McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Chapter: 28.2

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)

(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "The SCO also contends that the Targets impliedly waived the attorney-client privilege as to the testimony sought from the Witness by disclosing the 2016 and 2017 FARA Submissions to DOJ. The waiver extends to the Targets' specific conversations with the Witness that were released in substance to DOJ in these FARA Submissions."; "Upon sending the FARA Submissions to DOJ, the Targets waived, through voluntary disclosure, any attorney-client privilege in their contents. White, 887 F.2d at 271; In re Subpoenas Duces Tecum, 738 F.2d at 1370; Permian Corp., 665 F.2d at 1219. In fact, the FARA Submissions made specific factual representations to DOJ that are unlikely to have originated from sources other than the Targets, and, in large part, were explicitly attributed to one or both Targets' recollections. . . . Additionally, the Targets impliedly waived the privilege as to their communications with the Witness to the extent that these communications related to the FARA Submissions' contents.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-02	Federal	DC

Comment:

key case

Chapter: 28.2

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)

(in an opinion widely reported as involving former Trump advisor Paul Manafort and his colleague, upholding an order compelling those individuals' lawyer to testify before a grand jury; finding that the crime-fraud exception applied and that Manafort and his colleague had waived their attorney-client privilege by including facts in Foreign Agent Registration Act forms that could only have come from conversations with their lawyer; "'Target 1 argues that the SCO has not shown that the 2016 FARA Submission contained representations sourced to the Targets themselves rather than to publicly-available sources such as 'media reports, or a corporate registry or similar database,'. . . but even a cursory review of this letter shows otherwise. The 2016 FARA Submission contained representations the Witness could not plausibly have gathered solely from publicly-available sources, such as that the Targets had no agreement to provide the ECFMU services or were counterparties to any service agreements between ECFMU and the GR Companies. . . . The Targets repeated these representations in the 2017 FARA Submission.'")

Case Date	Jurisdiction	State	Cite Checked
2017-10-02	Federal	DC

Comment:

key case

Chapter: 28.2

Case Name: Gardner v. Major Automobile Co., Inc., 11 Civ. 1664 (FB) (VMS), 2014 U.S. Dist. LEXIS 44877 (E.D.N.Y. March 31, 2014)

(addressing a general counsel's testimony as a Rule 30(b)(6) witness that he relied on an outside lawyer, but noting the defendant's disclaimer of any reliance on advice of counsel defense in finding that there had not been waiver; finding that a litigant's assertion of good faith did not trigger a waiver; "Defendant Keltz [General Counsel] made a partial disclosure of a confidential conversation when he stated that Littman [Outside Lawyer] advised Defendant Major that it was not necessary to update a valuation, but this does not amount to a selective disclosure that requires an implied-waiver finding because, in order 'to effectuate [such] a waiver, the selective disclosure must have occurred in an adversarial context, i.e., one that has the potential to cause legal prejudice to the proponent's adversary.'. . . Here, Defendant Keltz's partial disclosure was made at deposition and not in front of a factfinder.")

Case Date	Jurisdiction	State	Cite Checked
2014-03-31	Federal	NY

Chapter: 28.2

**Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at 20, 21 (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; "There are two primary ways in which a party can waive the attorney-client privilege. First, a party may implicitly waive the privilege by asserting a claim or defense that relies on privileged materials as its basis."; "Second, and more relevant here, a party may expressly waive the attorney-client privilege.")

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

Chapter: 28.2

**Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *12-13 (D. Md. Mar. 15, 2013)**

(adopting the Rhone [Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir.1994)] rather than the Hearn [Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975)] approach; "Express, or actual, waiver occurs where confidential communications are disclosed to a party outside the attorney-client relationship, while implied waiver occurs where a litigant puts the substance of a confidential communication at issue in the litigation or by selective disclosure, where a litigant discloses a portion of the confidential communication and invokes the privilege to shield the remainder.")

Case Date	Jurisdiction	State	Cite Checked
2013-03-15	Federal	MD	B 3/14

Chapter: 28.2

**Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *15 (D.N.H. Feb. 22, 2013)**

(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by work place harassment; "Implied waivers may be found where a party seeks to use the privilege as both a sword and shield, as, for example, where a client seeks to rely on counsel's advice as an element of a claim or defense, or discloses only portions of such communications.")

Case Date	Jurisdiction	State	Cite Checked
2013-02-22	Federal	NH	B 3/14

Chapter: 28.2

**Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *11-12 (E.D. Va. Dec. 3, 2012)**

("The Fourth Circuit has explained the general waiver doctrine as follows: 'A client can waive an attorney-client privilege expressly or through his own conduct. Implied waiver occurs when a party claiming the privilege has voluntarily disclosed confidential information on a given subject matter to a party not covered by the privilege. However, an attorney may not unilaterally waive the privilege that his client enjoys. The ability to protect work product normally extends to both clients and attorneys, and the attorney or the client, expressly or by conduct, can waive or forfeit it, but only as to himself.' Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 293-94 (4th Cir. 2004) (emphasis in original) (citations and internal quotation marks omitted).")

Case Date	Jurisdiction	State	Cite Checked
2012-12-03	Federal	VA

Chapter: 28.2

**Case Name: Shared Med. Res., LLC v. Histologics, LLC, No. SACV 12 0612 DOC (RNBx), 2012 U.S. Dist. LEXIS 164336, at *5 n.2 (C.D. Cal. Nov. 14, 2012)**

("'The 'waiver-by-affirmative reliance' doctrine is also known as 'the waiver-by-affirmative-use' doctrine.'")

Case Date	Jurisdiction	State	Cite Checked
2012-11-14	Federal	CA	B 7/13

Chapter: 28.2

Case Name: Northern Virginia Real Estate, Inc. v. Martins, 80 Va. Cir. 478, 484 (Va. Cir. Ct. 2010)

("This rule of law is for the protection of the client, who may waive the privilege through express or implied conduct." [citing Seventh District Committee v. Gunter, 212 Va. 278, 287, 183 S.E.2d 713, 719 (1971)])

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

Chapter: 28.2

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)

("The attorney-client privilege may be expressly or impliedly waived by the client's conduct. Banks, 274 Va. at 453-54, 650 S.E.2d at 695-96; Edwards, 235 Va. at 509, 370 S.E.2d at 301.")

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

Chapter: 28.2

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 445 (W.D. Va. 2009)

("'A client can waive an attorney-client privilege expressly or through his own conduct.' Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 294 (4th Cir. 2004).")

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

Chapter: 28.2

**Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *8 (W.D. Va. Dec. 8, 2006)**

("Settled Supreme Court case law similarly appears to establish that a waiver of the privilege requires no particular formality and may be either express or implied from the client's conduct. Blackburn v. Crawford's Lessee, 70 U.S. 175, 194, 18 L. Ed. 186, 194 (1865); Glover v. Patten, 165 U.S. 394, 407-8, 17 S. Ct. 411, 416, 41 L. Ed. 760, 768 (1897).")

Case Date	Jurisdiction	State	Cite Checked
2006-12-08	Federal	VA

Chapter: 28.2

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 n.3 (W.D. Va. 2005)

("Implied waiver, for example, occurs when the party claiming the privilege makes any disclosure of a confidential communication to any individual who is not embraced by the privilege. In re Grand Jury Subpoena, 341 F.3d at 336.")

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

Chapter: 28.2

Case Name: Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 293-94 (4th Cir. 2004)

("A client can waive an attorney-client privilege expressly or through his own conduct. . . . Implied waiver occurs when a party claiming the privilege has voluntarily disclosed confidential information on a given subject matter to a party not covered by the privilege. . . . However, an attorney may not unilaterally waive the privilege that his client enjoys." (emphasis in original))

Case Date	Jurisdiction	State	Cite Checked
2004-01-01	Federal		N 11/05

Chapter: 28.2

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)

("Furthermore, 'the privilege may be expressly waived by the client, or a waiver may be implied from the client's conduct.'" [Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988)])

Case Date	Jurisdiction	State	Cite Checked
2002-01-01	State	VA

Chapter: 28.2

Case Name: Commonwealth v. Miller, 66 Va. Cir. 470, 470-71 (Va. Cir. Ct. 2001)

("The attorney-client privilege may be waived by the client either expressly or implied from the client's conduct. Commonwealth v. Edwards, supra, at 509; Grant, supra. at 648-49. In the instant case, the defendant told the police officer transporting her to the Albemarle Regional Jail on September 13, 2001, that Bruce K. Tyler, her former lawyer, told her that she need not legally change her name to get a home equity loan or insurance benefits. I find that this constitutes an implied waiver of the attorney-client privilege. It is a communication to the police officer of information that would otherwise be privileged because it was a communication from her lawyer to her in the course of his employment. This waiver not only waives the privilege as to any transmitted data, but also as to the details underlying that information. Commonwealth v. Edwards, supra, at 509-10.")

Case Date	Jurisdiction	State	Cite Checked
2001-01-01	State	VA

Chapter: 28.2

Case Name: Commonwealth of Va. v. Evans, 55 Va. Cir. 237, 242 (Va. Cir. Ct. 2001)

("The privilege may be expressly waived by the client or implicitly waived as a result of the client's conduct. Id. [Commonwealth v. Edwards, 235 Va. 499, 508-510, 370 S.E.2d 296, 301 (1988) (quoting Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914)]")

Case Date	Jurisdiction	State	Cite Checked
2001-01-01	State	VA

Chapter: 28.2

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 188 (Va. Cir. Ct. 2000)

("The Court continues, 'The privilege may be expressly waived by the client, or a waiver may be implied from the client's conduct.' Id. [Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296 (1988) (citing 8 Wigmore, Evidence, § 2291 at 554 (McNaughton rev. 1961))]")

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

Chapter: 28.2

Case Name: Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th Cir. 1998)

("As a general rule, implied waiver occurs when the party claiming the privilege has made any disclosure of a confidential communication to any individual who is not embraced by the privilege.")

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

Chapter: 28.16

Case Name: Doe v. Hamilton Cty. Bd. of Educ., Case No. 1:16-CV-373 (lead), Case No. 1:16-CV-497, 2018 U.S. Dist. LEXIS 11117 (E.D. Tenn. Jan. 12, 2018)

(analyzing the waiver effect of a school board releasing the results of an investigation into alleged sexual assaults by basketball team members; finding that the disclosure triggered a subject matter waiver that included internal communications between school board representatives and the school board's lawyer; "I find that when the Board released the Bullard Report, it waived the attorney-client privilege as to the entire scope of the investigation performed by Attorney Bullard, and all materials, communications, and information provided to Attorney Bullard as part of her investigation.")

Case Date	Jurisdiction	State	Cite Checked
2018-01-12	Federal	TN

Chapter: 28.17

Case Name: In re Residential Capital, LLC, 491 B.R. 63, 72 (S.D.N.Y. 2013)

(holding that the law firm of Morrison & Foerster had claimed privilege for several communications during discovery, and therefore its client could not claim advice of counsel at trial; "The Debtors are walking a fine line between arguing that they sought and received the advice of counsel when negotiating and evaluating (and ultimately approving) the RMBS Trust Settlement, and that they relied on the advice of counsel in approving the RMBS Trust Settlement. For example, the Debtors claim they only want to introduce the fact that the critical negotiations were handled by the Debtors' attorneys, without delving into the substance of those negotiations (to the extent they were undertaken by the Debtors' attorneys). . . . Yet, the Debtors' RMBS Reply Briefs are replete with statements such as '[t]he directors were entitled to rely on these [legal and financial] experts' advice and counsel' and 'ResCap LLC's directors . . . relied on advice and presentation materials from their advisors that were fair, accurate, and adequate to the task.'" (internal citation omitted); "The attorney-client privilege is not waived if the Debtors argued that they sought the advice of counsel, among other actions, in an effort to reasonably educate themselves as to the merits of the settlement. However, after having asserted the attorney-client privilege throughout discovery, the Debtors cannot now introduce the substance of whatever advice it sought and received in order to demonstrate that it exercised proper business judgment in approving the RMBS Trust Settlement, even for the purpose of rebutting a 'due care' challenge.")

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

Chapter: 28.20

**Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)**

October 10, 2018 (PRIVILEGE POINT)

Waiver Implications of Lawyers' Self-Defense Privilege Disclosures

The ethics rules and attorney-client privilege principles both allow lawyers to disclose privileged communications when defending themselves from clients' and even third parties' attacks. But do such disclosures waive the clients' privilege, thus allowing the whole world to see the communications?

In United States v. Lander, the court understandably held that a criminal defendant's allegation that his former lawyer "coerced" him into pleading guilty waived the client's privilege protection for "all communications" that the former lawyer "reasonably believes necessary to disapprove the allegations." No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018). The court did not explain whether it would review the privileged communications in camera rather than in open court. About a week later, the court in Siser North America, Inc. v. World Paper Inc., Case No. 16-cv-14369, 2018 U.S. Dist. LEXIS 133379 (E.D. Mich. Aug. 8, 2018), took a more subtle approach in a civil context. Defendants' lawyer withdrew after the magistrate judge sanctioned him. In defending himself, the lawyer disclosed privileged communications: (1) to his own personal lawyer; and (2) in attachments to a defensive pleading filed with the court (under seal) and served on plaintiffs. Now represented by a new lawyer, defendants sought an order requiring plaintiffs to return those privileged attachments. The plaintiffs argued that the withdrawn lawyer's disclosures to his personal lawyer and to them waived defendants' privilege, thus freeing them to use those communications. The court rejected plaintiff's argument and ordered it to return (and not use) the privileged documents -- concluding: (1) that the accused lawyer "was permitted to disclose privileged information to his attorney . . . in defending against such allegations" ( id. at *11); (2) that the accused lawyer's "disclosure [in the defensive pleading attachments] did not constitute a waiver of privilege since it was done pursuant to [the ethics rules] for the limited scope of defending himself." Id. at *8.

Lawyers' ability to defend themselves from clients' or third parties' accusations can trigger waiver issues. In either situation, clients should be on guard to protect against a wider waiver.

Case Date	Jurisdiction	State	Cite Checked
2018-08-01	Federal

Chapter: 28.20

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)

(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The attorney-client privilege, which attaches to the communications between the Petitioner and his former counsel, shall not be deemed automatically waived in any other federal or state proceeding.")

Case Date	Jurisdiction	State	Cite Checked
2017-03-20	Federal	VA

Chapter: 28.702

Case Name: Heth v. Satterlee Stephens Burke & Burke LLP, No. 650379/2015, 2019 NY Slip Op 30555(U) (N.Y. Sup. Ct. Mar. 5, 2019)

May 22, 2019 (PRIVILEGE POINTS)

"Clients Suing Their Lawyers For Malpractice Risk A Subject Matter Waiver"

Clients and lawyers asserting claims against each other can waive privilege protection without disclosing any privileged communications. But such implied or "at issue" waivers often require balancing of participants' interests. For instance, some courts hold that clients suing their former lawyers for malpractice must disclose their communications with successor counsel. Other courts take the opposite position, finding such intrusion inappropriate.

In Heth v. Satterlee Stephens Burke & Burke LLP, No. 650379/2015, 2019 NY Slip Op 30555(U) (N.Y. Sup. Ct. Mar. 5, 2019), the court dealt with a malpractice defendant's efforts to discover communications between the plaintiff former client and the defendant's co-counsel – not its successor counsel. The court allowed such discovery, explaining that the disclosure of such communications between plaintiff client and the malpractice defendant's co-counsel was "essential" to defendant's defense that it "did not proximately cause [client's] alleged damages" – because the client had relied on co-counsel's rather than defendant's advice. Id. at 3.

While clients contemplating malpractice cases against their former lawyers may be able to protect their communications with successor counsel, they normally should not expect the same treatment for their communications with defendant's co-counsel during the pertinent time.

Case Date	Jurisdiction	State	Cite Checked
2019-03-05	State	NY

Comment:

key case

Chapter: 28.702

Case Name: Moody v. Hill, A18A1011, 2018 Ga. App. LEXIS 241 (Ga. App. April 30, 2018)

(holding that a malpractice defendant could not obtain documents from co-counsel Holland & Knight, because the plaintiff had not sued Holland & Knight for malpractice; "The trial court found it undisputed that Holland & Knight and the appellees together had represented the appellants in the litigation."; "Certainly, the appellants waived the attorney/client privilege between themselves and the appellees. The issue presented here though is whether a client, who sues an attorney for malpractice and thereby waives the attorney/client privilege, also impliedly waives the attorney/client privilege with regard to a third party attorney also engaged by the client but not sued by the client."; "In the instant case, we find no basis for finding the appellants impliedly waived the attorney client privilege with regard to the non-party Holland & Knight. The trial court found it undisputed that Holland & Knight and the appellees together represented the appellants in connection with the matters which are the subject of the appellants' claims. However, the appellants actually engaged Holland & Knight after the legal advice and services provided by the appellees that constitute the subject of the appellants' complaint against the appellees. Holland & Knight were involved in dealing with the consequences of the alleged malfeasance of the appellees.")

