Showing 235 of 235 results

Chapter: 59.5

Case Name: 866 East 164th Street, LLC v. Union Mutual Fire Ins. Co., 16-CV-03678 (SN), 2016 U.S. Dist. LEXIS 162703 (S.D.N.Y. Nov. 23, 2016)
("Each party selected documents from the defendant's privilege log for the Court's in camera review. Upon review of the parties' letters, the exemplars, and case law concerning attorney-client privilege and work product privilege, the Court holds that: (1) any legal invoices reflecting claims-handling activities performed by Mr. Gold or another attorney, as illustrated by the five representative documents submitted by the defendant, are not privileged; (2) communications reflecting only the individual reserve figures and not any underlying methodology or analysis, as illustrated in UNION0011, are not privileged or otherwise protected; (3) communications demonstrating Mr. Gold's involvement in routine insurance business activity surrounding the defendant's decision to pay or deny the claim at issue are to be produced in their entirety; and (4) communications containing a naked question of law directed to Mr. Gold and his corresponding advice may be redacted with the remaining document produced.")

Case Date Jurisidction State Cite Checked
2016-11-23 Federal NY

Chapter: 59.5

Case Name: Summerville v. Moran, No. 1:14-cv-02099-WTL-TAB, 2016 U.S. Dist. LEXIS 6384, at *16, *17 (S.D. Ind. Jan. 20, 2016)
(finding that an inadequate log did not result in a waiver; "If consent is not obtained, Leaberry [defendant's lawyer] shall provide Summerville with a 'quick peek' of a selection of twelve documents from the privilege log for review. Within twenty-one days of receiving Leaberry's notice that consent was not obtained, Summerville will select and advise Leaberry in writing of the twelve documents he wishes to review. Leaberry will then produce the documents to Summerville within twenty-one days of receiving the request. Once Summerville has reviewed the documents, the parties shall meet and confer, then file a status report advising the Court whether Summerville wishes to pursue disclosure of more documents listed in the privilege log and whether the parties can come to an agreement on production. This arrangement will allow Leaberry to produce some documents for review while avoiding the excessive costs of a full privilege review and without waiving privilege."; "If the parties have gone through all these steps and still cannot come to an agreement on what documents to produce, upon request, the Court will make an in camera review of a sampling of the documents to determine the applicability of the attorney-client privilege. The Court will then order Leaberry to produce additional documents if the assertion of privilege is not found to be wholly appropriate.")

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

Chapter: 59.5

Case Name: Shipyard Associates, L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927 (D.N.J. Aug. 3, 2015)
("Shipyard advised the Court that a large number of documents were being withheld by Hoboken on various privilege grounds -- i.e., the attorney-client privilege; the work product doctrine; the common interest doctrine; and the deliberative process privilege -- which it claimed was improper. The Court authorized informal briefs to be submitted and for Shipyard to select representative samples from Hoboken's privilege log for in camera review."; "The concept was that the Court would review the samples and make 'representative' rulings, which could then be applied to any similar documents being withheld -- a technique that this a other courts have used when there are large numbers of privileged documents in dispute.")

Case Date Jurisidction State Cite Checked
2015-08-03 Federal NJ

Chapter: 59.5

Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Since providing its initial log, Mechel has re-designated certain documents as non-responsive. Those documents will be produced. By listing the documents initially on the log, Mechel's counsel represented that they were responsive. The re-designation of the documents as non-responsive is too convenient.")

Case Date Jurisidction State Cite Checked
2014-12-12 State DE

Chapter: 59.5

Case Name: Jo Ann Howard & Assoc., P.C. v. Cassity, Case No. 4:09CV01252 ERW, 2014 U.S. Dist. LEXIS 167761 (E.D. Mo. Dec. 3, 2014)
(after an in camera review describing privilege holdings using repetitive boilerplate descriptions withholdings)

Case Date Jurisidction State Cite Checked
2014-12-03 Federal MO

Chapter: 59.5

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 173162, at *4-5 (S.D.N.Y. Dec. 6, 2013)
("Unfortunately, it is not clear from the parties' submissions whether any of the withheld documents within this presumably limited universe are, indeed, discoverable. UBS shall therefore produce, within seven days of the date of this order, a random sample of 50 documents for my review in camera. The sample shall be taken from those documents included within categories 4, 5, and 7 of the JCIII Privilege Log.")

Case Date Jurisidction State Cite Checked
2013-12-06 Federal NY B 5/14

Chapter: 59.5

Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *6-7 (E.D. Wis. July 10, 2013)
("[T]he government indicates that some of Magistrate Judge Gorence's determinations are inconsistent -- a few documents appear to be listed on multiple privilege logs but on one log are ruled privileged and on another log are ruled not privileged. . . . To the extent that this has occurred, such documents are not privileged. None of the defendants objected to any of the 'not privileged' rulings. Thus, those rulings stand and the documents must be disclosed regardless of whether they were found privileged on another log by Magistrate Judge Gorence (or even by this court in this opinion).")

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

Chapter: 59.5

Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *31, *31-32 (D. Ariz. Apr. 17, 2013)
("To review all 176 documents listed in Exhibit A would be an undue burden, especially when many of the documents involve e-mail strings that include multiple documents. I recommend that SGD and Lockheed each identify ten documents to be submitted for in camera review."; "Lockheed should explain, by declaration, Sumitomo's role and why Lockheed maintains that documents sent to or through Sumitomo remain entitled to attorney-client privilege or work-product protection."; "I anticipate that the results of the in camera review will provide guidance on appropriate rulings (or recommendations) and whether further remedies (e.g., additional in camera review or evidentiary declarations from Lockheed) are needed.")

Case Date Jurisidction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 59.5

Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 112 (D.D.C. 2012)
("I will hold counsel for BIPI strictly to the obligation imposed by Rule 26(g) of the Federal Rules of Civil Procedure and expect the redactions it makes to be not a word more than is necessary to protect a privilege. If that is not done, I will sanction BIPI counsel and, at a minimum, BIPI will forfeit its privilege to that document. If I detect a pattern of a failure to comply with the obligations I am imposing, I will consider forfeiting the privilege as to all remaining documents.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 59.5

Case Name: Am. Nat'l Bank & Tr. Co. v. Equitable Life Assurance Soc'y, 406 F.3d 867, 870 n.1, 872, 873 (7th Cir. 2005)
(reversing a district court's order requiring defendant to produce privileged documents; noting that defendant had repeatedly revised its privilege log, but that disputes remained; explaining that the magistrate judge initially refused to review documents in camera; "[T]he magistrate judge said to Equitable: 'If you think I'm going to go through 1500 documents, read them all, and decide from this kind of stuff, you are mistaken . . . . I'm not going to allow somebody to put me in a position where I'm going to be reading documents in camera."; explaining that "the magistrate judge sua sponte formulated his own procedure to determine if he would impose the global-disclosure sanction: Emerald [plaintiff] would select twenty of the remaining documents on the fourth-amended log and then Equitable would submit those twenty for in camera review. This was not a random sample; every document that had not already been reviewed in camera was fair game. Then, if the magistrate judge found four or more of the twenty to contain non-privileged material, he would sanction Equitable by ordering a disclosure of every document remaining on the log. On the other hand, if he found three or fewer to contain non-privileged material, he would deny Emerald's motion."; noting that the magistrate judge apparently forgot the details of his own order; "After some more wrangling and two additional hearings, the magistrate judge announced his decision on the record on September 23, 2002. He first ruled that four documents were not protected by the attorney-client privilege but that the other sixteen were. Curiously, he then denied Emerald's motion, stating that he would not sanction Equitable because he believed that his August 14 ruling was that 'four and no more' equaled no sanction. . . . Emerald challenged the magistrate judge's recollection, accurately stating that the rule was, if there were four or more non-privileged documents, 'we get everything.' . . . After a recess, the magistrate judge corrected his error and included a fifth document on the list of the non-privileged. The magistrate judge thus reversed his earlier ruling and granted the motion, ruling that he could not 'rely on the integrity' of the log." (emphasis added); "This disclosure was to include thirty-three documents that the magistrate judge himself found to contain privileged material: eight from his March 20 ruling, ten from his June 5 ruling, and fifteen from his September 23 ruling.") (emphasis added).

Case Date Jurisidction State Cite Checked
2005-01-01 Federal B 3/17

Chapter: 59.6

Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Plaintiffs were free to select as their five exemplars those documents that were on Wells Fargo's privilege log and for which it has exercised its claw back rights. In addition, the Protective Order allows for a party to submit disputed material under seal for a privilege determination by the Court. See Royal Park Inv. SA/NV v. Wells Fargo Bank, N.A., No. 14 Civ. 9764 (KPF)(SN), Amended Stipulation and Agreed Protective Order, ¶ 14(d) (ECF No. 52). Accordingly, plaintiffs' conduct was proper.")

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

Chapter: 59.6

Case Name: Loop AI Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2017 U.S. Dist. LEXIS 4254 (N.D. Cal. Jan. 11, 2017)
(after reviewing documents in camera and concluding that they deserved privilege protection, assuring a litigant that the documents did not conflict with earlier deposition testimony; "At the December 10, 2015 hearing, the undersigned ruled that Plaintiff was not entitled to privileged Orrick documents for the purpose of 'double-checking' the truthfulness of Sternberg's [then-Orrick Herrington lawyer] statement. . . . The court noted that, through the process of in camera privilege review, it would have the opportunity to examine the Orrick documents to determine whether they contradicted Sternberg's representation about his knowledge of Gatti's employment with Loop. . . . In the course of its review, the court did not find any communications that contradicted Sternberg's statement. Nothing in the documents reviewed in camera by the court indicates that Sternberg gave his client advice about the 'implications arising from Anna Gatti's employment' with Loop.")

Case Date Jurisidction State Cite Checked
2017-01-11 Federal CA

Chapter: 59.6

Case Name: Apple Inc. v. Samsung Electronics Co. Ltd., Case No. 11-CV-01846-LHK, 2015 U.S. Dist. LEXIS 80954 (N.D. Cal. June 19, 2015)
(holding that Quinn Emanuel caused an at issue waiver by relying on privileged communications to defend itself from sanctions after having erroneously transmitted to its client Samsung protected Apple communications subject to a protective order; explaining the context; "On November 15, 2013, Samsung submitted an ex parte in camera brief in support of its claims that the eleven disputed documents were protected by the attorney-client privilege and work-product doctrine. . . . Apple and Nokia immediately moved to strike Samsung's brief and supporting declarations as improper ex parte submissions. . . . On November 18, 2013, Judge Grewal agreed with Apple and Nokia, held that Samsung's ex parte brief regarding privilege was an improper ex parte communication, and ordered Samsung to file by November 19, 2013, Samsung's November 15, 2013 brief with redactions only for attorney-client, work-product, or mediation privileges.")

Case Date Jurisidction State Cite Checked
2015-06-19 Federal CA

Chapter: 59.6

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 49305 (S.D.W. Va. April 15, 2015)
(entering a seal order to avoid disclosure of an inadvertently produced document; "In light of the undersigned's finding that ECF No. 278-1 is a privileged communication between attorney and client, and the privilege remains intact, good cause exists to keep the document sealed from public access. The importance of preserving the attorney-client privilege cannot be overvalued. 'The attorney-client privilege is one of the oldest recognized privileges for confidential communications.'. . . The interest served by maintaining the confidentiality of the attorney-client communication in this case plainly outweighs any countervailing interest the public might have in reviewing the document.")

Case Date Jurisidction State Cite Checked
2015-04-15 Federal WV

Chapter: 59.6

Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 23, at *43-44 (Del. Ch. Sept. 18, 2013)
(analyzing the scope of an implied waiver caused by defendant trust company's assertion of an advice of counsel defense in a lawsuit brought by beneficiaries; "Wilmington Trust contended that I should postpone ruling on the scope of Wilmington Trust's at-issue waiver until the Beneficiaries have challenged the assertion of privilege as to specific documents on the Privilege Log, and the challenged documents have been reviewed in camera. Wilmington Trust seems to largely abandon that argument in its reply brief, but I will address it for the sake of completeness. In a nutshell, although that would be one method for resolving the scope of the waiver, it is not the only method, nor does it promise to be the most efficient method given the advanced state of the parties' briefing on this topic, the expedited nature of the litigation, and the length of time Wilmington Trust took to produce a privilege log that contained, in the end, only 49 entries.")

Case Date Jurisidction State Cite Checked
2013-09-18 State DE B 4/14

Chapter: 59.6

Case Name: Adair v. EQT Prod. Co., Case Nos. 1:10CV00037 & 41, 2012 U.S. Dist. LEXIS 90250, at *15-16 n.8 (W.D. Va. June 29, 2012)
("The parties must understand that certain e-discovery expenses may be recoverable as costs to the prevailing party. See CBT Flint Partners, LLC v. Return Path, Inc., 676 F. Supp. 2d 1376, 1381 (N.D. Ga. 2009) ('The enormous burden and expense of electronic discovery are well known. Taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery.')

