McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Chapter: 19.002

Case Name: Martin v. Copeland, Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756 (N.D. Ind. July 5, 2018)

(holding that a former City employee could not rely on a open records law to overcome the City's work product protection for some documents in the plaintiff's personnel file, and that the City did not waive its work product protection when it put the protected documents in the personnel file; "Plaintiff also argues that Defendants waived any possible claim to attorney-client privilege when they placed the attorney communications into Plaintiff's personnel file. Defendants disagree, noting that no waiver of the privilege occurred because the omitted documents were never disclosed to Plaintiff. It is uncontested that Plaintiff never received a copy of the omitted communications; thus, no waiver of the attorney-client privilege occurred.")

Case Date	Jurisdiction	State	Cite Checked
2018-07-05	Federal	IN

Comment:

key case

Chapter: 19.2

Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)

("[T]he privilege is subject to waiver where the communications are made in the presence of, or to, third persons.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-19	Federal	NE

Chapter: 19.2

Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)

("If the individual or entity requesting legal information had no expectation of confidentiality at the time of the communication, then that person cannot later seek to shield that information simply because it was regarding a legal issue.")

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

Chapter: 19.2

**Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *17 (D. Nev. June 18, 2013)**

("The attorney-client privilege is waived when communications are made in the presence of third parties.")

Case Date	Jurisdiction	State	Cite Checked
2013-06-18	Federal	NV	B 4/14

Chapter: 19.2

**Case Name: Callaway v. Cofield (In re Cofield), Case No. 11-02034-8-SWH, Adv. No. 12-00270-8-SWH-AP, 2013 Bankr. LEXIS 1555, at *9 (E.D.N.C. Apr. 11, 2013)**

("[W]here a client has no reasonable expectation of confidentiality, the attorney-client privilege is unavailable.")

Case Date	Jurisdiction	State	Cite Checked
2013-04-11	Federal	NC	B 3/14

Chapter: 19.2

Case Name: I.R.S. Gen. Couns. Mem. 20123901F, at 2, 3, 4 (Aug. 27, 2012) (available at http://www.irs.gov/pub/irs-lafa/20123901F.pdf)

(criticizing a tax payer's privilege log, and requiring additional information about third parties mentioned on the log; "Several of the entries in the privilege log refer to meetings at which individuals other than directors or officers of Taxpayer were present. Specifically, the first, second, and third unnumbered entries list three attendees at the meeting who are employees of ___________. The eleventh, twelfth, and thirteenth unnumbered entries list an attendee from _________, an investment banker and 'strategic advisor' to Taxpayer. The fourteenth and fifteenth unnumbered entries list attendees from ____________, financial advisors to Taxpayer."; "Taxpayer is the proponent of the privilege and bears the burden of proving that the privilege applies, including that it has not waived the privilege. Taxpayer provided no information for you to evaluate whether the outside advisors who attended the meetings had a sufficient relationship to Taxpayer and to the transactions that were the subject of the legal advice. Without such a showing, Taxpayer has not demonstrated that the communications were, in fact, confidential and has not demonstrated that if the communications were confidential, that it has not waived the privilege."; "Should you decide to ask Taxpayer to supplement its privilege log, Taxpayer should provide information about the extent of the consultants' relationship to Taxpayer. The following questions are designed to seek additional information in this regard: Please quantify the percentage of time spent on the transaction by consultants in relation to the total time spent on the transaction by both consultants and employees. Please state who (name, employer, title) provided the information to counsel upon which the advice was based. Please describe what, if any, capacity the consultants are authorized to act for Taxpayer. Please explain where the consultants are in Taxpayer's chain-of-command regarding the subject matter of the legal services. Please explain to what extent, if any, the consultants are personally responsible for or are involved in the activity that might lead to liability for Taxpayer. Please provide, to the extent not already provided, a detailed factual explanation showing that the consultant is the functional equivalent of one of Taxpayer's employees and include supporting documentation (for example but not limitation, consulting agreements, letters of engagement).")

Case Date	Jurisdiction	State	Cite Checked
2012-08-27	Other	Other	B 6/13

Chapter: 19.3

Case Name: United States v. Tirado, Nos. 17-1127, 17-1128, 2018 U.S. App. LEXIS 12177 (1st Cir. App. May 9, 2018)

(holding that a criminal defense lawyer did not violate his client's rights by advising the court of the substance of communications that had occurred with his client, accompanied by relatives and friends, because the communications were not privileged; "The accuracy of Mr. Pine's [Lawyer] description of these other parties as having been present at the discussion has never been challenged. The consequence is that when speaking with them present, the defendant could not assume that his words were privileged statements to his lawyer, and thus no right to preserve privilege could attach.")

Case Date	Jurisdiction	State	Cite Checked
2018-05-09	Federal

Comment:

key case

Chapter: 19.3

Case Name: Gottwald v. Sebert, 653118/2014, 2017 N.Y. Misc. LEXIS 4276 (N.Y. Sup. Ct. Nov. 8, 2017)

(finding that a public relations firm hired by lawyer Mark Geragos on behalf of the singer Keisha was outside privilege protection; "There is no dispute that the attorney-client privilege is not automatically vitiated merely by virtue of the involvement of a public relations firm.")

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

Chapter: 19.4

**Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)**

November 21, 2018 (PRIVILEGE POINT)

Court Demands That Defendant Identify Those With Access to Privileged Documents

In 2015, the court handling a malicious prosecution case against the Town of Islip held that the Town had waived privilege protection for documents that "were apparently accessible by all Town employees, " even those without a need to know, and that might also have been accessed by members of the public "in days past." Norton v. Town of Islip, No. CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114, at *11, *14 (E.D.N.Y. Sept. 18, 2015).

The parties' privilege fights have continued, and plaintiff recently challenged the Town's declaration that "'[t]here is no reason to believe' that the privileged documents were accessed by anyone other than those individuals and offices to whom they were addressed." Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018). The court again addressed the access issue. After explaining that it was "unable to credit the Town Defendants' conclusion about access of the subject documents," the court ordered the Town to provide "affidavits from an individual or individuals with knowledge setting forth where each document was kept, including all individuals who had access to the documents and when that access was provided." Id. at *25, *28. And the court then doubled down, emphasizing that "[f]or the sake of clarity, the Court is directing the Town Defendants to explain who had access, not just who actually accessed the documents at issue and what was done to maintain confidentiality." Id. at *28.

It is difficult to imagine any institutional client (governmental or corporate) being able to comply with such a remarkable requirement.

Case Date	Jurisdiction	State	Cite Checked
2018-10-16	Federal

Chapter: 19.4

**Case Name: Martin v. Copeland, Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756, at *4 (N.D. Ind. July 5, 2018).**

September 19, 2018 (PRIVILEGE POINT)

Court Assesses Implications of Privileged Communications' Inclusion in Employees' Personnel Files

Attorney-client privilege protection normally evaporates when the client abandons its confidentiality expectation. Under this basic principle, does placing privileged communications in an employee's personnel file forfeit privilege protection?

In Martin v. Copeland, , a terminated employee argued that her former employer "waived any possible claim to attorney-client privilege when [it] placed the attorney communications into Plaintiff's personnel file." Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756, at *4 (N.D. Ind. July 5, 2018). The court rejected plaintiff's argument, noting that "[i]t is uncontested that Plaintiff never received a copy of the omitted communications; thus, no waiver of the attorney-client privilege occurred." Id. The obvious implication is that plaintiff's review of the file might have destroyed the company's privilege.

It is unclear whether plaintiff could have (but did not) access her personnel file while employed. If so, defendant's argument would be more difficult. But most courts would still allow companies to withhold privileged documents that employees never saw.

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

Chapter: 19.4

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2018 U.S. Dist. LEXIS 14851 (S.D.N.Y. Jan. 29, 2018)

(holding that a plaintiff lawyer's questionnaire and prospective clients' responses did not deserve privilege protection, but that emails about the lawyer's advertisements deserved work product protection; "[T]he Court concludes that the Questionnaires are not protected by the attorney-client privilege. To establish that the privilege applies, the party asserting it must generally show '(1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice.' In re Cty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007). A prospective client's answers to a lawyer's questionnaire can, in some circumstances, qualify for such protection. See, e.g., Schiller v. City of New York, 245 F.R.D. 112, 115-18 (S.D.N.Y. 2007) (citing cases). But Lead Counsel's assertion of privilege here founders (at a minimum) on the requirement of confidentiality. That is, whether or not the webpage at issue made clear that the submissions were going to a law firm for evaluation (as to which there is some dispute), it did not provide any assurance to users of confidentiality. Even more problematic for Lead Counsel's position, the webpage linked to TCA's legal notice, which expressly warned users that any 'information' a user provided through the website was 'considered nonconfidential and nonproprietary'; that TCA could disclose it to third parties under various circumstances (beyond what the privilege would allow), and that TCA could not 'guarantee that the information you submit to us will not end up in the hands of the company or person that you are complaining about.' It follows that Lead Counsel cannot establish that the privilege applies."; "Having been so warned, those who submitted data through the website cannot now invoke attorney-client privilege to keep that data out of New GM's hands.")

Case Date	Jurisdiction	State	Cite Checked
2018-01-29	Federal	NY

Chapter: 19.4

Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)

("[T]he privilege is subject to waiver where the communications are made in the presence of, or to, third persons.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-19	Federal	NE

Chapter: 19.4

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 74 n.12 (E.D. Va. 1998)

("Recall the difference between waiving the privilege (revealing the communications to someone subsequent to the privilege attaching) and the privilege never having attached in the first place (making the communication in the contemporaneous presence of a third person). This distinction causes confusion in analyzing subject matter waiver. The Fourth Circuit speaks of the 'waiver' as to one document effecting the subject matter 'waiver' as to all documents. Does the same analysis apply to the case where the privilege has not been technically 'waived,' but instead never attached in the first place? In other words, if CBN and C&L made their communication with Ralph Reed present, they did not really 'waive' the privilege because no privilege ever came into existence. Would such a communication also act to remove the attorney-client privilege from communications of the same subject matter? This question would be crucial in this case had the Court found a document that CBN has used in litigation to its advantage. However, the Court need not reach that question here because it has determined that subject matter waiver is not an issue."), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

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

Chapter: 19.4

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 71-72 (E.D. Va. 1998)

("Third party disclosure has two effects on the attorney-client privilege. If the communication between attorney and client takes place in the presence of a third party, and that third party hears the communication contemporaneously with its being made, then the attorney-client privilege for that information never existed. . . . If, on the other hand, the communication took place in private, between the attorney and the client alone, then the privilege comes into existence at the time the communication occurred. Subsequent disclosure to a third party then waives the privilege . . . . Thus, it is technically proper to speak of waiver only in the case where the attorney or client communicates the privileged information to a third party after the privilege has come into existence. If the third party is present when the communication is made, it is not technically correct to say that the client has 'waived' the privilege because one cannot waive what never existed. Regardless of whether the privilege ever existed or whether it existed and the client waived it, the result for the communication revealed is the same. Under the common law of attorney-client privilege, the parties privy to the communication must zealously and carefully guard against disclosure to third parties. Courts in this area take almost a strict liability approach to third party disclosure. If the information ends up in the hands of a third party, courts don't want to hear how it got there. Once in the hands of a third party, the privilege, if it ever existed, is lost." (citations omitted; footnote omitted)), aff'd in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

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

Chapter: 19.5

**Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)**

November 21, 2018 (PRIVILEGE POINT)

Court Demands That Defendant Identify Those With Access to Privileged Documents

In 2015, the court handling a malicious prosecution case against the Town of Islip held that the Town had waived privilege protection for documents that "were apparently accessible by all Town employees, " even those without a need to know, and that might also have been accessed by members of the public "in days past." Norton v. Town of Islip, No. CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114, at *11, *14 (E.D.N.Y. Sept. 18, 2015).

The parties' privilege fights have continued, and plaintiff recently challenged the Town's declaration that "'[t]here is no reason to believe' that the privileged documents were accessed by anyone other than those individuals and offices to whom they were addressed." Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018). The court again addressed the access issue. After explaining that it was "unable to credit the Town Defendants' conclusion about access of the subject documents," the court ordered the Town to provide "affidavits from an individual or individuals with knowledge setting forth where each document was kept, including all individuals who had access to the documents and when that access was provided." Id. at *25, *28. And the court then doubled down, emphasizing that "[f]or the sake of clarity, the Court is directing the Town Defendants to explain who had access, not just who actually accessed the documents at issue and what was done to maintain confidentiality." Id. at *28.

It is difficult to imagine any institutional client (governmental or corporate) being able to comply with such a remarkable requirement.

Case Date	Jurisdiction	State	Cite Checked
2018-10-16	Federal

Chapter: 19.5

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2018 U.S. Dist. LEXIS 14851 (S.D.N.Y. Jan. 29, 2018)

(holding that a plaintiff lawyer's questionnaire and prospective clients' responses did not deserve privilege protection, but that emails about the lawyer's advertisements deserved work product protection; "[T]he Court concludes that the Questionnaires are not protected by the attorney-client privilege. To establish that the privilege applies, the party asserting it must generally show '(1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice.' In re Cty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007). A prospective client's answers to a lawyer's questionnaire can, in some circumstances, qualify for such protection. See, e.g., Schiller v. City of New York, 245 F.R.D. 112, 115-18 (S.D.N.Y. 2007) (citing cases). But Lead Counsel's assertion of privilege here founders (at a minimum) on the requirement of confidentiality. That is, whether or not the webpage at issue made clear that the submissions were going to a law firm for evaluation (as to which there is some dispute), it did not provide any assurance to users of confidentiality. Even more problematic for Lead Counsel's position, the webpage linked to TCA's legal notice, which expressly warned users that any 'information' a user provided through the website was 'considered nonconfidential and nonproprietary'; that TCA could disclose it to third parties under various circumstances (beyond what the privilege would allow), and that TCA could not 'guarantee that the information you submit to us will not end up in the hands of the company or person that you are complaining about.' It follows that Lead Counsel cannot establish that the privilege applies."; "Having been so warned, those who submitted data through the website cannot now invoke attorney-client privilege to keep that data out of New GM's hands.")

Case Date	Jurisdiction	State	Cite Checked
2018-01-29	Federal	NY

Chapter: 19.5

Case Name: JBGR LLC v. Chicago Title Ins. Co., 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017)

(holding that a land use consultant was outside privilege protection; "The plaintiff's repeated failure, over a period of almost two years, to seek a return of the Dempsey memo or a protective order constitutes a waiver of the privilege. . . . The plaintiffs contend that they preserved their claim of privilege by raising it in a letter to the court dated June 17, 2015; by objecting to the defendant's use of the Dempsey memo at depositions; and by communicating to the court and to the defendant their intention to claw the memo back. The record reflects, however, that the plaintiffs took no concrete steps to obtain a ruling from the court on the privilege issue or to claw the Dempsey memo back until the defendant moved to amend the answer earlier this year. The plaintiffs proffer no excuse for their failure to promptly remedy the situation after learning of the disclosure of the memo. Accordingly, the plaintiffs have waived any claim of privilege by failing to exercise reasonable care and due diligence.")

