Showing 257 of 257 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 Jurisdiction State Cite Checked
2017-07-18 Federal TX
Comment:

key case


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; "Communications between employees may be privileged in two circumstances. First, communications may be privileged when a corporate client shares information with non-attorney employees 'to relay information requested by attorneys.'"; "Second, communications between non-attorney corporate employees may be privileged when they were made 'for the purpose of securing legal advice.'"; "When the communication involves a document, for the court to find that the attorney-client privilege applies, the court must inspect the document and find that the primary purpose of the communication was to secure legal advice."; "A party can prove that the purpose of a communication was to seek legal advice by offering evidence that the communication was relayed to an attorney.")

Case Date Jurisdiction State Cite Checked
2017-07-18 Federal TX

Chapter: 56.3

Case Name: Nalco Co. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127, at *8 (S.D. Tex. July 18, 2017)
September 13, 2017 (PRIVILEGE POINT)

"Remember the Nitty-Gritty of Privilege Analyses: Part I"

Although attorney-client privilege claims often involve thorny legal issues, at some point a human being (usually a judge) may have to read the withheld documents and make privilege calls. In fact, judges must read withheld documents if they cannot make some global rulings based on privilege logs. Unfortunately, withheld documents now consist primarily of emails (1) whose increasing volume understandably tempts judges to primarily look for explicit privileged content on the face of the emails, and (2) whose cryptic nature make that task very difficult.

In United States v. Owensboro Dermatology Associates, P.S.C., the judge "completed a thorough in camera review" of withheld emails, and found that "each document predominantly involves legal advice." Civ. A. No. 4:16-mc-00003- to -00005-JHM, 2017 U.S. Dist. LEXIS 105099, at *16-17 (W.D. Ky. July 7, 2017). Several days later, the judge in Nalco Co. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127, at *8 (S.D. Tex. July 18, 2017), similarly upheld a privilege claim for an email between two employees, in which one referred to "a specific request he made for legal advice to an attorney."

Lawyers should remind their clients to (1) be careful what they write, because even a successful privilege assertion often will involve the judge reading the withheld document, (2) discipline themselves to state on the face of their emails when they are seeking legal advice (not just add a "privilege" header). Next week's Privilege Point will address a case in which in camera review dealt with a more subtle issue.

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

key case


Chapter: 56.3

Case Name: United States v. Owensboro Dermatology Associates, P.S.C., Civ. A. No. 4:16-mc-00003- to -00005-JHM, 2017 U.S. Dist. LEXIS 105099, at *16-17 (W.D. Ky. July 7, 2017)
September 13, 2017 (PRIVILEGE POINT)

"Remember the Nitty-Gritty of Privilege Analyses: Part I"

Although attorney-client privilege claims often involve thorny legal issues, at some point a human being (usually a judge) may have to read the withheld documents and make privilege calls. In fact, judges must read withheld documents if they cannot make some global rulings based on privilege logs. Unfortunately, withheld documents now consist primarily of emails (1) whose increasing volume understandably tempts judges to primarily look for explicit privileged content on the face of the emails, and (2) whose cryptic nature make that task very difficult.

In United States v. Owensboro Dermatology Associates, P.S.C., the judge "completed a thorough in camera review" of withheld emails, and found that "each document predominantly involves legal advice." Civ. A. No. 4:16-mc-00003- to -00005-JHM, 2017 U.S. Dist. LEXIS 105099, at *16-17 (W.D. Ky. July 7, 2017). Several days later, the judge in Nalco Co. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127, at *8 (S.D. Tex. July 18, 2017), similarly upheld a privilege claim for an email between two employees, in which one referred to "a specific request he made for legal advice to an attorney."

Lawyers should remind their clients to (1) be careful what they write, because even a successful privilege assertion often will involve the judge reading the withheld document, (2) discipline themselves to state on the face of their emails when they are seeking legal advice (not just add a "privilege" header). Next week's Privilege Point will address a case in which in camera review dealt with a more subtle issue.

Case Date Jurisdiction State Cite Checked
2017-07-07 Federal KY
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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
1987-01-01 Federal VA

Chapter: 56.4

Case Name: Hopkins v. Board of County Commissioners of Wilson County, Kansas, Case No. 15-cv-2072-CM-TJJ, 2018 U.S. Dist. LEXIS 122356 (D. Kansas July 23, 2018)
("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.'")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal KS

