Showing 443 of 443 results

Chapter: 57.2

Case Name: Dominion Resources Services, Inc. v. Alstom Power, Inc., Civ. No. 3:16CV00544 (JCH), 2017 U.S. Dist. LEXIS 132212 (D. Conn. Aug. 18, 2018)
("The Court finds that Dominion has standing to challenge the AEGIS subpoena only to protect any attorney-client privileged communications, or information protected by the work product doctrine, under the common interest that AEGIS and Dominion share.2 Dominion does not have standing to challenge the AEGIS subpoena or to move for a protective order on AEGIS' behalf on grounds of relevancy, burden, or proportionality. Accordingly, the Court will consider whether the AEGIS subpoena should be quashed only on the ground that the testimony would implicate privileged information. The Court notes that Dominion clearly has standing to challenge the subpoena directed at its employee Chris Howell; thus, the Court will evaluate Dominion's motion as to that subpoena on all grounds that Dominion asserts.")

Case Date Jurisdiction State Cite Checked
2018-08-18 Federal CT

Chapter: 57.2

Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
("Whether those privilege claims should prevail is a separate question that concerns the merits of Martorello's motion to quash, not his standing to bring it. Furthermore, Martorello is 'a party- [d]efendant] to th[e] litigation, with interests adverse to Plaintiff[s].' Thus, as in Green [Green v. Sauder Mouldings, Inc., 223 F.R.D. 304, 306 (E.D. Va. 2004)], Martorello has standing to challenge the Subpoena on privilege grounds.")

Case Date Jurisdiction State Cite Checked
2018-03-16 Federal VA

Chapter: 57.2

Case Name: Mun. Auth. of Westmoreland Cnty. v. CNX Gas Co., LLC, Civ. A. No. 2:16-CV-422, 2017 U.S. Dist. LEXIS 209659 (W.D. Pa. Dec. 21, 2017)
("As a general rule, a motion to quash a third-party subpoena must be brought by the third party itself. . . . This rule contains a narrow exception: a party may move to quash a third-party subpoena when the moving party claims a "personal right or privilege" in the subject matter of the subpoena. . . . The court finds that CNX has adequately alleged a privilege in the contents of the emails and thus has standing to move to quash.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal PA

Chapter: 57.2

Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Proc. No. 08-01789 (SMB), Adv. Proc. No. 10-04292 (SMB), 2017 Bankr. LEXIS 3638 (S.D.N.Y. Oct. 17, 2017)
(in a case arising from Bernie Madoff's fraud, holding that drafts of Madoff's declaration deserved work product protection; "Despite Roman's disclosure of the Chaitman [Lawyer for Madoff's sister-in-law's husband] Email, Chaitman has standing to object to her client's waiver of the work product privilege, to the extent the work product includes 'opinion work product.'")

Case Date Jurisdiction State Cite Checked
2017-10-17 Federal NY

Chapter: 57.2

Case Name: Tucker Ellis LLP v. Superior Ct. of the City and County of San Francisco, A148956, 2017 Cal. App. LEXIS 571 (Cal. App. 3d June 21, 2017)
(analyzing ownership of work product prepared by a lawyer who worked with an expert, and then left the firm; explaining that the former firm received a subpoena and was able to produce the work product because the firm owned it; "In this writ proceeding, we are presented with a narrow question of law concerning the attorney work product privilege as codified in Code of Civil Procedure section 2018.030. Specifically, we are asked to determine, as between an employer law firm and a former attorney employee, who is the holder of the attorney work product privilege that attaches to documents created by the attorney employee during and in the scope of his employment? We conclude that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP (Tucker Ellis), and not the former attorney employee, real party in interest Evan C. Nelson (Nelson). As a corollary to our holding, we necessarily conclude that because Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to secure Nelson's permission before it disclosed to others documents he created during and in the scope of his employment. Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson's permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision."; "[A]n attorney can assert his work product privilege even though he is no longer in possession the document . . . and the contents of the documents may have been communicated to the client.")

Case Date Jurisdiction State Cite Checked
2017-06-21 State CA

Chapter: 57.2

Case Name: Robinson Mechanical Contractors Inc. v. PTC Group Holding Corp., Case No. 1:15-CV-77 SNLJ, 2017 U.S. Dist. LEXIS 72636 (E.D. Mo. May 12, 2017)
(holding that a parent and a wholly-owned subsidiary were jointly represented by the same lawyer; "Here, PTC Group [parent of now-dissolved former subsidiary Seamless, possessing Seamless's documents] claims that it can independently assert the attorney-client privilege shared by it and Seamless in the alleged joint-client representation. This is so because, as PTC Group alleges, essentially at all times and for all matters relevant to this action, PTC Group and Seamless shared a common interest and shared in-house counsel, making them joint-clients. This Court agrees that PTC Group may assert the joint-client privilege, on behalf of itself and Seamless, for documents that otherwise qualify as privileged and relate to matters of common interest of the two corporations. For the same reasons, PTC Group can assert Seamless' work product doctrine privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-12 Federal MO
Comment:

key case


Chapter: 57.2

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 44192 (D. Kansas March 24, 2017)
(in an opinion by Special Master, finding that a former Monsanto lawyer and business person did not resist discovery after being designated by defendant as a testifying expert; "Fed. R. Civ. P. 45 and Minn. R. Civ. P. 45.01-45.06 govern subpoenas issued to non-parties, such as Mr. Carrato. When a subpoena affects the interests of a second non-party, like Monsanto, the non-party whose interests are implicated has standing to challenge the subpoena.")

Case Date Jurisdiction State Cite Checked
2017-03-24 Federal KS
Comment:

key case


Chapter: 57.2

Case Name: Swoboda v. Manders, No. 16-30074, 2016 U.S. App. LEXIS 19580 (5th Cir. Oct. 31, 2016)
(analyzing standing; holding that the defendant could intervene to protect its alleged work product; plaintiff sought documents from defendant's investigator; "The district court held that HK's interest was adequately represented by Continental because Continental asserted the work product privilege that HK would have asserted if HK had been allowed to intervene. We disagree with the district court's conclusion that Continental's work product privilege and HK's work product privilege are one and the same. Continental's work product privilege argument was overruled because Continental is a company that engages in investigative work, and the district court concluded that the discovery that Swoboda sought was produced in Continental's ordinary course of business, i.e., in the course of a Continental investigation. HK is a gun manufacturer. Investigations are not a part of HK's ordinary course of business. Some of the discovery that Swoboda sought was, from HK's perspective, prepared in anticipation of litigation. We have held that an applicant-intervenor should be allowed to intervene when it 'has a defense not available to the present defendant' HK has a defense unavailable to Continental, and it should have been allowed to present that defense in the district court.")

Case Date Jurisdiction State Cite Checked
2016-10-31 Federal

Chapter: 57.2

Case Name: CTB, Inc. v. Hog Slat, Inc., No. 7:14-CV-157-D, 2016 U.S. Dist. LEXIS 39024, at *14 15 (E.D.N.C. Mar. 23, 2016)
(holding that a party had standing to challenge a subpoena to a nonparty, if necessary to protect the party's privilege; "As a threshold matter, generally, a party lacks standing to challenge a subpoena issued to a nonparty. . . . However, a party may move to quash a subpoena to a nonparty where production of documents in which the claimant has some personal right or privilege is at issue. . . . Here, CTB obviously has the attorney-client privilege and work-product protection with respect to covered information and documents that fall within the scope of the subpoenas. With Marr [plaintiff's trial counsel] and his law firm acting as CTB's agent, CTB arguably possesses a right with respect to the deposition testimony sought from Marr and the documents sought from Clark Hill [Marr's law firm] broader than the attorney-client privilege and work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal NC B 8/16

Chapter: 57.2

Case Name: Martinez v. Liberty Insurance Corporation, Civ. A. No. 15-cv-00838-REB-MEH, 2015 U.S. Dist. LEXIS 138169 (D.D.C. Oct. 9, 2015)
("The general rule is that a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege or upon a showing that there is a privacy interest applicable. . . . Here, the Defendant does not challenge Plaintiffs' standing to seek protection from the subpoena based on the attorney-client privilege and work product doctrine, and the Court finds the Plaintiffs have made the requisite showing to demonstrate they have standing to move to quash Defendant's subpoena.").

