Showing 72 of 72 results

Chapter: 9.1

Case Name: United States v. Smith, Crim. A. No. 3:07CR433, 2008 U.S. Dist. LEXIS 64174, at *4-5 (E.D. Va. Aug. 21, 2008)
("To invoke the privilege, the person claiming its protection must be either the client of a person admitted to the bar of a court, who is acting as his lawyer, for the purpose of obtaining legal advice, or someone seeking such representation. United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisidction State Cite Checked
2008-08-21 Federal VA

Chapter: 9.2

Case Name: Lucken Revocable Trust v. Heritage Bancshares Group, Inc., No. 16-CV-4005-MWB, 2017 U.S. Dist. LEXIS 21299 (N.D. Iowa Feb. 15, 2017)
(finding that the privilege did not protect communications with an inactive lawyer, because the plaintiff did not establish that it reasonably believed the inactive lawyer to be an active lawyer; also inexplicably holding that the inactive lawyer could not create protected work product; "There is no direct case law in this circuit that lays out the standard for how an attorney who is engaged in providing legal advice, but only holds an inactive license, is to be treated when applying attorney-client communications. Other courts, however, have addressed similar cases. The general rule that attorney-client privilege cannot attach where 'the communication were not made with a member of the bar,' with the exception where the person asserting the privilege had a reasonable but mistaken belief that the person with whom they were communicating was in fact a licensed attorney."; "The Court finds this a rational standard. It provides adequate protection to those who reasonably rely on a person's representations of being an active attorney even if that turns out to be untrue. Under those circumstances, it is appropriate for all the protections of the attorney-client relationship to attach. Additionally, the punishment should not be on the unsuspecting 'client' when it comes to light the imposter is not actually licensed. On the other hand, where a 'client' knows or has reason to know that the person is not actively licensed to practice law, extending the attorney-client protection to that relationship would be inappropriate."; "Peterson, though technically a member of the bar, held a license which was inactive and he was not considered eligible to engage in the practice of law under the Colorado code, therefore attorney-client privilege could not have attached to his communications with Plaintiffs. As mentioned above there is a reasonable belief exception to the principle that attorney-client privilege cannot attach where the legal advice is given by an individual not admitted to the bar."; "The same burden applies to this case. Plaintiffs bear the burdern to prove that they reasonably believed Peterson was eligible to practice law. Plaintiffs have not produced any evidence demonstrating Plaintiffs had a reasonable belief Peterson was licensed to engage in the practice of law after 2001. In fact, there is evidence in the record which would tend to negate any assertion that Plaintiffs were under the mistaken belief Peterson was licensed to practice law.")

Case Date Jurisidction State Cite Checked
2017-02-15 Federal IA

Chapter: 9.2

Case Name: Casey v. Unitek Global Svcs., Inc., Civ. A. 14-2671, 2015 U.S. Dist. LEXIS 15715 (E.D. Pa. Feb. 9, 2015)
(in a former employee's discrimination case against her former employer, finding that the plaintiff did not act as a lawyer, and therefore was not barred from pursuing a wrongful termination claim; "Unitek did not hire Ms. Casey to be its attorney. Rather, Unitek employed Ms. Casey as the Director of Risk Management and promoted her to Vice President of Risk and Safety. In these positions, Ms. Casey led the risk management and safety departments which were separate from and not reportable to Unitek's General Counsel. Neither position required Ms. Casey to have any legal knowledge, much less a juris doctor. Instead, Ms. Casey was responsible for maintaining adequate insurance for Unitek and its subsidiaries, analyzing risk, reducing loss and managing litigation arising from insurable claims. Job Description, Director of Risk Management . . . . I believe the positions are best described as in-house insurance broker and claims adjuster."; "Given Ms. Casey's total lack of legal experience, it is simply not credible that Unitek hired Ms. Casey to be its attorney."; "There can be no doubt that Ms. Casey's legal training assisted her greatly in this aspect of her position, but Unitek points to no evidence that it sought Ms. Casey's legal advice or opinion with regard to any of the insurable claims.")

Case Date Jurisidction State Cite Checked
2015-02-09 Federal PA

Chapter: 9.2

Case Name: Nylen v. Nylen,, #27390, 873 N.W.2d 76 (2015 S.D. 98)
(holding that the plaintiff's communications with a lawyer friend deserved privilege protection until the lawyer indicated that she could not represent the plaintiff because she had earlier represented the plaintiff's husband; "[T]he circuit court's finding were supported by Mary Ellen's own admission that she understood Schrunk could not represent her, she had no attorney-client relationship with Schrunk, and that she contacted Schrunk as a friend. Moreover, the circuit court reviewed the documents in camera and still found that after January 1, 2014, Mary Ellen could no longer have reasonably believed she was consulting Schrunk with a 'view to obtain[] legal services.'"; not addressing possible work product)

Case Date Jurisidction State Cite Checked
2015-01-01 Federal SD

Chapter: 9.2

Case Name: Spartalian v. Citibank N.A., Case No. 2:12-cv-00742-MMD-PAL, 2013 U.S. Dist. LEXIS 28966, at *20 (D. Nev. Mar. 1, 2013)
(holding that the attorney-client privilege did not protect communications with a paralegal, because the paralegal was not acting under a lawyer's supervision; "[M]any of Plaintiff's objections to producing the documents are based on the purported attorney-client or work product privilege. These objections are not well taken. The Plaintiff does not have an attorney-client or work product privilege for communications with a friend who lives in Malta who is a paralegal not working under the direct supervision of a lawyer. Plaintiff testified at his deposition that he did not have an attorney. The party asserting the attorney-client privilege must establish the attorney-client relationship and the privileged nature of the communication.")

Case Date Jurisidction State Cite Checked
2013-03-01 Federal NV B 3/14

Chapter: 9.2

Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *17 (E.D. Va. Feb. 14, 2013)
(finding that the following email did not deserve privilege or work product protection; "'Mr. Frazier's (a non-lawyer's) statement to other non-lawyers that, 'under its terms, I don't believe the loan can be called based on what we know today.'")