Case Date	Jurisdiction	State	Cite Checked
2018-04-30	State	GA

Chapter: 28.702

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-15-0384, 2018 Ill. App. LEXIS 51 (Ill. App. 5d Feb. 7, 2018)

(holding that a doctor who has sued a former lawyer for breach of fiduciary duty must disclose communications with other lawyers at the same time the doctor was represented by that lawyer; holding that the implied waiver extended to communications about the doctor's breach claim, but not about the doctor's settlement of an earlier case – which would be governed by an objective standard; "Based on our analysis of existing Illinois law, as set forth above, we find that documents within Daily, Stinson, and Padberg's files, as set forth in their respective privilege logs, may contain communications that are required to be examined in order to truthfully resolve factual and legal issues that have been injected into the instant litigation by the plaintiffs. . . . Although the plaintiffs are not asserting a cause of action for legal malpractice against Greensfelder, they are asserting a cause of action for breach of fiduciary duty based on Greenfelder's role as their prior counsel and its use of information acquired in that role in its representation of an adverse party leading up to, during, and in settlement of the Missouri litigation. An essential element of a claim for breach of fiduciary duty is damages approximately caused by the breach. . . . there is an issue of whether Greensfelder, Daily, Stinson, and Padberg contributed to cause the Missouri litigation and its outcome and the relative contribution of each to the plaintiffs' damages."; "In order to truthfully resolve the factual and legal issues necessary to adjudicate the causation element of the plaintiffs' claim against Greensfelder, all communications between the plaintiffs and Daily, Stinson, and Padberg that are related to the role Daily, Stinson, and Padberg played in the events leading up to and including the plaintiffs' defense of the Missouri litigation are discoverable pursuant to the 'at issue' exception to the attorney-client privilege. . . . documents evidencing communications between the plaintiffs and Daily, Stinson, and Padberg that are relevant solely to the reasonableness of the plaintiffs' decision to settle the Missouri litigation, and the amount of that settlement, remain privileged because, for the above-stated reasons, they are not 'required to be examined in order to truthfully resolve' the causation element of the plaintiffs' claim against Greensfelder for breach of fiduciary duty. Instead, they are relevant to the issue of the reasonableness of the settlement of the Missouri litigation, which, as explained above, is subject to an objective measure of proof.")

Case Date	Jurisdiction	State	Cite Checked
2018-02-07	State	IL

Chapter: 28.702

Case Name: Newsome v. Lawson, Civ. No. 14-842-RGA-MPT, 2017 U.S. Dist. LEXIS 203691 (D. Del. Dec. 12, 2017)

(applying the Teleglobe standard, and finding that a liquidating trustee could obtain privileged documents from a lawyer that jointly represented the bankrupt company and its parent; also finding that the Eureka case did not change that result; also finding that the "breach of duty exception" allowed the lawyer for a joint client to obtain privileged communications between either of the joint client and their lawyer; "The magistrate judge relied on Teleglobe [In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007)] to hold that neither the adverse-litigation exception nor the breach of duty exception were proper grounds to compel Defendants' production of privileged documents from the joint representation of Mahalo USA and Mahalo Canada. . . . Other courts addressing the same factual scenario have uniformly reached a different conclusion: A joint client suing only the joint attorney may compel disclosure of privileged documents from the joint representation."; "In a lawsuit between a joint client and the joint attorney, all of the courts found to have addressed the issue relied on the adverse-litigation exception to compel disclosure of the privileged communications from the joint representation."; ". . . a joint attorney may not withhold from one joint client privileged communications from the joint representation, even if the other (non-party) joint client refuses to consent to the disclosure."; "Ultimately, the documents Plaintiff seeks would not be disclosed to a third party, but would remain among the joint clients and the joint attorney that participated in the joint representation. Accordingly, it is not enough that Mahalo Canada, a non-party joint client, objects to the disclosure of privileged documents from the joint representation. The court finds that the magistrate judge erred in holding that the adverse-litigation exception was not a proper legal basis for compelling disclosure of privileged documents from the joint representation."; "The adverse-litigation exception does not entitle Plaintiff to unbounded discovery. A joint client is entitled to only those communications relevant to the matter of common interest that was the subject of the joint representation."; "Although the parties do not dispute that there was a joint representation, they have not identified the matter of common interest that was the subject of the joint representation. It is possible that Mahalo Canada has some privileged documents which reference Mahalo USA, but which are not the subject of the joint representation. Because the parties did not identify the matter of common interest, it is difficult to determine where exactly that line would be drawn. Nevertheless, once the parties have agreed on the matter of common interest, Plaintiff is entitled to all communications that fall within the scope of the joint representation, including communications where one joint client is not present.")

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

Comment:

key case

Chapter: 28.702

Case Name: Windsor Securities, LLC v. Arent Fox LLP, 16 Civ. 1533 (GBD) (GWG), 2017 U.S. Dist. LEXIS 127984 (S.D.N.Y. Aug. 11, 2017)

(in an opinion by Judge Gorenstein, holding that a defendant law firm sued for malpractice could not obtain the former client's communications with replacement counsel; "New York courts have defined 'at issue' waiver as occurring 'where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege would deprive the adversary of vital information.'"; "'New York courts have frequently cited to federal case law in applying the 'at issue' waiver doctrine. . . . Consistent with this practice and because we discern no difference in these two courts' applications of the 'at issue' waiver doctrine, we cite to both state and federal law.'"; "Because Windsor does not intend to use any of its communications with replacement counsel as evidence in this case -- and in any event will now be precluded from doing so -- there is no obvious unfairness to defendants in upholding Windsor's claim of privilege. Indeed, case law frequently ends the inquiry into 'at issue' waiver once it is established that the party does not intend to use such materials as proof."; "Federal court decisions from this district have similarly held that defendants in a legal malpractice case were not entitled to invade the attorney-client privilege for successor counsel.")

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

Chapter: 28.702

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2017 U.S. Dist. 7137 (N.D. Ga. Jan. 18, 2017)

(holding that plaintiff's malpractice case against its former lawyer impliedly waived opinion work product protection for documents created by replacement counsel; "Monitronics has alleged that the Veasley verdict was the result of Defendants' malpractice in their representation of Monitronics before they were discharged. In doing so, Monitronics must show, among other things, that the alleged malpractice was the proximate cause of the damage alleged. Monitronics has directly implicated the relevance of the Production Documents because it alleges that Defendants were the sole proximate cause of the Veasley verdict, even though Defendants were replaced by successor counsel months before the verdict was returned."; "Defendants have asserted several affirmative defenses to Monitronics' malpractice claim, including lack of causation and comparative negligence, and they have filed a notice seeking to apportion fault to successor counsel. 'It would undermine the most basic concepts of fairness to allow [Monitronics] to claim [Defendants are] liable for the entirety of their damages, while precluding the discovery of contrary evidence.'. . . This is especially true considering that the Court's review of the Production Documents submitted for in camera review disclosed specific reasons for the fact and magnitude of the Veasley verdict based on reasons other than Defendants' alleged professional conduct."; "The Court has reviewed the opinion work product materials submitted by Monitronics and the Nonparties. The Court finds in the particular circumstances of this legal malpractice case -- where Plaintiff claims the Defendant lawyers are responsible for the entirety of an adverse jury verdict issued months after Defendants were replaced by successor counsel, where Defendants did not participate in the trial or the unsuccessful appeal, and where a number of the submitted opinion work product materials are central to the causation issue in this case -- that portions of the Productions Documents submitted for review are required to be produced.")

Case Date	Jurisdiction	State	Cite Checked
2017-01-18	Federal	GA

Chapter: 28.702

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2016 U.S. Dist. LEXIS 166402 (N.D. Ga. Dec. 2, 2016)

(ordering malpractice plaintiff suing its former lawyer to turn over privileged communications with successor counsel; "In most malpractice cases involving implied waiver of the attorney-client privilege, the issue is whether the privilege between the plaintiff-client and the defendant-attorney has been waived. This case presents a different question. Monitronics has not asserted the attorney-client privilege over its communications with Defendants. Instead, Monitronics asserts the privilege with respect to its communications with other lawyers who worked on the Veasley case after Defendants were terminated. The question is whether Monitronics, by suing Defendants for malpractice, has waived its privilege with respect to these documents."; "Monitronics has implicated the relevance of the Requested Documents because it alleges that Defendants were the sole proximate cause of the Veasley verdict, even though Defendants were replaced by successor counsel months before the verdict was returned."; "The Court also finds that, subject to certain exceptions noted below, the Requested Documents are vital to Defendants' defense. The court in Lyon reasoned that, absent production of communications between the plaintiff-client and subsequent counsel, defendant-attorneys 'would be effectively precluded from challenging the causation and actual damages prongs for legal malpractice,' because they would not be allowed to advocate fully their defense that other persons were responsible, in whole or in part, for plaintiff's damages."; "For example, if Monitronics' successor counsel chose not to engage in all or part of the discovery it claims Defendants should have conducted regarding Okrah, Veasley's son, Warren's husband, and Veasley's neighbors, the reason for not engaging in this discovery may discredit Monitronics' allegation that it was malpractice for Defendants not to do so. If successor counsel was able to, but did not, procure ATM or McDonald's security video footage for March 29, 2006, that failure may have proximately caused some of Monitronics' damages. If successor counsel made pretrial and trial decisions independent of the conduct Monitronics alleges constitutes malpractice, those decisions may undercut Monitronics' malpractice claim against Defendants. It would be odd -- if not unfair -- to preclude Defendants from discovering documents showing whether successor counsel or insurers had views of the evidence and trial presentation that aligned with Defendants'. These kinds of strategy evaluation and litigation decision materials are largely, if not exclusively, the kind of documents maintained in the file of Monitronics and its lawyers and not available to Defendants unless produced.")

Case Date	Jurisdiction	State	Cite Checked
2016-12-02	Federal	GA

Chapter: 28.702

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)

(analyzing effective joint representation; "Section 958 provides that '[t]here is no privilege under this article [(i.e., no attorney-client privilege)] as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.' The rationale for the exception is that '[i]t would be unjust to permit a client . . . To accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge . . .'")

Case Date	Jurisdiction	State	Cite Checked
2015-01-30	State	CA

Chapter: 28.702

**Case Name: FDIC v. Lowis & Gellen LLP, No. 11 CV 5902, 2014 U.S. Dist. LEXIS 21022, at *22 (N.D. Ill. Feb. 20, 2014)**

(in a malpractice case, finding that plaintiff had not triggered an at issue waiver; holding that if the plaintiff sought fees as damages, redaction may result in the inability to recover those fees; "[S]eeking attorneys' fees in a malpractice action is, in itself, insufficient to put damages at issue for waiver purposes.")

Case Date	Jurisdiction	State	Cite Checked
2014-02-20	Federal	IL	B 7/14

Chapter: 28.702

**Case Name: Radware, Ltd. v. A10 Networks, Inc., Case No. C-13-02021-RMW, 2014 U.S. Dist. LEXIS 2769, at 2-3, 5-6, 8, 12 (N.D. Cal. Jan. 8, 2014)**

(holding that a former client had triggered an at issue waiver by seeking to disqualify the law firm of Irell & Manella; allowed Irell to seek access to the documents on which the former client relied; "A10 Networks, Inc. ('A10') is represented by both Irell and Latham & Watkins LLP ('Latham') in this suit. Radware has moved to disqualify Irell from representing A10 because of Irell's alleged previous representation of Radware. . . . Radware's motion relies in part on attorney-client privileged communications between Irell and Radware in support of its motion to disqualify."; "The Ninth Circuit provides a three factor test for determining when attorney-client privilege has been waived under the 'fairness principle:' (1) 'the party is asserting the privilege as the result of some affirmative act, such as filing suit,' (2) 'through this affirmative act, the asserting party puts the privileged information at issue,' and (3) 'allowing the privilege would deny the opposing party access to information vital to its defense.' . . . The court is hesitant to imply any waiver of attorney-client privilege given the privilege's importance and the ethical concerns involved. However, with the currently-involved Irell attorneys unable to view Radware's motion, allowing the privilege exactly as asserted by Radware would deny the opposing party access to information vital to its defense. The court will therefore impose some limited form of implied waiver of attorney-client privilege in the submitted documents." (footnote omitted); "[I]f the court allows the Irell attorneys involved in the representation of A10 or Radware access to the privileged documents, the erosion of the attorney-client privilege would be nominal at most."; "This court thus presents Radware with the choice: Radware may either (1) withdraw the privileged documents, or it may (2) submit the documents for in camera review with access by the court, Radware, and Irell & Manella LLP's attorneys involved in the firm's previous representation of Radware and those involved in the firm's current litigation with Radware. A10 and Latham are not entitled to view the privileged documents. Should it choose option (2), Radware must also publicly file redacted versions of its disqualification motion and the accompanying Sawyer Declaration. Radware may redact only Exhibit A to the Sawyer Declaration and the related ¶ 3. Radware's Administrative Motion for In Camera Review of Motion for Disqualification of Counsel and Supporting Documents is therefore GRANTED, subject to the above choice.")

Case Date	Jurisdiction	State	Cite Checked
2014-01-08	Federal	CA	B 7/14

Chapter: 28.702

Case Name: IP Telesis Inc. v. Velocity Networks Inc., No. CV 11 09950 RGK (AJWx), slip op. at 2 (C.D. Cal. Nov. 5, 2012)

(dismissing a derivative case against a corporation's lawyer, because the lawyer would be unable to defend itself because the company had not waived its privilege; "Defendant BB&L seeks dismissal from this case, arguing that attorney client privilege protects it from derivative suits brought on behalf of its client, Velocity. This Court agrees."; "Under California law, a derivative suit against a corporation's attorney may be dismissed where, in the absence of waiver by the corporate client, the attorney is effectively foreclosed from mounting any meaningful defense because attorney-client privilege bars disclosure of communications that would form the defense." (footnote omitted))

Case Date	Jurisdiction	State	Cite Checked
2012-11-05	Federal	CA	B 5/13

Chapter: 28.702

Case Name: Tomblyn v. Compton, 26 Va. Cir. 131, 132 (Va. Cir. Ct. 1991)

(plaintiff's malpractice action against a lawyer "put the privileged information held by [plaintiffs' replacement counsel] directly in issue [because] any such information is part of one continuous course of legal representation that the Plaintiffs pursued, first with the Defendant and then with [replacement counsel]")

Case Date	Jurisdiction	State	Cite Checked
1991-01-01	State	VA

Chapter: 28.703

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)

(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The court begins by noting, again, that the Petitioner has intentionally waived the attorney-client privilege with respect to his former counsel's conduct and their communications put into issue and disclosed by his § 2255 Motion and supporting documentation, and he does not dispute this waiver or the government's need for discovery into these privileged communications. . . . Accordingly, under VRPC 1.6(b)(2), the Petitioner's former counsel may reveal information reasonably necessary to respond to allegations concerning their representation of the Petitioner, in connection with this habeas proceeding, without violating the VRPC.")

Case Date	Jurisdiction	State	Cite Checked
2017-03-20	Federal	VA

Chapter: 28.703

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)

(finding that an ineffective assistance of counsel claim resulted in a narrow waiver; "The attorney-client privilege, which attaches to the communications between the Petitioner and his former counsel, shall not be deemed automatically waived in any other federal or state proceeding.")

Case Date	Jurisdiction	State	Cite Checked
2017-03-20	Federal	VA

Chapter: 28.703

Case Name: Schrader v. United States, 5:16-CV-5110-KES, 2016 U.S. Dist. LEXIS 176551 (D.S.D. Dec. 21, 2016)

("The American Bar Association, however, has issued an opinion advising that former counsel confronted with a client making ineffective assistance of counsel claims, consistent with their ethical obligations (1) may not disclose information imparted to him or her in confidence without first obtaining the informed consent of the former client; and (2) may only disclose such information in 'court-supervised testimony.' ABA Comm. on Eth. and Prof'l Responsibility, Formal Op. 10-456 (July 14, 2010).")