Case Date Jurisdiction State Cite Checked
2015-10-09 Federal DC

Chapter: 57.2

Case Name: GE v. United States, 119 F. Supp. 3d 17, 18, 18-19, 19, 20, 20-21, 21 (D. Conn. 2015)
(holding that GE's lawyers at Davis Polk could review for responsiveness GE-related documents sought by the United States from third parties Westport Insurance Company and Cahill Gordon; "Plaintiff General Electric Company ('GE') and defendant United States are embroiled in a high-stakes dispute involving GE's claim for a tax refund with interest of approximately $660 million. The dispute stems from a series of complex corporate restructuring/sale transactions that occurred more than ten years ago."; "The parties are now entangled in a discovery dispute involving a legal issue that does not appear (so far as the parties' briefings reflect) to have been previously addressed in any published decision -- perhaps surprisingly so, because I would expect the issue to be framed with some frequency in complex litigation. The issue here supposes a lawsuit between Party A and Party B and that Party A issues a subpoena to a non-party seeking documents that may be subject to a claim of privilege by opposing party B. It further supposes the right of Party B to conduct a privilege review of the subpoenaed documents before they are produced by the non-party to Party A to ensure that the document production does not include documents subject to a claim of attorney-client privilege."; "The question, then, is whether Party B (or, more precisely, its counsel) may also -- at the non-party's request -- conduct a responsiveness review of the documents before they are produced to Party A. In short, is it proper for a non-party recipient of a document subpoena from Party A to delegate or outsource a portion of its compliance obligations to the opposing Party B and its counsel in the litigation?"; "Here, the issue arises in the context of the Government's complaint about GE's conduct with respect to two subpoenas served by the Government on two non-parties to this action: Westport Insurance Company ('Westport') and Cahill Gordon & Reindel LLP ('Cahill'). Westport is a former subsidiary of GE and possesses documents relating to a former GE insurance subsidiary of great importance to this litigation. Cahill is a major law firm that served as counsel to GE on a range of transactional matters in 2002 and 2003 that are also important to the tax dispute in this case."; "Although the Government does not contest GE's right to conduct a privilege review, it vehemently objects to GE or its counsel's involvement in deciding what documents are responsive to the subpoenas that it has served on Westport and Cahill."; "The Government has a right to receive documents that are responsive to its subpoenas, not to have a completely neutral party review and decide what documents are responsive."; "Nor am I persuaded by the Government's myopic view of the scope of the ethical rules that otherwise govern Davis Polk's conduct. The ethical obligations of counsel do not run solely to a client. Quite to the contrary, counsel have multiple ethical obligations to third parties and to the Court that foreclose them from lying, from concealing or altering evidence, or from otherwise engaging in conduct inimical to the due administration of justice. I decline to conclude that David Polk attorneys are free from ethical constraints with respect to their review of Westport and Cahill documents or to presume that Davis Polk attorneys will fail to disclose non-privileged, responsive documents in breach of their ethical obligations."; "I reject the Government's argument that it is categorically improper for a party (or its counsel) in a lawsuit to undertake not only a privilege review but also a responsiveness review of documents that have been sought by the opposing party from a non-party to the litigation. My conclusion assumes that the non-party has knowingly delegated responsibility to a party to the litigation to conduct a responsiveness review. And of course it presupposes as always that the non-party recipient of a subpoena -- notwithstanding its administrative delegation of functions to any third party -- remains ultimately answerable to ensure that its obligations to fulfill the requirements of the subpoena are fully and faithfully discharged."

Case Date Jurisdiction State Cite Checked
2015-07-22 Federal CT B 5/16

Chapter: 57.2

Case Name: Continental Resources, Inc. v. C&D Oilfield Services, Inc., Case No. 1:13-cv-154, 2015 U.S. Dist. LEXIS 94061 (D.N.D. July 20, 2015)
("[T]he court concludes that C&D could rely upon EMC's objections and motion insofar as presenting and preserving its objections given that EMC is a representative of C&D within the meaning of Rule 26(b)(3)(A). In fact, C&D probably need not have formally joined in EMC's motion.")

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

Chapter: 57.2

Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)
("The Intervenors may not assert the privilege on behalf of third parties, including individual delegates, campaign committees, or political parties. If the Intervenors are in possession of communications reflecting an individual delegate's request for outside legal advice, the proper course of action is for the House to advise the delegate so that the delegate can properly claim and establish the privilege.")

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

Chapter: 57.2

Case Name: Exobox Technologies Corp. v. Tsambis, Case No. 2:14-cv-501-RFB-VCF, 2014 U.S. Dist. LEXIS 142748 (D. Nev. Oct. 7, 2014)
(finding that a third party did not have standing to assert a client's privilege protection; "It is axiomatic that standing requires the party requesting relief to have a personal legal interest in the subject matter of the dispute. . . . In the context of the attorney-client privilege, the relevant legal interest -- (viz., the privilege) -- belongs to the attorney's client. . . . This means that a third party, like Tsambis, cannot assert the attorney-client privilege to avoid disclosure."; concluding that there had already been a waiver if the third party possessed the privileged communications; "If Tsambis possesses information that he believes is protected by his co-conspirator's attorney-client privilege, then the privilege was most likely waived because Tsambis -- who is a third party -- possess privileged information.")

Case Date Jurisdiction State Cite Checked
2014-10-07 Federal NV

Chapter: 57.2

Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *28 (M.D. Fla. Sept. 12, 2014)
("The Court concludes that the GTCR Group has standing to assert the privilege, irrespective of whether the GTCR Group was the sender or recipient of the communication. It is clear from the Court's review of the record that Kirkland & Ellis represented the GTCR Group (a fact that the Trustee does not dispute) and that the GTCR Group and THI were co-clients with respect to the restructuring and Ohio litigation. As THI's co-client, the GTCR Group is entitled to invoke the attorney-client privilege, and THI cannot waive that privilege unilaterally.")

Case Date Jurisdiction State Cite Checked
2014-09-12 Federal FL

Chapter: 57.2

Case Name: In re Sherrod, Case No. 14-bk-08950, Ch. 11, 2014 Bankr. LEXIS 2743, *5-6 (N.D. Ill. June 20, 2014)
("The Debtor here, as the holder of the privilege, has not been heard. Instead, Former Counsel filed the Motion to Quash, ostensibly on behalf of the Debtor. It is difficult to see how counsel who has withdrawn from the representation of a party may nonetheless purport to act on behalf of that party in subsequent matters before the court. Nonetheless, as the Debtor has not waived the privilege, the Debtor remains the holder of the privilege and Former Counsel has an obligation and therefore standing to assert attorney-client privilege on her behalf. . . . A Debtor may waive the privilege by voluntarily disclosing confidential attorney-client communication or authorizing her attorney to do so. . . . As the Debtor in this case has neither disclosed confidential information nor consented to its disclosure on her behalf, Former Counsel has standing to assert the privilege on Debtor's behalf.")

Case Date Jurisdiction State Cite Checked
2014-06-20 Federal IL

Chapter: 57.2

Case Name: Allstate Ins. Co. v. Warns, Civ. No. CCB-11-1846, 2013 U.S. Dist. LEXIS 44507, at *6-7 (D. Md. Mar. 28, 2014)
("The sole remaining question, then, is Allstate's standing to assert the privilege. Ms. Warns contends that the attorney-client privilege cannot be invoked by Allstate because the privilege can only be asserted by the client. . . . The insurance company therefore serves as the 'client' for purposes of invoking the privilege regarding communications between counsel and the insurance company relating to the litigation.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal MD B 3/14

Chapter: 57.2

Case Name: Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., No. 2:10-cv-1207 GEB AC, 2014 U.S. Dist. LEXIS 20694, at *13, *14-15 (E.D. Cal. Feb. 18, 2014)
(analyzing the common interest doctrine in the work product context; finding that the common interest doctrine was more narrow in the privilege than in the work product setting; finding that there had not been a waiver when work product was shared between a district attorney and a private plaintiff suing the same defendant; "The general rule, however, is that a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege relating to the documents being sought."; "Here, plaintiff has made no showing that any responsive documents prepared by Mr. Lane [plaintiff's consultant] and/or Chico Environmental include documents prepared for plaintiff or by plaintiff's counsel. Having failed to make this necessary showing, the court finds that plaintiff lacks standing to move to quash the subpoenas to the extent the motion is directed to request Nos. 5 through 8.")

