is to provide a privilege log summarizing the essentials of the withheld documents so that, if necessary, the question of the applicability of the privilege to particular documents can be reviewed.")

Case Date Jurisidction State Cite Checked
2014-07-29 State CT

Chapter: 56.6

Case Name: National Union Fire Ins. Co. of Pittsburgh, Pa. v. Donaldson Co., Inc., Civil No. 10-4948 (JRT/JJG), 2014 U.S. Dist. LEXIS 85621, at *27-28 (D. Minn. June 24, 2014)
(analyzing work product issues in connection with a first-party insurance bad faith claim; "Because Donaldson's privilege logs list both the source of the document and to whom the document was sent, National Union should be able to discern from the logs whether a document was shared with an individual outside the attorney-client privilege. Thus, to the extent that Rule 34(b)(2)€(i) applies to documents listed in a privilege log, Donaldson's privilege logs adequately organize the withheld documents. Furthermore, the Magistrate Judge did not clearly err in concluding generally that the amount of detail and descriptions in the privilege logs are sufficient.")

Case Date Jurisidction State Cite Checked
2014-06-24 Federal MN

Chapter: 56.7

Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *10 (D. Conn. Sept. 2, 2014)
("Although in its reply brief defendant's counsel 'represents to the Court that Plaintiff's Bates 47-49 and 50 were communicated to it for the purpose of giving information to the undersigned to enable counsel to give sound and informed legal advice[,]' . . . , Mr. Schulman's supporting affidavit does not attest to this.")

Case Date Jurisidction State Cite Checked
2014-09-02 Federal CT

Chapter: 56.7

Case Name: Gomez v. Metro. Dist., Civ. No. 3:11cv1934 (JBA), 2013 U.S. Dist. LEXIS 168707, at *13, *13 14 (D. Conn. Nov. 27, 2013)
("Defendant had the burden to present sufficient facts to Magistrate Judge Margolis and to this Court to sustain its claim of attorney-client privilege, and this burden could not be discharged by conclusory assertions in its legal memorandum. Rather, Defendant was required to present competent evidence in the first instance to support its claim of privilege."; "Defendant did not submit an affidavit from Attorney Ryan to provide context regarding her notes to support its privilege assertion. Context was particularly important here, because Magistrate Judge Margolis determined that all ten pages of Attorney Ryan's handwritten notes from the relevant meeting reflected 'simply fact finding' rather than containing 'some degree of [legal] analysis,' and thus were not privileged. . . . Defendant did not object to this determination beyond asserting that the four lines of text from these ten pages were privileged. But it adduced no evidence to discharge its burden. Defendant continues to simply argue that the four lines of text are actually privileged, rather than attempting to prove that it is so.")

Case Date Jurisidction State Cite Checked
2013-11-27 Federal CT B 5/14

Chapter: 56.7

Case Name: Gomez v. Metro. Dist., Civ. No. 3:11cv1934 (JBA), 2013 U.S. Dist. LEXIS 168707, at *13, *13 14 (D. Conn. Nov. 27, 2013)
("Defendant had the burden to present sufficient facts to Magistrate Judge Margolis and to this Court to sustain its claim of attorney-client privilege, and this burden could not be discharged by conclusory assertions in its legal memorandum. Rather, Defendant was required to present competent evidence in the first instance to support its claim of privilege."; "Defendant did not submit an affidavit from Attorney Ryan to provide context regarding her notes to support its privilege assertion. Context was particularly important here, because Magistrate Judge Margolis determined that all ten pages of Attorney Ryan's handwritten notes from the relevant meeting reflected 'simply fact finding' rather than containing 'some degree of [legal] analysis,' and thus were not privileged. . . . Defendant did not object to this determination beyond asserting that the four lines of text from these ten pages were privileged. But it adduced no evidence to discharge its burden. Defendant continues to simply argue that the four lines of text are actually privileged, rather than attempting to prove that it is so.")

Case Date Jurisidction State Cite Checked
2013-11-27 Federal CT B 5/14

Chapter: 56.7

Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("To meet its burden in this regard, the Army provides the Buchholz Declaration and the Vaughn index. The Vaughn index identifies all Category B documents withheld pursuant to the attorney-client privilege, as well as the parties to the communication, date, and mode of communication. Together, the Vaughn index and Buchholz Declaration provide the subject-matter of the communications and that the subject-matter is confidential. As a result, the Army has identified the documents in question with reasonable specificity, as required for an independent assessment of the claimed exemption, and there is no reason to question the Army's good faith in this regard.")