Case Date	Jurisdiction	State	Cite Checked
2017-08-02	State	NY

Chapter: 19.5

Case Name: Paulus v. J-M Manufacturing Co., Inc., B269904, 2017 Cal. App. Unpub. LEXIS 3907 (Cal. App. 2d June 8, 2017)

(declining to seal privileged documents that had surfaced years earlier; noting that its owner apparently did not adequately protect them; "In this case the rules were in place when Mr. Paulus died in 2009. Yet J-MM's counsel did not cite them or argue the principle they reflect when the summary motion was filed or when it was argued. No motion to seal was presented until after the trial court had denied the motion. Shortly after that, the parties settled the case and, pursuant to the settlement, the Paulus parties dismissed their suit with prejudice. In doing so they did not seek to preserve any claim that the documents (and any copies that might exist under J-MM's control) be returned or destroyed. The documents were not mentioned at all. And by that time it was readily knowable and indeed was known that the legal advice memorandum had been widely circulated among plaintiffs' attorneys. By the time J-MM finally sought to take some action in this case almost three years had passed. And by counsel's own acknowledgment, although not in their words, it had 'gone viral.' It was widespread and apparently being used in other litigation."; "The trial court concluded that under these circumstances a sealing order would have served no purpose. We find no abuse of discretion in the trial court's denial of a sealing order in these circumstances."; "Finally, we note that in its argument on appeal J-MM has occasionally has conflated two related but distinct concepts: sealing of records and admissibility of evidence. The trial court's first ruling in this dispute was that, while it was not ordering the records sealed, it recognized that they retained their privileged character: they were subject to the attorney-client privilege. It would have defied reason to find they were not. The documents were plainly and prominently marked as 'confidential' and 'attorney-client' material. And they dealt with a issue obviously subject to the attorney-client privilege: legal advice from attorney to client. And, we note, the parties agree that they were not cited in the moving or opposition papers on the summary judgment motion. Thus, while the documents were not sealed, they also were not admissible over attorney-client objection.")

Case Date	Jurisdiction	State	Cite Checked
2017-06-08	State	CA

Chapter: 19.5

Case Name: Cooper v. Meritor, Inc., Civ. A. No. 4:16-cv-052 DMB-JMV Consolidated with Civ. A. No. 4:16-cv-053 DMB-JMV, Civ. A. No. 4:16-cv-054 DMB-JMV, CIV. A. No. 4:16-cv-055-DMB-JMV, CIV. A. No. 4:16-cv-056-DMB-JMV, 2017 U.S. Dist. LEXIS 4727 (N.D. Miss. 1/12/17)

(analyzing the waiver impact of fifteen documents Textron created when it owned a Mississippi facility from 1989 to 1996; explaining that Textron sold assets of the company in 1999; disagreeing with Textron's assertion that the asset purchase agreement excluded the privileged environmental documents; noting that Textron left the documents at the facility without any restrictions on access, and did not object when the asset purchaser went bankrupt in 2004 and all of its assets were sold to another company out of bankruptcy; finding that Textron waived privilege protection for the fifteen documents, even though Textron claims to have forgotten that the documents were left at the facility; "In the instant case, Textron asserts a privilege over fifteen (15) documents created from 1989 to 1996 during a period of time it owned and operated a wheel cover manufacturing facility in Grenada, Mississippi. In 1999, Textron entered and subsequently consummated an asset sale agreement with Grenada Manufacturing, LLC (hereinafter sometimes 'the APA'). According to Textron, it did not transfer ownership of documents related to environmental matters, including the subject 15 documents, to Grenada Manufacturing, LLC as part of that sale. It is Textron's positon that it retains ownership of all such documents and any affiliated privilege with respect thereto."; "According to an affidavit supplied by Textron, boxes of these environmental documents, together with other business records of Textron's operations prior to the 1999 sale, were left by Textron at the Grenada facility after the sale. Indeed, Textron contracted for a right to access the documents for a period of time following the sale. APA 14.1. In the court's view, Textron's claim of retained ownership of the documents, even if it were convincing, does not satisfactorily answer whether its treatment of those assets waived any privilege that might be claimed with regard to any of them."; "Textron is faced with the fact that it intentionally left documents that it must acknowledge (because it is material to its claim of retained ownership of the documents in the first instance) it knew concerned environmental matters related to releases from the business prior to 1999. These documents were intentionally left unattended and unrestricted in the hands of yet another party -- this time, Ice Industries, Inc. Though Textron was given notice of the asset transfer to Ice Industries, Inc., it made no effort to retrieve the environmental documents or to even review them for privilege."; "In other words, Textron plainly waived any privilege that would have otherwise been retained if the documents had, in fact, been excluded from the purchase and asset sale."; "Textron argues that unless it realized that the documents concerning environmental matters that it freely gave possession of to others for decades did in fact contain privileged documents, that disclosure could not waive any privilege attendant to the document(s)."; "The court is unpersuaded."; "[T]here is nothing about the 'practical consequences doctrine' that dictates a different outcome. The practical outcome of leaving -- for decades -- documents a company contends it owns in possession of another, with no provision for protection of any privileged communications therein, not to mention permitting the subsequent transfer of possession to others on additional occasions, all without any effort to retrieve them prior to the instant litigation, or to otherwise review them to remove privileged materials has the obvious practical and legal consequence of waiver of any associated privileges.")

Case Date	Jurisdiction	State	Cite Checked
2017-01-12	Federal	MS

Comment:

key case

Chapter: 19.5

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)

(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "[I]t appears that Dechert did not seek any arrangement by which to retain custody of such data as was on the office server or to delete that data on the server, which it left behind. It also made no provision for safeguarding any of the client confidences or other possibly protected materials reposing on the back-up tapes."; "Plainly stated, Dechert's conduct throughout the relevant period cannot be viewed as reasonable."; "First, defendant apparently abandoned the joint server without taking any action to ensure either that the Dechert data on that system was removed or that the server itself was safeguarded from access by others."; "Second, as noted, Dechert was on notice that all of the data being placed on the server was being recorded and saved on a set of back-up tapes that were apparently held by CF.")

Case Date	Jurisdiction	State	Cite Checked
2014-07-31	Federal	NY

Chapter: 19.5

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)

(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "As for the balance of the considerations traditionally invoked on a claim of inadvertent disclosure, they do not assist Dechert's motion. Although defendant asserts that it acted promptly to rectify the situation with the tapes dating the disclosure of the issue to its attorney in February 2014 that is not the case. As noted, Dechert had to know back in 2005, or at the latest in January 2006, that it was leaving the security of its data to an unknown fate when it left the server in the Paris office without cleansing it.")

Case Date	Jurisdiction	State	Cite Checked
2014-07-31	Federal	NY

Chapter: 19.5

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)

(holding that the general counsel did not waive privilege protection for communications with his previous employer by storing them on a password protected site; "Morosoff did not waive the privilege merely by storing the disputed documents on the worksite of his current employer. Morosoff has kept the documents on a password-protected hard drive, and there is no evidence that anyone at CIM other than Morosoff had access to, much less actually accessed, the privileged documents, and Morosoff's uncontradicted, sworn statements establish the contrary. While Morosoff appears to have kept copies of the documents on CIM's network for archival purposes, attorney-client communications do not lose their privileged character 'for the sole reason that [they are] communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communications may have access to the content of the communication[s].' As such, there has been no disclosure and consequently no waiver.")

Case Date	Jurisdiction	State	Cite Checked
2014-03-20	Federal	CA

Chapter: 19.5

**Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at 17, 18-19 (N.D. Cal. Mar. 26, 2013)**

(holding that a publication by the New York Times of a 1995 Akin Gump memorandum to its client Wal-Mart did not result in a waiver; also finding that Wal-Mart disclosed part of the memorandum in responding to the New York Times story, but that the disclosure did not trigger a subject matter waiver under the von Bulow (In re von Bulow, 828 F.2d 94 (2d Cir. 1987)) doctrine; "Plaintiffs nonetheless argue that the Wal-Mart has not met its burden of showing that it took sufficient precautions to maintain the Memo's confidentiality. They contend that the Court should infer from the disclosures themselves that Wal-Mart 'has not safeguarded its attorney-client communication like 'crown jewels.'" (citation omitted); "Wal-Mart has submitted evidence under penalty of perjury establishing its extensive efforts to maintain the Memo's confidentiality. Indeed, when Sellers found the Memo on his desk, he did not read past the top of the first page because the Memo was so distinctively marked as confidential and attorney-client privileged.")

Case Date	Jurisdiction	State	Cite Checked
2013-03-26	Federal	CA	B 3/14

Chapter: 19.5

**Case Name: In re Marriage of Kurotsuchi, Nos. 1-11-0638 & -2319, 2013 Ill. App. Unpub. LEXIS 377, at 27, 28, 30, 31 (Ill. App. Ct. Mar. 1, 2013)**

(not for citation) (analyzing a situation in which a husband obtained access to his wife's email, but did not explain how; ultimately assuming that the husband misappropriated the email; "James asserts Susan waived the privilege when she used the parties' shared computer to send the e-mails and sent the first e-mail from the parties' shared e-mail account. He asserts Susan's failure to delete the first e-mail to her attorney, sent from a shared computer with at least one shared e-mail account and with shared computer and e-mail passwords, forfeited any expectation of confidentiality because she knew the e-mail was available to a third person."; "There is some argument to be made that, had Susan left a printed copy of the e-mail where James could find it or had left it showing on the shared computer screen where James could read it, then she waived the confidentiality attached to the e-mails. . . . He does not explain how he came to see the e-mails at all other than to claim that they were stored on a shared computer."; "James does not explain how he came to have access to an e-mail sent from a computer and an e-mail account to which he did not have passwords. This leads to the conclusion that he misappropriated the second e-mail."; "We, therefore, find that the court did not abuse its discretion when it refused to consider the e-mails in deciding Susan's motion for partial summary judgment.")

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

Chapter: 19.5

**Case Name: United States v. Finazzo, Np. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *41-42 (E.D.N.Y. Feb. 19, 2013)**

(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "Finazzo's position that one cannot 'waive' privilege in a document that has already been inadvertently disclosed by thereafter voluntarily disclosing it to the same person reflects a serious misunderstanding of the purpose of privilege. . . . [W]aiver occurs where the proponent of the privilege takes actions wholly inconsistent with any desire to maintain confidentiality in the communication, and is entirely independent of whether that action actually 'reveals' the communication to anyone. See 24 Wright & Graham, Federal Practice & Procedure § 5507, 580 n.126 ('[I]f the client deposited his communications in the public library, the privilege would be waived, even though no one ever read them.'). . . . Where the proponent evinces no concern for confidentiality, the privilege has no value and is lost. Therefore, where a proponent of a privilege is faced with the breach of confidentiality, he or she must object, and not partake in it.")

Case Date	Jurisdiction	State	Cite Checked
2013-02-19	Federal	NY	B 2/14

Chapter: 19.5

**Case Name: Riveiro-Calder v. Cooperativa De Ahorro Y Credito De Aguadilla, Civ. 11-1702CCC, 2013 U.S. Dist. LEXIS 17697, at 9-10, 11, *13 (D.P.R. Feb. 8, 2013)**

(inexplicably holding that a company had lost its privilege when an employee removed a fax from a machine in his area of the company, which was a communication between the company and the company's lawyer about overcoming the magistrate judge's conclusion that the plaintiff's removal of the fax did not destroy the company's privilege; "Sloppy or inattentive work by an attorney resulting in a mistaken disclosure will result in forfeiture of the privilege. . . . It is a general principle that the carelessness or negligence of an attorney is imputable to the client under the agency theory."; "It is important to note that the employees identified by her as users of the fax machine worked under the supervision of plaintiff Riveiro since it has not been disputed that Mr. Riveiro was Information Systems Manager at the Cooperativa during the relevant time period. As can be inferred from the Executive Secretary's declaration, these employees had unrestricted access to the fax machine which was next to her desk. It is irrelevant if the person who left the attorney's letter at plaintiff's desk was an intern or an employee under plaintiff's supervision. The fact remains that the privileged communication went from the fax machine to his desk, and that there is no evidence that plaintiff invaded any private space to obtain it. It is undisputed that attorney López-López faxed that letter on February 14, 2011 to the only fax machine identified by defendant's own declarants to which the Information Systems employees had ready access."; "The defendant is the holder of the privilege and is also the one that knows the physical surroundings and the risks of unintentional or mistaken disclosure by receiving sensitive privileged information about the discharge of one of its employees by means of a fax machine which is available to many, not just the President, the Executive Secretary, and their inner circle. It was incumbent upon him to warn the attorney in this particular instance instead of relying on so called instructions given in the past as to the use of the mails.")

Case Date	Jurisdiction	State	Cite Checked
2013-02-08	Federal	PR	B 2/14

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 268 (E.D. Va. 2006)

("Finally, as a general matter, the City does not provide a training program or any guidelines on the protection of confidential information and privilege. . . . Where the City Attorney did state that his office shreds documents, . . . it is unclear if the recipients of the letter followed suit. Some of the Council Members stated that they 'likely' shredded the document, . . . but it is unclear if this is expected of privileged documents. Without a written policy on the handling of materials marked confidential or training on the requirements of confidentiality, the resulting patchwork of disposal and storage habits by the Council Members tends to take away from the City's assertion of privilege.")

Case Date	Jurisdiction	State	Cite Checked
2006-01-01	Federal	VA	B 11/06

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)

("From the outside, this letter looked like and was handled like any other mail that would be delivered, privileged or not. While the document itself was marked for privilege, a person would not know this unless he or she first opened the envelope, which was sealed with a reusable clasp, and read the document. The envelope was not marked confidential or privileged. . . . The envelope was not even sealed using tape or glue. . . . Any person could have opened the envelope, discovered its contents, and re-clasped the envelope without notice. The procedures for handling documents need only be reasonable. See In re Grand Jury Proceedings, 727 F.2d at 1356. Although requiring encoded documents or secret drop boxes would certainly strain the bounds of reasonableness, it is safe to say that moistening an envelope's flap and writing 'confidential' on its exterior are reasonable steps that should have been taken to deter illicit observation and warn the receiver and intermediate handlers of the presence of sensitive information. The method of delivery, that is, leaving the envelopes in what have been variously described as cabinets, drawers, or mail slots after delivery to the clerk was a reasonable method of maintaining privilege. It would have been a different question if, for example, the letters were left in open baskets or inboxes, where the general public, the cleaning staff, or other persons may have had access to them. See In re Victor, 422 F. Supp. 475 (S.D.N.Y. 1976) (holding that papers left in a public hallway not entitled to privilege).")

Case Date	Jurisdiction	State	Cite Checked
2006-01-01	Federal	VA

Comment:

key case

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)

(assessing the privilege and work product protection for a letter that a City Attorney sent to the City Council, the City Manager and other officials; finding that the letter was privileged, but that the City had waived the privilege because: the City Attorney sent the letter in an envelope that was not marked confidential or sealed; the City Attorney might have faxed the letter to a City Council Member's home where his family could have intercepted it; the City did not have a training program or guidelines on the handling and disposal of privileged documents; neither the City Attorney nor any of the recipients objected when one of the City Council Members revealed some of the letter's content at a City Council Meeting; nevertheless finding that the letter also deserved work product protection, which had not been waived; "The attorney-client privilege is not favored in the federal courts, and this Court must view the steps taken by the City to maintain the confidentiality of the letter in light of this fact."; finding that the City had not adequately protected the letter and therefore did not deserve privilege protection, but that the letter deserved work product protection)

Case Date	Jurisdiction	State	Cite Checked
2006-01-01	Federal

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267-68 (E.D. Va. 2006)

("The alleged faxing of the letter to Council Member Randall, however, does not take away from the City's position. Where fax and email communications are certainly entitled to privilege, see State of Virginia ex rel. U.S. Fidelity and Guaranty Co. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (W.Va. 1997), the fact that Randall's husband and child had access to her fax machine shows that third parties could potentially intercept such communications when they are not sent to a properly monitored machine. Because there is conflicting evidence over whether this letter was faxed, however, and in light of the other factors discussed above, the Court need not make a finding on this issue to hold that the privilege does not apply to the letter.")

Case Date	Jurisdiction	State	Cite Checked
2006-01-01	Federal	VA

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006)

("The privilege may be waived if a disclosing party does not take reasonable steps to insure and maintain the confidentiality of the information. See In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984).")

Case Date	Jurisdiction	State	Cite Checked
2006-01-01	Federal	VA

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)

("The privilege may be waived if a disclosing party did not take reasonable steps to insure and maintain the confidentiality of the information. See In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984).")