Case Date Jurisdiction State Cite Checked
2014-02-18 Federal CA B 7/14

Chapter: 57.2

Case Name: Cohen v. Moore Becker, P.C., No. 913 WDA 2012, J-A12019-13, slip op. at 8 (Pa. Super. Ct. Feb. 10, 2014)
(non-precedential decision) ("Attorney Farber's attempt to assert an attorney-client privilege on his own behalf, in contravention of the trial strategy of Ms. Cohen's legal malpractice counsel, is without effect, because the attorney-client privilege belongs to Ms. Cohen, even as it extends to Attorney Farber's communications to Ms. Cohen in other matters. . . . Attorney Farber's attempt to assert the attorney-client privilege on behalf of Ms. Cohen is similarly without effect. Attorney Farber is a non-party to the legal malpractice litigation, without capacity to invoke the attorney-client privilege on behalf of Ms. Cohen in that action.")

Case Date Jurisdiction State Cite Checked
2014-02-10 State PA B 7/14

Chapter: 57.2

Case Name: Holland v. Nat'l Union Fire Ins. Co., No. 2:12-cv-1983 TLN AC, 2013 U.S. Dist. LEXIS 157161, at *8-9, *9 n.1, *10 (E.D. Cal. Oct. 31, 2013)
(analyzing standing issues; explaining that the defendant insurance company provided coverage for losses resulting from plaintiff's injury, and sought discovery from a personal injury lawyer who had represented plaintiff in an earlier action against the hospital and the doctor for medical malpractice following a work injury; further noting that the underlying malpractice case was resolved, after which the insurance company sought discovery from plaintiff's personal injury lawyer and defendants' lawyer; holding that plaintiff had standing to resist the insurance company's discovery of the former but not the latter; "Defendant argues first that plaintiff lacks standing to bring the instant motion because only the subpoenaed non-party may move to quash. The Ninth Circuit has yet to address the question of whether a party may bring a motion to quash a subpoena served on a third party. The general consensus of other courts is that, while a motion to quash a subpoena is normally to be made by the person or entity to which the subpoena is directed, an exception applies 'where the party seeking to challenge the subpoena has a personal right or privilege with respect to the subject matter requested in the subpoena.'. . . Accordingly, plaintiff may move to quash the subpoenas to the extent his personal rights or privileges are implicated."; "Though the option was available to him, plaintiff did not move for a protective order pursuant to Federal Rule of Civil Procedure 26(c)."; "Plaintiff never had an attorney-client relationship with Robert Zaro, defense counsel in the medical malpractice action, and therefore cannot assert the privilege as grounds to quash the subpoena directed to him. Plaintiff also may not assert the attorney work-product doctrine for someone who is not his representative.")

Case Date Jurisdiction State Cite Checked
2013-10-31 Federal CA B 5/14

Chapter: 57.2

Case Name: Holland v. Nat'l Union Fire Ins. Co., No. 2:12-cv-1983 TLN AC, 2013 U.S. Dist. LEXIS 157161, at *15 (E.D. Cal. Oct. 31, 2013)
(analyzing standing issues; explaining that the defendant insurance company provided coverage for losses resulting from plaintiff's injury, and sought discovery from a personal injury lawyer who had represented plaintiff in an earlier action against the hospital and the doctor for medical malpractice following a work injury; further noting that the underlying malpractice case was resolved, after which the insurance company sought discovery from plaintiff's personal injury lawyer and defendants' lawyer; holding that plaintiff had standing to resist the insurance company's discovery of the former but not the latter; "Here, since defendant has not shown exceptional circumstances to obtain these reports, it is only due to them as provided in Federal Rule of Civil Procedure 35(b). Thus, plaintiff's motion is granted as to consulting experts." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-10-31 Federal CA B 5/14

Chapter: 57.2

Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 142516, at *5-6 (S.D.N.Y. Sept. 27, 2013)
(acknowledging the bank examination privilege, but noting that it belongs to government; "UBS points out that the Code of Federal Regulations prohibits an entity from disclosing an SAR [suspicious activity report] or the information contained in it and requires any entity that is requested to do so to notify the OCC [Office of Comptroller of the Currency], presumably so that the agency can determine whether to assert the privilege. 12 C.F.R. § 21.11(k). Therefore, while I will order UBS to produce the subject documents, as well as any similar documents listed on the privilege log, I will stay that portion of the order so that UBS may notify the OCC, if it determines that it is required to do so.")

Case Date Jurisdiction State Cite Checked
2013-09-27 Federal NY B 5/14

Chapter: 57.2

Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *17 (N.D. Ohio Aug. 8, 2013)
(analyzing a situation in which a bankruptcy trustee sought documents from the debtor's accountant; holding that the privilege protected communications from the accountant to a lawyer, but did not protect communications that were merely copied to the lawyer or were from the accountant to the client; holding that the accountant could not create protected work product because he was not a party; "Trustee is correct that Scott Snow [accountant] is not a party to this litigation. Having found that Scott Snow acted as Debtor and Karen Myers' agent, Debtor and Karen Myers, as parties in the current litigation in which discovery is sought, have standing to assert work product doctrine protection to documents in Scott Snow's possession, including communications between Scott Snow and themselves, between Scott Snow and their attorneys, as well between themselves and their attorneys. Fed. R. Civ. P. 26(b)(3)(A). Thus, Debtor and Karen Myers have standing to assert work product doctrine with respect to the documents requested by Trustee from Scott Snow.")

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

Chapter: 57.2

Case Name: Waite, Schneider, Bayless & Chesley Co. v. Davis, Case No. 1:11-cv-0851, 2013 U.S. Dist. LEXIS 5253, at *14 (S.D. Ohio Jan. 14, 2013)
("The only basis upon which a party could have standing to quash a non-party subpoena would be a claim or personal right or privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-14 Federal OH B 7/13

Chapter: 57.2

Case Name: United States v. Martoma, 962 F. Supp. 2d 602, 604 (S.D.N.Y. 2013)
(holding that the government did not have standing to assert privilege protection on behalf of a cooperating witness, employed by the University of Michigan; "While the Government may have an ethical obligation to bring the privilege issue to the Court's attention, that obligation does not confer standing on the Government to assert privilege on Dr. Gilman's behalf under the circumstances of this case.")

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

Chapter: 57.2

Case Name: Hyatt v. Cal. Franchise Tax Board, 962 N.Y.S.2d 282, 288 (N.Y. App. Div. 2013)
("A person other than one to whom a subpoena is directed has standing to move to quash the subpoena where he or she has a proprietary interest in the subject documents or where they involve privileged communications.")

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

Chapter: 57.2

Case Name: In re Grand Jury, 705 F.3d 133, 142 (3d Cir. 2012)
(holding that a company could not rely on the Perlman [Perlman v. United States, 247 U.S. 7 (1918)] doctrine to immediately appeal a court order requiring its law firm to produce privileged documents, because the company could retrieve the documents from the law firm, withhold them, and then appeal the contempt order; "ABC Corp. has standing to challenge the grand jury subpoenas because it claims attorney-client and work product privileges in the documents and testimony at issue. . . . John Doe 1 and John Doe 2, in contrast, do not hold any privilege in the sought-after documents or testimony and have not asserted any other interest in them. They therefore lacked standing to oppose the Government's motion to enforce the subpoenas, and do not have standing to appeal the District Court's resulting Orders." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 57.2

Case Name: Green v. Sauder Mouldings, Inc., 223 F.R.D. 304, 306 (E.D. Va. 2004)
("In its memorandum, United contends that Plaintiff lacks standing to quash its subpoena duces tecum. Absent any specific Fourth Circuit guidance on the issues addressed therein, this Court agrees. A motion to quash should be made by the person or entity from whom or from which the documents or things are requested. Generally, a party to litigation has no standing to move to quash a third-party subpoena duces tecum unless the movant claims some personal right or privilege to the documents sought. Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1974); Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979); 9A Wright & Miller, Federal Practice and Procedure, Civ. 2d 2459 (1995). Here, Plaintiff is not the party to whom the subpoena was issued. Consequently, absent a showing of privilege or private right, he has no standing upon which to quash it. Plaintiff attempts to demonstrate privilege, and thus manufacture standing, by asserting the 'work-product doctrine' of Federal Rule of Civil Procedure [hereinafter "Rule"] 26(b)(3).")

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

Chapter: 57.2

Case Name: Fordham v. Onesoft Corp., Civ. A. No. 00-1078-A, 2000 U.S. Dist. LEXIS 23019, at *5, *5 n.1 (E.D. Va. Nov. 6, 2000)
("Fordham argues that Defendants lack standing to sue because Defendants are not parties to the Order. Specifically, Fordham argues that the Order compels Mintz Levin to produce the documents, not OneSoft. . . . This Court finds this argument is without merit. OneSoft's attorney client privilege is called into question, therefore, OneSoft has standing to challenge the violation of such privilege. See generally In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984).")