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

Chapter: 56.7

Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("In its declarations and Vaughn index, the Army has demonstrated with reasonable specificity that the withheld documents include no reasonably segregable information beyond that already released, and there is no reason to question the Army's good faith in this regard. See Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1117, 377 U.S. App. D.C. 460 (D.C. Cir. 2007) (agencies entitled to presumption they complied with obligation to disclose reasonably segregable material); Armstrong v. Executive Office of the President, 97 F.3d 575, 578, 321 U.S. App. D.C. 118 (D.C. Cir. 1996) (where government declarations demonstrate with reasonable specificity why documents cannot be further segregated, there is no need for in camera review).")

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

Chapter: 56.7

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 381 (W.D. Va. 2012)
("West's affidavits add little evidence to support the claimed privilege. West stated that he has reviewed the withheld emails. West also stated that he 'consider[ed] the emails to be protected by the attorney-client privilege or by the work[ ]product doctrine.' That, however, is the court's determination to make. West also has stated: 'In my view, I was acting primarily in a legal capacity in investigating and formulating EQT's response to Mr. Gilbert.' Such conclusory statements, however, do not meet the proponent's burden. Again, it is important to note what West's affidavits do not contain. West did not offer any evidence that these emails related to requests for or the rendering of legal advice. Instead, West stated only that the inquiries 'presented legal issues, and EQT anticipated that litigation could ensue.' It is likely this could be said of any of West's work for EQT Production.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 56.7

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007)
("First, the party asserting work-product protection bears the burden to show that the 'work product' was prepared in anticipation of litigation. . . . Second, in order to meet this burden, the proponent of the privilege must 'come forward with a specific demonstration of facts supporting the requested protection,' preferably though affidavits from knowledgeable persons. Suggs v. Whitaker, 152 F.R.D. 501, 505 (M.D.N.C. 1993). See also North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 515 (M.D.N.C. 1986).")

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

Chapter: 56.7

Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 273 (E.D. Va. 2004)
(criticizing Rambus' privilege log and its memorandum supporting the log; explaining that "the three page supporting memorandum filed by Rambus was a general boilerplate recitation of the attorney-client privilege and the work-product doctrine. . . . Hence, the memorandum in no way remedied the inadequacy of the privilege log.")

Case Date Jurisidction State Cite Checked
2004-01-01 Federal VA B 12/05

Chapter: 56.8

Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("Additionally, BDO has not presented affidavits or other evidence that would allow the court to assess whether attorney-client privilege applies to each entry on the log. . . . Even assuming that BDO's position statements are admissible evidence, they do not provide enough information for the court to determine whether specific items on the log are actually privileged.")

Case Date Jurisidction State Cite Checked
2017-05-04 Federal

Chapter: 56.8

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)
("[C]ourts will reject claims for work product protection 'where the 'only basis' for the claim is an affidavit containing 'conclusory statement[s].'")

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

Chapter: 56.8

Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs also argue that Wells Fargo improperly designated as confidential documents containing only factual information. Plaintiffs cite as exemplars three charts . . . to demonstrate that many of the allegedly privileged documents are spreadsheets summarizing trust data and are therefore factual business documents that should be disclosed."; "The relevant inquiry with respect to Exhibits 11 (and the related chart in Exhibit 14), 15, and 16 is whether these charts were created for the purpose of obtaining legal advice or whether they were otherwise created in the ordinary course of Wells Fargo's business. . . . Based on the current record, Wells Fargo has not met its burden of establishing that these charts should be withheld. Exhibit 11 (and Exhibit 14) appears to be a chart that was prepared in the ordinary course of Wells Fargo's business. Indeed, the Court suspects that this document (at least in large part) was generated by Wells Fargo as part of its management of the trusts, not by counsel. It would be surprising that a lawyer would have been responsible for inputting this sheer volume of data into a spreadsheet. Similarly, Exhibit 15 is a compilation of repurchase and loan file review information that appears to have been extracted from a database. In its February 7, 2017 submission, Wells Fargo represented that it has already produced the non-privileged portions of Exhibit 15 but does not indicate what those portions were. Regarding Exhibit 16, Wells Fargo asserts that it consists of documents and communications shared between Wells Fargo and its attorneys in order for counsel to determine whether and EOD had occurred. But it is not clear what the role of counsel was in preparing Exhibit 16."; "[T]he Court will reserve decision pending further submission by Wells Fargo."; "Wells Fargo shall submit a declaration of a person with knowledge to show that these charts were created for the purpose of obtaining legal advice, not for the purpose of conducting its ordinary business. The declarant should describe, in detail, each column in each of the charts and explain whether the information in each column reflected attorney advice or was compiled for the purpose of obtaining legal advice.")

