McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 260 of 260 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:


Case Date Jurisdiction State Cite Checked
2018-11-21

Chapter: 56.5
Case Name: Shenwick v. Twitter, Inc., Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018)
December 26, 2018 (PRIVILEGE POINT)

Court Needs More Information to Assess Draft Documents' Privilege Protection

The attorney-client privilege can protect lawyers' input into draft documents created by the lawyer or by the client – which of course evaporates when the client approves the finished document for disclosure outside the relationship. Not surprisingly, courts examine such lawyers' revisions to assess whether those lawyers were providing legal input rather than business, grammatical, stylistic suggestions, etc.

In Shenwick v. Twitter, Inc., the court noted that defendants withheld "several drafts of documents with comments provided with the redlined version." Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018). But because the court could not "determine the identity of the author of comments [in] these draft documents," it ordered defendants "to provide the Court with the identity of the individuals who provided the comments and link them to the comments in the draft documents submitted to the Court.'" Id.

The lesson from such decisions is self-evident. Lawyers should always memorialize their role in any drafting process, and stand ready to identify their suggested changes – including the nature of their legally-driven revisions.

Case Date Jurisdiction State Cite Checked
2018-10-30 Federal

Chapter: 56.5
Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)
November 21, 2018 (PRIVILEGE POINT)

Court Demands That Defendant Identify Those With Access to Privileged Documents

In 2015, the court handling a malicious prosecution case against the Town of Islip held that the Town had waived privilege protection for documents that "were apparently accessible by all Town employees, " even those without a need to know, and that might also have been accessed by members of the public "in days past." Norton v. Town of Islip, No. CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114, at *11, *14 (E.D.N.Y. Sept. 18, 2015).

The parties' privilege fights have continued, and plaintiff recently challenged the Town's declaration that "'[t]here is no reason to believe' that the privileged documents were accessed by anyone other than those individuals and offices to whom they were addressed." Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018). The court again addressed the access issue. After explaining that it was "unable to credit the Town Defendants' conclusion about access of the subject documents," the court ordered the Town to provide "affidavits from an individual or individuals with knowledge setting forth where each document was kept, including all individuals who had access to the documents and when that access was provided." Id. at *25, *28. And the court then doubled down, emphasizing that "[f]or the sake of clarity, the Court is directing the Town Defendants to explain who had access, not just who actually accessed the documents at issue and what was done to maintain confidentiality." Id. at *28.

It is difficult to imagine any institutional client (governmental or corporate) being able to comply with such a remarkable requirement.

Case Date Jurisdiction State Cite Checked
2018-10-16 Federal

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))

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

Chapter: 56.5
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *34 (S.D. Ohio Feb. 19, 2013)
(finding that the privilege log should include the following information: "'The purpose of preparing the document, including an evidentiary showing, based on competent evidence, "supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent;" a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, 'that the documents do not contain or incorporate non-privileged underlying facts."'" (citation omitted))

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

Chapter: 56.5
Case Name: Prowess, Inc. v. Raysearch Labs. AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 14433, at *11-12 (D. Md. Jan. 18, 2013)
(recognizing courts' different approaches to privilege protection for communications to and from patent agents, and ultimately concluding that the privilege did not protect them unless a patent agent was acting as a lawyer's agent; "UMB also asserts the attorney-client privilege for documents whose author is 'Unknown -- Presumably David Marks.'. . . [T]he proponent of the attorney-client privilege in a privilege log must provide 'the name of the person making/receiving the communication.'. . . Again, because it is UMB's burden to prove that these documents are privileged, this Court cannot find that documents are privileged based solely on UMB's representation that documents were presumably authored by Mr. Marks.")

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

Chapter: 56.5
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 871 (Tex. Ct. App. 2013)
("Metzger [Bank's lawyer] stated that he had reviewed the documents described in item numbers 1 through 54, 490 through 513, and 531 through 637 of the privilege log. He also identified the various senders and recipients of the documents as representatives of Metzger & McDonald who were assisting in the performance of professional legal services for the Bank, or persons employed by the Bank 'and/or were representatives of the Bank,' and explained why they were entitled to receive confidential communications. He also stated that he was familiar with the definition of 'work product' included in Rule 192.5. Finally, Metzger expressed his opinion that, applying this definition of 'work product,' the documents corresponding to the item numbers of the privilege log referred to in his affidavit are 'material prepared or mental impressions developed in anticipation of litigation or for trial by or for [the Bank] or its representatives, or a communication made in anticipation of litigation or for trial between [the Bank] and its representatives or among its representatives.'"; "Mouse's [outside lawyer for bank] affidavit was in the same form as Metzger's and contained similar information pertaining to the documents corresponding to item numbers 55 through 437 of the privilege log. He identified certain senders and recipients of the documents and explained their relationship to KRCL [outside lawyers for bank], the Bank, or other entities and explained why they were entitled to receive privileged communications. He also stated that he was familiar with the definition of 'work product' included in Rule 192.5. In his opinion, Mouse stated further, the documents corresponding to the item numbers referred to in his affidavit are 'material prepared or mental impressions developed in anticipation of litigation or for trial by or for [the Bank] or its representatives, or a communication made in anticipation of litigation or for trial between [the Bank] and its representatives or among its representatives.'"; "We conclude that through the affidavits of Reed [Bank Executive Vice President], Metzger, and Mouse, Relators established a prima facie case that the documents specifically mentioned in the affidavits were protected from discovery by the work product privilege.")

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

Chapter: 56.5
Case Name: Adair v. EQT Prod. Co., 294 F.R.D. 1, 6 (W.D. Va. 2013)
(finding that an administrative hearing did not count as "litigation" for work product purposes; "With regard to the second category of documents withheld -- documents that EQT [Defendant] created from its own records at the request of counsel, EQT argues that these documents would not have existed but for litigation. In particular, EQT has provided evidence to the court by way of affidavit and deposition testimony that the remaining documents withheld in this category were prepared at the request of counsel for use in this or other litigation or were requests for information to respond to the requests of counsel. . . . Based on this, the court will find that this category of documents is protected from production by the work-product doctrine.")

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

Chapter: 56.5
Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 35, 36 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "Attorneys Flanagan and Johnson determined that in order to understand the dispute between Bryan and ChemWerth, and to provide legal advice to Bryan, they needed the assistance of someone who could understand and interpret Bryan's application to the FDA, the FDA's requirements and practices concerning new drug applications, DMFs [drug master files] and other data, and the impact that ChemWerth's alleged failure to provide documents had on Bryan's application to the FDA and the amount of money spent on the application. . . . They also determined that they would need someone to interpret all of the relevant communications involving ChemWerth, Bryan, Bryan's manufacturers, Bryan's testing laboratories, and the FDA."; "Waldman took on the task of translating and interpreting various communications involving Bryan, ChemWerth and the FDA, including communications in which Dr. Waldman [plaintiff's FDA consultant] had participated in his capacity as Bryan's agent on the TS project."; "Both MLA [plaintiff's outside law firm] and Bryan viewed Waldman's assistance as indispensable to MLA's ability to provide its client with legal advice regarding its dispute with ChemWerth and its potential communications with the FDA. . . . [B]oth MLA and Bryan understood that only MLA, Bryan and Waldman had access to those communications."; "Following ChemWerth's filing of a third-party complaint against Waldman on September 24, 2012, counsel for Bryan and Waldman agreed orally that their clients had a common interest in the case. . . . [A]lthough all of the documents which ChemWerth is seeking were created before Waldman retained its own counsel, Bryan took steps to preserve its claims of privilege over those documents in the event they were shared with Waldman's counsel.")

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

Chapter: 56.5
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 633 (D. Nev. 2013)
(holding that consultants were the "functional equivalent" of employees; "[T]he court will turn to the Ninth Circuit's application of the 'functional equivalent' of an employee theory in deciding whether specific communications are covered by the attorney-client privilege."; quoting a lengthy affidavit supporting the functional equivalent claim)

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

Chapter: 56.5
Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 329-30 (M.D. Pa. 2013)
("[I]t is clear from the record before the Court that Dempsey's parents played two different roles in his legal defense, both of which permitted them to participate in or receive disclosure of confidential communications without waiver of the attorney-client privilege. From the earliest stages of this affair, Dempsey's parents played an essential role in securing legal representation for Dempsey. After the retention of legal counsel, Dempsey's parents actively assisted his attorneys in preparing a defense to criminal charges and, later, student conduct charges against Dempsey. In particular, the Court notes Attorney Stephen Becker's unrebutted affidavit . . . in which Becker stated that, due to their professional backgrounds (John Dempsey is a forensic investigator and Shelley Dempsey is a retired attorney) and their relationship and knowledge of their son, he enlisted the assistance of Dempsey's parents in gathering and analyzing information and helping to prepare Dempsey's defense. It is also abundantly clear from the Court's in camera review of the documents at issue that Dempsey's parents functioned just as Attorney Becker represented, operating in concert with and at the direction of defense counsel, and providing substantial assistance in preparation of the case. Whether they came upon these roles as paid professionals or as family member volunteers is immaterial.")

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

Chapter: 56.5
Case Name: Tudor Ins. Co. v. Stay Secure Constr. Corp., 390 F.R.D. 37, 40-41 (S.D.N.Y. 2013)
(in a first party insurance case, finding that the litigant had not supplied an affidavit supporting the "because of" work product standard; "By seeking to protect certain portions of Hannon's [investigator hired by insurance company's lawyer] investigation, Tudor is apparently arguing that these particular portions were prepared in 'anticipation of litigation' while at the same time conceding that the remaining parts of the investigatory reports were not. . . . But Tudor has provided no competent evidence to support its implicit factual argument that the Hannon reports would not have been prepared 'in essentially similar form,'. . . had the personal injury actions not already been filed. Indeed, Tudor submits not a single affidavit from anyone at Hannon, the Congdon, Flaherty firm [plaintiff's lawyer], or Tudor on this question. Because Tudor bears the burden of proof on this issue, . . . its effort to protect the redacted portions necessarily fails simply based on this lack of proof.")

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

Chapter: 56.5
Case Name: Under Seal 1 v. United States (In re Grand Jury Subpoena), 542 F. App'x 252, 254, 254-55 (4th Cir. 2013)
(finding it unnecessary to decide if the attorney-client privilege protected communications between a government lawyer and a government official, because the two emails at issue did not relate to legal advice and therefore did not deserve privilege protection; "[T]he government-employed lawyer could not (or at least did not) testify that he was acting as a lawyer or providing an opinion of law or legal services to Appellants with respect to the emails. . . . The lawyer's own declaration fails to state the same. . . . Appellants provided no other affidavits, statements, or witnesses on this point."; "Appellants utterly failed to present any specific underlying facts to establish the privilege and meet their burden. The record contains evidence of not even a single conversation between the government official and the government-employed lawyer that concerned the seeking of legal advice. Thus, Lindsey [In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998)] is unavailing."; "Having decided that Appellants failed to meet their burden as to the two emails, we must now address whether we can review the district court's broad ruling that the attorney-client privilege does not exist between a government official and a government-employed lawyer in the context of a criminal investigation. We conclude that the issue is moot, and to review it at this juncture would be to render an advisory opinion.")

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

Chapter: 56.5
Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 330 (M.D. Pa. 2013)
("[T]he evidence of record establishes that Dempsey's parents were also clients of Attorney Stephen Becker with respect to non-criminal matters involving Bucknell University. In his unrebutted affidavit, Attorney Becker stated unequivocally that he was engaged to represent Dempsey and his parents with respect to non-criminal matters involving Bucknell University.")

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

Chapter: 56.5
Case Name: Galvan v. Mississippi Power Co., Civ. A. No. 1:10CV159-KS-MTP, 2012 U.S. Dist. LEXIS 165558 (S.D. Miss. Nov. 20, 2012)
January 9, 2013 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 56.5
Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159 KS MTP, 2012 U.S. Dist. LEXIS 165558, at *7 n.3 (S.D. Miss. Nov. 20, 2012)
(holding that a root cause analysis did not deserve work product protection, because the party did not support the work product claim; "'There is no factual information submitted to support the work-product claims, such as an affidavit, deposition testimony, or other document.")