Case Date Jurisdiction State Cite Checked
2000-11-06 Federal VA

Chapter: 57.2

Case Name: In re Grand Jury Proceedings (John Doe), 727 F.2d 1352, 1355 (4th Cir. 1984)
("The rule is that an attorney in a situation such as that of the petitioner is entitled to raise such privilege on behalf of his alleged client.")

Case Date Jurisdiction State Cite Checked
1984-01-01 Federal

Chapter: 57.3

Case Name: Broyles v. Cantor Fitzgerald & Co., Civ. A. No. 10-854-JJB-CBW, Civ. A. No. 10-857-JJB-CBW, 2016 U.S. Dist. LEXIS 122625 (M.D. La. Sept. 8, 2016)
(entering an order prohibiting plaintiff from using an adverse inference based on defendant's privilege claim, and also prohibiting the plaintiff from asking witnesses questions that are likely to draw a privilege objection; "At this stage of the proceedings, the Court cannot determine what the trial testimony will be and whether these issues will even arise. Nevertheless, the Court finds that the Motion shall be granted and the CA Funds are precluded from offering any evidence or argument concerning the S&Y Parties' invocations of their attorney client privilege in this case. As discussed herein, calling the jury's attention to that privilege would only serve to imply that the jury should draw an adverse inference, which this Court finds to be improper. The CA Funds shall further be prohibited from asking any question of the S&Y Parties' witnesses where it would be reasonable to conclude that the question would elicit an invocation of the attorney client privilege. However, the instant Ruling has no bearing on whether the CA Funds shall be entitled to a 'missing witness' inference at trial. Should the CA Funds seek such an inference at trial, they shall re-urge their request at that time.")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal LA
Comment:

key case


Chapter: 57.3

Case Name: The People of the State of New York v. Loiseau, 2014-10938, 2016 N.Y. App. Div. LEXIS 5016 (N.Y. Sup. Ct. June 29, 2016)
(allowing a new trial for a criminal defendant because the prosecutor was allowed to ask if the criminal defendant had provided information to his lawyer contradicting his trial testimony; "The defendant contends that he was deprived of a fair trial because the Supreme court allowed the prosecutor, on cross-examination, to question him, in violation of the attorney-client privilege, as to whether he made a certain admission to his attorney which contradicted his trial testimony. . . . The error was not harmless, as the proof of the defendant's guilt was not over-whelming and the questioning was highly damaging to the defendant's credibility, the jury's assessment of which, compared to that of the complainant, was the central issue in the case. . . . Under the circumstances of this case, the court's instructions to the jury in its preliminary instructions and final charge that questions in and of themselves were not evidence, and that the jurors were prohibited from inferring any facts from the mere asking of a question, cannot be deemed to have obviated any prejudice resulting from the error.")

Case Date Jurisdiction State Cite Checked
2016-06-29 Federal NY

Chapter: 57.3

Case Name: GSI Technology, Inc. v. United Memories, Inc., Case No. 5:13-cv-01081-PSG, 2016 U.S. Dist. LEXIS 69984 (N.D. Cal. May 26, 2016)
(declining to grant plaintiff a new trial based on defendant's display to the jury of a videotaped deposition which involved privilege objections, and a picture of plaintiff's lawyer; "UMI's references to GSI fact witness David Chapman's assertion of the attorney-client privilege during deposition and to GSI counsel Jeffrey Shohet do not warrant a new trial. During trial, UMI played a video clip of Chapman's deposition, in which UMI asked Chapman about the contract negotiations with UMI. UMI asked Chapman about his concerns about the non-compete provisions in the contract and their compliance with California law, and Chapman's lawyer, Shohet, instructed Chapman not to answer 'to the extent that there was anything in the disclosure of counsel. If your concerns were based on anything you learned from your counsel.' UMI also displayed a photo of Shohet, taken from DLA Piper's website, for the jury. Over GSI's objection, the photo was used but not admitted into evidence. GSI argues that the evidence of the invocation of the attorney-client privilege caused the jury to draw an adverse inference based on the assertion, and that the photo and other references to Shohet suggested to the jury that the privileged communications between GSI and its attorneys concealed negative information."; "Neither of GSI's arguments is persuasive. GSI cites a number of cases holding that it is impermissible to draw an adverse inference from the assertion of the attorney-client privilege; GSI does not cite, however, any cases holding that evidence of the assertion of the privilege causes a jury to draw an adverse inference. GSI identifies only one instance of UMI referring to GSI's invocation of the privilege, and UMI did not comment on or characterize GSI's invocation in any way. Based on these facts, it is implausible that the assertion of the privilege caused the jury to draw an adverse inference --and in the end, Chapman's invocation of the privilege occurred during his testimony on the contract negotiations, and the jury found for GSI on the breach of contract claim, suggesting that they did not draw any adverse inference."; "GSI also does not provide any basis for finding that displaying Shohet's photo or referring to his communications with his client, GSI, warrants a new trial. GSI argues that UMI showed the photo to suggest to the jury that privileged communications between GSI and its counsel concealed 'some negative information,' but GSI points to no precedent and to no behavior by UMI that explains how showing this photo created that suggestion. The photo was from DLA Piper's website and was not an inappropriate or demeaning photo. Moreover, the photo was used during testimony but not admitted into evidence, limiting whatever impact it might have had on the jury.")

Case Date Jurisdiction State Cite Checked
2016-05-26 Federal CA

Chapter: 57.3

Case Name: GSI Technology, Inc. v. United Memories, Inc., Case No. 5:13-cv-01081-PSG, 2016 U.S. Dist. LEXIS 69984 (N.D. Cal. May 26, 2016)
(declining to grant plaintiff a new trial based on defendant's display to the jury of a videotaped deposition which involved privilege objections, and a picture of plaintiff's lawyer; "UMI's references to GSI fact witness David Chapman's assertion of the attorney-client privilege during deposition and to GSI counsel Jeffrey Shohet do not warrant a new trial. During trial, UMI played a video clip of Chapman's deposition, in which UMI asked Chapman about the contract negotiations with UMI. UMI asked Chapman about his concerns about the non-compete provisions in the contract and their compliance with California law, and Chapman's lawyer, Shohet, instructed Chapman not to answer 'to the extent that there was anything in the disclosure of counsel. If your concerns were based on anything you learned from your counsel.' UMI also displayed a photo of Shohet, taken from DLA Piper's website, for the jury. Over GSI's objection, the photo was used but not admitted into evidence. GSI argues that the evidence of the invocation of the attorney-client privilege caused the jury to draw an adverse inference based on the assertion, and that the photo and other references to Shohet suggested to the jury that the privileged communications between GSI and its attorneys concealed negative information."; "Neither of GSI's arguments is persuasive. GSI cites a number of cases holding that it is impermissible to draw an adverse inference from the assertion of the attorney-client privilege; GSI does not cite, however, any cases holding that evidence of the assertion of the privilege causes a jury to draw an adverse inference. GSI identifies only one instance of UMI referring to GSI's invocation of the privilege, and UMI did not comment on or characterize GSI's invocation in any way. Based on these facts, it is implausible that the assertion of the privilege caused the jury to draw an adverse inference --and in the end, Chapman's invocation of the privilege occurred during his testimony on the contract negotiations, and the jury found for GSI on the breach of contract claim, suggesting that they did not draw any adverse inference."; "GSI also does not provide any basis for finding that displaying Shohet's photo or referring to his communications with his client, GSI, warrants a new trial. GSI argues that UMI showed the photo to suggest to the jury that privileged communications between GSI and its counsel concealed 'some negative information,' but GSI points to no precedent and to no behavior by UMI that explains how showing this photo created that suggestion. The photo was from DLA Piper's website and was not an inappropriate or demeaning photo. Moreover, the photo was used during testimony but not admitted into evidence, limiting whatever impact it might have had on the jury.")

Case Date Jurisdiction State Cite Checked
2016-05-26 Federal CA

Chapter: 57.3

Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2768, 2016 U.S. Dist. LEXIS 7477, at *27, *28, *28-29 (E.D. Pa. Jan. 22, 2016)
(entering an order prohibiting plaintiffs from arguing an adverse inference from defendants' privilege assertion; "[I]t would be 'improper to draw an inference of bad faith from the assertion of the attorney-client privilege.'" (citation omitted); "Plaintiffs have thus far offered no evidentiary basis for highlighting Defendants' invocation of the attorney-client privilege or the work product doctrine. Calling the jury's attention to that invocation, would serve only to imply that the jury should draw an adverse inference. As noted above, such an implication is wholly improper. Therefore, Plaintiffs may not mention or draw the jury's attention to Defendants' invocation of the attorney-client privilege or the work product doctrine."; "Plaintiffs also may not ask any question of a defense witness where it would be reasonable to conclude that the question will elicit an invocation of the attorney-client privilege. Plaintiffs' counsel should be well aware of the types of questions that will prompt Defendants to assert the attorney-client privilege at trial, given the extensive discovery undertaken in this case.")

