Showing 219 of 219 results

Chapter: 60.4

Case Name: Pittsburgh History and Landmarks Foundation, No. 113 C.D. 2016, 2017 Pa. Commw. LEXIS 116 (Pa. April 21, 2017)
(addressing the fiduciary exception's applicability in a derivative case; "This appeal of a discovery order is treated as an appealable collateral order to the extent it may require disclosure of legal opinions and advice otherwise privileged under the attorney-client privilege and the attorney work product doctrine.")

Case Date Jurisidction State Cite Checked
2017-04-21 State PA

Chapter: 60.4

Case Name: Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 Pa. Super. LEXIS 166 (Pa. Super. Ct. March 13, 2017)
("When a discovery order requires the production of materials that the appealing party has asserted are privileged, Pa.R.A.P. 313 applies, and we will accept jurisdiction.")

Case Date Jurisidction State Cite Checked
2017-03-13 State PA

Chapter: 60.4

Case Name: Burnham v. Cleveland Clinic, No. 2015-1127, 2016-Ohio-8000, 2016 Ohio LEXIS 2912 (Ohio Dec. 7, 2016)
("We hold that an order requiring the production of information protected by the attorney-client privilege causes harm and prejudice that inherently cannot be meaningfully or effectively remedied by a later appeal. Thus, a discovery order that is alleged to breach the confidentiality guaranteed by the attorney-client privilege satisfies R.C. 2505.02(B)(4)(b) and is a final, appealable order that is potentially subject to immediate review. Other discovery protections that do not involve common law, constitutional, or statutory guarantees of confidentiality, such as the attorney work-product doctrine, may require a showing under R.C. 2505.02(B)(4)(b) beyond the mere statement that the matter is privileged. Our holding in Chen [Smith v. Chen, 142 Ohio St. 3d 411, 2015-Ohio-1480, 31 N.E. 3d 633)] is limited to the latter context.")

Case Date Jurisidction State Cite Checked
2016-12-07 State OH

Chapter: 60.4

Case Name: Tyco Fire Products, L.P. v. 2711 Hollywood Beach Condominium Association, Inc., No. 3D16-2043, 2016 Fla. App. LEXIS 17099 (Fla. App. 3d Nov. 16, 2016)
("We have repeatedly described the 'cat-out-of-the-bag' problem that results from the judicially-ordered disclosure of privileged attorney-client communications."; "Certiorari is also 'the proper method to review trial court orders compelling production of privileged discovery that is otherwise protected as work product . . . where, as here, the requesting party has failed to carry its 'considerable burden to show that the party has both a significant need and an undue hardship in obtaining a substantial equivalent.'. . . Two of the documents also include protected work product as to which respondent's burden was not met.")

Case Date Jurisidction State Cite Checked
2016-11-16 Federal FL

Chapter: 60.4

Case Name: State ex rel. Malashock v. Jamison, No. SC95606, 2016 Mo. LEXIS 329 (Mo. Nov. 1, 2016)
("When a party has been directed to produce privileged information, a writ of prohibition is an appropriate remedy because an appeal cannot remedy the improper disclosure.")

Case Date Jurisidction State Cite Checked
2016-11-01 Federal MO

Chapter: 60.4

Case Name:


Case Date Jurisidction State Cite Checked
2016-10-20

Chapter: 60.4

Case Name: Newman v. Highland School Dist. No. 203, No. 90194-5, 2016 Wash. LEXIS 1135 (Wash. Oct. 20, 2016)
(in a 4-3 vote, holding that former high school coaches were not within the attorney-client privilege protection; explaining that the trial court had earlier held that the high school's lawyer could not also represent the former coaches as clients; "Highland sought discretionary review of the superior court's discovery order, which the Court of Appeals denied. This court subsequently granted discretionary review and entered a temporary stay of discovery.")

Case Date Jurisidction State Cite Checked
2016-10-20 Federal WA

Chapter: 60.4

Case Name: Berens v. Berens, No. COA15-1136, 2016 N.C. App. 836 (N.C. App. Aug. 16, 2016)
(finding that a mother's videotapes of the father's visitation with their children deserved work product protection, but that the father could overcome the work product protection; "As a threshold matter, defendant-mother contends that her appeal of the order compelling production of the custody exchange videos, which she maintains are protected under the qualified immunity for attorney work product, N.C. Gen. Stat. § 1A-1, Rule 26(b)(3) (2015), implicates a substantial right. Hence, defendant-mother asserts her interlocutory appeal is reviewable by this Court. We agree."; "Orders compelling discovery of materials purportedly protected by the work product doctrine are immediately reviewable on appeal despite their interlocutory nature.")

Case Date Jurisidction State Cite Checked
2016-08-16 Federal NC

Chapter: 60.4

Case Name: Sessions v. Sloane, No. COA 15-1095, 2016 N.C. App. LEXIS 770 (N.C. App. July 19, 2016)
("[D]efendants asserted attorney-client privilege, the work product doctrine, and the joint defense privilege at the hearing in response to the motion to compel discovery. If the assertion of privilege is not 'frivolous or insubstantial' then a substantial right is affected and the order compelling discovery is immediately appealable.")

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

Chapter: 60.4

Case Name: Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc., No. COA15-680, 2016 N.C. App. LEXIS 613 (N.C. App. June 7, 2016)
("Both this Court and the North Carolina Supreme Court have recognized that a trial court's 'determination of the applicability of [attorney-client] privilege . . . affects a substantial right and is therefore immediately appealable.'")

Case Date Jurisidction State Cite Checked
2016-06-07 Federal NC

Chapter: 60.4

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; "We agree with FirstGroup that the attorney-client and work-product privileges implicate rights rooted in public policy concerns and that the claims will be irreparably lost if review is postponed. Thus, having decided that (1) the discovery orders are separable from, and collateral to, the main causes of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until after final judgment, the claim will be irreparably lost; we conclude we have jurisdiction of the appeals.")

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

Chapter: 60.4

Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)
(granting a writ of prohibition; "Truscott contends that she is entitled to a writ of prohibition because the district court erroneously ordered the production of attorney-client privileged information. Discovery orders are interlocutory and generally not appealable as a matter of right, but 'a writ of prohibition is the appropriate form of relief when a court has exceeded its power to order discovery.'"; "Respondents contend that, even assuming the district court's discovery order constitutes an abuse of discretion, Truscott is not entitled to a writ of prohibition because she has an alternative remedy in a posttrial appeal. We disagree. Truscott currently has the untenable choice between revealing attorney-client privileged communications or facing contempt findings for refusing to comply with the district court's discovery order.")

Case Date Jurisidction State Cite Checked
2016-05-23 Federal MN

Chapter: 60.4

Case Name: Genesis Turf Grass, Inc. v. Synatek LP, No. 1396 MDA 2015, 2016 Pa. Super. Unpub. LEXIS 537, at *5 (Pa. Super. Ct. Feb. 19, 2016)
("As Appellant alleges that the trial court's discovery order compels the disclosure of attorney work product, we find Appellant has appealed a collateral order which may be subject to our review.")

Case Date Jurisidction State Cite Checked
2016-02-19 State PA B 8/16

Chapter: 60.4

Case Name: Haney v. Range Resources-Appalachia, LLC, No. 257 WDA 2015, 2016 Pa. Super. Unpub. LEXIS 265, at *10 (Pa. Super. Ct. Jan. 29, 2016)
("[W]e agree with Range that the challenged discovery order is appealable as a collateral order.")

Case Date Jurisidction State Cite Checked
2016-01-29 State PA B 8/16

Chapter: 60.4

Case Name: Sedgwick Claims Management Services, Inc. v. Feller, Case No. 5D15-217, 2015 Fla. App. LEXIS 7286 (Fla. App. 5d May 15, 2015)
("Petitioner seeks a writ of certiorari, challenging an order overruling its work product and attorney-client privilege objections to the production of parts of its case file. Certiorari review is generally appropriate in this context . . . And we find certiorari relief to be appropriate in this case.")

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

Chapter: 60.4

Case Name: Smith v. Chen, No. 2013-2008, 2015 Ohio LEXIS 950 (Ohio April 21, 2015)
(denying litigant's interlocutory appeal of a privilege issue issue)

Case Date Jurisidction State Cite Checked
2015-04-21 State OH

Chapter: 60.4

Case Name: Red Vision Sys., Inc. v. National Real Estate Info. Svcs, L.P., No. 416 WDA 2014, 2015 Pa. Super. LEXIS 7 (Pa. Super. Jan. 13, 2015)
(addressing privilege issues in an interlocutory appeal)

Case Date Jurisidction State Cite Checked
2015-01-13 State PA

Chapter: 60.4

Case Name: Borgwarner, Inc. v. Kuhlman Elec. Corp., No. 1-13-1824, 2014 Ill. App. LEXIS 847 (Ill. 1d App. Dec. 8, 2014)
(applying the Waste Management doctrine; "This court has jurisdiction over this appeal pursuant to Supreme Court Rule 304(b)(5), which makes appealable, without the necessity of a special finding by the court, orders 'finding a person or entity in contempt of court which imposes a monetary or other penalty.'")

Case Date Jurisidction State Cite Checked
2014-12-08 State IL

Chapter: 60.4

Case Name: In re Baytown Nissan Inc. v. Gray, No. 01-14-00704-CV, 2014 Tex. App. LEXIS 12197 (Tex. Ct. App. Nov. 7, 2014)
(granting a writ of mandamus, and holding that the privilege did not protect communications between a lawyer for an automobile dealer and the general counsel of a dealer association; also finding that the association general counsel was not a "representative" of the dealer for work product purposes; "In particular, mandamus relief is appropriate to protect confidential and privileged information from discovery. . . . An appeal is inadequate when a trial court erroneously orders the production of confidential information or privileged documents.")

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

Chapter: 60.4

Case Name: Empire West Title Agency, L.L.C. v. Talamante, No. CV-13-0268-PR, 2014 Ariz. LEXIS 97 (Ariz. May 7, 2014)
(allowing an interlocutory appeal)

Case Date Jurisidction State Cite Checked
2014-05-07 State AZ

Chapter: 60.4

Case Name: Montanez v. Publix Super Markets, Inc., Case No. 5D13-3848, 2014 Fla. App. LEXIS 4604, at *6 (Fla. Dist. Ct. App. Mar. 28, 2014)
May 21, 2014 (PRIVILEGE POINT)

"Some States Continue to Allow Interlocutory Review of Adverse Privilege Decisions"

Over the past several years, federal courts have severely curtailed the availability of interlocutory review of district courts' denial of privilege or work product claims. Justice Sotomayor's first Supreme Court opinion eliminated the availability of a collateral order doctrine interlocutory appeal. Mohawk Indus. Inc. v. Carpenter, 558 U.S. 100 (2009). In most situations, federal court litigants ordered to produce protected documents must rely on the rarely-available mandamus procedure to seek interlocutory review.

In contrast, many states continue to allow interlocutory reviews. In Montanez v. Publix Super Markets, Inc., the court granted defendant's petition for writ of certiorari -- interlocutorily reversing a trial court's order compelling plaintiff to produce "her original handwritten responses to [defendant's] interrogatories." Case No. 5D13-3848, 2014 Fla. App. LEXIS 4604, at *6 (Fla. Dist. Ct. App. Mar. 28, 2014). In other states, it seems easier than in the federal courts to obtain mandamus relief. In Seahaus La Jolla Owners Ass’n v. Superior Court, 169 Cal. Rptr. 3d 390 (Cal. Ct. App. 2014), the court issued a writ of mandamus, reversing the trial court's denial of plaintiff homeowners association's privilege claim for communications between the association's lawyers and individual homeowners.

The general unavailability in federal court of interlocutory review dramatically raises the stakes in any trial court privilege or work product dispute. But many states have not followed the federal courts' lead in restricting such review.

Case Date Jurisidction State Cite Checked
2014-03-28 State FL
Comment:

key case


Chapter: 60.4

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

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

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

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

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

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

key case


Chapter: 60.4

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

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

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

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

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

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

key case


Chapter: 60.4

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

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

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

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

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

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

key case


Chapter: 60.4

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

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

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

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

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

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

key case


Chapter: 60.4

Case Name: Montanez v. Publix Super Markets, Inc., 135 So. 3d 510, 512 (Fla. Dist. Ct. App. 2014)
("An order that erroneously compels a party to produce privileged information is a classic example of a discovery order subject to certiorari review because the harm caused by the disclosure of privileged information is irreparable.")

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

Chapter: 60.4

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

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

Chapter: 60.4

Case Name: Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 621 (Nev. 2014)
("When the district court acts without or in excess of its jurisdiction, a writ of prohibition may issue to curb the extrajurisdictional act. . . . This case presents a situation where, if improperly disclosed, 'the assertedly privileged information would irretrievably lose its confidential and privileged quality and petitioners would have no effective remedy, even by later appeal.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-01 State NV B 7/14

Chapter: 60.4

Case Name: Seahaus La Jolla Owners Ass'n v. Superior Court, 196 Cal. Rptr. 3d 396, 398 (Cal. Ct. App. 2014)
(granting a petition of writ of mandamus to overturn a lower court's order compelling disclosure of privileged documents; "'Extraordinary review of a discovery order will be granted when a ruling threatens immediate harm, such as loss of a privilege against disclosure, for which there is no other adequate remedy.'" (citation omitted))

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

Chapter: 60.4

Case Name: Seahaus La Jolla Owners Ass’n v. Superior Court, 169 Cal. Rptr. 3d 390 (Cal. Ct. App. 2014)
May 21, 2014 (PRIVILEGE POINT)

"Some States Continue to Allow Interlocutory Review of Adverse Privilege Decisions"

Over the past several years, federal courts have severely curtailed the availability of interlocutory review of district courts' denial of privilege or work product claims. Justice Sotomayor's first Supreme Court opinion eliminated the availability of a collateral order doctrine interlocutory appeal. Mohawk Indus. Inc. v. Carpenter, 558 U.S. 100 (2009). In most situations, federal court litigants ordered to produce protected documents must rely on the rarely-available mandamus procedure to seek interlocutory review.