Chapter: 56.4

Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "The Court finds that Deutsche Bank has failed to provide an adequate privilege log notwithstanding multiple opportunities to do so. While some log entries are better than others -- for example, where descriptions make clear that documents are draft discovery responses or attorney bills -- Deutsche Bank's obligation is to provide sufficient information so that BlackRock is able to assess the privilege fully. Moreover, as explained in the Court's review of the exemplars, these deficient log entries often result in overly broad privilege assertions. Indeed, Deutsche Bank itself withdrew its privilege claims as to seven of the 20 documents that BlackRock selected as exemplars, and the Court found that an additional ten were improperly withheld."; "A privilege log is not a mere administrative exercise. Its purpose is to ensure that a withholding party can justify a privilege designation. By submitting a deficient log, Deutsche Bank attempted to bypass this requirement, resulting in vastly overinclusive privilege designations. In an attempt to avoid this very problem, the Court ordered Deutsche Bank to provide a sworn affidavit by a party representative explaining why 30 of the Common Interest Exemplars were protected under the common interest doctrine. Instead, Deutsche Bank offered the sworn statement of a Morgan, Lewis & Bockius partner. The Court requested a party representative to force the party to defend its designations in connection with these loan-level litigations. Counsel's views were not requested."; "The failure to provide a party affidavit is demonstrative of Deutsche Bank's broader failings with respect to its privilege log. The Court has given Deutsche Bank multiple opportunities to correct these deficiencies and it has failed to do so. Instead, Deutsche Bank waits until a document is challenged to review whether its privilege designation is correct. And as discussed earlier, when challenged, Deutsche Bank frequently realizes that the privilege was improperly asserted. This stance inappropriately shifts the burden to BlackRock to challenge a privilege assertion when Deutsche Bank should have established why a document was protected in the first place. A privilege log is not an iterative process and the Court will not offer Deutsche Bank another opportunity to follow the rules established in this Circuit."; "Accordingly, Deutsche Bank has waived its privilege with respect to all documents listed on its privilege log (except as otherwise ruled in this Order) unless it can make a particularized showing as to individual documents that it believes are (1) adequately described on its log and, (2) in fact, privileged. Only documents listed on the privilege log with complete information -- that is, the name of the author of the document, the name of any attorney, a clear description of the document, etc. -- could qualify for this safety valve. Absent an application to the Court within 30 days on a document-by-document basis, all documents on the privilege log must be produced. The parties are ordered to file their letters on the docket.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 56.4

Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018)
("'Objections based on the attorney client privilege or work product doctrine 'can only be sustained if they are both properly asserted and the facts supporting the privileges are established by the evidence, not merely declared by lawyer argument.'")

Case Date Jurisdiction State Cite Checked
2018-05-10 Federal LA

Chapter: 56.4

Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095, at *5 (N.D. Ill. Apr. 17, 2018)
June 27, 2018 (PRIVILEGE POINT)

"May Litigants Rely on Their Lawyers' Statements to Support Privilege Claims?"

Every court agrees that litigants must support their privilege claims with something other than naked assertions. But they disagree about the type of support required to justify withholding documents or testimony.

In Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) PTD Ltd., the court dropped to a footnote its off-handed assurance that "Rio Tinto may also provide a cover letter or other document that explains the basis for the privilege and identifies the persons who are party to the communications." Civ. No. 3: 16-CV-621, 2018 U.S. Dist. LEXIS 57803, at *20 n.2 (M.D. Pa. Apr. 5, 2018). Most courts require far more. A couple weeks later, in Motorola Solutions, Inc. v. Hytera Communications Corp., the court blasted defendant's privilege claim for one withheld email, sarcastically noting that Motorola's "lawyers assure us, with absolutely no evidentiary support – that the email was the necessary first step in … obtaining legal advice." No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095, at *5 (N.D. Ill. Apr. 17, 2018). The court quoted an earlier Seventh Circuit case for the proposition that "[l]awyers' talk is no substitute for data" – and then pointedly remarked that "[l]ittle wonder that the courts are unanimous in requiring proof of assertions made in briefs." Id. (citation omitted).

Courts' differing attitudes toward the required level of evidentiary support highlight the need for corporations and their lawyers to carefully check the pertinent court's and even the presiding judge's earlier rulings and inclinations.

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL
Comment:

key case


Chapter: 56.4

Case Name: Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) PTD Ltd., Civ. No. 3: 16-CV-621, 2018 U.S. Dist. LEXIS 57803, at *20 n.2 (M.D. Pa. Apr. 5, 2018)
June 27, 2018 (PRIVILEGE PONT)

"May Litigants Rely on Their Lawyers' Statements to Support Privilege Claims?"

Every court agrees that litigants must support their privilege claims with something other than naked assertions. But they disagree about the type of support required to justify withholding documents or testimony.

In Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) PTD Ltd., the court dropped to a footnote its off-handed assurance that "Rio Tinto may also provide a cover letter or other document that explains the basis for the privilege and identifies the persons who are party to the communications." Civ. No. 3: 16-CV-621, 2018 U.S. Dist. LEXIS 57803, at *20 n.2 (M.D. Pa. Apr. 5, 2018). Most courts require far more. A couple weeks later, in Motorola Solutions, Inc. v. Hytera Communications Corp., the court blasted defendant's privilege claim for one withheld email, sarcastically noting that Motorola's "lawyers assure us, with absolutely no evidentiary support – that the email was the necessary first step in … obtaining legal advice." No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095, at *5 (N.D. Ill. Apr. 17, 2018). The court quoted an earlier Seventh Circuit case for the proposition that "[l]awyers' talk is no substitute for data" – and then pointedly remarked that "[l]ittle wonder that the courts are unanimous in requiring proof of assertions made in briefs." Id. (citation omitted).