Case Date	Jurisdiction	State	Cite Checked
2016-12-21	Federal	SD

Chapter: 28.703

Case Name: Cross v. United States, Case No. 5:16-cv-06097, Case No. 5:15-cr-00079, 2016 U.S. Dist. LEXIS 122868 (S.D.W. Va. Sept. 12, 2016)

(holding that a criminal defendant's ineffective assistance of counsel claim allows his former lawyer to disclose confidences, but requiring the lawyer to file an affidavit before disclosing the confidences; "Thus, the court ORDERS Movant's counsel, Mr. E. Ward Morgan, to file within thirty (30) days from the date of this Order an affidavit responding to Movant's specific claims of ineffective assistance of counsel, including his claim that counsel was not properly trained or experienced at criminal law. The affidavit shall incorporate all of the information Mr. Ward believes is necessary to fully respond to the claims and shall include as attachments copies of any documents from his file specifically addressing the matters raised by Movant in his motion. To the extent that these documents address other aspects of Mr. Ward's representation of Movant, which are not pertinent to a resolution of the § 2255, they may redacted. In preparing the affidavit and attachments, counsel should disclose only that information reasonably necessary to ensure the fairness of these proceedings. The court advises Movant, however, that notwithstanding the limitations set forth herein, Mr. Morgan will be given considerable leeway in determining what information is necessary to a fair resolution of the ineffective assistance of counsel claim.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-12	Federal	VA

Chapter: 28.703

**Case Name: Mitchell v. United States, Case Nos. 2:15-cv-05501 & 2:13-cr-00201, 2016 U.S. Dist. LEXIS 5758, at *4-5 (S.D. W. Va. Jan. 19, 2016)**

("[T]he ABA acknowledges in the opinion [LEO 456] that 'an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information,' but cautions that this waiver does not operate to fully release an attorney from his or her obligation to keep client information confidential unless the client gives informed consent for disclosure or disclosure is sanctioned by an exception contained in Model Rule 1.6. After examining the various exceptions contained in Model Rule 1.6, the ABA concludes that disclosure may be justified in certain circumstances; however, any such disclosure should be limited to that which the attorney believes is reasonably necessary and should be confined to 'court-supervised' proceedings, rather than ex parte meetings with the non-client party.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-19	Federal	WV	B 7/16

Chapter: 28.703

Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 145811 (N.D. Ill. Oct. 28, 2015)

(holding that ineffective assistance of counsel claim resulted in a broad waiver of privilege and work product, but did not waive opinion work product;"Bittaker [Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003)] recognized that law, like life, often requires that a choice between competing alternatives be made. And so, the court held, a defendant in a criminal who had filed a postconviction claim for ineffective assistance of counsel case had to choose between protecting the confidentiality of communications with his criminal defense lawyer or pursuing his claim. If he chose to abandon his claim, the confidentiality of his communications would be preserved. If he chose to pursue his claim, the confidentiality of those communications would vanish. But choose he must. . . . The same is true for Mr. Patrick [Plaintiff]. And like the plaintiff in Bittaker, he cannot have both objects of his desire. That the choice between pursuing a claim or preserving the confidentiality of communications with one's lawyer presents difficult and incompatible alternatives does not, as Bittaker recognized, make it impermissible to require that the choice be made. The legal system 'is replete with situations requiring the making of difficult judgments as to which course to follow.'. . . The fact that Mr. Patrick had to make such an election does not entitle him to judicial shelter from the consequences of his choice.")

Case Date	Jurisdiction	State	Cite Checked
2015-10-28	Federal	IL

Chapter: 28.703

Case Name: Fife v. United States, Case No. 13-C-0579, 2015 U.S. Dist. LEXIS 61309 (E.D. Wis. May 11, 2015)

(finding that an ineffective assistance of counsel claim resulted in a subject matter waiver, but with a narrow scope; "When a petitioner expressly denies waiver of the privilege after asserting an ineffective assistance of counsel claim, the claim cannot stand unless the petitioner permits disclosure of communications necessary for the respondent to adequately defend against the ineffective assistance of counsel claim. 'The court thus gives the holder of the privilege a choice: If you want to litigate this claim, then you must waive your privilege to the extent necessary to give your opponent a fair opportunity to defend against it.'")

Case Date	Jurisdiction	State	Cite Checked
2015-05-11	Federal	WI

Chapter: 28.703

Case Name: Fife v. United States, Case No. 13-C-0579, 2015 U.S. Dist. LEXIS 61309 (E.D. Wis. May 11, 2015)

(finding that an ineffective assistance of counsel claim resulted in a subject matter waiver, but with a narrow scope; "Implied waiver can be found when a petitioner asserts ineffective assistance of counsel in a habeas case.")

Case Date	Jurisdiction	State	Cite Checked
2015-05-11	Federal	WI

Chapter: 28.703

Case Name: Johnson v. United States, Case No. 3:14-cv-25737, Case No. 3:13-cr-00028-01, 2014 U.S. Dist. LEXIS 140255 (S.D.W Va. Oct. 2, 2014)

(explaining the ethics and privilege waiver implications of a criminal defendant's ineffective assistance of counsel claim; "[I]t is hereby ORDERED that the attorney-client privilege, which attaches to the communications between Movant and his former counsel, shall not be deemed automatically waived in any other Federal or State proceeding by virtue of the above-ordered disclosure in this section 2255 proceeding. The affidavit and documents supplied by Movant's former counsel, if one is filed, shall be limited to use in this proceeding, and the United States is prohibited from otherwise using the privileged information disclosed by Movant's former counsel without further order of a court of competent jurisdiction or a written waiver by Movant.")

Case Date	Jurisdiction	State	Cite Checked
2014-10-02	Federal	WV

Chapter: 28.703

Case Name: Johnson v. United States, Case No. 3:14-cv-25737, Case No. 3:13-cr-00028-01, 2014 U.S. Dist. LEXIS 140255 (S.D.W Va. Oct. 2, 2014)

(explaining the ethics and privilege waiver implications of a criminal defendant's ineffective assistance of counsel claim; "[T]he Court finds that Movant's former counsel may, without violating the applicable Rules of Professional Conduct, disclose information in this proceeding regarding his communications with Movant to the extent reasonably necessary to comply with an order of this Court or to respond to the allegations of ineffective representation.")

Case Date	Jurisdiction	State	Cite Checked
2014-10-02	Federal	WV

Chapter: 28.703

**Case Name: Washington v. United States of America, Case No.: 2:14-cv-13603, Criminal Case No.: 2:12-cr-00187-1, 2014 U.S. Dist. LEXIS 78576, *6 (S.D. W.Va. June 10, 2014)**

(analyzing the subject matter waiver effect of a criminal defendant's ineffective assistance of counsel claim; "[T]he Court finds that Coleman may, without violating the applicable Rules of Professional Conduct, disclose information in this proceeding regarding his communications with Movant to the extent reasonably necessary to comply with an order of this Court or to respond to the allegations of ineffective representation.")

Case Date	Jurisdiction	State	Cite Checked
2014-06-10	Federal	WV

Chapter: 28.703

**Case Name: Porter v. Warden of the Sussex I State Prison, Supreme Court Record No. 091615, (Circuit Court Civil No. CL 10-8257), 2010 Va. Cir. LEXIS 204, at *8 (Dec. 20, 2010)**

Porter v. Warden of the Sussex I State Prison, Supreme Court Record No. 091615, (Circuit Court Civil No. CL 10-8257), 2010 Va. Cir. LEXIS 204, at *8 (Dec. 20, 2010) ("'If petitioner alleges as a ground for illegality of his detention the inadequacy of counsel, he shall be deemed to waive his privilege with respect to communications between such counsel and himself to the extent necessary to permit a full and fair hearing for the alleged ground.'")

Case Date	Jurisdiction	State	Cite Checked
2010-12-20	State	VA

Chapter: 28.703

Case Name: Turner v. Williams, 812 F. Supp. 1400, 1433 (E.D. Va. 1993)

(finding that a former client waived the privilege by contending ineffective assistance of counsel), aff'd, 35 F.3d 872 (4th Cir. 1994), cert. denied, 514 U.S. 1017 (1995)

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

Chapter: 28.704

**Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)**

October 10, 2018 (PRIVILEGE POINT)

Waiver Implications of Lawyers' Self-Defense Privilege Disclosures

The ethics rules and attorney-client privilege principles both allow lawyers to disclose privileged communications when defending themselves from clients' and even third parties' attacks. But do such disclosures waive the clients' privilege, thus allowing the whole world to see the communications?

In United States v. Lander, the court understandably held that a criminal defendant's allegation that his former lawyer "coerced" him into pleading guilty waived the client's privilege protection for "all communications" that the former lawyer "reasonably believes necessary to disapprove the allegations." No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018). The court did not explain whether it would review the privileged communications in camera rather than in open court. About a week later, the court in Siser North America, Inc. v. World Paper Inc., Case No. 16-cv-14369, 2018 U.S. Dist. LEXIS 133379 (E.D. Mich. Aug. 8, 2018), took a more subtle approach in a civil context. Defendants' lawyer withdrew after the magistrate judge sanctioned him. In defending himself, the lawyer disclosed privileged communications: (1) to his own personal lawyer; and (2) in attachments to a defensive pleading filed with the court (under seal) and served on plaintiffs. Now represented by a new lawyer, defendants sought an order requiring plaintiffs to return those privileged attachments. The plaintiffs argued that the withdrawn lawyer's disclosures to his personal lawyer and to them waived defendants' privilege, thus freeing them to use those communications. The court rejected plaintiff's argument and ordered it to return (and not use) the privileged documents -- concluding: (1) that the accused lawyer "was permitted to disclose privileged information to his attorney . . . in defending against such allegations" ( id. at *11); (2) that the accused lawyer's "disclosure [in the defensive pleading attachments] did not constitute a waiver of privilege since it was done pursuant to [the ethics rules] for the limited scope of defending himself." Id. at *8.

Lawyers' ability to defend themselves from clients' or third parties' accusations can trigger waiver issues. In either situation, clients should be on guard to protect against a wider waiver.

Case Date	Jurisdiction	State	Cite Checked
2018-08-01	Federal

Chapter: 28.704

Case Name: Newsome v. Lawson, Civ. No. 14-842-RGA-MPT, 2017 U.S. Dist. LEXIS 203691 (D. Del. Dec. 12, 2017)

(applying the Teleglobe standard, and finding that a liquidating trustee could obtain privileged documents from a lawyer that jointly represented the bankrupt company and its parent; also finding that the Eureka case did not change that result; also finding that the "breach of duty exception" allowed the lawyer for a joint client to obtain privileged communications between either of the joint client and their lawyer; "Several courts have relied on the breach of duty exception to compel disclosure of privileged communications in a lawsuit between a joint client and the joint attorney. . . . The breach of duty exception provides that, '[i]n a lawsuit between an attorney and a client based on an alleged breach of a duty arising from the attorney-client relationship, attorney-client communications relevant to the breach are not protected by the attorney-client privilege.'. . . Delaware has adopted a breach of duty exception in substantially the same form. See Del. R. Evid. 502(d)(3) (stating that there is no privilege '[a]s to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer.'"; ". . . the court finds that the magistrate judge erred in concluding that the breach of duty exception does not apply to cases involving a joint representation.")

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

Comment:

key case

Chapter: 28.704

Case Name: Hunt v. Schauerhamer, Case No. 2:15-CV-1-TC-PMW, 2016 U.S. Dist. LEXIS 1744 (D. Utah Jan. 6, 2016)

(finding that a plaintiff impliedly waived privilege protection by denying her lawyer's authority to settle a case; "The content of the communications between Ms. Hunt and Mr. Sykes (that is, the sealed information) is relevant to all of the parties' arguments. The information may be used by Ms. Hunt to defend against the motion to enforce and to challenge the validity of the Attorney's Lien. Defendants need to use the content of the communications in their effort to enforce the settlement agreement. And Mr. Sykes will need it to enforce his Attorney's Lien. Ms. Hunt's case 'presents precisely the type of situation where the attorney-client privilege must be deemed waived to ensure fairness to both parties.'")

Case Date	Jurisdiction	State	Cite Checked
2016-01-06	Federal	UT

Chapter: 28.704

Case Name: Lender Processing Services, Inc., v. Arch Insurance Company, Case No. 1D14,4161, 2015 Fla. App. LEXIS 5873, 40 Fla. L. Weekly D. 953, (Ct. of App. Fla., Apr. 22, 2015)

("If an insurer who wants to defend against a claim of bad faith may waive privileges by attempting to show good faith on its part, . . . We see no reason why a corporation that wishes to defend against allegations of a settlement agreement by claiming lack of authority to bind its officers and directors and by relying on its in-house counsel's representations does not waive its attorney-client privilege as to the issue of authority to settle.").

Case Date	Jurisdiction	State	Cite Checked
2015-04-22	Federal	FL

Chapter: 28.704

Case Name: Imperial Fire & Casualty Ins. Co. v. Warman, Case No. 13-CV-813-CVE-FHM, 2014 U.S. Dist. LEXIS 99309 (N.D. Okla. July 22, 2014)

(following the Hearn case in a situation in which an insurance company hired a lawyer who arguably did not act competently, after which the insured sued the insurance company and the insurance company, settled with insured and then filed a lawsuit against the lawyer; "[T]he court finds that Imperial has broadly waived the attorney client privilege for communications with counsel about the bad faith case. The discoverable attorney client communications include all communications, correspondence, and documents exchanged between Imperial and its attorneys concerning the bad faith case from the date the bad faith suit was initiated through the date of the settlement.")

Case Date	Jurisdiction	State	Cite Checked
2014-07-22	Federal	OK

Chapter: 28.704

**Case Name: Radware, Ltd. v. A10 Networks, Inc., Case No. C-13-02021-RMW, 2014 U.S. Dist. LEXIS 2769, at 2-3, 5-6, 8, 12 (N.D. Cal. Jan. 8, 2014)**

(holding that a former client had triggered an at issue waiver by seeking to disqualify the law firm of Irell & Manella; allowed Irell to seek access to the documents on which the former client relied; "A10 Networks, Inc. ('A10') is represented by both Irell and Latham & Watkins LLP ('Latham') in this suit. Radware has moved to disqualify Irell from representing A10 because of Irell's alleged previous representation of Radware. . . . Radware's motion relies in part on attorney-client privileged communications between Irell and Radware in support of its motion to disqualify."; "The Ninth Circuit provides a three factor test for determining when attorney-client privilege has been waived under the 'fairness principle:' (1) 'the party is asserting the privilege as the result of some affirmative act, such as filing suit,' (2) 'through this affirmative act, the asserting party puts the privileged information at issue,' and (3) 'allowing the privilege would deny the opposing party access to information vital to its defense.' . . . The court is hesitant to imply any waiver of attorney-client privilege given the privilege's importance and the ethical concerns involved. However, with the currently-involved Irell attorneys unable to view Radware's motion, allowing the privilege exactly as asserted by Radware would deny the opposing party access to information vital to its defense. The court will therefore impose some limited form of implied waiver of attorney-client privilege in the submitted documents." (footnote omitted); "[I]f the court allows the Irell attorneys involved in the representation of A10 or Radware access to the privileged documents, the erosion of the attorney-client privilege would be nominal at most."; "This court thus presents Radware with the choice: Radware may either (1) withdraw the privileged documents, or it may (2) submit the documents for in camera review with access by the court, Radware, and Irell & Manella LLP's attorneys involved in the firm's previous representation of Radware and those involved in the firm's current litigation with Radware. A10 and Latham are not entitled to view the privileged documents. Should it choose option (2), Radware must also publicly file redacted versions of its disqualification motion and the accompanying Sawyer Declaration. Radware may redact only Exhibit A to the Sawyer Declaration and the related ¶ 3. Radware's Administrative Motion for In Camera Review of Motion for Disqualification of Counsel and Supporting Documents is therefore GRANTED, subject to the above choice.")

Case Date	Jurisdiction	State	Cite Checked
2014-01-08	Federal	CA	B 7/14

Chapter: 28.704

**Case Name: United States v. White, Crim. No. 3:11-2303-CMC, 2013 U.S. Dist. LEXIS 68159, at *12 (D.S.C. Apr. 12, 2013)**

(holding that the privilege did not protect information a bankrupt debtor provided his lawyer for inclusion in bankruptcy schedules; also holding that the debtor's finger-pointing at his lawyer triggered a waiver; citing Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975); "Moreover, the court concludes that Pearson has waived the privilege by casting blame on his attorney. Pearson alleges that the failure to acknowledge his ownership interest in the Subject Property in the bankruptcy proceeding -- an omission which could be material to Pearson's standing or other issues relevant to his ancillary claim -- was the fault of his attorney in such proceeding.")

Case Date	Jurisdiction	State	Cite Checked
2013-04-12	Federal	SC	B 7/13

Chapter: 28.704

Case Name: JMB/Urban 900 Dev. Partners, Ltd. v. Hazan, 2013 IL App. (1st) 113714-U, ¶25

("Applying the implied waiver test, we find that Hazan's affidavit waived the attorney- client privilege. In the affidavit, Hazan claimed that Rappaport [defendants' former lawyer] had pressured her to sign the settlement agreement and that he did not explain to her of the terms of the settlement. These claims clearly put defendants' communications with Rappaport during settlement negotiations at issue and thereby waived the privilege.")

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

Chapter: 28.704

**Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *28-29 (E.D. Va. Dec. 3, 2012)**

(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "By placing his attorneys' representation at the center of his defense, Moazzeni has waived any privilege to communications within the scope of that issue. . . . There can be no serious dispute that Moazzeni has waived the privilege with respect to Mahmoud and Jernigan by calling Mahmoud as a witness and eliciting testimony about her representation of him. And while there are limits to the scope of such waiver, see Fed. R. Evid. 502(a)(2), (3), Moazzeni's waiver here is sufficiently broad to encompass the documents at issue. Moazzeni placed his lawyers' competence, responsiveness, and ethics into issue. He cannot now 'selective[ly]' decide what aspects of that representation may be disclosed. Thus, as an alternative to the crime-fraud exception explained above, Moazzeni has waived any privilege that otherwise protected the subject communications with Mahmoud and Jernigan.")