In contrast, many states continue to allow interlocutory reviews. In Montanez v. Publix Super Markets, Inc., the court granted defendant's petition for writ of certiorari -- interlocutorily reversing a trial court's order compelling plaintiff to produce "her original handwritten responses to [defendant's] interrogatories." Case No. 5D13-3848, 2014 Fla. App. LEXIS 4604, at *6 (Fla. Dist. Ct. App. Mar. 28, 2014). In other states, it seems easier than in the federal courts to obtain mandamus relief. In Seahaus La Jolla Owners Ass’n v. Superior Court, 169 Cal. Rptr. 3d 390 (Cal. Ct. App. 2014), the court issued a writ of mandamus, reversing the trial court's denial of plaintiff homeowners association's privilege claim for communications between the association's lawyers and individual homeowners.

The general unavailability in federal court of interlocutory review dramatically raises the stakes in any trial court privilege or work product dispute. But many states have not followed the federal courts' lead in restricting such review.

Case Date Jurisidction State Cite Checked
2014-01-01 State CA
Comment:

key case


Chapter: 60.4

Case Name: Smith v. Chen, 2013-Ohio-4931, at ¶ 11 (Ohio Ct. App. 2013)
("As the order at issue determined that the surveillance video was attorney work-product subject to discovery for good cause, it is a final appealable order which this court may properly review.")

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

Chapter: 60.4

Case Name: Adler v. Greenfield, 990 N.E.2d 1219, 1230 (Ill. App. Ct. 2013)
("Generally, a trial court's discovery orders are not appealable because they are not final orders. . . . However, 'it is well settled that the correctness of a discovery order may be tested through contempt proceedings.' . . . When a party appeals civil contempt sanctions imposed for violating a pretrial discovery order, review of the contempt finding necessarily requires review of the order on which it was based.")

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

Chapter: 60.4

Case Name: Chambers v. Gold Medal Bakery, Inc., 983 N.E.2d 683, 688-89 (Mass. 2013)
(holding that directors whose interests are adverse to the corporation's interest cannot rely on their role as shareholders or on the Garner (Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970)) doctrine to obtain privileged corporate documents; "The case comes before us on an interlocutory appeal from the order requiring RKMC [law firm serving as defendant's corporate counsel] to produce documents described in the plaintiff's subpoena. We granted the plaintiff's application for direct appellate review to consider whether their status as director-shareholders entitles them to access to the requested information, or whether the defendants and their counsel and accountants may assert attorney-client privilege or work product protection to prevent disclosure.")

Case Date Jurisidction State Cite Checked
2013-01-01 State MA B 3/14

Chapter: 60.4

Case Name: Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 375 (Pa. Super. Ct. 2012)
("Our Supreme Court has recently held that orders overruling claims of privilege and requiring disclosure are immediately appealable. . . . Likewise, this Court has recently held that appeals from orders granting discovery in the face of colorable claims of attorney-client privilege are appealable under the collateral order doctrine.")

Case Date Jurisidction State Cite Checked
2012-01-01 State PA B 1/13

Chapter: 60.4

Case Name: In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 96 (Tex. Ct. App. 2012)
(issuing a mandamus to reverse a lower court's order that would have required the disclosure of privileged communications; "Because the erroneous disclosure of privileged information will materially affect relator's rights, relator does not have an adequate remedy by appeal.")

Case Date Jurisidction State Cite Checked
2012-01-01 State TX B 5/13

Chapter: 60.4

Case Name: In re Exxon Mobil Corp., 389 S.W.3d 577, 580 (Tex. Ct. App. 2012)
(granting a petition of writ of mandamus and, reversing a trial court order that would have required the disclosure of privileged communication; "When a trial court erroneously orders production of privileged documents, the harm resulting from having privileged documents inspected, examined, and reproduced cannot be remedied by appeal.")

Case Date Jurisidction State Cite Checked
2012-01-01 State TX B 7/13

Chapter: 60.4

Case Name: Collins v. Braden, 384 S.W.3d 154, 158 (Ky. 2012)
("[R]emedy by a writ of prohibition is available to a petitioner claiming the potential violation of a privilege.")

Case Date Jurisidction State Cite Checked
2012-01-01 State KY B 12/13

Chapter: 60.4

Case Name: Mohawk Indus. Inc. v. Carpenter, 558 U.S. 100 (2009)
May 21, 2014 (PRIVILEGE POINT)

"Some States Continue to Allow Interlocutory Review of Adverse Privilege Decisions"

Over the past several years, federal courts have severely curtailed the availability of interlocutory review of district courts' denial of privilege or work product claims. Justice Sotomayor's first Supreme Court opinion eliminated the availability of a collateral order doctrine interlocutory appeal. Mohawk Indus. Inc. v. Carpenter, 558 U.S. 100 (2009). In most situations, federal court litigants ordered to produce protected documents must rely on the rarely-available mandamus procedure to seek interlocutory review.

In contrast, many states continue to allow interlocutory reviews. In Montanez v. Publix Super Markets, Inc., the court granted defendant's petition for writ of certiorari -- interlocutorily reversing a trial court's order compelling plaintiff to produce "her original handwritten responses to [defendant's] interrogatories." Case No. 5D13-3848, 2014 Fla. App. LEXIS 4604, at *6 (Fla. Dist. Ct. App. Mar. 28, 2014). In other states, it seems easier than in the federal courts to obtain mandamus relief. In Seahaus La Jolla Owners Ass’n v. Superior Court, 169 Cal. Rptr. 3d 390 (Cal. Ct. App. 2014), the court issued a writ of mandamus, reversing the trial court's denial of plaintiff homeowners association's privilege claim for communications between the association's lawyers and individual homeowners.

The general unavailability in federal court of interlocutory review dramatically raises the stakes in any trial court privilege or work product dispute. But many states have not followed the federal courts' lead in restricting such review.

Case Date Jurisidction State Cite Checked
2009-01-01 Federal
Comment:

key case


Chapter: 60.6

Case Name: Sherwin-Williams Co. v. Motley Rice, L.L.C., 2013-Ohio-3233, at ¶ 11 (Ohio Ct. App. 2013)
(analyzing the Ohio work product rule, which applies the same standard for all common fact and opinion work product; "Therefore, unlike the federal rule and case law, it appears that Ohio has made no distinction regarding work product and opinion work product -- 'attorney work product' may be discoverable upon a showing of good cause, (1) that it is directly at issue in the case, (2) there is a compelling need for the information, and (3) the evidence cannot be obtained elsewhere. Therefore, whether work product is classified as 'opinion' or 'factual' is of no consequence for our analysis in this case. Accordingly, our review of this case is for an abuse of discretion.")

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

Chapter: 60.201

Case Name: United States v. Myers, 593 F.3d 338, 348 & n.15 (4th Cir. 2010)
("She has argued that her closed case files are privileged but has consistently refused to allow the court to evaluate whether the privilege applies. Myers cannot adjudicate her own Fifth Amendment claim. Rather, the district court must evaluate her claim in the first instance. See In re Three Grand Jury Subpoenas, Dated Jan. 5, 1988, 847 F.2d 1024, 1028-29 (2d Cir. 1988) (finding that the Fifth Amendment does not protect refusal to produce documents for in camera inspection). We will not consider her Fifth Amendment claim until the district court has had the opportunity. Myers does not waive her Fifth Amendment privilege or opportunity for review simply by turning over items for privilege review.")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal

Chapter: 60.202

Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2017 U.S. Dist. LEXIS 36816 (D.D.C. March 15, 2017)
(denying a stay of a privilege issue pending appeal; "Over seven years ago, the Federal Trade Commission ('FTC') petitioned this Court for an order instructing Boehringer Ingelheim Pharmaceuticals, Inc. ('Boehringer') to comply with a subpoena to produce documents for an ongoing FTC investigation. Following a decision from this Court, an appeal to and remand from the D.C. Circuit, and another decision from this Court consistent with the D.C. Circuit's guidance, Boehringer now moves to stay the Court's most recent Order 'until all appeals, including any appeal to the United States Supreme Court, have been resolved.'. . . Boehringer's Motion to Stay Production of Privileged Documents Pending Appeal is now ripe for adjudication. Based on a review of the relevant submissions and for the reasons set out below, Boehringer's motion for a stay is hereby DENIED."; "For the reasons stated above, the Court will deny Boehringer's Motion to Stay Production of Privileged Documents Pending Appeal [Dkt. 109]. However, the Court will stay Boehringer's compliance with the Court's September 27, 2016 Memorandum Opinion and Order pending it seeking a stay in the D.C. Circuit, and the Circuit's consideration of any such request. Boehringer has until March 22, 2017 to seek such a stay. Absent it doing so on or before that date, Boehringer must immediately comply with this Court's September 27, 2016 Memorandum Opinion and Order.")

Case Date Jurisidction State Cite Checked
2017-03-15 Federal DC

Chapter: 60.202

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding the common interest protected communications between two companies deciding whether to settle a patent infringement, but did not protect communications about allocation of a settlement payment between them, or their communications about how to keep generics out of the market; "Endo bore the cost of the Watson litigation and Teikoku's obligation to split costs for the proposed settlement was voluntary and a matter of, as its counsel said, 'good business.' That was certainly not the case in Arkema [Arkema Inc. v. Asarco, Inc., No. C05-5087 RBL, 2006 U.S. Dist. LEXIS 44106, 2006 WL 1789044 (W.D. Wash. June 27, 2006)] or Roper [Roper v. Old Republic Ins. Co., No. 09-C-154, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *1 (E.D. Wis. Feb. 1, 2010)], where the parties acknowledge joint fault and agreed to arbitrations specifically to allocate their various liabilities. Also, as recognized by both decisions, the arbitration proceedings and ultimate decisions were initiated after the underlying claims arose. The arbitrations, therefore, were 'internal' to the defense and not relevant to the underlying litigation. Roper, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *2; Arkema, 2006 U.S. Dist. LEXIS 44106, 2006 WL 2254478, at *2. This case is different, where the reasons that Endo and Teikoku entered into the Watson settlement are central to the merits of this case."; "As I noted in my prior ruling, the statements at issue must be in furtherance of the strategy with respect to the joint litigation in order to be covered by the common interest privilege. . . . As shown by the evidence before me, the comments at issue in the February 2, 2012, email regarding the cost split between Endo and Teikoku cannot have been in furtherance of the parties' joint strategy with Watson where: (i) Endo bore the costs of the Watson litigation; (ii) Teikoku decided to pay for some of the costs of the Watson settlement as a business matter; (iii) Endo made a substantial settlement offer prior to the February 2nd email; (iv) additional offers were made before the May 9, 2012, agreement in principle between Endo and Teikoku; and (v) significant aspects of the settlement between Endo and Teikoku were being negotiated well after the May 29, 2012, settlement with Watson. The factual predicate of this case is much more similar to cases finding that although parties might have a common interest, for example in the validity of patents being negotiated for sale, negotiations of those own parties' "'rights and re protected, as the parties' interests would have been adverse rather than common.'"; "I agree with Endo that there is substantial ground for difference of opinion on whether the common interest privilege -- that I have already found protects against disclosure of joint strategy discussions between Endo and Teikoku about the potential settlement with Watson -- extends to separate discussions between those parties concerning how the costs of settlement would be split. However, that narrow question is not a 'controlling question of law' on the merits of this case, nor is it apparent that immediate determination of that issue would materially advance the ultimate termination of the litigation. The request for certification for interlocutory appeal is DENIED. However, in order to allow Endo to seek mandamus relief from the Ninth Circuit, defendants need not produce the information at issue for thirty days (30) from the date of this Order, absent further order from the Ninth Circuit.")

Case Date Jurisidction State Cite Checked
2016-03-07 Federal CA
Comment:

key case


Chapter: 60.202

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969, at *46 (N.D. Cal. Mar. 7, 2016)
(granting time for a litigant to seek mandamus relief; "However, in order to allow Endo to seek mandamus relief from the Ninth Circuit, defendants need not produce the information at issue for thirty days (30) from the date of this Order, absent further order from the Ninth Circuit.")

Case Date Jurisidction State Cite Checked
2016-03-07 Federal CA B 8/16

Chapter: 60.202

Case Name: United States v. Christensen, No. 08-50531, No. 08-50570, No. 09-50115, No. 09-50125, No. 09-50128, No. 09-50159, No. 10-50434, No. 10-50462, No. 10-50464, No. 10-50472, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015)
("Neither Christensen nor Pellicano has presented a separate argument on appeal that the district court should have withheld the recordings or denied their admission into evidence based on the work product doctrine. Christensen's briefs referred to the attorney work product doctrine only to support his argument that he had standing to object to the seizure of the recordings. Pellicano's briefs made no reference to the doctrine whatsoever. They have, therefore, waived the issue on appeal.")