Case Date Jurisidction State Cite Checked
2017-03-09 Federal NY

Chapter: 56.8

Case Name: Rao v. The Bd. of Trustees of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298 (N.D. Ill. Oct. 20, 2016)
(holding that plaintiff's wife did not share a common interest with her husband, and was not within the privilege protection as her husband's agent, and had admitted that lawyer/children were not acting as her lawyer during the communications; inexplicably not addressing work product protection; "Plaintiff seeks two investigative files relating to internal investigations of University of Illinois employees that were conducted by outside counsel."; "As Sandra [Sandra T.E. v. South Berwyn School District 100, 600 F.3d 612 (7th Cir. 2009)] makes clear, the party seeking to maintain protection on the basis of work product privilege must meet its burden of showing that the documents in question deserved protection. In that case, the law firm provided the court with affidavits and other evidence regarding the nature of the law firm's representation. Conversely, the Court here has not been provided with any evidence regarding the contents of the investigative files; Defendants have not produced a single affidavit, an engagement letter, or even a general description of the documents that they seek to protect. The Court has no way to determine whether the protection Defendants seek is appropriate, which is Defendants' burden as the party asserting work product protection. The Court recognized in its minute order that 'many of the materials relating to the internal investigation by outside counsel may be protected from discovery by the attorney-client privilege or the work product doctrine. . . . The Court invited Defendants to attempt to meet their burden of establishing that any such materials deserved such protection, or identifying with specificity which documents they were protecting. Instead, Defendants made an unsubstantiated blanket claim of privilege over entire files."; "Finally, hand in glove with the second issue, the party seeking to avoid discovery in Sandra produced a privilege log. . . . The Court has not seen a privilege log regarding the investigative files either. Again, this failure leaves the Court completely unable to appropriately assess the validity of the Defendants' claims of work product."; "In short, the Defendants have simply not provided either the Plaintiff or the Court with any of the information necessary to make an informed decision on whether the contents of the investigative files should be withheld from discovery. Instead, Defendant waited until the eve of the close of the discovery to make a claim of privilege over the entirety of two investigative files that have not been described in anything but the broadest possible terms. They did so despite knowing since at least mid-July 2016, that Plaintiff would likely seek discovery of these investigative files, and that the Court was likely to have to rule on this issue. From the record before this Court, the Defendants did not take any affirmative steps to review the investigative files at that time to determine which portions were protected and which were not.")

Case Date Jurisidction State Cite Checked
2016-10-20 Federal IL

Chapter: 56.8

Case Name: Intellectual Ventures I LLC v. Capital One Financial Corp., Case No. PWG-14-111, 2016 U.S. Dist. LEXIS 140393 (D. Md. Oct. 11, 2016)
(in an opinion by Judge Grimm, holding that plaintiff's log and failure to provide an affidavit triggered a waiver; "As I discussed with the parties at the June 30 status conference, this District's Discovery Guidelines and case law identify affidavits as the primary means of establishing a factual basis for the assertion of privileges. . . . Capital One is correct that Intellectual Ventures could have provided affidavits in the two weeks prior to the August 19 status conference. Intellectual Ventures seems to imply that Capital One's request for permission to file a Motion to Compel triggered a duty to respond to the filing that somehow either extinguished its burden to provide a factual basis supporting its privilege claims or shifted the burden of production to Capital One. . . . But responding to Capital One's filing and buttressing the factual foundation for the assertion of privilege was not an either-or proposition. Intellectual Ventures could and should have both defended the adequacy of its privilege log in a responsive filing -- which it largely failed to do -- and also continued to bolster the factual basis either by affidavit -- which the Guidelines and case law highlighted and I personally underscored as the preferred mechanism --or, alternatively, by providing more fulsome explanations in its privilege log. It elected none of the above. Instead, Intellectual Ventures chided Capital One for its 'unwillingness to accept the fact that the Intellectual Ventures companies understand the difference between 'business' and 'legal' matters.'. . . Intellectual Ventures missed the point. It was Intellectual Ventures's burden to provide a factual basis to support its privilege claims, not Capital One's burden to establish the absence of a factual basis. Neither Capital One nor the Court need 'accept' Intellectual Ventures's ipse dixit that it 'understand[s] the difference between 'business' and 'legal' matters, and ha[s] acted in good faith in preparing and reviewing the privilege log.'")