Case Date Jurisdiction State Cite Checked
2016-01-22 Federal PA B 7/16
Comment:

key case


Chapter: 57.3

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)
(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; "New GM's motion is GRANTED to the extent that it seeks to preclude any evidence or argument concerning its invocations to the attorney-client privilege (or related protections, such as the work product doctrine), in this litigation or elsewhere. Relatedly, Plaintiff may not introduce evidence or make arguments concerning the crime-fraud allegations made in the motion to compel or the Court's findings."; "New GM does not appear to challenge Plaintiff's opposition to paragraph five of the proposed order, which would have imposed a potentially onerous 'pre-clearance' requirement with respect to any question 'likely to seek privileged information or draw a privilege objection.'"; "'The Court also agrees with New GM that the parties should use good faith efforts to avoid asking questions of a witness that are likely to draw instructions not to answer on the basis of privilege.'").

Case Date Jurisdiction State Cite Checked
2015-12-03 Federal NY

Chapter: 57.3

Case Name: Fleck v. GM LLC (In re GM LLC Ignition Switch Litigation), Nos. 14-MD-2543 (JMF) & 14-CV-8176, 2015 U.S. Dist. LEXIS 163255, at *383 (S.D.N.Y. Dec. 3, 2015)
January 27, 2016 (PRIVILEGE POINT)

"Can Plaintiffs Seek an Adverse Inference from Defendant Corporations' Privilege Assertions?"

The attorney-client privilege benefits society by encouraging clients' frank disclosure to their lawyers, but it undeniably conceals highly relevant communications. Surprisingly, only a few courts have addressed plaintiffs' tactics designed to imply that corporate defendants are relying on the privilege to hide important evidence the jury should hear -- such as (1) directly arguing that defendants are hiding something, or (2) deliberately posing questions that will draw defendants' privilege objections.

In yet another decision from the court handling GM's ignition switch litigation, Judge Furman dealt with this issue. In Fleck v. GM LLC (In re GM LLC Ignition Switch Litigation), the court granted GM's motion "to preclude any evidence or argument concerning its invocations of the attorney-client privilege (or related protections, such as the work product doctrine), in this litigation or elsewhere." Nos. 14-MD-2543 (JMF) & 14-CV-8176, 2015 U.S. Dist. LEXIS 163255, at *383 (S.D.N.Y. Dec. 3, 2015). However, the court denied GM's motion to impose what the court called "a potentially onerous 'pre-clearance' requirement with respect to any question 'likely to seek privileged information or draw a privilege objection.'" Id. At *384 (internal citation omitted). Instead, the court directed that "the parties should use good faith efforts to avoid asking questions of a witness that are likely to draw instruction not to answer on the basis of privilege." Id. At *385-86.

Corporations which have successfully asserted privilege protection during discovery should be prepared to resist plaintiffs' possible attempts to make jurors think that the corporations are improperly hiding evidence from them.

Case Date Jurisdiction State Cite Checked
2015-12-03 Federal NY
Comment:

key case


Chapter: 57.3

Case Name: Sharer v. Tandberg, Inc., No. 1:06cv626 (JCC), 2007 U.S. Dist. LEXIS 22391, at *3, *4, *4-5, *6 (E.D. Va. Mar. 27, 2007)
(assessing defendant's questions to plaintiff about his meeting with his lawyer; noting that during depositions, the defendant's lawyer asked about the time of communications between the plaintiff and his lawyer; "Plaintiffs anticipate that Defendant will attempt to raise an inference at trial that Law [plaintiff] may have consulted with legal counsel concerning the April 2006 emails, and move to exclude such negative inferences regarding Law's assertion of the attorney client privilege."; explaining that "[t]he mere fact of legal consultation also falls outside the protection of the privilege"; explaining plaintiff's position; "It is clear that the substance of any communications between Law and his attorney are protected by the attorney client privilege, while the fact that he met with an attorney--which he has openly admitted during the course of this litigation is not. . . . Thus, Plaintiffs do not seek to protect the fact of legal consultation under the guise of the attorney client privilege, but instead seek to protect against a negative inference about the substantive information sought during such consultations--namely whether Law was advised by counsel in writing the emails to Tandberg. The issue for this Court to resolve is whether an inference regarding assertion of the privilege intrudes upon that privilege or is irrelevant under Rule 402 of the Federal Rules of Evidence."; "The fact that Law met with an attorney prior to the email exchange with Smith, Ricci, and Kent is only relevant to the extent that an inference may be drawn as to the substance of legal communications between attorney and client. As the Fourth Circuit held in Parker, 'any such inference would intrude upon the protected realm of the attorney client privilege.' . . . Accordingly, Defendant may not refer to Plaintiff's legal consultation prior to the April emails to draw an inference about the substance of legal advice. In concordance with the Fourth Circuit precedent established in Parker, because the fact of legal consultation is only relevant in order to draw this improper inference, the danger of unfair prejudice to the Plaintiff greatly outweighs any probative value under Rule 403 of the Federal Rules of Evidence. Accordingly, this Court sees no reason to allow Defendants to question Law regarding his consultations with counsel prior to the sending of the emails.")

Case Date Jurisdiction State Cite Checked
2007-03-27 Federal VA

Chapter: 57.3

Case Name: Sharer v. Tandberg, Inc., No. 1:06cv626 (JCC), 2007 U.S. Dist. LEXIS 22391, at *4-6 (E.D. Va. Mar. 27, 2007)
("The attorney client privilege 'protects only the communications themselves, not underlying facts.' X-Corp. v. Doe, 805 F. Supp. 1298, 1305 (E.D. Va. 1992) (citing Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). The mere fact of legal consultation also falls outside the protection of the privilege. See, e.g., In Re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983); Howell v. Jones, 516 F.2d 53, 58 (5th Cir. 1975). It is clear that the substance of any communications between Law and his attorney are protected by the attorney-client privilege, while the fact that he met with an attorney – which he has openly admitted during the course of this litigation is not. Thus, Plaintiffs do not seek to protect the fact of legal consultation under the guise of the attorney-client privilege, but instead seek to protect against a negative inference about the substantive information sought during such consultations – namely whether Law was advised by counsel in writing the emails to Tandberg. The issue for this Court to resolve is whether an inference regarding assertion of the privilege intrudes upon that privilege or is irrelevant under Rule 402 of the Federal Rules of Evidence. The Fourth Circuit examined the issue of whether a negative inference may be drawn by invocation of the attorney-client privilege in Parker v. Prudential Ins. Co. of America, 900 F.2d 772 (4th Cir. 1990). In that case, the Fourth Circuit held that 'a client asserting the privilege should not face a negative inference about the substance of the information sought.' Id. at 775. The Court's decision was based upon the finding that the testimony was only probative if one infers that the attorney advised the client to act as she did. The fact that Law met with an attorney prior to the email exchange with Smith, Ricci, and Kent is only relevant to the extent that an inference may be drawn as to the substance of legal communications between attorney and client. As the Fourth Circuit held in Parker, 'any such inference would intrude upon the protected realm of the attorney-client privilege.' Id. Accordingly, Defendant may not refer to Plaintiff's legal consultation prior to the April emails to draw an inference about the substance of legal advice. In concordance with the Fourth Circuit precedent established in Parker, because the fact of legal consultation is only relevant in order to draw this improper inference, the danger of unfair prejudice to the Plaintiff greatly outweighs any probative value under Rule 403 of the Federal Rules of Evidence. Accordingly, this Court sees no reason to allow Defendants to question Law regarding his consultations with counsel prior to the sending of the emails." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2007-03-27 Federal VA B 3/16

Chapter: 57.3

Case Name: Trigon Ins. Co. v. United States, 204 F.R.D. 277, 291 (E.D. Va. 2001)
("[I]t is appropriate to draw adverse inferences respecting the substantive testimony and credibility of the experts. That will be done based on the evidence presented at trial.")