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

Chapter: 56.5
Case Name: United States v. Pogson, Crim. No. 2011 017, 2012 U.S. Dist. LEXIS 164935, at *13 n.7 (D. V.I. Nov. 19, 2012)
(holding that the presence of other witnesses during otherwise privileged communication rendered the privilege from protecting the communications; "Also fatal to a claim of confidentiality, Defendant's communications with Attorney Wynter were made in the presence of a third party -- Mr. Felix. . . . While the Court is aware that communications in the presence of Mr. Felix could be confidential if Defendant and Mr. Felix were in a joint client or common interest relationship . . ., Defendant -- who carries the burden with respect to establishing privilege in this matter -- has not raised the possibility, let alone demonstrated, that such a relationship exists in this case.")

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

Chapter: 56.5
Case Name: Werder v. Marriott Int'l, Inc., No. 2:10cv1656, 2012 U.S. Dist. LEXIS 134719, at *6-7 (W.D. Pa. Sept. 20, 2012)
("Although leaving much to be desired, defendant Otis' repeated description of each document as 'communications regarding instant litigation' does not in itself warrant the production of all withheld documents. Defendant Otis also has provided for each communication the specific dates, the protection invoked, and the name of the sender and recipient along with their respective titles and places of business. Furthermore, the supplementing information found in defendant Otis' Prefatory Statement, Answers to Interrogatories, and Answers to Requests for Production of Documents provides additional context to the communications. Collectively, this information adequately satisfies the standard set forth in Rule 26(b)(5).")

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

Chapter: 56.5
Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *26-27 (W.D. Va. June 20, 2012)
("Additionally, based on the affidavit submitted by DRHA, the court also concludes that the attached documents drafted by Wasson are protected by the attorney-client privilege, since the affidavit indicates that the documents were written at Byrnes' request, for the purpose of assisting counsel in giving advice to DRHA's Board of Commissioners. See Upjohn, 449 U.S. at 394-395 (holding that communications were protected by the attorney-client privilege since they 'were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel'); In re Allen, 106 F.3d at 607")

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

Chapter: 56.5
Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *28 (W.D. Va. June 20, 2012)
(holding that a plaintiff claiming that defendant had waived the privilege did not establish that privileged documents were actually disclosed to a third party; "Finally, the court is constrained to conclude that the privilege has not been waived. While Carnell is of the belief that the documents at issue were likely provided to Robert Owens, DRHA has submitted sworn affidavits which confirm that the documents were not submitted for Owens' review. In the absence of any basis to question the truthfulness of the affidavits, the court must conclude that the attorney-client privilege has not been waived.")

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

Chapter: 56.5
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 381 (W.D. Va. 2012)
("West's affidavits add little evidence to support the claimed privilege. West stated that he has reviewed the withheld emails. West also stated that he 'consider[ed] the emails to be protected by the attorney-client privilege or by the work[ ]product doctrine.' That, however, is the court's determination to make. West also has stated: 'In my view, I was acting primarily in a legal capacity in investigating and formulating EQT's response to Mr. Gilbert.' Such conclusory statements, however, do not meet the proponent's burden. Again, it is important to note what West's affidavits do not contain. West did not offer any evidence that these emails related to requests for or the rendering of legal advice. Instead, West stated only that the inquiries 'presented legal issues, and EQT anticipated that litigation could ensue.' It is likely this could be said of any of West's work for EQT Production.")

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

Chapter: 56.5
Case Name: In re Capital One Bank Credit Card Interest Rate Litig., 286 F.R.D. 676, 681 (N.D. Ga. 2012)
("As in Bogle [Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2003)], Capital One has presented no evidence as to whether the communications at issue were designated 'privileged' or 'confidential' or whether the recipients, where listed, understood the communications to be confidential. Where there are no recipients listed, the court has no way of knowing whether the communications remained confidential and were distributed only to those employees who needed to know its contents and/or were authorized to act on behalf of Capital One with respect to the subject matter of the communications. . . . With regard to these documents failing to list a recipient, Plaintiffs' motion to compel is due to be granted. Where recipients are listed but non-lawyers are included on both sides of the communication, the court again does not possess the information required to ascertain whether the employees included needed to know the contents of the communication and/or were authorized to act on the information for the company. With regard to these documents, that do have recipients listed, Capital One should come forward with additional information so that Plaintiffs, and, if necessary, the court, can better evaluate its claims of attorney-client privilege.")

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

Chapter: 56.5
Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *7 (W.D. Va. Oct. 6, 2011)
("The communications 'do not explicitly ask for legal advice, opinions, or oversight,' or otherwise suggest that the purpose of the documents is to obtain or provide 'an opinion on law, legal services, or . . . assistance in some legal context.' Scott & Stringfellow, 2011 U.S. Dist. LEXIS 51028, at *10. While the table of contents in one of the exhibit binders indicates that the exhibit contains 'counterclaim analysis,' the actual documents, consisting of spreadsheets prepared by WGI, were generated months before SNC filed the instant action in December of 2010. The same is true with all of the other documents, which were drafted between March and September of that year. Because neither the documents themselves nor any other evidence proffered by ATK establishes that the documents were 'made for the purpose of facilitating the rendition of legal services,' In re Grand Jury Proceedings, 947 F.2d at 1191, the court concludes that ATK has failed to meet its burden of demonstrating that the attorney-client privilege immunizes the documents from disclosure.")

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

Chapter: 56.5
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007)
("First, the party asserting work-product protection bears the burden to show that the 'work product' was prepared in anticipation of litigation. . . . Second, in order to meet this burden, the proponent of the privilege must 'come forward with a specific demonstration of facts supporting the requested protection,' preferably though affidavits from knowledgeable persons. Suggs v. Whitaker, 152 F.R.D. 501, 505 (M.D.N.C. 1993). See also North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 515 (M.D.N.C. 1986).")

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

Chapter: 56.5
Case Name: Sony Computer Entm't Am., Inc. v. Great Am. Ins Co., 229 F.R.D. 632, 633, 634 & n.1 (N.D. Cal. 2005)
("[T]he parties clarified that the only third party at issue is Mr. O'Neil, the insurance broker for SCEA"; "Where a third party is present, no presumption of confidentiality obtains, and the usual allocation of burden of proof, resting with the proponent of the privilege, applies in determining whether confidentiality was preserved under § 952."); "It is appropriate that the proponent of the privilege has the burden of proving that a third party was present to further the interest of the proponent because, in this situation, where the privilege turns on the nature of the relationship and content of communications with the third party in question, the proponent is in the better posture to come forward with specific evidence explaining why confidentiality was not broken."; "Here, SCEA provided no evidentiary support for its claim that Mr. O'Neil was present to further the interest of SCEA in the consultation or someone to whom disclosure was reasonably necessary to accomplish the purpose for which the lawyer was consulted. Although there was a great deal of discussion at the hearing as to whether Mr. O'Neil was present as a claims advocate to assist SCEA and its attorney or as a potential adversary to SCEA, no admissible evidence was presented to the Court as part of the parties' submissions in support of or in opposition to the motion to compel. SCEA did not, for example, provide a declaration from Mr. O'Neil or even from Ms. Liu [plaintiff's director of legan & business affairs] regarding Mr. O'Neil's role with respect to SCEA's insurance claim. Thus, SCEA failed to carry its burden of proving the privilege." (footnote omitted))

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

Chapter: 56.5
Case Name: Via v. Commonwealth, 590 S.E.2d 583, 595 (Va. Ct. App. 2004)
("Via proffered no evidence for the record in any effort to establish the 'indispensability' of Dr. Conley's services. Thus, there was simply no reason for the trial court to have declared Dr. Conley an 'agent' of Via's counsel.")

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

Chapter: 56.5
Case Name: Smathers v. GBA Assocs. Ltd. P'ship, 55 Va. Cir. 73, 77-78 (Va. Cir. Ct. 2001)
("GBA, as the proponent of the privilege, has the burden of establishing that the challenged documents were in fact prepared in anticipation of litigation."; finding that GBA had met its burden by providing an affidavit from a lawyer in a firm that had represented GBA, which stated that "all of the documents listed on GBA's privilege log were prepared in anticipation of, and in hopes of avoiding, imminent litigation")

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

Chapter: 56.6
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("Plaintiffs assert in their reply brief that Defendants are required to support their privilege assertions with affidavits affirming the statements in the privilege log and that the contents of the withheld communications are privileged. Plaintiffs claim that the unsworn statements in the privilege log and Defendants' brief are insufficient evidence, and that without supporting affidavits, Defendants' claim of privilege necessarily fails."; "However, none of these cases support Plaintiffs' position that a party defending against a motion to compel must submit sworn statements in support of an asserted privilege.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN
Comment:

key case


Chapter: 56.6
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: 56.6
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: 56.6
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 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
2018-04-05 Federal PA
Comment:

key case


Chapter: 56.6
Case Name: Jeddo Coal Co. v. Rio Tinto Procurement (Sing.) Partnership Ltd., Civ. No. 3:16-CV-621, 2018 (M.D. Pa. April 5, 2018)
("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.")

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

key case


Chapter: 56.6
Case Name: Albin Family Recovable Living Trust v. Halliburton Energy Servs., Case No. CIV-16-910-M, 2018 U.S. Dist. LEXIS 5192 (W.D. Okla. Jan. 11, 2018)
(finding that an Oklahoma Department of Environmental Quality proceeding did not count as "litigation" for work product protection purposes; "Having carefully reviewed the parties' submissions, the Court finds the attorney-client privilege would apply to any communications between defendant's counsel (whether in-house counsel or outside counsel) and SAIC, their environmental consultant, if the communication is made to assist counsel in giving legal advice to defendant and the confidential nature of the communication has been maintained. Defendant has submitted sufficient evidence, by way of the affidavits of its counsel attached to its response, that counsel retained SAIC to consult with and assist them in order to render advice to defendant. Whether the confidential nature of the communication has been maintained is a finding that must be made as to each specific document, which for purposes of this Order, the Court has not made.")

Case Date Jurisdiction State Cite Checked
2018-01-11 Federal OK
Comment:

key case


Chapter: 56.6
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: 56.6
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("Additionally, BDO has not presented affidavits or other evidence that would allow the court to assess whether attorney-client privilege applies to each entry on the log. . . . Even assuming that BDO's position statements are admissible evidence, they do not provide enough information for the court to determine whether specific items on the log are actually privileged.")

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

Chapter: 56.6
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("'The privilege log itself does not state that the cases were in active litigation. However, that is a reasonable inference. Moreover, Fluidmaster represents that the cases were in active litigation and Plaintiffs do not dispute that assertion.'")

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

Chapter: 56.6
Case Name: Portland Pipe Line Corporation v. City of South Portland, No. 2:15-cv-54-JAW, 2016 U.S. Dist. LEXIS 124950 (D. Me. Sept. 8, 2016)
("I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs' counsel's representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs' counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.")

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

Chapter: 56.6
Case Name: Portland Pipe Line Corporation v. City of South Portland, No. 2:15-cv-54-JAW, 2016 U.S. Dist. LEXIS 124950 (D. Me. Sept. 8, 2016)
("I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs' counsel's representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs' counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.")

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

Chapter: 56.6
Case Name: Heisenger v. Cleary, X04HHDCV126049497S, 2014 Conn. Super. LEXIS 1835 (Conn. Super. Ct. July 29, 2014)
("The deponent is ethically bound to protect and preserve the confidentiality of privileged communications. That necessarily requires that the deponent first identify what documents are subject to the privilege, and what documents are not privileged. The court has no reason to doubt the representations of an officer of the court that there is a good faith basis for the claim of attorney client privilege for the withheld documents."; "Nonetheless, the preferred practice in modern discovery is to provide a privilege log summarizing the essentials of the withheld documents so that, if necessary, the question of the applicability of the privilege to particular documents can be reviewed.")