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

Chapter: 28.704

**Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *28-29 (E.D. Va. Dec. 3, 2012)**

(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "By placing his attorneys' representation at the center of his defense, Moazzeni has waived any privilege to communications within the scope of that issue. Rhone-Poulenc Rorer, 32 F.3d at 863. . . . There can be no serious dispute that Moazzeni has waived the privilege with respect to Mahmoud and Jernigan by calling Mahmoud as a witness and eliciting testimony about her representation of him. And while there are limits to the scope of such waiver, see Fed. R. Evid. 502(a)(2), (3), Moazzeni's waiver here is sufficiently broad to encompass the documents at issue. Moazzeni placed his lawyers' competence, responsiveness, and ethics into issue. He cannot now 'selective[ly]' decide what aspects of that representation may be disclosed. Thus, as an alternative to the crime-fraud exception explained above, Moazzeni has waived any privilege that otherwise protected the subject communications with Mahmoud and Jernigan.")

Case Date	Jurisdiction	State	Cite Checked
2012-12-03	Federal	VA

Chapter: 28.704

**Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *4-5 (E.D. Va. Dec. 3, 2012)**

(holding that a defendant waived the privilege by blaming his lawyer for alleged bankruptcy fraud; "During both the bankruptcy proceedings and the grand jury proceedings, Moazzeni denied culpability and blamed all misconduct on his bankruptcy lawyers' mistakes. . . . Also, in a letter to Judge Tice, Moazzeni placed the blame squarely on Krumbein's alleged incompetence, calling him 'a has-been who never acted as an attorney with our interests in heart and who failed to protect our rights.'")

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

Chapter: 28.704

Case Name: Grasso v. O'Connor, 41 Va. Cir. 193 (Va. Cir. Ct. 1996)

(finding that the client had impliedly waived the privilege by placing at issue her divorce lawyer's alleged "abandonment" of her and the role of replacement counsel)

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

Chapter: 28.704

Case Name: Grant v. Harris, 116 Va. 642, 650, 82 S.E. 718, 720 (Va. 1914)

("[I]t would seem clear that the client should be held to have waived her privilege and that the attorneys who acted for her in the transaction sought to be set aside should be permitted to give their version of the transaction, not only in the interest of justice to the parties to the litigation, but also for the protection of the attorneys themselves. To hold otherwise would subject the attorney to scurrilous and unjust attacks, and convert the rule which was intended only as a shield for the client's protection into a weapon of offense against others. The authorities generally hold that a client who goes upon the stand in an attempt to secure some advantage by reason of transactions between himself and his counsel, waives his right to object to the attorney's being called by the other side to give his account of the matter. Such waiver, it is held, is in no sense contrary to public policy, but is in the interest of truth and justice.")

Case Date	Jurisdiction	State	Cite Checked
1914-01-01	State	VA

Chapter: 28.802

Case Name: Kehle v. USAA Casualty Ins. Co., Case No. 17-80447-CV-MARRA/MATTHEWMAN, 2018 U.S. Dist. LEXIS 89846 (S.D. Fla. May 30, 2018)

(adopting the Hearn standard, and applying the at issue doctrine because the plaintiff had relied on the reasonableness of an earlier settlement in a bad faith case against an insurance company; "The subject-matter waiver doctrine provides that a party who injects into the case an issue that in fairness requires an examination of communications otherwise protected by the attorney-client privilege loses that privilege. . . . '[T]he plain language of Fed.R.Civ.P. 26(b)(3) suggests that opinion work product should not be subject to such an implied waiver, and that the rationale behind the doctrine (the fear that a party might 'make affirmative testimonial use' of a communication and then seek to shield it from disclosure) does not apply to mental impressions and legal theories.'"; "In Cox [Cox v. Administrator US. Steel & Carnegie, 17 F.3d 1386, 1421 (11th Cir.1994)], the Eleventh Circuit stated that the 'subject matter waiver doctrine does not extend to materials protected by the opinion work product privilege.'. . . Cox considered the 'very rare and extraordinary circumstances' under which opinion work product can be discovered. The Eleventh Circuit found that the crime-fraud exception presented one of the very rare and exceptional circumstances in which opinion work product is discoverable, but declined to declare the subject matter waiver doctrine as a rare and exceptional circumstance. Id. However, several courts have held, subsequent to Cox, that a party can waive its opinion work-product privilege pursuant to the doctrine of at-issue waiver if it concerns the mental impressions and opinions of counsel in the context of bad faith litigation."; "Both Tolz [Tolz v. Geico Gen. Ins. Co., No. 08-80663-CIV, 2010 U.S. Dist. LEXIS 6709, 2010 WL 384745 (S.D. Fla. Jan. 27, 2010)] and Maplewood Partners [Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 624 (S.D.Fla. 2013)] demonstrate that there are certain situations, often involving cases against an insurer for alleged violations of the duty of good faith, or, as in the instant case, alleged violations of the duty of good faith and reasonableness on the part of the plaintiff, or collusion, where the doctrine of at-issue waiver could constitute one of the 'very rare and extraordinary circumstances' in which opinion work product may be discoverable."; "The instant case involves alleged violations of the duty of good faith and reasonableness on the part of Plaintiff. It would be unfair to prevent Defendant from discovery into information which could potentially shed light on the alleged bad faith conduct of the parties, or lack of good faith and unreasonableness, when it is Plaintiff who is inserting the issues of reasonableness and good faith of the agreement into this case.")

Case Date	Jurisdiction	State	Cite Checked
2018-05-30	Federal	FL

Chapter: 28.803

**Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)**

October 10, 2018 (PRIVILEGE POINT)

Waiver Implications of Lawyers' Self-Defense Privilege Disclosures

The ethics rules and attorney-client privilege principles both allow lawyers to disclose privileged communications when defending themselves from clients' and even third parties' attacks. But do such disclosures waive the clients' privilege, thus allowing the whole world to see the communications?

In United States v. Lander, the court understandably held that a criminal defendant's allegation that his former lawyer "coerced" him into pleading guilty waived the client's privilege protection for "all communications" that the former lawyer "reasonably believes necessary to disapprove the allegations." No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018). The court did not explain whether it would review the privileged communications in camera rather than in open court. About a week later, the court in Siser North America, Inc. v. World Paper Inc., Case No. 16-cv-14369, 2018 U.S. Dist. LEXIS 133379 (E.D. Mich. Aug. 8, 2018), took a more subtle approach in a civil context. Defendants' lawyer withdrew after the magistrate judge sanctioned him. In defending himself, the lawyer disclosed privileged communications: (1) to his own personal lawyer; and (2) in attachments to a defensive pleading filed with the court (under seal) and served on plaintiffs. Now represented by a new lawyer, defendants sought an order requiring plaintiffs to return those privileged attachments. The plaintiffs argued that the withdrawn lawyer's disclosures to his personal lawyer and to them waived defendants' privilege, thus freeing them to use those communications. The court rejected plaintiff's argument and ordered it to return (and not use) the privileged documents -- concluding: (1) that the accused lawyer "was permitted to disclose privileged information to his attorney . . . in defending against such allegations" ( id. at *11); (2) that the accused lawyer's "disclosure [in the defensive pleading attachments] did not constitute a waiver of privilege since it was done pursuant to [the ethics rules] for the limited scope of defending himself." Id. at *8.

Lawyers' ability to defend themselves from clients' or third parties' accusations can trigger waiver issues. In either situation, clients should be on guard to protect against a wider waiver.

Case Date	Jurisdiction	State	Cite Checked
2018-08-01	Federal

Chapter: 28.803

**Case Name: DeWitt v. Southwestern Bell Telephone Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014)**

May 7, 2014 (PRIVILEGE POINT)

"Is it Possible to Gain the Advantage of an "Advice of Counsel" Defense Without Suffering the Waiver Consequences?"

The logistics of privileged communications generally do not deserve protection – so a company executive can testify that she obtained a lawyer's advice without risking a waiver. See, e.g., Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014) (finding that a plaintiff had not waived privilege protection by testifying at a deposition that "she had conversations with" her lawyer). However, a company would clearly waive privilege protection by affirmatively asserting an "advice of counsel" defense. Can a company "thread the needle" by presenting the logistical facts to the jury with the hope that it will essentially give the company the advantage of the defense – without its cost?

In DeWitt v. Southwestern Bell Telephone Co., plaintiff argued that Southwestern waived its privilege when employees testified that "they took certain actions after they 'cleared it with legal' or 'got approval from legal.'" Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014) (internal citation omitted). The court rejected plaintiff's argument, concluding that "a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department." Id. The court also rejected plaintiff's argument that Southwestern Bell waived its privilege by filing defenses pointing to the company's "good faith" handling of plaintiff's disability. The court noted that Southwestern pledged "that at trial it 'does not intend to offer or rely on evidence of the substance of any legal advice it received concerning the disciplinary actions taken against Plaintiff.'" Id. at *19 (internal citation omitted). This promise pointedly dealt only with the "substance of" legal advice, not the logistics of company executives' interactions with the law department.

Some courts would expect companies hoping to avoid a waiver to explicitly disclaim any intent to affirmatively introduce at trial either the "substance" or the fact of such privileged communications.

Case Date	Jurisdiction	State	Cite Checked
2014-02-24	Federal	KS

Comment:

key case

Chapter: 28.803

Case Name: IP Telesis Inc. v. Velocity Networks Inc., No. CV 11 09950 RGK (AJWx), slip op. at 2 (C.D. Cal. Nov. 5, 2012)

(dismissing a derivative case against a corporation's lawyer, because the lawyer would be unable to defend itself because the company had not waived its privilege; "Defendant BB&L seeks dismissal from this case, arguing that attorney client privilege protects it from derivative suits brought on behalf of its client, Velocity. This Court agrees."; "Under California law, a derivative suit against a corporation's attorney may be dismissed where, in the absence of waiver by the corporate client, the attorney is effectively foreclosed from mounting any meaningful defense because attorney-client privilege bars disclosure of communications that would form the defense." (footnote omitted))

Case Date	Jurisdiction	State	Cite Checked
2012-11-05	Federal	CA	B 5/13

Chapter: 28.901

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)

(analyzing effective joint representation; "Section 958 provides that '[t]here is no privilege under this article [(i.e., no attorney-client privilege)] as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.' The rationale for the exception is that '[i]t would be unjust to permit a client . . . To accuse his attorney of a breach of duty and to invoke the privilege to prevent the attorney from bringing forth evidence in defense of the charge . . .'")

Case Date	Jurisdiction	State	Cite Checked
2015-01-30	State	CA

Chapter: 28.902

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)

(analyzing effect of a joint representation; "[C]onsiderations of fundamental fairness that are similar to those underlying section 958 as a whole weigh strongly in favor of applying the statute in this context. For example, if one of two joint clients breached an attorney fee agreement but the other joint client did not, and the attorney sued the breaching client, then it would be unjust to allow the nonbreaching client to thwart the attorney's suit by invoking the privilege to prevent introduction of the fee agreement itself. Moreover, the risk of collusion between the joint clients would be substantial. Similarly, if an attorney breached a duty to one of two joint clients but breached no duties to the other, and the wronged client sued the attorney, then it would be unjust to allow the nonsuing client to thwart the other client's suit by invoking the privilege to prevent introduction of relevant attorney-client communications made in the course of the joint representation. Again, the risk of collusion between the attorney and the nonsuing client would be substantial -- indeed, the risk would be particularly significant if the alleged breach were that the attorney had favored the interests of the nonsuing client over those of the suing client.")

Case Date	Jurisdiction	State	Cite Checked
2015-01-30	State	CA

Chapter: 28.902

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)

(analyzing effective joint representation; "[I]t would be unfair to allow the client to invoke the privilege in order to exclude the contract in an action by the attorney for unpaid fees.")

Case Date	Jurisdiction	State	Cite Checked
2015-01-30	State	CA

Chapter: 28.902

**Case Name: EMC Ins. Co. v. Zicolello, No. 4:13-cv-00825, 2014 U.S. Dist. LEXIS 4785, at 6, 7, *14-15 (M.D. Pa. Jan. 13, 2014)**

(holding that the client's waiver caused by filing a malpractice suit against a former lawyer does not extend to communications with replacement counsel; also finding that the client did not trigger an "at issue" waiver by seeking malpractice damages that included fees paid to replacement counsel; "Because Plaintiffs did not file a lawsuit against Hare [replacement counsel] or attack his competence, there is no basis for the Court to find that Plaintiffs waived the privilege regarding confidential communications between Plaintiffs and Hare as a result of filing the malpractice action."; "[O]nce communications are shown to be privileged, the burden shifts to the opposing party to show waiver of the privilege."; "Consistent with persuasive authority, the Court finds that a claim for attorney's fees in the context of a legal malpractice suit does not place 'in issue' that attorney's advice, and does not serve to destroy the privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-01-13	Federal	PA	B 6/14

Chapter: 28.902

**Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at 32-33, 32 n.7, 33-34, 35-36 (D.D.C. Dec. 23, 2013)**

(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; finding a waiver, and discussing the scope of the waiver; "To clarify: all attorney-client and work-product protection from the underlying litigation has been waived for documents relating either to reasonableness of fees expended or to any potential agreement regarding hourly rates. As an example, the Court expects that many of the documents relating to the so-called 'fee-splitting' issue (that is, the process by which Fulbright [plaintiff's law firm] may or may not have allocated defense costs between Feld and the corporate entity Feld Entertainment, Inc.) will be relevant to the reasonableness of the total amount of fees for which Feld seeks reimbursement. Such documents are no longer privileged, and should be produced if responsive to FFIC's discovery requests. Similarly, Feld cannot withhold documents on the basis of his unilateral assessment that certain categories of documents 'are of limited evidentiary value.'" (internal citation omtted); "It is possible that some of these documents can escape production on other grounds. For example, some of them may be composed solely of work product prepared in anticipation of this litigation, rather than in anticipation of the underlying litigation. Such documents remain privileged, as discussed in further detail below."; "The parties made passing references in their briefing to the distinction between 'fact' work product (typically discoverable after a showing of substantial need') and 'opinion' work product (rarely discoverable under any circumstances). The Court's waiver holding extends both to fact work product and opinion work product. To be sure, it seems much less likely that an attorney's mental impressions or legal conclusions will bear on the critical issues in this case: the reasonableness of fees and the presence of an agreement on hourly rates. But to the extent they do, they are subject to waiver for all the reasons explained above. Courts that have analyzed at-issue waiver of the work-product privilege have generally (though not uniformly) taken this view."; "To be clear: both waiver holdings apply only to documents and communications generated in connection with the underlying personal injury litigation for which Feld seeks reimbursement of attorney's fees. The reason is simple: Feld has not put the work of his attorneys on this litigation at issue in this case, so any privilege claims over those documents and communications remain valid -- even assuming such documents were otherwise within the scope of permissible discovery, and responsive to FFIC's discovery requests. To the extent individual documents (or portions thereof) were generated in anticipation of both cases, producing documents in redacted form may be required.")

Case Date	Jurisdiction	State	Cite Checked
2013-12-23	Federal	DC	B 5/14

Chapter: 28.902

**Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *30-31 (D.D.C. Dec. 23, 2013)**

(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "By filing a lawsuit seeking indemnification for attorney's fees, Feld necessarily placed the work of his attorneys directly at issue. He has done so with respect to two key issues in the case: (1) 'the reasonableness and necessity of the fees and expenses incurred by Feld in the Underlying Action,' and (2) 'the parties' agreement -- or lack thereof -- as to the hourly rates to be paid by FFIC' under the relevant insurance policies. . . . In other words, this case cannot be resolved without determining whether the legal fees generated by Feld were reasonable, or without determining whether the parties came to an agreement regarding hourly rates.")

Case Date	Jurisdiction	State	Cite Checked
2013-12-23	Federal	DC	B 5/14

Chapter: 28.902

**Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at 22-23, 24 (D.D.C. Dec. 23, 2013)**

(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "[T]he Court finds that Feld has waived the work-product privilege with respect to materials in the underlying litigation by placing attorney work-product at issue, by bringing this indemnification lawsuit seeking reimbursement of attorney's fees."; "[T]his is not the first time the doctrine of at-issue waiver of the work-product privilege has been considered in the context of a lawsuit seeking indemnification for attorney's fees. The weight of authority supports finding waiver in this context.")