Case Date Jurisidction State Cite Checked
2016-10-11 Federal MD
Comment:

key case


Chapter: 56.8

Case Name: Pensler v. Fox Television Stations, Inc., No. 1-14-2694, 2016 Ill. App. Unpub. LEXIS 1204 (Ill. App. 1d June 14, 2016)
(describing the control group standard in Illinois, but finding it unnecessary to decide whether the communications deserve privilege under that standard; "There are no averments in the Schwab affidavit that state that he initiated the subject emails for the purpose of obtaining legal advice and that he did so in confidence with the intention that the confidence would remain. The averment that Schwab ["WLFD Executive Producer of Special Projects for Fox News Chicago"] and Fowler 'consulted with in-house counsel from time to time to determine legal risk and strategy associated with the content of Special Projects,' does not constitute evidence that these emails were initiated for the purpose of seeking legal advice: the term 'from time to time' is not specific to these emails and could relate to communications over a course of years. The term 'Special Projects' is not specific to this report and reasonably can be considered to include other projects that Schwab was involved with. The remainder of Schwab's affidavit is directed to his purported status as a member of the control group which is not relevant to whether these specific emails are privileged.")

Case Date Jurisidction State Cite Checked
2016-06-14 Federal IL

Chapter: 56.8

Case Name: Bloomingburg Jewish Education Center v. Village of Bloomingburg, 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192 (S.D.N.Y. March 18, 2016)
(finding that defendant Town had not presented sufficient evidence to support privilege or work product protection for a communications between the Town and West End, described as "a public relations and communications strategy firm"; "The Town Defendants support their broad assertions of privilege solely with the following representations. In their opposition letter, the Town Defendants represent that West End was hired at the behest of counsel in the Lamm action to assist in litigation strategy after counsel 'determined a public relations firm would be useful in preparing for the litigation.' As an exhibit to their letter, the Town Defendants also provided the Court with an attorney declaration dated October 6, 2015 from David C. Holland, Esq., who served as their counsel in the Lamm action. . . . This declaration, which is just over two pages, is the Town Defendants' only factual support for their invocation of privilege.")

Case Date Jurisidction State Cite Checked
2016-03-18 Federal NY

Chapter: 56.8

Case Name: Brinker v. Normandin's, Case No. 14-cv-03007-EJD (HRL), 2016 U.S. Dist. LEXIS 8411, at *3-4 (N.D. Cal. Jan. 22, 2016)
("Every single document designated as privileged was also labeled as work product, seemingly as a matter of course. Normandin recites legal standards . . . but makes no factual argument to support most of these work-product designations. The privilege log is too vague to make up for the deficiency in Normandin's portion of the DDJR [discovery dispute joint report]. For instance, Mark Normandin sent Paul Normandin an email about 'Gonzales' on February 4, 2015 -- Normandin asks the court to conclude from solely those facts that the email is protected work product prepared in anticipation of litigation or for trial. The court is not persuaded by the low degree of detail Normandin provides for most of its work-product designations.")

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

Chapter: 56.8

Case Name: Wellin v. Wellin, C.A. No. 2:13-CV-1831-DCN, C.A. No. 2:13-CV-3595-DCN, C.A. No. 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
("At the request of the undersigned, the Defendants filed a Supplemental Memorandum to provide further descriptive information regarding the above referenced document. Thereafter, in reply to the Plaintiffs' Supplemental Memorandum in support of their Motion to Compel Production of the documents under consideration, Defendants provided an affidavit from the Defendants' attorney, Johnathan T. Han-is, which clarified the nature of the above referenced document, providing information enabling the undersigned to understand the identity of the creator, sender, and recipient of the document."; "I conclude from the document that it contains the advice of counsel to his client regarding the manner in which to handle communications with a third party. As such, I conclude this document contains the impressions, opinions and advice of counsel to his client, and is protected by the attorney-client privilege.")