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

Chapter: 57.3

Case Name: Parker v. Prudential Ins. Co. of Am., 900 F.2d 772, 775 (4th Cir. 1990)
("To protect that interest, a client asserting the privilege should not face a negative inference about the substance of the information sought.")

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal

Chapter: 57.4

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)
("Therefore, evidentiary privileges should be 'strictly construed and accepted only to the very limited extent that . . . [what they protect] transcend[s] the normally predominant principle of utilizing all rational means for ascertaining truth.'")

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

Chapter: 57.4

Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "In keeping with this well-settled principle and the broad investigatory and subpoena authority given to agencies, courts have indicated that the privilege should be granted cautiously where administrative investigations are involved.")

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

Chapter: 57.4

Case Name: One World Foods, Inc. v. Stubb's Austin Restaurant Company LC, Case No. A-15-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016)
(holding that plaintiff had waived privilege protection for a legal opinion by turning it over to McCormick, which insisted on receiving the opinion before purchasing the plaintiff; rejecting plaintiff's argument that it and McCormick shared a common interest, because the court found there was no palpable threat of litigation; "Because the assertion of privilege inhibits the search for truth, courts generally construe privilege exemptions narrowly.")

Case Date Jurisdiction State Cite Checked
2016-12-02 Federal TX

Chapter: 57.4

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 of establishing that certain documents are privileged and protected from discovery is on the party asserting the privilege, and the protection claimed must be narrowly construed.")

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

Chapter: 57.4

Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 145811 (N.D. Ill. Oct. 28, 2015)
("The attorney-client privilege, like all testimonial privileges and all exclusionary rules, comes at a price. Since it makes the search for truth more difficult by preventing disclosure of what is often exceedingly relevant information, the privilege is strictly construed and is limited to those instances where it is necessary to achieve its purposes.").

Case Date Jurisdiction State Cite Checked
2015-10-28 Federal IL

Chapter: 57.4

Case Name: United States v. von Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139 (E.D.N.C. March 25, 2015)
("These rules are set against the backdrop that the attorney client privilege is disfavored . . . Because its application interferes with 'the truth seeking mission of the legal process.'")

Case Date Jurisdiction State Cite Checked
2015-03-25 Federal NC

Chapter: 57.4

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civil Action No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *4 (W.D. Va. July 9, 2014)
("[T]he privilege is an exception to the general duty to disclose, and, thus, is an obstacle to investigation of the truth; as such, it should be strictly construed.")

Case Date Jurisdiction State Cite Checked
2014-07-09 Federal VA

Chapter: 57.4

Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "Since the privilege, like all testimonial privileges and all exclusionary rules, makes the search for truth more difficult by preventing disclosure of what is often exceedingly relevant and probative information, it is narrowly construed . . . and is limited to those instances where it is necessary to achieve its purposes.")

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

Chapter: 57.4

Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162331, at *25 (D. Conn. Nov. 14, 2013)
("The Court construes the privilege narrowly because it renders relevant information undiscoverable; we apply it 'only where necessary to achieve its purpose.'")

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

Chapter: 57.4

Case Name: Toensing v. United States Dep't of Justice, Civ. A. No. 11-1215 (BAH), 2013 U.S. Dist. LEXIS 162158, at *14 (D.D.C. Nov. 14, 2013)
("In applying the work product doctrine, the D.C. Circuit has instructed that, it 'should be interpreted broadly and held largely inviolate.'" (citation omitted))

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

Chapter: 57.4

Case Name: Lord Abbett Municipal Income Fund, Inc. v. Asami, No. C-12-03694 DMR, 2013 U.S. Dist. LEXIS 147830, at *5-6 (N.D. Cal. Oct. 11, 2013)
(analyzing the common interest doctrine; finding that bondholders and Wells Fargo (the indenture trustee) did not share a common interest; "Because evidentiary privileges prevent the admission of relevant and otherwise admissible evidence, they should be narrowly construed.")

Case Date Jurisdiction State Cite Checked
2013-10-11 Federal CA B 5/14

Chapter: 57.4

Case Name: Guidiville Rancheria of Cal. v. United States, Case No. 12-cv-1326 YGR (KAW), 2013 U.S. Dist. LEXIS 120509, at *4 (N.D. Cal. Aug. 23, 2013)
("[T]he attorney-client privilege is strictly construed, and it is Defendants' burden to prove every element, including that the privilege was not waived.")

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

Chapter: 57.4

Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *8 (S.D. Ind. June 3, 2013)
("In Indiana, privilege is applied narrowly, especially to communications with in-house counsel.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 57.4

Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *10 (D. Md. Mar. 15, 2013)
(adopting the Rhone [Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir.1994)] rather than the Hearn [Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)] approach; "[C]ourts have narrowly construed the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal MD B 3/14

Chapter: 57.4

Case Name: Buxbaum v. St. Vincent's Health Servs., Inc., Civ. No. 3:12CV117 (WWE), 2013 U.S. Dist. LEXIS 2246, at *6 (D. Conn. Jan. 7, 2013)
("The Court construes the privilege narrowly because it renders relevant information undiscoverable; we apply it 'only where necessary to achieve its purpose.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-07 Federal CT B 7/13

Chapter: 57.4

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 583 (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; "Because application of the attorney-client privilege obstructs the truth-seeking process, it must be narrowly construed.")

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

Chapter: 57.4

Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222 (Ill. 2013)
("[T]he attorney-client privilege constitutes a departure from the general duty to disclose and, accordingly, must be 'strictly confined within its narrowest possible limits.'" (citation omitted))

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

Chapter: 57.4

Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222 (Ill. 2013)
("[T]he attorney-client privilege constitutes a departure from the general duty to disclose and, accordingly, must be 'strictly confined within its narrowest possible limits.'" (citation omitted))

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

Chapter: 57.4

Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *3 (E.D. Va. July 12, 2012)
("Because of this adverse result, in the Fourth Circuit, the work product and attorney-client privileges are construed 'quite narrowly.' Id. [Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004)]. They are recognized 'only to the very limited extent that . . . excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.' Id. [Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004)] (quoting Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)).")

Case Date Jurisdiction State Cite Checked
2012-07-12 Federal VA

Chapter: 57.4

Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *6 (W.D. Va. June 28, 2012)
("'[T]he privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed.' Edwards, 370 S.E.2d at 301; see In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984) (privilege not favored by federal courts and 'is to be strictly confined within the narrowest possible limits. . . .').")

Case Date Jurisdiction State Cite Checked
2012-06-28 Federal VA

Chapter: 57.4

Case Name: Turner v. Digital Broad. Corp., Civ. A. No. 7:10 cv 00559, 2012 U.S. Dist. LEXIS 1416, at *3 n.2 (W.D. Va. Jan. 5, 2012)
("The attorney client privilege must be narrowly construed because it interferes with 'the truth seeking mission of the legal process.' In re Grand Jury Subpoena, 415 F.3d 333, 338 (4th Cir. 2005) (quoting on United States v. Tedder, 801 F.2d 1437, 1441 (4th Cir. 1986)). It will be recognized 'only to the very limited extent that . . . excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.' Id. (relying on Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980)).")

Case Date Jurisdiction State Cite Checked
2012-01-05 Federal VA

Chapter: 57.4

Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Because of this adverse result, in the Fourth Circuit, work product and attorney-client privilege are construed 'quite narrowly.'")

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

Chapter: 57.4

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, ??? (W.D. Va. 2012)
("Since the privilege is an exception to the general rule of disclosure 'an obstacle to investigation of the truth' it is to be strictly construed. Edwards, 370 S.E.2d at 301 [Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (Va. 1988)]

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

Chapter: 57.4

Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 692 (N.D. Ga. 2012)
("In Georgia, the attorney-client privilege is to be narrowly construed.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 9/13

Chapter: 57.4

Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *11 (W.D. Va. June 15, 2011)
("Given that it impedes the full and free discovery of the truth, however, the privilege must be narrowly construed. Hawkins, 148 F.3d at 383.")

Case Date Jurisdiction State Cite Checked
2011-06-15 Federal VA

Chapter: 57.4

Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *11 (W.D. Va. June 15, 2011)
("Given that it impedes the full and free discovery of the truth, however, the privilege must be narrowly construed.")

Case Date Jurisdiction State Cite Checked
2011-06-15 Federal VA

Chapter: 57.4

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, *6-7 (E.D. Va. May 12, 2011)
("[T]he Fourth Circuit Court of Appeals, as the governing appellate authority for this Court, has determined that the attorney-client privilege is to be 'strictly confined within the narrowest possible limits consistent with the logic of its principle.'")