Case Date	Jurisdiction	State	Cite Checked
2013-12-23	Federal	DC	B 5/14

Chapter: 28.903

Case Name: District of Columbia LEO 363 (10/2012)

("An in-house lawyer may not disclose or use her employer/client's confidences or secrets in support of the lawyer's claim against the employer/client for employment discrimination or retaliatory discharge unless expressly authorized by Rule 1.6. If the employer/client puts the lawyer's conduct in issue, however (e.g., by lodging an affirmative defense or a counterclaim), the lawyer may disclose or use the employer's confidences or secrets insofar as reasonably necessary to respond to the employer/client's contention. An in-house lawyer is not prohibited from bringing such a claim against her employer/client merely because the employer/client may find it necessary or helpful to disclose its confidences or secrets in defending against the lawyer's claim.")

Case Date	Jurisdiction	State	Cite Checked
2012-10-01	Other		B 6/13

Chapter: 28.903

Case Name: Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143 (4th Cir. Feb. 23, 1994)

(upholding an injunction on an in-house lawyer disclosing confidential information in connection with a wrongful termination case against his employer/client)

Case Date	Jurisdiction	State	Cite Checked
1994-02-23	Federal

Chapter: 28.903

Case Name: X Corp. v. Doe, Civ. No. 92-338-A, 1992 Dist. LEXIS 13612 (E.D. Va. Aug. 25, 1992)

(enjoining a former in-house lawyer and his lawyer from disclosing privileged documents in-house lawyer retained when he was terminated for allegedly complaining about corporate misconduct; refusing to order the former in-house lawyer to return the documents to the company; "On April 20, 1992, X Corp. moved this Court for a preliminary injunction (i) to maintain Doe's wrongful termination lawsuit, and all pleadings and papers filed therein, under seal until its conclusion; (ii) to prohibit Doe and his lawyer from making any disclosures of X Corp.'s allegedly privileged and confidential information; and (iii) to compel Doe to return all allegedly misappropriated documents."; affirmed 17 F.3d 1435 (4th Cir. 1994))

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

Chapter: 28.903

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1301 n.5 (E.D. Va. 1992)

(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; holding that the plaintiff in-house lawyer could share confidences with his own lawyer; "Simply put, the inability to disclose relevant facts, including X Corp.'s alleged confidential communications, to his own attorney would cripple Doe's ability to defend against X Corp.'s attack on his professional conduct in the matter at bar. . . . Moreover, precluding Doe from making disclosures to his counsel would prevent him from effectively prosecuting his personal claims against X Corp. both in his state law-based action now on appeal in the Fourth Circuit Court of Appeals and his counterclaim in this case."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date	Jurisdiction	State	Cite Checked
1992-01-01	Federal	VA	N 2/10

Chapter: 28.903

Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1305 n.12 (E.D. Va. 1992)

(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "The privilege belongs to the client, not the attorney."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date	Jurisdiction	State	Cite Checked
1992-01-01	Federal		N 3/10

Chapter: 28.905

**Case Name: Brown v. Tethy's Bioscience, Inc., Civ. A. No. 3:11MC11, 2011 U.S. Dist. LEXIS 117075, at *5-6 (E.D. Va. Oct. 11, 2011)**

(Federal Rule of Evidence 612 sometimes requires disclosure of privileged documents that refreshed a witness's recollection before the witness testified.).

Case Date	Jurisdiction	State	Cite Checked
2011-10-11	Federal	VA

Chapter: 28.1002

Case Name: Jensen v. Charon Solutions, Inc., No. B276050, 2017 Cal. App. Unpub. LEXIS 8683 (Cal. Ct. App. Dec. 20, 2017)

March 7, 2018 (PRIVILEGE POINT)

"State Appellate Courts Assess Implied and 'At Issue' Waivers: Part I'"

Disclosing privileged communications to third parties normally waives that fragile protection. But even without disclosure, clients relying on privileged communications or placing such communications "at issue" can also waive their privilege protection – sometimes in unpredictable situations.

In Jensen v. Charon Solutions, Inc., No. B276050, 2017 Cal. App. Unpub. LEXIS 8683 (Cal. Ct. App. Dec. 20, 2017), a successful malicious prosecution plaintiff recovered $400,000 in attorney's fees. The defendant appealed, claiming that the trial court erroneously allowed the plaintiff's lawyer to testify about the fees without producing his bills (except for the dates and amounts). Acknowledging that "descriptions of work redacted from the bills may well have been covered by the attorney-client privilege," the appellate court nevertheless reversed the fee award – holding that plaintiff had impliedly waived any privilege protection by seeking a fee award as damages. Id. at *28. As the court put it, "[t]he near-complete redaction was also fundamentally unfair because it precluded [defendants] from conducting any meaningful cross-examination of [plaintiff's] attorney." Id. at *29. The court remanded for a new hearing, "at which the privilege attaching to the attorney's bills has been waived." Id. at *32.

Courts take varying approaches to this issue. Among other things, some courts (1) allow lay or expert testimony alone to support litigants' fee claims; (2) allow limited redaction of specific privileged billing entries; (3) allow litigants to redact portions of bills, but then forego any fees for that work. In the most frighteningly extreme approach, one court held that a litigant seeking to make the adversary pay for the litigant's legal work must not only disclose the bills – but must also disclose the work itself. Next week's Privilege Point will address another type of even more worrisome implied waiver.

Case Date	Jurisdiction	State	Cite Checked
2017-12-20	Federal	CA

Comment:

key case

Chapter: 28.1002

Case Name: Jensen v. Charon Solutions, B276050, 2017 Cal. App. Unpub. LEXIS 8683 (Cal. 2nd App. Dist. Dec. 20, 2017)

(holding that plaintiff impliedly waived privilege protection by seeking attorney's fees as part of a successful malicious prosecution action; "After their venture to subdivide and develop a parcel of residential real estate fell apart, one venturer sued the other and lost. The other then turned around and sued for malicious prosecution of the prior lawsuit, and a jury awarded $1 million in compensatory damages and $500,000 in punitive damages. The party facing that verdict now appeals. Both parties' briefs on appeal misrepresent the facts and the law. Our careful review of approximately 5,000 pages of record spawned by the parties' near-decade of nonstop litigation nevertheless leads us to conclude that there is no basis to disturb the trial court's and jury's rulings on liability or the jury's award of punitive damages. However, the trial court prejudicially erred in allowing the malicious prosecution plaintiff to seek over $400,000 in attorney's fees while redacting, on the basis of attorney-client privilege, almost every line of content from the underlying fee bills. Accordingly, we affirm the finding of liability; remand the matter for a new trial on compensatory damages where the fee bills are not to be redacted on the basis of privilege; and, if upon retrial there is an award of compensatory damages of $25,000, affirm the punitive damages award."; "Charon and Segal filed a pretrial motion to exclude all evidence of damages in light of the heavy redactions, but the trial court denied the motion while nevertheless voicing 'concern' that the extensive redactions would hamper 'the jury's ability to ascertain whether or not the fees are reasonable.'"; "The trial court abused its discretion in allowing Peaches to introduce billing records that contained absolutely no detail other than the date and amount billed. We agree with the trial court that descriptions of work redacted from the bills may well have been covered by the attorney-client privilege."; "However, the privilege is meant to be a shield (against disclosure), not a sword (to be tactically asserted when trying to obtain affirmative relief). . . . To prevent the misuse of the privilege as a sword, courts will deem a party to have impliedly waived the privilege (1) when a 'plaintiff has placed in issue a communication which goes to the heart of the claim in controversy,' and (2) when allowing that communication to remain undisclosed would be fundamentally unfair to the other party because 'disclosure is essential for a fair adjudication of the action.'"; "Under this authority, Peaches impliedly waived her attorney-client privilege when she sought to establish more than $400,000 in attorney's fees as damages but redacted everything in the bills except the fee amounts and the dates they were incurred. Peaches tendered the bills as evidence of the damages proximately caused by Charon's and Segal's underlying lawsuit, and the bills accordingly went to the heart of those elements. The near-complete redaction was also fundamentally unfair because it precluded Charon and Segal from conducting any meaningful cross-examination of Peaches' attorney. . . . Charon and Segal were denied access to the contemporaneously created documents that would have enabled them to question the attorney's broad-brushed testimony. Disclosure of the unredacted bills on this long-completed matter was 'essential for a fair adjudication'. . . and the trial court abused its discretion in not so ruling."; "Allowing Peaches to proffer her attorney's testimony affirmatively while denying Charon and Segal the power to test that testimony is fundamentally unfair no matter who had the burden of proof. Second, Peaches asserts that attorney's fees can be proven without documents . . . and reasons that it was sufficient that her attorney was available for cross-examination. For the reasons we explain above, it was not sufficient."; "Charon and Segal assert that this evidentiary error compels a ruling that Peaches is entitled to no attorney's fees. We disagree. As with all prejudicial evidentiary errors, the remedy is a remand for a new trial of the pertinent phase -- here, a new trial on compensatory damages at which the privilege attaching to the attorney's bills has been waived.")

Case Date	Jurisdiction	State	Cite Checked
2017-12-20	State	CA

Comment:

key case

Chapter: 28.1002

**Case Name: Avaya, Inc. v. Telecom Labs, Inc., Civ. No. 06-2490, 2016 U.S. Dist. LEXIS 6111, at 17 18, 18 (D.N.J. Jan. 19, 2016)**

(finding that a defendant impliedly waived privilege protection by seeking fees after prevailing in an antitrust case, but allowing the litigant to redact and log some entries; "The Court will not permit TLI/C [defendant] to claim privilege to protect the records themselves, nor any relevant information describing the specific tasks and work product conducted by TLI/C's attorneys. TLI/C has placed their billing records in issue by moving for attorneys' fees. In so doing, TLI/C has necessarily waived the protections of attorney client privilege or work product relating to the billing records. . . . Given the waiver, the Court does not expect significant redactions, but will permit redaction of specific confidential communications between attorney and client that are not needed for an understanding of the services for which TLI/C seeks compensation herein. Any such redactions will be listed in a privilege log as required by Rule 26(b)(5)(A), Fed. R. Civ. P."; "Additionally, TLI/C has also requested that the Court limit the issuance of the billing records to 'expert eyes only.' The Court declines to make such a determination. The Court does not find that the billing information is sufficiently sensitive or confidential to require such a designation. Especially where reciprocal discovery of billing information has been required, the tactical advantage of receiving such work product indicators from an opponent, if any, is also reciprocal.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-19	Federal	NJ	B 7/16

Chapter: 28.1002

Case Name: DeVault v. Isdale, Case No.: 6:15-cv-135-Orl-37TBS, 2015 U.S. Dist. LEXIS 144895 (M.D. Fla. Oct. 26, 2015)

(analyzing the at issue doctrine in connection with a wife's lawsuit against her lawyer for malpractice in connection for her agreeing to a marital settlement; analyzing the malpractice defendant's attempt to review the files of the wife's divorce lawyer; finding a narrow at issue doctrine; "Plaintiff did not waive the attorney-client and work product privileges simply by bringing this lawsuit. She also did not waive a privilege by including attorney's fees from the dissolution of marriage case in her damage claim. Nothing has been presented to suggest that the amounts Plaintiff paid her lawyer for legal work relating to the marital settlement agreement cannot be broken out and proven without resort to privileged communications. Plaintiff and Nathan are the parties to the settlement agreement. Defendant is free to ask both of them what factors they considered during the negotiations, as well as how they evaluated and weighed each of those factors. Defendant can also discover the written and oral communications between the attorneys representing Plaintiff and Nathan. There is no evidence that Plaintiff intends to use privilege as both a shield and sword as would be the case if she attempted to disclose favorable communications with her attorney while at the same time, insisting upon the protection of the privilege for damaging communications. While the presentation of Defendant's case might be aided if she had access to Plaintiff's confidential communications with her former attorney, that is not a sufficient reason to find a waiver of the attorney-client or work product privileges. And, Defendant did not attempt to make the showing required by FED. R. CIV. P. 26(b)(3) to discover work product privileged information. Accordingly, Defendant Holly Isdale's Motion to Compel Discovery is DENIED.")

Case Date	Jurisdiction	State	Cite Checked
2015-10-26	Federal	FL

Chapter: 28.1002

Case Name: Square Mile Structured Debt (One) LLC v. Swig, No. 603825/08, 2013 NY Slip Op. 31803(U), at 10 (N.Y. Sup. Ct. July 23, 2013)

(assessing plaintiff's request for fees under a contractual indemnification provision; reversing a Special Referee's refusal to review the lawyer's bills in camera, and reducing the amount of fees awarded because the lawyers had redacted portions of the bills; "[T]his Court concludes that any party subject to a request for in camera review of unredacted billing records would be bound to comply, or potentially have the material excluded, or otherwise handled within the powers delegated to the Special Referee.")

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

Chapter: 28.1002

Case Name: Square Mile Structured Debt (One) LLC v. Swig, No. 603825/08, 2013 NY Slip Op. 31803(U), at 11 (N.Y. Sup. Ct. July 23, 2013)

(assessing plaintiff's request for fees under a contractual indemnification provision; reversing a Special Referee's refusal to review the lawyer's bills in camera, and reducing the amount of fees awarded because the lawyers had redacted portions of the bills; "[T]he provident course of action would have been for the Special Referee to review the redacted billing entries in order to determine whether the fees sought were reasonable.")

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

Chapter: 28.1002

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 141 (D.D.C. 2013)

(analyzing the impact of plaintiff Feld seeking reimbursement from an insurance company of fees he spent in successfully handling underlying litigation; "Feld insists that the relevance of legal advice does not put it 'in issue' and that the privilege is waived only if the content of the advice given is 'integral' to the outcome of the claims in the case. . . . This Court agrees that relevance cannot be the sole benchmark for determining implied waiver. But it is not just relevance that counsels a finding of implied waiver here. Although Feld has not, as in other implied waiver cases, disclosed the content of a particular attorney-client communication . . ., he is essentially claiming that no communications of a particular type -- those demonstrating that he and/or Fulbright [plaintiff's law firm] did in fact agree to FFIC's proposed rates -- ever took place. In this way, Feld has made certain attorney-client communications integral to the outcome of his claims. Fairness requires that the privilege give way to FFIC's right to access the communications at issue to defend against Feld's claims."; "In short, Feld has brought a lawsuit that, at its core, is premised on the absence of any agreement as to rates on his part or Fulbright's. He may not affirmatively disclaim agreement and yet use the privilege to shield materials that might show otherwise. Hence, the Court concludes that Feld has waived the attorney-client privilege with respect to communications that relate to Feld's or Fulbright's understanding of and actions regarding FFIC's position on hourly rates, or that otherwise bear on the parties' agreement or lack thereof.")

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

Chapter: 28.1002

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 138 (D.D.C. 2013)

(analyzing the impact of plaintiff seeking reimbursement from an insurance company of fees he spent in successfully handling underlying litigation; "Regarding the first category of communications, the law is clear: by claiming indemnification of his defense costs from FFIC, Feld waived the attorney-client privilege as to the invoices itemizing the fees and expenses incurred, all supporting documentation, and 'any other communications going to the reasonableness of the amount of the [fees and expenses].'. . . Although only about $200,000 of the $2.4 million sought by Feld in this action is disputed based on the reasonableness and necessity of the charges, the reasonableness of any portion of the total amount claimed can only be determined by examining the entirety of the billing records pertaining to Feld's defense in the Underlying Action. . . . Hence, Feld has put at issue the reasonableness of the total amount submitted for reimbursement, and FFIC is entitled to discover otherwise privileged information necessary to defend against Feld's claim for the disputed $200,000.")

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

Chapter: 28.1002

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 140, 140-41 (D.D.C. 2013)

("Although both Ideal [Ideal Elec. Sec. Co. v. Int'l Fid. Ins. Co., 129 F.3d 143 (D.C. Cir. 1997)] and Potomac [Potomac Elec. Power Co. v. Cal. Union Ins. Co., 136 F.R.D. 1 (D.D.C. 1990)] support the conclusion the Court has already reached -- that by seeking indemnification of his defense costs in the Underlying Action Feld has placed at issue Fulbright's [law firm which represented Feld in the underlying litigation] handling of his defense in that action -- neither case sheds light directly on the question whether Feld has also placed at issue attorney-client communications regarding hourly rates, even though Feld need not rely on such communications to prove his claim."; "[I]t is not Feld's reliance, but his knowledge and understanding of FFIC's representations, that have been placed squarely at issue."; "Feld's claim for the large majority of the damages sought in this action -- $2.2 million of the $2.4 million total -- is based on his assertion that he never agreed to any hourly rates. FFIC is thus correct that Feld has placed at issue his understanding of FFIC's position on rates and the circumstances under which he could continue to employ Fulbright as his counsel, and whether he expressly or impliedly agreed to or acquiesced in the rates set by FFIC. . . . By filing this action and alleging that neither he nor Fulbright agreed to rates . . ., Feld has placed his attorney-client communications at issue. FFIC is entitled to explore what Fulbright told Feld about FFIC's position on rates, how Feld interpreted FFIC's position and his rights under the Policy, and how Feld directed his attorneys to act.")