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

Chapter: 56.8

Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 U.S. Dist. LEXIS 157752 (D. Kansas Nov. 23, 2015)
("In this case, the Court has reviewed the sixteen privilege log entries challenged by Plaintiff and concludes that Defendant has established the elements of attorney-client privilege. The log indicates that the withheld emails, Word documents, or Excel documents were either authored by or sent to Defendant's counsel or Defendant's in-house counsel, and the subject of the communication was Plaintiff's allegations and Defendant's investigation. Although the log entries do not expressly state that the withheld emails and documents were for the purpose of seeking legal advice, Defendant attached the Affidavit of its counsel . . . In which counsel states that the materials set forth in Defendant's privilege log asserting attorney-client privilege 'were communications between counsel for [Defendant] and [Defendant] for the purpose of seeking legal advice.' Defendant has sufficiently established the attorney-client privilege applies to these documents.").

Case Date Jurisidction State Cite Checked
2015-11-23 Federal KS

Chapter: 56.8

Case Name: Sun v. Ikea US West, Inc., Case No. 15-cv-01146-MEJ, 2015 U.S. Dist. LEXIS 150544 (N.D. Cal. Nov. 4, 2015)
(denying privilege and work product protection for an investigation of a injury in which a plaintiff was struck by a cart in a store; "Defendant's Incident Reporting System indicates the report was prepared in the normal course of business, within the scope of the employee's responsibilities to the company. Thus, Defendant's purpose in creating these incident reports determines whether the privilege applies."; "Defendant offers no such evidence, such as a redacted copy of the report showing it is labeled 'confidential,' or a declaration from someone with personal knowledge that the report was intended to be confidential, or a declaration from the employee stating that he knew the report was confidential at the time it was made. . . . Without more evidentiary support, the Court finds Defendant has failed to meet its burden of establishing the incident report was a confidential communication made in the course of an attorney-client relationship."; also denying work product protection).

Case Date Jurisidction State Cite Checked
2015-11-04 Federal CA

Chapter: 56.8

Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; analyzing communications between Ford and CRA; "With regard to Ford's assertion of privilege, specifically with regard to document number F0026222.1, the Court finds that Ford's description is sufficiently specific to support its assertion of privilege. The document is an email sent from CRA to seven individuals, three of which are attorneys, for legal review and comment on proposed revisions of a draft memorandum. . . . And while '[an] attorney receiving or providing privileged communication must be acting as an attorney and not as a business advisor'. . . The Court accepts Plaintiff's assertion that this email was sent for the purposes of obtaining legal advice. Therefore, the Court will deny Defendant's Motion with regard to this document.").

Case Date Jurisidction State Cite Checked
2015-10-27 Federal MI

Chapter: 56.8

Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; analyzing communications between Ford and CRA; "Even though the Defendant argues that these drafts are for business purposes and not for legal review, Defendant relies only on mere speculation in making that assertion. The Court has no reason to question CRA's assertion that these documents are privileged. Therefore, the Court will deny Defendant's Motion with regard to these documents.").

Case Date Jurisidction State Cite Checked
2015-10-27 Federal MI

Chapter: 56.8

Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; analyzing communications between Ford and CRA; "With regard to Ford's assertion of privilege, specifically with regard to document number F0026222.1, the Court finds that Ford's description is sufficiently specific to support its assertion of privilege. The document is an email sent from CRA to seven individuals, three of which are attorneys, for legal review and comment on proposed revisions of a draft memorandum. . . . And while '[an] attorney receiving or providing privileged communication must be acting as an attorney and not as a business advisor'. . . The Court accepts Plaintiff's assertion that this email was sent for the purposes of obtaining legal advice. Therefore, the Court will deny Defendant's Motion with regard to this document.").