Case Date Jurisdiction State Cite Checked
2011-05-12 Federal VA

Chapter: 57.4

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; finding that the privilege should be "strictly" construed)

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 57.4

Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 571 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [the medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); concluding that the attorney-client privilege did not protect communications between the new employer's president/CEO and the doctor's lawyer; "However, 'the privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed.'" (footnote omitted))

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

Chapter: 57.4

Case Name: The Flexible Benefits Council v. Feldman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *10 (E.D. Va. Oct. 8, 2008)
("In the Fourth Circuit, this privilege is disfavored and is 'strictly confined within the narrowest possible limits.' In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984).")

Case Date Jurisdiction State Cite Checked
2008-10-08 Federal VA

Chapter: 57.4

Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, *12 (W.D. Va. Apr. 15, 2008)
("Because the privilege is an impediment to 'full and free discovery of the truth,' it is to be narrowly construed." (citation omitted))

Case Date Jurisdiction State Cite Checked
2008-04-15 Federal VA B 5/09

Chapter: 57.4

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007)
("Courts disfavor assertions of evidentiary privilege because they shield evidence from the truth-seeking process. . . . assertions of evidentiary privilege are narrowly and strictly construed.")

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

Chapter: 57.4

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 750 (E.D. Va. 2007)
("[A]s with assertions of work-product protection, the privilege is strictly construed, United States v. (Under Seal), 748 F.2d 871, 875 (4th Cir. 1984).")

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

Chapter: 57.4

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007)
("Courts disfavor assertions of evidentiary privilege because they shield evidence from the truth-seeking process."; requiring the proponent of a protection to demonstrate the protection's applicability, "preferably through affidavits from knowledgeable persons"; "[A]ssertions of evidentiary privilege are narrowly and strictly construed.")

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

Chapter: 57.4

Case Name: United States v. Regan, 281 F. Supp. 2d 795, 803 (E.D. Va. 2002)
("'[T]he attorney-client privilege is to be narrowly construed.' Id. [Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)] See also United States v. Oloyede, 982 F.2d 133, 141 (4th Cir. 1993) (same); In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984)")

Case Date Jurisdiction State Cite Checked
2002-01-01 Federal VA

Chapter: 57.4

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("This privilege is inconsistent with the general duty to disclose, impedes the investigation of the truth, and should be strictly construed. [Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988)]")

Case Date Jurisdiction State Cite Checked
2002-01-01 State VA

Chapter: 57.4

Case Name: Commonwealth of Va. v. Evans, 55 Va. Cir. 237, 242 (Va. Cir. Ct. 2001)
("The privilege, however, 'is an obstacle to investigation of the truth, and should be strictly construed.' Id. [Commonwealth v. Edwards, 235 Va. 499, 508-510, 370 S.E.2d 296, 301 (1988) (quoting Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914)] (citing 8 Wigmore, Evidence § 2291 at 554 (McNaughton rev. 1961)).")

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

Chapter: 57.4

Case Name: Commonwealth v. Miller, 66 Va. Cir. 470, 470 (Va. Cir. Ct. 2001)
("This, however, is a privilege that is strictly construed. Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 4 Va. Law Rep. 3003 (1988).")

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

Chapter: 57.4

Case Name: Duncan v. Duncan, 56 Va. Cir. 262, 263 (Va. Cir. Ct. 2001)
(addressing efforts by a lawyer to avoid discovery sought by plaintiff (administrator of a daughter's estate) from the lawyer, who formerly represented both the plaintiff and his former wife (mother of the deceased daughter); finding that the privilege must be "strictly construed") [Hudson, J.]

Case Date Jurisdiction State Cite Checked
2001-01-01 State VA N 11/08

Chapter: 57.4

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 188 (Va. Cir. Ct. 2000)
("The Supreme Court has noted that 'the privilege is an exception to the general duty to disclose . . . and should be strictly construed.' Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296 (1988) (citing 8 Wigmore, Evidence, § 2291 at 554 (McNaughton rev. 1961)).")

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

Chapter: 57.4

Case Name: S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 242 (Va. Cir. Ct. 1993)
("However, the privilege is an exception to the general duty to disclose, is an obstacle to the investigation of the truth, and should be strictly construed.")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA B 12/09

Chapter: 57.4

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1305 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "[T]he privilege is narrowly construed to apply only to those situations in which the party invoking the privilege consulted an attorney for the purpose of securing a legal opinion or services and in connection with that consultation communicated information intended to be kept confidential."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA N 3/10

Chapter: 57.4

Case Name: Commonwealth v. Edwards, 370 S.E.2d 296, 301 (Va. 1988)
("Nevertheless, the privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed."; affirming the trial court's rulings on attorney-client privilege and work product doctrine issued after an in camera review of documents sought by the state government in a Medicaid investigation of a nursing home)

Case Date Jurisdiction State Cite Checked
1988-01-01 State VA

Chapter: 57.4

Case Name: Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (Va. 1988)
("[T]he privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed.")

Case Date Jurisdiction State Cite Checked
1988-01-01 State VA

Chapter: 57.404

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 827 (E.D. Va. 2005)
("And importantly, the burden is on the proponent of the attorney-client privilege to demonstrate its applicability. Specifically, the proponent must establish 'not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003)." (footnotes omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

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

Chapter: 57.502

Case Name: Morris v. Spectra Energy Partners (DE) GP, LP, Civ. A. No. 12110-VCG, 2018 Del. Ch. LEXIS 146 (Del. Ch. May 7, 2018)
("The attorney-client privilege protects legal advice only; it does not shield business advice. . . . Where business and legal advice cannot be separated in a given communication, 'the communication will be considered privileged only if the legal aspects predominate.' On the other hand, where business and legal advice can be easily segregated, the communication 'must be produced with the legal-related portions redacted.' And if 'it is too difficult to determine if the legal issues predominate in a given communication,' 'the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced.'")

Case Date Jurisdiction State Cite Checked
2018-05-07 State DE

Chapter: 57.502

Case Name: Morris v. Spectra Energy Partners (DE) GP, LP, Civ. A. No. 12110-VCG, 2018 Del. Ch. LEXIS 146 (Del. Ch. May 7, 2018)
("The attorney-client privilege protects legal advice only; it does not shield business advice. . . . Where business and legal advice cannot be separated in a given communication, 'the communication will be considered privileged only if the legal aspects predominate.' On the other hand, where business and legal advice can be easily segregated, the communication 'must be produced with the legal-related portions redacted.' And if 'it is too difficult to determine if the legal issues predominate in a given communication,' 'the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced.'")

Case Date Jurisdiction State Cite Checked
2018-05-07 State DE

Chapter: 57.502

Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; finding that the report deserved privilege protection; "Attorney-client privilege protects confidential communications between attorneys and clients, including internal investigation reports supplied by attorneys to their clients, when one of the significant purposes of communication is legal advice, rather than only business advice. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)."; "After reviewing the report in camera, the Court concludes that the report was confidential legal advice from an attorney to a client, and therefore is protected by attorney-client privilege. The Court presumes that outside counsel is retained for legal purposes. . . . Here, the presumption is borne out by the document itself. It includes legal conclusions as to the company's exposure to liability, legal recommendations for avoiding liability from these allegations and protecting against future misconduct that could lead to new allegations, and litigation strategies relating to the sexual harassment allegations at issue at the time of the report. Thus, a 'significant purpose' of the report was to provide legal advice. . . . There are also several indications that the document was intended to be a confidential communication between an attorney and his clients. The report is labeled 'Attorney-Client Privilege' and states that it is '[n]ot to be disseminated beyond ownership group,' with Ergo's owners listed by name underneath. Thus, because the report contains primarily legal advice and was a confidential communication between an attorney and his clients, the report is privileged.")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 57.502

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)
("In determining whether the attorney-client privilege applies, California law employs a shifting burden approach. Initially, the party claiming the privilege must establish "'the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.'"; "Once the party claiming the attorney-client privilege makes the prima facie showing described above, "'the communication is presumed to have been made in confidence.'. . . Then, "'the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.'")

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

Chapter: 57.502

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

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

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

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

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

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

key case


Chapter: 57.502

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

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

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

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

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

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

key case


Chapter: 57.502

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

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

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

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

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

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

key case


Chapter: 57.502

Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420, at *4 (S.D. Cal. Feb. 1, 2016)
("The Ninth Circuit's strict construction of the attorney-client privilege is in direct conflict with the liberal view of the privilege taken by California state law, which presumes the privilege attaches.")

