McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 324 of 324 results

Chapter: 59.5
Case Name: Cazorla v. Koch Foods of Miss., LLC, Civ. A. No. 3:10-cv-00135-DPJ-FKB, 2018 U.S. Dist. LEXIS 48665 (S.D. Miss. March 20, 2018)
(holding that a deposition witness answering written questions without the presence of the adversary's lawyer must provide answers even if they would disclose privileged communications – which will be later reviewed by the court; "To the extent that the deposition questions may implicate information covered by attorney-client privilege, or any other applicable privilege, Plaintiffs may assert that privilege. However, the claimants must fully answer all questions at the time of the deposition, regardless of any applicable privilege claimed. Should Plaintiffs wish to assert a privilege, they may do so by redacting the deposition transcript before delivering it to Defendant, and by providing an accompanying privilege log. Plaintiffs' counsel shall maintain an unredacted version of the transcript suitable for in camera review by the Court, should Defendant challenge any assertion of privilege.")

Case Date Jurisdiction State Cite Checked
2018-03-20 Federal MS
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2005-01-01 Federal B 3/17

Chapter: 59.6
Case Name: West Bend Mutual Ins. Co. v. Zurich American Ins. Company, No. 17 C 2598, 2018 U.S. Dist. LEXIS 61016 (N.D. Ill. April 11, 2018)
(explaining that the litigants' "meet and confer" must have been perfunctory, and requiring them to be more detailed next time; "One further point needs to be made. The parties claim that they complied with the dictates of Local Rule 37.2 by having two discussion on January 10 and 11, 2018 about these issues. It is troubling, then, that after those discussions, counsel for West Bend filed a motion to compel that seemingly flies in the fact of applicable law on at-issue waiver and counsel for Zurich, in the wake of the motion and upon direction from the court, apprised themselves of applicable caselaw and slashed Zurich's privilege claims by 80%. Local Rule 37.2 mandates, not discussions, but 'good faith' discussions. Chatting for a bit about a dispute and maintaining an untenable position at worst or a tenuous position at best, is not engaging in a good faith meet and confer."; "[A]ny future discovery motion must contain a detailed, joint statement of the parties' efforts to resolve their disputes over each of the document requests at issue, along with their final positions, supported by pertinent authority, on each request that remains in dispute.")

Case Date Jurisdiction State Cite Checked
2018-04-11 Federal IL

Chapter: 59.6
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("On May 5, 2017, the undersigned U.S. Magistrate Judge, James P. O'Hara, issued an order rejecting Syngenta's arguments that plaintiffs lost the ability to challenge the privilege assertions (by either the passage of time or by agreement). The court directed the parties to confer and try to reach an agreement whereby the court would review in camera a sample of the documents 'from each category over which plaintiffs have expressed concern, such that the parties may extrapolate the court's privilege rulings on the subset of reviewed documents to all documents in the withheld categories.' The parties agreed to submit -- and did submit -- 44 documents, falling into five categories, as a representative sample for the court's in camera review. Having carefully reviewed those documents, the undersigned sustains in part and overrules in part Syngenta's privilege assertions.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2011-01-01 Federal

Chapter: 59.7
Case Name: Tex. Brine Co., LLC v. Occidental Chem. Corp., No. 17-6075, No. 17-6076, 2018 U.S. App. LEXIS 1286 (10th Cir. Jan. 19, 2018)
(dismissing an appeal because the privilege protection issue was not yet ripe, since there was no log created in connection with Rule 45 discovery; "Assessing a claim of attorney-client privilege, or even a claim of work product doctrine, when a person withholds subpoenaed information, however, necessarily requires a sufficient factual record. 'Only when the district court has been exposed to the contested documents and the specific facts . . . can it make a principled determination as to whether the attorney-client privilege in fact applies. Any attempt to make this type of determination without this factual foundation amounts to nothing more than a waste of judicial time and resources.'. . . This is why Fed. R. Civ. P. 45(e)(2)(A) requires a person or entity withholding information under a claim of privilege or work product to 'describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.' Without knowing the nature of the documents, neither the requesting party nor the court can possibly assess the claim. In this case, Fed. R. Civ. P. 45(e)(2)(A) required the production of a privilege log. . . . Prior to appealing, Texas Brine did not produce a privilege log regarding the documents Frontier withheld."; "While the district court could have ruled otherwise, the court gratuitously allowed Texas Brine a second chance to produce a privilege log regarding the withheld documents. Texas Brine instead appealed, effectively arguing it should not have to produce any documents or a privilege log. Why Texas Brine believes it can assert a blanket claim of privilege over its communications with Frontier without complying with Fed. R. Civ. P. 45(e)(2)(A) or Fed. R. Civ. P. 26(b)(5)(A) is beyond us. The panel pressed Texas Brine on this subject at oral argument. Texas Brine responded that other courts have granted a blanket privilege over communications between a client and public relations firm without the benefit of a privilege log or viewing the documents in camera. . . . Without the benefit of a privilege log or inspection of documents, we are left with an insufficient factual record -- the exact problem Fed. R. Civ. P. 45(e)(2)(A) aims to prevent. Texas Brine has only itself to blame for the predicament in which it finds itself. Without the facts necessary to assess Texas Brine's claims of attorney-client privilege and work product, this dispute is not fit for appellate review.")

Case Date Jurisdiction State Cite Checked
2018-01-19 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2011-01-01 Federal

Chapter: 59.301
Case Name: NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
May 3, 2017 (PRIVILEGE POINT)

"Court Explains Who Can Make Privilege Rulings in Administrative Law Contexts"

Among administrative law judges, magistrate judges, and Article III judges involved in administrative issues, who can make privilege calls?

In NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017), the United States magistrate judge ordered defendant to produce documents pursuant to an NLRB subpoena. The Article III judge followed other decisions in holding that magistrate judges' order are "dispositive," because they "dispose[] of the entire matter at issue." Id. at *7. The court therefore construed the magistrate judge's decision "as a recommendation which will be reviewed de novo and [to which the court] will apply the clearly erroneous or contrary to law standard." Id. at *8. The judge then turned to the difference between its power under Article III and the NLRB's administrative law judge's power. While criticizing defendant for failing to prepare a privilege log for the administrative law judge, the court acknowledged that it rather than the ALJ had "authority to make an ultimate determination on these issues" – and then overturned the magistrate judge's recommendation that the defendant waived its protections by not preparing a log. Id. at *20.

In those murky administrative areas where administrative, magistrate, and Article III judges exercise their power, corporations and their lawyers should keep track of which judge can decide which privilege issues.

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN
Comment:

key case


Chapter: 59.302
Case Name: In re Morning Song Bird Food Litig., No. 1:17-mc-00078-JMS-TAB, 2018 U.S. Dist. LEXIS 69393 (S.D. Ind. April 25, 2018)
(in connection with Rule 45 discovery, transferring a privilege issue from the court where the discovery was sought to the California handling the underlying case)

Case Date Jurisdiction State Cite Checked
2018-04-25 Federal IN

Chapter: 59.302
Case Name: United States v. All Assets Held at Bank Julius Baer & Co., Civ. A. No. 04-798 (PLF/GMH), 2017 U.S. Dist. LEXIS 147894, at *11 (D.D.C. Sept. 13, 2017)
December 13, 2017 (PRIVILEGE POINT)

"Does the Work Product Doctrine Protect the Identity of Witnesses a Lawyer Chooses to Interview?"

Litigants obviously must identify all witnesses with potentially relevant knowledge about litigated issues. But can litigants claim work product protection for the identity of the subset of those witnesses that their lawyers choose to interview?

As with so many other work product issues, courts disagree. In United States v. All Assets Held at Bank Julius Baer & Co., the court ultimately held that the work product doctrine protected such interviewees' identities, because forcing disclosure of their identities would reveal how the litigant and his lawyer "choose to prepare their case." Civ. A. No. 04-798 (PLF/GMH), 2017 U.S. Dist. LEXIS 147894, at *11 (D.D.C. Sept. 13, 2017) (citation omitted). The court acknowledged that the question "remains unsettled." Id. at *7. And in a refreshing moment of candor, the court explained that "[i]ndeed, in this Court alone, there is a partial split among its members over whether the names of individuals that a party has interviewed in preparation for litigation [are] protected under work-product privilege." Id. at *7-8.

Corporate litigants may not know how the work product doctrine will apply to their lawyers' activities until they know what court will handle their case – and even what judge will hear their case.

Case Date Jurisdiction State Cite Checked
2017-09-13 Federal DC
Comment:

key case


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 Jurisdiction 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 Jurisdiction State Cite Checked
2017-02-16 Federal TN

Chapter: 59.302
Case Name: NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
May 3, 2017 (PRIVILEGE POINT)

"Court Explains Who Can Make Privilege Rulings in Administrative Law Contexts"

Among administrative law judges, magistrate judges, and Article III judges involved in administrative issues, who can make privilege calls?

In NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017), the United States magistrate judge ordered defendant to produce documents pursuant to an NLRB subpoena. The Article III judge followed other decisions in holding that magistrate judges' order are "dispositive," because they "dispose[] of the entire matter at issue." Id. at *7. The court therefore construed the magistrate judge's decision "as a recommendation which will be reviewed de novo and [to which the court] will apply the clearly erroneous or contrary to law standard." Id. at *8. The judge then turned to the difference between its power under Article III and the NLRB's administrative law judge's power. While criticizing defendant for failing to prepare a privilege log for the administrative law judge, the court acknowledged that it rather than the ALJ had "authority to make an ultimate determination on these issues" – and then overturned the magistrate judge's recommendation that the defendant waived its protections by not preparing a log. Id. at *20.

In those murky administrative areas where administrative, magistrate, and Article III judges exercise their power, corporations and their lawyers should keep track of which judge can decide which privilege issues.

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2008-01-01 Federal VA

Chapter: 59.303
Case Name: United States v. Snyder, Case No. 2:16-CR-160 JVB, 2018 U.S. Dist. LEXIS 166231 (N.D. Ind. Sept. 27, 2018)
(proving use of a government "filter" process for a privilege review of seized documents; "The Court held an evidentiary hearing to determine whether the screening process for emails that contain privileged attorney client communications was flawed as claimed by Mr. Snyder [Criminal defendant]. While Mr. Snyder asks the Court to infer that Special Agent Eric Field must have reviewed privileged emails because Google sent all the files to him directly, the Court finds that he did not do so. The Court credits his testimony that he merely passed the files over to BIDMAS at the FBI headquarters and did not review them. Mr. Snyder is correct that it would have been better had the files been sent to a person behind 'the Chinese Wall' as that would have added credibility to the screening process, but in this case, there was no harm sending the files directly to Field."; "The Court finds that, as carried out in this case, the filter process worked sufficiently, even if the process itself has inherent flaws (it has s semblance of the fox guarding the hen house). That is, there's no evidence, or even suggestion, that persons behind 'the Chinese Wall' passed on privileged information to the prosecution team or that releasing the QuickBooks files and two Dogan emails to the prosecution team was done with the intention that the privileged documents be used to prosecute Mr. Snyder.")

Case Date Jurisdiction State Cite Checked
2018-09-27 Federal IN

Chapter: 59.303
Case Name: United States v. Gallego, No. CR-18-01537-001-TUC-RM (BPV), 2018 U.S. Dist. LEXIS 152055 (D. Ariz. Sept. 6, 2018)
(appointing a Special Master to review privileged documents the government seized from a criminal defendant's law firm, rather than allowing a government "filter team" to review the documents for privilege; "The parties agree that the items seized from Defendant's law office must be reviewed for privilege and responsiveness to the search warrant, but they disagree as to who should conduct the review. Defendant asks the Court to order that the review be conducted by his law office or by a Special Master. . . . The Government argues that the review should be conducted by a walled-off Government filter team in accordance with procedures developed by the United States Attorneys' Office for the Western District of Texas ('USAO-WDTX') in consultation with the Department of Justice's Office of Enforcement Operations. . . . According to the Government, the use of a filter team -- also known as a taint team -- is a common, accepted, and approved practice that is consistent with the guidance provided by the United States Attorneys' Manual ('USAM')."; "The Court rejects Defendant's proposal to allow his law office to review the seized materials for privilege and responsiveness, as Defendant has not identified adequate support for the proposal. Accordingly, the issue before the Court is whether the review should be conducted by a Government taint team or by a Special Master. Both of these review procedures are contemplated by the USAM, which provides non-binding guidance for searches of offices of attorneys who are suspects, subjects, or targets of criminal investigations. . . . In addition, both of these review procedures have been approved and authorized by courts."; "Although use of taint teams has been approved in limited factual scenarios, federal courts have generally 'taken a skeptical view of the Government's use of 'taint teams' as an appropriate method for determining whether seized or subpoenaed records are protected by the attorney-client privilege.'. . . '[T]aint teams present inevitable, and reasonably foreseeable, risks to privilege.'. . . The Government's taint team may 'have a more restrictive view of privilege' than the defense."; "Furthermore, the Government has not identified any cases approving use of taint teams in situations like the one presented here, where materials -- including active case files -- have been seized from the law office of a criminal defense attorney. '[A] search of the law offices of a criminal defense attorney raises Sixth Amendment concerns not otherwise present in the search of the offices of a civil litigation attorney.'"; "In the present case, the seized materials do not relate to clients of attorneys other than Defendant, but they do likely contain privileged materials pertaining to unrelated clients of Defendant."; "In light of the fact that the materials at issue were seized from a criminal defense attorney's office, and given the importance of protecting both the interests and appearance of fairness and justice, the Court finds that exceptional circumstances warrant the appointment of a Special Master to review the items seized from Defendant's law office for privilege and responsiveness to the search warrant. See Fed. R. Civ. P. 53(a). The Court has reviewed the parties' proposed candidates for appointment. However, instead of hand-picking a candidate, the Court finds that the interests of fairness and justice would best be served by appointing the magistrate judge who was randomly assigned to this case, Judge Bernardo P. Velasco, as Special Master.")

Case Date Jurisdiction State Cite Checked
2018-09-06 Federal AZ

Chapter: 59.303
Case Name: Winfield v. City of New York, No. 15-cv-05236 (LTS) (KHP), 2018 U.S. Dist. LEXIS 79281, at *25 (S.D.N.Y. May 10, 2018)
August 1, 2018 (PRIVILEGE POINT)

"Courts Sometimes Use Special Masters to Assess Privilege and Work Product Claims"

The judge handling the criminal case against President Trump's former lawyer Michael Cohen appointed a special master to review for privilege or work product protection documents the government seized from Cohen's office. The media covered this as newsworthy, but special masters frequently play such a role.

In Winfield v. City of New York, Judge Parker appointed respected retired Judge Frank Maas as a special master to review defendant City's withheld documents – noting that the "task of reviewing 3,300 documents is enormous and one that this Court cannot complete before the end of fact discovery." No. 15-cv-05236 (LTS) (KHP), 2018 U.S. Dist. LEXIS 79281, at *25 (S.D.N.Y. May 10, 2018).

Corporate litigants should carefully consider suggesting that courts appoint such special masters. Billing by the hour, special masters frequently spend more time analyzing privilege and work product assertions. This sometimes contrasts with overworked judges, who often look primarily (if not exclusively) on the face of withheld documents for clients' explicit requests or legal advice or lawyers' explicit legal advice in response.

Case Date Jurisdiction State Cite Checked
2018-05-10 Federal NY
Comment:

key case


Chapter: 59.303
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "'On remand, under the district court's order, the special master will perform an in camera review of certain categories of documents that C&S and Collingsworth contend are protected by the attorney client privilege or work product protection. To conclude that the crime-fraud exception applies to require disclosure of any specific document, the special master must find that the document either (1) reflects a communication used to further a crime or fraud or was closely related to it or (2) was created to further a crime or fraud or was closely related to it.'")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal

Chapter: 59.303
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "After determining that the crime-fraud exception may apply, the district court ordered a special master to review in camera the documents that Collingsworth and C&S claimed were privileged or protected as attorney work product to determine whether each individual document was in furtherance of or closely related to a fraud on the court or crime and therefore should be produced to Drummond. The court also set forth a procedure for the special master to assess a witness's assertion or attorney-client privilege or attorney work product protection in a deposition. The court directed that when necessary a witness should give in camera testimony, potentially ex parte, so that the special master could appropriately assess any privilege issues while limiting disclosure only to information used or created in furtherance of the crime or fraud.")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal
Comment:

key case


Chapter: 59.303
Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017)
(acknowledging a possible fiduciary exception, and referring the matter to a Special Referee; "Regarding the fiduciary duty exception, 'in the corporate context, where a shareholder (or, as here, an investor in a company) brings suit against corporate management-for breach of fiduciary duty or similar wrongdding [sic], courts have carved out a 'fiduciary exception' to the privilege that otherwise attaches to communications between management and, corporate counsel.'"; "I am referring this matter to a Special Referee for an item-by-item in camera review to determine whether the 'real client' involved in the communications is Kuafu, as defendants claim, or Bifrost. To the extent the Special Referee determines that the 'real client' is Bifrost plaintiffs are entitled to pierce the attorney-client privilege as to those communications upon a showing of 'good cause.'")

Case Date Jurisdiction State Cite Checked
2017-06-05 State NY

Chapter: 59.303
Case Name: In re HH Liquidation, LLC v. Comvest Group Holdings, LLC, Ch. 11, Case No. 15-11874 (KG), (Jointly Administered), Adv. No. 16-51204 (KG), 2017 Bankr. LEXIS 1258 (D. Del. May 8, 2017)
(holding that an unsecured creditors committee was not entitle to access debtors privileged documents; "The Court is not satisfied from its review of the privilege logs that the documents the Debtors withheld were prepared in anticipation of litigation. The withheld documents appear to the Court to be general corporate documents prepared in connection with a transaction. The Court therefore concludes that these are not work product documents. Accordingly, the Court will order Debtors to produce their work product documents unless they can provide the Court with proof that they prepared the withheld documents in anticipation of litigation. The Court will then review the documents in camera or, if necessary, the Court will appoint a mediator to review the documents to determine if they are protected by the work product doctrine."; "The Court has found that Weintraub does not apply to the Committee but only to chapter 7 trustees; that Garner affords relief but only on a finding of insolvency; and that it is Teleglobe which requires insolvency without which there is no fiduciary duty owed to creditors. The documents withheld on the basis of the work product doctrine shall be produced, subject to the Debtors proving that they prepared the withheld documents in anticipation of litigation. The Court will therefore deny the Motion in part and grant it in part.")