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

Chapter: 9.3

Case Name: Veolia Water Solutions & Technologies Support v. Siemens Industry, Inc., No. 5:11-CV-00296-FL, 2014 U.S. Dist. LEXIS 165747 (E.D.N.C. Nov. 25, 2014)
(analyzing privilege issues in a patent case; "Generally, communications between a client and a non-attorney patent agent are privileged, where a patent proceeding is pending before the Patent Office, and 'where that patent agent is acting at the direction or control of an attorney as the agent of the attorney.'")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal NC

Chapter: 9.3

Case Name: Prowess, Inc. v. Raysearch Labs. AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 14433, at *9-10 (D. Md. Jan. 18, 2013)
(recognizing courts' different approaches to privilege protection for communications to and from patent agents, and ultimately concluding that the privilege did not protect them unless a patent agent was acting as a lawyer's agent; "Courts are split on the question of whether a client's communications with patent agents receive the same protection as a client's communications with attorneys. . . . While the Fourth Circuit has not directly addressed the issue, district courts in this circuit have held that there is no patent agent privilege. . . . Of course, communications between a patent agent and a client may be privileged where the patent agent is acting as an agent of an attorney, or where 'the patent proceeding is before the United States Patent Office and the patent agent is registered with that office.'" (citation omitted))

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

Chapter: 9.4

Case Name: Lucken Revocable Trust v. Heritage Bancshares Group, Inc., No. 16-CV-4005-MWB, 2017 U.S. Dist. LEXIS 21299 (N.D. Iowa Feb. 15, 2017)
(finding that the privilege did not protect communications with an inactive lawyer, because the plaintiff did not establish that it reasonably believed the inactive lawyer to be an active lawyer; also inexplicably holding that the inactive lawyer could not create protected work product; "There is no direct case law in this circuit that lays out the standard for how an attorney who is engaged in providing legal advice, but only holds an inactive license, is to be treated when applying attorney-client communications. Other courts, however, have addressed similar cases. The general rule that attorney-client privilege cannot attach where 'the communication were not made with a member of the bar,' with the exception where the person asserting the privilege had a reasonable but mistaken belief that the person with whom they were communicating was in fact a licensed attorney."; "The Court finds this a rational standard. It provides adequate protection to those who reasonably rely on a person's representations of being an active attorney even if that turns out to be untrue. Under those circumstances, it is appropriate for all the protections of the attorney-client relationship to attach. Additionally, the punishment should not be on the unsuspecting 'client' when it comes to light the imposter is not actually licensed. On the other hand, where a 'client' knows or has reason to know that the person is not actively licensed to practice law, extending the attorney-client protection to that relationship would be inappropriate."; "Peterson, though technically a member of the bar, held a license which was inactive and he was not considered eligible to engage in the practice of law under the Colorado code, therefore attorney-client privilege could not have attached to his communications with Plaintiffs. As mentioned above there is a reasonable belief exception to the principle that attorney-client privilege cannot attach where the legal advice is given by an individual not admitted to the bar."; "The same burden applies to this case. Plaintiffs bear the burdern to prove that they reasonably believed Peterson was eligible to practice law. Plaintiffs have not produced any evidence demonstrating Plaintiffs had a reasonable belief Peterson was licensed to engage in the practice of law after 2001. In fact, there is evidence in the record which would tend to negate any assertion that Plaintiffs were under the mistaken belief Peterson was licensed to practice law.")

Case Date Jurisidction State Cite Checked
2017-02-15 Federal IA

Chapter: 9.4

Case Name: Optimize Tech. Solutions, LLC v. Staples, Inc., Case No. 2:11-CV-00419-JRG, 2014 U.S. Dist. LEXIS 81807 (E.D. Tex. June 16, 2014)
(in a patent case, holding that a client's reasonable belief that someone was a lawyer assured privilege protection for communications)

Case Date Jurisidction State Cite Checked
2014-06-16 Federal TX

Chapter: 9.4

Case Name: Tucker v. Jefferson Operator, LLC, No. 3:13-CV-200, 2013 U.S. Dist. LEXIS 175905, at *8 (E.D. Tenn. Dec. 16, 2013)
("Finally, Plaintiff asserts that the attorney-client privilege does not apply, because Mr. Ohlsen was practicing law without a license. The Court finds that this allegation is not relevant to the application of the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-12-16 Federal TN B 5/14

Chapter: 9.5

Case Name: U.S. Home Corp. v. Settlers Crossing, L.L.C., No. 15-1254, 2017 U.S. App. 6272 (4th Cir. App. April 12, 2017)
(holding that an unlicensed lawyer could not engage in privileged communications in the lawyer role, but could create protected work product; "Lennar claimed that Steven Engel was its attorney, and that documents and communications with Engel were entitled to the attorney-client privilege. However, Engel was not licensed to practice law. The district court therefore sanctioned Lennar, and ordered it to turn over Engel documents and communications wrongfully withheld under the attorney-client privilege but allowed it to continue to withhold documents under the work-product doctrine if it submitted such documents for in camera review.")

Case Date Jurisidction State Cite Checked
2017-04-12 Federal

Chapter: 9.5

Case Name: Director of the Office of Enrollment and Discipline for the United States Patent and Trademark Ofc. v. Piccone, No. 15-mc-82-LTS, 2015 U.S. Dist. LEXIS 124706 (N.D. Iowa Sept. 18, 2015)
("There is no evidence Ms. Nunley [Client] was aware that Mr. Piccone's [Lawyer] license to practice law in Pennsylvania was suspended during the Suspension Period. Instead, I find that she had a reasonable, but mistaken, belief that Mr. Piccone was authorized to practice law. . . . This simply means that Mr. Piccone's 'suspended' status did not, by itself, prevent the attorney-client privilege from attaching to communications during the Suspension Period.").

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

Chapter: 9.5

Case Name: Baylor v Mitchell Rubenstein & Assocates, P.C., Civ. A. No. 13-1995 (ABJ), 2015 U.S. Dist. LEXIS 124152 (D.D.C. Sept. 17, 2015)
("[P]laintiff offers no legal authority to support her contention that Arrowood's attorney-client privilege with defendant could be voided by Sunrise's unauthorized practice of law. . . . Thus, she has failed to show that the Magistrate Judge committed a clear error or that his decision was contrary to law, and her objection on this ground will be overruled.").

Case Date Jurisidction State Cite Checked
2015-09-17 Federal DC

Chapter: 9.5

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
("In her supplemental memorandum, plaintiff argues that Sunrise [a client agent retained "for the limited purpose of finding an attorney"] engaged in the unauthorized practice of law by interposing itself between Arrowood, the client, and defendant, the attorney. . . . Plaintiff then concludes that because Sunrise engaged in the unauthorized practice of law, there can be no attorney-client privilege between defendant and Sunrise or defendant and Arrowood. . . . The Court is not persuaded by this argument. Assuming without deciding that Sunrise engaged in the unauthorized practice of law, plaintiff fails to explain why such wrongdoing by Sunrise should serve to waive or eliminate Arrowood's attorney-client privilege.")