Case Date Jurisidction State Cite Checked
2015-08-25 Federal

Chapter: 60.202

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 Jurisidction State Cite Checked
2014-04-28 Federal NY
Comment:

key case


Chapter: 60.202

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 Jurisidction State Cite Checked
2014-04-02 Federal NY
Comment:

key case


Chapter: 60.202

Case Name: Clay v. Consol Pa. Coal Co., Civ. A. No. 5:12CV92, 2013 U.S. Dist. LEXIS 137556, at *4 (N.D. W. Va. Sept. 25, 2013)
(denying a stay pending appeal; "[U]nder the law of the United States Court of Appeals for the Fourth Circuit, the appealing party does not secure a stay merely by initiating the appeal and moving for a stay. The Fourth Circuit has stated that a party seeking a stay must show: '(1) that he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-09-25 Federal WV B 4/14

Chapter: 60.302

Case Name: Cave Consulting Group, Inc. v. OptumInsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 179944 (N.D. Cal. Dec. 29, 2016)
(holding that disclosing privileged communications to the U.S. PTO waived privilege protection; certifying an interlocutory appeal; "A district court may certify an interlocutory order for appeal upon the determination that it 'involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.' 28 U.S.C. § 1292(b). Interlocutory appeal is 'applied sparingly and only in exceptional cases.'. . . Matters of attorney-client privilege may, however, warrant interlocutory appeal under § 1292(b) where 'a privilege ruling involves a new legal question or is of special consequence, and district courts should not hesitate to certify an interlocutory appeal in such cases.' Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009).")

Case Date Jurisidction State Cite Checked
2016-12-29 Federal CA

Chapter: 60.302

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding the common interest protected communications between two companies deciding whether to settle a patent infringement, but did not protect communications about allocation of a settlement payment between them, or their communications about how to keep generics out of the market; "Endo bore the cost of the Watson litigation and Teikoku's obligation to split costs for the proposed settlement was voluntary and a matter of, as its counsel said, 'good business.' That was certainly not the case in Arkema [Arkema Inc. v. Asarco, Inc., No. C05-5087 RBL, 2006 U.S. Dist. LEXIS 44106, 2006 WL 1789044 (W.D. Wash. June 27, 2006)] or Roper [Roper v. Old Republic Ins. Co., No. 09-C-154, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *1 (E.D. Wis. Feb. 1, 2010)], where the parties acknowledge joint fault and agreed to arbitrations specifically to allocate their various liabilities. Also, as recognized by both decisions, the arbitration proceedings and ultimate decisions were initiated after the underlying claims arose. The arbitrations, therefore, were 'internal' to the defense and not relevant to the underlying litigation. Roper, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *2; Arkema, 2006 U.S. Dist. LEXIS 44106, 2006 WL 2254478, at *2. This case is different, where the reasons that Endo and Teikoku entered into the Watson settlement are central to the merits of this case."; "As I noted in my prior ruling, the statements at issue must be in furtherance of the strategy with respect to the joint litigation in order to be covered by the common interest privilege. . . . As shown by the evidence before me, the comments at issue in the February 2, 2012, email regarding the cost split between Endo and Teikoku cannot have been in furtherance of the parties' joint strategy with Watson where: (i) Endo bore the costs of the Watson litigation; (ii) Teikoku decided to pay for some of the costs of the Watson settlement as a business matter; (iii) Endo made a substantial settlement offer prior to the February 2nd email; (iv) additional offers were made before the May 9, 2012, agreement in principle between Endo and Teikoku; and (v) significant aspects of the settlement between Endo and Teikoku were being negotiated well after the May 29, 2012, settlement with Watson. The factual predicate of this case is much more similar to cases finding that although parties might have a common interest, for example in the validity of patents being negotiated for sale, negotiations of those own parties' "'rights and re protected, as the parties' interests would have been adverse rather than common.'"; "I agree with Endo that there is substantial ground for difference of opinion on whether the common interest privilege -- that I have already found protects against disclosure of joint strategy discussions between Endo and Teikoku about the potential settlement with Watson -- extends to separate discussions between those parties concerning how the costs of settlement would be split. However, that narrow question is not a 'controlling question of law' on the merits of this case, nor is it apparent that immediate determination of that issue would materially advance the ultimate termination of the litigation. The request for certification for interlocutory appeal is DENIED. However, in order to allow Endo to seek mandamus relief from the Ninth Circuit, defendants need not produce the information at issue for thirty days (30) from the date of this Order, absent further order from the Ninth Circuit.")

Case Date Jurisidction State Cite Checked
2016-03-07 Federal CA
Comment:

key case


Chapter: 60.302

Case Name: Kettler Int'l, Inc. v. Starbucks Corp., Civ. A. No. 2:14cv189, 2015 U.S. Dist. 52310 (E.D. Va. April 14, 2015)
(declining to certify an appeal or stay a sanction order based on Starbuck's spoliation of several thousands of chairs for which it claimed breach of warranty against plaintiff Kettler)

Case Date Jurisidction State Cite Checked
2015-04-14 Federal VA

Chapter: 60.302

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *16 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "To be sure, a party in KBR's position may ask the district court to certify the privilege question for interlocutory appeal. . . . But that avenue is available only at the discretion of the district court. And here, the District Court denied KBR's request for certification.")

Case Date Jurisidction State Cite Checked
2014-06-27 Federal

Chapter: 60.302

Case Name: Santella v. Grizzly Indus., Inc. v. Sawstop, LLC, Case No. 3:12-mc-00131-SI, 2012 U.S. Dist. LEXIS 158348, at *7-8, *8 (D. Ore. Nov. 5, 2012)
(holding that a patent holder and a potential investor did not have a sufficiently common interest to enter into a common interest agreement; "SawStop also asked this Court, in the alternative, to certify the issue for appeal pursuant to 28 U.S.C. § 1292(b). A court may certify an issue if three requirements are met: (1) 'a controlling question of law' must be present; (2) there must be a 'substantial ground for difference of opinion' as to the controlling question; and (3) 'an immediate appeal from the order may materially advance the ultimate termination of the litigation.' See 28 U.S.C. § 1292(b)."; "SawStop makes no argument as to why this issue is appropriate for certification; further, the Court finds that immediate appeal will not 'materially advance the ultimate termination of the litigation.' See 28 U.S.C. § 1292(b).")

Case Date Jurisidction State Cite Checked
2012-11-05 Federal OR B 5/13

Chapter: 60.303

Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "A target of a discovery order can gain an immediate right of appeal by refusing to comply with a discovery order, being held in contempt by the district court, and then appealing the contempt order. . . . However, none of the parties to this appeal have been held in contempt.").

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

Chapter: 60.303

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *17 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "It is also true that a party in KBR's position may defy the district court's ruling and appeal if the district court imposes contempt sanctions for non-disclosure. But as this Court has explained, forcing a party to go into contempt is not an "adequate" means of relief in these circumstances.")

Case Date Jurisidction State Cite Checked
2014-06-27 Federal

Chapter: 60.303

Case Name: In re Grand Jury, 705 F.3d 133, 143 (3d Cir. 2012)
(holding that a company could not rely on the Perlman [Perlman v. United States, 247 U.S. 7 (1918)] doctrine to immediately appeal a court order requiring its law firm to produce privileged documents, because the company could retrieve the documents from the law firm, withhold them, and then appeal the contempt order; "A district court's contempt order is itself immediately appealable because it is a final judgment imposing penalties on the willfully disobedient witness in what is effectively a separate proceeding.")

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

Chapter: 60.303

Case Name: In re Grand Jury, 705 F.3d 133, 149 (3d Cir. 2012)
(holding that a company could not rely on the Perlman [Perlman v. United States, 247 U.S. 7 (1918)] doctrine to immediately appeal a court order requiring its law firm to produce privileged documents, because the company could retrieve the documents from the law firm, withhold them, and then appeal the contempt order; "We do, however, have jurisdiction to hear ABC Corp.'s appeal of the District Court's June Order. The contempt route is not open to ABC Corp. because the subpoena and subsequent Order were directed solely at the three former ABC Corp. in-house attorneys. There is also no basis to believe that these former employees are anything but disinterested third parties who are unlikely to stand in contempt to vindicate ABC Corp.'s alleged privilege.")

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

Chapter: 60.303

Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 348 (Ill. 2012)
(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "Defendants refused to comply with the court's order to compel production of documents and were found in contempt. Defendants appealed pursuant to Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010).")

Case Date Jurisidction State Cite Checked
2012-01-01 State IL B 8/13

Chapter: 60.303

Case Name: United States v. Myers, 593 F.3d 338, 344-45 & n.9 (4th Cir. 2010)
("Applying this rule, the Supreme Court has concluded that a party to litigation may not immediately appeal a civil-contempt order. See Fox v. Capital Co., 299 U.S. 105, 107, 57 S. Ct. 57, 81 L. Ed. 67 (1936) ('The rule is settled in this Court that except in connection with an appeal from a final judgment or decree, a party to a suit may not review upon appeal an order fining or imprisoning him for the commission of a civil contempt.'); Doyle v. London Guar. & Accident Co., 204 U.S. 599, 603, 27 S. Ct. 313, 51 L. Ed. 641 (1907); Carbon Fuel Co. v. United Mine Workers of Am., 517 F.2d 1348, 1349 (4th Cir. 1975). Therefore, because Myers has appealed a civil-contempt order issued in litigation brought against her, the final-judgment rule normally would bar this appeal. See United States v. Johnson, 801 F.2d 597, 599 (2d Cir. 1986) (holding that Fox applies to criminal defendants). Myers does not dispute this conclusion. Instead, she asserts jurisdiction under two exceptions to the final judgment rule. By contrast, criminal-contempt orders are immediately appealable, and a civil-contempt order may be immediately appealed by a nonparty. See 15B Charles Alan Wright et al., Federal Practice and Procedure § 3917 (2009).")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal

Chapter: 60.303

Case Name: United States v. Myers, 593 F.3d 338, 347 (4th Cir. 2010)
("Even though Myers has appealed a civil contempt order arising from a discovery order rather than the underlying discovery order itself, Mohawk clearly controls our decision. The Court made plain that delaying review for a challenge invoking the attorney-client privilege does not imperil any substantial public interest or other value enough to render the order being appealed 'effectively unreviewable on appeal from the final judgment in the underlying action.' [Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599, 175 L. Ed. 2d 458, 2009 WL 4573276 (2009)] 130 S. Ct. 599, 175 L. Ed. 2d 458, [WL] at 5.")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal

Chapter: 60.303

Case Name: United States v. Search of 235 S. Queen St., 319 F. App'x 197, 198, 200 (4th Cir. 2008) (unpublished opinion)
(dismissing a criminal defendant's interlocutory appeal seeking a review of a district court's order rejecting the defendant's privilege claim and ordering production of the allegedly privileged documents; "Because Appellant retains possession of the disputed documents and has not been cited with civil contempt for her refusal to turn them over, this case presents an interlocutory appeal over which we lack jurisdiction. Accordingly, we dismiss."; "Since Appellant retains possession and control over the disputed documents (making Perlman [Perlman v. United States, 247 U.S. 7 (1918)] inapplicable) and she has not been held in contempt for refusing to produce the documents, this court's precedent controls. . . . There can be no immediate review of the district court's order since it is part of an ongoing dispute and Appellant has not been held in contempt for her failure to comply.")

Case Date Jurisidction State Cite Checked
2008-01-01 Federal B 6/09; n B 7/10

Chapter: 60.304

Case Name: Apple Inc. v. Nokia Corp. v. Samsung, 5:11-cv-01846-LHK-PSG (Fed. Cir. App. June 1, 2016)
(declining to hear Samsung's appeal of an order requiring it to disclose privileged communications; "Samsung Electronics Co., Samsung Electronics America, Inc. and Samsung Telecommunications America, LLC (collectively, 'Samsung') appeal an order from the United States District Court for the Northern District of California, requiring Samsung to disclose privileged documents based on the district court's determination that Samsung had impliedly waived privilege over those documents by putting them at issue. . . . Because we do not have jurisdiction to review disclosure order implicating the attorney-client privilege under 28 U.S.C. § 1295(a)(1), which requires that there be a final decision of the district court, and because mandamus is not warranted at this time, we dismiss for lack of jurisdiction and decline to issue a writ of mandamus.")

Case Date Jurisidction State Cite Checked
2016-06-01 Federal CA

Chapter: 60.304

Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "[E]ven if Gorski [Plaintiff] is correct about the applicability of the law of the case doctrine -- an issue we do not decide -- the Court made it clear in Mohawk that the availability of collateral order review is determined by examining 'the class of claims, taken as a whole.'. . . As such, Mohawk held that parties are categorically barred from appealing privilege-related disclosure orders under the collateral order doctrine, notwithstanding the fact '[t]hat a fraction of orders adverse to the attorney-client privilege may nevertheless harm individual litigants in ways that are 'only imperfectly reparable.'").

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

Chapter: 60.304

Case Name: Johnson v. Smithkline Beecham Corp., Civ. No. 11-5782, 2015 U.S. Dist. LEXIS 65060 (E.D. Pa. May 19, 2015)
("An order compelling the disclosure of arguably privileged information is no longer an appealable collateral order.")