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

Chapter: 56.6
Case Name: National Union Fire Ins. Co. of Pittsburgh, Pa. v. Donaldson Co., Inc., Civil No. 10-4948 (JRT/JJG), 2014 U.S. Dist. LEXIS 85621, at *27-28 (D. Minn. June 24, 2014)
(analyzing work product issues in connection with a first-party insurance bad faith claim; "Because Donaldson's privilege logs list both the source of the document and to whom the document was sent, National Union should be able to discern from the logs whether a document was shared with an individual outside the attorney-client privilege. Thus, to the extent that Rule 34(b)(2)€(i) applies to documents listed in a privilege log, Donaldson's privilege logs adequately organize the withheld documents. Furthermore, the Magistrate Judge did not clearly err in concluding generally that the amount of detail and descriptions in the privilege logs are sufficient.")

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

Chapter: 56.7
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: 56.7
Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *10 (D. Conn. Sept. 2, 2014)
("Although in its reply brief defendant's counsel 'represents to the Court that Plaintiff's Bates 47-49 and 50 were communicated to it for the purpose of giving information to the undersigned to enable counsel to give sound and informed legal advice[,]' . . . , Mr. Schulman's supporting affidavit does not attest to this.")

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

Chapter: 56.7
Case Name: Gomez v. Metro. Dist., Civ. No. 3:11cv1934 (JBA), 2013 U.S. Dist. LEXIS 168707, at *13, *13 14 (D. Conn. Nov. 27, 2013)
("Defendant had the burden to present sufficient facts to Magistrate Judge Margolis and to this Court to sustain its claim of attorney-client privilege, and this burden could not be discharged by conclusory assertions in its legal memorandum. Rather, Defendant was required to present competent evidence in the first instance to support its claim of privilege."; "Defendant did not submit an affidavit from Attorney Ryan to provide context regarding her notes to support its privilege assertion. Context was particularly important here, because Magistrate Judge Margolis determined that all ten pages of Attorney Ryan's handwritten notes from the relevant meeting reflected 'simply fact finding' rather than containing 'some degree of [legal] analysis,' and thus were not privileged. . . . Defendant did not object to this determination beyond asserting that the four lines of text from these ten pages were privileged. But it adduced no evidence to discharge its burden. Defendant continues to simply argue that the four lines of text are actually privileged, rather than attempting to prove that it is so.")

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

Chapter: 56.7
Case Name: Gomez v. Metro. Dist., Civ. No. 3:11cv1934 (JBA), 2013 U.S. Dist. LEXIS 168707, at *13, *13 14 (D. Conn. Nov. 27, 2013)
("Defendant had the burden to present sufficient facts to Magistrate Judge Margolis and to this Court to sustain its claim of attorney-client privilege, and this burden could not be discharged by conclusory assertions in its legal memorandum. Rather, Defendant was required to present competent evidence in the first instance to support its claim of privilege."; "Defendant did not submit an affidavit from Attorney Ryan to provide context regarding her notes to support its privilege assertion. Context was particularly important here, because Magistrate Judge Margolis determined that all ten pages of Attorney Ryan's handwritten notes from the relevant meeting reflected 'simply fact finding' rather than containing 'some degree of [legal] analysis,' and thus were not privileged. . . . Defendant did not object to this determination beyond asserting that the four lines of text from these ten pages were privileged. But it adduced no evidence to discharge its burden. Defendant continues to simply argue that the four lines of text are actually privileged, rather than attempting to prove that it is so.")

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

Chapter: 56.7
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("To meet its burden in this regard, the Army provides the Buchholz Declaration and the Vaughn index. The Vaughn index identifies all Category B documents withheld pursuant to the attorney-client privilege, as well as the parties to the communication, date, and mode of communication. Together, the Vaughn index and Buchholz Declaration provide the subject-matter of the communications and that the subject-matter is confidential. As a result, the Army has identified the documents in question with reasonable specificity, as required for an independent assessment of the claimed exemption, and there is no reason to question the Army's good faith in this regard.")

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

Chapter: 56.7
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("In its declarations and Vaughn index, the Army has demonstrated with reasonable specificity that the withheld documents include no reasonably segregable information beyond that already released, and there is no reason to question the Army's good faith in this regard. See Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1117, 377 U.S. App. D.C. 460 (D.C. Cir. 2007) (agencies entitled to presumption they complied with obligation to disclose reasonably segregable material); Armstrong v. Executive Office of the President, 97 F.3d 575, 578, 321 U.S. App. D.C. 118 (D.C. Cir. 1996) (where government declarations demonstrate with reasonable specificity why documents cannot be further segregated, there is no need for in camera review).")

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

Chapter: 56.7
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 381 (W.D. Va. 2012)
("West's affidavits add little evidence to support the claimed privilege. West stated that he has reviewed the withheld emails. West also stated that he 'consider[ed] the emails to be protected by the attorney-client privilege or by the work[ ]product doctrine.' That, however, is the court's determination to make. West also has stated: 'In my view, I was acting primarily in a legal capacity in investigating and formulating EQT's response to Mr. Gilbert.' Such conclusory statements, however, do not meet the proponent's burden. Again, it is important to note what West's affidavits do not contain. West did not offer any evidence that these emails related to requests for or the rendering of legal advice. Instead, West stated only that the inquiries 'presented legal issues, and EQT anticipated that litigation could ensue.' It is likely this could be said of any of West's work for EQT Production.")

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

Chapter: 56.7
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007)
("First, the party asserting work-product protection bears the burden to show that the 'work product' was prepared in anticipation of litigation. . . . Second, in order to meet this burden, the proponent of the privilege must 'come forward with a specific demonstration of facts supporting the requested protection,' preferably though affidavits from knowledgeable persons. Suggs v. Whitaker, 152 F.R.D. 501, 505 (M.D.N.C. 1993). See also North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 515 (M.D.N.C. 1986).")

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

Chapter: 56.7
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 273 (E.D. Va. 2004)
(criticizing Rambus' privilege log and its memorandum supporting the log; explaining that "the three page supporting memorandum filed by Rambus was a general boilerplate recitation of the attorney-client privilege and the work-product doctrine. . . . Hence, the memorandum in no way remedied the inadequacy of the privilege log.")

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

Chapter: 56.8
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("Plaintiffs assert in their reply brief that Defendants are required to support their privilege assertions with affidavits affirming the statements in the privilege log and that the contents of the withheld communications are privileged. Plaintiffs claim that the unsworn statements in the privilege log and Defendants' brief are insufficient evidence, and that without supporting affidavits, Defendants' claim of privilege necessarily fails."; "However, none of these cases support Plaintiffs' position that a party defending against a motion to compel must submit sworn statements in support of an asserted privilege.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN
Comment:

key case


Chapter: 56.8
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: 56.8
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: 56.8
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 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
2018-04-17 Federal PA
Comment:

key case


Chapter: 56.8
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 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
2018-04-05 Federal PA
Comment:

key case


Chapter: 56.8
Case Name: Terry v. Register Tapes Unlimited, Inc., No. 2:16-cv-0806-WBS-AC, 2018 U.S. Dist. LEXIS 50846 (E.D. Cal. March 27, 2018)
(finding that defendant's log was inadequate, and ordering a better log; "Because the privilege log fails to provide the information needed to determine whether the privilege applies to any particular communication (or even to the class of communications identified), it fails to satisfy Rule 26(b)(5). As to this class of documents, defendant will be provided the opportunity to submit a revised privilege log to plaintiff. The revised privilege log must comply with Rule 26(b)(5) and, together with any supporting declaration, provide the information necessary to make a prima facie showing that any withheld documents constitute confidential attorney-client communications: identification of the communication by type and date; the identities of all parties to the communication; and the existence of an attorney-client relationship between the parties to the communication. Id. at 665. Assuming this showing is made, the court will uphold the assertion of privilege regardless of the content of the document(s) unless plaintiff demonstrates, on a motion to compel, that a particular communication was not confidential or the privilege was waived or otherwise does not apply. Id.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal CA

Chapter: 56.8
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: 56.8
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: 56.8
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: 56.8
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: 56.8
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)
("[T]he party asserting work product protection bears the burden to show that the material at issue was prepared in anticipation of litigation by coming 'forward with a specific demonstration of facts supporting the requested protection,' preferably through affidavits from knowledgeable persons.")

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

Chapter: 56.8
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("Additionally, BDO has not presented affidavits or other evidence that would allow the court to assess whether attorney-client privilege applies to each entry on the log. . . . Even assuming that BDO's position statements are admissible evidence, they do not provide enough information for the court to determine whether specific items on the log are actually privileged.")

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

Chapter: 56.8
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("[C]ourts will reject claims for work product protection 'where the 'only basis' for the claim is an affidavit containing 'conclusory statement[s].'")

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

Chapter: 56.8
Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs also argue that Wells Fargo improperly designated as confidential documents containing only factual information. Plaintiffs cite as exemplars three charts . . . to demonstrate that many of the allegedly privileged documents are spreadsheets summarizing trust data and are therefore factual business documents that should be disclosed."; "The relevant inquiry with respect to Exhibits 11 (and the related chart in Exhibit 14), 15, and 16 is whether these charts were created for the purpose of obtaining legal advice or whether they were otherwise created in the ordinary course of Wells Fargo's business. . . . Based on the current record, Wells Fargo has not met its burden of establishing that these charts should be withheld. Exhibit 11 (and Exhibit 14) appears to be a chart that was prepared in the ordinary course of Wells Fargo's business. Indeed, the Court suspects that this document (at least in large part) was generated by Wells Fargo as part of its management of the trusts, not by counsel. It would be surprising that a lawyer would have been responsible for inputting this sheer volume of data into a spreadsheet. Similarly, Exhibit 15 is a compilation of repurchase and loan file review information that appears to have been extracted from a database. In its February 7, 2017 submission, Wells Fargo represented that it has already produced the non-privileged portions of Exhibit 15 but does not indicate what those portions were. Regarding Exhibit 16, Wells Fargo asserts that it consists of documents and communications shared between Wells Fargo and its attorneys in order for counsel to determine whether and EOD had occurred. But it is not clear what the role of counsel was in preparing Exhibit 16."; "[T]he Court will reserve decision pending further submission by Wells Fargo."; "Wells Fargo shall submit a declaration of a person with knowledge to show that these charts were created for the purpose of obtaining legal advice, not for the purpose of conducting its ordinary business. The declarant should describe, in detail, each column in each of the charts and explain whether the information in each column reflected attorney advice or was compiled for the purpose of obtaining legal advice.")

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

Chapter: 56.8
Case Name: Rao v. The Bd. of Trustees of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298 (N.D. Ill. Oct. 20, 2016)
(holding that plaintiff's wife did not share a common interest with her husband, and was not within the privilege protection as her husband's agent, and had admitted that lawyer/children were not acting as her lawyer during the communications; inexplicably not addressing work product protection; "Plaintiff seeks two investigative files relating to internal investigations of University of Illinois employees that were conducted by outside counsel."; "As Sandra [Sandra T.E. v. South Berwyn School District 100, 600 F.3d 612 (7th Cir. 2009)] makes clear, the party seeking to maintain protection on the basis of work product privilege must meet its burden of showing that the documents in question deserved protection. In that case, the law firm provided the court with affidavits and other evidence regarding the nature of the law firm's representation. Conversely, the Court here has not been provided with any evidence regarding the contents of the investigative files; Defendants have not produced a single affidavit, an engagement letter, or even a general description of the documents that they seek to protect. The Court has no way to determine whether the protection Defendants seek is appropriate, which is Defendants' burden as the party asserting work product protection. The Court recognized in its minute order that 'many of the materials relating to the internal investigation by outside counsel may be protected from discovery by the attorney-client privilege or the work product doctrine. . . . The Court invited Defendants to attempt to meet their burden of establishing that any such materials deserved such protection, or identifying with specificity which documents they were protecting. Instead, Defendants made an unsubstantiated blanket claim of privilege over entire files."; "Finally, hand in glove with the second issue, the party seeking to avoid discovery in Sandra produced a privilege log. . . . The Court has not seen a privilege log regarding the investigative files either. Again, this failure leaves the Court completely unable to appropriately assess the validity of the Defendants' claims of work product."; "In short, the Defendants have simply not provided either the Plaintiff or the Court with any of the information necessary to make an informed decision on whether the contents of the investigative files should be withheld from discovery. Instead, Defendant waited until the eve of the close of the discovery to make a claim of privilege over the entirety of two investigative files that have not been described in anything but the broadest possible terms. They did so despite knowing since at least mid-July 2016, that Plaintiff would likely seek discovery of these investigative files, and that the Court was likely to have to rule on this issue. From the record before this Court, the Defendants did not take any affirmative steps to review the investigative files at that time to determine which portions were protected and which were not.")