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

Chapter: 9.5

Case Name: In re Freeway Foods of Greensboro, Inc. v. Freeway Foods, Inc., Case No. 10-11282, AP Case No. 10-02057, 2014 Bankr. LEXIS 1823 (M.D.N.C. April 24, 2014)
(finding that communications to and from the general counsel of Waffle House deserved privilege protection, although he did not have an active license; "The facts concerning Waller [Waffle House's general counsel since 2001] and his role with Waffle House can be gleaned from depositions taken and affidavits filed in this case. Waller's legal services to Waffle House have been delivered in Georgia, where Waller resides and where Waffle House is incorporated. Waller holds an inactive license to practice law in the State of Illinois. He holds no active license to practice law. An outside attorney referred Waller to Waffle House's CEO, Walter G. Ehmer, who interviewed Waller. At the time of the interview, Ehmer understood Waller to have then been the General Counsel of Midway Airlines Corporation. Waffle House's Chairman, Joe W. Rogers, Jr., hired Waller to serve as Waffle House's general counsel. Both Ehmer and Rogers believed Waller to be an attorney; both have viewed their communications with Waller as privileged. In addition, certain outside counsel who performed legal work for Waffle House understood Waller to be both an attorney and Waffle House's general counsel. For some time, Waller's law school diploma and bar certificate were displayed in his office cubicle."; "In North Carolina, 'when the 'client' reasonably believes that he is dealing with an attorney, the [attorney-client] privilege should be accorded' even if the client is mistaken."; "'Even were it certain that Waller was not an attorney, it is not clear whether he could be said to have been engaged in the unauthorized practice of law. See State v. Pledger, 257 N.C. 634, 127 S.E.2d 337, 339-40 (N.C. 1962) ('A person who, in the course of his employment by a corporation, prepares a legal document in connection with a business transaction in which the corporation has a primary interest, the corporation being authorized by law and its charter to transact such business, does not violate the statute [prohibiting the unauthorized practice of law, N.C. Gen. Stat. Ann. § 84-4], for his act in so doing is the act of the corporation in the furtherance of its own business.'")

Case Date Jurisidction State Cite Checked
2014-04-24 Federal NC

Chapter: 9.5

Case Name: Heckler & Koch, Inc. v. German Sport Guns GMBH, Case No. 1:11-cv-1108-SEB-TAB, 2013 U.S. Dist. LEXIS 76580, at *20-21, *25-26, *26-27 (S.D. Ind. May 31, 2013)
(finding the common interest doctrine inapplicable; "The next issue relates to the somewhat complicated relationship between Plaintiffs, Continental [intellectual property protection firm], and Seymour. Defendants argued that because Seymour is counsel of record for Plaintiffs and in-house counsel for Continental she lacks 'independence of counsel.' Defendants claim that this Court is the only court to permit in-house counsel of an investigatory company to also serve as outside counsel for clients of an investigatory company."; "[T]he primary issue before the Court is this: if Seymour engaged in the unauthorized practice of law or violated the professional rules of conduct, do those impermissible practices retroactively waive attorney-client privilege and work product protections? Defendants' briefs in support of their motion to compel cited no legal authority that requires or even discusses such a waiver. On the contrary, the Court notes that Seymour is a licensed attorney and has been counsel of record since August 2011." (footnote omitted); "To permit retroactive waiver of privilege and work product protections for a client who is consulting with a licensed attorney that has been counsel of record in this and numerous other cases is contrary to the purposes of privilege and work product. . . . If Defendants believe Seymour is engaging in inappropriate conduct, then they should file a disciplinary complaint or a motion for disqualification.")

Case Date Jurisidction State Cite Checked
2013-05-31 Federal IN B 3/14

Chapter: 9.5

Case Name: Smith v. J.P. Morgan Chase Bank, No. 3:11-cv-00314-LRH (VPC), 2013 U.S. Dist. LEXIS 3473, at *5, *8, *9 (D. Nev. Jan. 8, 2013)
(holding that the attorney-client privilege did not protect communications to and from a lawyer who is not licensed in any state; "In April 2007, Mr. McCann resigned from the practice of law in the State of California. Mr. McCann was admitted to the practice of law in the State of Nevada on October 7, 2010. As a result, Mr. McCann was not licensed to practice law in any state from April 2007 until October 7, 2010, a period of approximately two and one-half years." (footnote omitted); "While plaintiff and her late husband sought legal advice from Mr. McCann at that time concerning their Colorado Inn and the mortgage on their ranch, Mr. McCann was not admitted to practice law in any state, and plaintiff admits she knew this . . . . Fundamental to a claim of attorney-client privilege is that the person dispensing the legal advice must be licensed to practice law. Mr. McCann was not, and plaintiff knew that; therefore, any discussions Mr. McCann had with plaintiff during their meeting in Florida are not protected by the privilege."; "The third time period overlaps somewhat with the second and concerns the balance of the summer of 2010. Mr. McCann attests that in mid-June 2010, Mr. Raggio asked him to communicate with plaintiff as Mr. Raggio's paralegal or agent, and that Mr. McCann did so . . . . A representative of a lawyer is defined as 'a person employed by the lawyer to assist in the rendition of professional legal services.' N.R.S. 49.085 (emphasis supplied). Mr. McCann has provided no evidence that he was an employee of Mr. Raggio or his law firm, Jones Vargas; therefore, Mr. McCann's claim he served as a representative of Mr. Raggio or Jones Vargas fails.")

Case Date Jurisidction State Cite Checked
2013-01-08 Federal NV B 7/13

Chapter: 9.8

Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *18 (S.D. Cal. Feb. 3, 2014)
(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "In Germany, communications with patent agents are afforded confidentiality, even though patent agents are not admitted to practice law.")