Courts' differing attitudes toward the required level of evidentiary support highlight the need for corporations and their lawyers to carefully check the pertinent

Case Date Jurisdiction State Cite Checked
2018-04-05 Federal PA
Comment:

key case


Chapter: 56.4

Case Name: UPMC v. CBIZ, Inc., Case No. 3:16-cv-204, 2018 U.S. Dist. LEXIS 52810 (W.D. Pa. March 29, 2018)
("Briefs that are effectively less than eight pages with only conclusory statements and citations to distinguish case law are insufficient supporting evidence to establish that discovery is privileged.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal PA

Chapter: 56.4

Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)
(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "The WOB Parties also argue that the Wilder Parties have not provided competent evidence showing that, even if the Wilder camp anticipated litigation, the May 25 emails were sent 'because of' the prospect of litigation. . . . The determination we must make on this point is a factual one: would these emails have been generated had the exact same chain of events unfolded but if the parties had not anticipated any ensuing litigation?"; "The WOB Parties fault the Wilder Parties for not providing an affidavit specifically addressing what 'would have' happened had there been no anticipation of litigation. . . . While we agree that it would have been better had such an affidavit been supplied, in this instance we have ample reason to find that the Wirt Email and the subsequent discussions were not something that would have occurred absent the potential for litigation. Wirt's recommendation in the Wirt Email and the ensuing discussion would have been unnecessary had it not been for the Wilder Parties' effort to stop the escrow agent from making any payments from the escrow account to the WOB Parties. As the circumstances make clear, Wirt made his recommendation in order to shore up Wilder's position for the purpose of staking out an adversarial position against the WOB Parties. The Wirt Email must also be viewed in light of Wirt's previous letter to the escrow agent suggesting that Wilder might potentially seek a court order to obtain the money in escrow, and the fact that the Wilder Parties could not reasonably have expected that the WOB Parties would have allowed release of the escrow absent litigation. For these reasons, and given that Wilder's job is to be a boxer and not an investigator of doping by adversaries, the Wilder Parties have met their burden of showing it was not part of the 'ordinary course' of their business to have the discussion that is the subject of the emails at issue and that these discussions would not have occurred absent the potential for litigation.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal NY
Comment:

key case


Chapter: 56.4

Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
(finding that defendant's failure to provide evidentiary support forfeited privilege and work product protection; "The defendants have provided no affidavits from Mullins [Defendant school board's lawyer] or themselves to attest that the requested documents were communications made for the purpose of securing a legal opinion or services. Nor have they provided any evidence that the documents contained confidential information which the defendants intended to remain confidential. The defendants also have not provided any evidence that any of these documents were created in anticipation of litigation, other than the fact that the documents were dated after the plaintiff's April 30, 2015, demand letter to Superintendent Robinson. The defendants also have not provided any evidence that the requested documents contain the thoughts or impressions of counsel."; "Based on the court's finding that the defendants have failed to provide evidence to meet their burden to prove that the documents sought are protected from production by either the attorney-client or the work-product privilege, the Motions are DENIED.")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 56.4

Case Name: Acqis, LLC v. EMC Corp., Civ. A. No. 14-13560-ADB, 2017 U.S. Dist. LEXIS 195112 (D. Mass. Nov. 16, 2017)
("In light of ACQIS' insufficient showing, the court ordered ACQIS to 'provide further support for its assertion of attorney-client privilege beyond what is already included in the privilege log and beyond the seemingly speculative argument in its letter that the documents contain information that 'could only have come from attorneys.'". . . As a means to make a sufficient showing, the court suggested that ACQIS submit declarations, affidavits, 'information showing a connection between the information in the communication and a particular attorney or law firm, or information showing that the disputed document contains information from another undisputed document that is privileged.'")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal MA

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2011-10-06 Federal VA

Chapter: 56.5

Case Name: Hopkins v. Board of County Commissioners of Wilson County, Kansas, Case No. 15-cv-2072-CM-TJJ, 2018 U.S. Dist. LEXIS 122356 (D. Kansas July 23, 2018)
("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.'")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal KS