Case Date Jurisidction State Cite Checked
2012-06-29 Federal VA

Chapter: 59.6

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498-99 (4th Cir. 2011)
("In most cases, an ALJ's rulings on privilege do not require court enforcement, because the parties either comply voluntarily with the ALJ's rulings, see, e.g., Patrick Cudahy, Inc., 288 N.L.R.B. 968, 968-69 (1988); see also Horizon Corp. v. FTC, No. 76-2031, 1976 U.S. Dist. LEXIS 12222, *2-7 (D.D.C. Nov. 18, 1976), or the ALJ's rulings are made without the need for inspection of the underlying documents, see, e.g., Taylor Lumber, 326 N.L.R.B. at 1299-1300. If enforcement becomes necessary, however, the parties must then turn to the district courts to obtain it. At that time, only the district court determines whether to enforce the subpoena and, in making that determination, evaluates the claims of privilege and, if necessary, conducts an in camera review. Moreover, in carrying out this judicial function, the court cannot delegate its task of conducting an in camera review to an ALJ. This reservation of authority to Article III courts protects against abuse of the subpoena power. While judicial scrutiny of administrative subpoenas is, to be sure, limited, see EEOC v. City of Norfolk Police Dept., 45 F.3d 80, 82 (4th Cir. 1995), courts do not simply order the enforcement of subpoenas as a matter of course, and certainly not blindly, see Penfield Co. v. SEC, 330 U.S. 585, 604, 67 S. Ct. 918, 91 L. Ed. 1117 (1947) (Frankfurter, J., dissenting)."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 59.6

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 499 (4th Cir. 2011)
("Accordingly, before a court commands a party to comply with a subpoena, it must first determine that the subpoena 'is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.' United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed. 401, 46 F.T.C. 1436 (1950). In short, on an application of an administrative agency for the enforcement of a subpoena in court, the respondent is guaranteed an opportunity to contest the subpoena's validity through any appropriate defense. See Penfield, 330 U.S. at 604 (enumerating several grounds on which '[a]n administrative subpoena may be contested'); NLRB v. Cable Car Advertisers, Inc., 319 F. Supp. 2d 991, 996 (N.D. Cal. 2004) ('[A] party [to] . . . a subpoena enforcement proceeding may raise appropriate defenses once in district court'). In addition to guarding against over breadth or a lack of specificity, the right to raise appropriate defenses includes the right to vindicate claims that a subpoena improperly calls for records protected by the attorney-client or work-product privileges. See, e.g., Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1306-07, 326 U.S. App. D.C. 332 (D.C. Cir. 1997); NLRB v. Harvey, 349 F.2d 900, 907 (4th Cir. 1965). Because a respondent's claim of privilege is the basis for its refusing to produce documents in response to a subpoena, it is inherent in carrying out the judicial function of deciding whether to enforce the subpoena to resolve the respondent's challenge to the subpoena. See NLRB v. Int'l Medication Sys., Ltd., 640 F.2d 1110, 1115-16 (9th Cir. 1981); Harvey, 349 F.2d at 907 (holding that the district court was required to conduct 'a full evidentiary hearing' before enforcing a Board subpoena challenged on privilege grounds). Thus, in this case, ALJ Clark had authority, on the basis of the privilege log and the Board's response to it, to sustain the claim of privilege or to order the production of documents for in camera review. But when Interbake refused to comply with that order, the ALJ lacked the power to enforce it. To obtain enforcement, the Board had to apply to the district court for a judicial order of enforcement, in accordance with the established division of powers between agencies and courts. We do not say that an ALJ does not have authority to rule on a claim of privilege. He can make such a ruling just as he could rule on any issue of evidence presented to him during the course of a hearing. But the ALJ has no power to require the production of documents for in camera review or for admission into evidence when a person or party refuses to produce them. That would require Article III power, which the ALJ does not have."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 59.7

Case Name: Gruss v. Zwirn, 296 F.R.D. 224, 231 (S.D.N.Y. 2013)
("In camera review allows the Court to determine whether an alleged 'work product concern is real, or only speculative,' and establishes a record for appellate review." (citation omitted))

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

Chapter: 59.7

Case Name: JMB/Urban 900 Dev. Partners, Ltd. v. Hazan, 2013 IL App. (1st) 113714-U, ¶23
("We initially find that defendants have forfeited their challenge to Rappaport's [defendants' former lawyer] testimony. Although defendants objected to Rappaport being allowed to testify prior to the evidentiary hearing, the trial court told defense counsel that its decision to allow Rappaport to testify was 'interlocutory' and was subject to the court's 'obligation as Mr. Rappaport testifies to reconsider any rulings with respect to this.' Despite this statement by the court, defendants did not object to any specific testimony that Rappaport gave at the evidentiary hearing. By failing to do so, defendants deprived the trial court of the opportunity to make a ruling as to whether any specific communication was covered by the attorney-client privilege before Rappaport testified to that communication and deprived the court of the chance to make specific findings that this court could review on appeal.")

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

Chapter: 59.8

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)
("[W]e conclude that the district court was within its discretion to reject the Board's proffered reasons for doubting Interbake's preliminary showing of privilege. Once a prima facie showing of a privilege has been made, an opposing party can justify in camera inspection of the documents by advancing 'a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged.' In re Grand Jury Investigation, 974 F.2d 1068, 1074 (9th Cir. 1992); see also G.D. v. Monarch Plastic Surgery, 239 F.R.D. 641, 650 (D. Kan. 2007) (requiring a 'cogent basis' to justify in camera review). The Board claims that it met this standard by showing a conflict between Jill Slaughter's testimony that the earliest she communicated with anyone about the Missy Jones investigation was 'around February 13,' 2009, and Interbake's privilege log, which identifies two e-mails that Slaughter sent on February 9, 2009 regarding the 'Missy Jones Investigation.' The fact that Slaughter may have testified incorrectly regarding the dates of her communications (intentionally or otherwise) does not compel an inference that her February 9 e-mails were not privileged. Especially in light of the heightened standard of review on such matters, we find this argument insufficient to justify reversal."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 59.302

Case Name: United States v. Micro Cap Ky Ins. Co., Inc., Civil Case No. 5:16-cv-278-JMH-REW, Civil Case No. 5:16-cv-279-JMH-REW, 2017 U.S. Dist. LEXIS 44261 (E.D. Ky. March 27, 2017)
(holding that asserting a "reasonable cause" argument in tax court might trigger an implied waiver; "Pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), a district court judge may refer dispositive matters to a magistrate judge for the preparation of a report and recommendation. The magistrate judge must conduct the necessary proceedings and enter a recommended disposition in a timely manner. Fed. R. Civ. P. 72(b)(1). If a party files objections to that recommended disposition, the district court judge must review the contested portions de novo and 'accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.' Fed. R. Civ. P. 72(c)."; "Although the Sixth Circuit has not squarely addressed this issue, it has 'indicated that a party's failure to raise an argument before the magistrate judge constitutes a waiver.'")

Case Date Jurisidction State Cite Checked
2017-03-27 Federal KY

Chapter: 59.302

Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
(analyzing the review standard for an Article III judge's review of a magistrate judge's ruling, and the relationship between an administrative law judge and an Article III judge; "As an initial matter, NPC asserts that the magistrate judge exceeded his authority by entering an order regarding enforcement of the subpoena, rather than a report and recommendation. To resolve this issue, the Court must determine whether an application to enforce a subpoena duces tecum is dispositive. Many courts who have considered this question have answered in the affirmative. Those courts reasoned that, although a motion to quash a subpoena is often a non-dispositive matter, where a court's decision disposes of the entire matter at issue, it is more properly characterized as dispositive and therefore subject to de novo review. . . . The Court finds this reasoning persuasive. Once an order is entered in this matter, the entirety of the dispute that is before this Court will be resolved. Therefore, the application to enforce the subpoena is dispositive, and the magistrate judge only had authority to render a report and recommendation. In accordance with the standards of review outlined below, the Court will construe Judge Bryant's decision relating to the subpoena enforcement application as a recommendation which will be reviewed de novo and will apply the clearly erroneous or contrary to law standard with respect to its denial of the motion to strike."; "Although NPC is correct that the ultimate authority to assess claims of privilege in the context of a subpoena enforcement action lies with the district court, in this Court's view, its reading of Detroit Newspapers [N.L.R.B. v. Detroit Newspapers, 185 F.3d 602 (6th Cir. 1999)] is overly broad. Respondent posits that it had no responsibility to produce a privilege log before the Board. Thus, reasons NPC, it cannot have waived its right to seek protection based on attorney-client privilege and work-product doctrine in district court for failure to exhaust the issue at the administrative level."; "While the district court does maintain exclusive authority to enforce a subpoena, and to render a binding decision regarding privilege, had Respondent cooperated at the Board level, the Court's review of this matter might not have been necessary."; "[T]he Court does not condone NPC's complete failure to comply with reasonable requests from the Board to explain its basis for not producing documents it claims are protected by the attorney-client privilege or work-product doctrine. Nevertheless, given this Court's authority to make an ultimate determination on these issues, Respondent's reliance on these protections will not be treated as waived for failure to submit a privilege log to the Board.")

Case Date Jurisidction State Cite Checked
2017-02-16 Federal TN

Chapter: 59.302

Case Name: In re Syngenta AG Mir 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 11749 (D. Kan. Jan. 27, 2017)
("Here, the subpoena served on Mr. Carrato required compliance in San Francisco, California. Because compliance is not required in the District of Kansas, this court cannot quash the subpoena or otherwise provide the relief requested by Monsanto. Although it is true, as Monsanto points out, that a motion to quash a subpoena may, in exceptional circumstances, be transferred to the court from which the subpoena was issued, only 'the court where compliance is required' may determine whether such circumstances exists and make the transfer. Because this court is without power to quash the subpoena or transfer the motion to itself, the motion is denied without prejudice to refiling in the Northern District of California. Should Monsanto re-file its motion in that court, and further, should that court transfer the motion to this court, the following briefing deadlines will apply: any response to the motion shall be filed within two days of the entry of the order of transfer; any reply shall be filed within one day of the response.")

Case Date Jurisidction State Cite Checked
2017-01-27 Federal KS

Chapter: 59.302

Case Name: AKH Company, Inc. v. Universal Underwriters Ins. Co., Case No. 13-2003-JAR-KGG, 2016 U.S. Dist. LEXIS 178005 (D. Kansas Dec. 22, 2016)
("The Central District of California 'determined that it was necessary to review the documents in camera to determine whether they qualified for protection.'. . . That Court ultimately determined that the District of Kansas and the undersigned Magistrate Judge were 'best suited to conduct the [requested] document review' as "'[h]e had been overseeing the discovery in [this] case since February 2013.'. . . Further, the undersigned Magistrate Judge has previously reviewed thousands of pages -- and has ordered the production of hundreds of pages -- of otherwise privileged or protected documents in this case on the basis of the crime-fraud exception, the same issue on which the present motion hinges.")

Case Date Jurisidction State Cite Checked
2016-12-22 Federal KS

Chapter: 59.302

Case Name: Costco Wholesale Corporation v. Crane, Case No. 16-mc-80189-JSC, 2016 U.S. Dist. LEXIS 132778 (N.D. Cal. Sept. 27, 2016)
(transferring a privilege dispute back to the Southern District of California, where the main case was pending; "Rule 45 requires that subpoenas be issued from the court where the action is pending. See Fed. R. Civ. P. 45(a)(2). 'When the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.' Fed. R. Civ. P. 45(f)."; "The Court finds that exceptional circumstances exist because the issues raised by Costco's motion to compel either have been ruled on by or are currently pending before Judge Brooks in the Southern District of California.")

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

Chapter: 59.302

Case Name: NLRB v. D. Bailey Management Co., No. 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. Apr. 25, 2016)
June 1, 2016 (PRIVILEGE POINT)

"Courts Deal with Litigants' Tardy or Inadequate Privilege Logs"

Courts frequently deal with litigants' tardy or inadequate privilege logs. Among other things, they must decide the standard of review for a magistrate judge's initial determination; who has jurisdiction to impose sanctions; and the obvious issue of a late or inadequate log's implications. Three decisions decided in the same month highlight these issues.

In United States SEC v. Commonwealth Advisors, Inc., the court extensively analyzed the proper standard for reviewing a magistrate judge's decision that a litigant waived its privilege protection by including "factually incorrect entries" in an amended log (following the magistrate judge's conclusion that the first log was inadequate). Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *4 (M.D. La. Apr. 6, 2016). The court applied a "clearly erroneous" standard in upholding the magistrate judge's harsh sanction. Id. At *6. A few weeks later, in NLRB v. D. Bailey Management Co., No. 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. Apr. 25, 2016), the court first held that an administrative law judge lacked the power to sanction a litigant's tardy log by finding a waiver — but then itself found that the defendant waived its privilege by failing to log withheld documents for nearly a year. Three days after that, the court in Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. Apr. 28, 2016), followed the more generous approach many courts take — finding a litigant's logs inadequate, but giving it a second chance.

The SEC v. Commonwealth Advisors court recognized that "[d]iscovery has become the preeminent battleground in modern litigation, perhaps eclipsing the rare trial." 2016 U.S. Dist. LEXIS 46438, at *2 n.1. That battleground often includes skirmishes over privilege logs' timing and adequacy.

Case Date Jurisidction State Cite Checked
2016-04-25 Federal CA
Comment:

key case


Chapter: 59.302

Case Name: National Labor Relations Board v. D. Bailey Mgmt. Co., 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. April 25, 2016)
("[T]he Court finds that the ALJ lacked the authority to issue a binding order finding that respondent has waived the attorney-client privilege. That question rests solely in the hands of the district courts.")

Case Date Jurisidction State Cite Checked
2016-04-25 Federal CA

Chapter: 59.302

Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)
("[T]he Court's Civil Chambers Rules do not require counsel to call Chambers when a privilege dispute arises during a deposition. The parties may call Chambers, but they are not required to do so.")

Case Date Jurisidction State Cite Checked
2016-02-02 Federal CA

Chapter: 59.302

Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *4 (E.D. Wis. July 10, 2013)
("A magistrate judge is authorized to decide nondispositive motions such as those involving attorney-client or work product privilege.")