Case Date	Jurisdiction	State	Cite Checked
2006-01-01	Federal	VA

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)

("From the outside, this letter looked like and was handled like any other mail that would be delivered, privileged or not. While the document itself was marked for privilege, a person would not know this unless he or she first opened the envelope, which was sealed with a reusable clasp, and read the document. The envelope was not marked confidential or privileged. . . . The envelope was not even sealed using tape or glue. . . . Any person could have opened the envelope, discovered its contents, and re-clasped the envelope without notice. The procedures for handling documents need only be reasonable. See In re Grand Jury Proceedings, 727 F.2d at 1356. Although requiring encoded documents or secret drop boxes would certainly strain the bounds of reasonableness, it is safe to say that moistening an envelope's flap and writing 'confidential' on its exterior are reasonable steps that should have been taken to deter illicit observation and warn the receiver and intermediate handlers of the presence of sensitive information. The method of delivery, that is, leaving the envelopes in what have been variously described as cabinets, drawers, or mail slots after delivery to the clerk was a reasonable method of maintaining privilege. It would have been a different question if, for example, the letters were left in open baskets or inboxes, where the general public, the cleaning staff, or other persons may have had access to them. See In re Victor, 422 F. Supp. 475 (S.D.N.Y. 1976) (holding that papers left in a public hallway not entitled to privilege).")

Case Date	Jurisdiction	State	Cite Checked
2006-01-01	Federal	VA

Chapter: 19.12

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)

(holding that the general counsel did not waive privilege protection for communications with his previous employer by storing them on a password protected site; "Morosoff did not waive the privilege merely by storing the disputed documents on the worksite of his current employer. Morosoff has kept the documents on a password-protected hard drive, and there is no evidence that anyone at CIM other than Morosoff had access to, much less actually accessed, the privileged documents, and Morosoff's uncontradicted, sworn statements establish the contrary. While Morosoff appears to have kept copies of the documents on CIM's network for archival purposes, attorney-client communications do not lose their privileged character 'for the sole reason that [they are] communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communications may have access to the content of the communication[s].' As such, there has been no disclosure and consequently no waiver.")

Case Date	Jurisdiction	State	Cite Checked
2014-03-20	Federal	CA

Chapter: 19.13

Case Name: Kreuze v. VCA Animal Hospitals, Inc., Civ. A. No. PJM-17-1169, 2018 U.S. Dist. LEXIS 66667 (D. Md. Apr. 20, 2018)

July 18, 2018 (PRIVILEGE POINT)

"Court Protects an Employee's Personal Privileged Communications Using the Company's Email Account"

Starting 10-15 years ago, many courts addressed corporate employees' privilege claims for communications with their personal lawyers (usually employment lawyers) using their employers' email infrastructure. Most states (other than New Jersey), eventually settled on the standard articulated in In re Asia Global Crossing, Ltd., 322 B.R. 247, 256-61 (Bankr. S.D.N.Y. 2005) to reject such privilege claims – as long as the company widely circulated a personnel policy explicitly warning that such communications could be monitored, and did not deserve confidentiality or privilege protection.

The cases dwindled after that, and the matter seemed largely settled. But in Kreuze v. VCA Animal Hospitals, Inc., Civ. A. No. PJM-17-1169, 2018 U.S. Dist. LEXIS 66667 (D. Md. Apr. 20, 2018), the court protected such emails as privileged. Among other things, the court noted that: (1) the defendant's personnel policy "does not affirmatively ban personal use by its employees" but instead only warns them to keep such use "to a minimum" (id. at *3); (2) defendant "did not actively monitor Plaintiff's email account during or after her employment," but instead merely reserved the right to do so (id. at *4); (3) "Defendants do not claim that they took affirmative steps to inform employees of the policies in place, besides providing a copy of VCA's Policy" – although noting that plaintiff acknowledged the personnel policy (id. at *7); and (4) plaintiff's "acknowledgment was signed in 2009, close to five years prior to the sending of the emails." Id. at *8.

A corporation facing such a demanding application of the Asia Global standard will have a difficult time winning a privilege fight with a current or former employee. Corporations and their lawyers should monitor the case law for a possible resurgence of such pro-employee decisions.

Case Date	Jurisdiction	State	Cite Checked
2018-04-20	Federal	MD

Comment:

key case

Chapter: 19.13

Case Name: Kreuze v. VCA Animal Hospitals, Inc., Civ. A. No. PJM-17-1169, 2018 U.S. Dist. LEXIS 66667 (D. Md. April 20, 2018)

(in applying the Asia Global standard, finding that plaintiff employee had not lost privilege protection by using an employer's email account for personal privileged communications; "To assess waiver, courts have relied on a four-factor test: (1) whether the employer has a policy in place banning personal use; (2) whether the employer monitors the use of the employee's use of email; (3) whether third parties have a right to access to the computer or emails; and (4) whether the employer notified the employee, or was the employee aware, of the policy. Asia Global, 322 B.R. at 257 [In re Asia Global Crossing, Ltd., 322 B.R. 247, 256-60 (Bankr. S.D.N.Y. 2005)]. For the following reasons, the factors weigh in favor of maintaining the attorney-client privilege and DENYING Defendants' Motion."; "In addressing the first factor from Asia Global, the Court must first look to the language of VCA's Policy regarding personal use. VCA's Policy, provided to the Court by Defendant, states that 'incidental personal or non-business use of the Systems should be kept to a minimum.'. . . Reading the language as written, the Court is convinced that VCA's Policy does not affirmatively ban personal use by its employees. Indeed, the language as written directly acknowledges that personal or non-business use of the Systems will occur, and encourages its employees to keep that usage to a minimum."; "The Court is convinced that Defendants did not actively monitor Plaintiff's email account during or after her employment."; "Defendant argues that the presence of this policy, making its employees aware that VCA retains the right to monitor, warrants a finding that Defendant VCA did in fact monitor its systems. . . . However, Defendant VCA fails to provide any evidence that it actively monitored its systems during or after Plaintiff's employment. Indeed, Plaintiff correctly points to a number of courts that have opined that the ability of an employer to monitor an employee's communication is not sufficient to waive attorney-client privilege; instead, evidence of actual monitoring is needed."; "The third factor that this Court must weigh is whether third parties have a right to access an employee's computer or emails. In looking to Defendants' Motion, the Court is unable to find evidence that third parties had access to Plaintiff's email. The Court is persuaded by Plaintiff's argument that the mere presence of a policy does not impart upon the employee the presence of third party access."; "Defendants assert that a subset of people within VCA's corporate headquarters had access to all Defendant SMVRC's employee email accounts. The Court is not persuaded that access by these employees equates to a third party right of access. However, assuming arguendo that Defendants' assertion is correct, the Court is not convinced that this factor standing alone justifies a finding of waiver."; "The final factor from Asia Global that the Court must weigh is whether the employer notified the employee, or whether the employee was aware, of the use and monitoring policies. Defendants' argument rests almost entirely on their assertion that as a result of Plaintiff acknowledging receipt of VCA's Policy in June, 2009, Plaintiff had no reasonable expectation of privacy in her use of the email account. . . . However, Defendants do not claim that they took affirmative steps to inform employees of the policies in place, besides providing a copy of VCA's Policy. While the Court is cognizant of the fact that Defendants are under no obligation to require employees to acknowledge VCA's Policy on a regular basis, a majority of courts addressing this issue have found that an employee's awareness is much easier to determine if they are required to acknowledge the policy on a regular basis."; "While the Court is loath to overlook Plaintiff's 'Acknowledgment of Receipt of Employee Handbook and of At-Will Employment'. . . upon the start of her employment, the Court is persuaded by Plaintiff's attestations that the acknowledgment was signed in 2009, close to five years prior to the sending of the emails. Defendants do not provide any other evidence supporting a claim of awareness, and the Court is unwilling to breach attorney-client privilege on Defendants' singular claim of awareness in 2009. Assuming arguendo that Plaintiff was aware of VCA's Policy, the Court is comfortable preserving the attorney-client privilege on public policy grounds, specifically due to the importance of the attorney-client privilege in conjunction with the weight of the first two Asia Global factors in favor of Plaintiff.")

Case Date	Jurisdiction	State	Cite Checked
2018-04-20	Federal	MD

Comment:

Key Case

Chapter: 19.13

Case Name: Miller v. Zara USA, Inc., 4187N, 155512/15, 2017 N.Y. App. Div. LEXIS 4327, 2017 NY Slip Op 04407 (N.Y. Sup. Ct. App. June 6, 2017) (citing In re Asia [In re Asia Global Crossing, Ltd. (322 BR 247, 257 (Bankr, SD NY 2005)

(in finding that the privilege did not protect a former general counsel's laptop from the company's review; "Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff's laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any 'actual disclosure to a third party, [plaintiff's] use of [Zara's computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections' (Peerenboom, 148 AD3d at 532).")

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

Chapter: 19.13

Case Name: Miller v. Zara USA, Inc., 4187N, 155512/15, 2017 N.Y. App. Div. LEXIS 4327 (N.Y. Sup. Ct. June 6, 2017)

(holding that a former general counsel suing his former company for a wrongful termination could not prevent the company from examining communications on his laptop under the privilege protection, but that the work product doctrine might apply if the company had never accessed the communications; "Plaintiff avers, and defendant does not dispute, however, that, while reserving a right of access, Zara in fact never exercised that right as to plaintiff's laptop and never actually viewed any of the documents stored on that laptop. Given the lack of any 'actual disclosure to a third party, [plaintiff's] use of [Zara's computer] for personal purposes does not, standing alone, constitute a waiver of attorney work product protections.'")

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

Chapter: 19.13

Case Name: Miller v. Zara USA, Inc., 4187N, 155512/15, 2017 N.Y. App. Div. LEXIS 4327 (N.Y. Sup. Ct. June 6, 2017)

(holding that a former general counsel suing his former company for a wrongful termination could not prevent the company from examining communications on his laptop under the privilege protection, but that the work product doctrine might apply if the company had never accessed the communications; "Order, Supreme Court, New York County (David Benjamin Cohen, J.), entered on or about August 8, 2016, which granted plaintiff's motion for a protective order to preclude defendant from accessing plaintiff's personal documents on a company-owned laptop, unanimously modified, on the law, to deny so much of the motion as sought protection of attorney-client privilege, to direct plaintiff to produce to Supreme Court all items in his privilege log in which he asserts attorney work product protection, and to remand to Supreme Court for in camera review and determination of whether such documents are in fact protected attorney work product, and as so modified, affirmed, without costs.")

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

Chapter: 19.13

Case Name: United States v. Finazzo, Nos. 14-3213-cr(L), 14-3330-cr (Con), 2017 U.S. App. LEXIS 3972 (2nd Cir. March 7, 2017)

(analyzing if the government could use privileged communications on a company's server, because the employee used the server are adverse to the company; "Despite Finazzo's familiarity with Aéropostale's computer policies, he used his Aéropostale email address to send and receive emails with his attorney. Specifically, he sent and received emails regarding his will on his Aéropostale email address on June 7, 2006. Notably, when Siegel sent the August 24 email for which Finazzo asserts attorney-client privilege, Finazzo responded from his company email, instructing Siegel to correct the value of one of the assets listed in the email attachment. Other than a self-serving affidavit, there is no evidence that Finazzo made any effort to preserve the confidentiality of these communications.")

Case Date	Jurisdiction	State	Cite Checked
2017-03-07	Federal

Chapter: 19.13

Case Name: Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2016 N.Y. Misc. LEXIS 3765 (N.Y. Sup. Ct. Sept. 30, 2016)

(in a defamation action by a condo resident against neighbor and Marvel Entertainment CEO, holding that defendant had waived his privilege protection by using the company's server; explaining the context: "Peerenboom [Plaintiff] opposes the motions, contending that Perlmutter waived all privileges, inasmuch as Perlmutter [the neighbor and Marvel Entertainment CEO] sent or received the subject e-mail messages on Marvel's server, and Marvel's written computer usage handbook, as drafted by its corporate parent, the Walt Disney Company (Disney), provides that 'hardware, software, e-mail, voicemail, intranet and Internet access, computer files and programs -- including any information you create, send, receive, download or store on Company assets -- are Company property, and [it] reserve[s] the right to monitor their use, where permitted by law to do so."; "The court agrees with Peerenboom that use of a proprietary e-mail system, subject to an employer's computer usage policy such as the one adopted by Marvel, constitutes a waiver of any privilege that can otherwise be unilaterally asserted by a declarant or the intended audience of an otherwise confidential communication. The use of one's own personal home computer to communicate with an attorney on a private, unencrypted e-mail account does not vitiate the attorney-client privilege or the work-product privilege, inasmuch the client may reasonably maintain an expectation that the communications are private and confidential."; explaining Marvel corporate parent Disney's personnel policy ; "Disney's computer usage policy prohibits personal and other objectionable use of Marvel's server and e-mail system, Disney/Marvel had the right to monitor the use of all employees' computer usage, third parties have a right of access to the computer, Disney/Marvel expressly asserted a possessory interest in all e-mails sent and received on its servers, and Perlmutter was or should have been aware, as Marvel's Chairman or CEO, that Marvel implemented Disney's use and monitoring policies. Consequently, under the circumstances of this case, application of the factors articulated in Asia Global warrants a finding that Perlmutter did not have a reasonable expectation of privacy in connection with electronic messages sent and received on Marvel's server, and has waived the attorney-client and work-product privileges in connection with them."; not addressing the different waiver rules for work product, although finding waiver of work product protection)

Case Date	Jurisdiction	State	Cite Checked
2016-09-30	State	NY

Chapter: 19.13

Case Name: Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2016 N.Y. Misc. LEXIS 3765 (N.Y. Sup. Ct. Sept. 30, 2016)

(in a defamation action by condo resident against neighbor and Marvel Entertainment CEO, holding that defendant had waived his privilege protection by using the company's server; "Peerenboom [Plaintiff] opposes the motions, contending that Perlmutter waived all privileges, inasmuch as Perlmutter [the neighbor and Marvel Entertainment CEO] sent or received the subject e-mail messages on Marvel's server, and Marvel's written computer usage handbook, as drafted by its corporate parent, the Walt Disney Company (Disney), provides that 'hardware, software, e-mail, voicemail, intranet and Internet access, computer files and programs -- including any information you create, send, receive, download or store on Company assets -- are Company property, and [it] reserve[s] the right to monitor their use, where permitted by law to do so."; "The court agrees with Peerenboom that use of a proprietary e-mail system, subject to an employer's computer usage policy such as the one adopted by Marvel, constitutes a waiver of any privilege that can otherwise be unilaterally asserted by a declarant or the intended audience of an otherwise confidential communication. The use of one's own personal home computer to communicate with an attorney on a private, unencrypted e-mail account does not vitiate the attorney-client privilege or the work-product privilege, inasmuch the client may reasonably maintain an expectation that the communications are private and confidential."; explaining Marvel corporate parent Disney's personnel policy ; "Disney's computer usage policy prohibits personal and other objectionable use of Marvel's server and e-mail system, Disney/Marvel had the right to monitor the use of all employees' computer usage, third parties have a right of access to the computer, Disney/Marvel expressly asserted a possessory interest in all e-mails sent and received on its servers, and Perlmutter was or should have been aware, as Marvel's Chairman or CEO, that Marvel implemented Disney's use and monitoring policies. Consequently, under the circumstances of this case, application of the factors articulated in Asia Global warrants a finding that Perlmutter did not have a reasonable expectation of privacy in connection with electronic messages sent and received on Marvel's server, and has waived the attorney-client and work-product privileges in connection with them."; holding that the marital privilege applied and could not be unilaterally waived by the Marvel CEO without his wife's consent – but noting that closure with the consent of both spouses to a lawyer would have waived the marital privilege; "The proper application of CPLR 4502(b) thus requires the conclusion not only that Perlmutter cannot be compelled to testify against Laura in the Florida defamation action but cannot, without her consent, waive her marital privilege by sharing their confidential communications with third parties. Moreover, while the privilege is vitiated where spousal communications are knowingly made in the presence of third parties (see People v Scalise, 70 AD2d 346, 348, 421 N.Y.S.2d 637 [3rd Dept 1979]), research reveals no case in which the privilege was vitiated where one spouse was unaware that third parties had knowledge of or access to the particular communication."; "Since there is no reason to believe that Laura consented to Perlmutter's waiver of the marital privilege in connection with several enumerated communications, the court concludes that all electronic communications between Perlmutter and Laura on the Marvel server that are confidential in nature are protected by the marital privilege, unless knowingly shared with third parties, including attorneys, inasmuch as any attorney-client privilege has been waived. Conversely, all electronic communications between Perlmutter and Laura on the Marvel server that are not confidential in nature, and have been requested in this litigation, must be turned over to Peerenboom."; not addressing the different waiver rules for work product, although finding waiver of work product protection)

Case Date	Jurisdiction	State	Cite Checked
2016-09-30	Federal	NY

Comment:

key case

Chapter: 19.13

Case Name: Peerenboom v. Marvel Entertainment, LLC, 2016 N.Y. Slip Op. 31957(U) (N.Y. Sup. Ct. Sept. 30, 2016)

December 28, 2016 (PRIVILEGE POINT)

"New York Court Adds a Worrisome Twist to Employees' Communications with Their Personal Lawyers on Company Servers"

Numerous courts have held that corporate employees have no expectation of confidentiality (and thus no privilege protection) when using their employer's server and other communication equipment – if the corporate personnel policy adequately warns them not to expect confidentiality. Nearly all of these cases involve employees communicating with their personal employment lawyers about adversity to the company whose server they used. But what if another adversary wants to challenge privilege protection?