Chapter: 56.5

Case Name: Hopkins v. Board of County Commissioners of Wilson County, Kansas, Case No. 15-cv-2072-CM-TJJ, 2018 U.S. Dist. LEXIS 122356 (D. Kansas July 23, 2018)
(inexplicably requiring a litigant to provide evidence that withheld documents did not include "underlying 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.'")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal KS
Comment:

key case


Chapter: 56.5

Case Name: Nottke v. Norfolk S. Ry. Co., Case No. 3:17CV544, 2018 U.S. Dist. LEXIS 118074 (N.D. Ohio July 16, 2018)
(finding that a neighbor's complaint about noise did not trigger a reasonable anticipation of litigation; "In Roxworthy [U.S. v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006)], the court gave clear guidance as to how a party can best makes its work product claim: 'We have stated that a party may satisfy its burden of showing anticipation of litigation 'in any of the traditional ways in which proof is produced in pretrial proceedings such as affidavits made on personal knowledge, depositions, or answers to interrogatories,' and that the showing 'can be opposed or controverted in the same manner.'"; "Subsequently, the Circuit and lower courts in our Circuit have noted the lack of affidavits in the course of ruling against parties who have asserted the work product doctrine."; "Even where a claimant submits affidavits, simple conclusory assertions are not enough."; "As already noted, NS submitted no affidavits with its motion for protective order. It has, as also noted, included a lot of possibly pertinent information in its motions. But 'an attorney's statement in a brief is not evidence.'"; "Since Roxworthy, lower courts consistently have required claimants to provide admissible evidence 'that, in fact, the anticipation of litigation was the motivating factor behind the preparation of the documents.")

Case Date Jurisdiction State Cite Checked
2018-07-16 Federal OH
Comment:

key case


Chapter: 56.5

Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
(rejecting plaintiff's privilege claim for employee-to-employee communication; holding that a litigant must provide evidence to support a privilege claim; "Entry 364 on Motorola's privilege log refers to an October 10, 2012 email string, which included materials in Chinese and in English. The critical email was sent by an engineer at Motorola (Tan CeahHeng) to a host of other Motorola engineers. No lawyer was a recipient on the email chain, and none was even copied. In fact, the word lawyer or attorney does not appear anywhere on the email. The email referred to a former Motorola engineer, Chuan Hoe Choo, who, the email's author thought may have taken a 'very similar idea' that was recently patented by Motorola and that he possibly conceived the idea for the new Hytera product when he was with Motorola. Indeed, the author of the email said that he and other engineers 'are suspecting [sic] that [the former Motorola employee] may have learned and replicated this idea from us.' The purpose of the email was explicitly stated to be a desire 'to bring this recent event to your attention.'. . . The email made absolutely no mention of a lawyer or of the author's desire to bring the matter to the attention of a lawyer."; "It merely asked the non-lawyer recipients to 'advice [sic] what will be the next course of action.' Only literary perversity or jaundiced partisanship could suggest that the email was at bottom really seeking an attorney's advice and counsel is clear from the context of what was said, and context after all is the chief determinant of meaning. . . . Any doubt that this email was not a veiled attempt to seek help from a lawyer is silenced by the closing sentence of the email, which stated 'I am copying the inventors of our filed invention if you need more technical inputs from them.'. . . The email never mentioned a lawyer, or hinted at a desire to get input or assistance from a lawyer, or to have a lawyer assess what was being said in the email. The author of the email does not ask that the email be forwarded to a lawyer; nor does it asked that a lawyer's views on the content of the email be solicited. It bears repeating that there are no attorneys involved in the communication, and the recipient states only that he will forward the communication to yet another non-lawyer. Motorola's unsupported, contrary, and partisan construction of the email is strained and unpersuasive."; "What we have said is sufficient to demonstrate that the October email is not protected by the attorney-client privilege. But we must take note of Motorola's unsupported claim that this type of e-mail chain directed to multiple non-attorneys was the necessary first step for the email's author to seek legal advice, and therefore the email was privileged. Apart from the inherent unpersuasiveness of the claim it must be noted that it rests solely and ultimately on the word of Motorola's lawyers -- actually of Motorola itself. But, that is not enough."; "Thus, courts throughout the nation have been emphatic and unanimous in holding that unsupported representations by lawyers in briefs -- which is what we have here -- will not be accepted.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL
Comment:

key case


Chapter: 56.5

Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
(rejecting plaintiff's privilege claim for employee-to-employee communication; "Item 364 is an email sent by a Motorola engineer to numerous other Motorola engineers. No lawyer was involved in the communication either as sender or recipient, or even as a person copied on the email. Legal advice was not sought, nor is any such advice revealed. . . . For Motorola none of this matters, because -- its lawyers assure us, with absolutely no evidentiary support -- that the email was the necessary first step in the obtaining legal advice. But, '[u]nfortunately . . . saying so doesn't make it so . . . .' . . . 'Lawyers' talk is no substitute for data.'. . . Little wonder that the courts are unanimous in requiring proof of assertions made in briefs.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL

Chapter: 56.5

Case Name: Nottke v. Norfolk Southern Railway Co., Case No. 3:17CV544, 2018 U.S. Dist. LEXIS 60670 (N.D. Ohio April 10, 2018)
(acknowledging that defendant conducted noise surveys after a neighbor complained of noise from a rail facility, but rejecting a work product claim because the defendant did not present any evidence that the complaint motivated the studies; "NS presents no affidavits, correspondence, whether emails, e-mail chains, or other communications, statements, or memoranda indicating, inter alia, when Ms. Knight's [a secretary who conveyed the neighbor's complaint] email to Mr. Wells [recipient of the notice] came to the attention of a member of the Law Department or what such person or persons did or did not do upon its receipt, and what happened thereafter. Similarly, there is no correspondence, by email, letter, memo, or otherwise, indicating who made the decision to retain EHSS, why that retention occurred, or why, without cc to the Law Department, the test reports were addressed to the NS Director of Industrial Hygiene."; "After May 19, 2015, when notice of Mr. Leonard's call went out to Mr. Wells, there is nothing in the record to connect the EHSS tests to anyone's apprehension that litigation might be in the offing."; "Conclusory assertions regarding a putative anticipation of litigation are not enough to invoke the work product doctrine."; "NS simply ignores the bedrock proposition that conclusory allegations about anticipated litigation do not adequately undergird a work product claim."; "Well-padded with citations, the NS briefs, stripped of those layers, are bare of factual substance. Read in toto, what Mr. Leonard wanted was simply to hear from, and to voice his concerns to, someone at NS; that's what mattered, not getting an attorney, much less filing a lawsuit. But NS responded with silence, as it did to the Trustees Resolution and the neighbors' petition. Read together, all Mr. Leonard and they wanted was some response to their plight."; "Deaf ear then, silence now: even if affidavits, depositions, and the like are not required -- though generally expected and offered -- and even if other kinds of evidence might, as it probably could, make out a valid and adequate work product claim, NS presents no evidence other than the Leonard May-day call three and four months before the EHSS tests. Here, as in Univ. Hosps. Health Sys. v. Pohl Inc. of Am., 2018 U.S. Dist. LEXIS 48592, 2018 WL 1474368, *3 (N.D. Ohio), 'nowhere . . . is there any mention of litigation or even the potential of litigation' in any communications. Indeed, here NS offers none of its own communications at all. The case law makes compellingly clear that something more is needed to give rise to an actual and a reasonable anticipation that litigation might arise. There is no evidence on either score in this record."; "Instead, NS, by its persistent lack of response, communicated an unstated message to its neighbors that it did not care, that it could and would continue to do as it wanted, and that it had nothing to fear, no matter how many voices sought to be heard.")

Case Date Jurisdiction State Cite Checked
2018-04-10 Federal OH
Comment:

key case


Chapter: 56.5

Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)
(holding that a business person's documents deserved work product protection because they reflected communications with a lawyer; also finding that the opinion work product doctrine could protect opinions from a corporate employee, who counts as a party's "representative"; "Although the connection of some of the remaining documents to this litigation is not apparent from the face of the documents, the Court determines the documents' entitlement to work product protection 'in light of the nature of the document and the factual situation in the particular case.' Adlman II, 134 F.3d at 1202. Here, Bank of America's outside counsel, hired specifically for this litigation, has submitted a declaration stating that these documents were prepared for the litigation at the request of counsel in the context of [TEXT REDACTED BY THE COURT]. . . . Bank of America also states that the recalled portions of the Fellman Documents were not used for business purposes independent of the litigation, and they have not been located in any other Bank of America business-person's files. . . . In addition, Mr. Fellman testified at the deposition that the documents were prepared at the instruction of counsel hired for the purposes of this litigation. . . . Thus, Judge Orenstein correctly found that Bank of America met its burden of demonstrating that the documents were prepared because of the litigation.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal NY

Chapter: 56.5

Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)
(holding that a business person's documents deserved work product protection because they reflected communications with a lawyer; also finding that the opinion work product doctrine could protect opinions from a corporate employee, who counts as a party's "representative"; "Although the connection of some of the remaining documents to this litigation is not apparent from the face of the documents, the Court determines the documents' entitlement to work product protection 'in light of the nature of the document and the factual situation in the particular case.' Adlman II, 134 F.3d at 1202. Here, Bank of America's outside counsel, hired specifically for this litigation, has submitted a declaration stating that these documents were prepared for the litigation at the request of counsel in the context of [TEXT REDACTED BY THE COURT]. . . . Bank of America also states that the recalled portions of the Fellman Documents were not used for business purposes independent of the litigation, and they have not been located in any other Bank of America business-person's files. . . . In addition, Mr. Fellman testified at the deposition that the documents were prepared at the instruction of counsel hired for the purposes of this litigation. . . . Thus, Judge Orenstein correctly found that Bank of America met its burden of demonstrating that the documents were prepared because of the litigation.")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal NY