Case Date Jurisdiction State Cite Checked
2017-05-08 Federal DE

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2013-12-24 Federal MD B 5/14

Chapter: 59.402
Case Name: Cooper v. Richland County Recreation Comm., Civ. A. No. 3:16-cv-1606-MGL-TER, 2018 U.S. Dist. LEXIS 163788 (D.S.C. Sept. 25, 2018)
(advising work product protection for an investigation into sexual harassment allegations; "Plaintiff requests that the court review the documents in camera. The Court may engage in an in camera review of documents that are claimed to be privileged in order to determine whether an exception to such privilege applies. . . . However, before the Court may engage in such a review, the movant must present '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 . . . exception applies.'. . . Once that threshold showing is made, the determination of whether to engage in an in camera review is a matter of the Court's discretion. . . . Plaintiff has failed to make the threshold showing.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal SC

Chapter: 59.402
Case Name: Knopick v. Dennis Boyle & Boyle Litigation, No. 99 MDA 2017, 2018 Pa. Super. LEXIS 552 (Pa. Super. May 30, 2018)
("Here, Appellant casts its position on the attorney-client privilege largely in generic terms, as if Mr. Sherman and Appellant are one entity/client, which is grossly misleading. First, Mr. Sherman created the email before consulting an attorney and sent the email to himself. Mr. Sherman's email was not created as a confidential communication to an attorney for the purpose of securing legal advice or created upon directive of counsel. Further, Mr. Sherman is the proper owner of any privilege that might attach to the email he created. Moreover, Mr. Sherman is not a party to the present litigation and is not asserting the privilege."; "Appellant cites no law to support its contention that it can invoke Mr. Sherman's privilege or that the privilege somehow transferred to Appellant or that Appellant absorbed it by osmosis, simply because Appellant's counsel once assumed he could assert the privilege on Mr. Sherman's behalf at a deposition in the present case. No one disputes the order at issue directed only Appellant to produce the email, and Appellant shares no attorney-client relationship with Mr. Sherman. Thus, as the party raising the attorney-client privilege, Appellant failed to satisfy the burden of production to invoke protection under the privilege. See Estate of Paterno, supra; Custom Designs & Mfg. Co., supra. Therefore, the court had no reason to conduct an in camera inspection of the email before ordering Appellant to disclose it in this case.")

Case Date Jurisdiction State Cite Checked
2018-05-30 State PA

Chapter: 59.402
Case Name: Knopick v. Dennis Boyle & Boyle Litigation, No. 99 MDA 2017, 2018 Pa. Super. LEXIS 552 (Pa. Super. May 30, 2018)
("Here, Appellant casts its position on the attorney-client privilege largely in generic terms, as if Mr. Sherman and Appellant are one entity/client, which is grossly misleading. First, Mr. Sherman created the email before consulting an attorney and sent the email to himself. Mr. Sherman's email was not created as a confidential communication to an attorney for the purpose of securing legal advice or created upon directive of counsel. Further, Mr. Sherman is the proper owner of any privilege that might attach to the email he created. Moreover, Mr. Sherman is not a party to the present litigation and is not asserting the privilege."; "Appellant cites no law to support its contention that it can invoke Mr. Sherman's privilege or that the privilege somehow transferred to Appellant or that Appellant absorbed it by osmosis, simply because Appellant's counsel once assumed he could assert the privilege on Mr. Sherman's behalf at a deposition in the present case. No one disputes the order at issue directed only Appellant to produce the email, and Appellant shares no attorney-client relationship with Mr. Sherman. Thus, as the party raising the attorney-client privilege, Appellant failed to satisfy the burden of production to invoke protection under the privilege. See Estate of Paterno, supra; Custom Designs & Mfg. Co., supra. Therefore, the court had no reason to conduct an in camera inspection of the email before ordering Appellant to disclose it in this case.")

Case Date Jurisdiction State Cite Checked
2018-05-30 State PA

Chapter: 59.402
Case Name: In re Andrew Silver, No. 16-0682, 2018 Tex. LEXIS 171 (Tex. Sup. Feb. 23, 2018)
(finding that patent agents were inside privilege protection, because they counted as "lawyers" under Texas evidence rules; "A trial court can review documents in camera if necessary to determine whether a privilege applies. Tex. R. Civ. P. 193.4(a). When such a review is critical to the determination of a privilege claim, the trial court abuses its discretion when it fails to conduct an adequate in camera inspection. . . . Because the privilege here could apply to some of the documents at issue, we conclude that the trial court abused its discretion by not conducting an in camera review.")

Case Date Jurisdiction State Cite Checked
2018-02-23 Federal TX

Chapter: 59.402
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733 (S.D. Ohio Sept. 26, 2017)
(finding that a California law requiring the court to conduct an in camera review did not apply in federal court; "OneBeacon argues that Ohio law 'requires a court deciding issues of privilege to conduct an in camera inspection to determine the extent to which the privilege applies or has been waived before ordering a party to produce information that is claimed to be privileged.'. . . To the extent OneBeacon argues that an in camera review is mandatory, the Court rejects its argument as unsupported."; "First, OneBeacon has not cited any cases to show that Ohio's in camera review requirements are binding on federal courts. Further, the holdings of the cases OneBeacon cites do not support its position that an Ohio court must conduct an in camera review whenever an attorney-client privilege is asserted. Instead, the holdings of the cases OneBeacon cites are more limited than this broad proposition."; "The Court declines to revisit its prior decision and will not conduct an in camera review of the third-party documents it previously held were not entitled to protection under the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-09-26 Federal OH
Comment:

key case


Chapter: 59.402
Case Name: In re Bair Hugger Force Air Warming Devices Prods. Liability Litig., MDL No. 15-2666 (JNE/FLN), 2017 U.S. Dist. LEXIS 141023 (D. Minn. Aug. 30, 2017)
("Denying in camera review 'reflects an appropriate balancing of benefits and detrimental effects' of piercing attorney-client privilege. . . . Although relevant to bias, these Documents are cumulative to other evidence that Plaintiffs already have. Plaintiffs have redeposed the witnesses about the payments and have served interrogatories. . . . Plaintiffs have the records of payments made to those witnesses. . . . If the witnesses gave inconsistent testimony or got paid by Defendants, Plaintiffs already know. The Documents' marginal probative value justifies neither expending the Court's resources on in camera review nor 'chilling . . . frank communication between lawyers and clients.'")

Case Date Jurisdiction State Cite Checked
2017-08-30 Federal MN

Chapter: 59.402
Case Name: Team System International, LLC v. Haozous, No. 16-6277, 2017 U.S. App. LEXIS 16087 (10th Cir. App. Aug. 23, 2017)
("In camera review enables protection of privileged material . . . and courts have reviewed unredacted billing records and time sheets in camera to protect privilege in making attorney fee awards."; "This court has held that a court reviewing a fee request did not abuse its discretion in denying the responding party access to the itemized time records and conducting in camera review of those records.")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal

Chapter: 59.402
Case Name: Leadership Studies, Inc. v. Blanchard Training and Development, Inc., Case No. 15cv1831-WQH (KSC), 2017 U.S. Dist. LEXIS 100435 (S.D. Cal. June 28, 2017)
("In camera review is not a routine procedure that is available upon request."; "Nor is there anything in the record as presented to indicate there is a factual basis to justify the expenditure of the Court's limited resources to conduct an in camera review of a large number of documents just to verify that they are indeed privileged. Finally, for the reasons outlined above in previous sections, the confidential or privileged Korn/Ferry documents do not appear to be particularly important to resolving the matters at issue in the case. Therefore, even if plaintiff made a timely request for in camera review, the Court would have denied the request for failure to make the required showing of need.")

Case Date Jurisdiction State Cite Checked
2017-06-28 Federal CA

Chapter: 59.402
Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)
(finding that defendants had properly logged and withheld documents, and that no in camera review is necessary; "[T]he privilege log sufficiently demonstrates that counsel were included on the email for the purpose of receiving information to provide a legal opinion and mere speculation that the purpose was business and not legal does not justify in camera review.")

Case Date Jurisdiction State Cite Checked
2017-05-26 Federal NC

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

key case


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

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2010-06-17 Federal VA B 3/16

Chapter: 59.403
Case Name: Valassis Communications, Inc. v. News Corporation, 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
(after reviewing documents in camera; "The mere inclusion of a lawyer as a recipient of a copy of a draft document circulated by one business person to other business people seeking comments on the draft would not, standing alone, warrant the protection of the attorney-client privilege. The Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations.")

Case Date Jurisdiction State Cite Checked
2018-09-19 Federal NY
Comment:

Key Case


Chapter: 59.403
Case Name: Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
November 14, 2018 (PRIVILEGE POINT)

How Do Clients Successfully Assert Privilege Protection for Draft Documents They Send to Lawyers for Review?

Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and sometimes assistance in drafting. How do courts tell them apart?

In Valassis Communications, Inc. v. News Corp., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018), Judge Castel acknowledged these two basic principles. The court then explained that "[p]reexisting business documents that are sent to a lawyer are fundamentally different from drafts because their business purpose (or content) cannot be affected by any after-the-fact advice received from the lawyer." Id. at *4-5. The court also recognized that clients might ask for abstract legal advice, but "[t]o save time and to place the inquiry in a concrete setting, the business person could instead send a draft of the material" about which the clients seek advice. Id. at *5 (footnote omitted). Those documents can deserve privilege protection -- "[a]ssuming the transmittal of those drafts were confidential and implicitly or explicitly sought the lawyer's advice." Id. The court also explained how it would differentiate between unprotected preexisting documents and protected draft documents: "[t]he Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations." Id. at *8. The court then addressed possible privilege protection for each withheld document one by one.

Given this well-settled law and judicial approach, lawyers should educate their clients who send them draft documents to describe them as drafts, and to explicitly ask for legal advice if that is what they seek – so courts' "in camera" review will reach the right result.

Case Date Jurisdiction State Cite Checked
2018-09-19 Federal

Chapter: 59.403
Case Name: Progressive Southeastern Insurance Co. v. Arbormax Tree Service, LLC, 5:16-CV-662-BR, 2018 U.S. Dist. LEXIS 159222 (E.D.N.C. Sept. 17, 2018)
(analyzing log requirements in a third party insurance context; "The court finds that the proper course for addressing the deficiencies in the privilege log is to conduct an in camera review of the documents listed in it that have not already been produced. While the court has considered whether the deficiencies warrant a finding that plaintiff has waived the protections claimed as to all the listed documents it has not already produced, it has concluded that such a resolution is inappropriate in light of plaintiff's seemingly conscientious attempt to comply with the requirement for a privilege log. Plaintiff will therefore be required to submit for in camera inspection the documents listed in the privilege log it has not already produced.")

Case Date Jurisdiction State Cite Checked
2018-09-17 Federal NC

Chapter: 59.403
Case Name: Costco Wholesale Corp. v. Arrowood Indemnity Co., Civ. Case No. C17-1212RSL, 2018 U.S. Dist. LEXIS 157335 (W.D. Wash. Sept. 14, 2018)
(analyzing work product protection in a third party insurance setting; "It is Sedgwick LLP's communications with Mr. Aus that were withheld as attorney-client privileged communications. While it is possible that these communications contain legal advice regarding whether or not coverage exists under Washington law or how Arrowood could defend a declaratory judgment action, some or all of the communications may also reflect counsel's participation in and guidance of the quasi-fiduciary tasks of investigation and adjustment. Because the documents appear to be located within the insurer's claim file, they are subject to the presumption that the attorney-client privilege does not apply as between the insured and its insurer in the claims adjusting process. The Court will, nevertheless, review the withheld and redacted documents in camera to forestall an inadvertent disclosure of privileged materials.")

Case Date Jurisdiction State Cite Checked
2018-09-14 Federal WA

Chapter: 59.403
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("It is true that 'simply copying a lawyer on an otherwise non[-]privileged communication will not transform the non-privileged document into a privileged one.'. . . On the other hand, courts have held that the attorney being in the CC, rather than To or From, column is not prima facie evidence that the email is not privileged. . . . The deciding issue is whether the communications sought legal advice from a lawyer, and the typical manner to resolve the dispute when the attorney is only copied on the communication is in camera review of the documents.")

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

key case


Chapter: 59.403
Case Name: Wrubleski v. Mary Imogene Bassett Hosp., 526017, 2018 N.Y. App. Div. LEXIS 5161 (N.Y. Sup. Ct. July 12, 2018)
("Upon examination of the notes turned over to Supreme Court for an in camera review, we conclude that they are a mixed collection, some of which are shielded by the attorney-client privilege and some of which are not. The three-page portion labeled 'injury journal' is, as described by decedent's attorney, a seamless report of the incident at the health club and the medical care that decedent received shortly thereafter. The medication log is on a separate page and includes other notes of a personal nature. We agree with Supreme Court that the medication log was made for the purpose of keeping a medical record rather than as a confidential communication made for the purpose of legal services. Accordingly, in the absence of evidence that the medication log constituted a communication of legal character between decedent and Bobrycki, plaintiff may not invoke the attorney-client privilege to shield its disclosure.")

Case Date Jurisdiction State Cite Checked
2018-07-12 State NY

Chapter: 59.403
Case Name: Morris v. Spectra Energy Partners (DE) GP, LP, Civ. A. No. 12110-VCG, 2018 Del. Ch. LEXIS 146 (Del. Ch. May 7, 2018)
("Having reviewed the two documents in camera, I find that the redacted portions contain communications protected by the attorney-client privilege. The documents include a series of emails between the Conflicts Committee's counsel, the members of the Committee, and the Committee's financial advisor. The redacted portions of those emails reflect a combination of legal and business advice relating to a draft of the agreement that ultimately effectuated the transaction at issue in this case. It is clear to me that the business and legal aspects of that advice cannot be separated. It is also clear to me that the legal component of the advice predominates over the business component. Thus, the redacted portions of the emails are protected by the attorney-client privilege.")

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

Chapter: 59.403
Case Name: Morris v. Spectra Energy Partners (DE) GP, LP, Civ. A. No. 12110-VCG, 2018 Del. Ch. LEXIS 146 (Del. Ch. May 7, 2018)
("Having reviewed the two documents in camera, I find that the redacted portions contain communications protected by the attorney-client privilege. The documents include a series of emails between the Conflicts Committee's counsel, the members of the Committee, and the Committee's financial advisor. The redacted portions of those emails reflect a combination of legal and business advice relating to a draft of the agreement that ultimately effectuated the transaction at issue in this case. It is clear to me that the business and legal aspects of that advice cannot be separated. It is also clear to me that the legal component of the advice predominates over the business component. Thus, the redacted portions of the emails are protected by the attorney-client privilege.")

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

Chapter: 59.403
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
(overruling a Magistrate Judge, and quashing plaintiff's motion to compel production of documents related to a teacher's employment discrimination claim against a school board; "Based upon my in camera review, the documents in question are all dated following a letter of April 30, 2015, from plaintiff Colley to Superintendent Robinson stating her claim of disparate salary treatment and requesting 'redress of financial suffering.'")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 59.403
Case Name: Cazorla v. Koch Foods of Miss., LLC, Civ. A. No. 3:10-cv-00135-DPJ-FKB, 2018 U.S. Dist. LEXIS 48665 (S.D. Miss. March 20, 2018)
(holding that a deposition witness answering written questions without the presence of the adversary's lawyer must provide answers even if they would disclose privileged communications – which will be later reviewed by the court; "To the extent that the deposition questions may implicate information covered by attorney-client privilege, or any other applicable privilege, Plaintiffs may assert that privilege. However, the claimants must fully answer all questions at the time of the deposition, regardless of any applicable privilege claimed. Should Plaintiffs wish to assert a privilege, they may do so by redacting the deposition transcript before delivering it to Defendant, and by providing an accompanying privilege log. Plaintiffs' counsel shall maintain an unredacted version of the transcript suitable for in camera review by the Court, should Defendant challenge any assertion of privilege.")

Case Date Jurisdiction State Cite Checked
2018-03-20 Federal MS
Comment:

key case


Chapter: 59.403
Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)
(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "The contents of the emails at issue, based on our in camera review, support the Wilder Parties' position that the emails were generated because of the prospect of litigation. . . . In the Wirt Email, John Wirt, an attorney for Wilder, discusses his view of the then-existing evidence concerning Povetkin's positive test and recommends a course of action. Certainly, attorney views of this kind fit within the work-product doctrine.")

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

Chapter: 59.403
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(holding that investigation-related documents deserved work product protection because they were primarily motivated by anticipated litigation, even though they also seemed to have been required by internal university policies; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "The parties dispute whether the interview notes taken by the Assistant Director of Human Resources as part of ESU's internal investigation into the racial slur incident at SLIM were prepared in anticipation of litigation, or were created primarily for a non-litigation purpose, such as contemplated by ESU's own policies for investigating racial harassment and discrimination complaints. ESU contends that the primary motivating purpose of the documents was to conduct a thorough investigation of the events in question based on ESU's potential liability. In contrast, Plaintiff contends the primary purpose of the investigation documents was to comply with ESU's institutional policy 3D.0106.05(A)(2). She points to Vietti's September 9, 2015 letter to ESU faculty, staff, and students, which states, "On July 10, 2015, I directed that an internal investigation be conducted by ESU Human Resources into an alleged hate crime and a concern over potential discrimination or harassment in the School of Library and Information Management. This investigation was conducted as outlined in the University Policy Manual [3D.0106.05(A)(2)].'"; "ESU has the burden to prove it is entitled to work-product protection. ESU has provided an affidavit from its general counsel, Kevin Johnson, wherein he states that '[d]uring July 2015, the Hales indicated they had retained counsel and were acting upon the advice of an attorney.' Johnson further states in his Affidavit that by July 10, 2015, it became apparent the Hales were refusing to file a grievance with ESU regarding their perception of discrimination and harassment in the SLIM department, and he recommended that ESU President Vietti initiate a request for an investigation into the Hales' allegations. Based upon these sworn statements by Johnson, the Court concludes that as of July 10, 2015, ESU was on reasonable notice that Plaintiff intended legal action against ESU and that it reasonably anticipated litigation as of at least that date."; "ESU must also show that Lauber's [University assistant HR director] purpose in preparing the witness interview notes was in anticipation of litigation, and not for some other non-litigation purpose. Notwithstanding the public statements made by ESU's Interim President Vietti regarding ESU's investigation, which might suggest the investigation was for purposes of a more general university investigation into discrimination and harassment in the SLIM department, the Court finds Lauber conducted the witness interviews at the direction of Vietti, who was acting upon Johnson's advice and recommendation that an investigation be initiated into the Hales' allegations."; "In this district, courts look to the 'primary motivating purpose behind the creation of the document to determine whether it constitutes work product.' After conducting an in camera review of a sampling of the withheld witness notes, the Court concludes that Lauber's primary purpose behind the creation of these interview notes was in anticipation of litigation with the Hales and not for purposes of conducting an investigation under university policies. The privilege log lists many of Lauber's interview notes as undated so the Court cannot tell when Lauber interviewed each person or prepared the notes. However, to the extent the privilege log lists dates for Lauber's interview notes, they are all dated after July 10, 2015, and a review of the undated interview notes indicates it is very likely Lauber also conducted those interviews or prepared those interview notes after July 10, 2015. Plaintiff's motion is therefore DENIED with respect to these documents.")