Case Date Jurisidction State Cite Checked
2015-05-19 Federal PA

Chapter: 60.304

Case Name: Scott v. Chappell, 547 F. App'x 815, 816 (9th Cir. 2013)
(finding that Mohawk did not prevent the Ninth Circuit from hearing a California state prison warden's appeal of a protective order sealing documents; "Scott [prisonor claiming ineffective assistance of counsel] first asserts that we lack jurisdiction over this appeal because the order does not constitute a final judgment. We disagree. We have long held that pursuant to the collateral order doctrine we have jurisdiction to hear appeals from protective orders in capital cases."; "Mohawk [Mohawk v Carpenter, 558 U.S. 100 (2009)] was concerned with ordinary civil litigation rather than with the arcane and tenebrific world of capital case habeas corpus litigation. Moreover, it dealt with orders adverse to the attorney-client privilege, and the order here was not adverse to that privilege.")

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

Chapter: 60.305

Case Name: In re Grand Jury Matter #3 John Doe, No. 15-2475, 2017 U.S. App. LEXIS 1498 (3rd Cir. Jan. 27, 2017)
("In this context, Perlman [Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L. Ed. 950 (1918)] provided appellate jurisdiction at the beginning of our case. The email before us was produced in response to a subpoena addressed exclusively to Doe's accountant, who 'lack[s] a sufficient stake in the proceeding to risk contempt.'. . . Indeed, the accountant gave the email to the Government without telling Doe, so Doe was 'powerless to avert the mischief.'. . . The Government contends, however, that we should no longer exercise jurisdiction because the first grand jury returned an indictment and the succeeding grand jury returned a superseding indictment."; "The grand jury proceedings have yet to conclude, however. On at least two occasions we have continued to exercise jurisdiction even after grand juries returned indictments."; "As long as we had jurisdiction at the outset, Doe's case is guided by our analysis of the Government's appeal in Johanson [See In re Grand Jury Proceedings, 632 F.2d 1033, 1040 (3d Cir. 1980) (citing 18 U.S.C. § 3731)] and by our decision in Fattah [In re Search of Elec. Commc'ns in the Account of chakafattah@gmail.com at Internet Serv. Provider Google, Inc., 802 F.3d 516, 521 n.2 (3d Cir. 2015)]. As in those cases, the indictment and superseding indictment did not destroy jurisdiction that properly existed beforehand. If the controversy is live enough that the case is not moot, we should decide it.")

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

Chapter: 60.305

Case Name: In re Grand Jury Matter 3 John Doe, No. 15-2475, 2016 U.S. App. LEXIS 19454 (3rd App. Oct. 28, 2016)
(over a lengthy dissent, holding that the court did not have jurisdiction as the third party holder of the allegedly privileged documents (an accountant) had already provided the privileged documents to the government; " disclosure orders are generally not final and cannot normally be challenged by an immediate, i.e. interlocutory, appeal."; "Three considerations generally justify this finality requirement. First, the finality rule 'helps preserve the respect due trial judges.' 'Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role [they] play[] in our judicial system.' Second, this requirement 'minimizes a party's opportunities to defeat the valid claims of his opponents through an endless barrage of appeals.' As Justice Frankfurter once explained, the finality rule 'avoid[s] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.' Lastly and relatedly, the rule promotes efficiency by removing obstacles that would otherwise impede judicial process. 'To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause.'"; "These concerns are especially robust in criminal cases."; "[D]isclosure orders are generally not final and cannot normally be challenged by an immediate, i.e. interlocutory, appeal."; "To obtain immediate appellate review of a disclosure order, the order's target must ordinarily comply with what is known as the 'contempt rule': He 'must refuse compliance, be held in contempt, and then appeal the contempt order.' The party may immediately appeal the district court's contempt order because that order is a final judgment imposing penalties on the willfully disobedient party in what is effectively a separate proceeding."; "Nevertheless, an exception to this contempt rule does exist for a limited class of parties. In Perlman v. United States [Perlman v. United States, 247 U.S. 7 (1918)], the Supreme Court declined to apply the contempt rule to a party who did not have control over the target of the district court's disclosure order."; "The Perlman exception generally applies to disclosure orders only when they are directed at disinterested third parties who lack sufficient stake in the proceedings to risk contempt. Examples of such disinterested third parties include former counsel or court clerks. However, where current counsel or employees hold the targeted documents, we have held that the party claiming the privilege can take possession of those documents, refuse to comply with a subpoena, and invite the sanction of contempt, which would then afford an avenue for appeal."; "In the present appeal, John Doe 1's accountant was an agent of John Doe 1. Therefore, John Doe 1 could have taken possession of the email in question and risked contempt sanctions himself."; "Two other courts of appeals have already examined the question of whether a party's inadvertent production of privileged documents disqualifies it from seeking the Perlman exception's protection; they reached different results."; "Similarly, the disclosure of the email to the grand jury prior to the indictment here undermines the very purpose of the Perlman exception. The grand jury has already seen the email at issue in this appeal. Deciding now that the disclosure of that email was improper will not repair the breach of confidentiality that already occurred: The jurors cannot un-see that email any more than the proverbial bell can be unrung. Therefore, in this case, immediate appeal is not required under Perlman."; "Any flaw in the grand jury proceedings stemming from the disclosure of the email can be corrected on appeal if the appellants are convicted."; "Here, the damage of disclosure has already been done, and considerations of finality and judicial efficiency dictate that we wait until the final appeal from conviction, should one occur, to decide the email issue. Should a jury convict the appellants, they will certainly have another, equally adequate, opportunity to present their privilege claims. Under the circumstances here, we hold that we lack jurisdiction to address this interlocutory appeal.")

Case Date Jurisidction State Cite Checked
2016-10-28 Federal

Chapter: 60.305

Case Name: Under Seal 1 v. United States (In re Grand Jury Subpoena), 642 F. App'x 223, 225 (4th Cir. 2016)
(analyzing the crime-fraud exception; "In Perlman v. United States, however, the Supreme Court made clear that courts may review immediately a discovery order directing a third party to produce exhibits that were the property of an appellant who claims immunity or privilege. 247 U.S. 7, 12-13, 38 S. Ct. 417, 62 L. Ed. 950 (1918). And in United States v. Jones, this Court, relying on Perlman, held that an order denying the motion of clients, who were targets of a grand jury investigation, to quash grand jury subpoenas issued to their attorneys, was immediately appealable. 696 F.2d 1069, 1071 (4th Cir. 1982). Based on Perlman and Jones, we have jurisdiction to review the ruling regarding the grand jury subpoena at issue here.")

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

Chapter: 60.305

Case Name: Drummond Co. v. Collingsworth, 816 F.3d 1319, 1323 (11th Cir. 2016)
("And a privilege holder can appeal from an order that directs a disinterested third party to produce materials over which the privilege holder claims a privilege of nondisclosure, if he would have no other means of appellate review.")

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

Chapter: 60.305

Case Name: Drummond Co. v. Collingsworth, 816 F.3d 1319, 1323, 1324, 1325, 1326, 1327, 1328 (11th Cir. 2016)
("But that concern arises only when the privilege holder is not a party to the underlying litigation from which the subpoena came."; "The critical question in Doe No. 1 [Doe No. 1 v. United States, 749 F.3d 999 (11th Cir. 2014)] and in this case is not to whom the disclosure order is directed; it is whether the privilege holder has some other adequate means of obtaining appellate review. In Doe No. 1 we exercised jurisdiction over the interlocutory appeal of a privilege-based disclosure order only after determining that '[a]bsent an interlocutory appeal, [the nonparty privilege holders] would be left with no recourse to appeal the disclosure order.'" (citation omitted); "Collingsworth's second attempt to distinguish Mohawk [Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009)] points out that his challenge to the district court's disclosure order is based on the work product privilege instead of the attorney-client privilege, which was involved in Mohawk. He insists that requiring him to wait until after final judgment to appeal the disclosure order will force him to expose his mental impressions and legal strategies to Drummond, irreparably destroying the adversarial process in the underlying case."; "There is some difference between exposing attorney work product and exposing attorney client privilege, but we are not convinced that the difference favors more interlocutory protection for work product."; "Discovery orders generally do not present 'important questions' warranting collateral order review."; "Scarola [subpoenaed non-party] argues that this longstanding rule doesn't apply to him because he is a nonparty who cannot appeal from final judgment. We disagree."; "At least two of those other appellate options were available to Scarola in this case. Scarola could have refused to comply with the district court's disclosure order and then appealed after being cited for contempt. . . . Or he could have filed a petition for a writ of mandamus with us, which he did."; "In his response to the mandamus petition, the district court judge acknowledged that his disclosure order was 'incomplete for not explaining that the common-law protections for attorney work-product extend beyond the Federal Rules of Civil Procedure.' That may be so, but the central premise of his ruling was correct: the generalized, blanket assertion of work product privilege does not entitle Scarola to the wholesale protection from Drummond's subpoenas that he sought."; "Given the district court judge's explanation and his stated intent, we remand the case to the court so that Scarola can assert any work product privilege he may have on a specific, item-by-item basis, through a privilege log or other procedure the district court specifies, and the district court may rule on those assertions of privilege and enter any protective order it determines is appropriate.")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal

Chapter: 60.305

Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "[E]ven if Gorski [Plaintiff] is correct about the applicability of the law of the case doctrine -- an issue we do not decide -- the Court made it clear in Mohawk that the availability of collateral order review is determined by examining 'the class of claims, taken as a whole.'. . . As such, Mohawk held that parties are categorically barred from appealing privilege-related disclosure orders under the collateral order doctrine, notwithstanding the fact '[t]hat a fraction of orders adverse to the attorney-client privilege may nevertheless harm individual litigants in ways that are 'only imperfectly reparable.'").

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

Chapter: 60.305

Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "The rationale for Perlman is that when the target of a discovery order is a non-party, a party claiming the privilege cannot gain the right of appeal by itself refusing to produce discovery and being held in contempt. . . . Nor will the target of the discovery order allow itself to be held in contempt to obtain appellate review on behalf of the privilege-holder because the non-party 'presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.'"; "Legion's appeal presents a classic Perlman situation. The district court has ordered Mintz Levin, a non-party, to produce documents. Legion asserts attorney-client privilege over those documents, but it cannot bring an immediate challenge to that order by allowing itself to be held in contempt because it is not the target of the subpoena at issue. Nor does it seem that Mintz Levin has any intention of refusing to comply and therefore risking contempt. . . . Because Legion is a non-party, it cannot ensure that there would be any traditional final judgment from which to appeal, either. Legion is thus 'powerless to avert the mischief of the order,'. . . Unless we apply the Perlman exception and take appellate jurisdiction.").

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

Chapter: 60.305

Case Name: In re Grand Jury Subpoenas Dated March 2, 2015, 15-1976, 2015 U.S. App. LEXIS 17633 (2nd Cir. App. Oct. 6, 2015)
("First, we consider the issue of subject matter jurisdiction. . . . Several courts have noted tension between Perlman [Perlman v. United States, 247 U.S. 7, 13, 38 S. Ct. 417, 62 L. Ed. 950 (1918)] and Mohawk [Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S. Ct. 599, 175 L. Ed. 2d 458 (2009)]. . . . Several of our sister Circuits, meanwhile, conclude that Perlman may continue to permit non-party privilege holders to appeal in particular circumstances. . . . We need not decide whether Perlman would apply in the circumstances of this case, however, because the only restriction on jurisdiction here is a statutory and not a constitutional one. . . . As both sides urge us to reach the merits and it would be more efficient for us to do so, we assume we have jurisdiction to hear this appeal.").

Case Date Jurisidction State Cite Checked
2015-10-06 Federal

Chapter: 60.305

Case Name: In re Naranjo v. Page, No. 13-1382, No. 13-2018, 2014 U.S. App. LEXIS 18293, at *21, *22, *23, *24, *26 (4th Cir. Sept. 24, 2014)
("The Pages may not rely upon Perlman, as Perlman does not permit an appeal by the subpoena-target. Rather, Perlman has come to mean that a privilege-holder may step in and appeal when a disinterested subpoena target is about to relinquish the privileged documents. . . . In other words, Perlman has permitted a privilege-holder to move into the appeal in the subpoena-target's place."; "[P]rivilege-holders may invoke the Perlman exception if the subpoena-targets are truly disinterested. On the other hand, Naranjo and Payaguaje cannot invoke Perlman as a jurisdictional ground for their appeal if the Pages are not truly disinterested."; "On this record, we see at least three reasons to conclude that the Pages are not 'disinterested' in the Perlman sense."; "The Pages are not detached professionals who rendered disinterested services to the Ecuadorian Plaintiffs. Quite the contrary: they are alleged to have proactively assisted in a broad fraudulent effort engineered by their direct employer. In fact, given that the lawyers are alleged to have committed greater misdeeds than any attributed to the clients, the Pages might have a more substantial interest in keeping the documents confidential than do the Ecuadorian Plaintiffs. These circumstances alone would prevent us from calling the Pages 'disinterested.'")

Case Date Jurisidction State Cite Checked
2014-09-24 Federal

Chapter: 60.305

Case Name: In re Naranjo v. Page, No. 13-1382, No. 13-2018, 2014 U.S. App. LEXIS 18293, at*19-21 n.14 (4th Cir. Sept. 24, 2014)
("There is a substantial question as to whether Perlman is applicable here -- for several reasons. For one, we have never explicitly held that Perlman applies to ancillary proceedings. The parties have not cited a particular case applying Perlman in an appeal from an ancillary proceeding involving a non-party, and we know of none. For another, Perlman may no longer provide a viable rule in light of the Supreme Court's more recent decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 103, 130 S. Ct. 599, 175 L. Ed. 2d 458 (2009). . . . Mohawk might be read to say that interlocutory appeals concerning the discovery of privileged documents should not be permitted when the privilege-holder has other means to protect his privilege rights. . . . The Pages did not pursue a mandamus petition or a certification motion. Lastly, we note that the Pages have already turned over their privileged documents. Yet '[t]he premise of an interlocutory appeal in a case such as Perlman . . . Is that the holder of the information has yet to comply with the order. Interlocutory review permits a decision before the cat is out of the bag.' . . . . It strikes us as odd, then, that the appellants would invoke an exception principally meant to avoid 'letting the cat out of the bag' when the Pages have already done just that. In the end, we need not definitively resolve these doubts because, as explained below, we find that Perlman's requirements have not been met in this case -- even assuming that the exception may be invoked in a case like this one.")