Chapter: 56.5

Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(finding it unnecessary to determine if a litigant waived its privilege protection by disclosing protective communications to a third party consultant; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "Plaintiff also argues that ESU's disclosure of its litigation file to third parties negates any attorney-client privilege. She points to the public statement by ESU Interim President, Dr. Jackie Vietti, ('Vietti') at the September 9, 2015 press conference that ESU decided to have two external independent individuals review the process, findings, and conclusions of its investigation. The reviewers were an attorney with no connection to ESU and an HR consultant. Plaintiff argues this intentional disclosure to the independent reviewers waived any privilege."; "ESU asserts that waiver by disclosure to third parties is not an issue here because the only documents ESU provided to the independent reviewers have already been produced to Plaintiff. ESU offers the affidavit of its general counsel, Kevin Johnson, who states ESU 'provided the independent consultants with the four investigative reports for review and no other documentation.' The four-part investigation reports reviewed by the independent reviewers were all produced to Plaintiff on September 27, 2017."; "Based upon ESU's representation (through the sworn statements of its general counsel) that it has produced to Plaintiff all documents reviewed by the independent reviewers, the Court denies Plaintiff's request to compel documents on the grounds of third party disclosure.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS
Comment:

key case


Chapter: 56.5

Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(holding that investigation-related documents deserved work product protection because they were primarily motivated by anticipated litigation, even though they also seemed to have been required by internal university policies; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "The parties dispute whether the interview notes taken by the Assistant Director of Human Resources as part of ESU's internal investigation into the racial slur incident at SLIM were prepared in anticipation of litigation, or were created primarily for a non-litigation purpose, such as contemplated by ESU's own policies for investigating racial harassment and discrimination complaints. ESU contends that the primary motivating purpose of the documents was to conduct a thorough investigation of the events in question based on ESU's potential liability. In contrast, Plaintiff contends the primary purpose of the investigation documents was to comply with ESU's institutional policy 3D.0106.05(A)(2). She points to Vietti's September 9, 2015 letter to ESU faculty, staff, and students, which states, "On July 10, 2015, I directed that an internal investigation be conducted by ESU Human Resources into an alleged hate crime and a concern over potential discrimination or harassment in the School of Library and Information Management. This investigation was conducted as outlined in the University Policy Manual [3D.0106.05(A)(2)].'"; "ESU has the burden to prove it is entitled to work-product protection. ESU has provided an affidavit from its general counsel, Kevin Johnson, wherein he states that '[d]uring July 2015, the Hales indicated they had retained counsel and were acting upon the advice of an attorney.' Johnson further states in his Affidavit that by July 10, 2015, it became apparent the Hales were refusing to file a grievance with ESU regarding their perception of discrimination and harassment in the SLIM department, and he recommended that ESU President Vietti initiate a request for an investigation into the Hales' allegations. Based upon these sworn statements by Johnson, the Court concludes that as of July 10, 2015, ESU was on reasonable notice that Plaintiff intended legal action against ESU and that it reasonably anticipated litigation as of at least that date."; "ESU must also show that Lauber's [University assistant HR director] purpose in preparing the witness interview notes was in anticipation of litigation, and not for some other non-litigation purpose. Notwithstanding the public statements made by ESU's Interim President Vietti regarding ESU's investigation, which might suggest the investigation was for purposes of a more general university investigation into discrimination and harassment in the SLIM department, the Court finds Lauber conducted the witness interviews at the direction of Vietti, who was acting upon Johnson's advice and recommendation that an investigation be initiated into the Hales' allegations."; "In this district, courts look to the 'primary motivating purpose behind the creation of the document to determine whether it constitutes work product.' After conducting an in camera review of a sampling of the withheld witness notes, the Court concludes that Lauber's primary purpose behind the creation of these interview notes was in anticipation of litigation with the Hales and not for purposes of conducting an investigation under university policies. The privilege log lists many of Lauber's interview notes as undated so the Court cannot tell when Lauber interviewed each person or prepared the notes. However, to the extent the privilege log lists dates for Lauber's interview notes, they are all dated after July 10, 2015, and a review of the undated interview notes indicates it is very likely Lauber also conducted those interviews or prepared those interview notes after July 10, 2015. Plaintiff's motion is therefore DENIED with respect to these documents.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS
Comment:

key case


Chapter: 56.5

Case Name: Bartech Systems Int'l v. Mobile Simple Solutions, Inc., Case No. 2:15-cv-02422-MMD-NJK, 2018 U.S. Dist. LEXIS 22296 (D. Nev. Feb. 12, 2018)
("The Court finds Defendant's privilege log inadequate. . . . First, the Court's order at Docket No. 415 explicitly required that the joint statement be complete in itself. As one example of a failure to comply with the Court's order, Defendant claims the privilege as to communications with counsel from Snell but fails to identify which names on the privilege log are even associated with Snell. Without a sufficient privilege log, the Court cannot decide whether or not the attorney-client privilege exists as to communications with Snell. Second, although Defendant cites case law that extends the attorney-client privilege to a third party agent or consultant, it does not provide any factual support that such an agency relationship existed between itself, Mr. Manardo, and any of the non-GEM defendants. The Court therefore finds that Defendant fails to provide any meaningfully-developed argument to prove it has standing to assert the attorney-client privilege as to any communications with Snell."; "Accordingly, the Court does not reach the merits of Defendant's objection on grounds of the attorney-client privilege as to any communications that involve Snell, and Plaintiff's request is GRANTED as to these communications.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal NV