Case Date Jurisidction State Cite Checked
2014-02-03 Federal CA B 6/14

Chapter: 9.8

Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *17-18 (S.D. Cal. Feb. 3, 2014)
(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "Fresenius also provides as evidence the Declaration of Stefan Weiss, a European patent attorney employed as a Director of Patents at FMC AG [defendant]. . . . Weiss asserts that at the time of the communications at issue, Bichlmaier was a 'patent manager' at the Patent Department working under his direction, as well as under the direction of other patent attorneys, to 'assist in providing and obtaining legal advice.' . . . Fresenius thus asserts that Bichlmaier's communications reflected 'legal advice provided by the FMC AG Patent Department.'" (internal citation omitted))

Case Date Jurisidction State Cite Checked
2014-02-03 Federal CA B 6/14

Chapter: 9.8

Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *16 (S.D. Cal. Feb. 3, 2014)
(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "Despite their title, German patent agents perform services similar to patent attorneys in the U.S., receive confidential legal communications from their clients and render legal advice. Because of the attorney like functions of German patent agents and because of their clients' expectation of confidentiality, U.S. policy interests will not be violated by recognizing privilege protections under German law for [a] German patent agent's communications with foreign clients concerning the prosecution of European patents." (footnote omitted))

Case Date Jurisidction State Cite Checked
2014-02-03 Federal CA B 6/14

Chapter: 9.8

Case Name: Cadence Pharmaceuticals, Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661 (S.D. Cal. Feb. 3, 2014)
April 2, 2014 (PRIVILEGE POINT)

"Applying Another Country's Privilege Law Can Sometimes Expand Privilege Protection"

As a matter of comity, U.S. courts usually apply other countries' privilege laws to purely overseas communications that do not "touch base" with the United States. Because most European countries (and the EU itself) do not extend privilege protection to in-house lawyers' communications, in many situations applying foreign privilege law decreases possible privilege protection for U.S. corporations.

However, in some contexts, foreign law offers a greater chance of privilege protection than U.S. law normally provides. In Cadence Pharmaceuticals, Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661 (S.D. Cal. Feb. 3, 2014), the court assessed communications in Germany involving a patent agent, which dealt with a European patent application. The court concluded that the communications did not "touch base" with the U.S., and therefore applied German law. Id. at *8-9. The court extended privilege protection to the communications – relying on a European patent lawyer's affidavit in holding that "[i]n Germany, communications with patent agents are afforded confidentiality, even though patent agents are not admitted to practice law." Id. at *18. United States courts disagree about privilege protection for patent agents here. Buyer's Direct Inc. v. Belk, Inc., No. SACV 12-00370-DOC (MLGx), 2012 U.S. Dist. LEXIS 57543, at *7, *8-9 (C.D. Cal. Apr. 24, 2012) (recognizing "a split in authority" on privilege protection for registered patent agents proceedings before the U.S. PTO).

Because applying other countries’ privilege law might expand or contract available privilege protection, lawyers whose clients communicate to or from other countries must always assess the possible risks and rewards.

Case Date Jurisidction State Cite Checked
2014-02-03 Federal CA
Comment:

key case


Chapter: 9.8

Case Name: Skynet Elec. Co., Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372, at *4 (N.D. Cal. Dec. 16, 2013)
(discussing the different waiver standards for privilege and work product protection; finding that disclosure to a Taiwanese "patent attorney" did not waive work product protection, although those "patent attorneys" were not actually lawyers; "In Taiwan, however, patent attorneys are similar to U.S. patent agents, in that they need not be attorneys-at-law, nor do they have a license to practice law or are subject to the Taiwan bar.")

Case Date Jurisidction State Cite Checked
2013-12-16 Federal CA B 5/14

Chapter: 9.8

Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 0118 (VM), 2013 U.S. Dist. LEXIS 162638, at *32-33 (S.D.N.Y. Nov. 8, 2013)
(finding that either under U.S. or Dutch law an unlicensed in-house Dutch lawyer who never held himself out as a lawyer could not engage in privileged communications; "Magistrate Judge Maas adequately distinguished the facts of Gucci II [Gucci Am., Inc. v. Guess?, Inc., No. 09 Civ. 4373, 2011 U.S. Dist. LEXIS 15 (S.D.N.Y. Jan. 3, 2011)], concerning an attorney who had been previously admitted to the bar but whose bar membership status had lapsed . . . from the facts in the present case. Boonstra [Dutch in-house lawyer] is not, and has never been, licensed in any jurisdiction and has neither held himself out to be a licensed attorney nor performed acts suggesting to his employer that he was admitted to the Netherlands bar. . . . The Court finds ample evidence to support Magistrate Judge Maas's conclusion that the Citco Defendants could not credibly claim a reasonable mistake as to Boonstra's status as a licensed attorney. The Order notes the affirmative obligation under Dutch law that the employer of a licensed in-house attorney sign a professional charter committing the employer to honor its attorney's independence.")

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

Chapter: 9.8

Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 0118 (VM), 2013 U.S. Dist. LEXIS 162638, at *31 (S.D.N.Y. Nov. 8, 2013)
(finding that either under U.S. or Dutch law an unlicensed in-house Dutch lawyer who never held himself out as a lawyer could not engage in privileged communications; "The parties here agree that Boonstra [Dutch in-house lawyer] is not a licensed attorney. . . . The Citco Defendants, however, contend that the communications between Boonstra and Citco are privileged because, even though Boonstra was unlicensed, Citco had a 'reasonable belief' that Boonstra was its attorney.")

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

Chapter: 9.8

Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at *34 (S.D.N.Y. Oct. 24, 2013)
(applying the "touch base" test in applying U.S. law to some Chinese documents, but Chinese law (which does not include privilege protection) to documents prepared before the plaintiff demanded compensation from defendant for allegedly aiding terrorists; "The United Shoe [United States v United Shoe Mach. Corp., 89 F Supp. 2d 357 (D. Mass. 1950)] principle justifies the protection of the attorney-client privilege for circumstances where a lawyer -- whose authority derives from her position as a member of the bar -- is engaged to provide legal advice. While the Chinese legal system may be developing, the distinctions between lawyer and in house counsel are clear and presumably exist for a good reason. I see no compelling reason to depart from the long-standing principle of United Shoe and create a 'functional equivalency' test for the invocation of the attorney-client privilege when applying United States law. To the extent BOC has claimed privilege over communications from, to and among members of legal or other departments who are not licensed attorneys, the attorney-client privilege does not apply."; largely confirmed in a November 19, 2013, opinion)

Case Date Jurisidction State Cite Checked
2013-10-24 Federal NY B 5/14

Chapter: 9.8

Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at *32 (S.D.N.Y. Oct. 24, 2013)
(applying the "touch base" test in applying U.S. law to some Chinese documents, but Chinese law (which does not include privilege protection) to documents prepared before the plaintiff demanded compensation from defendant for allegedly aiding terrorists; "[T]here are cognizable distinctions between a 'lawyer' and an 'in-house counsel' in Chinese law, most critically that it is 'not essential' for in-house counsel to be members of a bar or have 'some form of legal credentials.'" (internal citation omitted); largely confirmed in a November 19, 2013, opinion)

Case Date Jurisidction State Cite Checked
2013-10-24 Federal NY B 5/14

Chapter: 9.8

Case Name: Everlight Elecs. Co. v. Nichia Corp., Civ. A. No. 12-cv-11758, 2013 U.S. Dist. LEXIS 152047, at *9-10, *11 (E.D. Mich. Oct. 23, 2013)
("While Nichia is correct that many courts across the country have concluded that communications with Japanese benrishi [patent agents] may be withheld based on the attorney-client privilege, Nichia's supplemental privilege log does not contain sufficient information for this Court to conclude that these documents have been properly withheld."; "Nichia cannot claim privilege without identifying the benrishi firm from which the legal advice was sought.")