Case Date Jurisidction State Cite Checked
2014-09-24 Federal

Chapter: 60.305

Case Name: Jane Doe No. 1 v. United States, No. 13-12923, 2014 U.S. App. LEXIS 7283 (11th Cir. April 18, 2014)
(finding that the Perlman doctrine applied outside a Grand Jury context; allowing interlocutory appeal; "The victims argue that we should not extend Perlman beyond an intervenor's appeal of a grand jury subpoena, but we decline to draw an arbitrary line. The victims' argument has an ipse dixit quality that is, because our Court has never before applied the Perlman doctrine outside of the grand jury context, we should not do so now. But we must ask instead whether applying the doctrine here makes sense."; "The logic of the Perlman doctrine applies with equal force in this appeal. Like a claimant objecting to a grand jury subpoena cannot challenge an indictment to remedy the disclosure of his privileged information, the intervenors cannot challenge a final judgment in this proceeding to remedy the disclosure of their plea negotiations. And the victims' petition, like a grand jury proceeding, is ancillary to a criminal investigation. The rights and remedies provided by the Act arise in a criminal prosecution and affect how the United States prosecutes that action."; "Absent an interlocutory appeal, the intervenors would be left with no recourse to appeal the disclosure order. The intervenors cannot defy the disclosure order and risk a contempt citation because the order is directed at the United States, which has expressed an intent to comply with the order."; "Because a crime victim's petition under the Act arises in a criminal action, the text of section 1292(b), which applies to a 'civil action,' renders a certification of this appeal unavailable. . . . And if the intervenors were to seek a writ of mandamus, it is unlikely that the disclosure order would amount to a 'judicial usurpation of power or a clear abuse of discretion' or "otherwise work[] a manifest injustice."; "The Supreme Court in Mohawk never cited Perlman nor discussed appeals by claimants of a privilege who are limited intervenors in a proceeding ancillary to a criminal investigation and seek to prevent the disclosure of information held by a disinterested party.")

Case Date Jurisidction State Cite Checked
2014-04-18 Federal

Chapter: 60.305

Case Name: Jane Doe No. 1 v. United States, No. 13-12923, 2014 U.S. App. LEXIS 7283 (11th Cir. April 18, 2014)
(finding that the Perlman doctrine applied outside a Grand Jury context; allowing interlocutory appeal; "The Perlman doctrine allows an intervenor to file an interlocutory appeal of an order denying a motion to quash a grand jury subpoena.")

Case Date Jurisidction State Cite Checked
2014-04-18 Federal

Chapter: 60.305

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 692, 686 (3d Cir. 2014)
(finding the Perlman doctrine applicable; analyzing the crime-fraud exception and applying a "furtherance" rather than "related to" standard; concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "[U]nder Perlman v. United States, 247 U.S. 7 . . . (1918), a privilege holder may immediately appeal an adverse disclosure order when the privileged information is controlled by a 'disinterested third party who is likely to disclose that information rather than be held in contempt for the sake of an immediate appeal.' [In re Grand Jury, 705 F.3d 133 (3d Cir. 2012)] Attorney is a disinterested third party controlling allegedly privileged information. As such, this Court has jurisdiction to hear the appeal brought by Intervenors, the privilege holders.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 60.305

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 686-87 (3d Cir. 2014)
("[U]nder Perlman v. United States, 247 U.S. 7 . . . (1918), a privilege holder may immediately appeal an adverse disclosure order when the privileged information is controlled by a 'disinterested third party who is likely to disclose that information rather than be held in contempt for the sake of an immediate appeal.' In re Grand Jury, 705 F.3d at 138 [705 F.3d 133 (3d Cir. 2012]. Attorney is a disinterested third party controlling allegedly privileged information. As such, this Court has jurisdiction to hear the appeal brought by Intervenors, the privilege holders.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 60.305

Case Name: United States v. Copar Pumice Co., 714 F.3d 1197, 1208, 1208-09 (10th Cir. 2013)
(declining to hear an interlocutory appeal of a privilege issue; finding Cohen (Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)) and Perlman (Perlman v. United States, 247 U.S. 7 (1918)) inapplicable and denying mandamus relief; "Even if we were not bound by our precedent limiting Perlman to criminal grand jury proceedings, the persuasiveness of the cases relied upon by Defendants to extend Perlman here -- a civil action where the privilege holder is a party -- is greatly undermined, if not entirely foreclosed, by Mohawk [Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009)]."; "Unlike the privilege holder in Krane [United States v. Krane, 625 F.3d 568 (9th Cir. 2010)], Defendants are parties to civil litigation and can appeal any allegedly erroneous rulings after entry of the final judgment, which the Supreme Court has confirmed as generally sufficient in the attorney-client privilege context."; "Even if we were to disregard the Supreme Court's decision in Mohawk, Perlman would still not apply here because this court has previously held that Perlman only applies when 'any other review' is otherwise impossible. . . . Because Defendants, as civil litigants, have other review available, they cannot immediately appeal the discovery orders at issue under the Perlman doctrine. Given this court's narrow interpretation of Perlman, we do not have jurisdiction under the Perlman doctrine.")

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

Chapter: 60.305

Case Name: In re Sealed Case, 716 F.3d 603, 609, 611 (D.C. Cir. 2013)
(finding the Perlman (Perlman v. United States, 247 U.S. 7 (1918)) doctrine inapplicable, and declining to hear an interlocutory appeal of a privilege issue; "The Perlman doctrine permits appeals from some decisions that are not final but that allow the disclosure of property or evidence over which the appellant asserts a right or privilege."; "We hold that DiBella [DiBella v. United States, 369 U.S. 121 (1962)] is the exclusive test for determining whether we have jurisdiction over appeals from orders denying Rule 41(g) motions. To use Perlman to find jurisdiction here would threaten to swallow DiBella's carefully reasoned limitation on Rule 41(g) appeals. The DiBella test prohibits appeals after an indictment has issued. . . . By contrast, even a movant who has been indicted may be able to avail himself of the Perlman doctrine. . . . Thus, extending Perlman to appeals from orders denying Rule 41(g) motions would allow appellate courts to exercise jurisdiction over those appeals even when the movant's attempts to recover the property are 'tied to a criminal prosecution in esse' for the purposes of DiBella. Given the concerns the Supreme Court expressed about 'disruption to the conduct of a criminal trial,'. . . we are hesitant to recognize this end-run around the jurisdictional limitations in DiBella."; "We would be ill-advised to expand Perlman's scope because its 'Delphic' language is capable of capturing a broad swathe of district court orders without the indicia of finality. The danger of applying the Perlman rationale too readily is that Perlman itself 'does not wrestle with the broad policy issues [relating to finality] which perhaps had to await Cobbledick [Cobbledick v. United States, 309 U.S. 323 (1940)] to be adequately disclosed.' In re Oberkoetter, 612 F.2d 15, 18 (1st Cir. 1980), overruled on other grounds by In re Grand Jury Subpoenas, 123 F.3d 695, 697 (1st Cir. 1997)."; "Because we hold that the Perlman doctrine does not apply to appeals from orders denying Rule 41(g) motions, it cannot afford this court jurisdiction over this appeal.")

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

Chapter: 60.305

Case Name: In re Grand Jury, Nos. 12-1697 & -2878, 2012 U.S. App. LEXIS 25318 (3d Cir. Dec. 11, 2012)
February 6, 2013 (PRIVILEGE POINT)

"Third Circuit Restricts Interlocutory Appeals of Unfavorable Privilege Rulings"

Appellate courts traditionally allowed several options for seeking interlocutory appeals of trial court rulings ordering the disclosure of privileged communications or documents. Those courts recognized the "cat out of the bag" impact of such rulings, which usually cannot be fully remedied in a normal post-trial appeal. However, in 2009 the United States Supreme Court signaled disapproval of such interlocutory appeals, by eliminating the "collateral order" type of interlocutory appeals on such privilege issues. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).

In In re Grand Jury, Nos. 12-1697 & -2878, 2012 U.S. App. LEXIS 25318 (3d Cir. Dec. 11, 2012), the Third Circuit continued this trend. It analyzed another route to an interlocutory appeal, called the Perlman doctrine. Perlman v. United States, 247 U.S. 7 (1918). Under that approach, the privilege's owner can file an interlocutory appeal if a court orders disclosure of the owner's privileged communications that are in a third party's possession – under the theory that the third party will not be inclined to ignore the order and be held in contempt (which normally can be immediately appealed). In Grand Jury, the documents were in the possession of the company's outside law firms (including Blank Rome). Relying on the client's power to retrieve its documents from its lawyers, the Third Circuit held that the company could obtain its documents from Blank Rome, ignore a trial court order requiring their production, and then immediately appeal the resulting contempt order.

Although ignoring a court's order to disclose privileged documents normally makes an interlocutory appeal available, that route has obvious atmospheric and public relations drawbacks.

Case Date Jurisidction State Cite Checked
2012-12-11 Federal
Comment:

key case


Chapter: 60.305

Case Name: In re Grand Jury, 705 F.3d 133, 145-46 (3d Cir. 2012)
(holding that a company could not rely on the Perlman [Perlman v. United States, 247 U.S. 7 (1918)] doctrine to immediately appeal a court order requiring its law firm to produce privileged documents, because the company could retrieve the documents from the law firm, withhold them, and then appeal the contempt order; "[W]e decline to hold that the Supreme Court narrowed the Perlman doctrine -- at least in the grand jury context--sub silentio. . . . The Supreme Court has not subsequently suggested that Perlman's status as a grand jury subject would today deny him immediate appellate review and the Mohawk [Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009)] Court gave no clear indication that this was a consequence of its intended holding. It did not discuss, mention, or even cite Perlman, a fact that is not that surprising given that the Perlman doctrine and the collateral order doctrine recognize separate exceptions to the general rule of finality under § 1291.")

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

Chapter: 60.305

Case Name: In re Grand Jury, 705 F.3d 133, 138 (3d Cir. 2012)
(holding that a company could not rely on the Perlman doctrine to immediately appeal a court order requiring its law firm to produce privileged documents, because the company could retrieve the documents from the law firm, withhold them, and then appeal the contempt order; "Disclosure orders are not normally immediately appealable final decisions. To obtain immediate appellate review, a privilege holder must disobey the court's order, be held in contempt, and then appeal the contempt order. That has not happened here. ABC Corp. argues nonetheless that it can appeal under an exception to the contempt rule established in Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L. Ed. 950 (1918). Under Perlman, a privilege holder may immediately appeal an adverse disclosure order when the traditional contempt route is unavailable to it because the privileged information is controlled by a disinterested third party who is likely to disclose that information rather than be held in contempt for the sake of an immediate appeal."; "We disagree that we have jurisdiction to hear ABC Corp.'s appeal from the March Order. It directs both ABC Corp. and the law firms to produce the withheld documents. While Blank Rome is in physical possession of them, it is holding them at the behest of ABC Corp. If ABC Corp. wants immediate appellate review, it can take possession of the documents, defy the disclosure Order, and appeal any resulting contempt sanctions. Because it has not yet taken these steps, we dismiss its appeal from the March Order for lack of appellate jurisdiction." (footnotes omitted))

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

Chapter: 60.305

Case Name: United States v. Myers, 593 F.3d 338, 345 & n.11 (4th Cir. 2010)
("Myers argues that the Perlman doctrine applies here because Judge Stamp's April 22, 2008, order directed a third party to provide the produced items to the government. As we have explained, however, that order falls outside the scope of our review because it could not have been the basis for the contempt order that Myers appeals. Her argument must therefore be rejected. As we noted earlier, Myers might have directly appealed the April 22, 2008, order under the Perlman doctrine. However, she chose not to do so.")

Case Date Jurisidction State Cite Checked
2010-01-01 Federal

Chapter: 60.305

Case Name: Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009)
February 6, 2013 (PRIVILEGE POINT)

"Third Circuit Restricts Interlocutory Appeals of Unfavorable Privilege Rulings"

Appellate courts traditionally allowed several options for seeking interlocutory appeals of trial court rulings ordering the disclosure of privileged communications or documents. Those courts recognized the "cat out of the bag" impact of such rulings, which usually cannot be fully remedied in a normal post-trial appeal. However, in 2009 the United States Supreme Court signaled disapproval of such interlocutory appeals, by eliminating the "collateral order" type of interlocutory appeals on such privilege issues. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).