Chapter: 56.5

Case Name: Raynor v. District of Columbia, Civ. A. No. 14-0750 (RC), 2018 U.S. Dist. LEXIS 23227 (D.D.C. Feb. 12, 2018)
(holding that a protective order did not apply to documents that had been inadvertently disclosed earlier, so the litigant could not rely on the protective order to claw-back the documents; "Even if the District's production of privileged information was inadvertent, it must still prove that it took reasonable steps to prevent disclosure. . . . But the District makes no effort to provide any detail or in any way explain the sorts of procedures or methodologies it followed in reviewing and producing documents. . . . Rather, the District argues only summarily, and without record support, that the small fraction of privileged documents inadvertently slipped through its process as part of large productions on tight deadlines. These assertions come only in the form of unsworn statements from counsel, and for whom it is unclear how much personal knowledge counsel may actually have on the issues of discovery here. This is simply not enough. Indeed, other Judges on this Court have admonished the District on exactly this point.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal DC

Chapter: 56.5

Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
("The court finds that Sutter has not met its burden of establishing that this document is privileged. Sutter originally claimed work-product protection for this document, but Sutter's revised submission to the court now asserts only attorney-client privilege. (Sutter's submission did not include the information the court required for the documents being submitted in camera for which Sutter was claiming work-product protection, such as the identity of the actual or reasonably-anticipated litigation for which the document was created, so the court assumes that Sutter is withdrawing its claim of work-product protection.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal

Chapter: 56.5

Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
(holding that a company's CFO's presentation did not deserve privilege protection under the primary purpose standard; "The court finds that Sutter has not met its burden of establishing that the redacted portion of the document bates-stamped DEF001993743-51, which Sutter provided to the court unredacted as PrivID 00704, is privileged. The redacted portion of the document appears to be a presentation delivered by Sutter's Chief Financial Officer and a regional CFO to general non-lawyer 'Strategy Session Participants' on business matters, as part of a larger day-long strategy meeting on business matters, and does not appear to be related to the rendition of legal (as opposed to business) advice. Nor does Sutter's privilege log entry -- which contains only a vague allusion that the redacted portion of this document somehow 'reflect[s] legal advice' from the 'Legal Department' -- meet its burden of establishing that the redacted portion of this document is privileged.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA

Chapter: 56.5

Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("Plaintiffs also argue that the privilege logs are deficient because Defendants did not identify specific litigation in order to invoke the work product protection. This argument fails to take into account that the Court expressly directed Defendants to provide the Court (in camera) with a detailed description and chronology of potential, pending and threatened legal proceedings for which Defendants asserted claims of work product protection. The Defendants submitted declarations providing the Court with the requested information, which the Court has utilized in analyzing whether Defendants have asserted the work product protection validly with regard to documents on the privilege logs.")

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal FL
Comment:

key case


Chapter: 56.5

Case Name: UnitedHealthcare of Fla. v. Am. Renal Assocs. LLC, Civ. No. 16-cv-81180-Marra/Matthewman, 2017 U.S. Dist. LEXIS 201866 (S.D. Fla. Dec. 7, 2017)
(analyzing the provisions of the common interest agreement and finding the agreement effective; "Mr. Bushofsky [Ropes and Gray lawyer] also represents that the agreement has been in place 'since counsel for the American Kidney Fund and counsel for ARA began communicating regarding this matter after the American Kidney Fund learned of United's lawsuit in July [*11] 2016.'. . . The Court has no reason to doubt the veracity of the correspondence, or of counsel's representations, and Plaintiffs have not provided any evidence whatsoever to contradict Mr. Bushofsky's assertions. All of the communications at issue would be protected under the attorney-client privilege as the common interest exception applies.")

Case Date Jurisdiction State Cite Checked
2017-12-07 Federal FL

Chapter: 56.5

Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
(finding that defendant's failure to provide evidentiary support forfeited privilege and work product protection; "The defendants have provided no affidavits from Mullins [Defendant school board's lawyer] or themselves to attest that the requested documents were communications made for the purpose of securing a legal opinion or services. Nor have they provided any evidence that the documents contained confidential information which the defendants intended to remain confidential. The defendants also have not provided any evidence that any of these documents were created in anticipation of litigation, other than the fact that the documents were dated after the plaintiff's April 30, 2015, demand letter to Superintendent Robinson. The defendants also have not provided any evidence that the requested documents contain the thoughts or impressions of counsel."; "Based on the court's finding that the defendants have failed to provide evidence to meet their burden to prove that the documents sought are protected from production by either the attorney-client or the work-product privilege, the Motions are DENIED.")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA
Comment:

key case


Chapter: 56.5

Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
(finding that defendant's failure to provide evidentiary support forfeited privilege and work product protection; "The defendants have provided no affidavits from Mullins [Defendant school board's lawyer] or themselves to attest that the requested documents were communications made for the purpose of securing a legal opinion or services. Nor have they provided any evidence that the documents contained confidential information which the defendants intended to remain confidential. The defendants also have not provided any evidence that any of these documents were created in anticipation of litigation, other than the fact that the documents were dated after the plaintiff's April 30, 2015, demand letter to Superintendent Robinson. The defendants also have not provided any evidence that the requested documents contain the thoughts or impressions of counsel."; "Based on the court's finding that the defendants have failed to provide evidence to meet their burden to prove that the documents sought are protected from production by either the attorney-client or the work-product privilege, the Motions are DENIED.")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 56.5