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

Chapter: 28.1002

**Case Name: D'Onofrio v. Borough of Seaside Park, Civ. No. 09 06220, 2012 U.S. Dist. LEXIS 181113, at *26-27 (D.N.J. Dec. 20, 2012)**

(not for publication) (holding that a plaintiff seeking reimbursement of attorney's fees from the defendant could, for now, produce only summaries of the bills and not the full bills; "It may be that Plaintiff ultimately must present full, unredacted billing statements in order to fairly and clearly justify an award of damages. However, the Court does not at this time find good reason to overturn Judge Bongiovanni's Order in light of both fairness and efficiency concerns, and absent further direction from the Third Circuit.")

Case Date	Jurisdiction	State	Cite Checked
2012-12-20	Federal	NJ	B 9/13

Chapter: 28.1002

**Case Name: D'Onofrio v. Borough of Seaside Park, Civ. No. 09 06220, 2012 U.S. Dist. LEXIS 181113, at *23 (D.N.J. Dec. 20, 2012)**

(not for publication) (holding that a plaintiff seeking reimbursement of attorney's fees from the defendant could, for now, produce only summaries of the bills and not the full bills; "If the opposing party then objects to the reasonableness of the hours expended or the attached hourly rate, 'the district court has a great deal of discretion to adjust the fee award in light of those objections.'" (citation omitted))

Case Date	Jurisdiction	State	Cite Checked
2012-12-20	Federal	NJ	B 9/13

Chapter: 28.1002

**Case Name: D'Onofrio v. Borough of Seaside Park, Civ. No. 09 06220, 2012 U.S. Dist. LEXIS 181113, at *23 (D.N.J. Dec. 20, 2012)**

(not for publication) (holding that a plaintiff seeking reimbursement of attorney's fees from the defendant could, for now, produce only summaries of the bills and not the full bills; "The Court is unconvinced that the above requirements cannot be met via detailed summaries of billing statements, or that the Borough Defendants will be unable to bring forward objections concerning time spent on projects, the reasonableness of fees, and whether the tasks billed were actually necessary for litigation. If the statements are insufficiently detailed, the Court can order further disclosure.")

Case Date	Jurisdiction	State	Cite Checked
2012-12-20	Federal	NJ	B 9/13

Chapter: 28.1002

**Case Name: D'Onofrio v. Borough of Seaside Park, Civ. No. 09 06220, 2012 U.S. Dist. LEXIS 181113, at *22 (D.N.J. Dec. 20, 2012)**

(not for publication) (holding that a plaintiff seeking reimbursement of attorney's fees from the defendant could, for now, produce only summaries of the bills and not the full bills; "[T]his Court notes that a party seeking attorneys' fees must 'submit evidence supporting the hours worked and rates claimed.'" (citation omitted))

Case Date	Jurisdiction	State	Cite Checked
2012-12-20	Federal	NJ	B 9/13

Chapter: 28.1002

**Case Name: Fulmore v. UPS, Inc., Nos. 7:11 CV 18 F & 91 F, 2012 U.S. Dist. LEXIS 178632, at *12 (E.D.N.C. Dec. 18, 2012)**

(finding the plaintiff did not have to produce attorney's bills while seeking reimbursement of attorney's fees and costs, at least for the time being; "Plaintiffs state that they have since produced a copy of their fee agreement and provided information about its terms at deposition. . . . The court is satisfied that this production satisfies any obligation that plaintiffs may have at this time to provide the information and documents at issue.")

Case Date	Jurisdiction	State	Cite Checked
2012-12-18	Federal	NC	B 9/13

Chapter: 28.1002

**Case Name: Starr Indem. & Liab. Co. v. Cont'l Cement Comp., Case No. 4:11CV809 JAR, 2012 U.S. Dist. LEXIS 170988, at *15-16 (E.D. Mo. Dec. 3, 2012)**

(analyzing privilege and work product issues in a first party insurance context; "The Court agrees that the checks providing only the amount paid for attorneys' fees are insufficient discovery. The attorney-client privilege and the work product doctrine cannot preclude Starr from conducting an analysis of the reasonableness of Continental's claim for attorneys' fees. Starr should be able to challenge Continental's attorneys' fees with specific information as to the claimed fees. Starr is entitled to know information such as (1) who worked on a particular task, (2) the hourly billing rate for that work, (3) how long the person worked on the task, and (4) generically what the particular task was, e.g., 'worked on motion for summary judgment.'")

Case Date	Jurisdiction	State	Cite Checked
2012-12-03	Federal	MO	B 9/13

Chapter: 28.1002

Case Name: Franklin United Methodist Home, Inc. v. Lancaster Pollard & Co., 909 F. Supp. 2d 1037, 1048 (S.D. Ind. Nov. 8, 2012)

(analyzing a situation in which a plaintiff sued a financial advisor for malpractice, which did not trigger an at issue waiver involving privileged communication; "Neither FUMH's assertion of a claim for the legal fees and expenses it incurred defending the Lehman Claims nor its production of redacted invoices to support that claim waive the privileges protecting its attorney-client communications and work product. . . . FUMH may produce its redacted invoices without effecting a waiver.")

Case Date	Jurisdiction	State	Cite Checked
2012-11-08	Federal	IN	B 7/13

Chapter: 28.1002

Case Name: Blickenstaff v. Blickenstaff (In re Estate of Blickenstaff), 980 N.E.2d 1285, 1294 (Ill. App. Ct. 2012)

(requiring an executor to disclose attorneys bills for any work paid from the estate; "It might well be, as respondents argue, that the billing statements come within the attorney-client privilege . . . but in our de novo review of this issue . . . we hold that the executor has impliedly waived the attorney-client privilege with respect to billing statements he paid with funds from the estate. A party impliedly waives the attorney-client privilege by 'voluntarily inject[ing] either a factual or legal issue into the case, the truthful resolution of which requires an examination of the confidential communications.'. . . By paying the attorney fees out of the estate, the executor voluntarily injected into this case the issue of whether the attorney fees were reasonable and whether they were for services beneficial to the estate. . . . Fair and truthful resolution of that issue necessitates the production of the unredacted billing statements.")

Case Date	Jurisdiction	State	Cite Checked
2012-01-01	State	IL	B 9/13

Chapter: 28.1002

Case Name: Blickenstaff v. Blickenstaff (In re Estate of Blickenstaff), 980 N.E.2d 1285, 1293 (Ill. App. Ct. 2012)

(requiring an executor to disclose attorneys bills for any work paid from the estate; "If, as respondents contend, it is unnecessary for petitioners to see the billing statements and if it is enough for them to know merely the amount of attorney fees paid out of the estate, why were the billing statements generated in the first place? Why do law firms send billing statements to their clients, detailing the services provided, instead of just sending their clients a piece of paper saying simply, 'Amount Due: X dollars?' The reason is obvious. The descriptions of the specific services the attorney provided, along with the amount of time the attorney spent on each service, are the explanation and justification for the fee charged.")

Case Date	Jurisdiction	State	Cite Checked
2012-01-01	State	IL	B 9/13

Chapter: 28.1002

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 273-74 (Va. Cir. Ct. 2002)

("Plaintiff states that most courts have ruled that the mere assertion of the right to recover attorney's fees does not constitute a waiver of the attorney-client privilege. Id. [Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co., 730 A.2d 51, 65 (Conn. 1999)] (citing Northwood Nursing & Convalescent Home, Inc. v. Cont'l Ins. Co., 161 F.R.D. 293, 298 (E.D. Pa. 1995))

Case Date	Jurisdiction	State	Cite Checked
2002-01-01	State	VA

Chapter: 28.1002

Case Name: In re Computer Learning Centers, Inc., 272 B.R. 897, 907 n.8 (E.D. Va. 2001)

("While time records may contain privileged material, they must nonetheless provide the basis for the requested fees. Chaudhry v. Gallerizzo, 174 F.3d 394, 402 (4th Cir. 1999); In re Grand Jury Proceedings, Thursday Special Grand Jury September Term, 1991, 33 F.3d 342, 354 (4th Cir. 1994). They should reflect the attorney who performed the services, the date of the services, the amount of time expended and a description of the services. It is not required that the actual communication between the attorney and the client be revealed in the time records. Privileged material is not usually included in original time records; however, if it is included in the firm's copy of the time records, it may be redacted from the filed document. Nonetheless, sufficient non-privileged information must be provided so that the court can evaluate the application.")

Case Date	Jurisdiction	State	Cite Checked
2001-01-01	Federal	VA

Chapter: 28.1002

Case Name: Zeus Enters., Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 244 (4th Cir. 1999)

(upholding denial of a party's request for attorney fees under a contract, based on the party's refusal to allow testimony about "what factual investigation and legal research" the party's law firm conducted; the court "[does] not understand why Zeus could not have allowed its law firm to disclose some information about the nature and extent of its work, without entrenching upon the attorney-client privilege. In any event, the burden of establishing the applicability of the attorney-client privilege rests on the proponent of the privilege. The privilege does not protect all aspects of the attorney-client relationship; it only protects confidential communications between lawyer and client. The proponent of the privilege must establish not only that an attorney-client existed, but also that the specific communications at issue are privileged and that the privilege was not waived. Here, Zeus made a blanket assertion of privilege to Alphin's questions to Shaw Pittman about the scope of that firm's work for Zeus in connection with the NTSB proceeding. Zeus offered nothing to satisfy its burden to establish that the information sought by Alphin was protected by the attorney-client privilege. Accordingly, the district court did not err in striking Zeus's request to recover attorneys' fees paid to Shaw Pittman for its work in the administrative proceeding.")

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

Chapter: 28.1003

**Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2768, 2016 U.S. Dist. LEXIS 7477, at *29 (E.D. Pa. Jan. 22, 2016)**

("Defendants have consistently invoked the attorney-client privilege while assuring Plaintiffs and this Court that they will not state or imply that their decisions to settle the Paragraph IV litigation were premised on the advice of counsel. Defendants have reaffirmed these positions in the motion currently before me. While it is expressly within Defendants' rights to assert the privilege, I have repeatedly advised Defendants, and I do so again here, that any last minute reversal of this position will not be allowed.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-22	Federal	PA	B 7/16

Comment:

key case

Chapter: 28.1101

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 446 (W.D. Va. 2009)

("Nor has Carilion placed Henson's advice to Roe prior to Billings' termination at issue in this case. Advice of counsel is not asserted by Carilion as an affirmative defense; therefore the 'at issue' doctrine does not apply. See Hearn v. Rhay, 68 F.R.D. 574, 580-81 (E.D. Wash. 1975) (articulating three elements to what it called a 'new and narrowly limited exception to the attorney-client privilege'). The 'at-issue' exception to the attorney-client privilege applies in the following situation: (1) when the assertion of the privilege is a result of some affirmative act, such as filing suit, by the asserting party; (2) through the affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Id. Carilion does not assert the defense of advice of counsel in this case; thus, the narrow 'at-issue' exception does not apply.")

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

Chapter: 28.1102

Case Name: Secretary U.S. Dept. of Labor v. Am. Future Sys., Inc., No. 16-2685, 2017 U.S. App. LEXIS 19991 (3rd Cir. Oct. 13, 2017)

(in an FLSA case; of liquidated damages based in part on defendant's refusal to waive its attorney-client privilege; "In assessing liquidated damages, the District Court noted that Satell sought advice of counsel, but he refused to waive the attorney-client privilege and disclose this advice to the court. Satell's testimony placed the court in an untenable position of having to assume that counsel's advice was consistent with the adopted policy while ignoring the fact that Satell refused to tell the court what counsel advised. The District Court concluded that, given the unwillingness to share what it was told by counsel, 'it is entirely possible that Defendants implemented the new break policy in 2009, despite being told by one or more of its lawyers that the policy violated the FLSA. It would be an absurd result to classify such conduct as 'good faith' . . . .'"; "Progressive argues that the District Court abused its discretion in finding that it did not act in good faith when setting its break policy simply because Progressive refused to waive its attorney-client privilege. It claims that the District Court's decision punishes Progressive for seeking legal advice that was not essential to a good-faith determination, as employers are not required to seek legal advice to demonstrate good faith. Thus, according to Progressive, the District Court's decision will discourage open and confident relationships between clients and attorneys. That may be so, but we, like Judge Restrepo, are incredulous that an employer in this situation would decline to share the legal advice it received when the issue of good faith is raised, and we will not preclude a court from considering this in its thought process.")

Case Date	Jurisdiction	State	Cite Checked
2047-10-13	Federal

Comment:

key case

Chapter: 28.1102

Case Name: Zen Design Group, Ltd. v. Scholastic, Inc., Case No. 16-12936, 2018 U.S. Dist. LEXIS 104412 (E.D. Mich. June 22, 2018)

(analyzing the scope of an implied waiver in a patent case in which a litigant intends to rely on advice of counsel; "To defend against a claim of willfulness, a party may present evidence that it sought an opinion of counsel as to the merits of the infringement allegations and received exculpatory advice. . . . This is known as the advice-of-counsel defense and it 'aims to establish that due to reasonable reliance on advice from counsel, [the accused infringer's] continued accused activities were done in good faith.'. . . By voluntarily providing the opinion of counsel as part of its defense, the defendant waives its attorney-client privilege and the confidentiality of the related work product. In re EchoStar Commc'ns Corp., 448 F.3d 1294, 1299 (Fed. Cir. 2006)."; "A little over a year later, the Federal Circuit revisited waiver in the context of the advice-of-counsel defense. See Seagate [In re Seagate Tech., LLC, 497 F.3d 1360, 1369 (Fed. Cir. 2007)]."; "Both Seagate and Echostar [In re EchoStar Commc'ns Corp., 448 F.3d 1294 (Fed.Cir.2006)] guide the court's analysis and opinion today. Seagate explicitly discussed Echostar and clarified that Echostar 'did not consider waiver of the advice of counsel defense as it relates to trial counsel.' Id. at 1370. Therefore, Seagate's holding pertains to trial counsel while Echostar governs waiver as to all other counsel, leaving open the question the parties ultimately present to this court: when is an attorney considered trial counsel, thus shielding his communications and work product from discovery even when his client asserts the advice-of-counsel defense?"; "Both parties present thoughtful research and analysis. Upon a review of the pertinent caselaw, the court concludes that a bright-line rule for waiver of trial counsel's pre-suit communications and documents is not appropriate. . . . The moment at which an attorney's role morphs from pre-suit advisory counsel into pre-trial strategy counsel is not easily defined by a distinct point in time and is better suited to a fact-intensive case-by-case analysis. After considering the 'circumstances of the disclosure [sought here], the nature of the legal advice sought[,] and the prejudice to the parties of permitting or prohibiting further disclosures[,]' the court concludes that disclosure of Siff's pretrial communications and work product regarding infringement is appropriate."; "Plaintiff accuses Defendant of willfully infringing on its '616 Patent. In response, Defendant submitted an exculpatory opinion as to infringement by outside counsel Stimpson. In doing so, Defendant waived its attorney-client privilege and work product confidentiality as to all other communications and documents given to Defendant on the same subject matter as established by Echostar. The court concludes that this waiver, while not extending to trial counsel's communications and work, extends to Siff's presuit communications and work here.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-22	Federal	MI

Chapter: 28.1102

Case Name: CVIN LLC v. Clarity Telecom, LLC, Case No. 1:17-CV-00185-AGF, 2018 U.S. Dist. LEXIS 101117 (E.D. Mo. June 18, 2018)

(in a patent infringement case, holding that defendant's reliance on an opinion of K&L Gates trigger an implied waiver; "CVIN maintains that Clarity is indeed relying on an advice-of-counsel defense, even if the theory of this defense is that K&L Gates's lack of advice demonstrates that Clarity did not knowingly or willfully infringe CVIN's trademarks.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-18	Federal	CA

Chapter: 28.1102

Case Name: CVIN LLC v. Clarity Telecom, LLC, Case No. 1:17-CV-00185-AGF, 2018 U.S. Dist. LEXIS 101117 (E.D. Mo. June 18, 2018)

(in a patent infringement case, holding that defendant's reliance on an opinion of K&L Gates trigger an implied waiver; "The assertion of an advice-of-counsel defense can serve as a waiver of both attorney-client privilege and work-product immunity. 'However, because the attorney client privilege and the work product doctrine have different standards of waiver, they must be considered separately, and the scope of the waiver of these protections may not be identical.'"; "Both types of waivers are limited by subject matter rather than time. Thus, a defendant's 'use of an assumed date [such as the date of a cease-and-desist letter] for the assertion of . . . privilege, without reference to the subject matter of the document for which privilege had been asserted, [is] inappropriate.'"; "[T]he advice-of-counsel privilege waiver does not include documents, or parts thereof, reflecting litigation strategy."; "Nor does the waiver include communications solely between attorneys (such as communications between opinion counsel and trial counsel), which were not communicated to the client, unless those documents refer to communications with the client."; "Applying these principles, the Court concludes that, if Clarity intends, in defending against CVIN's charge of willfulness, to rely on its request for and lack of advice from K&L Gates, Clarity must produce all documents, regardless of the date of creation, that embody or discuss a communication between it and any attorney (regardless of law firm) regarding the subject matter of Clarity's request for advice: whether there were any issues with Clarity's proposed use of the VAST BROADBAND brand and whether that designation was available for Clarity's use. However, Clarity may redact any attorney work product information that was not communicated to Clarity and information that reflects litigation strategy."; "With respect to the privilege log, again, because the privilege waiver here is limited by subject matter rather than time, the Court agrees with CVIN that the privilege log may not be cut off at the date of the cease-and-desist letter. Rather, Clarity must log documents redacted or withheld on the basis of privilege through the date the complaint was filed, as CVIN requests.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-18	Federal	MO