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

Chapter: 56.8
Case Name: Intellectual Ventures I LLC v. Capital One Financial Corp., Case No. PWG-14-111, 2016 U.S. Dist. LEXIS 140393 (D. Md. Oct. 11, 2016)
(in an opinion by Judge Grimm, holding that plaintiff's log and failure to provide an affidavit triggered a waiver; "As I discussed with the parties at the June 30 status conference, this District's Discovery Guidelines and case law identify affidavits as the primary means of establishing a factual basis for the assertion of privileges. . . . Capital One is correct that Intellectual Ventures could have provided affidavits in the two weeks prior to the August 19 status conference. Intellectual Ventures seems to imply that Capital One's request for permission to file a Motion to Compel triggered a duty to respond to the filing that somehow either extinguished its burden to provide a factual basis supporting its privilege claims or shifted the burden of production to Capital One. . . . But responding to Capital One's filing and buttressing the factual foundation for the assertion of privilege was not an either-or proposition. Intellectual Ventures could and should have both defended the adequacy of its privilege log in a responsive filing -- which it largely failed to do -- and also continued to bolster the factual basis either by affidavit -- which the Guidelines and case law highlighted and I personally underscored as the preferred mechanism --or, alternatively, by providing more fulsome explanations in its privilege log. It elected none of the above. Instead, Intellectual Ventures chided Capital One for its 'unwillingness to accept the fact that the Intellectual Ventures companies understand the difference between 'business' and 'legal' matters.'. . . Intellectual Ventures missed the point. It was Intellectual Ventures's burden to provide a factual basis to support its privilege claims, not Capital One's burden to establish the absence of a factual basis. Neither Capital One nor the Court need 'accept' Intellectual Ventures's ipse dixit that it 'understand[s] the difference between 'business' and 'legal' matters, and ha[s] acted in good faith in preparing and reviewing the privilege log.'")

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

key case


Chapter: 56.8
Case Name: Pensler v. Fox Television Stations, Inc., No. 1-14-2694, 2016 Ill. App. Unpub. LEXIS 1204 (Ill. App. 1d June 14, 2016)
(describing the control group standard in Illinois, but finding it unnecessary to decide whether the communications deserve privilege under that standard; "There are no averments in the Schwab affidavit that state that he initiated the subject emails for the purpose of obtaining legal advice and that he did so in confidence with the intention that the confidence would remain. The averment that Schwab ["WLFD Executive Producer of Special Projects for Fox News Chicago"] and Fowler 'consulted with in-house counsel from time to time to determine legal risk and strategy associated with the content of Special Projects,' does not constitute evidence that these emails were initiated for the purpose of seeking legal advice: the term 'from time to time' is not specific to these emails and could relate to communications over a course of years. The term 'Special Projects' is not specific to this report and reasonably can be considered to include other projects that Schwab was involved with. The remainder of Schwab's affidavit is directed to his purported status as a member of the control group which is not relevant to whether these specific emails are privileged.")

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

Chapter: 56.8
Case Name: Bloomingburg Jewish Education Center v. Village of Bloomingburg, 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192 (S.D.N.Y. March 18, 2016)
(finding that defendant Town had not presented sufficient evidence to support privilege or work product protection for a communications between the Town and West End, described as "a public relations and communications strategy firm"; "The Town Defendants support their broad assertions of privilege solely with the following representations. In their opposition letter, the Town Defendants represent that West End was hired at the behest of counsel in the Lamm action to assist in litigation strategy after counsel 'determined a public relations firm would be useful in preparing for the litigation.' As an exhibit to their letter, the Town Defendants also provided the Court with an attorney declaration dated October 6, 2015 from David C. Holland, Esq., who served as their counsel in the Lamm action. . . . This declaration, which is just over two pages, is the Town Defendants' only factual support for their invocation of privilege.")

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

Chapter: 56.8
Case Name: Brinker v. Normandin's, Case No. 14-cv-03007-EJD (HRL), 2016 U.S. Dist. LEXIS 8411, at *3-4 (N.D. Cal. Jan. 22, 2016)
("Every single document designated as privileged was also labeled as work product, seemingly as a matter of course. Normandin recites legal standards . . . but makes no factual argument to support most of these work-product designations. The privilege log is too vague to make up for the deficiency in Normandin's portion of the DDJR [discovery dispute joint report]. For instance, Mark Normandin sent Paul Normandin an email about 'Gonzales' on February 4, 2015 -- Normandin asks the court to conclude from solely those facts that the email is protected work product prepared in anticipation of litigation or for trial. The court is not persuaded by the low degree of detail Normandin provides for most of its work-product designations.")

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

Chapter: 56.8
Case Name: Wellin v. Wellin, C.A. No. 2:13-CV-1831-DCN, C.A. No. 2:13-CV-3595-DCN, C.A. No. 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
("At the request of the undersigned, the Defendants filed a Supplemental Memorandum to provide further descriptive information regarding the above referenced document. Thereafter, in reply to the Plaintiffs' Supplemental Memorandum in support of their Motion to Compel Production of the documents under consideration, Defendants provided an affidavit from the Defendants' attorney, Johnathan T. Han-is, which clarified the nature of the above referenced document, providing information enabling the undersigned to understand the identity of the creator, sender, and recipient of the document."; "I conclude from the document that it contains the advice of counsel to his client regarding the manner in which to handle communications with a third party. As such, I conclude this document contains the impressions, opinions and advice of counsel to his client, and is protected by the attorney-client privilege.")

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

Chapter: 56.8
Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 U.S. Dist. LEXIS 157752 (D. Kansas Nov. 23, 2015)
("In this case, the Court has reviewed the sixteen privilege log entries challenged by Plaintiff and concludes that Defendant has established the elements of attorney-client privilege. The log indicates that the withheld emails, Word documents, or Excel documents were either authored by or sent to Defendant's counsel or Defendant's in-house counsel, and the subject of the communication was Plaintiff's allegations and Defendant's investigation. Although the log entries do not expressly state that the withheld emails and documents were for the purpose of seeking legal advice, Defendant attached the Affidavit of its counsel . . . In which counsel states that the materials set forth in Defendant's privilege log asserting attorney-client privilege 'were communications between counsel for [Defendant] and [Defendant] for the purpose of seeking legal advice.' Defendant has sufficiently established the attorney-client privilege applies to these documents.").

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

Chapter: 56.8
Case Name: Sun v. Ikea US West, Inc., Case No. 15-cv-01146-MEJ, 2015 U.S. Dist. LEXIS 150544 (N.D. Cal. Nov. 4, 2015)
(denying privilege and work product protection for an investigation of a injury in which a plaintiff was struck by a cart in a store; "Defendant's Incident Reporting System indicates the report was prepared in the normal course of business, within the scope of the employee's responsibilities to the company. Thus, Defendant's purpose in creating these incident reports determines whether the privilege applies."; "Defendant offers no such evidence, such as a redacted copy of the report showing it is labeled 'confidential,' or a declaration from someone with personal knowledge that the report was intended to be confidential, or a declaration from the employee stating that he knew the report was confidential at the time it was made. . . . Without more evidentiary support, the Court finds Defendant has failed to meet its burden of establishing the incident report was a confidential communication made in the course of an attorney-client relationship."; also denying work product protection).

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

Chapter: 56.8
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; analyzing communications between Ford and CRA; "With regard to Ford's assertion of privilege, specifically with regard to document number F0026222.1, the Court finds that Ford's description is sufficiently specific to support its assertion of privilege. The document is an email sent from CRA to seven individuals, three of which are attorneys, for legal review and comment on proposed revisions of a draft memorandum. . . . And while '[an] attorney receiving or providing privileged communication must be acting as an attorney and not as a business advisor'. . . The Court accepts Plaintiff's assertion that this email was sent for the purposes of obtaining legal advice. Therefore, the Court will deny Defendant's Motion with regard to this document.").

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

Chapter: 56.8
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; analyzing communications between Ford and CRA; "Even though the Defendant argues that these drafts are for business purposes and not for legal review, Defendant relies only on mere speculation in making that assertion. The Court has no reason to question CRA's assertion that these documents are privileged. Therefore, the Court will deny Defendant's Motion with regard to these documents.").

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

Chapter: 56.8
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; analyzing communications between Ford and CRA; "With regard to Ford's assertion of privilege, specifically with regard to document number F0026222.1, the Court finds that Ford's description is sufficiently specific to support its assertion of privilege. The document is an email sent from CRA to seven individuals, three of which are attorneys, for legal review and comment on proposed revisions of a draft memorandum. . . . And while '[an] attorney receiving or providing privileged communication must be acting as an attorney and not as a business advisor'. . . The Court accepts Plaintiff's assertion that this email was sent for the purposes of obtaining legal advice. Therefore, the Court will deny Defendant's Motion with regard to this document.").

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

Chapter: 56.8
Case Name: Alomari v. Ohio Dept. of Public Safety, 15a0630n.06, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
("[T]he privilege similarly covers all communications from the June 2010 meeting because its purpose was to acquire legal advice. Although Director Stickrath's testimony suggests that the primary purpose of the June 2010 meeting was to provide business advice instead of legal advice, the district court did not abuse its discretion in relying on the magistrate judge's determination, which credited Reed-Frient's affidavit, that the primary purpose of the meeting was to provide ODPS with legal advice.").

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

Chapter: 56.8
Case Name: Roberts Technology Group, Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015)
("As the Pennsylvania Superior Court recognized, 'this privilege attaches to communications made by corporate as well as individual clients.' Custom Designs [Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 2012 PA Super 33, 39 A.3d 372, 376 (Pa. Super. 2012)], 39 A.3d at 376 (2012). For a corporate employee to satisfy the third prong, he or she must establish communications were 'kept confidential . . . Made at the behest of counsel and with the goal of furthering counsel's provision of legal advice to the client.' Id., at 379. The claiming party can meet its burden by affidavit or counsel's testimony, but cannot simply assert the lack of evidence to the contrary.")

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

Chapter: 56.8
Case Name: Pacific Management Group v. Commissioner of Internal Revenue, Dkt. Nos. 6411-08 and consolidated cases, 2015 Tax Ct. Memo LEXIS 104, 109 T.C.M. (CCH) 1505 (T.C. May 26, 2015)
("'This Court has discretion in deciding how to determine whether a privilege has been properly claimed. The Court may require the parties to submit affidavits . . . And take testimony or receive evidence at trial or an evidentiary hearing.'")

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

Chapter: 56.8
Case Name: In re Baytown Nissan Inc. v. Gray, No. 01-14-00704-CV, 2014 Tex. App. LEXIS 12197 (Tex. Ct. App. Nov. 7, 2014)
(granting a writ of mandamus, and holding that the privilege did not protect communications between a lawyer for an automobile dealer and the general counsel of a dealer association; also finding that the association general counsel was not a "representative" of the dealer for work product purposes; "To properly assert a claim of privilege, a party must plead the particular privilege, produce evidence to support the privilege through affidavits or testimony, and produce the documents for an in camera inspection, if the trial court determines review is necessary.")

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

Chapter: 56.8
Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
(finding defendants' affidavits insufficient to justify privilege protection or allow defendants to retrieve one document claimed to be inadvertently produced out of 30,000 produced; analyzing the privilege protection issue for the inadvertently produced document; "Generally, a party meets its burden of asserting the attorney-client privilege 'when the party produces a detailed privilege log stating the basis of the claimed privilege for each document in question, together with an accompanying explanatory affidavit from counsel.'. . . To be sure, some courts have recognized that an affidavit alone may be sufficient to establish privilege.")