Case Name: American Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2017 U.S. Dist. LEXIS 146395 (E.D. Mo. Sept. 11, 2017)
(in a third party insurance case, the work product doctrine can protect some documents in the insurance company's files; "The question of whether a document was prepared in anticipation of litigation is a factual one, requiring evidence from which the Court can make a determination. Statements of counsel are not evidence.")

Case Date Jurisdiction State Cite Checked
2017-09-11 Federal MO

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; "Communications between employees may be privileged in two circumstances. First, communications may be privileged when a corporate client shares information with non-attorney employees 'to relay information requested by attorneys.'"; "Second, communications between non-attorney corporate employees may be privileged when they were made 'for the purpose of securing legal advice.'"; "When the communication involves a document, for the court to find that the attorney-client privilege applies, the court must inspect the document and find that the primary purpose of the communication was to secure legal advice."; "A party can prove that the purpose of a communication was to seek legal advice by offering evidence that the communication was relayed to an attorney.")

Case Date Jurisdiction State Cite Checked
2017-07-18 Federal TX

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 Jurisdiction State Cite Checked
2017-07-18 Federal TX
Comment:

key case


Chapter: 56.5

Case Name: Martinez v. Kleinfeld Bridal Corp., No. 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261, at *4 (S.D.N.Y. June 30, 2017)
September 20, 2017 (PRIVILEGE POINT)

"Remember the Nitty-Gritty of Privilege Analyses: Part II"

Last week's Privilege Point described two cases in which courts read withheld emails in making privilege calls. Most judges understandably consider "privilege" headers irrelevant, and instead look for privileged content on the face of the emails.

In camera reviews can also help judges analyze other privilege issues. In Martinez v. Kleinfeld Bridal Corp., the court assessed "plaintiff's contention that notes [reflecting employee meetings] are not privileged because defense counsel [from Littler Mendelson] functioned as an investigator and provided business (rather than legal) advice." No. 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261, at *4 (S.D.N.Y. June 30, 2017). After reviewing the notes in camera, the court rejected plaintiff's argument -- noting that the notes "refer to the party carrying out the investigation with the pronoun 'we,' and refer to defense counsel as 'the labor attorneys' or 'the attorneys.'" Id. at *5 (internal citation omitted).

Corporate lawyers should train their clients (and constantly remind themselves) that any emails or other documents for which they could legitimately claim privilege protection should on their face contain language that will assure success in a later privilege fight. This usually consists of explicit requests for legal advice and explicit legal advice back --but can involve more subtle attention to wording. This is one area of the law in which lawyers and their clients essentially create their own exhibits.

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY
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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 56.5

Case Name: Peerless Indemnity Insurance Co. v. Sushi Avenue, Inc., Civ. No. 15-4112 ADM/LIB, 2017 U.S. Dist. LEXIS 22436, at *10 (D. Minn. Feb. 15, 2017)
April 12, 2017 (PRIVILEGE POINT)

"Illogical and Frightening 'Need to Know' Doctrine'"

Corporations face two possible impediments when claiming privilege protection for purely internal communications. First, some courts see widespread intra-corporate circulation as tending to show that the communications primarily dealt with business rather than legal matters. This approach makes some sense, although a few courts take it to an unjustifiable extreme – applying a per se rule that the privilege cannot protect communications an employee sends both to a lawyer and to a non-lawyer requesting their input.

Second, the more frightening doctrine involves the "need to know" standard. In Peerless Indemnity Insurance Co. v. Sushi Avenue, Inc., the court rejected plaintiff’s privilege claim for several internal documents – because it had not established with evidence that the documents "were not disseminated beyond those persons who needed to know their contents." Civ. No. 15-4112 ADM/LIB, 2017 U.S. Dist. LEXIS 22436, at *10 (D. Minn. Feb. 15, 2017).

Many courts follow this troubling waiver approach – which can force corporations to turn over to litigation adversaries purely internal communications simply because they were shared with a few employees who did not need them. Because this doctrine focuses mostly on lawyers' communication to their corporate clients' employees, we have the primary responsibility to limit internal circulation and re-circulation of our advice.

Case Date Jurisdiction State Cite Checked
2017-02-15 Federal MN
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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))