In Peerenboom v. Marvel Entertainment, LLC, 2016 N.Y. Slip Op. 31957(U) (N.Y. Sup. Ct. Sept. 30, 2016), a Palm Beach condo resident sued his neighbor for defamation. The defendant neighbor was Marvel Entertainment's CEO – who had "allegedly utilized Marvel's e-mail server for his electronic communications." Id. at 2. The court cited Marvel's parent Disney's personnel policy in concluding that Marvel's CEO "did not have a reasonable expectation of privacy in connection with electronic messages sent and received on Marvel's server, and has waived the attorney-client and work product privileges in connection with them." Id. at 6-7.

Most courts would not find work product waiver in such circumstances, given its robust protection. But the Peerenboom approach could raise the privilege stakes when employees use their employer's servers for personal privileged communications. Adversaries other than the employer/corporation might challenge privilege protection – such as divorce adversaries, commercial litigation adversaries, etc.

Case Date	Jurisdiction	State	Cite Checked
2016-09-30	Federal	NY

Comment:

key case

Chapter: 19.13

Case Name: Peerenboom v. Marvel Entertainment, LLC, 2016 N.Y. Slip Op. 31957(U) (N.Y. Sup. Ct. Sept. 30, 2016)

December 28, 2016 (PRIVILEGE POINT)

"New York Court Adds a Worrisome Twist to Employees' Communications with Their Personal Lawyers on Company Servers"

Numerous courts have held that corporate employees have no expectation of confidentiality (and thus no privilege protection) when using their employer's server and other communication equipment – if the corporate personnel policy adequately warns them not to expect confidentiality. Nearly all of these cases involve employees communicating with their personal employment lawyers about adversity to the company whose server they used. But what if another adversary wants to challenge privilege protection?

In Peerenboom v. Marvel Entertainment, LLC, 2016 N.Y. Slip Op. 31957(U) (N.Y. Sup. Ct. Sept. 30, 2016), a Palm Beach condo resident sued his neighbor for defamation. The defendant neighbor was Marvel Entertainment's CEO – who had "allegedly utilized Marvel's e-mail server for his electronic communications." Id. at 2. The court cited Marvel's parent Disney's personnel policy in concluding that Marvel's CEO "did not have a reasonable expectation of privacy in connection with electronic messages sent and received on Marvel's server, and has waived the attorney-client and work product privileges in connection with them." Id. at 6-7.

Most courts would not find work product waiver in such circumstances, given its robust protection. But the Peerenboom approach could raise the privilege stakes when employees use their employer's servers for personal privileged communications. Adversaries other than the employer/corporation might challenge privilege protection – such as divorce adversaries, commercial litigation adversaries,

Case Date	Jurisdiction	State	Cite Checked
2016-09-30	Federal	NY

Comment:

key case

Chapter: 19.13

Case Name: Billups v. Penn State Milton S. Hershey Medical Center, 1-11-cv-01784, 2015 U.S. Dist. LEXIS 162442 (M.D. Pa. Dec. 3, 2015)

(holding a plaintiff's use of his employer's computer to communicate with an expert didn't destroy the work product protection otherwise covering those communications; "[T]he documents at issue are email communications between plaintiffs' counsel and Dr. Mack, a testifying expert in underlying state court proceedings. They were conveyed between counsel and expert via Dr. Mack's workplace email account, hosted on a computer or email network owned and maintained by her employer, Hershey Medical Center. Hershey Medical Center was not a party to the underlying state criminal and family court proceedings, and thus it was not plaintiffs' adversary, nor can it reasonably be said to be 'a conduit to an adversary.'. . . Absent a subpoena, the prosecution in the underlying state proceedings had no access to these email messages. Nor did the defendants, whose only legitimate access to these email communications is likewise limited to the use of a subpoena under the corporate email policy adopted by Hershey Medical Center.")

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

Chapter: 19.13

Case Name: Morley v. Square, Inc., Case No. 4:14cv172, Case No. 4:10cv2243 CNLJ Consolidated, 2015 U.S. Dist. LEXIS 155569 (E.D. Mo. Sept. 10, 2015)

(holding that a professor did not forfeit privilege protection for emails using his university employer's server, because the university was not an adversary; "Morley did not sacrifice his attorney-client privilege when he communicated with his attorneys using his WashU e-mail address. Although defendants claim Morley violated WashU policy against using the e-mail system for 'commercial gain,' the evidence is that Morley was unaware of that policy and that the restriction appears to apply not to attorney-client communications but rather to overt commercial transactions using 'University resources.' Accordingly, Morley's e-mails with his attorneys using his WashU e-mail account remain protected from disclosure.")

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

Chapter: 19.13

Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)

("The House's possession of such communications does not necessarily waive the privilege as between the individual delegate and outside counsel, so long as the delegate can demonstrate that there was a reasonable expectation of privacy in the emails sent using the House email system. . . . Most federal courts to have evaluated this question have relied upon the four-factor test from In re Asia Global Crossing, Ltd., which examines the following questions: (1) whether the institution maintains a policy banning personal or other objectionable use, (2) whether the institution monitors the use of the user's computer or e-mail, (3) whether third parties have a right of access to the computer or e-mails, and (4) whether the institution notified the user -- or whether the user was aware -- of the use and monitoring policies.")

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

Chapter: 19.13

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)

(holding that the general counsel did not waive privilege protection for communications with his previous employer by storing them on a password protected site; "Morosoff did not waive the privilege merely by storing the disputed documents on the worksite of his current employer. Morosoff has kept the documents on a password-protected hard drive, and there is no evidence that anyone at CIM other than Morosoff had access to, much less actually accessed, the privileged documents, and Morosoff's uncontradicted, sworn statements establish the contrary. While Morosoff appears to have kept copies of the documents on CIM's network for archival purposes, attorney-client communications do not lose their privileged character 'for the sole reason that [they are] communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communications may have access to the content of the communication[s].' As such, there has been no disclosure and consequently no waiver.")

Case Date	Jurisdiction	State	Cite Checked
2014-03-20	Federal	CA

Chapter: 19.13

**Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *15 (N.D. Cal. June 10, 2013)**

("As noted above, for the attorney-client privilege to protect communications, the communications must be made in confidence. Defendant also argues that Plaintiff and Williams [a lawyer who is also a personal friend of plaintiff] had no expectation of privacy in their work email accounts. . . . Plaintiff does not dispute that she lacks an expectation of privacy in her work email accounts. . . . Accordingly, communications sent using a VA email address are not privileged.")

Case Date	Jurisdiction	State	Cite Checked
2013-06-10	Federal	CA	B 4/14

Chapter: 19.13

**Case Name: In re High Tech Emp. Antitrust Litig., Case. No. 11-CV-2509-LHK-PSG, 2013 U.S. Dist. LEXIS 28623, at 17 & 4, 19-20, 20-21, *24-25 (N.D. Cal. Feb. 28, 2013)**

(holding that a non-employee who acted as what the court called an "executive whisperer" for Google should be treated as the functional equivalent of a Google employee; "[T]he court first considers Plaintiffs' argument that even if Campbell [eventual Google employee who earned a nominal salary, and who had earlier acted as a consultant, but in both roles operated 'an elite niche in the technology industry . . . best described as an 'executive whisperer'"] was an employee or the functional equivalent of one, the communications were not confidential because they were sent to Campbell's Intuit email account."; "The court . . . agrees that this is not the typical case in which the Asia Global [In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005)] factors are applied. In most situations, an employee spoke with her personal attorney over her employer's email system. Here, in contrast, Campbell spoke with Google's employees and Google's counsel over Intuit's email system. But as the court already noted, by Google's own argument, Campbell did so as an employee or functional equivalent of an employee of Google. And Google's other employees appear to have had notice that Campbell was receiving the emails at the external address. Although the facts differ from the typical scenario, the court considers the method for determining whether the communications remained confidential basically the same. To wit, did Campbell and Google have an objectively reasonable expectation of confidentiality in emails sent through Intuit's system?" (footnotes omitted); "The court therefore will consider: (1) whether Intuit had a policy banning personal use; (2) whether Intuit monitored employees' use of email; (3) whether third parties have a right of access to the computer and the email; and (4) whether the company notified Campbell or Google -- or whether Campbell or Google were aware of -- the use and monitoring policy."; "Although the court finds that the Asia Global factors are evenly split, the court finds that the importance of the attorney-client privilege as well as the lack of evidence that Intuit in fact monitored Campbell's emails supports the preservation of the privilege in this case. The fact that Campbell sent and received messages from his Intuit email address does not destroy the confidentiality necessary to maintain the privilege." (footnote omitted))

Case Date	Jurisdiction	State	Cite Checked
2013-02-28	Federal	CA	B 3/14

Chapter: 19.13

**Case Name: United States v. Finazzo, Np. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *41-42 (E.D.N.Y. Feb. 19, 2013)**

(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "Finazzo's position that one cannot 'waive' privilege in a document that has already been inadvertently disclosed by thereafter voluntarily disclosing it to the same person reflects a serious misunderstanding of the purpose of privilege. . . . [W]aiver occurs where the proponent of the privilege takes actions wholly inconsistent with any desire to maintain confidentiality in the communication, and is entirely independent of whether that action actually 'reveals' the communication to anyone. See 24 Wright & Graham, Federal Practice & Procedure § 5507, 580 n.126 ('[I]f the client deposited his communications in the public library, the privilege would be waived, even though no one ever read them.'). . . . Where the proponent evinces no concern for confidentiality, the privilege has no value and is lost. Therefore, where a proponent of a privilege is faced with the breach of confidentiality, he or she must object, and not partake in it.")

Case Date	Jurisdiction	State	Cite Checked
2013-02-19	Federal	NY	B 2/14

Chapter: 19.13

**Case Name: United States v. Finazzo, No. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at 21-22,22, *37 (E.D.N.Y. Feb. 19, 2013)**

(holding that the privilege did not protect communications between a company executive and his personal lawyer conveyed on company's equipment, which meant that the government could obtain the communications in its criminal action against the executive; "A communication cannot be 'intended' to remain confidential, however, when made through a medium that subjects it to disclosure to third parties. . . . Sending and receiving e-mails via an employer e-mail account, such as Finazzo's Aéropostale account here, is one such example. If Finazzo was aware, or should have been aware, that third parties had access to any e-mails sent or received via his Aéropostale account, he cannot assert privilege over them. In other words, Finazzo's claim of privilege turns on whether he had a 'reasonable expectation that the attorney-client communications would remain confidential despite being stored on' his employer's servers." (citation omitted); "In assessing an employee's reasonable expectation of privacy in a work computer or e-mail account, courts have increasingly turned to a set of four factors: '"(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?"'"; applying the Asia Global Crossing test in finding that the emails were not privileged; "Finazzo chose to communicate with his lawyer through a medium in which he had no expectation of privacy, thus inviting responses via that same medium.")

Case Date	Jurisdiction	State	Cite Checked
2013-02-19	Federal	NY	B 2/14

Chapter: 19.13

Case Name: In re Info. Mgmt. Servs., Inc. Derivative Litig., 81 A.3d 278, 285 n.1, 289, 290, 291, 292 (Del. Ch. 2013)

(adopting the Asia Global standard in concluding that three executives could not assert privilege protection for their emails on a company's hardware; "A work email account differs from a personal, password-protected, web-based email account, also known as webmail, which the employee may obtain through Google, Hotmail, or other services. . . . Courts have generally afforded greater privacy protection to webmail and have reached divergent conclusions when analyzing the attorney-client privilege if the employee and personal attorney communicated using webmail."; "As framed by the Asia Global [In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005)] court, the first factor is 'does the corporation maintain a policy banning personal or other objectionable use?'" (citation omitted); "[T]he second factor is 'does the company monitor the use of the employee's computer or e-mail?'" (citation omitted); "[T]he third factor is 'do third parties have a right of access to the computer or e-mails?'" (citation omitted); "[T]he fourth factor is 'did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?'" (citation omitted); "Three of the four Asia Global factors point towards production and one is neutral. The Asia Global calculus therefore calls for granting the motion to compel, absent a statutory override that could alter the common law result.")

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

Chapter: 19.13

Case Name: Chechele v. Ward, Case No. CIV 10 1286 M, 2012 U.S. Dist. LEXIS 140888 (W.D. Okla. Sept. 28, 2012)

(pointing to an employment contract's warning about an employee's use of a company's computer system for personal business; finding a waiver caused by the employee's use of the company's computer system for personal privileged communication)

Case Date	Jurisdiction	State	Cite Checked
2012-09-28	Federal	OK	B 12/13

Chapter: 19.13

Case Name: United States v. Hamilton, 701 F.3d 404, 408 (4th Cir. 2012)

(holding that a lower court had not impermissibly relied on email that a criminal defendant sent to and received from his wife, using his employer's computer system; "[E]mail has become the modern stenographer. Like the communications to the stenographer in Wolfle's [Wolfle v. United States, 291 U.S. 7 (1934)] time, emails today, 'in common experience,' are confidential. See id. at 15; see also ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 413 (1999) (noting that email 'pose[s] no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy' and so there is generally 'a reasonable expectation of privacy in its use')."; noting that the criminal defendant continued to use the email system even after the employer issued a policy disclaiming any right to privacy; "But just as spouses can 'conveniently communicate without' use of a stenographer, they can also 'conveniently communicate without' using a work email account on an office computer. . . . Therefore, as in Wolfle, it is hardly 'plain that marital confidence cannot . . . reasonably be preserved' without according the privilege to the spousal communications at issue here. . . . Accordingly, that one may generally have a reasonable expectation of privacy in email, at least before a policy is in place indicating otherwise, does not end our inquiry."; "In an era in which email plays a ubiquitous role in daily communications, these arguments caution against lightly finding waiver of marital privilege by email usage. But the district court found that Hamilton did not take any steps to protect the emails in question, even after he was on notice of his employer's policy permitting inspection of emails stored on the system at the employer's discretion. As outlined above, the record provides ample support for these factual findings.")