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

key case


Chapter: 59.403
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(holding that employee-to-employee communications deserved privilege protection; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "ESU argues that the email communications from various university personnel seeking direction on how to handle certain issues with the Hales during the investigation constitute requests for legal advice from ESU's general counsel. Some, but not all, of these communications were initially made to high-level university personnel and then forwarded to general counsel Johnson for response. Many of these communications start with an email from Dr. Hale, followed by an inquiry of the sender regarding how to handle the email in light of the investigation and potential for litigation. ESU argues the attorney-client privilege is not defeated simply because some of the emails are not initiated to or from its general counsel; the privilege applies because communications were made to university personnel seeking legal advice in confidence. The email correspondence relating to the Hales during the investigation seeking advice of counsel meets the requirements of the attorney-client privilege and its disclosure should not be compelled."; "As acknowledged by ESU, many of the email strings at issue start with an email exchange between one of the Hales and SLIM Assistant Dean Alexander and are then forwarded to other ESU officials. The Court therefore has conducted an in camera review of these email communications to determine whether any should be produced. For example, ESU lists a three-page email string 'regarding teaching assignment' as Bates number AGO-000362-364 (privilege log 63), but a review of the email string shows that two and a half of the three pages withheld are emails only between Alexander and the Hales. Another example is a two-page email string 'regarding payment resolution of Dr. Hale's practicum.' A review of the emails reveals that all but the last email in the string are between only Alexander and the Hales. ESU cannot claim attorney-client privilege with respect to the emails between its employees and the Hales without some showing those emails contain confidential attorney-client privileged or work-product information that was not disclosed to the Hales. All of the withheld emails at issue between only ESU employees and the Hales must be produced to Plaintiff.")

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

key case


Chapter: 59.403
Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; "Many of the documents submitted for in camera review are not communications with Motus [Client agent/consultant], but rather internal PJI [Papa John's] communications or communications between PJI and its outside counsel. . . . Those communications are protected by the attorney-client privilege, in whole or in part, to the extent they were made in confidence between client and counsel for the purpose of obtaining or providing legal advice. . . . in general, the internal PJI e-mails contained in PJI's in camera submission reflect a predominantly legal function performed by PJI's in-house counsel. Therefore, PJI may continue to withhold the internal PJI communications (or communications between PJI and its outside counsel) contained within the in camera submission, to the extent those communications were made in connection with obtaining or providing legal advice and were kept confidential (for example, not shared with Motus employees).")

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY

Chapter: 59.403
Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; "The Court carefully inspected the documents submitted for in camera review to determine whether they were prepared because of anticipated litigation or would have been prepared in substantially similar form regardless. The communications between PJI and Motus [Client agent/consultant] do not contain legal analyses or litigation strategies; they are generally business strategy documents addressing, for example, cost calculations and data, not anticipated litigation. . . . The Court finds that the communications at issue would have occurred in essentially similar form even if PJI had not anticipated litigation. Accordingly, PJI has not met its burden to establish that the communications are entitled to protection under the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY

Chapter: 59.403
Case Name: FiberLight, LLC v. Washington Metropolitan Area Transit Authority, Civ. A. No. 16-2248 (ESH), 2018 U.S. Dist. LEXIS 8079 (D.D.C. Jan. 18, 2018)
March 28, 2018 (PRIVILEGE POINT)

"Courts Wrestle with Privilege Protection for Client Consultants: Part II"

Last week's Privilege Point summarized two cases finding that corporate client consultants: (1) did not meet the "functional equivalent" standard; and (2) were not "nearly indispensable" for facilitating communications between the corporate client and its lawyers. Such holdings make privilege protection unavailable for communications between the corporate client (or its lawyer) and the consultant, and also normally compel the conclusion that disclosing preexisting privileged communications to such consultants waives the privilege.

However, some cases take a more favorable view. In FiberLight, LLC v. Washington Metropolitan Area Transit Authority, Civ. A. No. 16-2248 (ESH), 2018 U.S. Dist. LEXIS 8079 (D.D.C. Jan. 18, 2018), defendant hired a consultant to analyze current and potential future development of its fiber optic system. Plaintiff, alleging breach of contract, sought the consultant's report to the defendant, challenging the defendant's redaction of the section entitled "Legal Concerns." Id. at *2. In a one paragraph analysis, the court confirmed after its in camera review that the redacted portion "reflects the views of [Defendant's] legal counsel regarding potential legal issues." Id. at *6. The court then upheld the redaction, explaining that "the sharing of such privileged information with a consultant who needs that information in order the complete a project for the company does not constitute a waiver of the privilege." Id. at *7.

Although this favorable approach represents the minority view, corporations and their lawyers should check the applicable court's privilege law for such helpful precedent.

Case Date Jurisdiction State Cite Checked
2018-01-18 Federal DC
Comment:

key case


Chapter: 59.403
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("With regard to those instances where a specific name is not identified, this is not fatal to the assertion of privilege so long as it is evident that the information being compiled or discussed by corporate employees was information requested by or generated by an attorney. Indeed, it is not uncommon within a complex organization that when a request for information is made by outside counsel communications among corporate employees transmitting the request for information frequently will simply refer to the request as coming from outside counsel as opposed to a specific attorney or law firm. The important inquiry from a privilege perspective is the nature of the communication and the context in which it is made and not necessarily the precise identification of the source of the request for information. In any event, because the Court has conducted an in camera inspection of each of the documents, the Court has been able to examine the context of those documents where the source of the legal request or legal advice is identified as legal department or outside counsel and make a determination as to whether the document is privileged under the attorney client privilege because the document transmits or requests legal advice or the document contains a request by an attorney for information to be used in threatened litigation or ongoing litigation.")

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

key case


Chapter: 59.403
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("[S]everal of the documents submitted for in camera review reflect that certain documents or information is being transmitted to counsel at counsel's request. The document standing alone is not privileged but the fact that a particular document has been requested by an attorney or that a particular document is being transmitted to an attorney at his or her request is subject to the work product privilege. On the other hand, there may be a document that is an attachment but the document was specifically prepared at the request of an attorney and therefore the document is independently subject to the work product privilege, assuming the document was created in anticipation of or incident to ongoing legal proceedings."; "The difference between these two types of scenarios has now been resolved. With regard to documents for which Defendants are not asserting independently a privilege, Defendants have certified that those documents have been or will be produced to Plaintiffs. With regard to the remaining attachments, where disclosure of the attachment would invade the work product privilege (and in some cases the attorney client privilege) the Court has examined these attachments as part of the in camera inspection and determined whether disclosure of the attachment would itself invade the work product privilege. The Court's ruling on attachments therefore has taken this into account.")

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

key case


Chapter: 59.403
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
(finding that public relations consultants were inside privilege protection; "[A]s a general proposition Plaintiffs are correct that documents generated for the primary purpose of dealing with business issues and with issues relating to scientific and product safety issues are not privileged even if a lawyer is involved. Where the lawyer is performing a function primarily performed by a corporate employee the communication does not magically become privileged simply because a lawyer is involved."; "Conversely, simply because a lawyer is involved with a business related issue does not necessarily mean the communication is not privileged. Regardless of the subject matter of the communication the test 'is whether counsel was participating in the communications primarily for the purpose of rendering legal advice or assistance.' In re Vioxx, 501 F. Supp. 2d at 798. This applies whether the legal advice is rendered in conjunction with regulatory challenges involving the FDA, global safety issues, pharmacovigilance issues or threatened litigation (whether foreign or in the United States)."; "Because the determination of the primary purpose of the document in the Court's view is very fact and document specific -- and in many cases must be discerned by viewing a chronology of documents -- the Court concluded that it must conduct an in camera inspection of each of the documents on the Defendants' privilege logs. Although the process was very labor intensive and time consuming, the Court concluded that an in camera review of each of the documents was the best available method of determining whether an email or email thread was privileged because it related to the request for or the provision of legal advice or whether the primary purpose of the document was other than for obtaining or providing legal advice. The Court has conducted its review with these principles in mind.")

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

Chapter: 59.403
Case Name: Acqis, LLC v. EMC Corp., Civ. A. No. 14-13560-ADB, 2017 U.S. Dist. LEXIS 195112 (D. Mass. Nov. 16, 2017)
("ACQIS shall therefore provide copies of all of the withheld documents in the second, third, fourth, and fifth bullet points in subcategory C as well as a list identifying the individuals in the withheld documents who are attorneys or support personnel. To facilitate the review, ACQIS should include copies of the privileged and the produced documents it identified in the opposition to support the privilege. . . . In submitting the documents for review, ACQIS should not include any ex parte arguments.")

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

Chapter: 59.403
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "'Given the serious nature of Bower's allegations through her affidavit and the lack of a countering affidavit from the party claiming privilege, we note that in camera review will likely be necessary. . . . We acknowledge that the amount of documents in this case – 278 -- does not present an unduly burdensome task for review.'")

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

Chapter: 59.403
Case Name: Gottwald v. Sebert, 653118/2014, 2017 N.Y. Misc. LEXIS 4276 (N.Y. Sup. Ct. Nov. 8, 2017)
(finding that a public relations firm hired by lawyer Mark Geragos on behalf of the singer Keisha was outside privilege protection; "'[T]he court carefully reviewed and considered each of the communications in camera before reaching the conclusions set forth herein. That said, as discussed at oral argument, while Kesha's counsel took exception to the court reading from one of the documents, the court had, at that point, carefully reviewed that document and conclusively determined it was not privileged.'")

Case Date Jurisdiction State Cite Checked
2017-11-08 State NY

Chapter: 59.403
Case Name: Taber v. Ford Motor Company, Case No. 16-00162-CV-W-SWH, 2017 U.S. Dist. LEXIS 160709 (W.D. Mo. Sept. 29, 2017)
(conducting an in camera review of withheld documents)

Case Date Jurisdiction State Cite Checked
2017-09-29 Federal MO

Chapter: 59.403
Case Name: William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017)
December 20, 2017 (PRIVILEGE POINT)

"Courts Address Requests That They Review Withheld Documents In Camera"

Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that protection, courts may be called upon to review withheld documents. But must judges always review withheld documents in camera before deciding privilege or work product issues?

In Kushner v. Buhta, the court concluded that third party City of Minneapolis' privilege log's "general descriptions . . . failed to independently support a claim of work product protection" -- and thus held that the magistrate judge "did not err in requiring in camera review." Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017). The court also agreed with the magistrate judge that "upon review, the claimed protection is belied by the documents' contents." Id. One day later, another federal court determined it "will not conduct an in camera review of the third-party documents it previously held were not entitled to protection under the attorney-client privilege." William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017). The court explicitly rejected defendant's argument that an Ohio law required such an in camera review -- explaining that the defendant "has not cited any cases to show that Ohio's in camera review requirements are binding on federal courts." Id. at *9.

Whether a court's in camera review would assist or undermine privilege or work product claims, corporations and their lawyers should familiarize themselves with the applicable laws, rules, and even the presiding judge's attitude toward such in camera reviews.

Case Date Jurisdiction State Cite Checked
2017-09-26 Federal OH
Comment:

key case


Chapter: 59.403
Case Name: Kushner v. Buhta, Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017)
December 20, 2017 (PRIVILEGE POINT)

"Courts Address Requests That They Review Withheld Documents In Camera"

Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that protection, courts may be called upon to review withheld documents. But must judges always review withheld documents in camera before deciding privilege or work product issues?

In Kushner v. Buhta, the court concluded that third party City of Minneapolis' privilege log's "general descriptions . . . failed to independently support a claim of work product protection" -- and thus held that the magistrate judge "did not err in requiring in camera review." Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017). The court also agreed with the magistrate judge that "upon review, the claimed protection is belied by the documents' contents." Id. One day later, another federal court determined it "will not conduct an in camera review of the third-party documents it previously held were not entitled to protection under the attorney-client privilege." William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017). The court explicitly rejected defendant's argument that an Ohio law required such an in camera review -- explaining that the defendant "has not cited any cases to show that Ohio's in camera review requirements are binding on federal courts." Id. at *9.

Whether a court's in camera review would assist or undermine privilege or work product claims, corporations and their lawyers should familiarize themselves with the applicable laws, rules, and even the presiding judge's attitude toward such in camera reviews.

Case Date Jurisdiction State Cite Checked
2017-09-25 Federal MN
Comment:

key case


Chapter: 59.403
Case Name: Kushner v. Buhta, Civ. No. 16-CV-2646 (SRN/SER), 2017 U.S. Dist. LEXIS 155981 (D. Minn. Sept. 25, 2017)
("These general descriptions . . . fail to independently support a claim of work product protection. The magistrate judge did not err in requiring in camera review.")

Case Date Jurisdiction State Cite Checked
2017-09-25 Federal MN

Chapter: 59.403
Case Name: Youngevity International, Inc. v. Smith, Case No. 16-cv-704 BTM (JLB), 2017 U.S. Dist. LEXIS 155560 (S.D. Cal. Sept. 22, 2017)
(holding that the common interest doctrine can protect some but not all communications between plaintiff Youngevity and another company (Livewell) (owned by Anson), which is a vendor of another company (Wakaya) which was formed by a former Youngevity distributor (Smith); "Having reviewed the email communications, the Court finds that the email communications at issue furthered that common legal interest. As evidenced by the common claims asserted by the parties against Wakaya, the communications were based on 'a common legal, as opposed to commercial, interest.'")

Case Date Jurisdiction State Cite Checked
2017-09-22 Federal CA

Chapter: 59.403
Case Name: Campidoglio LLC v. Wells Fargo & Co., Nos. 14-35898, 14-36091, 2017 U.S. App. LEXIS 17900 (9th Cir. App. Sept. 12, 2017)
(explaining that the lower court had reviewed a sample of withheld documents; "The court for the most part deferred ruling on the motion, indicating that it lacked sufficient information to determine whether Wells Fargo had properly invoked the attorney-client privilege. The court ordered the Borrowers to designate up to twenty of Wells Fargo's privilege log entries that, in the Borrowers' view, identified communications not actually protected by the attorney-client privilege. Wells Fargo would then submit these communications, and the corresponding privilege log entries, to the court for in camera review. The court indicated that if Wells Fargo had properly invoked the attorney-client privilege for the designated communications, then the court would deny this portion of the Borrowers' Rule 37 motion. But, if 'Wells Fargo ha[d] improperly asserted the attorney-client privilege as to a significant portion of the communications,' then the court would 'grant appropriate relief to [the Borrowers], potentially including in camera review of additional materials and/or directing Wells Fargo to produce all documents identified in the privilege log."; explicitly finding the process acceptable)

Case Date Jurisdiction State Cite Checked
2017-09-12 Federal

Chapter: 59.403
Case Name: American Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2017 U.S. Dist. LEXIS 146395 (E.D. Mo. Sept. 11, 2017)
("To the extent American Modern contends that certain redacted portions of the challenged documents are protected by the attorney-client privilege, I have reviewed the documents in camera and find many redactions to contain communications relating only to ordinary business activities (e.g., diary entries updating status of obtaining records from insureds) and not made for the purpose of soliciting legal advice.")

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

Chapter: 59.403
Case Name: Legends Mgmt. Co., LLC v. Affiliated Ins. Co., Civ. A. No. 2:16-CV-01608-SDW-SCM, 2017 U.S. Dist. LEXIS 134020 (D.N.J. Aug. 22, 2017)
(in a first-party insurance case, holding that the lawyer's consultant was inside privilege protection; "The Court also finds that three e-mails authored by Peter Kahn ('Mr. Kahn'), a forensic accountant retained by Podvey Meanor to assist in providing legal advice, are privileged. Communications exchanged with consultants are not automatically privileged just because in-house or outside counsel is 'copied in' on correspondence; however, 'if the express purpose of the communication was to relay information for the purpose of seeking legal advice . . . the privilege attach[es].' Based on in camera review, in-house and outside counsel were not merely 'copied in' on the communications. The 'express purpose' of Mr. Kahn's e-mails was to relay his accounting expertise and allow Podvey Meanor to render legal assistance as to existing and potential coverage issues arising from the Legends Parties' insurance claims. In other words, Mr. Kahn's e-mails were sent in confidence 'to relay information for the purpose of seeking legal advice.' For these reasons, the redacted and withheld documents authored by Mr. Kahn are privileged from disclosure.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal NJ
Comment:

key case


Chapter: 59.403
Case Name: Legends Management Co. v. Affiliated Insurance Co., Civ. A. No. 2:16-CV-01608-SDW-SCM, 2017 U.S. Dist. LEXIS 134020 (D.N.J. Aug. 22, 2017)
November 8, 2017 (PRIVILEGE POINT)

"How Can Law Firms Help Maximize Privilege Protection for Consultants They Hire?"

Last week's Privilege Point highlighted the difficulty of establishing that client agents/consultants are inside privilege protection. In contrast, lawyer’s agents/consultants can deserve privilege protection – but only if they assist those lawyers in giving legal advice. But lawyers cannot automatically assure protection by retaining such agents/consultants themselves or jointly with their clients (as Pierce Atwood learned in one of the cases discussed last week).