Case Date Jurisidction State Cite Checked
2013-10-23 Federal MI B 5/14

Chapter: 9.8

Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM)(FM), 2013 U.S. Dist. LEXIS 96721, at *25-26, 26-27 (S.D.N.Y. July 8, 2013)
(analyzing the "touch base" test, and finding the privilege inapplicable because the in-house lawyer practicing in the Netherlands was not actually licensed anywhere; "The facts here are not at all comparable to those in Gucci II [Gucci Am., Inc. v. Guess?, Inc., No. 09 Civ. 4373 (SAS), 2011 U.S. Dist. LEXIS 15 (S.D.N.Y. Jan. 3, 2011)]. At the outset, it is undisputed that Mr. Boonstra [in-house lawyer for Citco Bank Nederland] is not -- and never has been -- licensed in any jurisdiction. Second, there is no evidence that Mr. Boonstra ever held himself out as a licensed attorney or performed tasks (such as appearing in court) that would have suggested that he was admitted to the Netherlands bar. Third, although in-house counsel must be admitted to the bar in order to practice in the United States, in-house lawyers in the Netherlands are permitted to be, and frequently are, unlicensed. Moreover, Dutch law requires that the employer of a licensed in-house attorney sign a professional charter committing the employer to honor its attorney's independence. . . . Given that affirmative obligation, the Citco Defendants cannot credibly argue that they were reasonably mistaken as to Mr. Boonstra's licensure status."; "Finally, even if the Citco Defendants mistakenly believed that Dutch law protected their communications with an unlicensed in-house attorney, the reasonable belief exception would not apply. Such an argument necessarily is predicated upon a mistake of law, but the reasonable belief exception applies only in situations where the client makes an 'excusable mistake of fact.'. . . Indeed, a 'client's beliefs, subjective or objective, about the law of privilege [do not] transform an otherwise unprivileged conversation into a privileged one.'. . . The Citco Defendants' erroneous views on Dutch privilege law therefore cannot form the basis for the relief they presently seek.")

Case Date Jurisidction State Cite Checked
2013-07-08 Federal NY B 4/14

Chapter: 9.8

Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM)(FM), 2013 U.S. Dist. LEXIS 96721, at *24 (S.D.N.Y. July 8, 2013)
(analyzing the "touch base" test, and finding the privilege inapplicable because the in-house lawyer practicing in the Netherlands was not actually licensed anywhere; "In the United States, the attorney-client privilege generally applies only to communications with attorneys who are licensed to practice law. . . . Since Mr. Boonstra [in-house lawyer for Citco Bank Nederland] is unlicensed, no privilege could attach to his communications with the Citco Defendants.")

Case Date Jurisidction State Cite Checked
2013-07-08 Federal NY B 4/14

Chapter: 9.8

Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM) (FM), 2013 U.S. Dist. LEXIS 96721, at *25-26, 26-27 (S.D.N.Y. July 8, 2013)
(finding the privilege inapplicable to a communication with an unlicensed in-house Dutch lawyer; finding that the Gucci II holding inapplicable; "The facts here are not at all comparable to those in Gucci II. At the outset, it is undisputed that Mr. Boonstra is not -- and never has been -- licensed in any jurisdiction. Second, there is no evidence that Mr. Boonstra ever held himself out as a licensed attorney or performed tasks (such as appearing in court) that would have suggested that he was admitted to the Netherlands bar. Third, although in-house counsel must be admitted to the bar in order to practice in the United States, in-house lawyers in the Netherlands are permitted to be, and frequently are, unlicensed. Moreover, Dutch law requires that the employer of a licensed in-house attorney sign a professional charter committing the employer to honor its attorney's independence. . . . Given that affirmative obligation, the Citco Defendants cannot credibly argue that they were reasonably mistaken as to Mr. Boonstra's licensure status."; also holding that the privilege would not be applicable even if a company misunderstood Dutch law's lack of protection; "[E]ven if the Citco Defendants mistakenly believed that Dutch law protected their communications with an unlicensed in-house attorney, the reasonable belief exception would not apply. Such an argument necessarily is predicated upon a mistake of law, but the reasonable belief exception applies only in situations where the client makes an 'excusable mistake of fact.'. . . Indeed, a 'client's beliefs, subjective or objective, about the law of privilege [do not] transform an otherwise unprivileged conversation into a privileged one.'. . . The Citgo Defendants' erroneous views on Dutch privilege law therefore cannot form the basis for the relief they presently seek.")

Case Date Jurisidction State Cite Checked
2013-07-08 Federal NY B 9/13

Chapter: 9.8

Case Name: Tessera, Inc. v. UTAC (Taiwan) Corp., No. C10-04435 EJD (HRL), 2013 U.S. Dist. LEXIS 80605, at *2, *5 (N.D. Cal. June 6, 2013)
(not for publication) (finding that a Taiwanese "legal executive" was not actually a lawyer and therefore could not engage in privileged communication; "Hsieh has a legal education and apparently offers legal advice as part of his job in UTAC's finance office. However, he is not a lawyer. He is not authorized to practice law in Taiwan or anywhere else. UTAC knows this. There is no showing that Taiwan recognizes an attorney-client privilege in communications between non-lawyer legal advisors and their employers. There is no assertion that UTAC BELIEVED any privilege attached to communications between Hsieh and its other employees. By virtue of the undisputed facts here, no privilege attaches to Hsieh's communications with others in UTAC.")