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

Chapter: 59.302

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)
("[W]e conclude that the district court was within its discretion to reject the Board's proffered reasons for doubting Interbake's preliminary showing of privilege. Once a prima facie showing of a privilege has been made, an opposing party can justify in camera inspection of the documents by advancing 'a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged.' In re Grand Jury Investigation, 974 F.2d 1068, 1074 (9th Cir. 1992); see also G.D. v. Monarch Plastic Surgery, 239 F.R.D. 641, 650 (D. Kan. 2007) (requiring a 'cogent basis' to justify in camera review). The Board claims that it met this standard by showing a conflict between Jill Slaughter's testimony that the earliest she communicated with anyone about the Missy Jones investigation was 'around February 13,' 2009, and Interbake's privilege log, which identifies two e-mails that Slaughter sent on February 9, 2009 regarding the 'Missy Jones Investigation.' The fact that Slaughter may have testified incorrectly regarding the dates of her communications (intentionally or otherwise) does not compel an inference that her February 9 e-mails were not privileged. Especially in light of the heightened standard of review on such matters, we find this argument insufficient to justify reversal."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 59.302

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 495 (4th Cir. 2011)
("[W]e also hold that an ALJ's order imposed in the course of an administrative hearing, even when ruling on evidence, can only be enforced by an Article III court. When refusal to comply with a subpoena and the Board's order to produce documents is based on the attorney client or work product privilege, the Board's recourse is to apply to the district court for an order enforcing the subpoena. In deciding whether to enforce the subpoena, the court must then assess the legitimacy of the claimed privilege. Thus, while we do not preclude any administrative assessment of claims of privilege, we do conclude that when an assessment of those claims is necessary to a court's determination of whether to enforce the subpoena, the assessment must be conducted by the court."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 59.302

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498-99 (4th Cir. 2011)
("In most cases, an ALJ's rulings on privilege do not require court enforcement, because the parties either comply voluntarily with the ALJ's rulings, see, e.g., Patrick Cudahy, Inc., 288 N.L.R.B. 968, 968-69 (1988); see also Horizon Corp. v. FTC, No. 76-2031, 1976 U.S. Dist. LEXIS 12222, *2-7 (D.D.C. Nov. 18, 1976), or the ALJ's rulings are made without the need for inspection of the underlying documents, see, e.g., Taylor Lumber, 326 N.L.R.B. at 1299-1300. If enforcement becomes necessary, however, the parties must then turn to the district courts to obtain it. At that time, only the district court determines whether to enforce the subpoena and, in making that determination, evaluates the claims of privilege and, if necessary, conducts an in camera review. Moreover, in carrying out this judicial function, the court cannot delegate its task of conducting an in camera review to an ALJ. This reservation of authority to Article III courts protects against abuse of the subpoena power. While judicial scrutiny of administrative subpoenas is, to be sure, limited, see EEOC v. City of Norfolk Police Dept., 45 F.3d 80, 82 (4th Cir. 1995), courts do not simply order the enforcement of subpoenas as a matter of course, and certainly not blindly, see Penfield Co. v. SEC, 330 U.S. 585, 604, 67 S. Ct. 918, 91 L. Ed. 1117 (1947) (Frankfurter, J., dissenting)."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 59.302

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 499 (4th Cir. 2011)
("Accordingly, before a court commands a party to comply with a subpoena, it must first determine that the subpoena 'is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.' United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed. 401, 46 F.T.C. 1436 (1950). In short, on an application of an administrative agency for the enforcement of a subpoena in court, the respondent is guaranteed an opportunity to contest the subpoena's validity through any appropriate defense. See Penfield, 330 U.S. at 604 (enumerating several grounds on which '[a]n administrative subpoena may be contested'); NLRB v. Cable Car Advertisers, Inc., 319 F. Supp. 2d 991, 996 (N.D. Cal. 2004) ('[A] party [to] . . . a subpoena enforcement proceeding may raise appropriate defenses once in district court'). In addition to guarding against over breadth or a lack of specificity, the right to raise appropriate defenses includes the right to vindicate claims that a subpoena improperly calls for records protected by the attorney-client or work-product privileges. See, e.g., Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1306-07, 326 U.S. App. D.C. 332 (D.C. Cir. 1997); NLRB v. Harvey, 349 F.2d 900, 907 (4th Cir. 1965). Because a respondent's claim of privilege is the basis for its refusing to produce documents in response to a subpoena, it is inherent in carrying out the judicial function of deciding whether to enforce the subpoena to resolve the respondent's challenge to the subpoena. See NLRB v. Int'l Medication Sys., Ltd., 640 F.2d 1110, 1115-16 (9th Cir. 1981); Harvey, 349 F.2d at 907 (holding that the district court was required to conduct 'a full evidentiary hearing' before enforcing a Board subpoena challenged on privilege grounds). Thus, in this case, ALJ Clark had authority, on the basis of the privilege log and the Board's response to it, to sustain the claim of privilege or to order the production of documents for in camera review. But when Interbake refused to comply with that order, the ALJ lacked the power to enforce it. To obtain enforcement, the Board had to apply to the district court for a judicial order of enforcement, in accordance with the established division of powers between agencies and courts. We do not say that an ALJ does not have authority to rule on a claim of privilege. He can make such a ruling just as he could rule on any issue of evidence presented to him during the course of a hearing. But the ALJ has no power to require the production of documents for in camera review or for admission into evidence when a person or party refuses to produce them. That would require Article III power, which the ALJ does not have."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 59.302

Case Name: In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 613-14 (E.D. Va. 2008)
("The Rigsbys contend that their personal e-mail accounts likely contain communications with their attorneys related to pending litigation where the Rigsbys are parties or witnesses, including the McIntosh litigation in the Southern District of Mississippi. Because State Farm's subpoena requests information relevant to the claims or defenses available to the parties in McIntosh, the district court in Mississippi is better posed to evaluate the Rigsbys' privilege claim. Whereas State Farm's subpoena at issue here is the only pending litigation involving the parties in the Eastern District of Virginia. While acknowledging State Farm's argument that the Rigsbys did not allege sufficient facts or provide a privilege log to support an assertion of privilege, this Court declines to reach the merits of the privilege claim because the Mississippi district court in which the action is pending is better suited to decide whether the information relevant to McIntosh is privileged based on their familiarity with the underlying litigation. Thus, Magistrate Judge Poretz did not clearly err when he declined to evaluate the Rigsbys' privilege claim on the merits because the Southern District of Mississippi is better posed to determine whether the Rigsbys' information requested by State Farm's subpoena is privileged as it pertains to claims and defenses associated with pending litigation in that jurisdiction." (footnote omitted))

Case Date Jurisidction State Cite Checked
2008-01-01 Federal VA

Chapter: 59.303

Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "The Court does not believe that a special master is necessary in this case. Having reviewed the sample documents, the Court does not believe that there has been a systemic problem with over-designating documents and communications as privileged, with the exception of the Weekly Updates. Although there certainly were instances where SharkNinja improperly claimed privilege, it appears to the Court that this is simply the type of human error that will necessarily occur when a large document review and production is undertaken. The issue of attorney-client privilege is discretionary, and reasonable minds may disagree over what is or is not deserving of the privilege. In any given privilege log there will likely be several documents that have been inappropriately withheld, and this log appears to be no different to the Court. As such, the Court does not believe a special master is necessary.")

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

Chapter: 59.303

Case Name: U.S. Bank Nat'l Ass'n v. Lightstone Holdings LLC, No. 651951/2010, 2016 NY Slip Op 30644(U), at 10 (N.Y. Sup. Ct. Apr. 12, 2016)
("[T]his matter shall he [sic] referred to a special referee to hear and report whether the additional documents should be produced under the theory of subject matter waiver.")

Case Date Jurisidction State Cite Checked
2016-04-12 Federal NY B 8/16

Chapter: 59.303

Case Name: Fosbre v. Las Vegas Sands Corp., Case No. 2:10-cv-00765- c/w 2:10-cv-01210-APG-GWF, 2016 U.S. Dist. LEXIS 5422, at *37-38 (D. Nev. Jan. 14, 2016)
("If in camera review of the foregoing documents indicates that Defendants improperly asserted the attorney-privilege in a manner that calls into question the reasonableness of their assertion of attorney-client privilege to the remaining documents, then the Court will consider granting additional in camera review which may include the appointment of a special master in the manner done in Applied Medical Resources Corp. v. Ethicon, Inc., 2005 U.S. Dist. LEXIS 41199, 2005 WL 6567355, at *3 [(C.D. Cal. May 23, 2005)].")

Case Date Jurisidction State Cite Checked
2016-01-14 Federal NV B 7/16

Chapter: 59.303

Case Name: NAMA Holdings, LLC v. Greenberg Traurig LLP, 601054/08, 2015 N.Y. App. Div. LEXIS 7289 (N.Y. Sup. Oct. 8, 2015)
(applying the fiduciary exception; holding that an investor which on seventy percent of an LLC did not automatically deserve access to the LLC's privileged documents, and remanding for an in camera review; "[I]t is uncontested that the special referee did not review a single document in camera, despite being instructed by the motion court to conduct an item-by-item review. Therefore, we cannot affirm an order directing the production of more than 3,000 purportedly privileged communications without a single one of those communications having been reviewed.").

Case Date Jurisidction State Cite Checked
2015-10-08 Federal NY

Chapter: 59.303

Case Name: Harbinger F&G, LLC v. OM Grp. (UK), No. 12-CV-5315 (RA) (AJP), 2013 U.S. Dist. LEXIS 132009 (S.D.N.Y. Aug. 22, 2013)
(in a report by a Special Master to a United States Magistrate Judge, holding that plaintiff's disclosure of some privileged document did not cause a subject matter waiver)

Case Date Jurisidction State Cite Checked
2013-08-22 Federal NY B 4/14

Chapter: 59.303

Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 573 (S.D.N.Y. 2013)
("The Order appointing Special Master Warner states that: '[t]he Court will set aside a ruling [of the Special Master] on a procedural matter only where it is clearly erroneous or contrary to law.' 'Discovery rulings, including those regarding privilege issues, are nondispositive matters subject to [the] standard of review [applicable to procedural matters].'" (citations omitted))

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

Chapter: 59.303

Case Name: Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist. LEXIS 179609, at *8-9 (S.D.N.Y. Dec. 19, 2012)
("Defendant will produce a privilege log, and I will review the documents in camera, unless, of course, there are too many. In the latter case, I will appoint a special master at the expense of the parties. The material should all be produced by year's end. Should this create a major problem, the parties should schedule a telephone conference this week.")

Case Date Jurisidction State Cite Checked
2012-12-19 Federal NY B 9/13

Chapter: 59.303

Case Name: Rush v. Sunrise Senior Living, Inc., CL-07-11322, 2008 Va. Cir. LEXIS 12, *14-15 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "I decline to apply the work product doctrine in this case to documents Mr. Rush received, authored or reasonably had access to during his tenure as CFO, and order that Sunrise immediately produce to Mr. Rush all such documents, subject to the attorney client privilege ruling above. All other documents responsible to the discovery requests that Sunrise continues to maintain are work product must be reviewed in camera by Mr. Birken [Special Commissioner]. He shall determine whether the documents in Sunrise's privilege log were or were not 'created in anticipation of litigation' (as opposed to, for example, created in the regular course of business in responding to SEC investigations and/or to its concerned shareholders)."; also directing the Special Commissioner to analyze whether the former CFO could overcome the work product protection)

Case Date Jurisidction State Cite Checked
2008-02-12 State VA B 5/09 & 6/09

Chapter: 59.303

Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; noting that the company had appointed a Special Commissioner to review documents)

Case Date Jurisidction State Cite Checked
2008-02-12 State VA

Chapter: 59.401

Case Name: Charter Oak Fire Ins. Co. v. Am. Capital, Ltd., Civ. A. No. DKC 09-0100, 2013 U.S. Dist. LEXIS 180504, at *23 (D. Md. Dec. 24, 2013)
("Judge Schulze acted within her discretion in deciding whether to conduct an in camera review of Paul Janaskie's [plaintiff's lawyer) declaration before ruling on Defendants' motion to compel.")

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

Chapter: 59.402

Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("'The Court is giving Fluidmaster the option to submit the documents for in camera review but not requiring that it do so at this time. On the present record, it is not clear that the Court needs to review these documents in camera to determine whether they are covered by the attorney-client privilege. . . . Whether or not Fluidmaster is correct as to the Court's ability to compel it to submit documents being withheld on a claim of privilege for in camera review, the Court is giving Fluidmaster the opportunity to do so here if it wants and if it believes that would advance its cause. If Fluidmaster does not want to do so with respect to these particular documents, then it is not obligated to do so at this time. The Court, though, reserves the right to order that any documents that Fluidmaster is withholding must be produced for in camera review if it believes it needs to review any documents in camera to rule on Fluidmaster's request for a protective order and/or that Plaintiffs would be prejudiced without that review.'")

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

Chapter: 59.402

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 addition, Fluidmaster's description of these documents on its privilege log is unhelpfully vague. Its descriptions vary from 'Information prepared by counsel re: Aggregate data relating to product liability claims'. . . to 'Document prepared in anticipation of arbitration or litigation re: Aggregate data relating to product liability claims for litigation strategy from outside counsel at Howrey'. . . to 'Document prepared in anticipation of arbitration or litigation re: Work product presentation prepared by Joanne Lichtman (Outside Counsel) of Howrey providing status and summary of claims; Aggregate data relating to product liability claims for use in litigation strategy.'. . . Neither the Court nor Plaintiffs can draw an accurate picture of these documents or what they may contain based on these descriptions. Plaintiffs argue that these documents are nothing more than aggregate claims data that are not protected from production in any event. Fluidmaster, on the other hand, argues that even if the documents contain aggregate claims data, they still are protected by the attorney-client privilege and work product doctrine because of the way in which the documents were created and communicated to counsel. The Court does not have enough information on this record to determine which party has the better argument.'"; "Plaintiffs say the only way the Court can decide whether these documents should be produced is by reviewing them in camera. That very well may be true. A first step, though, is for Fluidmaster to provide the basic information that is missing from its privilege log in terms of who created the documents and to whom they were communicated, along with a better description of what the documents contain and the context in which the were created. As noted above, Fluidmaster also has the option of producing the documents for in camera review if it believes that would advance its cause. In the Court's view, however, production of a large stack of spreadsheets for the Court's review in camera without additional information about context that would assist the Court and Plaintiffs in evaluating the applicability of any claimed privilege would not be helpful in and of itself. It may be, however, that Plaintiffs are correct that the only way the Court properly can evaluate these documents is by reviewing them in camera and the Court can cross that bridge if and when necessary."; "Accordingly, if Fluidmaster can correct the deficiencies noted with respect to its privilege log, it should do so by November 22, 2016. If Fluidmaster wants to submit the documents for in camera review, it should do so within the same period of time.")