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

Chapter: 56.8
Case Name: Pate v. Winn-Dixie Stores, Inc., CV 213-166, 2014 U.S. Dist. LEXIS 151914 (S.D. Ga. Oct. 27, 2014)
(analyzing a work product protection for a slip-and-fall injury incident report; finding that the work product claim would be advanced if the defendant could prove that the incident reports were forwarded to counsel; "With that requirement in mind, the Court now examines Defendant's statement that '[a]fter [incident] reports are created, they are promptly provided to Winn-Dixie's corporate claims/risk management department, which in turn provides the report to defense counsel when litigation is imminent.'. . . This statement, if true, would support a showing that the incident report forms in this case were created for their potential use in future litigation."; "Thus, the Defendant has not produced any evidence, such as depositions or affidavits, showing that the incident report forms filled out by Winn-Dixie employees are created primarily so they can be used in potential litigation. While Defendant has stated that litigation was the motivating purpose for creating the forms in its Response to Plaintiff's Objections . . . This ipse dixit assertion alone will not satisfy Defendant's burden to show it is entitled to the protection of the work product doctrine.")

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

Chapter: 56.8
Case Name: Safety Text & Equip. Co. Inc. v. Am. Safety Util. Corp., 13 CVS 1037, 2014 NCBC 40, at *14, *15 (N.C. Super. Ct. Sept. 2, 2014)
("Some courts expressly presume that there has been no waiver until a party opposing privilege demonstrates a factual predicate for claiming waiver."; "Other courts, including the Fourth Circuit, implicitly presume the absence of waiver absent contrary evidence."; "The court concludes that this burden-shifting approach is consistent with North Carolina precedent and should be followed here. The approach prevents placing an initial heavy and unrealistic burden on the privilege holder to account for and disprove every possibility of waiver.")

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

Chapter: 56.8
Case Name: Ellis v. Arrowood Indem. Co., Civil Action No. 2:14-mc-00146, 2014 U.S. Dist. LEXIS 121913, at *19-20 (S.D. W. Va. Sept. 2, 2014)
("The burden is on Arrowood to provide sufficient information so that I may make an informed decision concerning the application of the work product doctrine. I may not grant blanket protection of these documents based on the scant information currently in the record. Accordingly, Arrowood's motion to quash with respect to this request is DENIED.")

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

Chapter: 56.8
Case Name: Bernstein v. Mafcote, Inc., Civ. No. 3:12CV311 (WWE), 2014 U.S. Dist. LEXIS 122269, at *10 (D. Conn. Sept. 2, 2014)
("Although in its reply brief defendant's counsel 'represents to the Court that Plaintiff's Bates 47-49 and 50 were communicated to it for the purpose of giving information to the undersigned to enable counsel to give sound and informed legal advice[,]' . . . , Mr. Schulman's supporting affidavit does not attest to this.")

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

Chapter: 56.8
Case Name: Williams v. Duke Energy Corp., Civ. A. 1:08-cv-00046, 2014 U.S. Dist. LEXIS 109835 (S.D. Ohio Aug. 8, 2014)
("Johnson's [Duke in-house lawyer] assertion in her declaration is that the Category A emails are 'a series of emails among counsel' that 'discuss the legal implications of undertaking certain steps following a decision by the PUCO' and 'the legal issues that might arise as a matter of contract law under certain scenarios.' These 'facts" are too skeletal for me to determine whether these emails were attorney-client communications.'")

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

Chapter: 56.8
Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)
("It is incumbent upon the proponent of the privilege to specifically and factually support the claim of privilege, usually through affidavit or other ex parte submissions, and an improperly or unsupported claim of privilege is the equivalent of no privilege at all.")

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

Chapter: 56.8
Case Name: Rank Group Ltd. v. ALCOA, Inc., 12 Civ. 3769 (VSB) (RLE), 2014 U.S. Dist. LEXIS 64508 (S.D.N.Y. May 9, 2014)
(finding an employee's unauthorized disclosure did not result in a waiver; "Here, the evidence submitted by Rank an Affidavit from a partner at Baker [Baker & McKenzie] and a Declaration from the former Latin American regional financial controller show by a preponderance that the disclosure was unauthorized and inadvertent. The affidavit produced establishes that Larrain Abascal, who was personally involved in Rank's privileged communications with Baker in May 2008, did not authorize the production of the information, and that there was no written evidence of anyone else having authorized such disclosure. The declaration from Borja also indicates there was no authority from Alusud Chile to forward the emails in question to anyone at Alcoa. Together, the sworn statements are enough to carry the burden of showing that the disclosure was unauthorized. They persuasively demonstrate that neither person who had the authority to make the disclosure did.")

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

Chapter: 56.8
Case Name: John Wiley & Sons, Inc. v. Book Dog Books, LLC, 13 Civ. 816 (WHP) (GWG), 2014 U.S. Dist. LEXIS 63168 (S.D.N.Y. May 7, 2014)
("But not all conversations between an attorney and a client are privileged. . . . To meet their burden of asserting the privilege, defendants were required to provide competent proof on this motion that each of the elements of the attorney-client privilege were met a task typically accomplished through sworn statements. . . . Having failed to provide any evidence or even argument on this point, defendants have not satisfied their burden of proving that the conversations between Smyres and Mooney are privileged. Accordingly, plaintiffs' motion must be granted for this reason alone.")

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

Chapter: 56.8
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; finding the work product doctrine inapplicable; "Defendant's Safety Management System ('SMS') Manual requires that an Internal Incident Investigation Report and an EIS Report are created after every incident, unless the incident is minor or insufficiently related to employment with the Defendant. . . . Further, company policy requires witnesses to make EIS Witness Statements by filling out preprinted forms as part of standard operating procedure."; essentially rejecting the company's general counsel's affidavit that the documents' creation was motivated by anticipated litigation)

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

Chapter: 56.8
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(focusing on the content of work product rather than a supporting affidavit; "To establish the applicability of the work product doctrine to such documents, it is not sufficient for a party to show only that an attorney or the attorney's agent generated the document. Corporate in-house counsel are 'often called upon to perform tasks that go beyond the traditional tasks performed by lawyers.'. . . Accordingly, 'each document must be perused to see whether the attorney was involved in rendering legal advice or if the document contains work product information.'"; "In making this inquiry, a court need not simply accept the parties' declarations. . . . Additionally, a court may scrutinize the content of the subject documents for analysis that 'hints at a focus on litigation.'")

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

Chapter: 56.8
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(finding that a company's report about alleged failures of a medical device did not deserve work product protection; "Defendants' Motions rely primarily upon the Passero Affidavit, the November 2004 Contract, and excerpts from Dr. Lehmann's deposition, rather than on the contents of the Report itself. The Court will consider each item in turn and then address other record evidence."; "Although the Passero Affidavit supports Defendants' claim that the Lehmann Report is protected work product, it does so in a conclusory, vague, and unconvincing manner, generally employing labels rather than specific facts."; "The affidavit does not, however, describe how the report was used or intended to be used to aid Defendants in preparing for trial or anticipated litigation. Moreover, the affidavit fails to identify any specific case, claim, or incident, or the timing thereof."; "The November 2004 Contract is similarly conclusory and unpersuasive. Although it does show that the Report was prepared pursuant to this separate contract, it adds little to the Report itself. For example, like the Report, it contains no reference to any particular claim, anticipated or otherwise, or any particular set of facts that caused Defendants concern over potential litigation. Although the November 2004 Contract does affix the conclusory label '[i]n anticipation of litigation' in connection with the services to be provided, the Court finds nothing else in the contract to support this label."; also finding that the report did not deserve attorney-client privilege protection)

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

Chapter: 56.8
Case Name: McAdam v. State Nat'l Ins. Co., Case No. 12-cv-1333 BTM-MDD, 2014 U.S. Dist. LEXIS 37808, at *12 (S.D. Cal. Mar. 21, 2014)
(analyzing documents in a first party insurance context; "[D]eclarations as to the existence, nature, and scope of an attorney-client relationship may provide sufficient evidence of the relationship even in the absence of, e.g., a written retainer agreement. . . . Yet no such declarations were filed; nor did State National request more time to file them. Instead, counsel submitted over six hundred pages of documents in camera . . . unaccompanied by a declaration even though the Court was under no obligation to conduct an in camera review in the absence of declarations." (footnote omitted))

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

Chapter: 56.8
Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *7 (N.D. Tex. Feb. 27, 2014)
("The proponent must provide sufficient facts by way of detailed affidavits or other evidence to enable the court to determine whether the documents constitute work product. . . . Although a privilege log and an in camera review of documents may assist the court in conducting its analysis, a party asserting the work product exemption still must provide 'a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure.'" (citation omitted))

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

Chapter: 56.8
Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *7-8 (N.D. Tex. Feb. 27, 2014)
("Defendants have failed to meet their burden of proving that the documents at issue are entitled to work product protection. Defendants describe the sought-after documents as 'text messages discussing this lawsuit,' but they do not offer affidavits or other documentation to support their assertion of the work product privilege.")

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

Chapter: 56.8
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *17 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "[T]he fact that there are legal implications to a decision is not enough to give rise to attorney-client privilege where no legal advice is sought or provided, and not enough to give rise to work-product protection where there is no evidence the document was prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 56.8
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: 56.8
Case Name: Bonnell v. Carnival Corp., Case No. 13-22265-CIV-WILLIAMS/GOODMAN, 2014 U.S. Dist. LEXIS 22459, at *16, *5-6 (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; "Having heard from the parties and having reviewed the record, including the affidavit of Suzanne Brown Vazquez (Carnival's Director of Guest Claims and Litigation Counsel), I see no reason to reach a different conclusion in this case. As Ms. Vazquez's affidavit states, the incident reports are not prepared for every reported incident occurring on a Carnival vessel. Rather, they are only prepared '[w]hen a passenger reports an incident resulting in injury which requires treatment beyond basic first aid,' because, in Carnival's experience, those incidents typically result in litigation. . . . The incident reports are then provided to Carnival's counsel. . . . In this case, Ms. Vazquez explains, the incident report 'was created to assist Carnival Cruise Lines' claims department and defense counsel in anticipation of litigation,' because Carnival believed that litigation was likely to ensue '[i]n light of how the incident occurred and the nature of the medical care provided.'" (internal citation omitted))

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

Chapter: 56.8
Case Name: MediaTek Inc. v. Freescale Semiconductor, Inc., Case No. 4:11-cv-05341 YGR (JSC), 2013 U.S. Dist. LEXIS 147032, at*12-13, *13-14, *14, *15-16, *16 (N.D. Cal. Oct. 10, 2013)
(finding that the privilege did not protect documents created by a consultant hired by plaintiff's lawyer, even assuming that the agent was the "functional equivalent" of an employee; "For purposes of this Order, the Court will assume that the third-party consultant qualifies as an 'agent of the attorney' or a 'functional employee.' But even assuming the third-party consultant is an 'agent' or 'functional employee' of MediaTek for purposes of the privilege, MediaTek has not carried its burden of demonstrating that the documents are privileged, that is, that they were created primarily or predominantly to facilitate legal advice."; "First, there is no evidence that MediaTek's counsel ever received or reviewed the reports. According to MediaTek's own privilege log, the reports were not sent to counsel; rather, they were distributed only to Mr. Yang [plaintiff's IP manager] and MediaTek's Intellectual Property Division. . . . [T]here is no evidence that MediaTek's general counsel or any attorney had possession of the report, reviewed it, or relied upon it. In addition, although there are multiples drafts of the report, there is no evidence that counsel reviewed any of the drafts."; "Mr. Yang's conclusory testimony that the 'report was necessary to enable MediaTek's attorneys to render effective legal advice' and that the legal team --'supported by' the third-party consultant -- evaluated the patents, is insufficient given that the privilege log demonstrates that the report was never disseminated to counsel."; "Second, the context in which the report was prepared and the language found in the report itself do not support a finding that the report was prepared because of a need for legal advice or primarily to facilitate legal advice. The report was commissioned in the context of MediaTek's decision as to whether to purchase certain patents, a business purpose. That such a decision always involves legal as well as business considerations, and that such considerations are intertwined, does not mean that every document prepared to assist with that decision is protected by the attorney-client privilege, especially where, as here, there is no evidence that the report was shared with counsel. . . . [T]he Court does not find that the report was actually reviewed by legal counsel in light of the failure of the privilege log to identify even one attorney as a recipient."; "There is also nothing in the language of the report, or any of the drafts, which even hints that it is intended to be relied upon by counsel to render legal advice. Instead, it is a brief, technical document prepared by non-attorneys that identifies key claim elements of the patents under consideration and identifies additional areas for research.")