Case Date Jurisidction State Cite Checked
2013-06-06 Federal CA B 4/14

Chapter: 9.8

Case Name: Powertech Technology Inc. v. Tessera, Inc., No. C 11 6121 CW, 2013 U.S. Dist. LEXIS 38851, at *6 (N.D. Cal. March 20, 2013)
(denying a motion to stay pending a party's petition for writ of mandamus; "[A]lthough PTI [Plaintiff] generally referred to the role of Japanese patent advisers, as the Court found in the January 18, 2013 order, it did not offer any evidence whatsoever that the four particular individuals in question are actually authorized in any jurisdiction to provide legal advice or representation to Elpida Memory Inc. or that Elpida had a reasonable belief that they were so authorized."; concluding that a Japanese patent advisor was not within the privilege)

Case Date Jurisidction State Cite Checked
2013-03-20 Federal CA B 3/14

Chapter: 9.8

Case Name: Buyer's Direct Inc. v. Belk, Inc., No. SACV 12-00370-DOC (MLGx), 2012 U.S. Dist. LEXIS 57543, at *7, *8-9 (C.D. Cal. Apr. 24, 2012)
April 2, 2014 (PRIVILEGE POINT)

"Applying Another Country's Privilege Law Can Sometimes Expand Privilege Protection"

As a matter of comity, U.S. courts usually apply other countries' privilege laws to purely overseas communications that do not "touch base" with the United States. Because most European countries (and the EU itself) do not extend privilege protection to in-house lawyers' communications, in many situations applying foreign privilege law decreases possible privilege protection for U.S. corporations.

However, in some contexts, foreign law offers a greater chance of privilege protection than U.S. law normally provides. In Cadence Pharmaceuticals, Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661 (S.D. Cal. Feb. 3, 2014), the court assessed communications in Germany involving a patent agent, which dealt with a European patent application. The court concluded that the communications did not "touch base" with the U.S., and therefore applied German law. Id. at *8-9. The court extended privilege protection to the communications – relying on a European patent lawyer's affidavit in holding that "[i]n Germany, communications with patent agents are afforded confidentiality, even though patent agents are not admitted to practice law." Id. at *18. United States courts disagree about privilege protection for patent agents here. Buyer's Direct Inc. v. Belk, Inc., No. SACV 12-00370-DOC (MLGx), 2012 U.S. Dist. LEXIS 57543, at *7, *8-9 (C.D. Cal. Apr. 24, 2012) (recognizing "a split in authority" on privilege protection for registered patent agents proceedings before the U.S. PTO).

Because applying other countries’ privilege law might expand or contract available privilege protection, lawyers whose clients communicate to or from other countries must always assess the possible risks and rewards.

Case Date Jurisidction State Cite Checked
2012-04-24 Federal CA
Comment:

key case


Chapter: 9.701

Case Name: Allen v. TV One, LLC, Civ. A. No. DKC 15-1960, 2016 U.S. Dist. LEXIS 169641 (D. Md. Dec. 8, 2016)
("While the attorney-client privilege extends to communications with in-house counsel, all communications with in-house counsel are not necessarily privileged.")

Case Date Jurisidction State Cite Checked
2016-12-08 Federal MD

Chapter: 9.701

Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case. No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
("The law is well-settled that '`the attorney-client privilege applies to 'in-house' counsel just as it would to any other attorney.' . . . Nonetheless, because a corporation's in-house counsel often wears more than one hat, courts look closely at claims of privilege asserted by corporate employees involving communications with in-house counsel.").

Case Date Jurisidction State Cite Checked
2015-09-03 Federal WV

Chapter: 9.701

Case Name: Roberts Technology Group, Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015)
("Here, we agree communications between Curwood (including its management or employees) with its in-house counsel seeking and providing legal advice are privileged. . . . These communications are privileged when Curwood's documents evidence their in-house counsel's advice or otherwise reflect counsel's involvement in decisions relating to legal matters, even if the communication is between two members of Curwood's management.")

Case Date Jurisidction State Cite Checked
2015-07-20 Federal PA
Comment:

key case


Chapter: 9.701

Case Name: Stryker Corporation v. Ridgeway, Case No. 1:13-CV-1066, Case No. 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741 (W.D. Mich. July 20, 2015)
("Ridgeway's assertion that some of the emails were not between attorneys was not sufficient, in and of itself, to suggest that Stryker's assertion of privilege was improper. . . . In the corporate context, the privilege applies to communications of any corporate employee on matters within the scope of the employee's corporate duties when the employee is aware that the information is being provided to enable the corporation to obtain legal advice.")

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

key case


Chapter: 9.701

Case Name: Cohen v. Trump, Civ. No. 13-CV-2519-GPC (WVG), 2015 U.S. Dist. LEXIS 74542 (S.D. Cal. June 9, 2015)
(holding that an executive of a corporate affiliate was within the privilege, so his presence did not destroy the privilege protection, and disclosing privileged communications that did not waive the privilege; "It protects communications with in-house counsel as well as outside attorneys.")

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

Chapter: 9.701

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5055, 2014 U.S. App. LEXIS 12115, at *7 (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; "But Upjohn does not hold or imply that the involvement of outside counsel is a necessary predicate for the privilege to apply.")

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

Chapter: 9.701

Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *1-2 (M.D. Ga. Dec. 6, 2013)
("Whether documents are protected by the attorney-client privilege is a substantive issue governed by state law. Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 691 (N.D. Ga. 2012). In Georgia, the attorney-client privilege generally applies in the context of communications between in-house corporate counsel and the corporation's management and employees.")

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

Chapter: 9.701

Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162330, at *17 (D. Conn. Nov. 14, 2013)
("[M]any of the documents withheld are draft documents sent to in-house counsel for legal review, which are protected.")

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

Chapter: 9.701

Case Name: Jemsek v. Jemsek Clinic, P.A. (In re Jemsek Clinic, P.A.), Ch. 11 Case No. 06-31760, Adv. No. 07-03008, 2013 Bankr. LEXIS 3120, at *45 (W.D.N.C. Aug. 2, 2013)
("The privilege applies to communications between a corporate party and its in-house counsel.")

Case Date Jurisidction State Cite Checked
2013-08-02 Federal NC B 4/14

Chapter: 9.701

Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 4 (W.D. Va. May 31, 2013)
("It applies to individuals and corporations, and to in-house and outside counsel.")

Case Date Jurisidction State Cite Checked
2013-05-31 Federal VA B 9/14

Chapter: 9.701

Case Name: McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), Ch. 7 Case No. 09-14950-BFK, Adv. No. 11-01427, 2013 Bankr. LEXIS 589, at *6 (E.D. Va. Feb. 14, 2013)
("There is no dispute that the attorney client privilege covers communications between a corporation's in-house counsel and its employees.")