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

Chapter: 59.402

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)
("Plaintiffs express concern that Fluidmaster was copying Carroll on communications to allow it to assert the attorney-client privilege in instances where the privilege would not otherwise apply. That is not the impression the Court gets from reviewing these document entries assuming the document descriptions are accurate. Plaintiffs' suspicions do not rise to the level of concrete facts that would justify the wholesale in camera review of all communications between Carroll and Fluidmaster employees about the settlement of claims which is ultimately what Plaintiffs want to accomplish here.")

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

key case


Chapter: 59.402

Case Name: Smith v. Washington, Case No. C14-5974 RBL-JRC, 2016 U.S. Dist. LEXIS 120938 (W.D. Wash. Sept. 7, 2016)
(using Zolin standard in a civil case, ultimately concluding that the court would not review withheld documents in camera; "Once a party asserting the privilege makes a prima facie showing of privilege, the Court must engage in the two-stage Zolin test prior to ordering in camera review. See United States v. Zolin, 491 U.S. 554, 572, 109 S. Ct. 2619, 105 L. Ed. 2d 469 (1989)."; "The Ninth Circuit explained in In re Grand Jury Investigation that the use of the Zolin process was appropriate for challenges to privileged materials in civil cases. In re Grand Jury Investigation, 974 F.2d 1068, 1074 (9th Cir. 1992)."; "Other than a generalized distrust of the state privilege log and redacted documents provided to them, plaintiffs have failed to meet their burden of showing that an in camera review of privileged documents is justified. Plaintiffs have not provided any relevant nonprivileged evidence in opposing the privilege asserted by defendants. The Court has reviewed the privilege log and redacted documents attached to defendants' response. . . . These documents do not reveal any attempt to assert privilege over non-privileged documents. Therefore, the Court, in its exercise of discretion, declines to conduct the requested in camera review.")

Case Date Jurisidction State Cite Checked
2016-09-07 Federal WA

Chapter: 59.402

Case Name: Ferring Pharmaceuticals Inc. v. Braintree Laboratories, Inc., Civ. A. No. 13-12553-NMG, 2016 U.S. Dist. LEXIS 102545 (D. Mass. Aug. 3, 2016)
("Her decision to resolve the issues without first inspecting the disputed documents in camera is also not erroneous. Ferring's reliance upon Kerr v. United States Dist. Court for N. Dist. of Cal., 426 U.S. 394, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1978) is misplaced because that decision simply found that in camera review was a 'highly appropriate and useful' means of resolving claims of governmental privilege. 426 U.S. at 405-06. Kerr does not require in camera review as a mandatory means of adjudicating all claims of privilege in all cases.")

Case Date Jurisidction State Cite Checked
2016-08-03 Federal MA

Chapter: 59.402

Case Name: Toyo Tire & Rubber Co., Ltd. v. Atturo Tire Corp., Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756 (N.D. Ill. June 3, 2016)
("As such, the communications were transmitted for the purpose of legal advice, and this Court need not engage in an in camera review of those materials to reach this conclusion.")

Case Date Jurisidction State Cite Checked
2016-06-03 Federal IL

Chapter: 59.402

Case Name: DP Pham LLC v. Cheadle, 200 Cal. Rptr. 3d 937, 941, 941-42, 942 (Cal. Ct. App. 2016)
("After reviewing copies of the communications, the trial court concluded they were not privileged based on their content. A court, however, may not review the contents of a communication to determine whether the attorney-client privilege protects that communication. The attorney-client privilege is an absolute privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit. The privilege attaches to all confidential communications between an attorney and a client regardless of whether the information communicated is in fact privileged. Accordingly, it is neither necessary nor appropriate to review a communication to determine whether the attorney-client privilege protects it."; "Once the proponent makes a prima facie showing of a confidential attorney-client communication, it is presumed the communication is privileged and the burden shifts to the opponent to establish waiver, an exception, or that the privilege does not for some other reason apply. The opponent may not rely on the communication's content to make that showing."; "Here, the trial court relied exclusively on the content of the communications to conclude they were not privileged and Pham points to no other evidence to support the trial court's determination. The court also concluded the communications fell with certain statutory exceptions the Evidence Code establishes for the privilege. As explained below, we conclude the trial court erred in applying these statutory exceptions because to do so here would expand them well beyond their intended scope." (footnote omitted))

Case Date Jurisidction State Cite Checked
2016-04-15 Federal CA B 8/16

Chapter: 59.402

Case Name: United States ex rel. Fisher v. Ocwen Loan Servicing, LLC, Case No. 4:12-CV-543, 2016 U.S. Dist. LEXIS 32967, at *10-11 (E.D. Tex. Mar. 15, 2016)
("At this time, the Court will not grant an in camera inspection where, as in the present case, there are potentially hundreds of communications that would require review. To inspect the documents at issue would constitute a great and unnecessary expenditure of judicial resources. However, the Court will enforce the terms of Rule 26. Therefore, the Court orders Relators to revise their privilege log entries to include each element of a claimed privilege or protection so that the Court and Defendants are able to 'test the merits' of the privilege itself. Relators should reveal the identity and position of all senders/creators and addressees/recipients. Additionally, Relators should provide a description of each communication or document withheld with sufficient detail that Defendants can readily assess the claim of privilege." (footnote omitted))

Case Date Jurisidction State Cite Checked
2016-03-15 Federal TX B 8/16

Chapter: 59.402

Case Name: United States ex rel. Fisher v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2016 U.S. Dist. LEXIS 32910, at *10-11 (E.D. Tex. Mar. 15, 2016)
("At this time, the Court will not grant an in camera inspection where, as in the present case, there are potentially hundreds of communications that would require review. To inspect the documents at issue would constitute a great and unnecessary expenditure of judicial resources. However, the Court will enforce the terms of Rule 26. Therefore, the Court orders Relators to revise their privilege log entries to include each element of a claimed privilege or protection so that the Court and Defendants are able to 'test the merits' of the privilege itself. Relators should reveal the identity and position of all senders/creators and addressees/recipients. Additionally, Relators should provide a description of each communication or document withheld with sufficient detail that Defendants can readily assess the claim of privilege.")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal TX B 8/16

Chapter: 59.402

Case Name: United States ex rel. Fisher v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2016 U.S. Dist. LEXIS 32910, at *10-11 (E.D. Tex. Mar. 15, 2016)
("At this time, the Court will not grant an in camera inspection where, as in the present case, there are potentially hundreds of communications that would require review. To inspect the documents at issue would constitute a great and unnecessary expenditure of judicial resources. However, the Court will enforce the terms of Rule 26. Therefore, the Court orders Relators to revise their privilege log entries to include each element of a claimed privilege or protection so that the Court and Defendants are able to 'test the merits' of the privilege itself. Relators should reveal the identity and position of all senders/creators and addressees/recipients. Additionally, Relators should provide a description of each communication or document withheld with sufficient detail that Defendants can readily assess the claim of privilege.")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal TX B 8/16

Chapter: 59.402

Case Name: 2002 Lawrence R. Buchalter Alaska Tr. v. Phil. Fin. Assurance Co., No. 12 Civ. 6808 (KMK) (PED), 2016 U.S. Dist. LEXIS 31771, at *8 n.3 (S.D.N.Y. Mar. 11, 2016)
("The Court directed plaintiff to submit the subject e-mails to chambers to facilitate any in camera inspection deemed appropriate, and plaintiff complied. No party has requested in camera review, however, and the Court rules without reference to the documents provided.")

Case Date Jurisidction State Cite Checked
2016-03-11 Federal NY B 8/16

Chapter: 59.402

Case Name: United States ex rel. Hamrick v. Glaxosmithkline LLC, 814 F.3d 10, 16 (1st Cir. 2016)
("We review the district court's decision not to conduct an in camera review of the documents on GSK's privilege log for abuse of discretion.")

Case Date Jurisidction State Cite Checked
2016-02-17 Federal B 8/16

Chapter: 59.402

Case Name: Ingenco Holdings, LLC v. Ace American Insurance Co., Case No. C13-543RAJ, 2014 U.S. Dist. LEXIS 170357 (W.D. Wash. Dec. 8, 2015)
("Ingenco's motion invokes Cedell v. Farmers Ins. Co., 176 Wn.2d 686, 295 P.3d 239 (Wash. 2013), to either compel production of every document in ACE's claim file for which it invoked the attorney-client privilege or work product doctrine, or to compel the court to review those documents in camera to determine which are discoverable."; "[T]hat every federal court to consider the issue has held that the in camera review mandate of Cedell does not apply in federal court.")

Case Date Jurisidction State Cite Checked
2015-12-08 Federal WA

Chapter: 59.402

Case Name: Armouth International, Inc. v. Dollar General Corp., No. 3:14-0567, 2015 U.S. Dist. LEXIS 148784 (M.D. Tenn. Nov. 2, 2015)
(finding that the attorney-client privilege protected communications to and from a company's in-house lawyer also serving as its compliance director; "In Zolin [U.S. v. Zolin, 491 U.S. 554, 570-71, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989)], the Supreme Court delineated the standard for determining whether an assertion of attorney-client privilege warrants an in camera review by the presiding judge. While the Supreme Court applied this standard specifically to the crime-fraud exception, this Court finds that the standard is appropriate in this matter to evaluate whether the documents requested for in camera review may reveal evidence of business advice that is not shielded from discovery by the attorney-client privilege."; "[A]s Dollar General states in its response, the decision to release the hold was made by Mr. Stephenson precisely because it required the legal opinion of an attorney. . . . Furthermore, even if Mr. Stephenson had considered some aspects of business in making his decision, such consideration does not necessarily remove the coverage afforded by the attorney-client privilege. Dollar General correctly notes that district courts have held that the 'mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege."; "The privilege log indicates that this email consisted of Mr. Vasos 'relaying Rob Stephenson's legal advice related to the non-conforming scrubs' to Mr. Gatta. . . . This appears to match the substance of the email's content prior to the redacted portion, which concludes with, 'now for the bad news. Their label does not match the product.'. . . It is logical that the remainder of the email would pertain to Mr. Stephenson's legal advice regarding the nonconforming goods."; "In camera review is not appropriate simply because a party objects to the assertions of privilege. Zolin, 491 U.S. at 571-72. Despite Armouth's conjecture regarding Mr. Stephenson's role in releasing the hold on Armouth's merchandise, the Court finds no evidence that warrants an in camera review of the emails withheld or redacted by Dollar General. Engaging in such a procedure 'would constitute. . . An expenditure of judicial resources that could be justified only by an implicit determination that the representations made by defense counsel are untrue.' Guy v. United Healthcare Corp., 154 F.R.D. 172, 176 (S.D. Ohio 1993). The Court finds no basis for any such determination in this matter."; "The Court agrees with Dollar General that Armouth's blanket request for review of the entire privilege log suggests a 'fishing expedition,' as opposed to a specific request to discover relevant information. The Court also notes that granting Armouth's motion, which broadly requests a review of all of Dollar General's emails withheld based on attorney-client privilege, would open the floodgates and allow any party to demand an in camera review of the opposing party's attorney-client communications so long as the former expressed an unfounded suspicion that counsel for the latter had misrepresented the basis for the privilege claim. For the these reasons, Armouth's motion is DENIED.")

Case Date Jurisidction State Cite Checked
2015-11-02 Federal TN

Chapter: 59.402

Case Name: In re Grand Jury Proceedings, No. 15-1555, 2015 U.S. App. LEXIS 15911 (1st Cir. App. Sept. 4, 2015)
("Under those circumstances, there was no need for a privilege log to address that general question, and appellant's failure to provide a privilege log in opposition to the motion to compel did not deprive appellant of the right to contest the government's overall crime-fraud theory."; "The failure to produce a privilege log (or otherwise identify particular documents subject to the privilege) to support the need for in camera inspection waived appellant's right to seek in camera inspection."; "Neither appellant nor appellant's attorneys ever produced a privilege log in response to the motion to compel nor otherwise complied with the requirements of Rule 45. Under this court's cases, that constitutes a waiver of the request for in camera review.").

Case Date Jurisidction State Cite Checked
2015-09-04 Federal

Chapter: 59.402

Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2015 U.S. Dist. LEXIS 100109 (E.D. Tex. July 31, 2015)
("'As the Court stated during the July 10, 2015 hearing on this motion, Homeward has not shown that it has a substantial need for the privileged [protected by the work product doctrine] disclosed statements, and therefore, the Court will not conduct an in camera review.'")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal TX

Chapter: 59.402

Case Name: Tate & Lyle Americas, LLC v. Gatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265 (C.D. Ill. July 31, 2015)
("As noted above, Plaintiff's Supplement argues that since its Motion (#60) was filed, Defendant has produced numerous additional documents previously withheld as privileged, and that the voluntary release of these unrelated documents suggests that Defendant has improperly labeled the numerous documents as privileged. Plaintiff asks the Court to perform a large scale in camera review of documents identified in Defendant's privilege log and require Defendant to pair each of the documents that have been disclosed with the description of each document from log or logs describing them."; "The Court declines Plaintiff's request to perform a large scale in camera review of the remaining documents."; "Further, Defendant's Response to the Supplement details the process Defendant took to pair the documents with the descriptions included in the initial and amended privilege logs. Therefore, there is no need for Defendants to repeat this action."; "Before seeking court action, Rule 37 of the Federal Rules of Procedure directs a party to show that it 'has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.' Fed. R. Civ. P. 37(a)(1). The Court has confidence that the parties can resolve any remaining discovery disputes concerning documents included in the second and third privilege logs without court intervention.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal IL

Chapter: 59.402

Case Name: Stryker Corporation v. Ridgeway, Case No. 1:13-CV-1066, Case No. 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741 (W.D. Mich. July 20, 2015)
(declining to conduct an in camera review; "A Magistrate Judge is not required to undertake an in camera inspection of items purportedly subject to the attorney-client privilege simply because such review has been requested.")