As in so many other contexts, the underlying documents must support any assertion that lawyers' agents/consultants helped them give legal advice. In Legends Management Co. v. Affiliated Insurance Co., Civ. A. No. 2:16-CV-01608-SDW-SCM, 2017 U.S. Dist. LEXIS 134020 (D.N.J. Aug. 22, 2017), the court held that a forensic accountant retained by a law firm was inside privilege protection. The court warned that "[c]ommunications exchanged with consultants are not automatically privileged just because in-house or outside counsel is 'copied in' on correspondence." Id. at *10. Significantly, the court reviewed the withheld correspondence in camera, and agreed that "[t]he 'express purpose' of [the forensic accountant's] emails was to relay his accounting expertise and allow [the law firm] to render legal assistance." Id.

Lawyers, their clients, and their agents/consultants should remember that courts will often examine any withheld documents for proof that either client’s or lawyer’s agents/consultants facilitated or assisted lawyers in advising their clients.

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal NJ
Comment:

key case


Chapter: 59.403
Case Name: Meyer v. NCL (Bahamas), Ltd., Case No. 16-23238-CIV-WILLIAMS/SIMONTON, 2017 U.S. Dist. LEXIS 125045 (S.D. Fla. Aug. 8, 2017)
(holding that an investigation following a physical assault on a cruise ship deserved work product protection; also holding that the cruise line did not waive that work product protection by providing witness statements to the FBI; "Because the incident report was prepared at the direction of counsel in anticipation of litigation, the undersigned finds that the incident report is protected by the work product doctrine. . . . Additionally, an in camera review of the documents indicates that the incident report in particular was a collection of information that is geared towards the defense of litigation. Such reports are protected by the work product doctrine. . . . because the incident report was not provided to the FBI or any other third party, it is not necessary to determine whether the protection was waived."; "Similarly, the undersigned finds that the notes completed by security officers Herring and Shrestha are protected under the work product doctrine. The undersigned finds the Defendant's assertion that the notes were compiled as part of the Defendant's procedures in anticipation of litigation persuasive, and the Plaintiff has not met her burden to show that she has substantial need or undue burden regarding the notes."; "An in camera review of the witness statements gives credence to the Defendant's assertion that the witnesses statements were taken in anticipation of litigation. . . . The witnesses statements are written on a prepared form provided by the Defendant and indicate that the statements were taken by the Defendant's personnel. As other courts have done previously, the undersigned finds that such documents were prepared in anticipation of litigation and are therefore protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-08-08 Federal FL
Comment:

key case


Chapter: 59.403
Case Name: Meyer v. NCL (Bahamas), Ltd., Case No. 16-23238-CIV-WILLIAMS/SIMONTON, 2017 U.S. Dist. LEXIS 125045 (S.D. Fla. Aug. 8, 2017)
(holding that an investigation following a physical assault on a cruise ship deserved work product protection; also holding that the cruise line did not waive that work product protection by providing witness statements to the FBI; "Because the incident report was prepared at the direction of counsel in anticipation of litigation, the undersigned finds that the incident report is protected by the work product doctrine. . . . Additionally, an in camera review of the documents indicates that the incident report in particular was a collection of information that is geared towards the defense of litigation. Such reports are protected by the work product doctrine. . . . because the incident report was not provided to the FBI or any other third party, it is not necessary to determine whether the protection was waived."; "Similarly, the undersigned finds that the notes completed by security officers Herring and Shrestha are protected under the work product doctrine. The undersigned finds the Defendant's assertion that the notes were compiled as part of the Defendant's procedures in anticipation of litigation persuasive, and the Plaintiff has not met her burden to show that she has substantial need or undue burden regarding the notes."; "An in camera review of the witness statements gives credence to the Defendant's assertion that the witnesses statements were taken in anticipation of litigation. . . . The witnesses statements are written on a prepared form provided by the Defendant and indicate that the statements were taken by the Defendant's personnel. As other courts have done previously, the undersigned finds that such documents were prepared in anticipation of litigation and are therefore protected by the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-08-08 Federal FL
Comment:

key case


Chapter: 59.403
Case Name: By Design LLC v. Samsung Fire & Marine Ins. Co. Ltd., 652412/2016, 2017 N.Y. Misc. LEXIS 2952 (N.Y. Sup. July 28, 2017)
(analyzing privilege issues in a first party insurance context; "Samsung represents that it made the decision to deny coverage on December 8, 2015 . . . . This Court can only assess the extent, if any, of the privileged nature of the documents by conducting an in camera review of the By Design claim file documents leading up to the coverage denial decision on December 8, 2015 before sharing the documents with By Design . . . . Therefore, this portion of By Design's motion to compel is held in abeyance, pending an in camera review.")

Case Date Jurisdiction State Cite Checked
2017-07-28 State NY

Chapter: 59.403
Case Name: United States of Am. for the Use of Donald B. Murphy Contractors v. Travelers Casualty and Surety Co. of Am., 8:15CV48, 2017 U.S. Dist. LEXIS 115874 (D. Neb. July 25, 2017)
(holding that plaintiff's in-house lawyer acted in a legal capacity, not just a risk management capacity; also noting that he acted as a testifying expert, and therefore was required to disclose documents under that rule; "The Court previously ordered DBM to submit the documents at issue to the Court for in camera review. The Court has carefully reviewed the documents and concludes that they are, in most instances, attorney-client privileged communications. Generally speaking, the documents deal with legal issues that arose during the construction project. The documents reveal that Stylos was acting in his capacity as DBM's attorney--not risk manager--at the time of the communications, and was included in the correspondence for the purpose of securing and facilitating legal advice."; "Additionally, the email communications in which Stylos was only copied pertain to legal advice and, under the circumstances here, remain privileged.")

Case Date Jurisdiction State Cite Checked
2017-07-25 Federal NE

Chapter: 59.403
Case Name: Nalco Co. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127, at *8 (S.D. Tex. July 18, 2017)
September 13, 2017 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 59.403
Case Name: Nalco Co., Inc. v. Baker Hughes Inc., Civ. A. No. 4:09-CV-1885, 2017 U.S. Dist. LEXIS 111127 (S.D. Tex. July 18, 2017)
(holding that the attorney-client privilege can protect employee-to-employee communications under certain circumstances; "Communications between employees may be privileged in two circumstances. First, communications may be privileged when a corporate client shares information with non-attorney employees 'to relay information requested by attorneys.'"; "Second, communications between non-attorney corporate employees may be privileged when they were made 'for the purpose of securing legal advice.'"; "When the communication involves a document, for the court to find that the attorney-client privilege applies, the court must inspect the document and find that the primary purpose of the communication was to secure legal advice."; "A party can prove that the purpose of a communication was to seek legal advice by offering evidence that the communication was relayed to an attorney.")

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

Chapter: 59.403
Case Name: Edeball v. Bankers Standard Ins. Co., CV 14-7095 (JS) (AKT), 2017 U.S. Dist. LEXIS 110665 (E.D.N.Y. July 17, 2017)
("'[W]hen faced with claims of privilege, courts often undertake in camera review in order to supplement the parties' privilege logs and determine the content of the documents.'")

Case Date Jurisdiction State Cite Checked
2017-07-17 Federal NY

Chapter: 59.403
Case Name: Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017)
("The Court, in reviewing Plaintiffs' Motion, did not take the BOP's privilege log designations at face value but instead engaged in a careful, document-by-document review of the documents to which Plaintiffs' arguments apply.")

Case Date Jurisdiction State Cite Checked
2017-07-10 Federal IN

Chapter: 59.403
Case Name: United States v. Owensboro Dermatology Assoc., P.S.C., Civ. A. No. 4:16-mc-00003-JHM, Civ. A. No. 4:16-mc-00004-JHM, Civ. A. No. 4:16-mc-00005-JHM, 2017 U.S. Dist. LEXIS 105099 (D. Ky. July 7, 2017)
("The undersigned has completed a thorough in camera review of the emails withheld by Respondents on claim of attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-07-07 Federal KY

Chapter: 59.403
Case Name: United States v. Owensboro Dermatology Associates, P.S.C., Civ. A. No. 4:16-mc-00003- to -00005-JHM, 2017 U.S. Dist. LEXIS 105099, at *16-17 (W.D. Ky. July 7, 2017)
September 13, 2017 (PRIVILEGE POINT)

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

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

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

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

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

key case


Chapter: 59.403
Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson about an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "As to plaintiff's contention that the notes are not privileged because defense counsel functioned as an investigator and provided business (rather than legal) advice . . . that claim is not borne out of what is before the Court. Plaintiff argues that documents produced by Kleinfeld during discovery 'directly implicate[] Littler in the 'investigation,' and that deposition testimony from Kleinfeld's employees 'unequivocally place[s] Littler in the center of the so-called 'investigation.'. . . However, the documents submitted by plaintiff do not implicate defense counsel in an investigation. Rather, the documents, which are not titled but seem to be summaries of conversations Kleinfeld management had with Martinez and another employee, refer to the party carrying out the investigation with the pronoun 'we,' and refer to defense counsel as 'the labor attorneys' or 'the attorneys.'")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY
Comment:

key case


Chapter: 59.403
Case Name: Martinez v. Kleinfeld Bridal Corp., No. 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261, at *4 (S.D.N.Y. June 30, 2017)
September 20, 2017 (PRIVILEGE POINT)

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

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

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

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

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal NY
Comment:

key case


Chapter: 59.403
Case Name: Martinez v. Kleinfeld Bridal Corp., 16-CV-348 (RA) (JLC), 2017 U.S. Dist. LEXIS 103261 (S.D.N.Y. June 30, 2017)
(holding that notes prepared by Littler Mendelson about an incident involving plaintiff deserved privilege and work product protection; noting that the court's in camera review of notes showed that Littler was acting in a legal capacity rather than just investigators; "Having conducted an in camera review of the notes in question, the Court concludes that attorney-client privilege applies to all of them. The notes contain facts and information about the April 29 workplace incident and the employees involved in the incident, which were communicated by defendant's management to the attorneys who are representing defendant in this case. Thus, the notes memorialize the 'giving of information to the lawyer to enable him to give sound and informed advice,'. . . which is protected from disclosure by attorney-client privilege.")

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

Chapter: 59.403
Case Name: Viamedia, Inc. v. Comcast Corporation, Case No. 16-cv-5486, 2017 U.S. Dist. LEXIS 101852 (N.D. Ill. June 30, 2017)
("Defendants argue that Viamedia's assertion of work-product protection was untimely with respect to nineteen of the documents because in a May 2016 privilege log submitted to the DOJ, Viamedia claimed only attorney-client privilege with respect to those documents, but in May 2017, about two months after Viamedia had supplemented that log, Viamedia reclassified seventeen of those documents as also protected by the work-product doctrine. . . . While Viamedia should have taken greater care in preparing its privilege logs, the Court will not impose the harsh sanction of waiver based on Viamedia's conduct, particularly because of the large number of documents involved in this case and, significantly, because the Court cannot conclude that Defendants were unfairly prejudiced."; "Court has reviewed in camera the disputed documents to which Defendants refer, and it appears the attorneys who prepared Viamedia's privilege logs simply made a mistake in indicating that these documents do not relate possible litigation between Viamedia and Defendants. The Court therefore denies Defendants' motion with respect to the documents provided to litigation funding firms.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal IL

Chapter: 59.403
Case Name: Leftwich v. City of Pittsburgh Kansas, Case No. 16-2112-JWL, 2017 U.S. Dist. LEXIS 99009 (D. Kansas June 27, 2017)
(analyzing the scope of a subject matter waiver; "As defendants concede, there is no 'bright line test for determining what constitutes the subject matter of a waiver.'. . . Here, the magistrate judge reasonably concluded that the decision to terminate plaintiff's employment and plaintiff's appeal of that decision -- both of which undisputedly involved significant input and advice from the city attorney -- constituted the same subject matter for purposes of Rule 502(a). The key fact underlying the magistrate judge's ruling is that the termination decision and the appeal of that decision were inextricably linked by defendants themselves, as evidenced in an email concerning the termination decision in which the city attorney wrote that plaintiff should be given the reasons for his termination only if he appealed that decision. Further evidence that the termination decision and the appeal process were linked by defendants is found in the documents provided to the magistrate judge for in camera review.")

Case Date Jurisdiction State Cite Checked
2017-06-27 Federal KS

Chapter: 59.403
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA-(JSC), 2017 U.S. Dist. LEXIS 98604 (N.D. Cal. June 26, 2017)
(holding that the crime-fraud exception did not apply to communications between Uber and its acquired company Ottomotto; "Waymo contends (1) Uber was engaged in or planning the crime of receipt of Waymo's stolen property; and (2) that its communications with MoFo were in furtherance of that scheme. It cites the evidence that Levandowski took 14,000 of Waymo's files and that Uber knew that Levandowski took some material as evidence that satisfies its burden. The Court is not persuaded. That Uber knew Levandowski took some of Waymo's files is not a showing by a preponderance of the evidence that Uber retained MoFo in January/February 2016 to assist it with the crime of receiving stolen property. Further, based on the Court's review of the entire record in this case, including the in camera Stroz Report, the Court found that Uber retained MoFo to conduct an investigation into Levandowski and Otto and to create an evidentiary record that would govern Uber's obligation to indemnify Levandowski and Otto in any lawsuit brought by Waymo. The Court does not find that Uber retained MoFo to assist with obtaining Waymo's trade secrets. That in the course of that investigation MoFo received documents that may be Waymo's trade secrets, does not mean that Waymo has shown by a preponderance of the evidence that Uber's and MoFo's communications were made in furtherance of a criminal scheme. Evidence developed later may show otherwise, but that is the state of the record at this time. Further, Waymo has not established that the crime/fraud exception applies to an attorney's purported violation of an ethical rule.")

Case Date Jurisdiction State Cite Checked
2017-06-26 Federal CA
Comment:

key case


Chapter: 59.403
Case Name: Boltz v. United Process Controls, Civ. A. No. 1:16-cv-703, 2017 U.S. Dist. LEXIS 102913 (S.D. Ohio June 23, 2017)
(in connection with employees claim that he was wrongfully terminated, finding that the communications did not deserve attorney-client privilege protection; "Here, the in camera review of the emails does not indicate that the primary purpose and/or dominant intent of the communication was to seek legal advice. . . . As noted above, the emails were written by and sent to non-attorney corporate employees relating to questions surrounding Eric Boltz' injury, health insurance, short and long term disability coverage."; "The fact that such information was later shared with counsel does not invoke the privilege.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal OH
Comment:

key case


Chapter: 59.403
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; finding that the report deserved privilege protection; "Attorney-client privilege protects confidential communications between attorneys and clients, including internal investigation reports supplied by attorneys to their clients, when one of the significant purposes of communication is legal advice, rather than only business advice. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)."; "After reviewing the report in camera, the Court concludes that the report was confidential legal advice from an attorney to a client, and therefore is protected by attorney-client privilege. The Court presumes that outside counsel is retained for legal purposes. . . . Here, the presumption is borne out by the document itself. It includes legal conclusions as to the company's exposure to liability, legal recommendations for avoiding liability from these allegations and protecting against future misconduct that could lead to new allegations, and litigation strategies relating to the sexual harassment allegations at issue at the time of the report. Thus, a 'significant purpose' of the report was to provide legal advice. . . . There are also several indications that the document was intended to be a confidential communication between an attorney and his clients. The report is labeled 'Attorney-Client Privilege' and states that it is '[n]ot to be disseminated beyond ownership group,' with Ergo's owners listed by name underneath. Thus, because the report contains primarily legal advice and was a confidential communication between an attorney and his clients, the report is privileged.")