In In re Grand Jury, Nos. 12-1697 & -2878, 2012 U.S. App. LEXIS 25318 (3d Cir. Dec. 11, 2012), the Third Circuit continued this trend. It analyzed another route to an interlocutory appeal, called the Perlman doctrine. Perlman v. United States, 247 U.S. 7 (1918). Under that approach, the privilege's owner can file an interlocutory appeal if a court orders disclosure of the owner's privileged communications that are in a third party's possession – under the theory that the third party will not be inclined to ignore the order and be held in contempt (which normally can be immediately appealed). In Grand Jury, the documents were in the possession of the company's outside law firms (including Blank Rome). Relying on the client's power to retrieve its documents from its lawyers, the Third Circuit held that the company could obtain its documents from Blank Rome, ignore a trial court order requiring their production, and then immediately appeal the resulting contempt order.

Although ignoring a court's order to disclose privileged documents normally makes an interlocutory appeal available, that route has obvious atmospheric and public relations drawbacks.

Case Date Jurisidction State Cite Checked
2009-01-01 Federal
Comment:

key case


Chapter: 60.305

Case Name: United States v. Search of 235 S. Queen St., 319 F. App'x 197, 198, 200 (4th Cir. 2008) (unpublished opinion)
(dismissing a criminal defendant's interlocutory appeal seeking a review of a district court's order rejecting the defendant's privilege claim and ordering production of the allegedly privileged documents; "Because Appellant retains possession of the disputed documents and has not been cited with civil contempt for her refusal to turn them over, this case presents an interlocutory appeal over which we lack jurisdiction. Accordingly, we dismiss."; "Since Appellant retains possession and control over the disputed documents (making Perlman [Perlman v. United States, 247 U.S. 7 (1918)] inapplicable) and she has not been held in contempt for refusing to produce the documents, this court's precedent controls. . . . There can be no immediate review of the district court's order since it is part of an ongoing dispute and Appellant has not been held in contempt for her failure to comply.")

Case Date Jurisidction State Cite Checked
2008-01-01 Federal B 6/09; n B 7/10

Chapter: 60.305

Case Name: United States v. Jones, 696 F.2d 1069, 1071 72 (4th Cir. 1982)
(permitting an immediate appeal by a party seeking to quash on grounds of privilege a subpoena directed to a third party)

Case Date Jurisidction State Cite Checked
1982-01-01 Federal

Chapter: 60.305

Case Name: Perlman v. United States, 247 U.S. 7 (1918)
February 6, 2013 (PRIVILEGE POINT)

"Third Circuit Restricts Interlocutory Appeals of Unfavorable Privilege Rulings"

Appellate courts traditionally allowed several options for seeking interlocutory appeals of trial court rulings ordering the disclosure of privileged communications or documents. Those courts recognized the "cat out of the bag" impact of such rulings, which usually cannot be fully remedied in a normal post-trial appeal. However, in 2009 the United States Supreme Court signaled disapproval of such interlocutory appeals, by eliminating the "collateral order" type of interlocutory appeals on such privilege issues. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).

In In re Grand Jury, Nos. 12-1697 & -2878, 2012 U.S. App. LEXIS 25318 (3d Cir. Dec. 11, 2012), the Third Circuit continued this trend. It analyzed another route to an interlocutory appeal, called the Perlman doctrine. Perlman v. United States, 247 U.S. 7 (1918). Under that approach, the privilege's owner can file an interlocutory appeal if a court orders disclosure of the owner's privileged communications that are in a third party's possession – under the theory that the third party will not be inclined to ignore the order and be held in contempt (which normally can be immediately appealed). In Grand Jury, the documents were in the possession of the company's outside law firms (including Blank Rome). Relying on the client's power to retrieve its documents from its lawyers, the Third Circuit held that the company could obtain its documents from Blank Rome, ignore a trial court order requiring their production, and then immediately appeal the resulting contempt order.

Although ignoring a court's order to disclose privileged documents normally makes an interlocutory appeal available, that route has obvious atmospheric and public relations drawbacks.

Case Date Jurisidction State Cite Checked
1918-01-01 Federal
Comment:

key case


Chapter: 60.306

Case Name: Logsdon v. BNSF Railway Co., 8:15CV232, 2017 U.S. Dist. LEXIS 59655 (D. Neb. April 19, 2017)
(holding that training materials were not protected by the attorney-client privilege; rejecting the defendant railroad's request for a court order under Rule 502 confirming that disclosure of the materials in the case did not waive the privilege, and inviting defendant to seek a mandamus; "After reviewing the railroad's submissions in support of its motion, the court finds--once again--that the railroad has failed to show the presentation materials are privileged. And except for Defendant's general assertion that other courts may hold differently on the issue, the railroad has failed to advance any argument that the training presentation documents must be kept from public view."; "The undersigned magistrate judge acknowledges that as to the type of documents at issue, application of the attorney-client privilege is a novel issue, with no Supreme Court or Circuit law cited by the parties or found by the court on the topic. But seeking a Rule 502(d) protection order is not the appropriate means of further delaying disclosure and dissemination of the documents. Rather, as to privilege rulings in a specific case, filing a writ of mandamus is the procedural mechanism for preserving the privilege pending appellate court review.")

Case Date Jurisidction State Cite Checked
2017-04-19 Federal NE

Chapter: 60.306

Case Name: Apple Inc. v. Nokia Corp. v. Samsung, 5:11-cv-01846-LHK-PSG (Fed. Cir. App. June 1, 2016)
(declining to hear Samsung's appeal of an order requiring it to disclose privileged communications; "Samsung Electronics Co., Samsung Electronics America, Inc. and Samsung Telecommunications America, LLC (collectively, 'Samsung') appeal an order from the United States District Court for the Northern District of California, requiring Samsung to disclose privileged documents based on the district court's determination that Samsung had impliedly waived privilege over those documents by putting them at issue. . . . Because we do not have jurisdiction to review disclosure order implicating the attorney-client privilege under 28 U.S.C. § 1295(a)(1), which requires that there be a final decision of the district court, and because mandamus is not warranted at this time, we dismiss for lack of jurisdiction and decline to issue a writ of mandamus.")

Case Date Jurisidction State Cite Checked
2016-06-01 Federal CA

Chapter: 60.306

Case Name: n re Queen's Univ., 820 F.3d 1287, 1291 (Fed. Cir. March 7, 2016)
(holding that the attorney-client privilege covered nonlawyer patent agents' communications relating to patent prosecution, but not relating to infringement opinions or communications about the sale or purchase of a patent; granting a writ of mandamus; "[A] writ of mandamus may be granted to overturn a district court order 'only when there has been a clear abuse of discretion or usurpation of judicial authority in the grant or denial of the order.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2016-03-07 Federal B 8/16

Chapter: 60.306

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 28969 (N.D. Cal. March 7, 2016)
(holding the common interest protected communications between two companies deciding whether to settle a patent infringement, but did not protect communications about allocation of a settlement payment between them, or their communications about how to keep generics out of the market; "Endo bore the cost of the Watson litigation and Teikoku's obligation to split costs for the proposed settlement was voluntary and a matter of, as its counsel said, 'good business.' That was certainly not the case in Arkema [Arkema Inc. v. Asarco, Inc., No. C05-5087 RBL, 2006 U.S. Dist. LEXIS 44106, 2006 WL 1789044 (W.D. Wash. June 27, 2006)] or Roper [Roper v. Old Republic Ins. Co., No. 09-C-154, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *1 (E.D. Wis. Feb. 1, 2010)], where the parties acknowledge joint fault and agreed to arbitrations specifically to allocate their various liabilities. Also, as recognized by both decisions, the arbitration proceedings and ultimate decisions were initiated after the underlying claims arose. The arbitrations, therefore, were 'internal' to the defense and not relevant to the underlying litigation. Roper, 2010 U.S. Dist. LEXIS 8350, 2010 WL 424598, at *2; Arkema, 2006 U.S. Dist. LEXIS 44106, 2006 WL 2254478, at *2. This case is different, where the reasons that Endo and Teikoku entered into the Watson settlement are central to the merits of this case."; "As I noted in my prior ruling, the statements at issue must be in furtherance of the strategy with respect to the joint litigation in order to be covered by the common interest privilege. . . . As shown by the evidence before me, the comments at issue in the February 2, 2012, email regarding the cost split between Endo and Teikoku cannot have been in furtherance of the parties' joint strategy with Watson where: (i) Endo bore the costs of the Watson litigation; (ii) Teikoku decided to pay for some of the costs of the Watson settlement as a business matter; (iii) Endo made a substantial settlement offer prior to the February 2nd email; (iv) additional offers were made before the May 9, 2012, agreement in principle between Endo and Teikoku; and (v) significant aspects of the settlement between Endo and Teikoku were being negotiated well after the May 29, 2012, settlement with Watson. The factual predicate of this case is much more similar to cases finding that although parties might have a common interest, for example in the validity of patents being negotiated for sale, negotiations of those own parties' "'rights and re protected, as the parties' interests would have been adverse rather than common.'"; "I agree with Endo that there is substantial ground for difference of opinion on whether the common interest privilege -- that I have already found protects against disclosure of joint strategy discussions between Endo and Teikoku about the potential settlement with Watson -- extends to separate discussions between those parties concerning how the costs of settlement would be split. However, that narrow question is not a 'controlling question of law' on the merits of this case, nor is it apparent that immediate determination of that issue would materially advance the ultimate termination of the litigation. The request for certification for interlocutory appeal is DENIED. However, in order to allow Endo to seek mandamus relief from the Ninth Circuit, defendants need not produce the information at issue for thirty days (30) from the date of this Order, absent further order from the Ninth Circuit.")

Case Date Jurisidction State Cite Checked
2016-03-07 Federal CA
Comment:

key case


Chapter: 60.306

Case Name: In re JPMorgan Chase Bank, N.A., No. 14-8015, 2015 U.S. App. LEXIS 14721 (1st Cir. App. Aug. 21, 2015)
("[W]e conclude that Chase cannot satisfy the demanding mandamus standard where there is such uncertainty as to the applicability of the disclosure limitations to parties like the name plaintiffs.")

Case Date Jurisidction State Cite Checked
2015-08-21 Federal

Chapter: 60.306

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "A writ of mandamus requires that: (1) the mandamus petitioner have 'no other adequate means to attain the relief he desires;' (2) the mandamus petitioner show that its right to the writ is 'clear and indisputable;' and (3) the court, 'in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.'")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal

Chapter: 60.306

Case Name: Las Vegas Sands Corp. v. The Eighth Judicial Dist. Court of the State of Nevada, No. 63444, 2014 Nev. LEXIS 81 (Nev. Aug. 7, 2014)
(granting a petition for writ of mandamus, and holding that a former CEO should not be given access to privileged communications to which he had access when he was employed, and which he took with him when he left the company; "In this opinion, we consider whether a former chief executive officer of a corporation, who is now suing his former employer, is within a 'class of persons' entitled to access the corporation's privileged documents for use in the litigation. We conclude that a corporation's current management is the sole holder of its attorney-client privilege, and thus, Nevada law does not allow for a judicially created class of persons exception to attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-08-07 State NV

Chapter: 60.306

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *18 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "[T]he first condition for mandamus -- no other adequate means to obtain relief -- will often be satisfied in attorney-client privilege cases.")

Case Date Jurisidction State Cite Checked
2014-06-27 Federal

Chapter: 60.306

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *4 (D.C. Cir. June 27, 2014)
(granting a petition for writ of mandamus and vacating a lower court's holding that the privilege did not protect documents created during an internal corporate investigation of possible foreign wrongdoing; holding among other things that a privilege applied to an investigation if one "significant purpose" was the collection of facts lawyers required to give legal advice; "The threshold question is whether the District Court's privilege ruling constituted legal error. If not, mandamus is of course inappropriate. If the District Court's ruling was erroneous, the remaining question is whether that error is the kind that justifies mandamus.")

Case Date Jurisidction State Cite Checked
2014-06-27 Federal

Chapter: 60.306

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; "So little mandamus-specific analysis is present in Clemens's Motion to Stay that the Court recognized an entire argument as being a veritable hodgepodge of identical sentences in Clemens's motion for reconsideration and his Rule 72 motion.")

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

Chapter: 60.306

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 866 (Tex. Ct. App. 2013)
("Mandamus is proper when the trial court erroneously orders the disclosure of privileged information because the trial court's error cannot be corrected on appeal."; conditionally granting a mandamus petition)

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

Chapter: 60.306

Case Name: United States v. Copar Pumice Co., 714 F.3d 1197, 1210 (10th Cir. 2013)
(declining to hear an interlocutory appeal of a privilege issue; finding Cohen (Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)) and Perlman (Perlman v. United States, 247 U.S. 7 (1918)) inapplicable and denying mandamus relief; "Generally, before a writ of mandamus may issue, the petitioner must satisfy three conditions: the party seeking writ must have no other adequate means for relief sought, the party's right to the writ must be clear and undisputable, and the issuing court must be satisfied that the writ is appropriate. . . . When a writ of mandamus implicates the discovery of privileged information, two factors must first be established: 'disclosure of the allegedly privileged or confidential information renders impossible any meaningful appellate review of the claim of privilege or confidentiality'; and 'the disclosure involves questions of substantial importance to the administration of justice.'"; "Defendants have satisfied neither requirement." (citation omitted))

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

Chapter: 60.306

Case Name: In re Shared Memory Graphics LLC, Misc. Dkt. 978, 2011 U.S. App. LEXIS 19414 (Fed. Cir. App. Sept. 22, 2011)
("A request for mandamus relief is determined under Federal Circuit law, except to the extent that underlying procedural issues may be governed by the law of the regional circuit, which in this case is the law of the Ninth Circuit. . . . Motions to disqualify under the law of that circuit in turn are decided under state law, in this case California law, where this case is pending.")