Case Date Jurisdiction State Cite Checked
2013-10-10 Federal CA B 5/14

Chapter: 56.8
Case Name: Elat v. Ngoubene, Civ. Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 116275, at *12-13 (D. Md. Aug. 16, 2013)
("If, after this has been done, the requesting party challenges the sufficiency of the assertion of 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. If it makes this showing, and the requesting party still contests the assertion of privilege/protection, then the dispute is ready to submit to the court, which, after looking at the evidentiary support offered by the asserting party, can rule on the merits of the claim or order that the disputed documents be produced for in camera inspection.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal MD B 4/14

Chapter: 56.8
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: 56.8
Case Name: Jackson v. Deen, Case No. CV412-139, 2013 U.S. Dist. LEXIS 65814, at *44 (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; "Plaintiff insists that the documents Gerard [outside counsel, who had both law-related and human resources responsibilities] 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.")

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

Chapter: 56.8
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: 56.8
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 871 (Tex. Ct. App. 2013)
("Metzger [Bank's lawyer] stated that he had reviewed the documents described in item numbers 1 through 54, 490 through 513, and 531 through 637 of the privilege log. He also identified the various senders and recipients of the documents as representatives of Metzger & McDonald who were assisting in the performance of professional legal services for the Bank, or persons employed by the Bank 'and/or were representatives of the Bank,' and explained why they were entitled to receive confidential communications. He also stated that he was familiar with the definition of 'work product' included in Rule 192.5. Finally, Metzger expressed his opinion that, applying this definition of 'work product,' the documents corresponding to the item numbers of the privilege log referred to in his affidavit are 'material prepared or mental impressions developed in anticipation of litigation or for trial by or for [the Bank] or its representatives, or a communication made in anticipation of litigation or for trial between [the Bank] and its representatives or among its representatives.'"; "Mouse's [outside lawyer for bank] affidavit was in the same form as Metzger's and contained similar information pertaining to the documents corresponding to item numbers 55 through 437 of the privilege log. He identified certain senders and recipients of the documents and explained their relationship to KRCL [outside lawyers for bank], the Bank, or other entities and explained why they were entitled to receive privileged communications. He also stated that he was familiar with the definition of 'work product' included in Rule 192.5. In his opinion, Mouse stated further, the documents corresponding to the item numbers referred to in his affidavit are 'material prepared or mental impressions developed in anticipation of litigation or for trial by or for [the Bank] or its representatives, or a communication made in anticipation of litigation or for trial between [the Bank] and its representatives or among its representatives.'"; "We conclude that through the affidavits of Reed [Bank Executive Vice President], Metzger, and Mouse, Relators established a prima facie case that the documents specifically mentioned in the affidavits were protected from discovery by the work product privilege.")

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

Chapter: 56.8
Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 428 (S.D.N.Y. 2013)
("Such showings must be based on competent evidence, usually through affidavits, deposition testimony, or other admissible evidence.")

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

Chapter: 56.8
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 868 (Tex. Ct. App. 2013)
("The mere listing of a specific privilege in a response or a privilege log does not prove that privilege. . . . Therefore, in addition to the privilege log, the party resisting discovery must establish a prima facie case for the privilege by testimony or affidavit.")

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

Chapter: 56.8
Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 41 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "Even assuming Waldman's [plaintiff's FDA consultant] log remains insufficient to enable ChemWerth to assess its claims of privilege, this court finds that any deficiencies have been remedied by the affidavits submitted by Bryan in opposition to the motion to compel.")

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

Chapter: 56.8
Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 718-19, 719, 720-21 (E.D. Pa. 2013)
(finding that debtor's principle's son was outside the privilege protection; relying on the doctrine of judicial estoppel to reject the father's and son's affidavits, which contradict the father's earlier testimony that his son was not involved in the issues; "Defendants demand production of communications made in the presence of Mr. Chopivsky III. To reiterate, he is neither a party to this litigation nor a principal of the Debtor; he is the son of George Chopivsky, Jr., the Debtor's principal. . . . the Plaintiff insists that Mr. Chopivsky, III's presence during certain discussions does not waive the privilege. The attorney client privilege survives, says Plaintiff, because he is the agent of the Debtor."; "To demonstrate that Mr. Chopivsky III was the Debtor's agent, the Plaintiff offers the affidavit of his father, Mr. Chopivksy, Jr., as well as that of Mr. Chopivsky, III. The affidavit of Mr. Chopivksy Jr., the Debtor's principal, is dated July 12, 2013. It explains that when he was travelling and could not attend meetings, Mr. Chopvisky Jr. would rely on his son to handle business and legal matters relating to the Debtor. . . . The affidavit of his son is also dated July 12, 2013 and says essentially the same things. It talks of his working closely with his father, with his father's request that he participate generally in communications with bankruptcy counsel, and to his reviewing and editing of draft documents prepared by the Debtor's counsel. . . . Once Mr. Chopivsky III decided to bid on the Debtor's assets, he obtained separate counsel. . . . Both father and son explain that the son's participation was necessary to the successful prosecution of the bankruptcy case."; "This explanation, however, is sharply at odds with Mr. Chopivsky Jr.'s testimony in his September 2012 deposition."; "The general evasiveness of Mr. Chopivsky, Jr.'s original deposition testimony cannot be reconciled with the certainty of his later attestations. Over a ten month period, Chopivksy Jr.'s memory went from not remembering to what extent his son was involved in the Debtor's operation (or why) to complete clarity on that question. He testified to specifically requesting that his son be included in correspondence relating to the Debtor. He regularly included his son as an agent of the Debtor on correspondence with bankruptcy counsel. . . . This clarity comes at a time when it is in the Plaintiff's best interest to remember events just this way. The dichotomy is so striking as to be distressingly suggestive of intentional falsehood. . . . It does not strike the Court as a coincidence that Chopivsky Jr. recharacterized his son's role in the company when the Defendants asked for discovery of information which included the son. This change appears to have been motivated by a desire to withhold adverse information and not, as represented, to preserve a privilege. That reflects bad faith on the Plaintiff's part. In the Court's view, the appropriate way to address this misconduct is to estop Mr. Chopivsky Jr. from arguing that his son is an agent of the Debtor for purposes of maintaining the privilege.")

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

Chapter: 56.8
Case Name: Galvan v. Mississippi Power Co., Civ. A. No. 1:10CV159-KS-MTP, 2012 U.S. Dist. LEXIS 165558 (S.D. Miss. Nov. 20, 2012)
January 9, 2013 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 56.8
Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159 KS MTP, 2012 U.S. Dist. LEXIS 165558, at *7 n.3 (S.D. Miss. Nov. 20, 2012)
(holding that a root cause analysis did not deserve work product protection, because the party did not support the work product claim; "'There is no factual information submitted to support the work-product claims, such as an affidavit, deposition testimony, or other document.")

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

Chapter: 56.8
Case Name: In re Plasma Derivative Protein Therapies Antitrust Litig., Nos. 09 C 7666 & 11 C 1468, 2012 U.S. Dist. LEXIS 159368, at *10-11 (N.D. Ill. Nov. 7, 2012)
("Baxter has argued that the document is privileged, and to support its claim it has offered a declaration from Ms. Ladone explaining that the attachment, written by her, was 'a draft set of key messages for an upcoming investor conference.'. . . Ms. Ladone states that she wrote the document 'in response to an earlier communication by Ms. Lichtenstein [Baxter's General Counsel at the time] requesting a legal review of Baxter's communications for the upcoming investor conference.'. . . She further states that she wrote the email and the attachment 'for the purpose of seeking legal advice from and discussing legal issues with senior in-house counsel about the messages we could convey to investors at the upcoming conference.'. . . But this purpose is not apparent from the face of the document or the email. On its face the document appears to be drafted and circulated for primarily a business purpose - namely, to get all the potential players on the same page as to how to respond to inquiries at the upcoming investor conference. There is nothing in the body of the email or the document - other than the inclusion of lawyers on the distribution list - to suggest that Ms. Ladone was soliciting legal advice. Ms. Ladone's self-serving declaration, drafted more than five years after the fact, is not enough to trigger a privilege that clearly did not exist when the document was created.")

Case Date Jurisdiction State Cite Checked
2012-11-07 Federal IL B 7/13

Chapter: 56.8
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09 2051 MD ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *73 (S.D. Fla. Oct. 18, 2012)
("This conclusion is supported by the Affidavit of Donald L. Bjerke, Ph.D., a principal scientist in the Product Safety and Regulatory Affairs Department in the Beauty Care Division at P&G, which has been submitted to the undersigned on an ex parte basis. Dr. Bjerke's Affidavit makes clear that the email in question was generated as part of his completion of a task for the P&G legal department related to litigation. Thus, although the Plaintiffs are correct when they state that 'non-attorney impressions are not protected work product,'. . . the carrying out of tasks at the behest of legal counsel, or the summarization of legal advice, even if done by a non-attorney for purposes of disseminating that advice to other corporate employees[,] is clearly protected, as is the case of the document authored by Dr. Bjerke.")

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

Chapter: 56.8
Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *28 (W.D. Va. June 20, 2012)
(holding that a plaintiff claiming that defendant had waived the privilege did not establish that privileged documents were actually disclosed to a third party; "Finally, the court is constrained to conclude that the privilege has not been waived. While Carnell is of the belief that the documents at issue were likely provided to Robert Owens, DRHA has submitted sworn affidavits which confirm that the documents were not submitted for Owens' review. In the absence of any basis to question the truthfulness of the affidavits, the court must conclude that the attorney-client privilege has not been waived.")

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

Chapter: 56.8
Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *26-27 (W.D. Va. June 20, 2012)
("Additionally, based on the affidavit submitted by DRHA, the court also concludes that the attached documents drafted by Wasson are protected by the attorney-client privilege, since the affidavit indicates that the documents were written at Byrnes' request, for the purpose of assisting counsel in giving advice to DRHA's Board of Commissioners. See Upjohn, 449 U.S. at 394-395 (holding that communications were protected by the attorney-client privilege since they 'were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel'); In re Allen, 106 F.3d at 607")

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

Chapter: 56.8
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: 56.8
Case Name: King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. LEXIS 54407, at *5 (W.D. Va. June 2, 2010)
(holding that under Federal Rule of Evidence 502 a litigant's inadvertent disclosure did not result in a waiver; "I have carefully reviewed the document, including the Four Pages in dispute. While the privileged nature of the Four Pages is not apparent solely on the words used, based on the extrinsic evidence that Purdue has submitted, and the context of the document, I find that the Four Pages are privileged as attorney client communication and attorney work product.")

Case Date Jurisdiction State Cite Checked
2010-06-02 Federal VA B 4/13

Chapter: 56.8
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *11-12 (E.D. Va. April 13, 2010)
("The party seeking protection must make this showing '"with a specific demonstration of facts supporting the requested protection," preferably through affidavits from knowledgeable persons.' Id. [RLI Insurance Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 746 (E.D. Va. 2007)] (quoting Suggs v. Whitaker, 152 F.R.D. 501, 505 (M.D.N.C. 1993)).")