Case Date	Jurisdiction	State	Cite Checked
2012-01-01	Federal		B 3/13

Chapter: 19.13

**Case Name: Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at 2, 3, *12-14 (W.D. Va. June 17, 2008)**

(assessing the privilege implications of plaintiff's use of her husband's computer for engaging in allegedly privileged communications with her lawyer; noting that defendant Virginia Tech had issued a subpoena to the husband's employer seeking production of "'all electronically stored information on all computers, laptops, PDA's, portable media or other devices' utilized by Kurt W. Sprenger, plaintiff's husband, which relate to the plaintiff's claims"; noting the policy adopted by the husband's employer; "Defendants argue that the records are not protected under the spousal privilege, pursuant to the Department of Human Resource Management Policies and Procedures' Use of Internet and Electronic Communication Systems ('Policy'), which is applicable to all state employees. The Policy states that 'no user should have any expectation of privacy in any message, file, image, or data created, sent, retrieved, or received by use of the Commonwealth's equipment and/or access' and that state agencies have the right to monitor e-mail sent or received by agency users. . . . This monitoring can occur 'at any time, without notice, and without the user's permission.' . . . The Policy does allow the work computers to be utilized for personal use." (footnote omitted); explaining the holdings of various other cases involved in similar issues; "These cases turn on the very specific factual situations unique to each case. In this case, the factual record is sparse, consisting only of the Policy submitted at the hearing. Under the factors laid out in Asia Global [Crossing Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005)], the court only has facts to meet one of the factors, that personal use of the work computer is allowed. While the Policy was tendered to the court, no affidavit or other evidence was offered as to knowledge, implementation, or enforcement of the Policy. There is no showing that Mr. or Mrs. Sprenger were notified of the Policy by a log on banner, flash screen, or employee handbook and whether Mr. or Mrs. Sprenger were ever actually aware of the Policy. It is unclear whether third parties had a right of access to the e-mails. The record also does not show whether the Policy was regularly enforced and whether the state employees' computer use was actually monitored. Given the nature of the martial [sic] communications involved, the burden is on the defendants to demonstrate that the privilege has been waived. See Blau v. United States, 340 U.S. 332, 333-34, 71 S. Ct. 301, 95 L. Ed. 306 (1951) (holding that defendant had not overcome the presumption that marital communications are privileged). Based on the exceedingly thin record that exists at this time, defendants have not met this burden. Accordingly, the motion to quash the WWRC subpoena is hereby GRANTED. If defendants wish to pursue this matter further, they shall contact the clerk of the Court to set up an evidentiary hearing on the issue of waiver.")

Case Date	Jurisdiction	State	Cite Checked
2008-06-17	Federal	VA	B 3/16

Comment:

key case

Chapter: 19.13

**Case Name: Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at *4 & n.1 (W.D. Va. June 17, 2008)**

("In Asia Global [In Re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr.S.D.N.Y. 2005)], [T]he court laid out four factors to consider to measure the employee's expectation of privacy in his computer use '(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or e-mail, (3) do third parties have a right of access to the computer or e mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies.'" (citation omitted))

Case Date	Jurisdiction	State	Cite Checked
2008-06-17	Federal	VA

Chapter: 19.13

Case Name: Banks v. Mario Indus. of Va., Inc., 274 Va. 438, 453-54, 650 S.E.2d 687, 695-96 (2007)

(rejecting a former employee's argument on appeal that the lower court erroneously admitted privileged communications to and from the former employee for which he used a company-owned computer; "Pursuant to Mario's employee handbook, Mario permitted employees to use their work computers for personal business. However, Mario's employee handbook provided that there was no expectation of privacy regarding Mario's computers. Cook created the pre-resignation memorandum on a work computer located at Mario's office. Cook printed the document from this computer, and Cook sent it to his attorney for the purposes of seeking legal advice. Cook then deleted the document from the computer. Mario's forensic computer expert, however, retrieved the document from the computer's hard drive. We held in Clagett v. Commonwealth, 252 Va. 79, 92, 472 S.E.2d 263, 270 (1996), that 'the [attorney-client] privilege is waived where the communication takes place under circumstances such that persons outside the privilege can overhear what is said.' See Edwards, 235 Va. at 509, 370 S.E.2d at 301 ('The privilege may be expressly waived by the client, or a waiver may be implied from the client's conduct.'). Therefore, we hold that the trial court did not err in admitting the pre-resignation memorandum into evidence.")

Case Date	Jurisdiction	State	Cite Checked
2007-01-01	State	VA	N 11/08

Comment:

key case

Chapter: 19.13

Case Name: In re Asia Global Crossing, Ltd., 322 B.R. 247, 256-61 (Bankr. S.D.N.Y. 2005)

July 18, 2018 (PRIVILEGE POINT)

"Court Protects an Employee's Personal Privileged Communications Using the Company's Email Account"

Starting 10-15 years ago, many courts addressed corporate employees' privilege claims for communications with their personal lawyers (usually employment lawyers) using their employers' email infrastructure. Most states (other than New Jersey), eventually settled on the standard articulated in In re Asia Global Crossing, Ltd., 322 B.R. 247, 256-61 (Bankr. S.D.N.Y. 2005) to reject such privilege claims – as long as the company widely circulated a personnel policy explicitly warning that such communications could be monitored, and did not deserve confidentiality or privilege protection.

The cases dwindled after that, and the matter seemed largely settled. But in Kreuze v. VCA Animal Hospitals, Inc., Civ. A. No. PJM-17-1169, 2018 U.S. Dist. LEXIS 66667 (D. Md. Apr. 20, 2018), the court protected such emails as privileged. Among other things, the court noted that: (1) the defendant's personnel policy "does not affirmatively ban personal use by its employees" but instead only warns them to keep such use "to a minimum" (id. at *3); (2) defendant "did not actively monitor Plaintiff's email account during or after her employment," but instead merely reserved the right to do so (id. at *4); (3) "Defendants do not claim that they took affirmative steps to inform employees of the policies in place, besides providing a copy of VCA's Policy" – although noting that plaintiff acknowledged the personnel policy (id. at *7); and (4) plaintiff's "acknowledgment was signed in 2009, close to five years prior to the sending of the emails." Id. at *8.

A corporation facing such a demanding application of the Asia Global standard will have a difficult time winning a privilege fight with a current or former employee. Corporations and their lawyers should monitor the case law for a possible resurgence of such pro-employee decisions.

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

Comment:

key case

Chapter: 19.14

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)

(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "[I]t appears that Dechert did not seek any arrangement by which to retain custody of such data as was on the office server or to delete that data on the server, which it left behind. It also made no provision for safeguarding any of the client confidences or other possibly protected materials reposing on the back-up tapes."; "Plainly stated, Dechert's conduct throughout the relevant period cannot be viewed as reasonable."; "First, defendant apparently abandoned the joint server without taking any action to ensure either that the Dechert data on that system was removed or that the server itself was safeguarded from access by others."; "Second, as noted, Dechert was on notice that all of the data being placed on the server was being recorded and saved on a set of back-up tapes that were apparently held by CF.")

Case Date	Jurisdiction	State	Cite Checked
2014-07-31	Federal	NY

Chapter: 19.14

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)

(holding that the Dechert law firm waived its privilege by leaving privilege documents in offices it shared with the law firm of Coudert Brothers, which then went bankrupt; "As for the balance of the considerations traditionally invoked on a claim of inadvertent disclosure, they do not assist Dechert's motion. Although defendant asserts that it acted promptly to rectify the situation with the tapes dating the disclosure of the issue to its attorney in February 2014 that is not the case. As noted, Dechert had to know back in 2005, or at the latest in January 2006, that it was leaving the security of its data to an unknown fate when it left the server in the Paris office without cleansing it.")

Case Date	Jurisdiction	State	Cite Checked
2014-07-31	Federal	NY

Chapter: 19.14

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 268 (E.D. Va. 2006)

("Finally, as a general matter, the City does not provide a training program or any guidelines on the protection of confidential information and privilege. . . . Where the City Attorney did state that his office shreds documents, . . . it is unclear if the recipients of the letter followed suit. Some of the Council Members stated that they 'likely' shredded the document, . . . but it is unclear if this is expected of privileged documents. Without a written policy on the handling of materials marked confidential or training on the requirements of confidentiality, the resulting patchwork of disposal and storage habits by the Council Members tends to take away from the City's assertion of privilege.")

Case Date	Jurisdiction	State	Cite Checked
2006-01-01	Federal	VA

Chapter: 19.601

Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Or. May 4, 2017)

July 5, 2017 (PRIVILEGE POINT)

"Can the Privilege Protect Communications in a Public Place?"

If clients and their lawyers engage in otherwise privileged communications in the presence of third parties, the privilege rarely if ever protects the communications. But what if the communications occur in a public place where third parties might have overheard them? Does a litigant challenging privilege protection have to demonstrate that a third party actually did overhear the communications?

In MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Or. May 4, 2017), employment discrimination plaintiff MacFarlane challenged defendant Café's privilege claim for communications between its lawyer and its former chief chef – which occurred at the Café. It is unclear how plaintiff knew about the conversation, but she argued that the conversation "occurred in a setting where it could have been heard by the public and is not therefore privileged." Id. at *12. The court upheld the Café's privilege claim, pointing to another participant's testimony: that "it occurred in the morning during off-peak hours"; that "no Café employees or customers sat near them at any point during the meeting"; that "the conversation participants did not raise their voices"; and that "the conversation, in his perception, was out of earshot." Id. at *13. The court concluded that "this was a sufficiently confidential setting for maintaining the attorney-client privilege." Id.

Such a scenario would be more complicated if the plaintiff had found someone who heard part but not all of the otherwise privileged communications, or could show that the Café was packed with people – but was unable to track down anyone who could testify that he or she actually overheard the conversation. Some authorities find the privilege inapplicable if communications occurred where they could have easily been overheard, while other authorities require evidence that someone actually overheard the communications (presumably requiring some witness to step forward).

Case Date	Jurisdiction	State	Cite Checked
2017-05-04	Federal	OR

Comment:

key case

Chapter: 19.601

Case Name: Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017)

March 15, 2017 (PRIVILEGE POINT)

"Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large 'Town Hal' Meetings'"

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?

In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.

Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.

Case Date	Jurisdiction	State	Cite Checked
2017-01-12	Federal	SC

Comment:

key case

Chapter: 19.601

Case Name: Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)

March 15, 2017

"Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large 'Town Hall' Meetings'"

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?

In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.

Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.

Case Date	Jurisdiction	State	Cite Checked
2017-01-10	Federal	IN

Comment:

key case

Chapter: 19.601

Case Name: Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)

March 15, 2017 (PRIVILEGE PONT)

"Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large "Town Hall" Meetings"

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?

In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.

Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.

Case Date	Jurisdiction	State	Cite Checked
2017-01-10	Federal	IN

Comment:

key case

Chapter: 19.601

Case Name: Reid v. Womack; Buck v. Womack; Griffin v. Womack, Case No. 2:11-CV-788, 2014 U.S. Dist. LEXIS 115384 (D. Utah Aug. 18, 2014)

("The facts show that reasonable and sufficient steps were taken by Sheriff Yeates and his attorney to ensure their conversation in the waiting room of the Law Office was confidential and would be protected by the attorney-client privilege. Those steps include: (1) they went to the only space reasonably available; (2) the conversation was between an attorney and his client; (3) they spoke in hushed tones; (4) the conversation took place just before a deposition, where such a conversation was clearly to be expected and necessary; and (5) they were unaware that anyone else was present in the waiting room.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-18	Federal	UT

Chapter: 19.601

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 828 (E.D. Va. 2005)

("The Fourth Circuit has not yet squarely addressed the question whether inmates waive any privilege protection for telephone conversations when they choose to proceed with these conversations in the face of notice that the calls are being recorded and subject to monitoring. Significantly, however, the three circuits that have done so have uniformly held that such notice destroys any expectation of privilege." (footnote omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

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

Chapter: 19.601

Case Name: United States v. Lentz, 419 F. Supp. 2d 820 (E.D. Va. 2005)

(holding that the attorney-client privilege did not protect communications between a jailed inmate and his lawyer, because they had been warned that prison authorities were monitoring the communications), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

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

Chapter: 19.601

Case Name: Clagett v. Commonwealth, 252 Va. 79, 91-92, 472 S.E.2d 263, 270 (Va. 1996)

(holding that conversations between a convicted murderer's lawyers and the murderer were not privileged because they spoke where a state forensic witness could overhear them, since "[n]othing in the record indicates that [the witness] overheard the attorneys' conversation intentionally or surreptitiously"), cert. denied, 519 U.S. 1122 (1997)

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

Chapter: 19.602

Case Name: Martin v. Copeland, Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756 (N.D. Ind. July 5, 2018)

(holding that a former City employee could not rely on a open records law to overcome the City's work product protection for some documents in the plaintiff's personnel file, and that the City did not waive its work product protection when it put the protected documents in the personnel file; "Plaintiff also argues that Defendants waived any possible claim to attorney-client privilege when they placed the attorney communications into Plaintiff's personnel file. Defendants disagree, noting that no waiver of the privilege occurred because the omitted documents were never disclosed to Plaintiff. It is uncontested that Plaintiff never received a copy of the omitted communications; thus, no waiver of the attorney-client privilege occurred.")

Case Date	Jurisdiction	State	Cite Checked
2018-07-05	Federal	IN

Comment:

key case

Chapter: 19.602

Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Or. May 4, 2017)

July 5, 2017 (PRIVILEGE POINT)

"Can the Privilege Protect Communications in a Public Place?"

If clients and their lawyers engage in otherwise privileged communications in the presence of third parties, the privilege rarely if ever protects the communications. But what if the communications occur in a public place where third parties might have overheard them? Does a litigant challenging privilege protection have to demonstrate that a third party actually did overhear the communications?

In MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Or. May 4, 2017), employment discrimination plaintiff MacFarlane challenged defendant Café's privilege claim for communications between its lawyer and its former chief chef – which occurred at the Café. It is unclear how plaintiff knew about the conversation, but she argued that the conversation "occurred in a setting where it could have been heard by the public and is not therefore privileged." Id. at *12. The court upheld the Café's privilege claim, pointing to another participant's testimony: that "it occurred in the morning during off-peak hours"; that "no Café employees or customers sat near them at any point during the meeting"; that "the conversation participants did not raise their voices"; and that "the conversation, in his perception, was out of earshot." Id. at *13. The court concluded that "this was a sufficiently confidential setting for maintaining the attorney-client privilege." Id.

Such a scenario would be more complicated if the plaintiff had found someone who heard part but not all of the otherwise privileged communications, or could show that the Café was packed with people – but was unable to track down anyone who could testify that he or she actually overheard the conversation. Some authorities find the privilege inapplicable if communications occurred where they could have easily been overheard, while other authorities require evidence that someone actually overheard the communications (presumably requiring some witness to step forward).

Case Date	Jurisdiction	State	Cite Checked
2017-05-04	Federal	OR

Comment:

key case

Chapter: 19.602

Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)

(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; "Plaintiff asserts that Virgen's conversation with Driscoll occurred in a setting where it could have been heard by the public and is not therefore privileged. Lawler, who was present during the conversation, testified to the following: no one else participated in the meeting; it occurred in the morning during off-peak hours; there were few people in the restaurant; no Café employees or customers sat near them at any point during the meeting; the conversation participants did not raise their voices; their booth was ten feet away from any occupied table; and that the conversation, in his perception, was out of earshot. . . . Virgen and Driscoll's communications were made in confidence and not overheard by any third party. The Court finds that this was a sufficiently confidential setting for maintaining the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2017-05-04	Federal	OR

Comment:

key case

Chapter: 19.602

Case Name: Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017)

March 15, 2017 (PRIVILEGE POINT)

"Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large 'Town Hall' Meetings'"

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?

In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.

Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.

Case Date	Jurisdiction	State	Cite Checked
2017-01-12	Federal	SC

Comment:

key case

Chapter: 19.602

Case Name: Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)

March 15, 2017 (PRIVILEGE POINT)

"Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large 'Town Hall' Meetings'"

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?

In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.

Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.