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

key case


Chapter: 59.403
Case Name: SCF Waxler Marine LLC v. M/V Aris T, C. A. No. 16-902C/W16-959,16-1022,16-1060,16-1134,16-1614 Sec. "A"(1), 2017 U.S. Dist. LEXIS 90256 (E.D. La. June 13, 2017)
(holding that a draft incident report deserved privilege protection, although the final version was intended to be disclosed; "[J]ust because a factual statement is ultimately disclosed to the public, this does not mean that all drafts of the factual statement automatically lose any privilege that is attached to them. Natta v. Hogan, 392 F.2d 686, 692 (10th Cir. 1968) ('The situation is like that where a client gives general information to his lawyer so that the lawyer may prepare a complaint in any ordinary civil action. The fact that some of the information is thus publicly disclosed does not waive the privilege.'); Buford v. Holladay, 133 F.R.D. 487, 492 (S.D. Miss. 1990) (holding that the ultimate publication of Attorney General Opinions did not waive the privilege as to the communications leading up to the creation of the Opinions). Often, drafts of a document exchanged between an attorney and client will reflect the client's request for advice regarding how to present the facts and the attorney's advice in response. Ideal Electric Company v. Flowserve Corporation, 230 F.R.D. 603, 605 (D. Nev. 2005) ('Drafts often contain attorney's and client's mental impressions, strategies, and either solicit or provide legal advice.'). Such drafts are protected by the attorney client privilege. Total E & P USA Inc. v. Kerr-McGee Oil & Gas Corp., No. CIV.A. 09-6644, 2014 U.S. Dist. LEXIS 93881, 2014 WL 3385130, at *4 (E.D. La. July 10, 2014) (holding that redacted draft affidavits were protected by the attorney client privilege); United States v. N.Y. Metro. Transp. Auth., No. 03CV02139-SLT-MDG, 2006 U.S. Dist. LEXIS 93920, 2006 WL 3833120, at *2 (E.D.N.Y. Dec. 29, 2006) (holding that draft uniform policy bulletins 'need not be produced since they are draft documents that were submitted to attorneys for the purpose of obtaining legal advice'); Ideal Electric Company, 230 F.R.D. at 605 (holding that draft affidavits were protected from disclosure by the attorney-client privilege); Long v. Anderson Univ., 204 F.R.D. 129, 135 (S.D. Ind. 2001) (holding draft answer to a complaint was privileged); Apex Mun. Fund v. N-Grp. Sec., 841 F. Supp. 1423, 1428 (S.D. Tex. 1993) ('[P]reliminary drafts of documents and communications made between attorney and client during the drafting process are privileged.'); Allegheny Ludlum Corp. v. Nippon Steel Corp., No. CIV. A. 89-5940, 1991 U.S. Dist. LEXIS 5173, 1991 WL 61144, at *5 (E.D. Pa. Apr. 15, 1991) (holding that a draft patent application was privileged because the draft was not intended to be publicly transmitted and contained a communication within the attorney-client relationship for the purposes of rendering a confidential opinion)."; "Genesis now knows that contrary to what he suggested in his deposition, Leone [Ship Pilot] did not appear at his counsel's office with a contemporaneous written statement of events. Rather, it has been firmly established through in camera review and oral argument, that the first narrative of the accident was prepared by the attorney based on an interview of the client, Leone. Leone then handwrote in some changes to that draft prior to it becoming a final document, which was produced to NOBRA and others. Nonetheless, Genesis continues to insist that the drafts be discoverable so it can see any changes made. As reiterated in Ideal Electric Company and as discussed further below, however, it is 'these differences [that] are protected by the attorney client privilege and the work product privilege.'"; "[T]he Court finds that the ultimate disclosure of the final draft of the NOBRA Pilot Incident Report does not result in a waiver of the privilege. Just as in Ideal Electric Company, the Court finds that the drafts and notes were never intended to be made public. They were conveyed in confidence in the course of obtaining and giving legal advice. While Leone and his counsel were obviously working towards a document that would be made public, they did not intend that their drafts and analysis would be subject to disclosure. As the Court in Buford observed, the argument raised by Genesis here would result in disclosure of every draft of a pleading, brief, or affidavit that is exchanged between counsel and client merely because such drafts concern facts and the final draft is made public. At oral argument, counsel for Genesis seemed willing to live with this extraordinary result, but the Court finds that such a holding goes too far.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal LA
Comment:

key case


Chapter: 59.403
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("[T]his court has ruled that communications by third-party consultants 'working at the direction of' attorneys, may be protected by the attorney-client privilege if the communications are 'for the purpose of assisting [the] attorneys in rending legal advice.'"; "Plaintiffs argue Syngenta's privilege assertions are belied by documents showing Syngenta retained Informa to help Syngenta develop business strategy, not to provide legal advice. The court agrees. Although Nadel states in his declaration that the Informa analysis was for the purpose of formulating legal strategy, this assertion is unsupported by any documents in the record. The analysis itself contains no legal analysis. And Syngenta has submitted no documents indicating that anyone on Syngenta's legal team worked with Informa on the analysis."; "Syngenta has failed to satisfy its burden of proving the applicability of the attorney-client privilege to the Informa analysis. The fact that Syngenta's 'Market Insight' group, rather than legal group, appears to have sought and used the analysis suggests the analysis was commissioned and communicated primarily for business, rather than legal, purposes. The sentence in Sandlin's May 16, 2014 e-mail directing non-attorney employees to discuss distribution of the related documents with Nadel does not change the business nature of the documents. Even if the court were to find some legal purpose in the communication, the attorney-client privilege would not protect the document because the legal purpose would not predominate over the business purpose. Syngenta's privilege assertion over PRIV003591 is overruled, and Syngenta shall produce this document.")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS

Chapter: 59.403
Case Name: Theidon v. Harvard Univ., Civ. A. No. 15-cv-10809-LTS, 2017 U.S. Dist. LEXIS 82085 (D. Mass. May 30, 2017)
(analyzing a former Harvard professor's lawsuit against Harvard; noting that the plaintiff claimed to have prepared notes of a meeting with another professor to discuss tenure, but that she no longer possessed the original notes – instead having incorporated the notes into a memorandum to her lawyer; holding that Harvard could overcome any work product protection for the notes because they were near-contemporaneous, but ordering an in camera review to assess any privilege protection; "The notes, taken directly after the meeting, are a contemporaneous account. With the notes unavailable, Harvard has met the standard to show substantial need for the later-created, but still much closer in time, quarter-page summary based on the notes."; "Because the quarter-page summary was part of a communication to Theidon's attorney, Theidon shall first produce, within seven days, the summary (not the full timeline document) ex parte under seal for the Court to review. After review, the Court will disclose the document to Harvard, unless upon review the Court perceives a possible privilege issue.")

Case Date Jurisdiction State Cite Checked
2017-05-30 Federal MA

Chapter: 59.403
Case Name: In re HH Liquidation, LLC v. Comvest Group Holdings, LLC, Ch. 11, Case No. 15-11874 (KG), (Jointly Administered), Adv. No. 16-51204 (KG), 2017 Bankr. LEXIS 1258 (D. Del. May 8, 2017)
(holding that an unsecured creditors committee was not entitle to access debtors privileged documents; "The Court is not satisfied from its review of the privilege logs that the documents the Debtors withheld were prepared in anticipation of litigation. The withheld documents appear to the Court to be general corporate documents prepared in connection with a transaction. The Court therefore concludes that these are not work product documents. Accordingly, the Court will order Debtors to produce their work product documents unless they can provide the Court with proof that they prepared the withheld documents in anticipation of litigation. The Court will then review the documents in camera or, if necessary, the Court will appoint a mediator to review the documents to determine if they are protected by the work product doctrine."; "The Court has found that Weintraub does not apply to the Committee but only to chapter 7 trustees; that Garner affords relief but only on a finding of insolvency; and that it is Teleglobe which requires insolvency without which there is no fiduciary duty owed to creditors. The documents withheld on the basis of the work product doctrine shall be produced, subject to the Debtors proving that they prepared the withheld documents in anticipation of litigation. The Court will therefore deny the Motion in part and grant it in part.")

Case Date Jurisdiction State Cite Checked
2017-05-08 Federal DE

Chapter: 59.403
Case Name: Rattner v. Chubb National Ins. Co., Civ. No. 1:17-cv-00136-GBL-MSN, 2017 U.S. Dist. LEXIS 70141 (E.D. Va. May 8, 2017)
("Plaintiff's argument is contrary to law. Information and communications with an attorney retained to conduct an investigation may still be privileged when the investigation is 'related to the rendition of legal services.'"; "Upon in camera review of the ten sample documents, the Court finds that Defendant Chubb properly withheld the documents on the basis of attorney-client privilege and the work product doctrine because Ms. Bernstiel was retained to conduct an investigation using her legal expertise.")

Case Date Jurisdiction State Cite Checked
2017-05-08 Federal VA

Chapter: 59.403
Case Name: United States v. Microsoft Corporation, Case No. C15-102RSM, 2017 U.S. Dist. LEXIS 69223 (W.D. Wash. May 5, 2017)
(holding that Microsoft could reasonably have anticipated litigation based on various factors; and ordering an in camera review of withheld documents; "Microsoft has demonstrated that it reasonably anticipated litigation when it consulted with accountants regarding its transfer pricing agreements. Microsoft's prior tax disputes with the IRS, the size of Microsoft's cost sharing agreements, the complexity of the law that applies to cost sharing agreements, along with the IRS's treatment of transfer pricing issues all support the Court's conclusion. However the government has raised a sufficient factual basis to question whether the documents on Microsoft's four privilege logs are dual-purpose documents not created 'because of' anticipated litigation."; "If the documents asserting the work product protection served both a litigation and a business purpose, the Court must determine whether these documents 'appear to reflect or [are] borne out of reasoning about strategies or analyses for litigation,' in which case the work production protection would apply. . . . On the other hand, if the documents 'appear only to reflect the logistics or mechanics of implementing business concepts,' then the work product doctrine will most likely not apply as these documents 'would have been created in essentially similar form irrespective of the litigation.' Id. In camera review of the documents asserting the work product protection will allow the Court to make this determination.")

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

key case


Chapter: 59.403
Case Name: United States v. Microsoft Corporation, Case No. C15-102RSM, 2017 U.S. Dist. LEXIS 69223 (W.D. Wash. May 5, 2017)
(holding that Microsoft could reasonably have anticipated litigation based on various factors; and ordering an in camera review of withheld documents; "Whether the attorney-client privilege applies to these emails depends on the role Microsoft's attorneys played in these communications. This is the case given that 'unlike outside counsel, in-house attorneys can serve multiple functions within the corporation.'. . . Because the Court cannot determine the extent to which Microsoft's counsel acted in a legal, as opposed to a business, capacity in advising Microsoft on its transaction structures, the Court finds that in camera review of eight internal communications withheld based on the attorney-client privilege is warranted.")

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

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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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)
March 22, 2017 (PRIVILEGE POINT)

"Court Uses an "In Camera" Review for Purposes Other than Privilege or Work Product Assessment"

Adversaries challenging litigants' privilege or work product assertions necessarily "shadow box" with the litigants -- because the adversaries cannot see the withheld documents. Courts often review such withheld documents in camera to assess such litigants' protection claims.

In 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), defendants sought to quash plaintiff's subpoena to their law firm Orrick Herrington. Although the court had already rejected plaintiff's argument that it needed Orrick's documents "for the purpose 'double-checking' the truthfulness of [a then-Orrick lawyer's] statement" about his scope of work, the court nevertheless checked the withheld documents in camera. Id. at *10 (internal citation omitted). The court assured plaintiff that it "did not find any communications that contradicted [the lawyer's] statement." Id.

Most judges limit their in camera review to assessing privilege or work product protection claims, but some courts examine the documents for other purposes. And because the same judges normally rule on motions and sometimes even act as fact-finders, clients and their lawyers should remember that ultimately winning a privilege or work product fight will not necessarily prevent judges from reading the withheld documents.

Case Date Jurisdiction State Cite Checked
2017-01-11 Federal CA
Comment:

key case


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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction 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 Jurisdiction State Cite Checked
2015-06-29 Federal KS

Chapter: 59.403
Case Name: Yocabet v. UPMC Presbyterian and Univeristy of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)
("[S]ince UPMC raised the appropriate allegations that the attorney-client privilege and/or peer review privilege potentially applied, the trial court could not require disclosure without examining the requested documents in camera to determine whether and to what extent the privileges applied to interrogatories numbered 23 and 24. We direct the creation of a privilege log, as mandated by T.M. and any documents identified on said log must be reviewed in camera by either the trial court or the master to determine whether those materials are discoverable.").

Case Date Jurisdiction State Cite Checked
2015-06-05 State PA

Chapter: 59.403
Case Name: Yocabet v. UPMC Presbyterian and Univeristy of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)
("[S]ince UPMC raised the appropriate allegations that the attorney-client privilege and/or peer review privilege potentially applied, the trial court could not require disclosure without examining the requested documents in camera to determine whether and to what extent the privileges applied to interrogatories numbered 23 and 24. We direct the creation of a privilege log, as mandated by T.M. and any documents identified on said log must be reviewed in camera by either the trial court or the master to determine whether those materials are discoverable.").

Case Date Jurisdiction State Cite Checked
2015-06-05 State PA

Chapter: 59.403
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(finding the common interest doctrine inapplicable for a communications with certain members of the University's board, because the University's privilege log did not identify the board members; "Judge Peebles was not required to allow the University to submit a revised privilege log, and his decision to review the withheld documents in camera rather than accept a revised privilege log was not an abuse of discretion. See N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 307 (D.D.C. 2009) ('The inadequacy of a privilege log can be remedied in four ways: [(1)] [p]ermit the party another chance to submit a more detailed log; [(2)] [d]eem the inadequate log a waiver of the privilege; [(3)] [i]n camera inspection of the withheld documents; or [(4)] [i]n camera inspection of a select sample of the withheld documents.')")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 59.403
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(analyzing privilege and work product protection for non-party Syracuse University's investigation into possible child molestation by one of the University's coaches; explaining that the coach's wife had sued ESPN, then sought discovery from the University; concluding that the work product doctrine did not apply; holding that the attorney-client privilege did not protect communications between the University's lawyer Debevoise & Plimpton and a public relations firm; "Even though the University's Affidavits state that the University's attorneys consulted with Sard Verbinnen [Public relations firm] in order to shape media coverage to avoid prosecution . . . . Judge Peebles reviewed the withheld documents in camera and found that with limited exceptions, they did not contain communications related to obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 59.403
Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("Shire asserts privilege based on these handwritten notes being recorded by a non-attorney at a board meeting featuring specific legal advice from outside counsel, while Plaintiffs assert that the Court should not just blindly accept the representation that this reflects advice from counsel if it is not specifically noted as such. Upon review, it is readily apparent that these notes specifically document legal repercussions of potential company actions, and, as such, the Undersigned accepts these notes as reflecting legal advice of outside counsel, as Shire claims.")

Case Date Jurisdiction State Cite Checked
2015-05-20 Federal FL

Chapter: 59.403
Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("Upon review, it is readily apparent that the document notes in-house counsel's presence at this meeting and predominantly outlines litigation timelines and potential outcomes. In addition, the notes themselves say 'priviledged (sic)/conf'd.' As such, the Undersigned accepts these notes as reflecting the communication of legal advice to Shire.")

Case Date Jurisdiction State Cite Checked
2015-05-20 Federal FL

Chapter: 59.403
Case Name: Sedgwick Claims Management Services, Inc. v. Feller, Case No. 5D15-217, 2015 Fla. App. LEXIS 7286 (Fla. App. 5d May 15, 2015)
("[T]he trial court erred by finding the attorney-client privilege inapplicable without ever reviewing the documents at issue.")

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

Chapter: 59.403
Case Name: Malbco Holdings, LLC v. Patel, 6:14-cv-00947-PK, 2015 U.S. Dist. LEXIS 62501 (D. Ore. May 13, 2015)
("In camera review, in which parties disclose allegedly privileged materials to a trial court to allow the court to determine the merits of a claim of privilege, is the least intrusive means for determining whether the crime-fraud exception applies.")

Case Date Jurisdiction State Cite Checked
2015-05-13 Federal OR

Chapter: 59.403
Case Name: Malbco Holdings, LLC v. Patel, 6:14-cv-00947-PK, 2015 U.S. Dist. LEXIS 62501 (D. Ore. May 13, 2015)
("The resolution of this argument turns on a determination of whether Linton [Accountant] was assisting Kinkade [Defendants' lawyer] in the rendition of his legal services or whether Kinkade was enlisted to advise Linton in her work preparing gift tax returns. In the latter case, Linton is not a client and she was not assisting Kinkade in rendition of his legal services. Given the evidence and arguments provided by Malbco and Malbco's request in the alternative to review these communications in camera . . . .")

Case Date Jurisdiction State Cite Checked
2015-05-13 Federal OR

Chapter: 59.403
Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924 (S.D. Fla. April 8, 2015)
("Copying an attorney on an email does not necessarily render the communication privileged. Because the Court does not have sufficient information to determine whether GAF 815 is protected by the attorney-client privilege, it will inspect these two emails in camera.")

Case Date Jurisdiction State Cite Checked
2015-04-08 Federal FL

Chapter: 59.403
Case Name: Scott v. Chipotle Mexican Grill, Inc., 12-CV-08333 (ALC) (SN), 2015 U.S. Dist. LEXIS 40176 (S.D.N.Y. March 27, 2015)
(finding that defendant's FLSA consultant was not within the privilege; "An in camera review of the documents, however, satisfies the Court that Parcheta's [Lawyer] advice is legal in nature. Briefly stated, Parcheta writes as a lawyer and discusses and analyzes the law, beyond bare recitation of regulations or the giving of non-legal business advice. It is not merely his degree which renders his advice legal, but rather the focus of his attention and the nature of his communication with Chipotle; his correspondence with Moore would not be out of place in the outbox of a major law firm. It would be disingenuous to discount Parcheta's legal advice merely because he or his employer also provides other types of advice. Accordingly, the privilege applies, regardless of MSEC's nontraditional structure.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal NY

Chapter: 59.403
Case Name: Slaven v. Great American Ins. Co., No. 13 C 1370, 2015 U.S. Dist. LEXIS 33591 (N.D. Ill. March 18, 2015)
("The in camera review of certain emails that have been withheld on the grounds of privilege and work-product protection confirm the above conclusions. They make clear beyond peradventure of doubt that Mr. Lovato and the Boundas Skarzynski firm were acting purely as legal advisors to Centrum and that they had no authority to make any final decision in connection with the Centrum claim, nor did they attempt to.")

Case Date Jurisdiction State Cite Checked
2015-03-18 Federal IL

Chapter: 59.403
Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
(analyzing privilege protection and the common interest doctrine in a trade association context; "Here, AWG challenges six of Mr. Wilson's [Jones Waldo lawyer] handwritten notes that reflect topics allegedly discussed with the Department of Justice and Defendants. After in camera review, the Court has determined that, from the face of these notes, it is evident none of the information contained within the handwritten notes was actually communicated with or to Defendants. The documents do not contain information shared between DOJ and Defendants. Rather, they all appear to be personal notes Mr. Wilson wrote to himself, or to the file. The documents are properly withheld as attorney work-product.")

Case Date Jurisdiction State Cite Checked
2015-03-17 Federal ID

Chapter: 59.403
Case Name: Trusz v. UBS Rlty Investor LLC, No. 3:09-cv-00268 (JAM), 2015 U.S. Dist. LEXIS 4464 (D. Conn. Jan. 14, 2015)
("[P]laintiff has not shown that Judge Margolis was even required to conduct an in camera, document-by-document privilege review.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal CT

Chapter: 59.403
Case Name: Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197, 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015)
(holding that neither the attorney-client privilege nor the work product doctrine protected Chevron's "legally chartered" "root cause analysis" of a fatal pipeline accident, although in-house lawyer's affidavit explained that Chevron anticipated litigation, and as such "legally chartered root cause investigations are not routine"; "The bare assertions of Chevron and its in-house counsel, in brief and on the privilege log itself, when viewed against the actual content of the documents themselves, are simply insufficient to establish that these documents are attorney-client communications entitled to protection.")