Case Date Jurisidction State Cite Checked
2015-10-27 Federal MI

Chapter: 56.8

Case Name: Alomari v. Ohio Dept. of Public Safety, 15a0630n.06, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
("[T]he privilege similarly covers all communications from the June 2010 meeting because its purpose was to acquire legal advice. Although Director Stickrath's testimony suggests that the primary purpose of the June 2010 meeting was to provide business advice instead of legal advice, the district court did not abuse its discretion in relying on the magistrate judge's determination, which credited Reed-Frient's affidavit, that the primary purpose of the meeting was to provide ODPS with legal advice.").

Case Date Jurisidction State Cite Checked
2015-09-09 Federal OH

Chapter: 56.8

Case Name: Roberts Technology Group, Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015)
("As the Pennsylvania Superior Court recognized, 'this privilege attaches to communications made by corporate as well as individual clients.' Custom Designs [Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 2012 PA Super 33, 39 A.3d 372, 376 (Pa. Super. 2012)], 39 A.3d at 376 (2012). For a corporate employee to satisfy the third prong, he or she must establish communications were 'kept confidential . . . Made at the behest of counsel and with the goal of furthering counsel's provision of legal advice to the client.' Id., at 379. The claiming party can meet its burden by affidavit or counsel's testimony, but cannot simply assert the lack of evidence to the contrary.")

Case Date Jurisidction State Cite Checked
2015-07-20 Federal PA

Chapter: 56.8

Case Name: Pacific Management Group v. Commissioner of Internal Revenue, Dkt. Nos. 6411-08 and consolidated cases, 2015 Tax Ct. Memo LEXIS 104, 109 T.C.M. (CCH) 1505 (T.C. May 26, 2015)
("'This Court has discretion in deciding how to determine whether a privilege has been properly claimed. The Court may require the parties to submit affidavits . . . And take testimony or receive evidence at trial or an evidentiary hearing.'")

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

Chapter: 56.8

Case Name: In re Baytown Nissan Inc. v. Gray, No. 01-14-00704-CV, 2014 Tex. App. LEXIS 12197 (Tex. Ct. App. Nov. 7, 2014)
(granting a writ of mandamus, and holding that the privilege did not protect communications between a lawyer for an automobile dealer and the general counsel of a dealer association; also finding that the association general counsel was not a "representative" of the dealer for work product purposes; "To properly assert a claim of privilege, a party must plead the particular privilege, produce evidence to support the privilege through affidavits or testimony, and produce the documents for an in camera inspection, if the trial court determines review is necessary.")

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

Chapter: 56.8

Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
(finding defendants' affidavits insufficient to justify privilege protection or allow defendants to retrieve one document claimed to be inadvertently produced out of 30,000 produced; analyzing the privilege protection issue for the inadvertently produced document; "Generally, a party meets its burden of asserting the attorney-client privilege 'when the party produces a detailed privilege log stating the basis of the claimed privilege for each document in question, together with an accompanying explanatory affidavit from counsel.'. . . To be sure, some courts have recognized that an affidavit alone may be sufficient to establish privilege.")

Case Date Jurisidction State Cite Checked
2014-11-05 Federal GA

Chapter: 56.8

Case Name: Pate v. Winn-Dixie Stores, Inc., CV 213-166, 2014 U.S. Dist. LEXIS 151914 (S.D. Ga. Oct. 27, 2014)
(analyzing a work product protection for a slip-and-fall injury incident report; finding that the work product claim would be advanced if the defendant could prove that the incident reports were forwarded to counsel; "With that requirement in mind, the Court now examines Defendant's statement that '[a]fter [incident] reports are created, they are promptly provided to Winn-Dixie's corporate claims/risk management department, which in turn provides the report to defense counsel when litigation is imminent.'. . . This statement, if true, would support a showing that the incident report forms in this case were created for their potential use in future litigation."; "Thus, the Defendant has not produced any evidence, such as depositions or affidavits, showing that the incident report forms filled out by Winn-Dixie employees are created primarily so they can be used in potential litigation. While Defendant has stated that litigation was the motivating purpose for creating the forms in its Response to Plaintiff's Objections . . . This ipse dixit assertion alone will not satisfy Defendant's burden to show it is entitled to the protection of the work product doctrine.")