Comment:

Key Case

Chapter: 28.1102

Case Name: Secretary U.S. Dept. of Labor v. Am. Future Sys., Inc., No. 16-2685, 2017 U.S. App. LEXIS 19991 (3rd Cir. Oct. 13, 2017)

("In assessing liquidated damages, the District Court noted that Satell sought advice of counsel, but he refused to waive the attorney-client privilege and disclose this advice to the court. Satell's testimony placed the court in an untenable position of having to assume that counsel's advice was consistent with the adopted policy while ignoring the fact that Satell refused to tell the court what counsel advised. The District Court concluded that, given the unwillingness to share what it was told by counsel, 'it is entirely possible that Defendants implemented the new break policy in 2009, despite being told by one or more of its lawyers that the policy violated the FLSA. It would be an absurd result to classify such conduct as 'good faith' . . . .'"; "Progressive argues that the District Court abused its discretion in finding that it did not act in good faith when setting its break policy simply because Progressive refused to waive its attorney-client privilege. It claims that the District Court's decision punishes Progressive for seeking legal advice that was not essential to a good-faith determination, as employers are not required to seek legal advice to demonstrate good faith. Thus, according to Progressive, the District Court's decision will discourage open and confident relationships between clients and attorneys. That may be so, but we, like Judge Restrepo, are incredulous that an employer in this situation would decline to share the legal advice it received when the issue of good faith is raised, and we will not preclude a court from considering this in its thought process.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-13	Federal

Chapter: 28.1102

Case Name: In re Global Computer Enterprises, Inc. v. Steese, Evans & Frankel, P.C., Case No. 14-13290-BFK, Ch. 11, Adversary Proceeding No. 15-01063-BFK, 2017 Bankr. LEXIS 2291 (E.D. Va. Aug. 15, 2017)

(explaining Virginia's approach to a subject matter waiver; "A client can waive the attorney-client privilege by placing the attorney-client relationship in issue, 'for example, by affirmatively invoking a defense of good faith reliance on advice of counsel.' United States v. Moazzeni, 906 F.Supp.2d 505, 512 (E.D. Va. 2012); LifeNet, Inc. v. Musculoskeletal Transplant Found., Inc., 490 F.Supp.2d 681, 685 (E.D. Va. 2007) ('Once a party announces that it will rely on advice of counsel . . . in response to an assertion of willful infringement, the attorney-client privilege is waived."); see also Edna Sela Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, at 511 (5th ed. 2007) ('A client may not rely on 'advice of counsel' as the basis of a defense of a claim without waiving all privileged communications on that issue.") The Fourth Circuit has embraced the concept of subject matter waiver, so that the waiver will encompass all communications on the same subject matter. Sheet Metal Workers Int'l Ass'n v. Sweeney, 29 F.3d 120, 125 (4th Cir. 1994); United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). Although GCE argues that Mr. Janacek's advice on ReThink India on the SAM Task Order was separate and apart from that of his advice on the use of H1-B labor on the DoL and EEOC contracts, no one could have predicted with any certainty just how far the waiver of GCE's attorney-client privilege would have extended had GCE asserted the advice of counsel defense on the SAM Task Order and ReThink India. Had the government been able to compel the production of SEF's advice e-mails on the use of H1-B labor on the DoL and EEOC contracts (that is, SEF's advice that GCE seek a waiver from the contracting officers), the disclosure of these e-mails could have made matters worse for GCE, in effect, establishing a willful blindness to the risks of proceeding to use H1-B labor without seeking a contract waiver.")

Case Date	Jurisdiction	State	Cite Checked
2017-08-15	Federal	VA

Chapter: 28.1102

Case Name: In re Global Computer Enterprises, Inc. v. Steese, Evans & Frankel, P.C., Case No. 14-13290-BFK, Ch. 11, Adversary Proceeding No. 15-01063-BFK, 2017 Bankr. LEXIS 2291 (E.D. Va. Aug. 15, 2017)

(explaining Virginia's approach to a subject matter waiver; "A client can waive the attorney-client privilege by placing the attorney-client relationship in issue, 'for example, by affirmatively invoking a defense of good faith reliance on advice of counsel.' United States v. Moazzeni, 906 F.Supp.2d 505, 512 (E.D. Va. 2012); LifeNet, Inc. v. Musculoskeletal Transplant Found., Inc., 490 F.Supp.2d 681, 685 (E.D. Va. 2007) ('Once a party announces that it will rely on advice of counsel . . . in response to an assertion of willful infringement, the attorney-client privilege is waived."); see also Edna Sela Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, at 511 (5th ed. 2007) ('A client may not rely on 'advice of counsel' as the basis of a defense of a claim without waiving all privileged communications on that issue.") The Fourth Circuit has embraced the concept of subject matter waiver, so that the waiver will encompass all communications on the same subject matter. Sheet Metal Workers Int'l Ass'n v. Sweeney, 29 F.3d 120, 125 (4th Cir. 1994); United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). Although GCE argues that Mr. Janacek's advice on ReThink India on the SAM Task Order was separate and apart from that of his advice on the use of H1-B labor on the DoL and EEOC contracts, no one could have predicted with any certainty just how far the waiver of GCE's attorney-client privilege would have extended had GCE asserted the advice of counsel defense on the SAM Task Order and ReThink India. Had the government been able to compel the production of SEF's advice e-mails on the use of H1-B labor on the DoL and EEOC contracts (that is, SEF's advice that GCE seek a waiver from the contracting officers), the disclosure of these e-mails could have made matters worse for GCE, in effect, establishing a willful blindness to the risks of proceeding to use H1-B labor without seeking a contract waiver.")

Case Date	Jurisdiction	State	Cite Checked
2017-08-15	Federal	VA

Chapter: 28.1102

Case Name: United States v. Berkeley Heartlab, Inc., Civ. A. No. 9:14-cv-00230-RMB Consolidated with 9:11-cv-1593-RMG and 9:15-cv-2458-RMG, 2017 U.S. Dist. LEXIS 51691 (D.S.C. April 5, 2017)

(holding that defendant's advice of counsel defense resulted in a broad subject matter waiver, including even uncommunicated privileged documents; also finding that the subject matter waiver included work product protected documents; "In their Amended Answer, the BlueWave Defendants asserted several affirmative defenses, including good faith reliance on advice of counsel: 'Defendants BlueWave, Dent, and Johnson acted in good faith reliance on counsel, including, but not limited to, the legal opinions/advice of attorney Gregory B. Root dated December 27, 2007 and January 2, 2008, the legal opinion/advice of attorney Michael F. Ruggio dated April 27, 2012 (said opinion attached hereto and incorporated herein by reference as Exhibit A), and the advice of attorney Gene Sellers with respect to BlueWave's contracts with HDL, Singulex and its independent contractors.'"; "Courts in this Circuit have found that when a party asserts an advice of counsel defense that the privilege waiver applies to advice received during the entire period the misconduct is alleged to have been ongoing – even up to and during trial."; "Here, the Government has alleged that the conduct at issue took place from 2008 through July 2014 (with regard to the processing and handling scheme) and from 2008 through January 2015 for the sales contracts and waiver of copays and deductibles schemes. By pleading an affirmative advice of counsel defense to the Government's complaint, Defendants placed their communications with counsel at issue and so waived attorney-client privilege as to all information relating to their communications with counsel during the OIG investigation about the conduct at issue in this case."; "'Defendants assert in their Response that 'The advice of counsel defense contemplated . . . is for business and planning opinion advice received in 2010 through 2012 before setting off on the course of conduct which later precipitated the OIG investigation and the filing of the instant suit.'. . . Defendants cannot narrow the scope of their affirmative defense in their briefings on this motion to compel when the defense asserted in their amended answer was not so limited.'")

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

Chapter: 28.1102

Case Name: United States v. Trotter, Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681 (E.D. Mich. March 7, 2017)

(holding that a defendant relying on advice of counsel must produce communications with all of the counsel from who he received pertinent advice, rather than just the three lawyers whose communications he initially wanted to disclose; "Trotter intends to assert a defense of good faith reliance on the advice of counsel and has agreed to waive the attorney-client privilege. Trotter's counsel submitted waivers for three attorneys: Carey Kalmowitz, Abby Pendleton, and Sarif Kasmikha. The Government asserts that Trotter received management advice from additional attorneys, including Louis Szura, David Haron, James Burdick, and Robert Morgan, and requests that Trotter waive privilege to these individuals as well."; "The scope of this waiver 'goes not only to the specific advice of counsel, but also to all other attorney client communications related to the same subject matter. This includes the client's questions to the lawyer and material provided to counsel to help render an opinion.'. . . Defense counsel asserts that they have produced all of the relevant documents in their possession. But, Fed. R. Crim. P. 16(b)(1)(A)(i) requires production of all relevant communications in the defendant's possession, custody, or control. Defense counsel is ordered to request these materials from his client. If Trotter has any such materials, counsel must produce them to the Government. Failure to make a full disclosure constitutes a waiver of the advice of counsel defense."; "For the reasons stated above, the Government's motion is GRANTED. Trotter is ordered to (1) identify all attorneys who advised him on his management practices, (2) waive the attorney-client privilege for these attorneys, and (3) produce all materials relating to legal advice on these management practices in his possession. Failure to do so will preclude Trotter from raising the good faith reliance of counsel defense at trial.")

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

Comment:

key case

Chapter: 28.1102

**Case Name: United States v. Trotter, Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681, at *2 (E.D. Mich. Mar. 7, 2017)**

May 10, 2017 (PRIVILEGE POINT)

"Privilege Implications of an Explicit or Implicit 'Advice of Counsel' Defense: Part I'"

All lawyers know that pleading an "advice of counsel" affirmative defense waives privilege protection. But lawyers must remember such waivers' breadth.

In United States v. Trotter, defendant Trotter announced his intent to assert a "good faith reliance on the advice of counsel" defense, and "submitted waivers" from three lawyers. Case No. 14-20273, 2017 U.S. Dist. LEXIS 31681, at *2 (E.D. Mich. Mar. 7, 2017). But the government noted that Trotter had received pertinent advice from four other lawyers. The court ordered Trotter to “(1) identify all attorneys who advised him on his management practices, (2) waive the attorney-client privilege for these attorneys, and (3) produce all materials relating to legal advice on these management practices in his possession." Id. at *3. The court specifically rejected Trotter's lawyers' argument that they had already produced all pertinent documents in their possession – ordering his lawyers "to request these materials from" Trotter. Id.

Pleading an "advice of counsel" defense normally waives privilege protection for the client's communications with any lawyers providing advice on the pertinent matter, and usually also extends to the client's communication of facts to such lawyers that preceded the advice. Next week's Privilege Point will describe another defendant's less explicit reliance on advice of counsel, but which had the same waiver impact.

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

Comment:

key case

Chapter: 28.1102

**Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017)**

May 17, 2017 (PRIVILEGE POINT)

"Privilege Implications of an Explicit or Implicit 'Advice of Counsel' Defense: Part II'"

Last week's Privilege Point described the normal broad subject matter waiver triggered by litigants' explicit defensive reliance on legal advice. Litigants' implicit reliance can have the same effect.

In Maar v. Beall's, Inc., FLSA defendant Beall's contended that any employee miscalculations were "not willful, and made in a good faith attempt to comply with the law." Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017). Answering interrogatories about one of its defenses, Beall's noted that it "'consulted with legal counsel regarding such classification.'" Id. at *5 (emphasis and internal citation omitted). The court concluded that Beall's waived its privilege protection "by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification." Id. at *11. The court even ordered Beall's to produce its lawyer to be deposed "concerning the substance of advice the company received from legal counsel as to the classification of Area Managers." Id. at *12. Beall's argued that the court's draconian standard would give FLSA plaintiffs "automatic access" to companies' legal advice whenever they assert a "good faith" defense. Id. at *11-12. The court rejected what it called Beall's "dire pronouncement" -- explaining that companies "can always deny the element of a plaintiff's claim alleging a certain mental state 'without affirmatively asserting' a good faith belief in an act's legality." Id. at *12 (citation omitted). The court did not explain how that approach would work.

Corporations and their lawyers must remember the scope of any explicit "advice of counsel" defense, and the less obvious danger of implicitly relying on their good faith attempt to comply with the law.

Case Date	Jurisdiction	State	Cite Checked
2017-02-28	Federal	FL

Comment:

key case

Chapter: 28.1102

Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-Middlebrooks/Lynch, 2017 U.S. Dist. LEXIS 29016 (S.D. Fla. Feb. 28, 2017)

(finding that defendant waived its attorney-client privilege protection by relying on its good faith attempt to comply with the law; "Beall's Answer denies that the company erred in its AM classification . . . but the Third and Fifth Affirmative Defenses also stress that if it did, any such error was, respectively, not willful and made in a good faith attempt to comply with the law. . . . Whether Beall's classification of AMs as exempt employees was willful is a material 'question of law and fact,' . . . because the running of the statute of limitations and availability of liquidated damages both turn on the state of mind of Beall's officials."; "As to the Fifth Defense, Beall's repeated the same answer but added at the end of the sentence that Beall's 'consulted with legal counsel regarding such classification.'"; "There is one material point in dispute: whether Beall's impliedly waived the attorney-client privilege by putting its state of mind directly at issue."; "Plaintiffs contend that Beall's implicated the attorney-client relationship when it asserted the affirmative defense of good faith."; "Beall's waived its attorney-client privilege with respect to the documents in question by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification."; "Beall's warns that a ruling in favor of Plaintiffs raises the specter of plaintiffs receiving automatic access to the substance of an attorney's advice to her clients when a party asserts a good faith defense. But Beall's dire pronouncement need not come to fruition because it is within the power of the holder of the privilege to make or omit a waiving statement. As Cox [Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1417-20 (11th Cir. 1994)] noted, a defendant can always deny the element of a plaintiff's claim alleging a certain mental state "without affirmatively asserting" a good faith belief in an act's legality.")

Case Date	Jurisdiction	State	Cite Checked
2017-02-28	Federal	FL

Chapter: 28.1102

Case Name: In re Beltway Law Group, LLP, Case No. 14-00380, (Chapter 7), 2016 Bankr. LEXIS 3345 (D.C. Bankr. Sept. 14, 2016)

(inexplicably holding that asserting an advice of counsel defense does not by itself trigger a waiver, but instead that a waiver occurs only upon the disclosure of privileged communications; "Ms. Ray [the document subpoena] responded to this allegation by stating: 'DISPUTED: To show unlawful conversion, one must show intent.' "(a) At all times. Mrs. Ray was acting upon the advice of counsel and in a manner consistent with established procedure and prior approval of Movant."': "Again, invoking the defense without disclosing a confidential communication does not constitute a waiver of the attorney-client privilege. To demonstrate waiver, Beltway would need to point to a disclosure on Ms. Ray's part that sought to lend evidentiary support to Ms. Ray's contention that her reliance on the advice of counsel validates her argument that she was acting in good faith. On this record, all we have is an allegation of reliance without Ms. Ray divulging the content of what she relied upon. Such a defense in the arbitration proceeding would necessarily fail if not supported by information regarding the substance of the advice Ms. Ray relied upon, and establishing the substance of the advice would require the disclosure of confidential communications. On the limited record before me, and without having any evidence that a confidential communication was disclosed in support of the asserted defense, I cannot find that this constituted waiver.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-14	Federal	DC

Chapter: 28.1102

Case Name: In re Beltway Law Group, LLP, Case No. 14-00380, (Chapter 7), 2016 Bankr. LEXIS 3345 (D.C. Bankr. Sept. 14, 2016)

(inexplicably holding that asserting an advice of counsel defense does not by itself trigger a waiver, but instead that a waiver occurs only upon the disclosure of privileged communications; "The second instance of Ms. Ray [the document subpoena] referring to her reliance on the advice of counsel is found on page 45 of her response to the summary judgment motion filed in the arbitration proceeding in which she states that 'Mrs. Ray retained Counsel and ultimately, upon the advice of counsel, initiated Arbitration . . . .' This reference to Ms. Ray's reliance on the advice of counsel does not include the disclosure of a confidential communication, and the statement does not appear to have been asserted defensively. Rather, the reference to reliance on the advice of counsel appears to be little more than window dressing to Ms. Ray's description of what transpired, to wit, she initiated the arbitration. Obviously Ms. Ray relied upon the advice of counsel in initiating the arbitration as is evidenced by counsel's filing the arbitration on Ms. Ray's behalf. The court rejects the argument that this constitutes a waiver of the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-14	Federal	DC