Case Date	Jurisdiction	State	Cite Checked
2017-01-10	Federal	SC

Comment:

key case

Chapter: 19.603

Case Name: MacFarlane v. Fivespice LLC, No. 3:16-cv-01721-HZ, 2017 U.S. Dist. LEXIS 68184 (D. Ore. May 4, 2017)

(holding that the privilege protected communications between defendant café's lawyer and a former employee, even though the former employee might have been adverse to the former employer café, and even though they met at the café; "Plaintiff asserts that Virgen's conversation with Driscoll occurred in a setting where it could have been heard by the public and is not therefore privileged. Lawler, who was present during the conversation, testified to the following: no one else participated in the meeting; it occurred in the morning during off-peak hours; there were few people in the restaurant; no Café employees or customers sat near them at any point during the meeting; the conversation participants did not raise their voices; their booth was ten feet away from any occupied table; and that the conversation, in his perception, was out of earshot. . . . Virgen and Driscoll's communications were made in confidence and not overheard by any third party. The Court finds that this was a sufficiently confidential setting for maintaining the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2017-05-04	Federal	OR

Comment:

key case

Chapter: 19.701

Case Name: In the Matter of Bertucci Contracting Co., L.L.C., Civ. A. No. 12-664 C/W 12-697 C/W 12-1783 C/W 12-1912 C/W 12-1914, Ref. All Cases Section "J" (3), 2014 U.S. Dist. LEXIS 72986 (E.D. La. May 27, 2014)

(holding that some community meetings dealing with damage caused by demolition work deserved privilege protection, while some did not; "With regard to the meetings, the Court first notes that claimants do not assert any privilege with regard to the meeting at Stone's Bistro. Information as to that meeting is thus fully discoverable. And the Court also finds that when the meetings took place, the attendees, and the dates on which the attendees formally retained counsel are underlying facts that are completely discoverable. Claimants shall produce this information to PIL if they have not already done so. The contents of the meetings and any documents distributed at the December 2011 and April 2012 meetings at Phil's Marina Cafe is another matter with which this Court has struggled greatly."; "The evidence reveals that attorneys from Smith Stag attended the 2011 meeting at Phil's Marina Cafe at the request of clients. The e-mail sent by Shirley Wagner to affected neighbors informed them that the meeting was 'to discuss [their] rights under State and Federal law.' And Smith Stag sent invitations to the 2012 meeting to clients only. At the oral hearing, counsel informed the Court that Phil's Marina Cafe was closed to all but clients and potential clients. The Court can only find from this evidence that the affected neighbors attended the two meetings as clients and/or potential clients and for the purpose of seeking legal advice related to their rights under state and federal law. And simply because a non-attorney, counsel for claimants' expert, spoke at the meeting does not shatter the application of the privilege. It is well-established law that the work-product privilege applies to a representative of a party and not just its counsel. Fed. R. Civ. P. 26(b)(3)(A).")

Case Date	Jurisdiction	State	Cite Checked
2014-05-27	Federal	LA

Chapter: 19.701

Case Name: United States v. Lentz, 419 F. Supp. 2d 820; 828 n.16 (E.D. Va. 2005)

("Nor is it persuasive to argue, as Lentz does, that Mr. Salvato told him that their conversations were privileged, because the monitoring and recording notice that preceded each of the calls destroyed any reasonable expectation of privilege. During the third call, Mr. Salvato stated to Lentz that 'this is a privileged call, but they're all recorded.' Mr. Salvato's suggestion that the attorney-client privilege would apply to a call that was being recorded by a third party is simply mistaken and cannot serve to rescue the waived privilege."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date	Jurisdiction	State	Cite Checked
2005-01-01	Federal	VA	N 12/08

Chapter: 19.702

Case Name: Fox v. Alfini, Case No. 18SA92, 2018 Colo. LEXIS 962 (Colo. Dec. 3, 2018)

January 9, 2019 (PRIVILEGE POINT)

State Courts Address Outsiders' Privilege Impact: Part II

Last week's Privilege Point described a North Carolina state court's predictable rejection of privilege protection for communications with a company's technical consultant. Does the same harsh standard apply when clients bring family members with them to lawyer meetings?

In Fox v. Alfini, plaintiff Fox ("then in her early thirties") fell ill at a chiropractor's office. Case No. 18SA92, 2018 Colo. LEXIS 962, at *4 (Colo. Dec. 3, 2018). Her parents rushed their "gravely ill" daughter to an emergency room "for what turned out to be a stroke." Id. Fox and her parents later met with a plaintiff's lawyer to discuss filing a malpractice action against the chiropractor. The defendant chiropractor discovered that the lawyer had recorded this initial meeting, and argued that the parents' presence aborted privilege protection. Not surprisingly, Fox claimed that her stroke caused "diminished mental capacity," and that "her parents' presence was necessary to facilitate her communications" with her lawyer. Id. at *5-6. The court disagreed, applying "an objective standard for determining whether a third party's presence was necessary to facilitate an attorney-client communication." Id. at *12. The Supreme Court agreed with the lower court that Fox "had not shown that her mental capacity was 'diminished such that the presence of her parents was necessary to assist in the representation.'" Id. at *15-16.

This counter-intuitive result demonstrates the difficulty of claiming privilege protection with or in the presence of client agent/consultants -- even family members. Next week's Privilege Point discusses fatal flaws in Fox's lawyer's argument.

Case Date	Jurisdiction	State	Cite Checked
2018-12-03	State	CO

Chapter: 19.702

Case Name: Wye Oak Tech., Inc. v. Republic of Iraq, Civ. No. 1:10-cv-01182-RCL, 2018 U.S. Dist. LEXIS 159097 (D.D.C. Sept. 18, 2018)

(allowing the deposition of an opposing lawyer; "The conversation between Mr. Quinn and Mr. Lakhani is not privileged because a third party, Mr. Quinn, was present; the conversation occurred in public and was therefore not confidential; and Mr. Lakhani, not the defendants, was Mr. Mills' [Lawyer] client at the time of this conversation. Defendants did not become Mr. Mills' clients until after this conversation occurred. Although Mr. Mills' conversations with defendants are privileged, this does not prevent Wye Oak from being able to discover information about Mr. Mills' personal observations regarding the discussion that occurred between Mr. Quinn and Mr. Lakhani, which occurred before defendants became Mr. Mills' clients. . . . Wye Oak may depose Mr. Mills regarding the underlying facts of the contents of the conversation between Mr. Quinn and Mr. Lakhani that Mr. Mills allegedly witnessed even though Mr. Mills relayed this information to defendants in this case."; "The Court limits the scope of the deposition solely to information regarding this conversation. This limiting instruction will prevent attorney-client privileged information and attorney work-product information from being inquired about during plaintiff's deposition of Mr. Mills, and will guard against the concerns that make this Court wary of permitting depositions of opposing counsel.")

Case Date	Jurisdiction	State	Cite Checked
2018-09-18	Federal	DC

Chapter: 19.702

Case Name: Fencerov v. Gelita USA, Inc., No. 16-0775, 2018 Iowa Sup. LEXIS 17 (Iowa Feb. 23, 2018)

(finding it unnecessary to analyze the effect on privilege of a union representative's presence during an investigation interview; "During discovery, defendants produced all of the investigation's witness statements. As well, plaintiff had the opportunity to depose employees who were interviewed and inquire into the nature and content of their interviews. Accordingly, we need not reach the question of whether the presence of a union representative during an internal investigation waives attorney-client privilege, as defendants have not claimed privilege over any communications made in the union representative's presence.")

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

Chapter: 19.702

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)

("As a general rule, the presence of third parties breaches the confidentiality of communications between an attorney and client and waives the privilege. However, '[t]he presence of a third-party, such as a consultant, does not destroy the attorney-client privilege where that party is the client's agent or possesses 'a commonality of interest with the client.' 'The presence of a third party in an e-mail transmission, for instance, will not destroy the attorney-client privilege if the third party is the attorney's or client's agent. . . .' Syngenta has presented Nadel's declaration stating that Syngenta engaged the VHB and URI employees as consultants 'to provide . . . scientific assistance sought by Syngenta's legal department regarding regulatory requirements.' The court has no reason to question this representation. The court finds Syngenta met its burden of demonstrating these particular third parties are Syngenta's agents for purposes of this litigation, and their presence on the e-mail communication did not destroy the attorney-client privilege applicable to PRIV003553.")

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

Chapter: 19.702

Case Name: Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017)

March 15, 2017 (PRIVILEGE POINT)

"Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large "Town Hall" Meetings"

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?

In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.

Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.

Case Date	Jurisdiction	State	Cite Checked
2017-01-12	Federal	SC

Comment:

key case

Chapter: 19.702

Case Name: Craft v. South Carolina State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017)

(finding that neither the privilege nor the work product protection covered communications in a town hall meeting open to the public; "Defendants served subpoenas on Plaintiffs' counsel's law firms, seeking production of documents and recordings related to town hall meetings Plaintiffs' counsel conducted in advance of the Sun City litigation."; "Plaintiffs' counsel assert that they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members in the related state-court litigation. However, Defendants have undercut that assertion by demonstrating that the meetings were open to the public and could be attended by non-clients. In order for the attorney-client privilege to apply, the communications must be confidential."; "Plaintiffs claim their attorneys created these presentations in anticipation of class litigation arising out of stucco defects in Sun City. Defendants argue that these presentations were nothing more than solicitation materials. Because the Court is not privy to the contents of the presentations, it is unable to determine whether Defendants' assertion is correct. Assuming, without deciding, that these presentations were subject to work--product protection, the Court concludes that any work-product protection was waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public. The public nature of those meetings, and the media attention paid to them, created a significant likelihood that Defendants might obtain the presentations, thereby waiving work-product protection. Moreover, the Defendants have informed the Court that they were permitted to send a court reporter to one of the meetings at which Plaintiffs' counsel made these presentations. Accordingly, the Court concludes that any work--product protection applicable to these presentations was waived by Plaintiffs' counsel.")

Case Date	Jurisdiction	State	Cite Checked
2017-01-12	Federal	SC

Comment:

key case

Chapter: 19.702

Case Name: Doe v. Tippecanoe School Corp., Cause No.: 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)

(finding that the attorney-client privilege did not protect documents distributed at a meeting that as open to non-clients; "Defendants have not identified any deposition testimony indicating that the withheld pages are confidential. Defendants argue that deposition testimony shows that attendance at the meeting was limited to the attorney presenting the material, TSC's administrators, and possibly TSC teachers. The testimony, however, merely states that it was a 'teacher's meeting,'. . . 'administrative meeting in August where all of the administrators are there,'. . . or a mandatory 'administrate professional development,'. . . . The testimony is in conflict about who the intended audience was, and there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential.'"; "Two deponents recalled materials being distributed at the meeting. . . . Defendants have not identified deposition testimony labeling the presentation materials as confidential. The produced portion of the document at issue does not contain a confidentiality notice, and Defendants do not contend that there is such a notice in the withheld pages.")

Case Date	Jurisdiction	State	Cite Checked
2017-01-10	Federal	ID

Comment:

key case

Chapter: 19.702

Case Name: Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)

March 15, 2017 (PRIVILEGE POINT)

"Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large "Town Hall" Meetings"

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?

In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.

Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.

Case Date	Jurisdiction	State	Cite Checked
2017-01-10	Federal	IN

Comment:

key case

Chapter: 19.702

Case Name: Montesa v. Schwartz, 12 Civ. 6057 (CS) (JCM), 2016 U.S. Dist. LEXIS 80822 (S.D.N.Y. June 20, 2016)

(finding that a litigant waived the work product protection by disclosing work product to a journalist; "Plaintiffs assert that the attorney-client privilege protects the communications regarding legal strategy at these meetings. . . . Plaintiffs do not contend that any attorneys were present at these meetings. Additionally, Plaintiffs cannot establish that all of the attendees at these meetings were Plaintiffs in this case, or even clients of AFJ. There is no list of attendees, and no assertion that anyone made any effort to deny entry to non-Plaintiffs, or even, potential adversaries. Based on Plaintiff Lahens' deposition testimony, the Court can be confident that Plaintiff Lahens and Plaintiff White were present at these meetings, but the rest of the attendees are unknown. Based on Plaintiff Lahens' testimony about the lack of measures taken to ensure that only Plaintiffs were present, anyone from the community could have attended this meeting, including members of the press, or even adversaries. Plaintiffs have not met their burden of establishing that these strategy discussions were 'intended to be, and in fact were, kept confidential.'")

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

Chapter: 19.702

Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)

("Intervenors also may not claim privilege for communications shared freely with, or in the presence of, outside organizations, including campaign committees and political parties.")

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

Chapter: 19.702

**Case Name: Love v. Permanente Med. Grp., No. C-12-05679 DMR, 2014 U.S. Dist. LEXIS 22243, at *9-10 (N.D. Cal. Feb. 19, 2014)**

(finding that one outsider's presence at a meeting destroyed the privilege protection (although using the waiver terminology); "Nonetheless, the court finds that Defendants waived their assertion of attorney-client privilege over the redacted information when the information provided by Resnick was disclosed at the CPC meeting to individuals other than the CPC members. Namely, the disclosure of the information to Dawn Belardinelli, whom Defendants admit was present at the meeting to discuss matters unrelated to the advice provided by Resnick, constituted a waiver of the attorney-client privilege. Defendants have not shown that Belardinelli is connected to Plaintiff, the relevant departments and committees, or the events underlying this litigation, or that the advice provided by Resnick concerned matters within the scope of Belardinelli's duties. Nor have Defendants demonstrated that Belardinelli had any common legal interest with the members of the CPC such as to support an assertion of the common interest privilege. There is no indication in the minutes of the meeting that Belardinelli was not present at the meeting when the redacted information was transmitted to the meeting attendees. As such, Defendants waived any assertion of attorney-client privilege by disclosing the information to a third party without a common legal interest.")

Case Date	Jurisdiction	State	Cite Checked
2014-02-19	Federal	CA	B 7/14

Chapter: 19.702

**Case Name: United States v. Hassan-Gouda, Crim. A. No. 07-258 (JBS), 2013 U.S. Dist. LEXIS 39297, at 20-21, 21 (D.N.J. Mar. 21, 2013)**

(holding that the presence of a third party destroyed privilege protection; "Sallam [employee of defendant] was not present for this meeting in a capacity that would preserve the privilege. He was not Gouda's agent, nor was he a co-defendant. Sallam testified that he was not participating in the meeting, he never went to Gindhart's office, and he was not helping Gindhart and Gouda identify people named by initials in Indictment. . . . Sallam also testified that he never believed that Gindhart was his attorney or that he himself was in trouble. . . . Gouda and Gindhart were aware of Sallam's presence: he was across the desk from Gouda and Gindhart and they were sitting with him in his office. . . . While Gouda had not asked Sallam to be present for the meeting, he also did not ask him to leave; Sallam left by himself, figuring it was none of his business. . . . Sallam was not present as Gouda's agent nor to assist Gouda in his meeting with Gindhart. He had no common interest with Gouda in the defense of the case."; "The Court therefore finds that, because a third party was present, Gouda waived the attorney-client privilege as to the communications that occurred between him and Gindhart while Sallam was present for that conversation.")

Case Date	Jurisdiction	State	Cite Checked
2013-03-21	Federal	NJ	B 3/14

Chapter: 19.702

**Case Name: Cnty. of San Mateo v. v. CSL Ltd. (In re Plasma-Derivative Protein Therapies Antitrust Litig.), No. 09 C 7666, No. 11 C 1468, 2013 U.S. Dist. LEXIS 29624, at *17-18 (N.D. Ill. Mar. 4, 2013)**

("Octapharma was in the room during the Powerpoint presentation on February 18, 2010, as evidenced by PPTA's privilege log. The Powerpoint presentation took place after PPTA was informed that Octapharma did not have a common interest. Having an adverse party in the room during the presentation expressly disclaims any privilege, and also expressly negates confidentiality. The privilege was waived."; not explaining which Octapharma representative attended the meeting)

Case Date	Jurisdiction	State	Cite Checked
2013-03-04	Federal	IL	B 3/14

Chapter: 19.702

Case Name: United States v. Lentz, 419 F. Supp. 2d 820; 828 n.16 (E.D. Va. 2005)

("Nor is it persuasive to argue, as Lentz does, that Mr. Salvato told him that their conversations were privileged, because the monitoring and recording notice that preceded each of the calls destroyed any reasonable expectation of privilege. During the third call, Mr. Salvato stated to Lentz that 'this is a privileged call, but they're all recorded.' Mr. Salvato's suggestion that the attorney-client privilege would apply to a call that was being recorded by a third party is simply mistaken and cannot serve to rescue the waived privilege."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date	Jurisdiction	State	Cite Checked
2005-01-01	Federal	VA	N 12/08

Chapter: 19.702

Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 827-28 (E.D. Va. 2005)

("These principles, applied here, compel the conclusion that an inmate's telephone conversations with counsel are not protected by the attorney-client privilege where, as here, the inmate is notified at the outset that the calls are recorded and subject to monitoring. In these circumstances, Lentz [defendant] could not reasonably have assumed that his conversations with Mr. Salvato [lawyer for defendant] would be confidential. His decision to proceed with the conversations, despite notification that the conversations were being recorded and were subject to monitoring, is no different from Lentz electing to proceed with these conversations notwithstanding the known presence of a third party within earshot of the conversation."), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

Case Date	Jurisdiction	State	Cite Checked
2005-01-01	Federal	VA	N 12/08

Chapter: 19.703

Case Name: Fox v. Alfini, Case No. 18SA92, 2018 Colo. LEXIS 962 (Colo. Dec. 3, 2018)

January 9, 2019 (PRIVILEGE POINT)

State Courts Address Outsiders' Privilege Impact: Part II

Last week's Privilege Point described a North Carolina state court's predictable rejection of privilege protection for communications with a company's technical consultant. Does the same harsh standard apply when clients bring family members with them to lawyer meetings?