Case Date Jurisidction State Cite Checked
2011-09-22 Federal

Chapter: 60.306

Case Name: In re State & County Mut. Fire Ins. Co., 138 F. App'x 539, 540 (4th Cir. 2005)
(denying petition for writ of prohibition in a privilege discovery dispute; "State and County contends that it is entitled to a writ of prohibition, because otherwise it will be compelled to disclose the documents, effectively nullifying the privileges attached thereto. However, another avenue of relief appears to be available to State and County: it could refuse to comply with the May 6, 2005 Order and appeal from any contempt sanction imposed by the district court.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal

Chapter: 60.306

Case Name: In re Underwriters at Lloyd's, 666 F.2d 55 (4th Cir. 1981)
(mandamus is an extraordinary remedy, and "work product claims present an even weaker basis for mandamus" because the work product doctrine is not a privilege; mandamus denied)

Case Date Jurisidction State Cite Checked
1981-01-01 Federal

Chapter: 60.306

Case Name: Freehill v. Lewis, 355 F.2d 46 (4th Cir. 1966)
(denying a petition for mandamus regarding the propriety of an order restricting discovery and seeking reassignment of case)

Case Date Jurisidction State Cite Checked
1966-01-01 Federal

Chapter: 60.307

Case Name: In re Naranjo v. Page, No. 13-1382, No. 13-2018, 2014 U.S. App. LEXIS 18293, at *28-29 (4th Cir. Sept. 24, 2014)
("Every other circuit court that has considered the jurisdictional issue presented here has found subject matter jurisdiction to hear an immediate appeal from an order on a § 1782 application. . . . In addition, at least two other circuit courts have found jurisdiction to hear § 1782 appeals related to the very same dispute before us."; "Because the § 1782 order is a sufficiently final order, we have subject matter jurisdiction to hear an immediate appeal from a district court's order granting discovery under that statute. We accordingly proceed to the merits of that appeal.")

Case Date Jurisidction State Cite Checked
2014-09-24 Federal

Chapter: 60.307

Case Name: Carrion v. For Issuance of Subpoena under § 28 U.S.C. 0782(a) (In re Republic of Ecuador), 735 F.3d 1179, 1182, 1183 (10th Cir. 2013)
(holding that the court had jurisdiction to hear interlocutory appeal; "[W]e note that in a § 1782 proceeding, there is nothing to be done 'on the merits.' Section 1782 empowers a district court to order a person residing within its district to 'give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal,' 28 U.S.C. § 1782. The only issue before the district court is discovery; the underlying litigation rests before a foreign tribunal."; "[O]nce the district court affirmatively decided the proper scope of discovery under the Republic's application, it disposed of all 'evidentiary requests.' . . . In this case, the district court's 'last order' was its October 4, 2012 order. The district court never adopted the magistrate judge's January and April 2013 orders as its own; consequently, neither of those orders are 'final decisions of the district court[],' appealable to this court. . . . The district court's October 4, 2012 order is thus the last definitive word and a 'final decision' under 28 U.S.C. § 1291. We proceed to the merits."; "We review de novo the district court's interpretation of the Federal Rules of Civil Procedure.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 60.502

Case Name: Luminara Worldwide, LLC v. RAZ Imports, Inc., Case No. 15-cv-03028 (SRN/FLN), 2016 U.S. Dist. LEXIS 158183 (D. Minn. Nov. 15, 2016)
("'The standard of review applicable to an appeal of a magistrate judge's order on a nondispositive issue is extremely deferential.'")

Case Date Jurisidction State Cite Checked
2016-11-15 Federal MN
Comment:

key case


Chapter: 60.502

Case Name: Exxon Mobil Corp. v. Hill, No. 13-30830, 2014 U.S. App. LEXIS 8495 (5th Cir. May 6, 2014)
("The parties disagree, however, on the standard of review. Citing United States v. Seale, 600 F.3d 473, 492 (5th Cir. 2010), Hill claims that the application of the attorney-client privilege is a question of fact, which we review only for clear error. Exxon Mobil does not dispute the general proposition but, citing United States v. McFerrin, 570 F.3d 672, 675 (5th Cir. 2009), maintains that, in this particular case, we owe no deference to the district court's privilege determination because it was based on legal error. We decline to decide which side has the better of this argument because, even assuming that we are reviewing for clear error, we would still reverse.")

Case Date Jurisidction State Cite Checked
2014-05-06 Federal

Chapter: 60.502

Case Name: Jane Doe No. 1 v. United States, No. 13-12923, 2014 U.S. App. LEXIS 7283 (11th Cir. April 18, 2014)
("[T]he issue of whether to recognize a privilege under Federal Rule of Evidence 501 is a mixed question of law and fact that we review de novo.")

Case Date Jurisidction State Cite Checked
2014-04-18 Federal

Chapter: 60.502

Case Name: Vicknair v. La. Dep't of Pub. Safety & Corr., No. 13-30244, 2014 U.S. App. LEXIS 2129, at *17 18 (5th Cir. Feb. 4, 2014)
("Evidentiary rulings by the district court are reviewed for abuse of discretion. 'The application of the attorney-client privilege is a question of fact, to be determined in the light of the purpose of the privilege and guided by judicial precedents.'. . . The application of controlling law is reviewed de novo; factual findings, for clear error.")

Case Date Jurisidction State Cite Checked
2014-02-04 Federal B 6/14

Chapter: 60.502

Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *3 (E.D.N.Y. Jan. 21, 2014)
(not for publication) (upholding a Magistrate Judge's opinion that neither the attorney-client privilege nor the work product doctrine protected communications between a Duane Morris lawyer and a corporate client's human resource executive; "Pursuant to this highly deferential standard of review, magistrate judges are thus afforded broad discretion in resolving discovery disputes, and reversal is appropriate only if that discretion is abused.")

Case Date Jurisidction State Cite Checked
2014-01-21 Federal NY B 6/14

Chapter: 60.502

Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *20-21, *21 (E.D.N.Y. Jan. 21, 2014)
(not for publication) ("Defendants contend that Judge Scanlon 'committed clear error' by permitting Plaintiffs to submit a declaration, instead of a privilege log, documenting advice they received from their attorney about internal complaints and LPL's [defendant] investigation. . . . This contention is meritless."; "Judge Scanlon properly exercised her discretion to allow Plaintiffs to use a declaration to satisfy their disclosure obligation under FRCP 26(b)(5)(A). The rule does not prescribe any particular format for disclosing privilege claims.")

Case Date Jurisidction State Cite Checked
2014-01-21 Federal NY B 6/14

Chapter: 60.502

Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *23 (E.D.N.Y. Jan. 21, 2014) (not for publication)
("[T]he district court's review of a magistrate judge's non-dispositive ruling under FRCP 72(a) is limited to the evidence that was before the magistrate judge.")

Case Date Jurisidction State Cite Checked
2014-01-21 Federal NY B 6/14

Chapter: 60.502

Case Name: Seahaus La Jolla Owners Ass'n v. Superior Court, 196 Cal. Rptr. 3d 396, 398 (Cal. Ct. App. 2014)
(granting a petition of writ of mandamus to overturn a lower court's order compelling disclosure of privileged documents; "'We review discovery orders under the abuse of discretion standard, and where the petitioner seeks relief from a discovery order that may undermine a privilege, we review the trial court's order by way of extraordinary writ.'" (citation omitted))

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

Chapter: 60.502

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 692, 687 (3d Cir. 2014)
(finding the Perlman doctrine (Perlman v. United States, 247 U.S. 7 (1918)) applicable; analyzing the crime-fraud exception and applying a "furtherance" rather than "related to" standard; concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "We exercise de novo review over the legal issues underlying the application of the crime-fraud exception to the attorney-client privilege.' . . . We review procedures used by the district court for abuse of discretion.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 60.502

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 691, 691-92, 692 (3d Cir. 2014)
(concluding that the crime-fraud exception did not apply if the client formed a criminal intent after obtaining advice; "We review the District Court's determination that there is sufficient evidence for the crime-fraud exception to apply for an abuse of discretion."; "The exception does not apply where the client forms the intent to engage in criminal or fraudulent activity after the consultation."; "A hypothetical question posed by Judge Ambro at oral argument highlights the importance of the timing of intent. A client consults with an attorney, intending at the time to go as close to the line of illegality as possible but to remain within the realm of legal conduct. The client tells the attorney of a possible course of conduct and asks for advice on the applicable law. The attorney gives advice, explaining which actions would be legal and which actions would be illegal. A year later, the client decides that he or she will cross the line from legal to illegal. Here, the crime-fraud exception would not apply, because the client was not committing a crime or fraud or intending to commit a crime or fraud at the time he or she consulted the attorney. Even if the client clearly used the advice obtained a year earlier in furtherance of the crime or fraud, the exception would not apply because the client did not have the requisite intent at the time of the consultation.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 60.502

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

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

Chapter: 60.502

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

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

Chapter: 60.502

Case Name: Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 621 (Nev. 2014)
("Here, the parties dispute the district court's interpretation and application of NRS 50.125. Statutory interpretation and application is a question of law subject to our de novo review, even when arising in a writ proceeding.")

Case Date Jurisidction State Cite Checked
2014-01-01 State NV B 7/14

Chapter: 60.502

Case Name: Nevada v. J-M Mfg. Co., 555 F. App'x 782, 784 (10th Cir. 2014)
("We review de novo whether the district court employed the correct legal standard in resolving a discovery request.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 60.502

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 690 (3d Cir. 2014)
("The District Court did not abuse its discretion in excluding the Intervenors from the interview or declining to release a transcript or summary of the testimony.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 60.502

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 691 (3d Cir. 2014)
("We review the District Court's determination that there is sufficient evidence for the crime-fraud exception to apply for an abuse of discretion.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 60.502

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 687 (3d Cir. 2014)
("'We exercise de novo review over the legal issues underlying the application of the crime-fraud exception to the attorney-client privilege.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 60.502

Case Name: In re Grand Jury Subpoena, 745 F.3d 681, 687 (3d Cir. 2014)
("We review procedures used by the district court for abuse of discretion.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 60.502

Case Name: Peerless Indus., Inc. v. Crimson AV LLC, Case No. 11 C 1768, 2013 U.S. Dist. LEXIS 162148, at *6 (N.D. Ill. Nov. 14, 2013)
("The district court may modify or set aside a magistrate judge's decision of a nondispositive matter if it is 'clearly erroneous or is contrary to law.'" (citation omitted))

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

Chapter: 60.502

Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 0118 (VM), 2013 U.S. Dist. LEXIS 162638, at *23 (S.D.N.Y. Nov. 8, 2013)
("A district court evaluating a magistrate judge's order with respect to a matter not dispositive of a claim or defense may adopt the magistrate judge's findings and conclusions as long as the factual and legal bases supporting the ruling are not clearly erroneous or contrary to law.")

Case Date Jurisidction State Cite Checked
2013-11-08 Federal NY B 5/14

Chapter: 60.502

Case Name: SimpleAir, Inc. v. Microsoft Corp., Civ. A. No. 2:11-cv-416-JRG, 2013 U.S. Dist. LEXIS 121545, at *3 (E.D. Tex. Aug. 26, 2013)
("The clearly erroneous standard applies to appellate review of a district court's factual findings regarding the application of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-08-27 Federal TX B 5/14

Chapter: 60.502

Case Name: Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188 (11th Cir. 2013)
(explaining materials created by experts are not covered by the work product rule, but instead are covered by the special expert rule; "The issue in this appeal is whether the district court erred in its interpretation of Rule 26, including the 2010 Amendments to Rule 26. This presents a question of law subject to this Court's de novo review.")

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

Chapter: 60.502

Case Name: People v. Radojcic, 998 N.E.2d 1212, 1220, 1221 (Ill. 2013)
("At issue is whether the State made the requisite evidentiary showing for application of the crime-fraud exception. The parties disagree as to the appropriate standard of review. Radojcic argues that the trial court's ruling should be reviewed for an abuse of discretion. Although Helfand [defendant's former lawyer] advocates a bifurcated standard of review, he, too, argues that the trial court's ruling as to the admissibility of his testimony should be reviewed for an abuse of discretion. The State, echoing the appellate court, urges de novo review. We agree with the State."; "We recognize, as Radojcic notes, that federal courts of appeal have reviewed district court decisions regarding the crime-fraud exception for an abuse of discretion. . . . [We] decline to adopt the federal standard of review as our own. We will follow Illinois precedent and apply de novo review.")

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

Chapter: 60.502

Case Name: Carrion v. For Issuance of Subpoena under § 28 U.S.C. 0782(a) (In re Republic of Ecuador), 735 F.3d 1179, 1182, 1183 (10th Cir. 2013)
(holding that the court had jurisdiction to hear interlocutory appeal; "[W]e note that in a § 1782 proceeding, there is nothing to be done 'on the merits.' Section 1782 empowers a district court to order a person residing within its district to 'give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal,' 28 U.S.C. § 1782. The only issue before the district court is discovery; the underlying litigation rests before a foreign tribunal."; "[O]nce the district court affirmatively decided the proper scope of discovery under the Republic's application, it disposed of all 'evidentiary requests.' . . . In this case, the district court's 'last order' was its October 4, 2012 order. The district court never adopted the magistrate judge's January and April 2013 orders as its own; consequently, neither of those orders are 'final decisions of the district court[],' appealable to this court. . . . The district court's October 4, 2012 order is thus the last definitive word and a 'final decision' under 28 U.S.C. § 1291. We proceed to the merits."; "We review de novo the district court's interpretation of the Federal Rules of Civil Procedure.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 60.502

Case Name: Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188 (11th Cir. 2013)
("The issue in this appeal is whether the district court erred in its interpretation of Rule 26, including the 2010 Amendments to Rule 26. This presents a question of law subject to this Court's de novo review.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal B 7/14

Chapter: 60.502

Case Name: People v. Radojcic, 998 N.E.2d 1212, 1221 (Ill. 2013)
(analyzing the crime-fraud exception in a criminal prosecution involving alleged mortgage fraud; "We recognize, as Radojcic notes, that federal courts of appeal have reviewed district court decisions regarding the crime-fraud exception for an abuse of discretion. . . . [We] decline to adopt the federal standard of review as our own. We will follow Illinois precedent and apply de novo review.")