Case Date Jurisdiction State Cite Checked
2015-01-05 Federal LA

Chapter: 59.403
Case Name: In re Processed Egg Prods. Antitrust Litig., MDL No. 2002 08-md-02002, 2014 U.S. Dist. LEXIS 160747 (E.D. Pa. Nov. 17, 2014)
(analyzing privilege issues in a trade association context; "Judge Rice also did not err in his determination of which documents would be reviewed in camera. The decision whether to review allegedly privileged documents in camera is discretionary.")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal PA

Chapter: 59.403
Case Name: In re Processed Egg Prods. Antitrust Litig., MDL No. 2002 08-md-02002 (E.D. Pa. Nov. 17, 2014)
(holding that the court had discretion to undertake an in camera review; "Judge Rice also did not err in his determination of which documents would be reviewed in camera. The decision whether to review allegedly privileged documents in camera is discretionary. . . . He therefore retains discretion whether to review documents in camera, as needed for proper determinations as to privilege. Therefore, because Judge Rice has discretion as to which documents to review in camera, and because he has left open the possibility of revisiting his determination as to in camera view as the case develops, Judge Rice did not commit clear error or act contrary to law in his determination as to which documents to review in camera.")

Case Date Jurisdiction State Cite Checked
2014-11-17 Federal PA

Chapter: 59.403
Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("[T]he number of documents included in the in camera sampling that do not appear to be privileged is troubling.")

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

Chapter: 59.403
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 Jurisdiction State Cite Checked
2014-11-05 Federal GA

Chapter: 59.403
Case Name: TP Orthodontics, Inc. v. Kesling, No. 46S03-1405-MI-337, 2014 Ind. LEXIS 715, at *28 (Ind. Sept. 3, 2014)
("An in camera review 'should be a rare procedure in discovery disputes' because it 'requir[es] the trial court to expend a great amount of time and energy.'")

Case Date Jurisdiction State Cite Checked
2014-09-03 State IN

Chapter: 59.403
Case Name: Anderson v. Country Mutual Ins. Co., Case No. C14-0048JLR, 2014 U.S. Dist. LEXIS 112360 (W.D. Wash. Aug. 13, 2014)
("One way of making these privilege determinations is to conduct in camera review. Indeed, this procedure is mandatory in state court in Washington after Cedell [Cedell v. Farmers Insurance Co. of Washington, 176 Wn.2d 686, 295 P.3d 239 (Wash. 2013)].")

Case Date Jurisdiction State Cite Checked
2014-08-13 Federal WA

Chapter: 59.403
Case Name: Tecnomatic, S.P.A. v. Remy, Inc., No. 1:11-cv-00991-SEB-MJD, 2014 U.S. Dist. LEXIS 75220, at *7 (S.D. Ind. June 3, 2014)
("Tecnomatic contends that Documents Two through Eight 'do not seek legal consultation and merely relay facts.' . . . However, the court has reviewed Documents Two through Eight on a document-by-document basis and finds that the communications withheld explicitly request, render, arrange for, or act in furtherance of rendering legal assistance.")

Case Date Jurisdiction State Cite Checked
2014-06-03 Federal IN

Chapter: 59.403
Case Name: McNamee v. Clemens, 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 58829 (E.D.N.Y. April 28, 2014)
(rejecting defendant Roger Clemens' motion for a stay pending his effort to overturn an earlier order requiring him to produce documents because of a late and inadequate log; "[I]t would be curious if he did argue that a document-by-document listing was too onerous for counsel to perform, seeing as he has now several times over caused the Court to conduct such a review.")

Case Date Jurisdiction State Cite Checked
2014-04-28 Federal NY

Chapter: 59.403
Case Name: McNamee v. Clemens, No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 58829, at *5 (E.D.N.Y. Apr. 28, 2014)
June 18, 2014 (PRIVILEGE POINT)

"Roger Clemens Strikes Out on Privilege Assertions Because of a Bad Log"

Most courts offer a second chance to litigants who have withheld arguably protected documents, but who prepare a tardy or inadequate privilege log. However, courts quickly lose patience with litigants who seem to flout the rules.

In McNamee v. Clemens, former New York Yankees pitcher and defamation defendant Roger Clemens withheld documents, but relied "on a one-sentence assertion of privilege" rather than supplying the required privilege log. No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338, at *12 (E.D.N.Y. Apr. 2, 2014). The Magistrate Judge had (1) reminded Clemens of the log requirement; (2) invited Clemens to provide a further showing to support his withholding (which Clemens "was only able to do so with respect to one document"); and (3) "took the extraordinary step of reviewing each and every document that Defendant claimed was privileged." Id. at *14 n.6. The District Judge upheld the Magistrate Judge's finding that Clemens had waived any privilege or work product protection. Several weeks later, the court denied Clemens' motion for a stay pending his petition for a writ of mandamus to the Second Circuit. In McNamee v. Clemens, No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 58829, at *5 (E.D.N.Y. Apr. 28, 2014), the court criticized Clemens' motion "as being a veritable hodgepodge of identical sentences" from his earlier pleadings. The court also rejected Clemens' argument that preparing a detailed log could be too difficult. The court sarcastically noted that "it would be curious if [Clemens] did argue that a document-by-document listing was too onerous for counsel to perform, seeing as he has now several times over caused the Court to conduct such a review." Id. at *6.

Litigants withholding documents often receive second and even third chances to prepare proper logs, as long as they try their best to comply with federal rules and to meet the court's expectations. However, litigants running afoul of either usually lose their privilege fights and anger frustrated courts.

Case Date Jurisdiction State Cite Checked
2014-04-28 Federal NY
Comment:

key case


Chapter: 59.403
Case Name: Elbert v. C.R. Bard, Inc., Civ. A. No. 12-01253, 2014 U.S. Dist. LEXIS 57073 (E.D. Pa. April 24, 2014)
("'Many of the plaintiff's arguments as to why the report is not covered by the work-product doctrine relate back to the fact that the defendants had not produced the consulting agreement to the plaintiff in discovery because the defendants claimed it also was covered by the work-product doctrine. After reviewing the consulting agreement in camera, I determined that part of it was technically covered by the doctrine; however, the main body of the agreement should be produced in order to help resolve this dispute over the Lehmann Report's coverage as well.'")

Case Date Jurisdiction State Cite Checked
2014-04-24 Federal PA

Chapter: 59.403
Case Name: Teal Bay Alliances, Inc. v. Southbound One, Inc., Case No. MJG-13-2180, 2014 U.S. Dist. LEXIS 55378 (D. Md. April 21, 2014)
("As outlined above, I find that the scope of the subject matter waiver of Southbound's advice-of-counsel defense is broad, and includes all communications between Southbound and Mr. Pelton that relate to the Shorebilly mark. Southbound argues that the scope of the waiver is narrow, and includes only actual advice that Mr. Pelton gave to Southbound about Southbound's own adoption, registration and use of the Shorebilly mark. In either case, a fact-specific inquiry is necessary to determine the validity of Southbound's assertions of privilege and work-product protection, and further in camera review may be required if Southbound maintains its position that only a narrow class of communications fall within the scope of the advice-of-counsel waiver.")

Case Date Jurisdiction State Cite Checked
2014-04-21 Federal MD

Chapter: 59.403
Case Name: McNamee v. Clemens, 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338 (E.D.N.Y. April 2, 2014)
(finding that defendant Roger Clemens' late and inadequate log resulted in a waiver; "Only after carefully reviewing each document claimed by Defendant to be privileged was Judge Pollak then able to determine that the documents were improperly withheld.")

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

Chapter: 59.403
Case Name: McNamee v. Clemens, 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338 (E.D.N.Y. April 2, 2014)
(finding that defendant Roger Clemens' late and inadequate log resulted in a waiver; "'Judge Pollak took the extraordinary step of reviewing each and every document that Defendant claimed was privileged. She thereafter wrote a well-reasoned 19-page opinion, in which she invited Defendant, with respect to a specific number of documents that 'might potentially be considered privileged,' to provide 'a further showing that the documents were prepared as part of litigation strategy and not media strategy.'. . . However, Defendant was only able to do so with respect to one document.'")

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

Chapter: 59.403
Case Name: McNamee v. Clemens, No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338, at *12 (E.D.N.Y. Apr. 2, 2014)
June 18, 2014 (PRIVILEGE POINT)

"Roger Clemens Strikes Out on Privilege Assertions Because of a Bad Log"

Most courts offer a second chance to litigants who have withheld arguably protected documents, but who prepare a tardy or inadequate privilege log. However, courts quickly lose patience with litigants who seem to flout the rules.

In McNamee v. Clemens, former New York Yankees pitcher and defamation defendant Roger Clemens withheld documents, but relied "on a one-sentence assertion of privilege" rather than supplying the required privilege log. No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338, at *12 (E.D.N.Y. Apr. 2, 2014). The Magistrate Judge had (1) reminded Clemens of the log requirement; (2) invited Clemens to provide a further showing to support his withholding (which Clemens "was only able to do so with respect to one document"); and (3) "took the extraordinary step of reviewing each and every document that Defendant claimed was privileged." Id. at *14 n.6. The District Judge upheld the Magistrate Judge's finding that Clemens had waived any privilege or work product protection. Several weeks later, the court denied Clemens' motion for a stay pending his petition for a writ of mandamus to the Second Circuit. In McNamee v. Clemens, No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 58829, at *5 (E.D.N.Y. Apr. 28, 2014), the court criticized Clemens' motion "as being a veritable hodgepodge of identical sentences" from his earlier pleadings. The court also rejected Clemens' argument that preparing a detailed log could be too difficult. The court sarcastically noted that "it would be curious if [Clemens] did argue that a document-by-document listing was too onerous for counsel to perform, seeing as he has now several times over caused the Court to conduct such a review." Id. at *6.

Litigants withholding documents often receive second and even third chances to prepare proper logs, as long as they try their best to comply with federal rules and to meet the court's expectations. However, litigants running afoul of either usually lose their privilege fights and anger frustrated courts.

Case Date Jurisdiction State Cite Checked
2014-04-02 Federal NY
Comment:

key case


Chapter: 59.403
Case Name: Ellis v. J.P. Morgan Chase & Co., Case No. 12-cv-03897-YGR (JCS), 2014 U.S. Dist. LEXIS 45681 (N.D. Cal. April 1, 2014)
("The Court has conducted an in camera review of the 12/18 Letter and finds that it is attorney work product because it is a document that was prepared by Chase's counsel in anticipation of the underlying litigation.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal CA

Chapter: 59.403
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 Jurisdiction State Cite Checked
2014-01-22 State FL
Comment:

key case


Chapter: 59.403
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 Jurisdiction State Cite Checked
2014-01-09 Federal PA
Comment:

key case


Chapter: 59.403
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)
("Whether or not a document is privileged is fact specific and frequently requires in camera review.")

Case Date Jurisdiction State Cite Checked
2014-01-08 Federal NY B 6/14

Chapter: 59.403
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 Jurisdiction State Cite Checked
2014-01-08 Federal NY
Comment:

key case


Chapter: 59.403
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 Jurisdiction State Cite Checked
2014-01-06 Federal IL
Comment:

key case


Chapter: 59.403
Case Name: Edwards v. State Casino Control Comm'n, Dkt. No. A-4738-11T4, 2013 N.J. Super. Unpub. LEXIS 2737, at *30 (N.J. Super. Ct. App. Div. Nov. 13, 2013)
(analyzing protection for an internal investigation into a wrongful termination; ultimately requiring an in camera review; "Because it presently appears that some or all defendants may rely upon the investigation of plaintiff in defending against his allegations, the asserted privileges may have no bearing on the discovery dispute. In any event, we observe that the discovery judge neither conducted an in camera review nor did he close the door to further consideration of the discovery dispute. As a result, plaintiff is entitled to a final disposition of his discovery requests based upon the principles discussed in the cases cited above and following an in camera review of the documents that have yet to be turned over.")

Case Date Jurisdiction State Cite Checked
2013-11-13 State NJ B 5/14

Chapter: 59.403
Case Name: Premier Dealer Servs., Inc. v. Duhon, Civ. A. Nos. 12-1498 & -2790 SECTION: "H" (4), 2013 U.S. Dist. LEXIS 160204, at *19 (E.D. La. Nov. 8, 2013)
("After conducting the in camera review of the privilege log of emails/e-documents produced to the Court, the Court finds that the bulk of the emails for which Premier Dealer claimed the work-product doctrine involved communications which took place after litigation began, but had nothing to do with the ongoing action. For example, several of the emails involved the parties [sic] ability to open files with e-signatures, and or [sic] pertained to setting up client meetings. As stated above, the mere fact that litigation is pending will not transform 'everything done by, for or [involving] a party into work product worthy of protection.'" (citation omitted) (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-11-08 Federal LA B 5/14

Chapter: 59.403
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2:08-cv-2141, 2013 U.S. Dist. LEXIS 129472, at *24-25 (E.D. Pa. Sept. 11, 2013)
("[A]lthough Cephalon submitted a detailed privilege log and several affidavits in support of its argument that the communications at issue were legal in nature and therefore properly withheld, the log descriptions and the affidavits were too general to permit the Court to resolve the dispute without reviewing the communications themselves. This was, of course, necessary to some extent as the party asserting the privilege faces the difficult task of providing enough detail to establish its claim of privilege, but not so much detail that it inadvertently discloses the content of the communications. Accordingly, our determination that an in camera review of the documents was necessary should not be viewed as an indication of any deficiency in Cephalon's privilege log or support of its privilege claim.")

Case Date Jurisdiction State Cite Checked
2013-09-11 Federal PA B 4/14

Chapter: 59.403
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2:08-cv-2141, 2013 U.S. Dist. LEXIS 129472, at *24 (E.D. Pa. Sept. 11, 2013)
("Whether a particular communication was made for legal or business purposes is largely a factual determination, and one which must be made on a case by case basis. . . . As such, an in camera review of the documents at issue here was necessary.")

Case Date Jurisdiction State Cite Checked
2013-09-11 Federal PA B 4/14

Chapter: 59.403
Case Name: Carpenter Co. v. BASF SE (In re Urethane Antitrust Litig.), MDL No. 1616, Case No. 04-MD-1616-JWL, 2013 U.S. Dist. LEXIS 128353, at *39-40 (D. Kan. Sept. 5, 2013)
(holding that Dow's disclosure of some information about Dow's investigation into possible misconduct caused a subject matter waiver; "The undersigned finds that fairness demands that DAPs [direct-action plaintiffs] be allowed to examine the whole picture showing what allegations Barbour reported to Dow in 2004. At Dow's [defendant] explicit request, the court ruled that the parties could take discovery into whether Barbour [Dow's former employee] reported antitrust concerns to Dow in 2004, as opposed to for the first time during her deposition in 2010. . . . The undersigned has reviewed the Ella [Barbour/s former lawyer] memorandum in camera and finds that it contains information specifically addressing this topic which is favorable to DAPs' theory of events -- information that must be revealed to avoid a misleading presentation of the evidence to the disadvantage of DAPs. Thus, the undersigned finds that the Ella memorandum must be produced to DAPs under Rule 502, despite any privilege protection (including work-product protection or a joint-defense/common-interest privilege) which might otherwise attach to it." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-09-05 Federal KS B 4/14

Chapter: 59.403
Case Name: Square Mile Structured Debt (One) LLC v. Swig, No. 603825/08, 2013 NY Slip Op. 31803(U), at 11 (N.Y. Sup. Ct. July 23, 2013)
(assessing plaintiff's request for fees under a contractual indemnification provision; reversing a Special Referee's refusal to review the lawyer's bills in camera, and reducing the amount of fees awarded because the lawyers had redacted portions of the bills; "[T]he provident course of action would have been for the Special Referee to review the redacted billing entries in order to determine whether the fees sought were reasonable.")

Case Date Jurisdiction State Cite Checked
2013-07-23 State NY B 4/14

Chapter: 59.403
Case Name: Avis Rent A Car Sys., LLC v. City of Dayton, Ohio, Case Nos. 3:12-cv-399 & -405, 2013 U.S. Dist. LEXIS 100918, at *19, *25, *25-26 (S.D. Ohio July 18, 2013)
(analyzing a common interest agreement; "[T]he issue concerns whether the privilege logs must include documents created on or after November 20, 2012, identified by the Enterprise Plaintiffs as 'the approximate date' on which they began preparing to file suit against the City."; "Here, Plaintiffs have produced a privilege log limited to communications made before November 20, 2012, a date of their choosing, but refused to produce the Joint Agreement, the document they claim forms the basis for the asserted privilege."; "[T]he Court notes that it has ordered Plaintiffs to produce the Joint Agreement for an in camera inspection of its contents. After the inspection, the Court will rule on the issue of whether the common interest doctrine applies to communications between counsel for all Plaintiffs, as they assert. At that point, they may have a sturdier foundation for their claim of privilege, and Plaintiffs may then choose to renew their Motion for a Protective Order.")

Case Date Jurisdiction State Cite Checked
2013-07-18 Federal OH B 4/14

Chapter: 59.403
Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 100012, at *43-44 (S.D.N.Y. July 10, 2013)
("Defendants will produce for this Court's in camera inspection interview notes and summaries pertaining to the twenty-one witnesses whose statements were disclosed to the SEC. The Court will determine what portion of these documents constitutes opinion work product, and will order production of the rest.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal NY B 4/14

Chapter: 59.403
Case Name: Walter v. Travelers Pers. Ins. Co., Civ. No. 4:12-CV-346, 2013 U.S. Dist. LEXIS 72771, at *14 (M.D. Pa. May 22, 2013)
(in a first party insurance case, finding that insurance company documents deserved privilege and work product protection; "[U]pon review of the documents themselves in their entirety -- and not only isolated selections of certain correspondence -- we are satisfied that coverage counsel was, in fact, serving the client in an attorney-client capacity, and not in some other function such as a business advisor or claims adjuster.")

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

Chapter: 59.403
Case Name: One Place Condo. LLC v. Travelers Prop. Cas. Co. of Am., No. 11 C 2520, 2013 U.S. Dist. LEXIS 28257, at *16 (N.D. Ill. Mar. 1, 2013)
("Despite all this evidence, in an abundance of caution, the Court also conducted a thorough in camera review of a randomly-selected sampling of the 97 disputed log entries, followed by another hearing.")

Case Date Jurisdiction State Cite Checked
2013-03-01 Federal IL B 3/14

Chapter: 59.403
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 639 (D. Nev. 2013)
("[T]he court will be undertaking an in camera review of the forty-three Joint Selection documents, the outcome of which will provide direction and further guidance to the parties as to how the court evaluates the attorney-client privilege and work product doctrine assertions. The court's analysis with respect to the forty-three Joint Selection documents can then be applied to remaining analogous categories of documents to which Bard has asserted the attorney-client privilege or work product protection.")