Case Date Jurisdiction State Cite Checked
2016-02-01 Federal CA B 8/16

Chapter: 57.502

Case Name: Cedar Grove Composting Inc. v. Ironshore Specialty Ins. Co., Case No. C14-1443RAJ, 2015 U.S. Dist. LEXIS 171576 (W.D. Wash. Dec. 23, 2015)
("Under Washington law, 'in first-party bad faith insurance suits, Cedell creates a 'presumption that there is no attorney-client privilege relevant between the insured and the insurer in the claims adjusting process, and that the attorney-client and work product privileges are generally not relevant.'").

Case Date Jurisdiction State Cite Checked
2015-12-23 Federal WA

Chapter: 57.502

Case Name: Neelon v. Blair Krueger, Civ. A. No. 12-cv-11198-IT, 2015 U.S. Dist. LEXIS 29146 (D. Mass. March 10, 2015)
("The magistrate judge found that 'communications between Plaintiff and his counsel in the instant litigation" were "presumptively privileged' and need not be disclosed.")

Case Date Jurisdiction State Cite Checked
2015-03-10 Federal MA

Chapter: 57.502

Case Name: Neelon v. Krueger; Civ. A. No. 12-11198-IT, 2014 U.S. Dist. LEXIS 175792 (D. Mass. Dec. 19, 2014)
("Section D is entitled 'Communications between Plaintiff and his Litigation Counsel.' Paragraph 1 refers to communications between the plaintiff and Attorney Andrews, his counsel of record in this case. If all of these communications were in connection of the instant litigation, the Court would not require a privilege log unless the defendants indicated that they sought discovery of these communications and demonstrated some reason why the attorney-client privilege would not apply. The Court views such communications as presumptively privileged.")

Case Date Jurisdiction State Cite Checked
2014-12-19 Federal MA

Chapter: 57.502

Case Name: Neelon v. Krueger; Civ. A. No. 12-11198-IT, 2014 U.S. Dist. LEXIS 175792 (D. Mass. Dec. 19, 2014)
("To the extent that the privilege is claimed as to communications between plaintiff and his counsel in the instant litigation, the Court, as previously stated, views these communications as presumptively privileged.")

Case Date Jurisdiction State Cite Checked
2014-12-19 Federal MA

Chapter: 57.502

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: 57.502

Case Name: Collazo v. Balboa Ins. Co., Case No. C13-892 JCC, 2014 U.S. Dist. LEXIS 109336 (W.D. Wash. Aug. 7, 2014)
("Where an attorney is engaged in the tasks of 'investigating and evaluating or processing the claim' during the claims adjustment process . . . The presumption against the attorney-client privilege applies and the insurer may not raise the shield of privilege. However, where an attorney instead engages in core attorney-client communications with the insurer, such as 'providing the insurer with counsel as to its own potential liability,' there is no presumption against the attorney-client privilege. . . . Here, upon review of the unredacted documents in camera, the Court finds that the relevant entries did not relate to the investigation, evaluation, or processing of the claim. Instead, they consist solely of statements that are an attorney's work-product, or are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-08-07 Federal WA

Chapter: 57.502

Case Name: Collazo v. Balboa Ins. Co., Case No. C13-892 JCC, 2014 U.S. Dist. LEXIS 109336 (W.D. Wash. Aug. 7, 2014)
("In Washington, 'in first party insurance claims by insured's [sic] claiming bad faith in the handling and processing of claims . . . There is a presumption of no attorney-client privilege' in the claims adjustment process.")

Case Date Jurisdiction State Cite Checked
2014-08-07 Federal WA

Chapter: 57.502

Case Name: Feld v. Fireman's Fund Insurance Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. LEXIS 52525 (D.D.C. Apr. 16, 2014)
July 2, 2014 (PRIVILEGE POINT)

"Court Requires an Adversary to Specifically Challenge a Litigant's Privilege Log"

In most situations, litigants withholding protected documents must specifically list and describe the documents, rather than relying on blanket privilege or work product assertions. Do courts require an adversary to show the same level of specificity in challenging a litigant's privilege log?

In Feld v. Fireman's Fund Insurance Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. LEXIS 52525 (D.D.C. Apr. 16, 2014), circus owner Feld sought attorneys' fees after winning an insurance coverage action against defendant insurance company. Among other things, the insurance company challenged Feld's withholding of documents on work product protection grounds. Although acknowledging that the defendant "ha[d] not seen the actual documents, so it might have been difficult to offer detailed objections to individual entries on Feld's privilege log," the court noted that defendant "has not even attempted to do so, instead offering only one paragraph of generalized argument that is purportedly applicable to every single document in dispute." Id. at *9. The court rejected the insurance company's blanket challenge to Feld's log -- concluding that Feld's lawyers "are presumed to be conducting themselves diligently and in good faith" in preparing privilege logs in their role as "officers of the court." Id. at *11. The court nevertheless "reviewed a limited sample of the disputed documents in camera" and found Feld's privilege log adequate. Id. (footnote omitted). Interestingly, the court specifically described one log entry as an "email thread" -- thus implicitly disagreeing with courts that require each email to be separately logged. Id. at *13.

Corporations that frequently log numerous protected documents should take comfort in both aspects of such common-sense opinions.

Case Date Jurisdiction State Cite Checked
2014-04-16 Federal DC
Comment:

key case


Chapter: 57.502

Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *42 (S.D. Cal. Mar. 6, 2014)
(analyzing a claim by plaintiffs, who sold their stock in the Neology to Smarttrac, after which the defendant eliminated plaintiffs' liquidation preferences; "Once an attorney-client relationship is established, communications between attorney and client are presumed to be in confidence, and an opposing party bears the burden of proving the communication was not in confidence. Cal. Evid.Code § 917.")

Case Date Jurisdiction State Cite Checked
2014-03-06 Federal CA B 8/14

Chapter: 57.502

Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *4 5 (Del. Ch. Dec. 9, 2013
("I further note that the attorney-client privilege protects legal advice only, and not business or personal advice. Where business and legal advice are inseparable in a communication -- or the communication includes individuals serving in both business and legal advisory roles -- the communication will be considered privileged only if the legal aspects predominate. . . . In addition, for communications containing both business and legal advice, in which the business and legal advice can be segregated easily, they 'must be produced with the legal-related portions redacted.' There are circumstances, however, in which legal and business advice cannot be segregated or it is too difficult to determine if the legal issues predominate in a given communication. In those situations, the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced." (citation and footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 57.502

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 634 (D. Nev. 2013)
("Both Chen [United States v. Chen, 99 F.3d 1495 (9th Cir. 1996)] and United States v. ChevronTexaco Corp. [, 241 F.Supp.2d 1065 (N.D. Cal. 2002)] affirm that '[c]ommunications between a client and its outside counsel are presumed to be made for the purpose of obtaining legal advice.'" (citation omitted))

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

Chapter: 57.502

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 643 (D. Nev. 2013)
("While there is a presumption that communications between a client and outside counsel are made for the purpose of obtaining legal advice, this presumption is rebuttable.")

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

Chapter: 57.502

Case Name: Hedden v. Kean Univ., 82 A.3d 238, 245 (N.J. Super. Ct. App. Div. 2013)
("[T]here is a presumption that a communication made in the lawyer-client relationship has been made in professional confidence.")

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

Chapter: 57.502

Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *8 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "Communication between corporate client and outside litigation counsel are cloaked with a presumption of privilege. . . . Communications between corporate client and corporate counsel -- on the other hand -- involve a much different dynamic and require the proponent to satisfy a 'purpose and intent' threshold test.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 57.502

Case Name: Collins v. Braden, 384 S.W.3d 154, 161 (Ky. 2012)
(holding that the attorney-client privilege might protect documents created during an internal corporate investigation about a plaintiff's suicide; remanding for further evidence; "While a claim of privilege should be presumed to be proper until challenged by the party seeking the materials, Ms. Collins has challenged the hospital's claim at every turn. . . . The burden of establishing the privilege . . . falls solely on the hospital.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State KY B 9/13

Chapter: 57.502

Case Name: Collins v. Braden, 384 S.W.3d 154, 161 (Ky. 2012)
("While a claim of privilege should be presumed to be proper until challenged by the party seeking the materials, Ms. Collins has challenged the hospital's claim at every turn.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State KY B 1/14

Chapter: 57.502

Case Name:


Case Date Jurisdiction State Cite Checked

Chapter: 57.503

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 643 (D. Nev. 2013)
("While there is a presumption that communications between a client and outside counsel are made for the purpose of obtaining legal advice, this presumption is rebuttable.")

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

Chapter: 57.504

Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)