Case Date Jurisidction State Cite Checked
2014-10-27 Federal GA

Chapter: 56.8

Case Name: Safety Text & Equip. Co. Inc. v. Am. Safety Util. Corp., 13 CVS 1037, 2014 NCBC 40, at *14, *15 (N.C. Super. Ct. Sept. 2, 2014)
("Some courts expressly presume that there has been no waiver until a party opposing privilege demonstrates a factual predicate for claiming waiver."; "Other courts, including the Fourth Circuit, implicitly presume the absence of waiver absent contrary evidence."; "The court concludes that this burden-shifting approach is consistent with North Carolina precedent and should be followed here. The approach prevents placing an initial heavy and unrealistic burden on the privilege holder to account for and disprove every possibility of waiver.")

Case Date Jurisidction State Cite Checked
2014-09-02 State NC

Chapter: 56.8

Case Name: Ellis v. Arrowood Indem. Co., Civil Action No. 2:14-mc-00146, 2014 U.S. Dist. LEXIS 121913, at *19-20 (S.D. W. Va. Sept. 2, 2014)
("The burden is on Arrowood to provide sufficient information so that I may make an informed decision concerning the application of the work product doctrine. I may not grant blanket protection of these documents based on the scant information currently in the record. Accordingly, Arrowood's motion to quash with respect to this request is DENIED.")

Case Date Jurisidction State Cite Checked
2014-09-02 Federal WV

Chapter: 56.8

Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *10 (D. Conn. Sept. 2, 2014)
("Although in its reply brief defendant's counsel 'represents to the Court that Plaintiff's Bates 47-49 and 50 were communicated to it for the purpose of giving information to the undersigned to enable counsel to give sound and informed legal advice[,]' . . . , Mr. Schulman's supporting affidavit does not attest to this.")

Case Date Jurisidction State Cite Checked
2014-09-02 Federal CT

Chapter: 56.8

Case Name: Williams v. Duke Energy Corp., Civ. A. 1:08-cv-00046, 2014 U.S. Dist. LEXIS 109835 (S.D. Ohio Aug. 8, 2014)
("Johnson's [Duke in-house lawyer] assertion in her declaration is that the Category A emails are 'a series of emails among counsel' that 'discuss the legal implications of undertaking certain steps following a decision by the PUCO' and 'the legal issues that might arise as a matter of contract law under certain scenarios.' These 'facts" are too skeletal for me to determine whether these emails were attorney-client communications.'")

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

Chapter: 56.8

Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)
("It is incumbent upon the proponent of the privilege to specifically and factually support the claim of privilege, usually through affidavit or other ex parte submissions, and an improperly or unsupported claim of privilege is the equivalent of no privilege at all.")

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

Chapter: 56.8

Case Name: Rank Group Ltd. v. ALCOA, Inc., 12 Civ. 3769 (VSB) (RLE), 2014 U.S. Dist. LEXIS 64508 (S.D.N.Y. May 9, 2014)
(finding an employee's unauthorized disclosure did not result in a waiver; "Here, the evidence submitted by Rank an Affidavit from a partner at Baker [Baker & McKenzie] and a Declaration from the former Latin American regional financial controller show by a preponderance that the disclosure was unauthorized and inadvertent. The affidavit produced establishes that Larrain Abascal, who was personally involved in Rank's privileged communications with Baker in May 2008, did not authorize the production of the information, and that there was no written evidence of anyone else having authorized such disclosure. The declaration from Borja also indicates there was no authority from Alusud Chile to forward the emails in question to anyone at Alcoa. Together, the sworn statements are enough to carry the burden of showing that the disclosure was unauthorized. They persuasively demonstrate that neither person who had the authority to make the disclosure did.")

Case Date Jurisidction State Cite Checked
2014-05-09 Federal NY

Chapter: 56.8

Case Name: John Wiley & Sons, Inc. v. Book Dog Books, LLC, 13 Civ. 816 (WHP) (GWG), 2014 U.S. Dist. LEXIS 63168 (S.D.N.Y. May 7, 2014)
("But not all conversations between an attorney and a client are privileged. . . . To meet their burden of asserting the privilege, defendants were required to provide competent proof on this motion that each of the elements of the attorney-client privilege were met a task typically accomplished through sworn statements. . . . Having failed to provide any evidence or even argument on this point, defendants have not satisfied their burden of proving that the conversations between Smyres and Mooney are privileged. Accordingly, plaintiffs' motion must be granted for this reason alone.")