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

Chapter: 59.402

Case Name: Plaza Insurance Company v. Lester, Civ. A. No. 14-cv-01162-LTB-CBS, 2015 U.S. Dist. LEXIS 72438, 2015 U.S. Dist. LEXIS 72438 (D.D.C. June 4, 2015)
("'While in camera review may be warranted in some cases, it is a time-consuming exercise that diverts the court from other equally pressing matters. . . . Before asking the court to conduct an in camera review, parties and their counsel should take all reasonable steps to insure that the court's time is used efficiently by narrowing the in camera review to those documents that are truly at issue. Counsel can, in the first instance, achieve that goal by agreeing to procedures that will generate a privilege log that meets the requirements of Fed. R. Civ. P. 26(b)(5)(A), but is also reasonable and proportionate to the needs of the case.'")

Case Date Jurisidction State Cite Checked
2015-06-04 Federal DC

Chapter: 59.402

Case Name: Howard v. Tepedino, Case No. 5D15-202, 2015 Fla. App. LEXIS 7288 (Fla. App. 5d May 15, 2015)
("Our review of the record before us reveals that there was no waiver of the attorney-client privilege. Because there was no waiver, there is no legitimate basis to order production of the documents protected by the attorney-client privilege for an in camera inspection. We, therefore, conclude that the trial court's order departs from the essential requirements of the law resulting in irreparable harm to the Petitioner. We quash the order under review and remand this case to the trial court for further proceedings.")

Case Date Jurisidction State Cite Checked
2015-05-15 State FL

Chapter: 59.402

Case Name: Anderson v. Branch Banking and Trust Co, Case No. 13-CV-62381-BLOOM/VALLE, 2015 U.S. Dist. LEXIS 63312 (S.D. Fla. May 14, 2015)
("Nor will the Court grant Defendant's motion (or Plaintiffs' invitation) for an in camera review at this time. . . . Accordingly, Plaintiffs shall properly review the challenged Rappaport documents and provide Defendant with a revised privilege log that complies with this Order.")

Case Date Jurisidction State Cite Checked
2015-05-14 Federal FL

Chapter: 59.402

Case Name: In re Lululemon Athletica Inc. 220 Litig., Consol. C.A. No. 9039-VCP, 2015 Del. Ch. LEXIS 127 (Del. Ct. Chan. April 30, 2015)
(analyzing the Garner doctrine and a common interest doctrine in connection with a retailer's investigation into the sale of its stock by the company's founder and CEO; "Plaintiffs urge me to review the Nicholas Email in camera. In camera review, however, is unnecessary here because the nature of the Nicholas Email and the related privilege log description of it do not give me a reason to doubt the privileged nature of that communication.")

Case Date Jurisidction State Cite Checked
2015-04-30 State DE

Chapter: 59.402

Case Name: Swoboda v. Manders, Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisidction State Cite Checked
2015-04-27 Federal LA
Comment:

key case


Chapter: 59.402

Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisidction State Cite Checked
2015-04-08 Federal FL
Comment:

key case


Chapter: 59.402

Case Name: Apple Inc. v. Samsung Electronics Co., Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisidction State Cite Checked
2015-04-03 Federal CA
Comment:

key case


Chapter: 59.402

Case Name: United States v. Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisidction State Cite Checked
2015-03-23 Federal NC
Comment:

key case


Chapter: 59.402

Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
("[R]esort to in camera review is proper only after the party claiming attorney-client privilege has properly claimed privilege and has submitted evidence sufficient to support a good faith belief that such review may reveal evidence establishing the attorney-client privilege."; "Defendants have failed to properly claim privilege and to present more than conclusory, ipse dixit assertions of privilege. Therefore, the Court declines to engage in in camera review because Defendants have failed to give the Court reason to believe that such review may uncover evidence establishing privilege.")

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

Chapter: 59.402

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-13-0273, 2014 Ill. App. Unpub. LEXIS 1789 (Ill. 5th Dist. App. Aug. 18, 2014)
("Greensfelder argues, in the alternative, that the court should conduct an in camera inspection of the documents in its privilege log to determine whether they fall within the exception. We disagree. The plaintiffs requested only documents related to contracts which were drafted for them by Greensfelder attorneys. The request thus limits the material to be disclosed to documents that come within the common representation exception. There is thus no need for the court to review them to determine whether privilege applies.")

Case Date Jurisidction State Cite Checked
2014-08-18 State IL

Chapter: 59.402

Case Name: Automated Solutions Corp. v. Paragon Data Sys., Inc., No. 13-3025/3058, 2014 U.S. App. LEXIS 11918 (6th Cir. June 25, 2014)
(upholding a trial court's decision not to undertake an in camera review to assess a crime-fraud exception claim)

Case Date Jurisidction State Cite Checked
2014-06-25 Federal

Chapter: 59.402

Case Name: Allstate Ins. Co. v. Warns, Civ. No. CCB-11-1846, 2013 U.S. Dist. LEXIS 44507, at *5 (D. Md. Mar. 28, 2014)
("Ms. Warns has also not established any reason justifying in camera inspection of the unredacted exhibits. To establish a need for in camera inspection, Ms. Warns would have to suggest 'a factual basis to support a reasonable, good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged.'" (citation omitted))

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

Chapter: 59.402

Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 41254, at *4-5, *5 (N.D. Tex. Mar. 27, 2014)
("The undersigned declines that invitation. As the undersigned has explained, although a privilege log and an in camera review of documents may assist the court in conducting its analysis, a party asserting the work product exemption still must provide 'a detailed description of the materials in dispute and state specific and precise reasons for their claim of protection from disclosure.'. . . In fact, 'resort to in camera review is appropriate only after the burdened party has submitted detailed affidavits and other evidence to the extent possible.'" (citation omitted); "Here, Defendants' detailed affidavit allows the Court to resolve the issue without the need for any in camera review. That is, an in camera review is not required here where Defendants have met their burden to assert the work product doctrine over these nine text messages.")

Case Date Jurisidction State Cite Checked
2014-03-27 Federal TX B 8/14

Chapter: 59.402

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

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

Chapter: 59.402

Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *7 (N.D. Tex. Feb. 27, 2014)
("In fact, 'resort to in camera review is appropriate only after the burdened party has submitted detailed affidavits and other evidence to the extent possible.'" (citation omitted))

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

Chapter: 59.402

Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *8 (N.D. Tex. Feb. 27, 2014)
("Without appropriate affidavits or other supporting documentation, however, the undersigned cannot find that an in camera review is appropriate.")

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

Chapter: 59.402

Case Name: RC/PB, Inc. v. Ritz-Carlton Hotel Co., No. 4D13-2116, 2014 Fla. App. LEXIS 579, at *1 (Fla. Dist. Ct. App. Jan. 22, 2014)
March 19, 2014 (PRIVILEGE POINT)

"Do Courts Always Review Withheld Documents In Camera Before Making Privilege or Work Product Rulings?"

Litigants' disputes about withheld and logged privileged or work product-protected documents sometimes end with a court reviewing the documents in camera. However, courts take varying approaches to this process.

In the case discussed in last week's Privilege Point, the court reviewed in camera "five, large, three-ring binders, measuring some 13 inches in height, and containing 5,108 pages." Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *67 (N.D. Ill. Jan. 6, 2014). In contrast, another court concluded three days later that an "in camera review would be inappropriate" – because it "would consume considerable Court resources" and "increases the harm to [defendant] from having a third-party, even if it is the Court, comb through its privileged communications." King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *22, *23 (E.D. Pa. Jan. 9, 2014). In a decision the day before, the Southern District of New York noted that it had conducted an in camera review, stating that "[w]hether or not a document is privileged is fact specific and frequently requires in camera review." Vector Capital Corp v. Ness Techs., Inc., No. 11 Civ. 6259 (PKC), 2014 U.S. Dist. LEXIS 7694, at *4 (S.D.N.Y. Jan. 8, 2014). A couple of weeks later, a Florida court granted a petition for writ of certiorari, agreeing with the petitioner that the "trial court departed from the essential requirements of the law resulting in irreparable injury by ordering production of documents . . . without conducting an in camera inspection." RC/PB, Inc. v. Ritz-Carlton Hotel Co., No. 4D13-2116, 2014 Fla. App. LEXIS 579, at *1 (Fla. Dist. Ct. App. Jan. 22, 2014).

In camera reviews can sometimes help a court distinguish between legal and business advice, or undertake other content-driven analyses. But an in camera review usually does not help analyze issues such as those involving waivers – which focus on extrinsic events rather than on the withheld documents' content.

Case Date Jurisidction State Cite Checked
2014-01-22 State FL
Comment:

key case


Chapter: 59.402

Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *22, *23 (E.D. Pa. Jan. 9, 2014)
("Based upon the record before us, we also conclude that in camera review would be inappropriate."; "Review of even the selection of documents identified by the Direct Purchasers [plaintiffs] would consume considerable Court resources. While the evidence obtained, even if determined to be unprotected, might be useful in some respects, the breadth of the request reduces the likelihood that any given communication will be found to fall within the exception, and increases the harm to Cephalon from having a third-party, even if it is the Court, comb through its privileged communications. We thus decline to require Cephalon to produce any of the challenged communications for in camera review.")

Case Date Jurisidction State Cite Checked
2014-01-09 Federal PA B 6/14

Chapter: 59.402

Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *22, *23 (E.D. Pa. Jan. 9, 2014)
March 19, 2014 (PRIVILEGE POINT)

"Do Courts Always Review Withheld Documents In Camera Before Making Privilege or Work Product Rulings?"

Litigants' disputes about withheld and logged privileged or work product-protected documents sometimes end with a court reviewing the documents in camera. However, courts take varying approaches to this process.

In the case discussed in last week's Privilege Point, the court reviewed in camera "five, large, three-ring binders, measuring some 13 inches in height, and containing 5,108 pages." Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *67 (N.D. Ill. Jan. 6, 2014). In contrast, another court concluded three days later that an "in camera review would be inappropriate" – because it "would consume considerable Court resources" and "increases the harm to [defendant] from having a third-party, even if it is the Court, comb through its privileged communications." King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *22, *23 (E.D. Pa. Jan. 9, 2014). In a decision the day before, the Southern District of New York noted that it had conducted an in camera review, stating that "[w]hether or not a document is privileged is fact specific and frequently requires in camera review." Vector Capital Corp v. Ness Techs., Inc., No. 11 Civ. 6259 (PKC), 2014 U.S. Dist. LEXIS 7694, at *4 (S.D.N.Y. Jan. 8, 2014). A couple of weeks later, a Florida court granted a petition for writ of certiorari, agreeing with the petitioner that the "trial court departed from the essential requirements of the law resulting in irreparable injury by ordering production of documents . . . without conducting an in camera inspection." RC/PB, Inc. v. Ritz-Carlton Hotel Co., No. 4D13-2116, 2014 Fla. App. LEXIS 579, at *1 (Fla. Dist. Ct. App. Jan. 22, 2014).

In camera reviews can sometimes help a court distinguish between legal and business advice, or undertake other content-driven analyses. But an in camera review usually does not help analyze issues such as those involving waivers – which focus on extrinsic events rather than on the withheld documents' content.

Case Date Jurisidction State Cite Checked
2014-01-09 Federal PA
Comment:

key case


Chapter: 59.402

Case Name: Vector Capital Corp v. Ness Techs., Inc., No. 11 Civ. 6259 (PKC), 2014 U.S. Dist. LEXIS 7694, at *4 (S.D.N.Y. Jan. 8, 2014)
March 19, 2014 (PRIVILEGE POINT)

"Do Courts Always Review Withheld Documents In Camera Before Making Privilege or Work Product Rulings?"

Litigants' disputes about withheld and logged privileged or work product-protected documents sometimes end with a court reviewing the documents in camera. However, courts take varying approaches to this process.

In the case discussed in last week's Privilege Point, the court reviewed in camera "five, large, three-ring binders, measuring some 13 inches in height, and containing 5,108 pages." Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *67 (N.D. Ill. Jan. 6, 2014). In contrast, another court concluded three days later that an "in camera review would be inappropriate" – because it "would consume considerable Court resources" and "increases the harm to [defendant] from having a third-party, even if it is the Court, comb through its privileged communications." King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *22, *23 (E.D. Pa. Jan. 9, 2014). In a decision the day before, the Southern District of New York noted that it had conducted an in camera review, stating that "[w]hether or not a document is privileged is fact specific and frequently requires in camera review." Vector Capital Corp v. Ness Techs., Inc., No. 11 Civ. 6259 (PKC), 2014 U.S. Dist. LEXIS 7694, at *4 (S.D.N.Y. Jan. 8, 2014). A couple of weeks later, a Florida court granted a petition for writ of certiorari, agreeing with the petitioner that the "trial court departed from the essential requirements of the law resulting in irreparable injury by ordering production of documents . . . without conducting an in camera inspection." RC/PB, Inc. v. Ritz-Carlton Hotel Co., No. 4D13-2116, 2014 Fla. App. LEXIS 579, at *1 (Fla. Dist. Ct. App. Jan. 22, 2014).

In camera reviews can sometimes help a court distinguish between legal and business advice, or undertake other content-driven analyses. But an in camera review usually does not help analyze issues such as those involving waivers – which focus on extrinsic events rather than on the withheld documents' content.

Case Date Jurisidction State Cite Checked
2014-01-08 Federal NY
Comment:

key case


Chapter: 59.402

Case Name: Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *67 (N.D. Ill. Jan. 6, 2014)
March 19, 2014 (PRIVILEGE POINT)

"Do Courts Always Review Withheld Documents In Camera Before Making Privilege or Work Product Rulings?"

Litigants' disputes about withheld and logged privileged or work product-protected documents sometimes end with a court reviewing the documents in camera. However, courts take varying approaches to this process.