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

Chapter: 59.403
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 219 (N.D. Ill. 2013)
("The lack of information in RBS's privilege log means that the Court has had to make its privilege determinations based almost exclusively on examinations of the documents themselves. . . . Without any explanation of what the documents are, who authored them, or the purpose for which they were created, the Court determines that the vast majority of the disputed documents -- mostly spreadsheets containing financial data -- are not in fact privileged.")

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

Chapter: 59.403
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 869 (Tex. Ct. App. 2013)
("[T]he trial court determines that an in camera review of some or all of the requested discovery is necessary, that material or information must be segregated and produced to the court in a sealed wrapper within a reasonable time following the hearing. . . . The trial court abuses its discretion in failing to conduct an in camera inspection when such review is critical to the evaluation of a privilege claim.")

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

Chapter: 59.403
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; "The Court does not conduct an in camera review lightly, nor simply because a party requests it, but rather this Court holds the proponent of non-disclosure to the appropriate evidentiary burden.")

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

Chapter: 59.403
Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 331 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Documents No. 7, 8, 10, 13, and 26 are draft letters from John and Shelley Dempsey, addressed to officials at Bucknell University, which were apparently never sent. The privilege log describes these documents as having been ghostwritten or co-authored by Attorney Becker. Dempsey claims attorney-client privilege. With respect to these documents, Dempsey's objections to production are SUSTAINED. Based on the document descriptions in the privilege log and the Court's review of the documents in camera, these drafts are privileged because they were 'prepared or circulated for the purpose of giving or obtaining legal advice and contain information or comments not included in the final version.'" (citation omitted))

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

Chapter: 59.403
Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 329-30 (M.D. Pa. 2013)
("[I]t is clear from the record before the Court that Dempsey's parents played two different roles in his legal defense, both of which permitted them to participate in or receive disclosure of confidential communications without waiver of the attorney-client privilege. From the earliest stages of this affair, Dempsey's parents played an essential role in securing legal representation for Dempsey. After the retention of legal counsel, Dempsey's parents actively assisted his attorneys in preparing a defense to criminal charges and, later, student conduct charges against Dempsey. In particular, the Court notes Attorney Stephen Becker's unrebutted affidavit . . . in which Becker stated that, due to their professional backgrounds (John Dempsey is a forensic investigator and Shelley Dempsey is a retired attorney) and their relationship and knowledge of their son, he enlisted the assistance of Dempsey's parents in gathering and analyzing information and helping to prepare Dempsey's defense. It is also abundantly clear from the Court's in camera review of the documents at issue that Dempsey's parents functioned just as Attorney Becker represented, operating in concert with and at the direction of defense counsel, and providing substantial assistance in preparation of the case. Whether they came upon these roles as paid professionals or as family member volunteers is immaterial.")

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

Chapter: 59.403
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 Jurisdiction State Cite Checked
2013-01-01 Federal NY B 5/14

Chapter: 59.403
Case Name: Gruss v. Zwirn, 296 F.R.D. 224, 231 (S.D.N.Y. 2013)
(analyzing the ability of Gibson Dunn to withhold its opinion work product prepared during an internal corporate investigation; explaining that Gibson Dunn had undertaken a corporate investigation that essentially blamed a CFO for a company's problems, after which the CFO sued the company for defamation; ordering Gibson Dunn to turn its opinion work product over to its client, the company; "Contrary to Gibson Dunn's argument, this Court is not required to accept the declaration of one of its partners that the notes in question constitute -- in their entirety -- opinion work product."; "While courts in this District have, on occasion, accepted counsel's representations regarding the contents of allegedly privileged materials, they have typically done so where the representations were unchallenged."; "[A]ttorney representations regarding the content of allegedly privileged materials do not preclude a court from conducting an in camera review of such materials. Courts have discretion to determine whether in camera review is appropriate, based in part on the specificity of counsel's representations. . . . Here, Gibson Dunn's representation that every word in the interview memos constitutes 'core opinion work product' is not credible. . . . Under such circumstances, in camera review is appropriate.")

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

Chapter: 59.403
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *18-19 (E.D. Va. Dec. 3, 2012)
("[H]e has provided a privilege log that includes only a general description of each document, but little if any explanation as to why each document is privileged. This places the burden on the Court to surmise the basis for privilege as best as it can glean from its in camera review. On their face, a number of these documents appear to contain no privileged material. These include communications between counsel and third parties, emails scheduling appointments or discussing administrative matters, and communications regarding the scope of representation. Without further explanation, evidence, or authority, the Court concludes that none of these documents are privileged." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2012-12-03 Federal VA B 5/13

Chapter: 59.403
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *4 (S.D. Ohio Nov. 13, 2012)
("The Court then directed the parties to submit ten representative documents from each category to the Court for in camera review, with plaintiffs and defendants each choosing five documents from each of the eleven categories, for a total of 110 documents. The Court determined that this sampling process would hasten resolution of the discovery dispute related to the documents listed in the privilege log as it will provide both the parties and the Court with a greater understanding of the types of documents at issue without engaging in the arduous task of engaging in an in camera review of over 1,500 individual documents." (footnote omitted))

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

Chapter: 59.403
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *10, *11 (E.D. Va. July 12, 2012)
("Scan-Optics, LLC and Scan-Optics, Ltd. claim that certain documents that were exchanged between business persons and not copied to lawyers are privileged because they reflected legal advice and/or were done at the direction of an attorney."; "Having reviewed each of the privilege entries and the documents in this category, it is evident that no communications were made 'at the direction of an attorney,' and only a few 'reflect legal advice.' And, to the extent that any do reflect legal advice, they reflect the legal advice of Patriarch attorney Robert Sweeny. For the reasons explained above, the predicate for the claim of privilege with respect to communications with Patriarch attorneys has not been established. Thus, Brainware's motion with respect to these communications will be granted." (footnote omitted))

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

Chapter: 59.403
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *8-9 (E.D. Va. July 12, 2012)
("The in camera review of the documents claimed to be privileged does not supply any of the necessary information. Nothing in the documents shows any bases for predicating a claim of either the attorney-client or the work-product privilege on the bases of whatever relationship there may be between the defendants and Patriarch [described by defendants as "a collateral manager of investment fund"]. There is a complete failure of the burden to show that the privileges at issue exist to the extent that the privilege is based on documents prepared or shared with Patriarch's in-house counsel or its officers, directors, or employees. Nor has there been any showing of a joint defense agreement or privilege respecting the defendants and Patriarch. Brainware's request for the disclosure of documents prepared by, forwarded or copied to, or reflecting the ideas of attorneys at Patriarch will be granted." (footnote omitted))

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

Chapter: 59.403
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 106 (D.D.C. 2012)
("During a March 8, 2011 status conference, I directed the parties to meet and confer on a sample set of documents to be presented to me for in camera review. I have reviewed BIPI's privilege log as well as the sampling of documents, which were created by BIPI in the period between the District Court decision on June 26, 2008 and the settlement achieved on August 11, 2008.")

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

Chapter: 59.403
Case Name: Yorktowne Shopping Center, LLC v. Nat'l Surety Corp., Civ. A. No. 1:10cv1333, 2011 U.S. Dist. LEXIS 52032, at *3-4 (E.D. Va. May 16, 2011)
(in a first-party insurance case, finding that the work product doctrine protected the documents prepared under the direction of the insured's lawyer by a public adjuster retained by the insured; "Upon in camera review of these documents, the Court finds that work product protection applies (footnote omitted). First, each document in issue was created by or under the direction of Yorktowne's [insured] attorney, Mitchell Weitzman or Yorktowne's agent, Sill [public adjuster retained by Yorktowne]. Plaintiff hired Sill to maximize its coverage under the NSC policy, which required Sill and Yorktowne to work together with Attorney Weitzman, as representatives of Yorktowne. Reports and other analyses prepared by Sill were created to assist Mr. Weitzman in his representation of Yorktowne. Moreover, each communication identified on plaintiff's privilege log pertained to Mr. Weitzman's representation of Yorktowne, and included detailed legal analysis of Yorktowne's coverage objective. Also, plaintiff clearly anticipated imminent litigation between Yorktowne and Insurance Company if the claims were not settled amicably.")

Case Date Jurisdiction State Cite Checked
2011-05-16 Federal VA

Chapter: 59.403
Case Name: Yorktowne Shopping Center, LLC v. Nat'l Surety Corp., Civ. A. No. 1:10cv1333, 2011 U.S. Dist. LEXIS 52032 (E.D. Va. May 16, 2011)
(after an in camera review, finding that the work product doctrine protected an insurance company's files)

Case Date Jurisdiction State Cite Checked
2011-05-16 Federal VA

Chapter: 59.403
Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501-02 (4th Cir. 2011)
("'(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or is his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the b has been (a) claimed and (b) not waived by the client.' Jones, 696 F.2d at 1072 [United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)] (quoting United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950))."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

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

Chapter: 59.403
Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir. 2011)
("Procedurally, the party must 'expressly make the claim' and 'describe the nature of the documents . . . in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Fed. R. Civ. P. 26(a)(5)(A)."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

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

Chapter: 59.403
Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
("Internal communications between a company's officers and directors and its general counsel may be privileged depending upon whether the communications are legal or business in nature. This principle will be applied regardless of the general counsel's role in a particular transaction or negotiation, although that role may very well inform the nature of the communication. 3Com claims that it only withheld those portions of communications involving Mr. Goldman where he provided legal service or advice so intertwined with legal issues that it, 'as a whole was primarily legal in nature.' Nonetheless, given Mr. Goldman's prominent business role in the transaction, the Court is of the view that in camera review is appropriate here to determine whether Mr. Goldman was acting in primarily a legal or business capacity at the time that the challenged communications were made.")

Case Date Jurisdiction State Cite Checked
2010-05-31 State DE

Chapter: 59.403
Case Name: Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 227 (Va. Cir. Ct. 2010)
("Having conducted an in camera inspection, the Court finds that everything in these three documents is discoverable. The documents do not contain mental impressions of the Defendant's agent or strategies of an attorney. Rather, the internal memorandum reports objective facts, and the two diagrams provide a concise rendition of the area of the accident. Their production clarifies the issues between the parties, helps ascertain the facts relative to those issues, and saves the expense of discovery.")

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

Chapter: 59.403
Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 377 n.34 (4th Cir. 2009)
("It is within the discretion of the district court to determine whether in camera inspection is needed in order to make a de novo determination of the claims of exemption. See Ray v. Turner, 190 U.S. App. D.C. 290, 587 F.2d 1187, 1195 (D.C. Cir. 1978).")

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

Chapter: 59.403
Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 377 n.34 (4th Cir. 2009)
("It is within the discretion of the district court to determine whether in camera inspection is needed in order to make a de novo determination of the claims of exemption. See Ray v. Turner, 190 U.S. App. D.C. 290, 587 F.2d 1187, 1195 (D.C. Cir. 1978). For the reasons set forth above, we remand the case because the Agencies' Vaughn index did not provide an adequate basis for the district court to determine whether certain documents were properly withheld or redacted pursuant to Exemption 5. On remand, the district court may once again exercise its discretion whether to conduct in camera review of the challenged documents, permit the Agencies to submit an adequate Vaughn index summary instead, or opt for a combination of methods.")

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

Chapter: 59.403
Case Name: Flexible Benefits Council v. Feldman, No. 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226 (E.D. Va. Oct. 8, 2008)
(concluding after an in camera review that the communications involved business rather than legal matters, and therefore did not deserve privilege protection)

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

Chapter: 59.403
Case Name: The Flexible Benefits Council v. Feldman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *12 (E.D. Va. Oct. 8, 2008)
("Upon review of the documents at issue in camera, the Court finds that, while an attorney-client relationship may exist between Hawks and Feldman, the documents Plaintiff seeks do not relate to this representation, but rather to the acts Hawks and Feldman undertook in their roles as business partners in the formation of ECFC Ltd. Given the narrow limits of the attorney-client privilege in this Circuit, that privilege does not apply here. Defendants' Objection will be denied.")

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

Chapter: 59.403
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) [Woolridge, J.]

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

Chapter: 59.403
Case Name: Weiser v. Grace, Index No. 106285/95, Seq. No. 005, 1998 N.Y. Misc. LEXIS 592 (N.Y. Sup. Ct. Aug. 31, 1998)
(addressing derivative plaintiff shareholders' motion compelling production of Cravath's documents generated during its representation of a Special Litigation Committee; explaining the court's role in analyzing a Special Litigation Committee's recommendation to dismiss the derivative case, and ultimately ordering an in camera review of privileged and work product-protected documents relating to Cravath's investigation, and indicating that the court probably would order production of documents; among other things, noting that the Special Litigation Committee lawyers represent the Committee "and the corporation as a whole (e.g., the [derivative] plaintiff shareholders]"; "Plaintiffs move for an order compelling the Special Litigation Committee of the W.R. Grace & Co. Board of Directors (the SLC) to produce witness outlines, notes and summaries of interviews conducted by the SLC and its counsel, which interviews form the basis of the SLC's pending motion to dismiss the amended complaint."; explaining that the derivative action alleges the company's favoritism toward the former CEO J. Peter Grace and his family; "On May 9, 1997, the Board created the SLC to investigate the allegations in the amended complaint. Specifically, the SLC was charged with determining whether continued pursuit of this lawsuit was in the best interests of Grace. The Board resolution appointing the SLC accorded the committee full authority to deal with this lawsuit without any further reference to the Board. The SLC retained the firm of Cravath, Swaine & Moore (Cravath) to act as its counsel. The SLC conducted its investigation by reviewing documents and conducting interviews of defendants and other personnel concerning the matters raised in the complaint. The committee relied heavily on its counsel in its investigation. Indeed, counsel conducted 10 of the 14 interviews and then reported back to the SLC about the substance of the interviews."; pointing to ZaPata Corp. v. Maldonado (430 A2d 779 (Del. Sup. Ct. 1981) as indicating how Delaware court handle Special Litigation Committees; "[T]he court finds that the production of the notes, summaries and outlines regarding the committee's interviews of witnesses is necessary and will facilitate determination of the reasonableness and good faith of the SLC's investigation. Contrary to the SLC's contentions, plaintiffs' requests do not constitute all-encompassing merits discovery. In order for plaintiffs to reasonably challenge the thoroughness of the SLC's factual investigation, they must be able to examine the questions posed and the subjects explored in the witness interviews. Similarly, it is impossible for the court to assess whether the SLC pursued its charge with diligence and zeal, if the court is unable to review the development of the factual record that underlies the Revised Report."; "[T]he SLC in the instant case relied heavily on counsel who conducted 10 of the 14 interviews which formed the factual basis for its Revised Report. Likewise, the witness interviews were not transcribed. The only witness record of the interviews are counsel's notes, outlines and summaries. To deny plaintiffs the opportunity to discover the questions asked of the key witnesses, and whether the responses thereto were used or ignored by the SLC in forming its conclusions and preparing its report, would impermissibly allow the SLC to insulate its investigation from scrutiny by simply using counsel to conduct the interviews. . . . this court is troubled by the issue of whether the SLC acted in good faith when it preserved the interview testimony in such a way that it could then protect it from examination by asserting."; "When assessing the good faith and reasonableness of the SLC's investigation, the court must also determine whether the committee's reliance on counsel was in good faith. . . . To successfully challenge the committee's good-faith reliance on counsel, plaintiffs must show overreaching by counsel or neglect by the SLC. . . . If counsel incompetently conducted the interviews, the SLC's reliance and good faith would be called into question."; "The court recognizes that some of the documents sought may contain privileged matter which may be immune from discovery, notwithstanding their relevance to issues of good faith and the reasonableness of the investigation. Thus, an in camera review is the appropriate procedural vehicle to ensure that those privileges are not violated, while permitting plaintiffs to obtain the discovery necessary to challenge the SLC's good faith. However, the court notes that the application of the attorney-client privilege is problematic. The SLC's counsel represents both the SLC and the corporation as a whole (e.g., the plaintiff shareholders). Under such circumstances, the attorney-client privilege would not bar discovery of all communications between counsel and the SLC."; also addressing the work product protection; "The work product doctrine protects materials specifically written in preparation for threatened or anticipated litigation. . . . Again, even if the SLC's materials qualify for work product protection, they may still be discoverable if the shareholder seeking such discovery from the corporation can demonstrate 'good cause.'"; "In this case, plaintiffs have shown that there are many shareholder interests at stake, including the interests of one of the corporation's largest shareholders, the California Public Employees Retirement System. In addition, plaintiffs have demonstrated that the discovery they seek is not available from other sources since the interviews were not recorded. Plaintiffs have also established that the communications do not necessarily disclose counsel's advice to the SLC regarding this litigation. However, before ordering production of the requested documents, the court will review the documents in camera. . . . The in camera review will protect against disclosure of the mental impressions, conclusions, opinions or legal theories of SLC's counsel."; "Accordingly, it is ordered that the motion to compel is held in abeyance pending the court's in camera review, and it is further ordered that the SLC shall submit the subject documents to the court within 15 days of service of a copy of this decision with notice of entry.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 59.403
Case Name: In re Galaxy Computer Servs., Inc., Civ. A. No. 04-07-A, 2004 U.S. Dist. LEXIS 28162, at *11 (E.D. Va. Mar. 31, 2004)
("[T]he bankruptcy court did not find the fact of transmittal of the documents to be confidential such that it implicated the attorney-client privilege, and our own in camera review of the documents at issue supports that finding.")