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

Chapter: 60.502

Case Name: Under Seal 1 v. United States (In re Grand Jury Subpoena), 542 F. App'x 252, 253 (4th Cir. 2013)
(finding it unnecessary to decide if the attorney-client privilege protected communications between a government lawyer and a government official, because the two emails at issue did not relate to legal advice and therefore did not deserve privilege protection; "This court reviews a district court's evidentiary rulings -- including privilege determinations -- for abuse of discretion, 'factual findings as to whether a privilege applies for clear error, and the application of legal principles de novo.'")

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

Chapter: 60.502

Case Name: High Point Sarl v. Sprint Nextel Corp., Civ. A. Case No. 09-2269-CM-DJW, 2012 U.S. Dist. LEXIS 154585, at *10 (D. Kan. Oct. 29, 2012)
(analyzing privilege issues in a patent case; "[T]he Court determines that the Special Master's recommendations on whether Avaya [interested party] should produce or retain the documents identified on its privilege log as attorney-client privileged are conclusions of law, and the Court will review the parties' objections under a de novo standard of review.")

Case Date Jurisidction State Cite Checked
2012-10-29 Federal KS B 1/14

Chapter: 60.502

Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 226 (4th Cir. 2011)
("This court reviews de novo a district court's decision regarding the scope and applicability of an asserted privilege 'to the extent the court's holding rests on application of controlling legal principles to the facts.' In re Allen, 106 F.3d 582, 601 (4th Cir. 1997); see also In re Grand Jury Subpoena, 341 F.3d 331, 334 (4th Cir. 2003)")

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

Chapter: 60.502

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir. 2011)
("We review the district court's privilege determination for abuse of discretion. See NLRB v. Carolina Food Processors, 81 F.3d 507, 510 (4th Cir. 1996). Under this standard of review, we will reverse the district court's ruling 'only in the most extraordinary of circumstances.' Id. (quoting NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982))."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

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

Chapter: 60.502

Case Name: Ledo Pizza Sys., Inc. v. Ledo Rest., Inc., 407 F. App'x. 729, 732 (4th Cir. 2011)
("[W]e address the Bealls' contention that the district court erred in concluding that communications with Garth Beall were not protected by attorney-client privilege. 'We review attorney-client privilege determinations by district courts under a two-fold standard of review.' Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir. 1998). When the district court's decision rests on legal principles, it is reviewed de novo, but when 'the district court's ruling below rests on findings of fact, we review for clear error.' Id. Additionally, '[e]videntiary rulings are . . . subject to harmless error analysis.' United States v. Roe, 606 F.3d 180, 185 (4th Cir. 2010), cert. denied, 131 S. Ct. 617, 178 L. Ed. 2d 448, 2010 WL 4115418 (2010). Because the Bealls have given no indication that they were prejudiced by that ruling, they are entitled to no relief on this claim.")

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

Chapter: 60.502

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 550 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; "Whether inadvertent or involuntary disclosure of a privileged document constitutes a waiver of the attorney client privilege is a mixed question of law and fact subject to de novo review. In re Grand Jury Proceedings, 33 F.3d 342, 353 (4th Cir. 1994).")

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

Chapter: 60.502

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 Jurisidction State Cite Checked
2009-01-01 Federal

Chapter: 60.502

Case Name: United States v. Under Seal (In re Grand Jury Investigation), 352 F. App'x 805, 8089 (4th Cir. 2009)
("'A district court's determination that the government made a prima facie showing of crime or fraud should be upheld absent a clear showing of abuse of discretion.' In re Grand Jury Proceedings # 5, 401 F.3d at 254.")

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

Chapter: 60.502

Case Name: United States v. Lentz, 524 F.3d 501, 523 (4th Cir. 2008)
("We review the district court's underlying factual findings for clear error and its legal conclusions de novo.")

Case Date Jurisidction State Cite Checked
2008-01-01 Federal B 6/09

Chapter: 60.502

Case Name: Elm Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 288, 299 (4th Cir. 2007)
("On the Work Product issue, we review de novo the legal conclusions made by the ALJs [administrative law judges] and the BRB [Benefits Review Board], and we assess for abuse of discretion their application of that standard."; "[W]e examine and dispose of Elm Grove's contention on the Work Product issue, that is, that the ALJs and the BRB erred in ruling that draft reports and attorney expert communications between Blake's lawyers and their physician experts were protected under the work product doctrine and thus not discoverable. . . . We apply a de novo review to the legal conclusions made by the ALJs and the BRB in this regard. . . . We assess for abuse of discretion their application of the legal standard.")

Case Date Jurisidction State Cite Checked
2007-01-01 Federal

Chapter: 60.502

Case Name: United States v. Ruhbayan, 406 F.3d 292, 299 (4th Cir. 2005)
("In challenging the evidence admitted against him in the Second Trial, Ruhbayan makes, inter alia, two separate contentions. First, he contends that the court erred in concluding that the testimony of his former lawyer and the admission of letters written by Melton to Ruhbayan, . . . fell within the crime-fraud exception to the attorney-client and work product privileges. . . . In assessing such a contention, we review a trial court's factual findings for clear error, and we review its application of the legal principles de novo.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal N 12/05

Chapter: 60.502

Case Name: In re Grand Jury Proceedings #5, 401 F.3d 247, 254 (4th Cir. 2005)
("A district court's determination that the government made a prima facie showing of crime or fraud should be upheld 'absent a clear showing of abuse of discretion.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2005-01-01 Federal N 11/05

Chapter: 60.502

Case Name: In re Galaxy Computer Servs., Inc., Civ. A. No. 04-07-A, 2004 U.S. Dist. LEXIS 28162, at *4 (E.D. Va. Mar. 31, 2004)
("We review 'factual findings underlying an attorney-client privilege ruling' for clear error. United States v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 334 (4th Cir. 2003).")

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

Chapter: 60.502

Case Name: In re Galaxy Computer Servs., Inc., Civ. A. No. 04-07-A, 2004 U.S. Dist. LEXIS 28162, at *5 (E.D. Va. Mar. 31, 2004)
("The determination of whether a prima facie showing of crime or fraud has been made is reviewed for abuse of discretion. In re Grand Jury Proceedings, 102 F.3d 748, 751 (4th Cir. 1996).")

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

Chapter: 60.502

Case Name: Wells v. Liddy, 37 F. App'x 53, 59 (4th Cir. 2002) (unpublished opinion)
(in a defamation action, reversing the district court's conclusion that G. Gordon Liddy had not waived the work product protection which covered communications with his lawyer by revealing the communications during discovery; reviewing the district court's "application of the law of privilege de novo")

Case Date Jurisidction State Cite Checked
2002-01-01 Federal

Chapter: 60.502

Case Name: Fordham v. Onesoft Corp., Civ. A. No. 00-1078-A, 2000 U.S. Dist. LEXIS 23019, at *6 (E.D. Va. Nov. 6, 2000)
("The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). A finding of fact is 'clearly erroneous when although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948); See Cooper v. Ashley Communications Inc., 914 F.2d 458, 467 (4th Cir. 1990).")

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

Chapter: 60.502

Case Name: Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999)
("We review the district court's decision that certain documents are subject to privilege de novo, since it involves a mixed question of law and fact."), cert. denied, 528 U.S. 891 (1999)

Case Date Jurisidction State Cite Checked
1999-01-01 Federal

Chapter: 60.502

Case Name: Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir. 1998)
("We review attorney client privilege determinations by district courts under a two fold standard of review.")

Case Date Jurisidction State Cite Checked
1998-01-01 Federal

Chapter: 60.502

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 74 n.13 (E.D. Va. 1998)
("In the Fourth Circuit, the review standard of a district court's disposition of an attorney client privilege question is two fold: To the extent a district court's holding that the attorney client privilege does not protect communications rests essentially on determinations of fact, we review those determinations for clear error. Our review is de novo, however, to the extent the court's holding rests on the application of controlling legal principles to the facts." (citation omitted)), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

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

Chapter: 60.502

Case Name: In re Allen, 106 F.3d 582, 601 (4th Cir. 1997)
("To the extent a district court's holding that the attorney client privilege does not protect the communication 'rest[s] essentially on determinations of fact,' we review those determinations for 'clear error.' Our review is de novo, however, to the extent the court's holding rests on application of controlling legal principles to the facts." (citation omitted)), cert. denied, 522 U.S. 1047 (1998)

Case Date Jurisidction State Cite Checked
1997-01-01 Federal

Chapter: 60.502

Case Name: United States v. Under Seal (In re Grand Jury Proceedings), 102 F.3d 748, 751 52 (4th Cir. 1996)
("we review the district court's determination that the government made a prima facie showing of [a party's] crime or fraud for abuse of discretion" while "[t]he district court's determination that the crime fraud exception overrides the fact work product privilege is reviewed de novo"; affirming the district court's finding that a prima facie case of crime fraud vitiated the attorney client privilege and work product doctrine protections)

Case Date Jurisidction State Cite Checked
1996-01-01 Federal

Chapter: 60.502

Case Name: United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996)
(reviewing for "clear error" the District Court's conclusions about the existence of the attorney client privilege), cert. denied, 520 U.S. 1239 (1997)

Case Date Jurisidction State Cite Checked
1996-01-01 Federal

Chapter: 60.502

Case Name: United States v. Underseal (In re Grand Jury Proceedings Thurs. Special Grand Jury, Sept. Term), 33 F.3d 342, 353 (4th Cir. 1994)
("The district court's decision that certain of the subpoenaed documents were not subject to privilege is a mixed question of law and fact subject to de novo review.")

Case Date Jurisidction State Cite Checked
1994-01-01 Federal

Chapter: 60.502

Case Name: Sheet Metal Workers Int'l Ass'n v. Sweeney, 29 F.3d 120 (4th Cir. 1994)
(reviewing the lower court's conclusions about the privilege and expectation of confidentiality under a "clear error" standard)

Case Date Jurisidction State Cite Checked
1994-01-01 Federal

Chapter: 60.502

Case Name: Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332, 349 (4th Cir. 1992)
("The circuits appear to disagree upon whether the application of the attorney client privilege 'the issue underlying the district court's decision here' involves legal analysis. The Ninth and Eleventh Circuits have concluded that the application of the privilege presents a mixed question of law and fact that should be reviewed de novo. In re Grand Jury Proceedings, 88 9, 899 F.2d 1039, 1042 (11th Cir. 1990))

Case Date Jurisidction State Cite Checked
1992-01-01 Federal

Chapter: 60.503

Case Name: Harris Mgmt, Inc. v. Coulombe, Dkt. BCD-15-363, 2016 ME 166, 2016 Me. LEXIS 185 (Me. Nov. 8, 2016)
("To analyze the issues that Coulombe raises with respect to the crime-fraud exception, we (a) review de novo the legal question of whether every element of a completed fraud must be demonstrated for 'fraudulent activity' to have been engaged in or planned, and (b) review for clear error the court's findings of fact regarding the elements of the crime-fraud exception and determine whether the court abused its discretion in its ultimate order requiring disclosure.")

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

key case


Chapter: 60.503

Case Name: United States v. Gorski, Nos. 14-1963, 14-1964, 14-2074, 2015 U.S. App. LEXIS 21302 (1st Cir. App. Dec. 9, 2015)
(analyzing interlocutory appeals and the crime-fraud exception; concluding the individual defendant cannot pursue an interlocutory appeal, but that a non-party could rely on the Perlman doctrine; finding that the crime-fraud exception applied to communications to and from Mintz Levin, and remanding for the trial court's review of certain documents to determine if the exception applied to them; "In privilege cases, we review questions of law de novo, factual findings for clear error, and discretionary judgments for abuse of discretion.").

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

Chapter: 60.503

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)
(applying the "no secrets" rule in a joint representation context, and requiring jointly represented clients to turn over all otherwise privileged documents to the other in a dispute between them; extending the rule even to documents created three years after the joint representation ended; "The parties also agree that this court reviews de novo a trial court's determination regarding the applicability of a privilege.")

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

Chapter: 60.503

Case Name: Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW, No. 614, 2013, 2014 Del. LEXIS 336 (Del. July 23, 2014)
("[Q]uestions of law, such as the applicability of the attorney-client privilege and the work-product doctrine, are reviewed de novo.")

Case Date Jurisidction State Cite Checked
2014-07-23 State DE

Chapter: 60.503

Case Name: Automated Solutions Corp. v. Paragon Data Sys., Inc., No. 13-3025/3058, 2014 U.S. App. LEXIS 11918, at *27 (6th Cir. June 25, 2014)
("'whether the attorney-client privilege applies is a mixed question of law and fact, subject to de novo review.'")

Case Date Jurisidction State Cite Checked