In the case discussed in last week's Privilege Point, the court reviewed in camera "five, large, three-ring binders, measuring some 13 inches in height, and containing 5,108 pages." Miller UK Ltd. v. Caterpillar, Inc., Case No. 10 C 3770, 2014 U.S. Dist. LEXIS 779, at *67 (N.D. Ill. Jan. 6, 2014). In contrast, another court concluded three days later that an "in camera review would be inappropriate" – because it "would consume considerable Court resources" and "increases the harm to [defendant] from having a third-party, even if it is the Court, comb through its privileged communications." King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. No. 2:06-cv-1797, 2014 U.S. Dist. LEXIS 2344, at *22, *23 (E.D. Pa. Jan. 9, 2014). In a decision the day before, the Southern District of New York noted that it had conducted an in camera review, stating that "[w]hether or not a document is privileged is fact specific and frequently requires in camera review." Vector Capital Corp v. Ness Techs., Inc., No. 11 Civ. 6259 (PKC), 2014 U.S. Dist. LEXIS 7694, at *4 (S.D.N.Y. Jan. 8, 2014). A couple of weeks later, a Florida court granted a petition for writ of certiorari, agreeing with the petitioner that the "trial court departed from the essential requirements of the law resulting in irreparable injury by ordering production of documents . . . without conducting an in camera inspection." RC/PB, Inc. v. Ritz-Carlton Hotel Co., No. 4D13-2116, 2014 Fla. App. LEXIS 579, at *1 (Fla. Dist. Ct. App. Jan. 22, 2014).

In camera reviews can sometimes help a court distinguish between legal and business advice, or undertake other content-driven analyses. But an in camera review usually does not help analyze issues such as those involving waivers – which focus on extrinsic events rather than on the withheld documents' content.

Case Date Jurisidction State Cite Checked
2014-01-06 Federal IL
Comment:

key case


Chapter: 59.402

Case Name: Rock River Commc'ns, Inc. v. Universal Music Group, Inc., 745 F.3d 343, 353 (9th Cir. 2014)
("Rock River's belief that the documents are not privileged appears to be based on little more than unfounded suspicion, and the district court correctly concluded that Rock River had not made the requisite factual showing to justify an in camera review. . . . The failure to conduct an in camera review was therefore not an abuse of discretion."; "We therefore agree with the Fifth Circuit that a Noerr-Pennington [E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965)] defense, unlike an advice-of-counsel defense, does not implicitly waive privilege.")

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

Chapter: 59.402

Case Name: RC/PB, Inc. v. Ritz-Carlton Hotel Co., 132 So. 3d 325, 326 (Fla. Dist. Ct. App. 2014)
("The petitioner seeks a writ of certiorari. At issue is a claim of attorney-client privilege to a request for production of documents. The petitioner argues the trial court departed from the essential requirements of the law resulting in irreparable injury by ordering production of documents, which it claims are attorney-client privileged, without conducting an in camera inspection. We agree and grant the petition.")

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

Chapter: 59.402

Case Name: Rock River Commc'ns, Inc. v. Universal Music Group, Inc., 745 F.3d 343, 353 (9th Cir. 2014)
("We review de novo the district court's rulings on UMG's claims of attorney-client privilege . . ., and we review for abuse of discretion the district court's decision not to conduct an in camera review of the documents.")

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

Chapter: 59.402

Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 621 (D. Kan. 2014)
("B&V fails to support its privilege objections. Further, there is no dispute between the parties as to the accuracy of the B&V's document descriptions. Therefore, there are no grounds in which to conduct an in camera review. The Court, in its discretion, denies Liability Insurers' (defendants) alternative request for an in camera review.")

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

Chapter: 59.402

Case Name: Hawker v. Bancinsurance, Inc., Case No. 1:12-cv-01261-SAB, 2013 U.S. Dist. LEXIS 180831, at *16 (E.D. Cal. Dec. 27, 2013)
("The Court declines Plaintiff's request to conduct an in camera review to determine the extent of Mr. Donahue's [defendant's lawyer] involvement in the claims adjusting process.")

Case Date Jurisidction State Cite Checked
2013-12-27 Federal CA B 5/14

Chapter: 59.402

Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 23, at *43-44 (Del. Ch. Sept. 18, 2013)
(analyzing the scope of an implied waiver caused by defendant trust company's assertion of an advice of counsel defense in a lawsuit brought by beneficiaries; "Wilmington Trust contended that I should postpone ruling on the scope of Wilmington Trust's at-issue waiver until the Beneficiaries have challenged the assertion of privilege as to specific documents on the Privilege Log, and the challenged documents have been reviewed in camera. Wilmington Trust seems to largely abandon that argument in its reply brief, but I will address it for the sake of completeness. In a nutshell, although that would be one method for resolving the scope of the waiver, it is not the only method, nor does it promise to be the most efficient method given the advanced state of the parties' briefing on this topic, the expedited nature of the litigation, and the length of time Wilmington Trust took to produce a privilege log that contained, in the end, only 49 entries.")

Case Date Jurisidction State Cite Checked
2013-09-18 State DE B 4/14

Chapter: 59.402

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 130606, at *17-18 (S.D.N.Y. Sept. 12, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing privilege log issues; "[I]t is not efficient for me to review in camera all 3,629 documents included on the privilege log. Instead, within three days of the date of this order, U.S. Bank [plaintiff] may identify up to 75 documents for in camera review. My rulings on the applicability of attorney-client privilege and work product immunity will provide guidance for the parties on whether certain types of documents have been properly or improperly withheld." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-09-12 Federal NY B 4/14

Chapter: 59.402

Case Name: Walter v. Travelers Pers. Ins. Co., Civ. No. 4:12-CV-346, 2013 U.S. Dist. LEXIS 72771, at *12-13 (M.D. Pa. May 22, 2013)
(in a first party insurance case, finding that insurance company documents deserved privilege and work product protection; "[S]ince we have actually examined each of the documents that have been withheld, we are in a position to determine whether or not any of the privileges or bases for withholding the documents from production are, in fact, applicable. Upon review of these materials, we conclude that each document has been properly withheld either as privileged or, in other cases, because it constitutes attorney work-product and, in many cases, because both defenses to disclosure apply. Given this finding, we do not find it necessary or relevant to examine whether the privilege log itself was adequate or conformed with the privilege logs that were at issue in other discovery disputes decided by other courts, as the plaintiff suggests.")

Case Date Jurisidction State Cite Checked
2013-05-22 Federal PA B 4/14

Chapter: 59.402

Case Name: Brown v. Fryer, Civ. A. No. 12-cv-01740-CMA-KMT, 2013 U.S. Dist. LEXIS 34686, at *5-6 (D. Colo. Mar. 13, 2013)
("Under the circumstances presented, the court declines to conduct an in camera review. In camera review is appropriate where there is a '"factual basis adequate to support a good faith belief by a reasonable person" that in camera review of the materials may reveal evidence to establish the claim that the attorney client privilege does not protect all of the documents in the file.' . . . Here, Plaintiff seeks in camera review for precisely the opposite reason -- to determine whether the attorney-client privilege does protect documents contained in the claims file produced by CIC [defendant]. . . . As such, Defendants, rather than Plaintiff, are the only parties who may assert that the documents in question are privileged. Notably, both the Fryers and CIC have opposed the request for in camera review of the documents produced by CIC. As such, because the only parties who may assert the attorney-client privilege have not requested the court's intervention, there is no actual controversy for the court to resolve." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-03-13 Federal CO B 3/14

Chapter: 59.402

Case Name: Davis v. Hugo Enters., LLC, Case No. 8:11CV221, 2013 U.S. Dist. LEXIS 22882, at *6-7 (D. Neb. Feb. 20, 2013)
("Having reviewed the evidentiary record presented by the Plaintiffs, including the testimony of Donna Echeverria, the Court also concurs with Judge Gossett's conclusion that Plaintiffs have not met their burden of demonstrating that the Court should conduct an in camera review of the materials withheld.")

Case Date Jurisidction State Cite Checked
2013-02-20 Federal NE B 2/14

Chapter: 59.402

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 627 (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; "If Plaintiffs' privilege log had revealed other items that might qualify as opinion work-product and which were not subject to disclosure under the common legal interest doctrine or any documents which were otherwise protected from disclosure under either a work-product protection or attorney-client privilege theory, the Court would have considered conducting an in camera review. However, after multiple attempts at producing a sufficient privilege log, and at least three attempts to convince a federal judge of the merits of their position, Plaintiffs have failed to meet their burden of establishing, by a preponderance of the evidence, a basis for protection.")

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

Chapter: 59.402

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 628 (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; "[T]he Court finds that Plaintiffs have not established that an in camera review is required as to any of the documents in the privilege log. The Court has reached its conclusions, stated above and in the Court's Order of September 2011, based on the arguments presented by the parties and any evidence offered in support thereof." (footnote omitted))

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

Chapter: 59.402

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

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

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

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

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

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

key case


Chapter: 59.402

Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159-KS-MTP, 2012 U.S. Dist. LEXIS 165558, at *9 (S.D. Miss. Nov. 20, 2012)
(holding that a root cause analysis did not deserve work product protection, because the party did not support the work product claim; "The court declines the parties' invitation to review all of the withheld documents in camera. Rather, the Plaintiffs may review the log in good faith and identify the documents they wish to challenge, if any, via appropriate motion. The court in no way suggests that a blanket assertion of privilege for the entire investigative file is proper or acceptable. Conversely, the court will not review all of the documents in camera simply because Plaintiffs believe MPC has 'stonewalled' the discovery process. The court will require the parties to confer in good faith to address the privilege issues before asking for an in camera review.")

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

Chapter: 59.402

Case Name: Bozella v. Cnty. of Dutchess, No. 10 Civ. 4917 (CS) (GAY), 2012 U.S. Dist. LEXIS 149586, at *5 (S.D.N.Y. Oct. 17, 2012)
("The Court does not see any need for an in camera review of the emails given the privileges claimed and the challenges advanced by defendants.")

Case Date Jurisidction State Cite Checked
2012-10-17 Federal NY B 12/13

Chapter: 59.402

Case Name: Collins v. Braden, 384 S.W.3d 154, 164 (Ky. 2012)
("Parties asserting privileges have numerous ways to establish the existence of the attorney-client privilege when an opposing party challenges its existence."; "One common method is an in camera review by the trial court of the documents in question. . . . But this method can have its limitations. For example, it requires the trial court to 'describe the documents' or 'recite any factual bases' supporting its decision to facilitate appellate court review. . . . More importantly, in camera review can overly burden a trial court, especially in litigation where many documents are claimed to be privileged. Thus, instead of in camera review, a party claiming the privilege could produce a detailed privilege log with descriptions of the documents sufficient to establish the existence of the privilege (i.e., more than their titles). Or a party could make an 'offer of proof' or proffer, like the process in KRE 105(b), describing the documents (without going into the content of any statements or legal advice they contain, of course).")

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

Chapter: 59.402

Case Name: Chevron Corp. v. Weinberg Grp., 286 F.R.D. 95, 99 (D.D.C. 2012)
("In an earlier time, the insufficiency of the log defaulted to in camera review by the judge. Yet, in cases such as this, the sheer number of documents on a log may make that impossible. Here, I would have to review 9,171 pages of documents. That seems inconceivable given my advanced years. In all seriousness, a judge, unlike lawyers who have resources for culling through documents, cannot use technology-assisted review to do the review more efficiently.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 59.402

Case Name: Collins v. Braden, 384 S.W.3d 154, 164 (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; "[I]n camera review can overly burden a trial court, especially in litigation where many documents are claimed to be privileged.")

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

Chapter: 59.402

Case Name: Brownfield v. Hodous and Hodous, L.L.P., 82 Va. Cir. 315, 319, 320 (Va. Cir. Ct. 2011)
("Plaintiff also proposes that the Court conduct an in camera review of Defendants' communications with Heischman for the purpose of determining whether any of these documents support her claim of joint representation."; "Plaintiff has not demonstrated how those communications with one sibling would tend to prove that Defendants also represented the other siblings."; "The Court has located no case authority addressing the showing required to entitle a party claiming joint representation to an in camera review of the privileged documents of his adversary. United States v. Zolin, 491 U.S. 554, 109 S. Ct. 2619, 105 L. Ed. 2d 469"; "The Court finds that Plaintiff has not made a sufficient showing that privileged communications between Defendants and Heischman are likely to establish that Defendants jointly represented her along with her brother. The jury will be asked to determine that question at the conclusion of the evidentiary hearing on the Plea in Bar, and Plaintiff may at that time seek to compel production of the correspondence if she prevails. On the present record, however, the Court lacks a basis to determine that in camera review of correspondence between Heischman and Defendants will establish that the representation included Plaintiff.")

Case Date Jurisidction State Cite Checked
2011-01-01 State VA

Chapter: 59.402

Case Name: United States ex rel. Bunk v. Birkart Globistics GmbH & Co., Nos. 1:02cv1168 & 1:07cv1198 (AJT/TRJ), 2010 U.S. Dist. LEXIS 60577, at *15 n.8 (E.D. Va. June 17, 2010)
("The government urges the Court, at a minimum, to remand for an in camera review of the documents in question. Courts have recognized that 'in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege,' in part because it 'is a relatively costless and eminently worthwhile method to insure that the balance between [an asserting party's] claims of irrelevance and privilege and [a requesting party's] asserted need for the documents is correctly struck.' Kerr v. United States Dist. Court for the N. Dist. of Cal., 426 U.S. 394, 405-06, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976). Nevertheless, the government did not request in camera review before the Magistrate Judge and on remand, whether or to conduct an in camera review, in whole or in part, or to require any other information necessary to assess the documents in question, remains within the sound discretion of the Magistrate Judge.")