Case Date Jurisidction State Cite Checked
2014-05-07 Federal NY

Chapter: 56.8

Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "Defendant's Safety Management System ('SMS') Manual requires that an Internal Incident Investigation Report and an EIS Report are created after every incident, unless the incident is minor or insufficiently related to employment with the Defendant. . . . Further, company policy requires witnesses to make EIS Witness Statements by filling out preprinted forms as part of standard operating procedure."; essentially rejecting the company's general counsel's affidavit that the documents' creation was motivated by anticipated litigation)

Case Date Jurisidction State Cite Checked
2014-04-10 Federal CA

Chapter: 56.8

Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(focusing on the content of work product rather than a supporting affidavit; "To establish the applicability of the work product doctrine to such documents, it is not sufficient for a party to show only that an attorney or the attorney's agent generated the document. Corporate in-house counsel are 'often called upon to perform tasks that go beyond the traditional tasks performed by lawyers.'. . . Accordingly, 'each document must be perused to see whether the attorney was involved in rendering legal advice or if the document contains work product information.'"; "In making this inquiry, a court need not simply accept the parties' declarations. . . . Additionally, a court may scrutinize the content of the subject documents for analysis that 'hints at a focus on litigation.'")

Case Date Jurisidction State Cite Checked
2014-03-28 Federal FL

Chapter: 56.8

Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(finding that a company's report about alleged failures of a medical device did not deserve work product protection; "Defendants' Motions rely primarily upon the Passero Affidavit, the November 2004 Contract, and excerpts from Dr. Lehmann's deposition, rather than on the contents of the Report itself. The Court will consider each item in turn and then address other record evidence."; "Although the Passero Affidavit supports Defendants' claim that the Lehmann Report is protected work product, it does so in a conclusory, vague, and unconvincing manner, generally employing labels rather than specific facts."; "The affidavit does not, however, describe how the report was used or intended to be used to aid Defendants in preparing for trial or anticipated litigation. Moreover, the affidavit fails to identify any specific case, claim, or incident, or the timing thereof."; "The November 2004 Contract is similarly conclusory and unpersuasive. Although it does show that the Report was prepared pursuant to this separate contract, it adds little to the Report itself. For example, like the Report, it contains no reference to any particular claim, anticipated or otherwise, or any particular set of facts that caused Defendants concern over potential litigation. Although the November 2004 Contract does affix the conclusory label '[i]n anticipation of litigation' in connection with the services to be provided, the Court finds nothing else in the contract to support this label."; also finding that the report did not deserve attorney-client privilege protection)

Case Date Jurisidction State Cite Checked
2014-03-28 Federal FL

Chapter: 56.8

Case Name: McAdam v. State Nat'l Ins. Co., Case No. 12-cv-1333 BTM-MDD, 2014 U.S. Dist. LEXIS 37808, at *12 (S.D. Cal. Mar. 21, 2014)
(analyzing documents in a first party insurance context; "[D]eclarations as to the existence, nature, and scope of an attorney-client relationship may provide sufficient evidence of the relationship even in the absence of, e.g., a written retainer agreement. . . . Yet no such declarations were filed; nor did State National request more time to file them. Instead, counsel submitted over six hundred pages of documents in camera . . . unaccompanied by a declaration even though the Court was under no obligation to conduct an in camera review in the absence of declarations." (footnote omitted))

Case Date Jurisidction State Cite Checked
2014-03-21 Federal CA B 8/14

Chapter: 56.8

Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *7 (N.D. Tex. Feb. 27, 2014)
("The proponent must provide sufficient facts by way of detailed affidavits or other evidence to enable the court to determine whether the documents constitute work product. . . . Although a privilege log and an in camera review of documents may assist the court in conducting its analysis, a party asserting the work product exemption still must provide 'a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-02-27 Federal TX B 8/14

Chapter: 56.8

Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *7-8 (N.D. Tex. Feb. 27, 2014)
("Defendants have failed to meet their burden of proving that the documents at issue are entitled to work product protection. Defendants describe the sought-after documents as 'text messages discussing this lawsuit,' but they do not offer affidavits or other documentation to support their assertion of the work product privilege.")

Case Date Jurisidction State Cite Checked
2014-02-27 Federal TX B 8/14

Chapter: 56.8

Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *17 (N.D. Cal. Feb. 21, 2014)