Case Date Jurisdiction State Cite Checked
2010-04-13 Federal VA

Chapter: 56.8
Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 376, 376 n.33 (4th Cir. 2009)
("We find that Fawcett's ["the USPTO's FOIA Officer"] declaration, coupled with the Vaughn index descriptions, support the Agencies' claim of attorney-client privilege for the challenged documents. Descriptions of the documents withheld or redacted pursuant to the attorney-client privilege, for example, include: 'Employee (attorney) discussion about the potential for a lawsuit by RIM regarding the time it took to perform the reexamination made in anticipation of litigation' . . . ; 'Internal Agency discussion between Agency Solicitors and Examiners regarding proposed Agency action on pending re-examination' . . .; 'Employee discussion regarding merger of a proceeding.' . . .; 'Attorney-client communication in the form of legal advice provided by the General Counsel and an Associate Solicitor to drafters of Agency response were redacted. Also redacted were comments made by Agency employees concerning proposed content of letter.'")

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

Chapter: 56.8
Case Name: The Christian Coalition Int'l v. United States, No. 2:01CV377, 2002 U.S. Dist. LEXIS 11427, *8-9 (E.D. Va. May 31, 2002)
("The government contends that the privilege log issued by the plaintiff for asserting the attorney/client privilege is inadequate because it does not identify various individuals in the log. At the hearing, the Court directed the plaintiff to certify under oath if the individuals named in the privilege log were an officer/employee of The Christian Coalition International or an individual protected by attorney/client privilege. On February 14, 2002, a certification under oath was received and filed by the Clerk from Alan P. Dye, Esq., counsel for The Christian Coalition International . . . This document certifies that the individuals identified in the privilege log were officers or employees or otherwise covered by the attorney/client privilege except for six documents identified in the certification for which the plaintiff withdrew the privilege. The Court is satisfied that the privilege log, as supplemented by the certification under oath, is sufficient to withstand the government's motion to compel.")

Case Date Jurisdiction State Cite Checked
2002-05-31 Federal VA

Chapter: 56.8
Case Name: Smathers v. GBA Assocs. Ltd. P'ship, 55 Va. Cir. 73, 77-78 (Va. Cir. Ct. 2001)
("GBA, as the proponent of the privilege, has the burden of establishing that the challenged documents were in fact prepared in anticipation of litigation."; finding that GBA had met its burden by providing an affidavit from a lawyer in a firm that had represented GBA, which stated that "all of the documents listed on GBA's privilege log were prepared in anticipation of, and in hopes of avoiding, imminent litigation")

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

Chapter: 56.9
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: 56.9
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: 56.9
Case Name: Rao v. The Bd. of Trustees of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298 (N.D. Ill. Oct. 20, 2016)
(holding that plaintiff's wife did not share a common interest with her husband, and was not within the privilege protection as her husband's agent, and had admitted that lawyer/children were not acting as her lawyer during the communications; inexplicably not addressing work product protection; "Plaintiff seeks two investigative files relating to internal investigations of University of Illinois employees that were conducted by outside counsel."; "As Sandra [Sandra T.E. v. South Berwyn School District 100, 600 F.3d 612 (7th Cir. 2009)] makes clear, the party seeking to maintain protection on the basis of work product privilege must meet its burden of showing that the documents in question deserved protection. In that case, the law firm provided the court with affidavits and other evidence regarding the nature of the law firm's representation. Conversely, the Court here has not been provided with any evidence regarding the contents of the investigative files; Defendants have not produced a single affidavit, an engagement letter, or even a general description of the documents that they seek to protect. The Court has no way to determine whether the protection Defendants seek is appropriate, which is Defendants' burden as the party asserting work product protection. The Court recognized in its minute order that 'many of the materials relating to the internal investigation by outside counsel may be protected from discovery by the attorney-client privilege or the work product doctrine. . . . The Court invited Defendants to attempt to meet their burden of establishing that any such materials deserved such protection, or identifying with specificity which documents they were protecting. Instead, Defendants made an unsubstantiated blanket claim of privilege over entire files."; "Finally, hand in glove with the second issue, the party seeking to avoid discovery in Sandra produced a privilege log. . . . The Court has not seen a privilege log regarding the investigative files either. Again, this failure leaves the Court completely unable to appropriately assess the validity of the Defendants' claims of work product."; "In short, the Defendants have simply not provided either the Plaintiff or the Court with any of the information necessary to make an informed decision on whether the contents of the investigative files should be withheld from discovery. Instead, Defendant waited until the eve of the close of the discovery to make a claim of privilege over the entirety of two investigative files that have not been described in anything but the broadest possible terms. They did so despite knowing since at least mid-July 2016, that Plaintiff would likely seek discovery of these investigative files, and that the Court was likely to have to rule on this issue. From the record before this Court, the Defendants did not take any affirmative steps to review the investigative files at that time to determine which portions were protected and which were not.")

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

Chapter: 56.9
Case Name: Intellectual Ventures I LLC v. Capital One Financial Corp., Case No. PWG-14-111, 2016 U.S. Dist. LEXIS 140393 (D. Md. Oct. 11, 2016)
(in an opinion by Judge Grimm, holding that plaintiff's log and failure to provide an affidavit triggered a waiver; "As I discussed with the parties at the June 30 status conference, this District's Discovery Guidelines and case law identify affidavits as the primary means of establishing a factual basis for the assertion of privileges. . . . Capital One is correct that Intellectual Ventures could have provided affidavits in the two weeks prior to the August 19 status conference. Intellectual Ventures seems to imply that Capital One's request for permission to file a Motion to Compel triggered a duty to respond to the filing that somehow either extinguished its burden to provide a factual basis supporting its privilege claims or shifted the burden of production to Capital One. . . . But responding to Capital One's filing and buttressing the factual foundation for the assertion of privilege was not an either-or proposition. Intellectual Ventures could and should have both defended the adequacy of its privilege log in a responsive filing -- which it largely failed to do -- and also continued to bolster the factual basis either by affidavit -- which the Guidelines and case law highlighted and I personally underscored as the preferred mechanism --or, alternatively, by providing more fulsome explanations in its privilege log. It elected none of the above. Instead, Intellectual Ventures chided Capital One for its 'unwillingness to accept the fact that the Intellectual Ventures companies understand the difference between 'business' and 'legal' matters.'. . . Intellectual Ventures missed the point. It was Intellectual Ventures's burden to provide a factual basis to support its privilege claims, not Capital One's burden to establish the absence of a factual basis. Neither Capital One nor the Court need 'accept' Intellectual Ventures's ipse dixit that it 'understand[s] the difference between 'business' and 'legal' matters, and ha[s] acted in good faith in preparing and reviewing the privilege log.'")

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

key case


Chapter: 56.9
Case Name: Summerville v. Moran, No. 1:14-cv-02099-WTL-TAB, 2016 U.S. Dist. LEXIS 6384, at *10 11 (S.D. Ind. Jan. 20, 2016)
("The Court's analysis of the attorney-client privilege need only discuss the first essential element of asserting the privilege -- whether the information and documents being withheld contain legal advice, sought from Leaberry [defendant's lawyer] in his capacity as an attorney. In his objections, Leaberry presented nothing to indicate which, if any, of the answers or documents he claimed were privileged, contained any legal advice, or involved conversations between him and his clients. Rather, Leaberry withheld anything related to his representation of Covington and the Morans. His broad description undermines his ability to prove the first element. Leaberry should have provided 'the specific facts which support a finding of privilege under the attorney-client relationship for each document.' . . . He did not, and the Court is not inclined to merely take Leaberry at his word that the documents and information he withheld are protected under the attorney-client privilege. The burden is on Leaberry to prove the essential elements of the privilege. Leaberry's conclusory assertions in his objections are inadequate to establish the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-01-20 Federal IN B 7/16

Chapter: 56.9
Case Name: Sun v. Ikea US West, Inc., Case No. 15-cv-01146-MEJ, 2015 U.S. Dist. LEXIS 150544 (N.D. Cal. Nov. 4, 2015)
(denying privilege and work product protection for an investigation of a injury in which a plaintiff was struck by a cart in a store; "Defendant's Incident Reporting System indicates the report was prepared in the normal course of business, within the scope of the employee's responsibilities to the company. Thus, Defendant's purpose in creating these incident reports determines whether the privilege applies."; "Defendant offers no such evidence, such as a redacted copy of the report showing it is labeled 'confidential,' or a declaration from someone with personal knowledge that the report was intended to be confidential, or a declaration from the employee stating that he knew the report was confidential at the time it was made. . . . Without more evidentiary support, the Court finds Defendant has failed to meet its burden of establishing the incident report was a confidential communication made in the course of an attorney-client relationship."; also denying work product protection)

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

Chapter: 56.9
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: 56.201
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: 56.201
Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 615 (D. Kan. 2014)
("[T]he objecting party has the burden to establish the existence of the privilege or immunity prior to the time a court is asked to determine its sufficiency and applicability.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal KS B 8/14

Chapter: 56.202
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: 56.202
Case Name: Crumpley v. Associated Wholesale Grocers, Inc., Case No. 16-2298-DDC-GLR, 2017 U.S. Dist. LEXIS 178300 (D. Kan. Oct. 27, 2017)
January 17, 2018 (PRIVILEGE POINT)

"When Must Litigants Provide Evidentiary Support for Their Privilege or Work Product Claims?"

As with so many other logistical issues, courts disagree about when litigants must provide evidentiary support for withholding their protected communications. Most courts require such evidentiary support only after an adversary challenges the litigant's privilege log. See, e.g., Fid. & Deposit Co. v. Travelers Cas. & Sur. Co., Case No. 2:13-cv-00380-JAD-GWF, 2017 U.S. Dist. LEXIS 84070, at *9 (D. Nev. May 31, 2017) (explaining that "it may be necessary to supplement the privilege log with affidavits or declarations if the basis for the claim of privilege cannot be adequately assessed from the privilege log").

But other courts are more demanding. In Crumpley v. Associated Wholesale Grocers, Inc., Case No. 16-2298-DDC-GLR, 2017 U.S. Dist. LEXIS 178300 (D. Kan. Oct. 27, 2017), defendant supplied a supporting affidavit after earlier submitting its privilege log. The court bluntly noted that defendant "puts the proverbial cart before the horse." Id. at *6. The court pointedly emphasized that "[o]ur cases have repeatedly held that the privilege log itself must contain competent evidence," and that "[s]imply attaching an affidavit to the response to a motion to compel misses the point of privilege logs." Id.

Most courts do not require simultaneous evidentiary support along with privilege logs. Such an approach seems to be a waste of resources -- requiring the withholding litigant to support privilege claims that the adversary may never challenge.

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal KS
Comment:

key case


Chapter: 56.202
Case Name: Fid. & Deposit Co. v. Travelers Cas. & Sur. Co., Case No. 2:13-cv-00380-JAD-GWF, 2017 U.S. Dist. LEXIS 84070, at *9 (D. Nev. May 31, 2017)
January 17, 2018 (PRIVILEGE POINT)

"When Must Litigants Provide Evidentiary Support for Their Privilege or Work Product Claims?"

As with so many other logistical issues, courts disagree about when litigants must provide evidentiary support for withholding their protected communications. Most courts require such evidentiary support only after an adversary challenges the litigant's privilege log. See, e.g., Fid. & Deposit Co. v. Travelers Cas. & Sur. Co., Case No. 2:13-cv-00380-JAD-GWF, 2017 U.S. Dist. LEXIS 84070, at *9 (D. Nev. May 31, 2017) (explaining that "it may be necessary to supplement the privilege log with affidavits or declarations if the basis for the claim of privilege cannot be adequately assessed from the privilege log").

But other courts are more demanding. In Crumpley v. Associated Wholesale Grocers, Inc., Case No. 16-2298-DDC-GLR, 2017 U.S. Dist. LEXIS 178300 (D. Kan. Oct. 27, 2017), defendant supplied a supporting affidavit after earlier submitting its privilege log. The court bluntly noted that defendant "puts the proverbial cart before the horse." Id. at *6. The court pointedly emphasized that "[o]ur cases have repeatedly held that the privilege log itself must contain competent evidence," and that "[s]imply attaching an affidavit to the response to a motion to compel misses the point of privilege logs." Id.

Most courts do not require simultaneous evidentiary support along with privilege logs. Such an approach seems to be a waste of resources -- requiring the withholding litigant to support privilege claims that the adversary may never challenge.