Case Date Jurisidction State Cite Checked
2010-06-17 Federal VA B 3/16

Chapter: 59.403

Case Name: Durand v. The Hanover Ins. Group, Inc., Civ. A. No. 3:07-CV-00130-HBB, 2017 U.S. Dist. LEXIS 5337 (W.D. Ky. Jan. 13, 2017)
("Defendants argue the Court made a clear error when it determined the documents at issue should be produced to Plaintiffs because they are subject to the fiduciary exception to the attorney-client privilege. Because the attorney-client privilege is fundamentally important to our system of justice, the Court will reconsider its interlocutory order with regard to the documents at issue. Notably, the parties agree that the attorney-client privilege applies to each of the documents at issue. Therefore, the question before the Court is whether these documents are subject to the fiduciary exception to the attorney-client privilege."; "Under either rationale, when an attorney advises an ERISA plan administrator or other fiduciary concerning a matter of plan administration, the attorney's client is the plan beneficiaries for whom the fiduciary acts, instead of the plan administrator."; "There are two types of situations where the fiduciary exception should not be applied because counsel's advice to the ERISA plan administrator concerns a non-administrative or non-fiduciary matter. . . . Additionally, the fiduciary exception does not apply to an administrator's communications with plan attorneys regarding non-fiduciary matters, such as adopting, amending, or terminating an ERISA plan."; "Obviously, the context and content of the communications must be considered in determining whether the fiduciary exception applies to the withheld communications. . . . For this reason, an in camera evaluation of each document must be conducted in order to assess the content of counsel's confidential communications with the plan administrator because the same attorney may advise the administrator in both his fiduciary and nonfiduciary capacities at different times.")

Case Date Jurisidction State Cite Checked
2017-01-13 Federal KY

Chapter: 59.403

Case Name: Loop AI Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2017 U.S. Dist. LEXIS 4254 (N.D. Cal. Jan. 11, 2017)
(finding that a firm represented an Italian company and its subsidiary, even if there was no retainer agreement; "The court conducted in camera review of approximately 4000 pages of responsive documents for which the Almawave Defendants claimed privilege.")

Case Date Jurisidction State Cite Checked
2017-01-11 Federal CA

Chapter: 59.403

Case Name: Loop AI Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2017 U.S. Dist. LEXIS 4254 (N.D. Cal. Jan. 11, 2017)
(after reviewing documents in camera and concluding that they deserved privilege protection, assuring a litigant that the documents did not conflict with earlier deposition testimony; "At the December 10, 2015 hearing, the undersigned ruled that Plaintiff was not entitled to privileged Orrick documents for the purpose of 'double-checking' the truthfulness of Sternberg's [then-Orrick Herrington lawyer] statement. . . . The court noted that, through the process of in camera privilege review, it would have the opportunity to examine the Orrick documents to determine whether they contradicted Sternberg's representation about his knowledge of Gatti's employment with Loop. . . . In the course of its review, the court did not find any communications that contradicted Sternberg's statement. Nothing in the documents reviewed in camera by the court indicates that Sternberg gave his client advice about the 'implications arising from Anna Gatti's employment' with Loop.")

Case Date Jurisidction State Cite Checked
2017-01-11 Federal CA

Chapter: 59.403

Case Name: AKH Company, Inc. v. Universal Underwriters Ins. Co., Case No. 13-2003-JAR-KGG, 2016 U.S. Dist. LEXIS 178005 (D. Kansas Dec. 22, 2016)
("The Central District of California 'determined that it was necessary to review the documents in camera to determine whether they qualified for protection.'. . . That Court ultimately determined that the District of Kansas and the undersigned Magistrate Judge were 'best suited to conduct the [requested] document review' as "'[h]e had been overseeing the discovery in [this] case since February 2013.'. . . Further, the undersigned Magistrate Judge has previously reviewed thousands of pages -- and has ordered the production of hundreds of pages -- of otherwise privileged or protected documents in this case on the basis of the crime-fraud exception, the same issue on which the present motion hinges.")

Case Date Jurisidction State Cite Checked
2016-12-22 Federal KS

Chapter: 59.403

Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2016 U.S. Dist. LEXIS 160602 (S.D.N.Y. Nov. 18, 2016)
("After in camera review of the document, the Court finds that it does not reference the contents of discussions with Attorney Martino; rather it references a request that Mr. Berlinski [Plaintiff's CEO and Chairman of the Board], a non-attorney, had made of Mr. Press [Plaintiff's President, also a non-attorney, which was non-legal in nature and did not incorporate Mr. Martino's advice and counsel. Accordingly, the email is subject to neither the attorney-client privilege nor the work product doctrine and should be produced.")

Case Date Jurisidction State Cite Checked
2016-11-18 Federal NY

Chapter: 59.403

Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("[T]he privilege does not protect 'the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case; and it is equally unrelated to writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories.' See Hickman v. Taylor, 329 U.S. 495, 508, 67 S. Ct. 385, 91 L. Ed. 451 (1947). The 'attorney's notes and personal musings [which] do not constitute 'communications,' are not privileged, and must be produced.' In re Gabapentin Patent Litig., 214 F.R.D. at 187."; "At most Mahoney, by declaration, claims that because Knedlik relied on information received from her clients in performing her duties as their attorney, some client information might be contained in her notes. Mahoney does not contend that Knedlik's notes are comprised solely of information obtained from clients and nothing else. Our in camera review of these documents indicates that at least some portions of the notes contain attorney musings rather than client information.")

Case Date Jurisidction State Cite Checked
2016-08-25 Federal PA
Comment:

key case


Chapter: 59.403

Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("AbbVie once again has not provided sufficient information for us to find that the privilege applies to these documents. Hardy's declaration concludes that these communications contain requests for legal advice without providing context to substantiate her contention. As far as we can tell from our own in camera examination of this email, in-house counsel supplied the redacted information for a predominately business, not legal, purpose.")

Case Date Jurisidction State Cite Checked
2016-08-25 Federal PA

Chapter: 59.403

Case Name: Fidelity and Deposit Company of Maryland v. First National Community Bankcorp, Civ. A. No. 12-1784, 2016 U.S. Dist. LEXIS 130911 (M.D. Pa. Aug. 8, 2016)
("F&D also has not waived the work-product privilege because the Bank has failed to show it has a substantial need for privileged information. The Bank has had access to information concerning F&D's factual investigation, including the underwriting and claims files, and depositions of employees engaged in the factual investigation. Furthermore, my in camera review revealed Mr. Rush would not be able to provide more relevant, non-privileged information concerning the investigation.")

Case Date Jurisidction State Cite Checked
2016-08-08 Federal PA

Chapter: 59.403

Case Name: Fidelity and Deposit Company of Maryland v. First National Community Bankcorp, Civ. A. No. 12-1784, 2016 U.S. Dist. LEXIS 130911 (M.D. Pa. Aug. 8, 2016)
("F&D also has not waived the work-product privilege because the Bank has failed to show it has a substantial need for privileged information. The Bank has had access to information concerning F&D's factual investigation, including the underwriting and claims files, and depositions of employees engaged in the factual investigation. Furthermore, my in camera review revealed Mr. Rush would not be able to provide more relevant, non-privileged information concerning the investigation.")

Case Date Jurisidction State Cite Checked
2016-08-08 Federal PA

Chapter: 59.403

Case Name: Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016)
September 14, 2016 (PRIVILEGE POINT)

"Court Points to Several Factors in Denying Work Product Protection: Part I"

Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the rule as written.

In Phoenix Technologies Ltd. v. VMware, Inc., Case No. 15-cv-01414-HSG (DMR), 2016 U.S. Dist. LEXIS 86210 (N.D. Cal. July 1, 2016), the court rejected Phoenix's work product claim for emails it generated over a seven-day period. Phoenix claimed that it created the documents because it anticipated litigation with defendant, rather than because of a business dispute that had not yet ripened into anticipated litigation. Phoenix argued that "its in-house counsel provided 'continual' legal advice and direction" about the dispute, but the court emphasized that Phoenix's lawyer's "declaration does not identify a single document for which she provided instruction, review or comment." Id. at *23, *26. The court noted that "[l]ack of attorney involvement in documents" can be an important indication that the documents did not deserve work product protection. Id. at *26. After reviewing the withheld documents in camera, the court concluded that "the documents at issue would have been drafted or circulated for a business purpose even if this lawsuit never came to pass." Id. at *28.

Although lawyers need not be involved in creating work product, their involvement supports the argument that the documents were motivated by anticipated litigation rather than created in the ordinary course of business. Next week's Privilege Point will discuss three other factors that doomed Phoenix's work product claim.

Case Date Jurisidction State Cite Checked
2016-07-01 Federal CA B 9/16
Comment:

key case


Chapter: 59.403

Case Name: Montesa v. Schwartz, 12 Civ. 6057 (CS) (JCM), 2016 U.S. Dist. LEXIS 80822 (S.D.N.Y. June 20, 2016)
(finding that a litigant waived the work product protection by disclosing work product to a journalist; "[T]he Court's in camera review of this communication indicates that Mr. Forrest was not acting as a consultant to counsel in sending this communication to Plaintiff White, but was instead seeking Plaintiff White's advice on Mr. Forrest's own case. As a result, this is work product created by a non-party to this action, in anticipation of Mr. Forrest's own anticipated litigation, which is not protected by Rule 26(b)(3).")

Case Date Jurisidction State Cite Checked
2016-06-20 Federal NY

Chapter: 59.403

Case Name: Pensler v. Fox Television Stations, Inc., No. 1-14-2694, 2016 Ill. App. Unpub. LEXIS 1204 (Ill. App. 1.d June 14, 2016)
(describing the control group standard in Illinois, but finding it unnecessary to decide whether the communications deserve privilege under that standard; "While the privilege log's description of the emails is not determinative, it also does not constitute evidence of the privilege. There is nothing in the privilege log description that identifies the emails as having been initiated in confidence by Schwab ["WLFD Executive Producer of Special Projects for Fox News Chicago"] for the purpose of seeking legal advice or Keneipp [Defendant's in-house lawyer] rendering legal advice related to the report: it only indicates that 'advice' was sought and provided. We cannot conclude that because Keneipp is a lawyer, he only gives legal advice or that whatever advice he provides is confidential and intended by the recipient to remain confidential. Our in camera review of the subject emails confirms the accuracy of the characterization that the emails seek and provide 'advice' and cannot fairly be described as seeking or providing legal advice. Keneipp's affidavit does not furnish factual evidence of a privileged communication.")

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

Chapter: 59.403

Case Name: Toyo Tire & Rubber Co. v. Atturo Tire Corp., Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756, at *7 (N.D. Ill. June 3, 2016)
August 10, 2016 (PRIVILEGE POINT)

"Court Explains What "Facts Are Never Privileged" Means"

Historical facts never deserve privilege protection. Something either happened or it didn't happen. But some litigants erroneously point to this axiom in seeking to discover factual portions of clients' privileged communications to their lawyers, and vice versa.

In Toyo Tire & Rubber Co. v. Atturo Tire Corp., defendant sought emails between Toyo and its lawyers, arguing "that the emails it seeks concerned underlying facts, which are not protected by the attorney-client privilege." Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756, at *7 (N.D. Ill. June 3, 2016). The court correctly explained that "[t]he vast majority of communications between attorneys and clients contain some mixture of fact and legal opinion" — noting that "the relevant inquiry is whether the documents or communications sought were transmitted for the purpose of obtaining legal advice." Id. at *8-9. The court rejected defendant's argument, and found the withheld documents privileged after reviewing them in camera. The court concluded by explaining the practical consequences of this universally accepted principle: "the underlying facts communicated between an attorney and a client can be discovered through depositions or other discovery techniques." Id. at *6.

It is ironic that some lawyers and even courts think that clients' recitations of historical facts to their lawyers do not deserve privilege protection. The privilege exists to assure absolute privacy for such communications, so such recitations actually represent the most protected of all communications.

Case Date Jurisidction State Cite Checked
2016-06-03 Federal IL B 8/16
Comment:

key case


Chapter: 59.403

Case Name: Brown v. Greyhound Lines, Inc., No. 1167 EDA 2015, No. 1169 EDA 2015, No. 1174 EDA 2015, No. 1602 EDA 2015, No. 1866 EDA 2015, No. 1879 EDA 2015, No. 1931 EDA 2015, No. 1932 EDA 2015, 2016 Pa. Super. LEXIS 288 (Pa. Super. May 24, 2016)
(holding that under Pennsylvania's work product rule, the protection does not extend to a mock deposition; "FirstGroup contends the trial court erred when it ordered the production of information protected by the work-product doctrine, maintaining that although the materials at issue may at first blush appear merely to be a recitation of investigative efforts of Gallagher ["a third-party adjustment company which contractually handled claims and investigations for Appellants Greyhound and FirstGroup," which owns Greyhound], 'upon closer inspection it is clear that these documents contain the mental impressions and/or legal theories that Gallagher Bassett intends to utilize in defending against claims made by those injured in the October 9, 2013 bus accident.'. . . FirstGroup, however, never explains this conclusion – and fails to apprise this Court why or how the documents contain mental impressions."; after an in camera review, ordering many of the documents to be produced)

Case Date Jurisidction State Cite Checked
2016-05-24 Federal PA

Chapter: 59.403

Case Name: The Manitowoc Co., Inc. v. Kachmer, Case No. 14-cv-9271, 2016 U.S. Dist. LEXIS 61503 (N.D. Ill. May 10, 2016)
(analyzing privilege and work product protection for recorded interviews by the plaintiff company's lawyer of employees who later left the company; holding that the privilege did not apply because the employees were not then in the control group under Illinois law; holding that the work product doctrine did not apply because the court concluded after an in camera review that the interviews did not reflect the lawyer's opinions or strategy; ordering production of the audio recordings after allowing a lawyer to redact later-added notes and impressions; inexplicably not considering the audio recordings to be fact work product; "After an in camera inspection of the transcripts, we have not found anything that would show that Aziere's mental impressions and theories about the case are so 'inextricably intertwined' with his line of questioning that we can reasonably characterize the Employees' statements as the work product of Aziere himself. . . . In fact, it is possible to redact Aziere's questions from the transcripts and read the Employees' responses on their own as a fairly coherent description of the underlying facts of the case, which in our opinion shows that the interviews were more about collecting the verbatim statements of third-party witnesses than about preparing those witnesses for a deposition. Aziere's questions were simply not influential enough to take the Employees' responses out of the realm of a witness's factual assertions and into the realm of his own work product."; "Further, the fact that Aziere took audio recordings of the interviews cuts against the argument that his mental impressions and legal theories are 'inextricably intertwined' with the underlying factual content of the interviews. . . . Put simply, by using an audio recording device Aziere has done nothing to make the resulting 'document' his own work product. Had he taken the Employees' statements by hand, or summarized the interviews in his own words, or in some way filtered or recorded only what he perceived to be the most important or relevant parts of the Employees' statements, we would be much more inclined to believe that Aziere had injected his own mental impressions or legal theories into the interviews. But that is not the case. There is nothing in the transcripts to support Plaintiff's assertion that Aziere's questions themselves make the Employees' verbatim statements his own work product. . . . The recordings contain the verbatim statements of third-party witnesses. Under those circumstances, the work-product doctrine does not shield them from discovery.")