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

Chapter: 9.701

Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 469 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "[T]here is no question that the attorney-client privilege extends not only to the lawyer giving advice but to any persons assisting the lawyer in providing legal services. It also extends to the client's in-house counsel and agents." (footnote omitted))

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

Chapter: 9.701

Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *7 (E.D. Va. May 12, 2011)
("There is no dispute that attorney-client privilege applies to corporations or that attorney-client privilege may protect communications between in-house counsel and corporation employees of all levels. Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 696 (E.D. Va. 1987).")

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

Chapter: 9.701

Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *9 (W.D. Va. Dec. 8, 2006)
("The protection applies equally to communications between a corporate party and its in-house counsel and to its communications with any retained outside counsel.")

Case Date Jurisidction State Cite Checked
2006-12-08 State VA

Chapter: 9.701

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 (W.D. Va. 2005)
("It applies to individuals and corporations, and to in-house and outside counsel.")

Case Date Jurisidction State Cite Checked
2005-01-01 Federal VA N 3/06

Chapter: 9.701

Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *22 (E.D. Va. June 10, 2004)
("The attorney-client privilege 'applies to individuals and corporations, and to in-house and outside counsel.' U.S. v. Cohn, 303 F. Supp. 2d 672, 679 (D. Md. 2003).")

Case Date Jurisidction State Cite Checked
2004-06-10 Federal VA

Chapter: 9.701

Case Name: X Corp. v. Doe, Civ. No. 92-338-A, 1992 Dist. LEXIS 13612 (E.D. Va. Aug. 25, 1992)
(enjoining a former in-house lawyer and his lawyer from disclosing privileged documents in-house lawyer retained when he was terminated for allegedly complaining about corporate misconduct; refusing to order the former in-house lawyer to return the documents to the company; "It is well-settled that the privilege protects corporate as well as individual clients . . . And that it attaches to in-house as well as outside counsel.")

Case Date Jurisidction State Cite Checked
1992-08-25 Federal VA

Chapter: 9.701

Case Name: Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 141, 413 S.E.2d 630, 638 (Va. 1992)
(recognizing that the attorney-client privilege can exist between a corporation and its in-house lawyer)

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

Chapter: 9.701

Case Name: Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 141, 413 S.E.2d 630, 638 (Va. 1992)
(recognizing that the attorney-client privilege can exist between a corporation and its in-house lawyer)

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

Chapter: 9.701

Case Name: Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 696 (E.D. Va. 1987)
("It is well-settled that the attorney-client privilege does attach to corporations as well as to individuals. Furthermore, communications between a corporation's in-house counsel and employees of that corporation may be protected by the attorney-client privilege." (citations omitted))

Case Date Jurisidction State Cite Checked
1987-01-01 Federal VA

Chapter: 9.701

Case Name: Henson v. Wyeth Lab., Inc., 118 F.R.D. 584, 587 (W.D. Va. 1987)
(protecting communications to and from an in-house lawyer)

Case Date Jurisidction State Cite Checked
1987-01-01 Federal VA

Chapter: 9.701

Case Name: Inta-Roto, Inc. v. Aluminum Co., 11 Va. Cir. 499, 500 (Va. Cir. Ct. 1980)
("[t]hat such [attorney-client] privilege does apply to in-house counsel is clear")

Case Date Jurisidction State Cite Checked
1980-01-01 State VA

Chapter: 9.702

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 186 (Va. Cir. Ct. 2000)
("Clearly, the privilege exists for communications between Mahoney, in-house counsel for Media General, and McDonald, an employee of Media General. Of course, the protection from disclosure extends to communications between Mahoney and either McDonald or other Media General employees, where such communications assisted Mahoney in rendering legal advice and other services to Media General concerning the complaint of harassment and plaintiff's termination.")

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

Chapter: 9.704

Case Name: Heckler & Koch, Inc. v. German Sport Guns GMBH, Case No. 1:11-cv-1108-SEB-TAB, 2013 U.S. Dist. LEXIS 76580, at *20-21, *25-26, *26-27 (S.D. Ind. May 31, 2013)
(finding the common interest doctrine inapplicable; "The next issue relates to the somewhat complicated relationship between Plaintiffs, Continental [intellectual property protection firm], and Seymour. Defendants argued that because Seymour is counsel of record for Plaintiffs and in-house counsel for Continental she lacks 'independence of counsel.' Defendants claim that this Court is the only court to permit in-house counsel of an investigatory company to also serve as outside counsel for clients of an investigatory company."; "[T]he primary issue before the Court is this: if Seymour engaged in the unauthorized practice of law or violated the professional rules of conduct, do those impermissible practices retroactively waive attorney-client privilege and work product protections? Defendants' briefs in support of their motion to compel cited no legal authority that requires or even discusses such a waiver. On the contrary, the Court notes that Seymour is a licensed attorney and has been counsel of record since August 2011." (footnote omitted); "To permit retroactive waiver of privilege and work product protections for a client who is consulting with a licensed attorney that has been counsel of record in this and numerous other cases is contrary to the purposes of privilege and work product. . . . If Defendants believe Seymour is engaging in inappropriate conduct, then they should file a disciplinary complaint or a motion for disqualification.")

Case Date Jurisidction State Cite Checked
2013-05-31 Federal IN B 3/14

Chapter: 9.705

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

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

Chapter: 9.705

Case Name: Allen v. TV One, LLC, Civ. A. No. DKC 15-1960, 2016 U.S. Dist. LEXIS 169641 (D. Md. Dec. 8, 2016)
("While the attorney-client privilege extends to communications with in-house counsel, all communications with in-house counsel are not necessarily privileged.")

Case Date Jurisidction State Cite Checked
2016-12-08 Federal MD

Chapter: 9.705

Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2016)
(acknowledging that a public relations agent can be within privilege protection, but finding that the public relations consultant in this case was providing independent public relations advice in some of the withheld documents rather than assisting a lawyer in giving legal advice; "In the present case a number of contested documents were sent to or from Riddell's in-house corporate counsel. It is of course true that the attorney-client privilege applies to in-house counsel. . . . However, it is well-recognized in the corporate context that it is difficult to apply the attorney-client privilege because in-house counsel often participates in and renders decisions about business issues.")

Case Date Jurisidction State Cite Checked
2016-12-05 Federal NJ

Chapter: 9.705

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

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

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

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

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

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

key case


Chapter: 9.705

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

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

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

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

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

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

key case


Chapter: 9.705

Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("[I]t does not matter whether Carroll is in-house counsel or outside counsel. The case that Plaintiffs cite in support of their assertion that in-house counsel are subject to heightened scrutiny does not apply California law. . . . The Court has not found any case applying California law that subjected in-house counsel to heightened scrutiny. . . . And no heightened scrutiny exception exists in California's statutory regime.")