In Fox v. Alfini, plaintiff Fox ("then in her early thirties") fell ill at a chiropractor's office. Case No. 18SA92, 2018 Colo. LEXIS 962, at *4 (Colo. Dec. 3, 2018). Her parents rushed their "gravely ill" daughter to an emergency room "for what turned out to be a stroke." Id. Fox and her parents later met with a plaintiff's lawyer to discuss filing a malpractice action against the chiropractor. The defendant chiropractor discovered that the lawyer had recorded this initial meeting, and argued that the parents' presence aborted privilege protection. Not surprisingly, Fox claimed that her stroke caused "diminished mental capacity," and that "her parents' presence was necessary to facilitate her communications" with her lawyer. Id. at *5-6. The court disagreed, applying "an objective standard for determining whether a third party's presence was necessary to facilitate an attorney-client communication." Id. at *12. The Supreme Court agreed with the lower court that Fox "had not shown that her mental capacity was 'diminished such that the presence of her parents was necessary to assist in the representation.'" Id. at *15-16.

This counter-intuitive result demonstrates the difficulty of claiming privilege protection with or in the presence of client agent/consultants -- even family members. Next week's Privilege Point discusses fatal flaws in Fox's lawyer's argument.

Case Date	Jurisdiction	State	Cite Checked
2018-12-03	State	CO

Chapter: 19.703

Case Name: Martin v. Copeland, Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756 (N.D. Ind. July 5, 2018)

(holding that a former City employee could not rely on a open records law to overcome the City's work product protection for some documents in the plaintiff's personnel file, and that the City did not waive its work product protection when it put the protected documents in the personnel file; "Plaintiff also argues that Defendants waived any possible claim to attorney-client privilege when they placed the attorney communications into Plaintiff's personnel file. Defendants disagree, noting that no waiver of the privilege occurred because the omitted documents were never disclosed to Plaintiff. It is uncontested that Plaintiff never received a copy of the omitted communications; thus, no waiver of the attorney-client privilege occurred.")

Case Date	Jurisdiction	State	Cite Checked
2018-07-05	Federal	IN

Comment:

key case

Chapter: 19.703

Case Name: Firefighters' Retirement System v. Citco Group Limited, Civ. A. No. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018)

July 25, 2018 (PRIVILEGE POINT)

"Does a Third Party's Presence Destroy the Attorney-Client Privilege and the Work Product Doctrine Protections?"

Most privilege and work product cases focus on those two protections' applicability to documents or communications, or on the waiver effect of disclosing preexisting protected documents to third parties. But some cases focus on a third scenario – the effect on privilege or work product protection of a third party's presence during otherwise protected communications. One might predict the outcome of these cases – remembering that the attorney-client privilege is very fragile, while the work product doctrine is much more robust.

In United States v. Tirado, 890 F.3d 36, 38 (1st Cir. 2018), the defendant and his lawyer spoke in the courthouse "in the company of [the defendant's] relations and friends." The trial court and later the circuit court held that those friendly third parties' presence meant that "no right to preserve privilege could attach" to the courthouse communications. Id. at 39. One day later, in Firefighters' Retirement System v. Citco Group Limited, Civ. A. No. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018), defendant sought to discover communications at a meeting attended by bankruptcy liquidation committee members, interested creditors, an accountant, etc. The court found that those friendly third parties' presence did not destroy the communications' work product protection, which would evaporate only if their presence "substantially increase[d] the likelihood that the same information would be disclosed to [the adverse] defendants in this action." Id. at *24.

This stark difference between the fragile attorney-client privilege and the robust work product protection means that work product can survive contemporaneous or later disclosure that would destroy attorney-client privilege protection – such as disclosure to friendly consultants, auditors, public relations firms, etc.

Case Date	Jurisdiction	State	Cite Checked
2018-05-10	Federal	LA

Comment:

key case

Chapter: 19.703

Case Name: United States v. Tirado, Nos. 17-1127, 17-1128, 2018 U.S. App. LEXIS 12177 (1st Cir. App. May 9, 2018)

(holding that a criminal defense lawyer did not violate his client's rights by advising the court of the substance of communications that had occurred with his client, accompanied by relatives and friends, because the communications were not privileged; "The accuracy of Mr. Pine's [Lawyer] description of these other parties as having been present at the discussion has never been challenged. The consequence is that when speaking with them present, the defendant could not assume that his words were privileged statements to his lawyer, and thus no right to preserve privilege could attach.")

Case Date	Jurisdiction	State	Cite Checked
2018-05-09	Federal

Comment:

key case

Chapter: 19.703

Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)

("Thus, statements made to one's attorney in the presence of a third party nonlawyer, who is not necessary to the obtaining or giving of legal advice will result in a waiver of the privilege.")

Case Date	Jurisdiction	State	Cite Checked
2018-04-17	Federal	IL

Chapter: 19.703

Case Name: United States v. Tirado, 890 F.3d 36, 38 (1st Cir. 2018)

July 25, 2018 (PRIVILEGE POINT)

"Does a Third Party's Presence Destroy the Attorney-Client Privilege and the Work Product Doctrine Protections?"

Most privilege and work product cases focus on those two protections' applicability to documents or communications, or on the waiver effect of disclosing preexisting protected documents to third parties. But some cases focus on a third scenario – the effect on privilege or work product protection of a third party's presence during otherwise protected communications. One might predict the outcome of these cases – remembering that the attorney-client privilege is very fragile, while the work product doctrine is much more robust.

In United States v. Tirado, 890 F.3d 36, 38 (1st Cir. 2018), the defendant and his lawyer spoke in the courthouse "in the company of [the defendant's] relations and friends." The trial court and later the circuit court held that those friendly third parties' presence meant that "no right to preserve privilege could attach" to the courthouse communications. Id. at 39. One day later, in Firefighters' Retirement System v. Citco Group Limited, Civ. A. No. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018), defendant sought to discover communications at a meeting attended by bankruptcy liquidation committee members, interested creditors, an accountant, etc. The court found that those friendly third parties' presence did not destroy the communications' work product protection, which would evaporate only if their presence "substantially increase[d] the likelihood that the same information would be disclosed to [the adverse] defendants in this action." Id. at *24.

This stark difference between the fragile attorney-client privilege and the robust work product protection means that work product can survive contemporaneous or later disclosure that would destroy attorney-client privilege protection – such as disclosure to friendly consultants, auditors, public relations firms, etc.

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

Comment:

key case

Chapter: 19.703

Case Name: Andres v. Town of Wheatfield, Occidental Chemical Corp., Case No. 1:17-cv-00377, 2017 U.S. Dist. LEXIS 167465 (W.D.N.Y. Oct. 6, 2017)

(holding that a defendant could obtain split samples of plaintiff's testing of a landfill; "In this case, access to the sampling site and split sampling will not invade attorney-client communications if certain safeguards are present. For example, if Defendants are ordered to excuse themselves when such communications take place, the likelihood that they will be privy to confidential communications is minimal.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-06	Federal	NY

Chapter: 19.703

Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)

("As a general rule, the presence of third parties breaches the confidentiality of communications between an attorney and client and waives the privilege. However, '[t]he presence of a third-party, such as a consultant, does not destroy the attorney-client privilege where that party is the client's agent or possesses 'a commonality of interest with the client.' 'The presence of a third party in an e-mail transmission, for instance, will not destroy the attorney-client privilege if the third party is the attorney's or client's agent. . . .' Syngenta has presented Nadel's declaration stating that Syngenta engaged the VHB and URI employees as consultants 'to provide . . . scientific assistance sought by Syngenta's legal department regarding regulatory requirements.' The court has no reason to question this representation. The court finds Syngenta met its burden of demonstrating these particular third parties are Syngenta's agents for purposes of this litigation, and their presence on the e-mail communication did not destroy the attorney-client privilege applicable to PRIV003553.")

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

Chapter: 19.703

Case Name: Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017)

March 15, 2017 (PRIVILEGE POINT)

"Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large "Town Hall" Meetings"

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?

In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.

Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.

Case Date	Jurisdiction	State	Cite Checked
2017-01-12	Federal	SC

Comment:

key case

Chapter: 19.703

Case Name: Craft v. South Carolina State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017)

(finding that neither the privilege nor the work product protection covered communications in a town hall meeting open to the public; "Defendants served subpoenas on Plaintiffs' counsel's law firms, seeking production of documents and recordings related to town hall meetings Plaintiffs' counsel conducted in advance of the Sun City litigation."; "Plaintiffs' counsel assert that they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members in the related state-court litigation. However, Defendants have undercut that assertion by demonstrating that the meetings were open to the public and could be attended by non-clients. In order for the attorney-client privilege to apply, the communications must be confidential."; "Plaintiffs claim their attorneys created these presentations in anticipation of class litigation arising out of stucco defects in Sun City. Defendants argue that these presentations were nothing more than solicitation materials. Because the Court is not privy to the contents of the presentations, it is unable to determine whether Defendants' assertion is correct. Assuming, without deciding, that these presentations were subject to work--product protection, the Court concludes that any work-product protection was waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public. The public nature of those meetings, and the media attention paid to them, created a significant likelihood that Defendants might obtain the presentations, thereby waiving work-product protection. Moreover, the Defendants have informed the Court that they were permitted to send a court reporter to one of the meetings at which Plaintiffs' counsel made these presentations. Accordingly, the Court concludes that any work--product protection applicable to these presentations was waived by Plaintiffs' counsel.")

Case Date	Jurisdiction	State	Cite Checked
2017-01-12	Federal	SC

Comment:

key case

Chapter: 19.703

Case Name: Doe v. Tippecanoe School Corp., Cause No.: 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)

(finding that the attorney-client privilege did not protect documents distributed at a meeting that as open to non-clients; "Defendants have not identified any deposition testimony indicating that the withheld pages are confidential. Defendants argue that deposition testimony shows that attendance at the meeting was limited to the attorney presenting the material, TSC's administrators, and possibly TSC teachers. The testimony, however, merely states that it was a 'teacher's meeting,'. . . 'administrative meeting in August where all of the administrators are there,'. . . or a mandatory 'administrate professional development,'. . . . The testimony is in conflict about who the intended audience was, and there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential.'"; "Two deponents recalled materials being distributed at the meeting. . . . Defendants have not identified deposition testimony labeling the presentation materials as confidential. The produced portion of the document at issue does not contain a confidentiality notice, and Defendants do not contend that there is such a notice in the withheld pages.")

Case Date	Jurisdiction	State	Cite Checked
2017-01-10	Federal	ID

Comment:

key case

Chapter: 19.703

Case Name: Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017)

March 15, 2017 (PRIVILEGE POINT)

"Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large "Town Hall" Meetings"

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work product. How do these basic principles play out when defendants' or plaintiffs' lawyers meet with large groups of clients and possible clients?

In Doe v. Tippecanoe School Corp., Cause No. 4:15-CV-56-RL-PRC, 2017 U.S. Dist. LEXIS 3308 (N.D. Ind. Jan. 10, 2017), plaintiff sought to discover materials handed out at a meeting organized by defendants' lawyers. Defendants claimed that the attendees included their lawyer, the defendant school's administrators "and possibly [its] teachers." Id. at *6. But the court rejected defendants' privilege claim, noting that "there is no testimony indicating that the audience was restricted to only the invited employees or that any measures were taken to keep the meeting or the materials distributed at the meeting confidential." Id. Two days later, another court dealt with a similar meeting among plaintiffs and would-be plaintiffs focusing on construction defects in their Hilton Head homes. Craft v. S.C. State Plastering, LLC, C.A. No. 9:15-cv-5080-PMD, 2017 U.S. Dist. LEXIS 4510 (D.S.C. Jan. 12, 2017). Plaintiffs' lawyer claimed that "they prepared these presentations for the express purpose of giving legal advice to persons seeking to become class members." Id. at *5. But defendants "demonstrate[ed] that the meetings were open to the public and could be attended by non-clients." Id. The court therefore rejected plaintiffs' privilege and work product claims – noting that both protections were "waived when Plaintiffs' counsel decided to give the presentations at meetings that were open to the public." Id. at *6-7.

Lawyers on both sides of cases should assure that any such "town hall"-type meetings exclude anyone but clients or prospective clients, and should advise all attendees of the confidentiality of any handouts.

Case Date	Jurisdiction	State	Cite Checked
2017-01-10	Federal	IN

Comment:

key case

Chapter: 19.703

Case Name: Harrington v. Bergen County, A. No. 2:14-cv-05764-SRC-CLW, 2016 U.S. Dist. LEXIS 124727 (D.N.J. Sept. 13, 2016)

(finding that plaintiff's roommate's presence during plaintiff's communications with her lawyer prevented privilege protection; also inexplicably finding that the roommate could not prepare protected work product; "'As Defendants suggest, the concept of waiver does not properly apply where the third party is present when the communication is made, i.e., privilege never attached in the first instance and waiver instead may apply where there is a subsequent disclosure to a third party. . . . Based on the record presented, the Court proceeds as if Martin [Plaintiff's friend and colleague with whom she resided] was present for the communications for which attorney-client protection is sought, and thus concludes that privilege never attached. However, for the same reasons discussed herein, the Court also concludes that waiver would apply and the communications still would not be privileged even if it were the case that the communications at issue were later disclosed to Martin.'")

Case Date	Jurisdiction	State	Cite Checked
2016-09-13	Federal	NJ

Comment:

key case

Chapter: 19.703

Case Name: Montesa v. Schwartz, 12 Civ. 6057 (CS) (JCM), 2016 U.S. Dist. LEXIS 80822 (S.D.N.Y. June 20, 2016)

(finding that a litigant waived the work product protection by disclosing work product to a journalist; "Plaintiffs assert that the attorney-client privilege protects the communications regarding legal strategy at these meetings. . . . Plaintiffs do not contend that any attorneys were present at these meetings. Additionally, Plaintiffs cannot establish that all of the attendees at these meetings were Plaintiffs in this case, or even clients of AFJ. There is no list of attendees, and no assertion that anyone made any effort to deny entry to non-Plaintiffs, or even, potential adversaries. Based on Plaintiff Lahens' deposition testimony, the Court can be confident that Plaintiff Lahens and Plaintiff White were present at these meetings, but the rest of the attendees are unknown. Based on Plaintiff Lahens' testimony about the lack of measures taken to ensure that only Plaintiffs were present, anyone from the community could have attended this meeting, including members of the press, or even adversaries. Plaintiffs have not met their burden of establishing that these strategy discussions were 'intended to be, and in fact were, kept confidential.'")

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

Chapter: 19.703

Case Name: Bauer v. County of Saginaw, Case No. 14-cv-11158, 2015 U.S. Dist. LEXIS 39098 (E.D. Mich. March 27, 2015)

("[B]oth McColgan and Mr. Boyd attended the meeting about the Borello Memo in their roles as prosecutor-elect and future chief assistant prosecutor to discuss a staffing and hiring issue that may arise when they took office. Accordingly, the presence of McColgan and Mr. Boyd did not waive the attorney-client privilege.")