Case Date Jurisidction State Cite Checked
2016-05-10 Federal IL

Chapter: 59.403

Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *21-22, 22 (N.D. Cal. Apr. 21, 2016)
("ChriMar's privilege log includes the date of each email, the sender and recipient, a statement that each email 'reflects and memorializes legal advice,' and identifies which attorney communicated with [Mr. Austermann [named inventor]. . . . This in itself can be sufficient to establish privilege. . . . However, given that the emails were sent and received by the same person, who is not a lawyer, it is not clear based on the privilege log alone that the emails document advice from privileged communications."; "Having carefully reviewed each email and the attorney declarations submitted by ChriMar, the Court finds ChriMar has properly withheld certain emails under the attorney-client privilege.")

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

Chapter: 59.403

Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *21-22, 22 (N.D. Cal. Apr. 21, 2016)
("ChriMar's privilege log includes the date of each email, the sender and recipient, a statement that each email 'reflects and memorializes legal advice,' and identifies which attorney communicated with [Mr. Austermann [named inventor]. . . . This in itself can be sufficient to establish privilege. . . . However, given that the emails were sent and received by the same person, who is not a lawyer, it is not clear based on the privilege log alone that the emails document advice from privileged communications."; "Having carefully reviewed each email and the attorney declarations submitted by ChriMar, the Court finds ChriMar has properly withheld certain emails under the attorney-client privilege.")

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

Chapter: 59.403

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)
("Whether a particular document is protected by a privilege is necessarily a fact-specific determination, usually requiring an in camera review.")

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

Chapter: 59.403

Case Name: Berens v. Berens, 785 S.E.2d 733, 742 (N.C. Ct. App. 2016)
("While we have held that the record evidence established an agency relationship between Ms. Adams and Defendant, it is unclear whether all the requested materials fall within the scope of the attorney-client privilege by satisfying the five-factor Murvin [State v. Murvin, 284 S.E.2d 289 (N.C. 1981)] test. For example, communications between Ms. Adams and third parties outside the law firm may not fall within the protection of the attorney-client privilege. Therefore, we must remand for the trial court to determine whether the attorney-client privilege applies to the requested communications, using the five-factor Murvin test and considering Ms. Adams as Defendant's agent. Unless the trial court can make this determination from other evidence such as a privilege log, it must conduct an in camera review of the documents.")

Case Date Jurisidction State Cite Checked
2016-04-19 Federal NC B 8/16

Chapter: 59.403

Case Name: Berens v. Berens, 785 S.E.2d 733, 742 (N.C. Ct. App. 2016)
("While we have held that the record evidence established an agency relationship between Ms. Adams and Defendant, it is unclear whether all the requested materials fall within the scope of the attorney-client privilege by satisfying the five-factor Murvin [State v. Murvin, 284 S.E.2d 289 (N.C. 1981)] test. For example, communications between Ms. Adams and third parties outside the law firm may not fall within the protection of the attorney-client privilege. Therefore, we must remand for the trial court to determine whether the attorney-client privilege applies to the requested communications, using the five-factor Murvin test and considering Ms. Adams as Defendant's agent. Unless the trial court can make this determination from other evidence such as a privilege log, it must conduct an in camera review of the documents.")

Case Date Jurisidction State Cite Checked
2016-04-19 Federal NC B 8/16

Chapter: 59.403

Case Name: Sender v. Franklin Res., Inc., Case No. 11-cv-03828-EMC, 2016 U.S. Dist. LEXIS 42739, at *5 (N.D. Cal. Mar. 30, 2016)
(holding that the fiduciary exception could apply in a document-by-document basis; "Here, Judge Kim conducted an in camera review of nineteen sets of documents, sustaining the attorney-client privilege as to fifteen of these communications. . . . With respect to Communication 1, Judge Kim determined that the communications concerned the 'applicability of a specific legal defense and thus, the Defendant's potential liability. It does not involve the administration of the plan.'" (internal citation omitted))

Case Date Jurisidction State Cite Checked
2016-03-30 Federal CA B 8/16

Chapter: 59.403

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *76 (S.D. W. Va. Mar. 28, 2016)
("After reviewing all of the materials submitted by the parties, the Courts FINDS that the withheld documents listed on the 2010 ASO privilege log were created in anticipation of litigation.")

Case Date Jurisidction State Cite Checked
2016-03-28 Federal WV B 8/16

Chapter: 59.403

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *76 77, *78 (S.D. W. Va. Mar. 28, 2016)
("Mr. Logel [defendant's in-house lawyer] asserts that Ford's OGC enlisted Ford's ASO [Automotive Safety Office] to assist in the review and analysis of NHTSA VOQs (vehicle owner questionnaire) and TREAD Act submissions. . . . Ford's ASO then created documents during its review and analysis that were 'used solely by Ford's attorneys in rendering legal advice to Ford regarding pending and anticipated litigation involving claims of sudden unintended vehicle acceleration.' . . . Mr. Love's [ASO employee] affidavit corroborates Mr. Logel's sworn statements. As a member of Ford's ASO in 2010, Mr. Love recalls creating documents at Ford's OGC's request after reviewing and analyzing NHTSA VOQs and TREAD Act submissions. Mr. Love also states that '[t]he review and analysis requested from Ford's ASO by Mr. Logel was different from other VOQ analysis conducted by Ford's ASO during th[e] same time period.' Similarly, Mr. Nevi testified that Ford's OGC specifically requested a 'different look' at the information reviewed by Ford's ASO during the 2010 investigation." (internal citation omitted); "Second, after reviewing Ford's in camera submission and comparing that submission to the representative documents provided by the parties, the Court concludes that the ASO conducted a separate analysis of the pertinent data from a different perspective for the benefit of the OGC. Third, and relatedly, the contents of Ford's in camera submission demonstrate that Ford was concerned with probable future litigation after the Wall Street Journal article was published.")

Case Date Jurisidction State Cite Checked
2016-03-28 Federal WV B 10/16

Chapter: 59.403

Case Name: In re Engle Cases, Case No. 3:09-cv-10000-J-WGY-JBT, 2016 U.S. Dist. LEXIS 16667, at *26 (M.D. Fla. Feb. 10, 2016)
(ordering disclosure of withheld documents to a Special Master; concluding that the compelled disclosure did not trigger a waiver; also permitting the category log; "[T]he Special Master's in camera inspection procedure, set forth in the Special Master's Order . . ., is an approved discovery practice where parties claim a privilege or protection in certain materials.")

Case Date Jurisidction State Cite Checked
2016-02-10 Federal FL B 8/16

Chapter: 59.403

Case Name: Gelman v. W2 Limited, Civ. A. No. 14-6548, 2016 U.S. Dist. LEXIS 14787 (E.D. Pa. Feb. 5, 2016)
(analyzing the common interest doctrine's application to communications between the plaintiff suing a defendant for breach of contract and the defendant's "authorized agent" which signed the contract -- and who was pursuing a lawsuit against the same defendant in another court; ordering an in camera production of the common interest agreement; "Following a teleconference with counsel on January 15, 2016, I ordered Plaintiff to submit the Agreement for in camera review, and the parties to brief the issue of the common interest doctrine.")

Case Date Jurisidction State Cite Checked
2016-02-05 Federal PA

Chapter: 59.403

Case Name: Fosbre v. Las Vegas Sands Corp., Case No. 2:10-cv-00765-APG-GWF Consolidated with: Case No.: 2:10-cv-01210-APG-GWF, 2016 U.S. Dist. LEXIS 5422 (D. Nev. Jan. 14, 2016)
("Whether a particular communication was primarily for the purpose of obtaining or providing legal advice can only be determined by evaluating the communication itself. . . . The Court will grant limited in camera review to determine whether the privilege is or is not being properly asserted.")

Case Date Jurisidction State Cite Checked
2016-01-14 Federal NV
Comment:

key case


Chapter: 59.403

Case Name: Fosbre v. Las Vegas Sands Corp., Case No. 2:10-cv-00765- c/w 2:10-cv-01210-APG-GWF, 2016 U.S. Dist. LEXIS 5422, at *37-38 (D. Nev. Jan. 14, 2016)
("If in camera review of the foregoing documents indicates that Defendants improperly asserted the attorney-privilege in a manner that calls into question the reasonableness of their assertion of attorney-client privilege to the remaining documents, then the Court will consider granting additional in camera review which may include the appointment of a special master in the manner done in Applied Medical Resources Corp. v. Ethicon, Inc., 2005 U.S. Dist. LEXIS 41199, 2005 WL 6567355, at *3 [(C.D. Cal. May 23, 2005)].")

Case Date Jurisidction State Cite Checked
2016-01-14 Federal NV

Chapter: 59.403

Case Name: Las Olas River House Condo Assoc., Inc. v. Lorh, LLC, No. 4D15-2289, 2015 Fla. App. LEXIS 18400 (Fla. App. 4d Dec. 9, 2015)
(finding that disclosure to a condominium's property manager did not automatically waive privilege protection, and remanding; "We agree that the trial court should have applied a test based on Deason [Southern Bell Telephone & Telegraph Co. v. Deason, 632 So. 2d 1377 (Fla. 1994)], and should have determined, in the course of an in camera inspection, whether the privilege as to each document or class of documents was waived by disclosure to the property manager and his supervisor.")

Case Date Jurisidction State Cite Checked
2015-12-09 Federal FL

Chapter: 59.403

Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "This Court has obtained and reviewed, in camera, the Davis Polk Memo, and, upon such review, the Court finds that the primary purpose of that document was to render legal advice concerning the administration and management of the BPIC, in response to a request for operational guidance. . . . This material therefore relates not to the settlor functions of plan amendment or design . . . but rather to the core fiduciary functions of asset management and avoidance of conflicts of interest, thereby implicating the fiduciary exception to Defendants' claim of privilege.")

Case Date Jurisidction State Cite Checked
2015-10-16 Federal NY

Chapter: 59.403

Case Name: Leber v. The CitiGroup 401(K) Plan Investment Committee, 07-CV-09329 (SHS) (DF), 2015 U.S. Dist. LEXIS 144367 (S.D.N.Y. Oct. 16, 2015)
(analyzing the fiduciary exception in an ERISA setting; finding that the fiduciary exception did not apply to privileged Citi communications about how to handle press inquiries; "This Court has obtained and reviewed, in camera, the Davis Polk Memo, and, upon such review, the Court finds that the primary purpose of that document was to render legal advice concerning the administration and management of the BPIC, in response to a request for operational guidance. . . . This material therefore relates not to the settlor functions of plan amendment or design . . . But rather to the core fiduciary functions of asset management and avoidance of conflicts of interest, thereby implicating the fiduciary exception to Defendants' claim of privilege.").

Case Date Jurisidction State Cite Checked
2015-10-16 Federal NY

Chapter: 59.403

Case Name: Jones v. Life Insurance Co. of North Am., Case No. 08-cv-03971-RMW, 2015 U.S. Dist. LEXIS 134945 (N.D. Cal. Oct. 2, 2015)
("[T]he court will conduct an in camera review of all communications and documents that relate to the assertion of the offset to evaluate whether they must be produced.").

Case Date Jurisidction State Cite Checked
2015-10-02 Federal CA

Chapter: 59.403

Case Name: Moore v. Plains All American GP, LLC, Civ. A. No. 14-4666, 2015 U.S. Dist. LEXIS 124794 (E.D. Pa. Sept. 18, 2015)
(holding that an EEOC charge did not necessarily trigger a reasonable anticipation of litigation; "My in camera review of the disputed emails does not fully convince me that they were created with the primary aim of aiding future litigation, as opposed to being created in the ordinary course of business. While Defendant was aware of Plaintiff's EEOC charge at the time the emails were written, the emails largely discuss Plaintiff's request for an accommodation for his religious beliefs. This email exchange would have occurred regardless of whether Plaintiff had filed his complaint, and is part of an employer's duty in the regular course of business. . . . Indeed, the contents of these emails do not differ substantially from emails already produced to Plaintiff. While the emails do reference having a discussion with counsel at some point in the future, both Graham and Smith indicated during deposition that they never spoke to counsel about Plaintiff's request for accommodation.").

Case Date Jurisidction State Cite Checked
2015-09-18 Federal PA

Chapter: 59.403

Case Name: United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 100238 (M.D. La. July 31, 2015)
("The Court therefore finds DHH acted unreasonably in preparing the privilege log and asserting its claims of privilege. Even still, the Court is reluctant to find a complete waiver of privilege as to all of the documents described in DHH's privilege log. This is because the Court has only done an in-camera review of a minimal sampling of the documents being withheld -- 40 out of more than 13,000 documents. And while these 40 documents are exemplary of the 4 categories of entries challenged by the United States, the United States has only identified 10 contested entries within each of the 4 categories. The Court is therefore unaware of the total amount of entries and documents within each category and can only speculate as to the sufficiency of the representative sample provided of each category.")

Case Date Jurisidction State Cite Checked
2015-07-31 Federal LA

Chapter: 59.403

Case Name: Sprint Communications Co., L.P. v. Comcast Cable Communications, LLC, Case No. 11-2684-JWL, Case No. 11-2685-JWL, Case No. 11-2686-JWL, 2015 U.S. Dist. LEXIS 83841 (D. Kan. June 29, 2015)
(ordering an "in camera" to analyze documents allegedly protected by the common interest doctrine)

Case Date Jurisidction State Cite Checked
2015-06-29 Federal KS

Chapter: 59.403

Case Name: Yocabet v. UPMC Presbyteria