Case Date Jurisdiction State Cite Checked
2017-05-31 Federal NV
Comment:

key case


Chapter: 56.202
Case Name: Fidelity and Deposit Co. of Md. v. Travelers Casualty and Surety Co. of Am., Case No. 2:13-cv-00380-JAD-GWF, 2017 U.S. Dist. LEXIS 84070 (D. Nev. May 31, 2017)
(finding that defendant's failure to properly log resulted in a waiver; "Compliance with Rule 26(b)(5)(A) may be accomplished by providing a privilege log, although it may be necessary to supplement the privilege log with affidavits or declarations if the basis for the claim of privilege cannot be adequately assessed from the privilege log.")

Case Date Jurisdiction State Cite Checked
2017-05-31 Federal NV
Comment:

key case


Chapter: 56.202
Case Name:
Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016) ("While the party asserting privilege need not serve affidavits or other evidence with its privilege log, once an assertion of privilege is challenged, and once court intervention is requested, the party resisting discovery must 'submit evidence, by way of affidavit, deposition testimony or otherwise, establishing only the challenged elements of the applicable privilege or protection, with the ultimate burden of proof resting with the party asserting the privilege or protection.'")

Case Date Jurisdiction State Cite Checked
2016-05-20

Chapter: 56.202
Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)
("While the party asserting privilege need not serve affidavits or other evidence with its privilege log, once an assertion of privilege is challenged, and once court intervention is requested, the party resisting discovery must 'submit evidence, by way of affidavit, deposition testimony or otherwise, establishing only the challenged elements of the applicable privilege or protection, with the ultimate burden of proof resting with the party asserting the privilege or protection.'")

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

Chapter: 56.202
Case Name: Veleron Holding, B.V. v. BNP Paribas SA, 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)
("Because Morgan Stanley has challenged Veleron's claims of privilege, Veleron was required to provide information establishing the challenged elements of its claims.")

Case Date Jurisdiction State Cite Checked
2014-08-22 Federal NY

Chapter: 56.202
Case Name: Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, Civil Action No. DKC 13-0031, 2014 U.S. Dist. LEXIS 88569, at *37-39 (D. Md. June 30, 2014)
("In written discovery, ensuring that a privilege or protection is asserted properly in the first instance and maintained thereafter, involves several steps. . . . 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
2014-06-30 Federal MD

Chapter: 56.202
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: 56.202
Case Name: Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 U.S. Dist. LEXIS 159498, at *11 (N.D. Ill. Nov. 7, 2013)
("As a consequence of Plaintiffs' invocation of Rule 26(b)(5)(B), it became Defendants' obligation to challenge Plaintiffs' claim of privilege. Now that Defendants have finally done so, the burden shifts to Plaintiffs to demonstrate the elements of the privilege they claim applies to each of the emails at issue.")

Case Date Jurisdiction State Cite Checked
2013-11-07 Federal IL B 5/14

Chapter: 56.202
Case Name: Elat v. Ngoubene, Civ. Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 116275, at *12-13 (D. Md. Aug. 16, 2013)
("If, after this has been done, the requesting party challenges the sufficiency of the assertion of 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. If it makes this showing, and the requesting party still contests the assertion of privilege/protection, then the dispute is ready to submit to the court, which, after looking at the evidentiary support offered by the asserting party, can rule on the merits of the claim or order that the disputed documents be produced for in camera inspection.")

Case Date Jurisdiction State Cite Checked
2013-08-16 Federal MD B 4/14

Chapter: 56.202
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 637 (D. Nev. 2013)
("While Plaintiff appears to claim that Bard was obligated to produce supporting affidavits in conjunction with its privilege log, . . . this does not seem to be a requirement in this circuit. In fact, it does not appear the Ninth Circuit has weighed in on this issue. . . . But the court does not interpret this as requiring Bard to, in advance, produce an affidavit addressing each document for which privilege or work product is asserted.")

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

Chapter: 56.202
Case Name: Quality Time, Inc. v. West Bend Mut. Ins. Co., Case No. 12 1008 JTM GLR, 2012 U.S. Dist. LEXIS 181772, at *9 (D. Kan. Dec. 26, 2012)
("Defendant also now seeks to bolster its claim of work product with an affidavit from a claims specialist. But it had adequate opportunity to carry its burden to show work product when it responded to the motion to compel. It cannot now correct the deficiencies in its briefing through a motion for clarification or reconsideration. The Court did not misapprehend any party's position with respect to the Claim Log that Defendant omitted from its Privilege Log. Defendant simply did not carry its burden to show any portion of the Claim Log should be protected as work product.")

Case Date Jurisdiction State Cite Checked
2012-12-26 Federal KS B 9/13

Chapter: 56.203
Case Name: Crumpley v. Associated Wholesale Grocers, Inc., Case No. 16-2298-DDC-GLR, 2017 U.S. Dist. LEXIS 178300 (D. Kan. Oct. 27, 2017)
January 17, 2018 (PRIVILEGE POINT)

"When Must Litigants Provide Evidentiary Support for Their Privilege or Work Product Claims?"

As with so many other logistical issues, courts disagree about when litigants must provide evidentiary support for withholding their protected communications. Most courts require such evidentiary support only after an adversary challenges the litigant's privilege log. See, e.g., Fid. & Deposit Co. v. Travelers Cas. & Sur. Co., Case No. 2:13-cv-00380-JAD-GWF, 2017 U.S. Dist. LEXIS 84070, at *9 (D. Nev. May 31, 2017) (explaining that "it may be necessary to supplement the privilege log with affidavits or declarations if the basis for the claim of privilege cannot be adequately assessed from the privilege log").

But other courts are more demanding. In Crumpley v. Associated Wholesale Grocers, Inc., Case No. 16-2298-DDC-GLR, 2017 U.S. Dist. LEXIS 178300 (D. Kan. Oct. 27, 2017), defendant supplied a supporting affidavit after earlier submitting its privilege log. The court bluntly noted that defendant "puts the proverbial cart before the horse." Id. at *6. The court pointedly emphasized that "[o]ur cases have repeatedly held that the privilege log itself must contain competent evidence," and that "[s]imply attaching an affidavit to the response to a motion to compel misses the point of privilege logs." Id.

Most courts do not require simultaneous evidentiary support along with privilege logs. Such an approach seems to be a waste of resources -- requiring the withholding litigant to support privilege claims that the adversary may never challenge.

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal KS
Comment:

key case


Chapter: 56.203
Case Name: Crumpley v. Associated Wholesale Groceries, Inc., Case No. 16-2298-DDC-GLR, 2017 U.S. Dist. LEXIS 178300 (D. Kansas Oct. 27, 2017)
(finding that a litigant was required to present supporting evidence with a privilege log; "The May Log, like the March Log, however, fails to meet another crucial requirement: competent evidence to support its claim of privilege or work product as to each document. CMKA argues its affidavit of Rod Smith, CMKA's Vice President and Chief Operating Officer and General Partner, constitutes competent evidence. But that puts the proverbial cart before the horse. Here, CMKA did not supply the affidavit with its March Log. Our cases have repeatedly held that the privilege log itself must contain competent evidence. Simply attaching an affidavit to the response to a motion to compel misses the point of privilege logs: to help the opposing party to assess a claim of privilege accurately, which in turn should preclude unnecessary motions to compel.")

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal KS
Comment:

key case


Chapter: 56.203
Case Name: Fid. & Deposit Co. v. Travelers Cas. & Sur. Co., Case No. 2:13-cv-00380-JAD-GWF, 2017 U.S. Dist. LEXIS 84070, at *9 (D. Nev. May 31, 2017)
January 17, 2018 (PRIVILEGE POINT)

"When Must Litigants Provide Evidentiary Support for Their Privilege or Work Product Claims?"

As with so many other logistical issues, courts disagree about when litigants must provide evidentiary support for withholding their protected communications. Most courts require such evidentiary support only after an adversary challenges the litigant's privilege log. See, e.g., Fid. & Deposit Co. v. Travelers Cas. & Sur. Co., Case No. 2:13-cv-00380-JAD-GWF, 2017 U.S. Dist. LEXIS 84070, at *9 (D. Nev. May 31, 2017) (explaining that "it may be necessary to supplement the privilege log with affidavits or declarations if the basis for the claim of privilege cannot be adequately assessed from the privilege log").

But other courts are more demanding. In Crumpley v. Associated Wholesale Grocers, Inc., Case No. 16-2298-DDC-GLR, 2017 U.S. Dist. LEXIS 178300 (D. Kan. Oct. 27, 2017), defendant supplied a supporting affidavit after earlier submitting its privilege log. The court bluntly noted that defendant "puts the proverbial cart before the horse." Id. at *6. The court pointedly emphasized that "[o]ur cases have repeatedly held that the privilege log itself must contain competent evidence," and that "[s]imply attaching an affidavit to the response to a motion to compel misses the point of privilege logs." Id.

Most courts do not require simultaneous evidentiary support along with privilege logs. Such an approach seems to be a waste of resources -- requiring the withholding litigant to support privilege claims that the adversary may never challenge.

Case Date Jurisdiction State Cite Checked
2017-05-31 Federal NV
Comment:

key case


Chapter: 56.203
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: 56.203
Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
(finding defendants' affidavits insufficient to justify privilege protection or allow defendants to retrieve one document claimed to be inadvertently produced out of 30,000 produced; analyzing the privilege protection issue for the inadvertently produced document; "Generally, a party meets its burden of asserting the attorney-client privilege 'when the party produces a detailed privilege log stating the basis of the claimed privilege for each document in question, together with an accompanying explanatory affidavit from counsel.'. . . To be sure, some courts have recognized that an affidavit alone may be sufficient to establish privilege.")

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

Chapter: 56.502
Case Name: Jackson v. E-Z-GO, Case No. 3:12-CV-154-TBR-LLK, 2016 U.S. Dist. LEXIS 6443, at *2, *5-6, *6-7, *8 (W.D. Ky. Jan. 19, 2016)
(finding that the privilege did not protect a law department's recordkeeping structure; "Plaintiffs proposed four steps to complete discovery regarding other incidents: first, discovery to determine the universe of other incidents; second, if E-Z-GO does not possess the complete universe of information, discovery regarding potential spoliation; third, discovery regarding potentially relevant evidence within the universe; and finally, discovery of information that establishes the admissibility of evidence at trial. . . . E-Z-GO requested that the Court revisit its prior ruling on the Motion of E-Z-GO Division of Textron, Inc. for Protective Order."; "E-Z-GO asserted that the structure of their legal departments' internal record-keeping system amounts to privileged information. . . . Moreover, E-Z-GO requested that the Court seal certain docket entries that contain this information. . . . The Court finds that E-Z-GO did not meet its burden when arguing that the structure of their Team Connect database is privileged from discovery. First and foremost, E-Z-GO disclosed the structure of its Team Connect database, at least in part, to Plaintiffs."; "Neither attorney-client privilege nor the work-product doctrine protects facts. . . . Moreover, nothing argued by E-Z-GO established how the structure of the database used to contain information related to other incidents is, in and of itself, a privileged communication . . . . An evidentiary privilege may well protect the contents of the database, but E-Z-GO failed to demonstrate why either privilege protects the structure of the database."; "IT IS FURTHER ORDERED that the Court will allow Plaintiffs to take one additional deposition of E-Z-GO pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. The Court also authorizes up to three depositions of individuals. All of these depositions must concern what information was or is within E-Z-GO's possession, custody, or control, and why any information may no longer by within its possession, custody, or control. Plaintiffs may not discover the specific contents of any database or documents related to other incidents at this time.")

Case Date Jurisdiction State Cite Checked
2016-01-20 Federal KY B 7/16

Chapter: 56.602
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("For many Army-generated documents, the Army concluded that there was no segregable information because, after applying the exemptions, only essentially meaningless words and phrases remained. The Army is under no obligation 'to commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content.' Mead Data Central, Inc. v. U.S. Dept. of Air Force, 566 F.2d 242, 261 n. 55, 184 U.S. App. D.C. 350 (D.C. Cir. 1977). The Army nonetheless offered to provide, and later did provide, this 'essentially meaningless' information to Pinnacle.")

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