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

Chapter: 19.703

Case Name: Parker v. Carter, 18 Va. (4 Munf.) 273, 286 (1814)

("It is safer, and more conducive to that free intercourse which should exist between a client and his attorney, to consider all communications confidential, which fall within the description just mentioned: unless, indeed, the client should seem to vaunt his disclosures to the public, and, as it were, challenge the by-standers to hear them."; finding that the attorney-client privilege covered communications between a lawyer and a client despite the arguments that the conversation took place where others might have heard it)

Case Date	Jurisdiction	State	Cite Checked
1814-01-01	State	VA

Chapter: 19.801

Case Name: Pallies v. The Boeing Company, Case No. C16-01437RSL, 2017 U.S. Dist. LEXIS 144431 (W.D. Wash. Sept. 6, 2017)

(holding that the attorney-client privilege applied to a pre-deposition meeting among defendant's lawyer and several former defendant employees; holding that defendant Boeing's lawyer represented all of the former employee; "[T]here is no evidence that any communications between employees happened during group deposition preparations that were not part of their attempts to seek legal advice from Defendant's counsel. Each of the deposed witnesses signed declarations stating that they sought out Boeing's counsel for the purpose of being represented by counsel and receiving legal advice regarding depositions, advice considered confidential. . . . Defendant's attorney, Jennifer Svanfeldt, also signed a declaration stating that she represented each of the various employees to prepare them for deposition and extended the attorney-client privilege to them to the extent necessary to give them legal advice. . . . The eight-factor test necessary to establish the attorney-client privilege has been met here because all the witnesses (1) sought legal advice (2) from Ms. Svanfeldt and (3) communicated with her (4-5) for that purpose in confidence with an expectation of the attorney-client privilege and therefore (6) are permanently protected (7) from disclosure by anyone since (8) they have not waived their protection. . . . Therefore, it can be clearly established that the Defendant has proved that the attorney-client privilege applies to these deposition preparation meetings.")

Case Date	Jurisdiction	State	Cite Checked
2017-09-06	Federal	WA

Chapter: 19.801

Case Name: McKinney/Pearl Restaurant Partners, L.P. v. Metropolitan Life Insurance Co., No. 3:14-cv-2498-B, 2016 U.S. Dist. LEXIS 68354 (N.D. Tex. May 25, 2016)

(finding that the minority owner of a limiited partnership was within privilege protection; "Plaintiff explains that Mr. Lieberman is a minority owner of Sambuca [Plaintiff]; that Sambuca's discussions with Mr. Lieberman were in his capacity as an owner of Sambuca; that Mr. Lieberman is also CEO of The Retail Connection, and certain of The Retail Connection employees were included on some of the communications as indicated in the Affidavit of Kim Forsythe; and that, to the extent these employees were included on privileged communications, they were acting at the direction of Mr. Lieberman as agents in his capacity as minority owner of Sambuca. Plaintiff asserts that, in his capacity as owner, Mr. Lieberman is entitled to attorney-client privilege, and his agents are entitled to the same."; "The Court determines that, through the Affidavit of Kim Forsythe . . .Plaintiff has sufficiently established that Mr. Lieberman and his employees were making or receiving the confidential communications at issue with Plaintiff's counsel while acting in the scope of employment with -- or, in this case, minority ownership of -- Plaintiff (or as agents of the minority owner) for the purpose of effectuating legal representation to Plaintiff. This conclusion is not undermined by Plaintiff also having retained The Retail Connection and Mr. Lieberman to negotiate on Plaintiff's behalf with Defendants. . . . Mr. Lieberman's serving as Plaintiff's agent in any negotiation does not preclude his making or receiving confidential communications while acting within the scope of his role as minority owner for the purpose of effectuating legal representation to Plaintiff, even in connection with the same negotiations.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-25	Federal	TX

Comment:

key case

Chapter: 19.802

Case Name: Pallies v. The Boeing Company, Case No. C16-01437RSL, 2017 U.S. Dist. LEXIS 144431 (W.D. Wash. Sept. 6, 2017)

(holding that the attorney-client privilege applied to a pre-deposition meeting among defendant's lawyer and several former defendant employees; holding that defendant Boeing's lawyer represented all of the former employee; "[T]here is no evidence that any communications between employees happened during group deposition preparations that were not part of their attempts to seek legal advice from Defendant's counsel. Each of the deposed witnesses signed declarations stating that they sought out Boeing's counsel for the purpose of being represented by counsel and receiving legal advice regarding depositions, advice considered confidential. . . . Defendant's attorney, Jennifer Svanfeldt, also signed a declaration stating that she represented each of the various employees to prepare them for deposition and extended the attorney-client privilege to them to the extent necessary to give them legal advice. . . . The eight-factor test necessary to establish the attorney-client privilege has been met here because all the witnesses (1) sought legal advice (2) from Ms. Svanfeldt and (3) communicated with her (4-5) for that purpose in confidence with an expectation of the attorney-client privilege and therefore (6) are permanently protected (7) from disclosure by anyone since (8) they have not waived their protection. . . . Therefore, it can be clearly established that the Defendant has proved that the attorney-client privilege applies to these deposition preparation meetings.")

Case Date	Jurisdiction	State	Cite Checked
2017-09-06	Federal	WA

Chapter: 19.802

Case Name: Pallies v. The Boeing Company, Case No. C16-01437RSL, 2017 U.S. Dist. LEXIS 144431 (W.D. Wash. Sept. 6, 2017)

(holding that the attorney-client privilege applied to a pre-deposition meeting among defendant's lawyer and several former defendant employees; holding that defendant Boeing's lawyer represented all of the former employee; "Plaintiff does not cite any binding case law for the proposition that the attorney-client privilege can be abrogated by the presence of multiple witnesses in deposition preparations.")

Case Date	Jurisdiction	State	Cite Checked
2017-09-06	Federal	WA

Chapter: 19.802

Case Name: Yocabet v. UPMC Presbyterian and University of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)

(holding that the attorney-client privilege can protect communications during a meeting of an institution's governing board; "We first conclude that the attorney-client privilege can apply to a meeting of the governing board of an organization with its executive vice-president and that the attorney-client privilege potentially applies to the information requested in these interrogatories.").

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

Chapter: 19.802

Case Name: Yocabet v. UPMC Presbyterian and University of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)

(holding that the attorney-client privilege can protect communications during a meeting of an institution's governing board; "We reject the postulation that a corporate entity can obtain legal advice only when one of its high-ranking officials meets privately with counsel for advice on behalf of the corporation. . . . Thus, the board of directors of a corporation, in addition to tis officers, can act on its behalf for purposes of application of the attorney-client privilege.").

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

Chapter: 19.802

Case Name: Lewis v. Keen Transport, Inc., No. 09 C 3912, 2011 U.S. Dist. LEXIS 19787 (N.D. Ill. Feb. 28, 2011)

(implying that the presence of a non-control group employee during an otherwise privileged communication would abort privilege protection; "Defendants argue, however, that Keen contacted its attorney and that its attorney-client relationship should, somehow, extend to its employee, Craig [Defendant employee accused of negligence that resulted in a personal injury to plaintiff], and the statement. The only way that the attorney-client privilege could extend in such a situation would be, however, to apply what Illinois has termed the 'control group' test. This test provides that a corporation's attorney-client privilege covers its corporate representatives where there are discussions between an attorney and only members of the corporation's 'control group,' which are typically employees in top management positions. We must emphasize, however, that defendants have not argued the application of this test or cited to it in their brief."; "Even so, if we apply this 'control group' test here, the privilege can only extend if Craig communicated directly with counsel, Krkljes [Defense lawyer] (or directed the statement to him). The privilege applies only if 'the communication originated in a confidence that would not be disclosed, was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, and remained confidential.' The attorney-client privilege, then, would not extend even under this test.").

Case Date	Jurisdiction	State	Cite Checked
2011-02-28	Federal	IL

Chapter: 19.802

Case Name: Rawat v. Navistar Int'l Corp., Case No. 08 C 4305, 2010 U.S. Dist. LEXIS 34868 (N.D. Ill. April 7, 2010)

(applying the Illinois control group standard rather than the Delaware privilege standard, and finding that a records manager was outside the control group; "[T]he Court can now focus on whether the privilege applies under the Restatement. Assuming that Delaware is the state with the most significant relationship with the communications, the Court finds that the attorney-client privilege does not apply. If Delaware is the state with the most significant relationship with the communications, § 139(2) of the Restatement governs. That section states that communications, although protected by Delaware law, 'will be admitted [if they are not privileged under Illinois law,] unless there is some special reason why [Illinois] policy favoring admission should not be given effect.' Restatement (Second) of Conflict of Laws § 139(2) (emphasis added). Thus, the relevant questions are twofold: Would, under Illinois law, the communications be privileged? Second, if the answer is 'yes,' has the party asserting the privilege shown any 'special reason' for non-disclosure?"; "Unless Navistar can show a 'special reason' for non-disclosure, the law compels disclosure. Allianz, 869 N.E. 2d at 1058; Restatement (Second) of Conflict of Laws § 139(2). Here, Navistar has not offered any 'special reason' or even examined the factors necessary for determining whether such a reason exists. As a result, the Court finds that Navistar has failed to show a special reason exists and, therefore, under § 139(b), the communications involving Kuppler are not privileged and should be disclosed.")

Case Date	Jurisdiction	State	Cite Checked
2010-04-07	Federal	IL

CHAPTERS

SECTIONS

STATES

JURISDICTION

CASE TYPE

Chapter: 19.002

Case Name: Martin v. Copeland, Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756 (N.D. Ind. July 5, 2018)

Chapter: 19.2

Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)

Chapter: 19.2

Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)

Chapter: 19.2

Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *17 (D. Nev. June 18, 2013)

Chapter: 19.2

Case Name: Callaway v. Cofield (In re Cofield), Case No. 11-02034-8-SWH, Adv. No. 12-00270-8-SWH-AP, 2013 Bankr. LEXIS 1555, at *9 (E.D.N.C. Apr. 11, 2013)

Chapter: 19.2

Case Name: I.R.S. Gen. Couns. Mem. 20123901F, at 2, 3, 4 (Aug. 27, 2012) (available at http://www.irs.gov/pub/irs-lafa/20123901F.pdf)

Chapter: 19.3

Case Name: United States v. Tirado, Nos. 17-1127, 17-1128, 2018 U.S. App. LEXIS 12177 (1st Cir. App. May 9, 2018)

Chapter: 19.3

Case Name: Gottwald v. Sebert, 653118/2014, 2017 N.Y. Misc. LEXIS 4276 (N.Y. Sup. Ct. Nov. 8, 2017)

Chapter: 19.4

Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)

Chapter: 19.4

Case Name: Martin v. Copeland, Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756, at *4 (N.D. Ind. July 5, 2018).

Chapter: 19.4

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2018 U.S. Dist. LEXIS 14851 (S.D.N.Y. Jan. 29, 2018)

Chapter: 19.4

Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)

Chapter: 19.4

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 74 n.12 (E.D. Va. 1998)

Chapter: 19.4

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 71-72 (E.D. Va. 1998)

Chapter: 19.5

Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)

Chapter: 19.5

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2018 U.S. Dist. LEXIS 14851 (S.D.N.Y. Jan. 29, 2018)

Chapter: 19.5

Case Name: JBGR LLC v. Chicago Title Ins. Co., 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017)

Chapter: 19.5

Case Name: Paulus v. J-M Manufacturing Co., Inc., B269904, 2017 Cal. App. Unpub. LEXIS 3907 (Cal. App. 2d June 8, 2017)

Chapter: 19.5

Case Name: Cooper v. Meritor, Inc., Civ. A. No. 4:16-cv-052 DMB-JMV Consolidated with Civ. A. No. 4:16-cv-053 DMB-JMV, Civ. A. No. 4:16-cv-054 DMB-JMV, CIV. A. No. 4:16-cv-055-DMB-JMV, CIV. A. No. 4:16-cv-056-DMB-JMV, 2017 U.S. Dist. LEXIS 4727 (N.D. Miss. 1/12/17)

Chapter: 19.5

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)

Chapter: 19.5

Case Name: Development Specialists, Inc. v. Dechert LLP, 11 Civ. 5984 (CM) (MHD), 2014 U.S. Dist. LEXIS 107608 (S.D.N.Y. July 31, 2014)

Chapter: 19.5

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)

Chapter: 19.5

Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *17, *18-19 (N.D. Cal. Mar. 26, 2013)

Chapter: 19.5

Case Name: In re Marriage of Kurotsuchi, Nos. 1-11-0638 & -2319, 2013 Ill. App. Unpub. LEXIS 377, at *27, *28, *30, *31 (Ill. App. Ct. Mar. 1, 2013)

Chapter: 19.5

Case Name: United States v. Finazzo, Np. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *41-42 (E.D.N.Y. Feb. 19, 2013)

Chapter: 19.5

Case Name: Riveiro-Calder v. Cooperativa De Ahorro Y Credito De Aguadilla, Civ. 11-1702CCC, 2013 U.S. Dist. LEXIS 17697, at *9-10, *11, *13 (D.P.R. Feb. 8, 2013)

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 268 (E.D. Va. 2006)

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267-68 (E.D. Va. 2006)

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 265 (E.D. Va. 2006)

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)

Chapter: 19.5

Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 267 (E.D. Va. 2006)

Chapter: 19.12

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)

Chapter: 19.13

Case Name: Kreuze v. VCA Animal Hospitals, Inc., Civ. A. No. PJM-17-1169, 2018 U.S. Dist. LEXIS 66667 (D. Md. Apr. 20, 2018)

Chapter: 19.13

Case Name: Kreuze v. VCA Animal Hospitals, Inc., Civ. A. No. PJM-17-1169, 2018 U.S. Dist. LEXIS 66667 (D. Md. April 20, 2018)

Chapter: 19.13

Case Name: Miller v. Zara USA, Inc., 4187N, 155512/15, 2017 N.Y. App. Div. LEXIS 4327, 2017 NY Slip Op 04407 (N.Y. Sup. Ct. App. June 6, 2017) (citing In re Asia [In re Asia Global Crossing, Ltd. (322 BR 247, 257 (Bankr, SD NY 2005)

Chapter: 19.13

**Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *17 (D. Nev. June 18, 2013)**

**Case Name: Callaway v. Cofield (In re Cofield), Case No. 11-02034-8-SWH, Adv. No. 12-00270-8-SWH-AP, 2013 Bankr. LEXIS 1555, at *9 (E.D.N.C. Apr. 11, 2013)**

**Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)**

**Case Name: Martin v. Copeland, Cause No. 2:16-CV-59-JVB-JEM, 2018 U.S. Dist. LEXIS 111756, at *4 (N.D. Ind. July 5, 2018).**

**Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)**

**Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at 17, 18-19 (N.D. Cal. Mar. 26, 2013)**

**Case Name: In re Marriage of Kurotsuchi, Nos. 1-11-0638 & -2319, 2013 Ill. App. Unpub. LEXIS 377, at 27, 28, 30, 31 (Ill. App. Ct. Mar. 1, 2013)**

**Case Name: United States v. Finazzo, Np. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *41-42 (E.D.N.Y. Feb. 19, 2013)**

**Case Name: Riveiro-Calder v. Cooperativa De Ahorro Y Credito De Aguadilla, Civ. 11-1702CCC, 2013 U.S. Dist. LEXIS 17697, at 9-10, 11, *13 (D.P.R. Feb. 8, 2013)**

**Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *15 (N.D. Cal. June 10, 2013)**

**Case Name: In re High Tech Emp. Antitrust Litig., Case. No. 11-CV-2509-LHK-PSG, 2013 U.S. Dist. LEXIS 28623, at 17 & 4, 19-20, 20-21, *24-25 (N.D. Cal. Feb. 28, 2013)**

**Case Name: United States v. Finazzo, Np. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *41-42 (E.D.N.Y. Feb. 19, 2013)**

**Case Name: United States v. Finazzo, No. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at 21-22,22, *37 (E.D.N.Y. Feb. 19, 2013)**

**Case Name: Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at 2, 3, *12-14 (W.D. Va. June 17, 2008)**

**Case Name: Sprenger v. Rector & Bd. of Visitors of Va. Tech, Civ. A No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at *4 & n.1 (W.D. Va. June 17, 2008)**