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

key case


Chapter: 9.705

Case Name: Casey v. Unitek Global Svcs., Inc., Civ. A. 14-2671, 2015 U.S. Dist. LEXIS 15715 (E.D. Pa. Feb. 9, 2015)
(in a former employee's discrimination case against her former employer, finding that the plaintiff did not act as a lawyer, and therefore was not barred from pursuing a wrongful termination claim; "When a corporation claims privilege over communications with in-house counsel, they 'must clearly demonstrate that the communication in question was made for the express purpose of securing legal not business advice.")

Case Date Jurisidction State Cite Checked
2015-02-09 Federal PA

Chapter: 9.705

Case Name: XTL-NH, Inc. v. New Hampshire State Liquor Comm. and Exel, Inc., No. 2013-CV-119, 2014 N.H. Super. LEXIS 17 (N.H. Sup. Ct. Oct. 1, 2014)
("Because an in-house lawyer often serves as a business strategist or a financial consultant, the invocation of the attorney-client privilege may be questionable in many instances involving in-house counsel, because the distinctions are often hard to draw.")

Case Date Jurisidction State Cite Checked
2014-10-01 State NH

Chapter: 9.705

Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *5 (W.D. Wash. Sept. 19, 2014)
("Extra scrutiny is required where in-house counsel is involved, as they often act in both a legal and non-legal business capacity, and communications made in this latter capacity are not privileged.")

Case Date Jurisidction State Cite Checked
2014-09-19 Federal WA

Chapter: 9.705

Case Name: Premier Dealer Servs., Inc. v. Duhon, Civ. A. Nos. 12-1498 & -2790 SECTION: "H" (4), 2013 U.S. Dist. LEXIS 160204, at *22-23 (E.D. La. Nov. 8, 2013)
("Kurt Wolery is Premier Dealer's in-house counsel, but is not a part of its trial team. Generally speaking, the communications of Kurt Wolery, under the right circumstances may be protected by the attorney-client privilege, if the dominant purpose of the communication is to further the objectives of the attorney-client relationship. The reality is that the attorney-client privilege does not apply to an in-house counsel communication where the in-house counsel was acting as a negotiator or providing business advice.")

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

Chapter: 9.705

Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *6 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "Although the underlying policy considerations are identical, courts and commentators alike have frequently expressed concern that the privilege may be used by corporations to create a large 'zone of secrecy' for communications whose probative value could be important to a fair resolution of disputes. . . . This is particularly true with regard to in house counsel, through which corporations routinely route all business correspondence. Accordingly,'. . . the privilege is strictly construed to apply only where necessary to protect its underlying policy aims.'" (citation omitted))

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

key case


Chapter: 9.902

Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at *32 (S.D.N.Y. Oct. 24, 2013)
(applying the "touch base" test in applying U.S. law to some Chinese documents, but Chinese law (which does not include privilege protection) to documents prepared before the plaintiff demanded compensation from defendant for allegedly aiding terrorists; "[T]here are cognizable distinctions between a 'lawyer' and an 'in-house counsel' in Chinese law, most critically that it is 'not essential' for in-house counsel to be members of a bar or have 'some form of legal credentials.'" (internal citation omitted); largely confirmed in a November 19, 2013, opinion)

Case Date Jurisidction State Cite Checked
2013-10-24 Federal NY B 5/14

Chapter: 9.903

Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM) (FM), 2013 U.S. Dist. LEXIS 96721, at *25-26, *26-27 (S.D.N.Y. July 8, 2013)
(finding the privilege inapplicable to a communication with an unlicensed in-house Dutch lawyer; finding that the Gucci II holding inapplicable; "The facts here are not at all comparable to those in Gucci II. At the outset, it is undisputed that Mr. Boonstra is not -- and never has been -- licensed in any jurisdiction. Second, there is no evidence that Mr. Boonstra ever held himself out as a licensed attorney or performed tasks (such as appearing in court) that would have suggested that he was admitted to the Netherlands bar. Third, although in-house counsel must be admitted to the bar in order to practice in the United States, in-house lawyers in the Netherlands are permitted to be, and frequently are, unlicensed. Moreover, Dutch law requires that the employer of a licensed in-house attorney sign a professional charter committing the employer to honor its attorney's independence. . . . Given that affirmative obligation, the Citco Defendants cannot credibly argue that they were reasonably mistaken as to Mr. Boonstra's licensure status."; also holding that the privilege would not be applicable even if a company misunderstood Dutch law's lack of protection; "[E]ven if the Citco Defendants mistakenly believed that Dutch law protected their communications with an unlicensed in-house attorney, the reasonable belief exception would not apply. Such an argument necessarily is predicated upon a mistake of law, but the reasonable belief exception applies only in situations where the client makes an 'excusable mistake of fact.'. . . Indeed, a 'client's beliefs, subjective or objective, about the law of privilege [do not] transform an otherwise unprivileged conversation into a privileged one.'. . . The Citgo Defendants' erroneous views on Dutch privilege law therefore cannot form the basis for the relief they presently seek.")

Case Date Jurisidction State Cite Checked
2013-07-08 Federal NY B 9/13

Chapter: 9.903

Case Name: Renfield Corp. v. E. Remy Martin & Co., S.A., 98 F.R.D. 442, 444 (D. Del. 1982)
(holding that the attorney-client privilege covers overseas communications between a French in-house lawyer and a French client; "I assume that French law would not grant a privilege to refuse to disclose these documents. Therefore, I must consider whether United States law provides such a privilege. I conclude that it does. Preliminarily, it is clear that the communications were intended and reasonably expected to be confidential. Thus, the only issue of any substance is whether the privilege is available where the attorney is a French 'in-house counsel.' Plaintiffs have urged that because French 'in-house counsel' are not members of a bar, the privilege is unavailable. In order to decide this, it is necessary to have some understanding of the structure of the French legal profession. The organization of the French legal profession is unlike that in the United States. . . . [A]n individual who is employed by a corporation is not permitted by law to be on the list of 'avocats' [may appear in court]or 'conseils juridiques' [may not appear in court]. Nevertheless, these individuals are not prohibited from giving legal advice. . . . [T]he requirement is a functional one of whether the individual is competent to render legal advice and is permitted by law to do so. French 'in-house counsel' certainly meet this test; like their American counterparts, they have legal training and are employed to give legal advice to corporate officials on matters of legal significance to the corporation." (footnote omitted))

Case Date Jurisidction State Cite Checked
1982-01-01 Federal DE B 6/13