Case Date Jurisdiction State Cite Checked
2004-03-31 Federal VA

Chapter: 59.403
Case Name: State ex rel. Brady v. Ocean Farm Ltd. P'ship, C.A. No. 2036-S, 2002 Del. Ch. LEXIS 16, at *10 (Del. Ch. Feb. 14, 2002)
(addressing documents created during an investigation conducted by state authorities into deceptive trade practices; acknowledging that an investigation might "morph" into a work-product protected investigation; "The record facts do not enable me to decide whether the investigative report at issue on this motion was prepared in anticipation of litigation, or whether it was prepared routinely in the ordinary course of business. That difficulty arises because the State conducts routine investigations of complaints made to its Consumer Protection Unit; while at the same time, it also brings enforcement actions against certain offenders in civil court. Thus, at some point on the investigative process continuum, an investigation that begins as the routine exploration of a complaint brought against a Delaware business, will evolve into the preparation for a civil lawsuit against the offender. Only after the State begins preparing for a civil action does the work product immunity attach. On this record, I am unable to determine where on that continuum the investigative report at issue in this case falls. The only way to obtain that information is for the Court to review the investigative report in camera, which is what will be done here. In connection with the in camera review, the State will have the burden of demonstrating what portions (if any) of the report are protected by the work product immunity.") (emphasis added)

Case Date Jurisdiction State Cite Checked
2002-02-14 State DE
Comment:

key case


Chapter: 59.403
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 456, 465 66 (E.D. Va. 1998)
("Therefore, while the burden of proof is on the party asserting the 'substantial need,' when a court determines that in camera review is necessary under National Union, the court must have a certain degree of leeway in its in camera review to determine whether for the purposes of the litigation there is a 'substantial need' for the asserted privileged documents. Indeed, it would be illogical to require a reviewing court to turn a blind eye to documents or be hamstrung when it conducts its in camera review. While the moving party has the burden of showing 'substantial need,' a court can not be strictly limited in its consideration to the arguments presented by counsel, particularly when it is clear to the court from its in camera review that the documents should be discoverable")

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal VA

Chapter: 59.403
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 68 (E.D. Va. 1998)
("Under Fed. R. Evid. 501, the law dealing with attorney client privilege derives from the common law. The question then becomes: does the federal common law of privileges allow this Court to make an in camera inspection of the document for which CBN claims the attorney client privilege? Zolin answers this concern as well; the federal common law of attorney client privilege allows this Court to conduct an in camera review of the documents for which CBN is claiming the attorney client privilege." (footnote omitted)), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal VA

Chapter: 59.403
Case Name: Kanchanayothin v. Stancell, 39 Va. Cir. 189 (Va. Cir. Ct. 1996)
(after an in camera review, holding that litigation was not reasonably foreseeable at the time an insurance company obtained witness statements)

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA

Chapter: 59.403
Case Name: Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294, 296 (Va. Cir. Ct. 1993)
(finding that a party had made a sufficient showing to justify in camera review of privileged documents to determine if the crime-fraud exception applied; "in order for the Court to undertake such an in camera review, the Plaintiffs must demonstrate by relevant evidence, lawfully obtained, and not adjudicated to be privileged, that there exists a reasonable belief that in camera review may yield evidence establishing the exception's applicability")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA

Chapter: 59.403
Case Name: Wertenbaker v. Winn, 30 Va. Cir. 327, 331 (Va. Cir. Ct. 1993)
("[c]onfidential records are routinely filed for in camera inspection by the court")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA

Chapter: 59.403
Case Name: In re Bryant, 27 Va. Cir. 414, 418 (Va. Cir. Ct. 1992)
(recognizing that an in camera review is the normal way to assess a privilege claim)

Case Date Jurisdiction State Cite Checked
1992-01-01 State VA

Chapter: 59.404
Case Name: Meyer v. Kalanick, 15 Civ. 9796, 2016 U.S. Dist. LEXIS 74214 (S.D.N.Y. June 7, 2016)
("As a general matter, it is commonplace for a court to review in camera the subpoenaed documents as to which an assertion of privilege has been raised in order to see whether the privilege has been properly asserted."; "In the instant situation, moreover, the Court views in camera review as essential to determine the application vel non of the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2016-06-07 Federal NY

Chapter: 59.404
Case Name: Streamline Businss Services, LLC v. Vidible, Inc., Civ. A. No. 14-1433, 2015 U.S. Dist. LEXIS 107709 (E.D. Pa. Aug. 17, 2015)
(finding that an inadvertent production of a document did not result in a waiver; "Accordingly, the Court finds that plaintiff has failed to show the crime-fraud exception applies, and there is no need for an in camera hearing at this time.")

Case Date Jurisdiction State Cite Checked
2015-08-17 Federal PA

Chapter: 59.404
Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(analyzing the crime-fraud exception; finding the crime-fraud exception applicable; "With respect to the procedure for review, the Supreme Court resolved the issue in Zolin. See Zolin, 491 U.S. at 557-574. The Court rejected the independent-evidence requirement and permitted the use of in camera review in cases involving the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2015-06-09 Federal CA

Chapter: 59.405
Case Name: Valassis Communications, Inc. v. News Corporation, 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234 (S.D.N.Y. Sept. 19, 2018)
(after reviewing documents in camera; "The mere inclusion of a lawyer as a recipient of a copy of a draft document circulated by one business person to other business people seeking comments on the draft would not, standing alone, warrant the protection of the attorney-client privilege. The Court's in camera review ensures that, as to any document as to which the privilege is upheld, there was a bona fide request for legal advice and not a subterfuge to evade discovery obligations.")

Case Date Jurisdiction State Cite Checked
2018-09-19 Federal NY
Comment:

Key Case


Chapter: 59.405
Case Name: In re Andrew Silver, No. 16-0682, 2018 Tex. LEXIS 171 (Tex. Sup. Feb. 23, 2018)
(finding that patent agents were inside privilege protection, because they counted as "lawyers" under Texas evidence rules; "A trial court can review documents in camera if necessary to determine whether a privilege applies. Tex. R. Civ. P. 193.4(a). When such a review is critical to the determination of a privilege claim, the trial court abuses its discretion when it fails to conduct an adequate in camera inspection. . . . Because the privilege here could apply to some of the documents at issue, we conclude that the trial court abused its discretion by not conducting an in camera review.")

Case Date Jurisdiction State Cite Checked
2018-02-23 Federal TX

Chapter: 59.405
Case Name: Acqis, LLC v. EMC Corp., Civ. A. No. 14-13560-ADB, 2017 U.S. Dist. LEXIS 195112 (D. Mass. Nov. 16, 2017)
("ACQIS shall therefore provide copies of all of the withheld documents in the second, third, fourth, and fifth bullet points in subcategory C as well as a list identifying the individuals in the withheld documents who are attorneys or support personnel. To facilitate the review, ACQIS should include copies of the privileged and the produced documents it identified in the opposition to support the privilege. . . . In submitting the documents for review, ACQIS should not include any ex parte arguments.")

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

Chapter: 59.405
Case Name: William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017)
December 20, 2017 (PRIVILEGE POINT)

"Courts Address Requests That They Review Withheld Documents In Camera"

Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that protection, courts may be called upon to review withheld documents. But must judges always review withheld documents in camera before deciding privilege or work product issues?

In Kushner v. Buhta, the court concluded that third party City of Minneapolis' privilege log's "general descriptions . . . failed to independently support a claim of work product protection" -- and thus held that the magistrate judge "did not err in requiring in camera review." Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017). The court also agreed with the magistrate judge that "upon review, the claimed protection is belied by the documents' contents." Id. One day later, another federal court determined it "will not conduct an in camera review of the third-party documents it previously held were not entitled to protection under the attorney-client privilege." William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017). The court explicitly rejected defendant's argument that an Ohio law required such an in camera review -- explaining that the defendant "has not cited any cases to show that Ohio's in camera review requirements are binding on federal courts." Id. at *9.

Whether a court's in camera review would assist or undermine privilege or work product claims, corporations and their lawyers should familiarize themselves with the applicable laws, rules, and even the presiding judge's attitude toward such in camera reviews.

Case Date Jurisdiction State Cite Checked
2017-09-26 Federal OH
Comment:

key case


Chapter: 59.405
Case Name: Kushner v. Buhta, Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017)
December 20, 2017 (PRIVILEGE POINT)

"Courts Address Requests That They Review Withheld Documents In Camera"

Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that protection, courts may be called upon to review withheld documents. But must judges always review withheld documents in camera before deciding privilege or work product issues?

In Kushner v. Buhta, the court concluded that third party City of Minneapolis' privilege log's "general descriptions . . . failed to independently support a claim of work product protection" -- and thus held that the magistrate judge "did not err in requiring in camera review." Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017). The court also agreed with the magistrate judge that "upon review, the claimed protection is belied by the documents' contents." Id. One day later, another federal court determined it "will not conduct an in camera review of the third-party documents it previously held were not entitled to protection under the attorney-client privilege." William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017). The court explicitly rejected defendant's argument that an Ohio law required such an in camera review -- explaining that the defendant "has not cited any cases to show that Ohio's in camera review requirements are binding on federal courts." Id. at *9.

Whether a court's in camera review would assist or undermine privilege or work product claims, corporations and their lawyers should familiarize themselves with the applicable laws, rules, and even the presiding judge's attitude toward such in camera reviews.

Case Date Jurisdiction State Cite Checked
2017-09-25 Federal MN
Comment:

key case


Chapter: 59.405
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)
March 22, 2017 (PRIVILEGE POINT)

"Court Uses an "In Camera" Review for Purposes Other than Privilege or Work Product Assessment"

Adversaries challenging litigants' privilege or work product assertions necessarily "shadow box" with the litigants -- because the adversaries cannot see the withheld documents. Courts often review such withheld documents in camera to assess such litigants' protection claims.

In 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), defendants sought to quash plaintiff's subpoena to their law firm Orrick Herrington. Although the court had already rejected plaintiff's argument that it needed Orrick's documents "for the purpose 'double-checking' the truthfulness of [a then-Orrick lawyer's] statement" about his scope of work, the court nevertheless checked the withheld documents in camera. Id. at *10 (internal citation omitted). The court assured plaintiff that it "did not find any communications that contradicted [the lawyer's] statement." Id.

Most judges limit their in camera review to assessing privilege or work product protection claims, but some courts examine the documents for other purposes. And because the same judges normally rule on motions and sometimes even act as fact-finders, clients and their lawyers should remember that ultimately winning a privilege or work product fight will not necessarily prevent judges from reading the withheld documents.

Case Date Jurisdiction State Cite Checked
2017-01-11 Federal CA
Comment:

key case


Chapter: 59.405
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 Jurisdiction State Cite Checked
2017-01-11 Federal CA

Chapter: 59.405
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 Jurisdiction State Cite Checked
2016-12-22 Federal KS

Chapter: 59.405
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 Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 59.405
Case Name: Sessions v. Sloane, No. COA 15-1095, 2016 N.C. App. LEXIS 770 (N.C. App. July 19, 2016)
(holding that the plaintiff had not requested in camera review of withheld documents, and therefore failed to carry the burden of proof on privilege and work product; "The Rules of Civil Procedure are not so clear. The better practice in privilege controversies would be to submit a motion, affidavit, privilege log, request for findings of fact and an in camera review together with a sealed record of the documents to be reviewed. Defendants concede they made no formal request for in camera review. Using the method followed by Defendants, if the trial court has questions regarding the factual basis of the alleged privileged documents, the court would not have a basis to resolve its questions. Lacking the documents, there is no evidence to determine if the claims of privilege are bona fide. Moreover, if the documents are not provided under seal to this Court for our review, appellants run the risk of providing insufficient evidence for this Court to make the necessary inquiry. It is therefore problematic for the Defendants to meet their burden of proof at trial or on appeal.")

Case Date Jurisdiction State Cite Checked
2016-07-19 Federal NC

Chapter: 59.405
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 Jurisdiction State Cite Checked
2015-11-02 Federal TN

Chapter: 59.405
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 Jurisdiction State Cite Checked
2015-08-03 Federal NJ

Chapter: 59.405
Case Name: International Cards Co., Ltd. v. MasterCard International Inc., 13-CV-02576 (LGS) (SN), 2014 U.S. Dist. LEXIS 125370 (S.D.N.Y. Aug. 27, 2014)
("[T]he Court instructed the parties to each identify 10 documents as exemplars for the Court's in camera review and to file letters setting forth their positions as to MasterCard's privilege assertions and the adequacy of the privilege log.")

Case Date Jurisdiction State Cite Checked
2014-08-27 Federal NY

Chapter: 59.405
Case Name: Heisenger v. Cleary, X04HHDCV126049497S, 2014 Conn. Super. LEXIS 1835 (Conn. Super. Ct. July 29, 2014)
("If there are any documents identified in the privilege log which the plaintiff believes are not subject to the attorney client privilege, those documents shall be submitted to the court for a confidential in-camera review. Submission for in-camera review will not constitute a court filing and will not appear on the public docket. Documents should be Bates-stamped or otherwise labeled so that they may be referenced without revealing the content of the document. In a separate privilege log and/or memorandum of law, counsel should identify for each document the privilege being asserted. Documents should be mailed or delivered to the court officer at the following address in a sealed envelope or package, clearly labeled as confidential documents for in-camera review.")

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

Chapter: 59.405
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 Jurisdiction State Cite Checked
2014-06-25 Federal

Chapter: 59.405
Case Name: In re Berks Behavioral Health, LLC, Ch. 11 Bankruptcy No. 10-10290 SR, ADV. No. 10-00163 SR, 2014 Bankr. LEXIS 2438, at *11, *12-13 (E.D. Pa. May 28, 2014)
(concluding that the plaintiff debtor had rewritten a privilege log to make the documents sound privileged, but that the log entries did not match the documents; "Once the relevance challenge and the privilege claim were rejected, BBH simply rewrote the log descriptions of the 130 withheld documents so as to characterize each as relevant to the litigation as opposed to the bankruptcy main case. The typical amendment to the log adds to the preexisting description of 'bankruptcy strategy' a phrase such as 'including attorney analysis of claims and evidence in Adversary Proceeding litigation' or 'including attorney mental impressions regarding Adversary Proceeding.' . . . . Each change is to take a description which appears to be inelevant [sic] to the litigation and to rewrite it to make it of particular relevance to the litigation. . . . It should be noted that the Court has reached this conclusion just by comparing the two privilege logs. To reiterate, it did not possess at an earlier time -- as it does now -- copies of the documents being withheld. What the Court has found upon reviewing the withheld documents in camera is, to put it mildly, troubling. Most of the documents in it are highly relevant to the litigation. Indeed, the Court is at a total loss as to how BBH could possibly have previously characterized them as irrelevant. Either BBH has sought to withhold certain documents by engaging in a discovery 'shell game' of changing defenses and privileges when it suits their purposes4 or their counsel simply did not properly review the contents of the actual documents in the first instance. While the Court cannot conclusively know counsel's thinking in this regard, the error is so transparent and obvious as to paradoxically render the possibility that this was done by design seem highly unlikely. At a minimum, however, the record would support a finding that counsel could not possibly have properly reviewed these documents at all until after the October 21 ruling. Such dereliction constitutes a violation of the Court's discovery ruling.")

Case Date Jurisdiction State Cite Checked
2014-05-28 Federal PA

Chapter: 59.405
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. 52525 (D.D.C. April 16, 2014)
(analyzing privilege log issues in connection with plaintiff's attempt to recover attorney's fees after winning an insurance coverage case; "Nevertheless, recognizing that FFIC has not actually seen the documents it seems so convinced are not privileged, the Court reviewed a limited sample [the Court selected seven of the disputed documents on Feld's privilege log largely at random, after ensuring that the sample was somewhat representative of the relevant date range.] of the disputed documents in camera. FFIC submitted the documents to chambers, and the Court reviewed them in detail, comparing them to their respective entries on Feld's privilege log. After this review, the matter is settled: Feld's privilege assertions appear to have been made carefully and in good faith. Every one of the documents submitted for in camera review was described accurately on Feld's privilege log. All of the documents qualify as attorney work product generated in anticipation of this insurance coverage litigation, and none of them are discoverable.")

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

Chapter: 59.405
Case Name: McNamee v. Clemens, 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338 (E.D.N.Y. April 2, 2014)
(finding that defendant Roger Clemens' late and inadequate log resulted in a waiver; "'Judge Pollak took the extraordinary step of reviewing each and every document that Defendant claimed was privileged. She thereafter wrote a well-reasoned 19-page opinion, in which she invited Defendant, with respect to a specific number of documents that 'might potentially be considered privileged,' to provide 'a further showing that the documents were prepared as part of litigation strategy and not media strategy.'. . . However, Defendant was only able to do so with respect to one document.'")

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

Chapter: 59.405
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 Jurisdiction State Cite Checked
2014-02-27 Federal TX B 8/14

Chapter: 59.405
Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 142516, at *2 (S.D.N.Y. Sept. 27, 2013)
(analyzing protection for seventy-five documents withheld by defendant; finding that defendant's analysis of its repurchase obligations involved the ordinary course of the defendant's business, but also included work product-protected additional analyses; "Pursuant to my order of September 12, 2013, the plaintiff identified up to 75 documents from the defendant's privilege log for me to review in camera. I have reviewed the documents, as well a letter from counsel for UBS Real Estate Securities Inc. ('UBS') describing the documents1 and a letter from counsel for the plaintiff in response." (footnote omitted))

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

Chapter: 59.405
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *46 (E.D. Wis. July 10, 2013)
("Some identification of duplicate documents submitted on appeal should have been made. It was frustrating to see a James McGuire [agent of company where the criminal defendants worked] report concerning his interviews with Babler or Perry [defendants] a second time and then to search the first report to compare the documents. By about the tenth time that these documents appeared the frustration level increased tremendously. But at least those documents were identified easily as duplicates by the court. In the future, if documents need to be reviewed in camera in this case, the party submitting the documents must present each document at issue once and only once even if it appears in multiple logs." (footnote omitted))

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

Chapter: 59.405
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *4 (S.D. Ohio Nov. 13, 2012)
("The Court then directed the parties to submit ten representative documents from each category to the Court for in camera review, with plaintiffs and defendants each choosing five documents from each of the eleven categories, for a total of 110 documents. The Court determined that this sampling process would hasten resolution of the discovery dispute related to the documents listed in the privilege log as it will provide both the parties and the Court with a greater understanding of the types of documents at issue without engaging in the arduous task of engaging in an in camera review of over 1,500 individual documents." (footnote omitted))

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

Chapter: 59.405
Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)
("[I]f Newco requests that the Court review any of those documents in camera to determine whether they involved primarily business matters, it will also review the documents to determine application of the attorney work-product privilege.'")

Case Date Jurisdiction State Cite Checked
2010-05-31 State DE

Chapter: 59.405
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 Jurisdiction State Cite Checked
2008-02-12 State VA B 5/09 &6/09