Chapter: 28.1102

Case Name: In re Beltway Law Group, LLP, Case No. 14-00380, (Chapter 7), 2016 Bankr. LEXIS 3345 (D.C. Bankr. Sept. 14, 2016)

(inexplicably holding that asserting an advice of counsel defense does not by itself trigger a waiver, but instead that a waiver occurs only upon the disclosure of privileged communications; "It is well-established that a litigant can waive the attorney-client privilege if she raises advice of counsel as a defense to liability. The waiver, itself, however, is triggered not by the assertion of the defense, but rather by the disclosure of an otherwise privileged communication in support of the asserted defense."; "If, during the course of the arbitration, Ms. Ray [the document subpoena] disclosed the content of any confidential communications between her and her attorneys, either defensively or to establish a claim against her adversary in the arbitration, she has waived the attorney client privilege as to all other communications on that same subject."; "It is thus necessary to evaluate each instance Ms. Ray allegedly relied upon advice of counsel in defense of her position in the arbitration, and consider whether, in asserting that defense, she disclosed the content of a privileged communication. If I find that she did disclose a confidential communication, I must then determine the subject matter to which it relates and whether the documents listed on Ms. Ray's privilege log and submitted to this court for in camera review fall within the scope of that waiver.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-14	Federal	DC

Chapter: 28.1102

Case Name: Grand Canyon Skywalk Development LLC v. Cieslak, Case Nos.: 2:15-cv-01189-JAD-HWF2:13-cv-00596-JAD-GWF, 2015 U.S. Dist. LEXIS 107457 (D. Nev. Aug. 13, 2015)

("The Tribe's refusal to waive the privilege under these circumstances is likely to be prejudicial to Scutari & Cieslak. Scutari & Cieslak should not be permitted to rely on the advice of counsel defense if Plaintiffs are prevented from exploring the legal advice that was allegedly provided. There may, however, be an issue whether the Tribe has waived its attorney-client privilege in this matter by failing to assert it in a timely manner."; "The factual record is insufficient at this point to support a finding that the Tribe waived its attorney-client or work-product privileges by failing to assert them in a timely manner.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-13	Federal	NV

Chapter: 28.1102

Case Name: Cue, Inc. v. GM LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)

(holding that General Motors did not waive privilege protection by mentioning in a pleading its intent to rely on advice of counsel, because GM disclaimed any intent to do so at trial; "In its opposition to Cue's motion to compel, GM provided a list of six facts on which it intends to rely to demonstrate its lack of bad faith in selecting the CADILLAC CUE mark. . . . One of those facts consists of evidence that '[t]he legal liaison [Mr. Merrill] conveyed to the ad hoc committee that the legal department gave an 'okay' to proceed with using the name CADILLAC CUE[.]'. . . During oral argument on the motion to compel, Cue seized on this statement to argue that GM has waived its claim of privilege over the April 3, 2011 email by placing its attorney's advice directly at issue. While this court agrees that GM's use of that fact would place its counsel's advice at issue in the case, it finds that GM's statement is at odds with its representations to the court that it did not intend to rely on advice of its counsel, and its otherwise consistent efforts to preserve the privilege over email communications involving such advice. Therefore, this court will deny the motion without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-10	Federal	MA

Chapter: 28.1102

Case Name: Scherer v. Steel Creek Property Owners Assoc., 1:13cv121, 2015 U.S. Dist. LEXIS 56196 (W.D.N.C. April 29, 2015)

(analyzing the scope of an implied waiver based on defendant's reliance on advice of counsel; allowing defendant to amend its answer and withdraw an advice of counsel defense on certain matters, but requiring production of otherwise privileged documents relating to the remaining advice of counsel defense; "As a threshold matter, the Court's prior Order granting Defendants leave to amend their Answers was not an invitation for Defendants to take back the assertion of the advice of counsel defense as to areas where Defendants had specifically asserted it and acknowledge to this Court that they had waived the attorney client privilege as to the subject matter of these areas. Rather, the Court was allowing Defendants the opportunity to avoid the unintended consequences of waiving the attorney client privilege as to the subject matter of all the claims in Plaintiffs' Amended Complaint because of the broad language Defendants included in their Answers. Consistent with the Court's prior Orders, the Court finds that Defendants have waived the attorney client privilege as to the following subject matters as a result of their prior, specific assertion of the advice of counsel defense in these proceedings: (1) The charging of retroactive assessments based on 16 platted lots instead of four; (2) The calculation of future assessments; (3) The interpretation of the Covenants; (4) The charging of 18% interest; (5) The rejection of the construction plans or drawings; and (6) The initial refusal to comply with the Plaintiffs' requests for inspection.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-29	Federal	NC

Chapter: 28.1102

Case Name: Williams v. Allstate Fire and Casualty Ins. Co., Case No. Civ-13-828-D, 2015 U.S. Dist. LEXIS 46223 (W.D. Okla. April 9, 2015)

(analyzing privilege protection in a third party bad faith insurance case; "In this case, Plaintiff has taken affirmative steps in filing this litigation and asserting a claim that makes the substance of Mr. Cunningham's advice relevant to the case. Plaintiff has squarely placed at issue Mr. Cunningham's handling of his med-pay claim and his personal injury case. Both Plaintiff and Mr. Cunningham have testified about their communications, the attorney's advice, and strategic considerations that impacted the med-pay claim. Plaintiff cannot now withhold documentary evidence related to these matters. Application of the privilege would deny Defendant access to the information it needs to defend against the bad faith claim. Therefore, the Court finds that an at-issue waiver of the privilege has occurred.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-09	Federal	OK

Chapter: 28.1102

Case Name: United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 376, 377, 378, 377 n.8, 377, 378 (4th Cir. 2015)

(affirming a new trial after a jury awarded the government $237,000,000 in an action against a hospital for a False Claims Act violation; analyzing whether the court should have admitted evidence that the hospital's lawyer warned the hospital that its practice might violate the law; "Martin [hospital's COO] did vaguely recall that Hewson [Tuomey's outside lawyer] had told him that McAnaney [hospital's lawyer] said the proposed arrangements would raise 'red flags' with the government."; noting that the government had lost an earlier case against the hospital; "The district court has now presided over two trials in this case, with strikingly disparate results. In the first trial, the jury did not hear from McAnaney and found for Tuomey [Defendant hospital] on the FCA claim. When the case was retried, McAnaney was allowed to testify and the jury found for the government. Coincidence? We think not. Rather, we believe that these results bespeak the importance of what the jury in the first trial was not allowed to consider."; "[W]e affirm the district court's order granting a new trial on the alternative ground urged by the government -- that it was prejudiced by the exclusion of McAnaney's testimony and other related evidence of his warnings to Tuomey regarding the legal peril that the employment contracts posed."; "The jury also knew that Hewson was generally aware of McAnaney's views on the employment contracts, but that he dismissed them as not credible because, in his view, Drakeford [surgeon, plaintiff] was deliberately seeking to cherry pick a legal opinion that would undermine the entire deal."; "[T]he sum of the evidence at the first trial regarding McAneney was that Tuomey (1) was aware that McAnaney had unspecified concerns about the employment contracts; (2) refused to allow McAnaney to relay his concerns in writing; and (3) later terminated McAnaney's joint representation. Yet, under the FCA, the government had to prove that Tuomey knew of, was deliberately ignorant of, or recklessly disregarded the falsity of its claims (i.e., that its claims violated the Stark Law). We think that McAnaney's specific warnings to Tuomey regarding the dangers posed by the contracts were critical to making this showing."; "[T]he record unambiguously shows that Drakeford and Tuomey hired McAnaney to advise them of the Stark Law risks posed by the employment contracts."; "We note that Tuomey waived the attorney-client privilege with respect to its communications with McAnaney when it asserted the advice-of-counsel defense."; "We think the importance of McAnaney's testimony to the government's case is self-evident. Indeed, it is difficult to imagine any more probative and compelling evidence regarding Tuomey's intent than the testimony of a lawyer hired by Tuomey, who was an undisputed subject matter expert on the intricacies of the Stark Law, and who warned Tuomey in graphic detail of the thin legal ice on which it was treading with respect to the employment contracts."; "In sum, Tuomey has offered no good reason why the jury in the first trial was not allowed to hear from McAnaney. And we agree with the government that this evidence was critical to its ability to satisfy its burden to prove that Tuomey acted with the requisite intent under the FCA. We therefore affirm the district court's order granting a new trial on the FCA claim.")

Case Date	Jurisdiction	State	Cite Checked
2015-01-01	Federal	DC	B 7/16

Chapter: 28.1102

Case Name: Seneca Ins. Co., Inc. v. Western Claims, Inc., Nos. 13-6284 and 14-6002, 2014 U.S. App. LEXIS 24172 (10th Cir. Dec. 22, 2014)

("Seneca's officers -- generally did not rely on their own reasons for settling with Route 66 for $1 million. Instead, they chose to rely on 'advice of counsel' to justify the reasonableness of the settlement."; "Here, Seneca not only sued Western Claims, it expressly relied on 'advice of counsel' as a reason -- if not the primary reason -- for settling the Route 66 lawsuit for $1 million.")

Case Date	Jurisdiction	State	Cite Checked
2014-12-22	Federal

Chapter: 28.1102

Case Name: In re Icenhower v. Diaz-Barba, No. 12-56329, No. 12-56418, 2014 U.S. App. LEXIS 12033 (9th Cir. June 26, 2014)

(finding that an advice counsel defense resulted in a waiver)

Case Date	Jurisdiction	State	Cite Checked
2014-06-26	Federal

Chapter: 28.1102

Case Name: Teal Bay Alliances, Inc. v. Southbound One, Inc., Case No. MJG-13-2180, 2014 U.S. Dist. LEXIS 55378 (D. Md. April 21, 2014)

("Until Southbound asserts that it will rely on the advice-of-counsel defense with respect to advice it received from its litigation counsel, this communication remains protected by the attorney-client privilege and the work-product doctrine.")

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

Chapter: 28.1102

Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 50828 (D. Idaho April 11, 2014)

("It would be patently unfair for a party to assert that they relied upon the advice of counsel, yet deprive the opponent of the opportunity to understand why the advice was given, what other alternatives were looked at, why certain advice was rejected, and how the advice was interrelated to other business decisions.")

Case Date	Jurisdiction	State	Cite Checked
2014-04-11	Federal	ID

Chapter: 28.1102

**Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *12 (E.D. Va. Dec. 3, 2012)**

("Such waiver may occur if the client places the attorney-client relationship in issue, for example, by affirmatively invoking a defense of good faith reliance on advice of counsel. Rhone-Poulenc Rorer v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) (citations omitted); see also United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) ('Selective disclosure for tactical purposes waives the attorney-client privilege.').")

Case Date	Jurisdiction	State	Cite Checked
2012-12-03	Federal	VA

Chapter: 28.1102

Case Name: In re McDowell, 483 B.R. 472, 491 (Bankr. S.D. Tex. 2012))

("In the bankruptcy context, voluntary waiver has been found where a debtor relies on advice of counsel as a defense or where the debtor has expressly disclosed what his counsel communicated to him.")

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

Chapter: 28.1102

**Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *12 (W.D. Va. June 15, 2011)**

("Such conduct may include asserting claims or defenses that put an attorney's advice at issue for example, by asserting reliance on counsel as an affirmative defense.")

Case Date	Jurisdiction	State	Cite Checked
2011-06-15	Federal	VA

Chapter: 28.1102

**Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *12 (W.D. Va. June 15, 2011)**

("'A client can waive an attorney-client privilege expressly or through his own conduct.' Hanson v. U.S. Agency for Int'l Dev., 372 F.3d 286, 294 (4th Cir. 2004). Such conduct may include asserting claims or defenses that put an attorney's advice at issue for example, by asserting reliance on counsel as an affirmative defense. Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994).")

Case Date	Jurisdiction	State	Cite Checked
2011-06-15	Federal	VA

Chapter: 28.1102

Case Name: 7600 Ltd. P'ship v. QuesTech, Inc., 41 Va. Cir. 60, 61-63 (Va. Cir. Ct. 1996)

(finding that a party's "advice of counsel" defense impliedly waived the privilege covering the lawyer's description of work in the billing statement and fees paid)

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

Chapter: 28.1102

Case Name: Luthman v. GEICO, 40 Va. Cir. 404, 406 (Va. Cir. Ct. 1996)

(finding that a party had impliedly waived the attorney-client privilege by asserting an "advice of counsel" defense and placing the "opinions and impressions" of its lawyers "directly at issue")

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

Chapter: 28.1103

Case Name: Aboudara v. City of Santa Rosa, Case No. 17-cv-01661-HSG (JSC), 2018 U.S. Dist. LEXIS 10033 (N.D. Cal. Jan. 22, 2018)

(allowing a defendant to withdraw its reliance on legal advice to demonstrate its "good faith" in an FLSA case, thus eliminating any implied waiver risk; "Defendant's willfulness is an issue in this case. If Plaintiff proves Defendant violated the FLSA and that the violation was willful, that finding lengthens the statute of limitations and requires an award of liquidated damages. 29 U.S.C. § 255(a); 29 U.S.C. § 260. Accordingly, in its Amended Answer Defendant raises an affirmative defense of good faith and specifically alleges that it acted in good faith because, among other things, 'Defendant consulted with legal counsel regarding its FLSA compliance.' (Dkt. No. 31 at 8:4-5.) There is no question that this reliance on the advice of legal counsel waives the privilege as to that advice."; "Since the filing of its Amended Answer, however, Defendant has had a change of heart and has decided not to rely on any advice of counsel. When Ms. Keeton was deposed, Defendant prohibited her from answering any questions as to advice she received and Defendant has refused to produce any documents reflecting such advice. It asserts that it has offered to stipulate that it will not in any way rely on advice of counsel in support of its good faith defense and will move to amend its answer if need be. Plaintiff does not dispute this offer, but instead maintains that Defendant's good faith defense in itself waives the privilege. The Court disagrees."; "To accept Plaintiff's argument would mean that any time a defendant disputes a plaintiff's willfulness allegation the plaintiff would be entitled to discovery regarding any legal advice the defendant received on the relevant issue. The defendant would therefore, in effect, be required to admit to willfulness (assuming an FLSA violation is found) if it wanted to maintain its attorney-client privilege."; "Such a consequence would discourage parties from obtaining legal advice in the first instance, and thus run contrary to the very purpose of the attorney-client privilege. . . . To the extent the out-of-circuit district court cases cited by Plaintiff hold to the contrary, this Court simply disagrees. The Ninth Circuit has never held that merely asserting good faith waives the attorney-client privilege as to communications with counsel regarding the topic at issue. This Court, too, declines to do so."; "The outcome of this motion might be different if Defendant had followed up on its affirmative defense with reliance on the fact that it sought advice of counsel in its discovery responses. But Plaintiff does not point to any such reliance and does not otherwise identify how it would be prejudiced by allowing Defendant to withdraw its statement in its Amended Answer. Of course, Defendant is now bound by its current representation and may not in any way rely on the fact that legal advice was sought.")

Case Date	Jurisdiction	State	Cite Checked
2018-01-22	Federal	CA

Comment:

key case

Chapter: 28.1103

Case Name: In re Daya Ram Chandar v. Meyer Wilson Co., LPA, Case No. 11-37360-B-7, Adversary No. 17-2057, DC No. BHS-1, 2017 Bankr. LEXIS 3903 (E.D. Cal. Nov. 13, 2017)

("Consistent with Bittaker, the court would typically give defendants the option of retaining the 'advice of counsel' defense and producing documents withheld under the attorney-client and work-product privileges or amending the answer to eliminate the defense and preclude the use of such documents in this adversary proceeding. However, doing so here would be futile because defendants have also failed to establish an additional element necessary for both privileges to apply in the first instance.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-13	Federal	CA

Chapter: 28.1103

Case Name: Secretary U.S. Dept. of Labor v. Am. Future Sys., Inc., No. 16-2685, 2017 U.S. App. LEXIS 19991 (3rd Cir. Oct. 13, 2017)

("In assessing liquidated damages, the District Court noted that Satell sought advice of counsel, but he refused to waive the attorney-client privilege and disclose this advice to the court. Satell's testimony placed the court in an untenable position of having to assume that counsel's advice was consistent with the adopted policy while ignoring the fact that Satell refused to tell the court what counsel advised. The District Court concluded that, given the unwillingness to share what it was told by counsel, 'it is entirely possible that Defendants implemented the new break policy in 2009, despite being told by one or more of its lawyers that the policy violated the FLSA. It would be an absurd result to classify such conduct as 'good faith' . . . .'"; "Progressive argues that the District Court abused its discretion in finding that it did not act in good faith when setting its break policy simply because Progressive refused to waive its attorney-client privilege. It claims that the District Court's decision punishes Progressive for seeking legal advice that was not essential to a good-faith determination, as employers are not required to seek legal advice to demonstrate good faith. Thus, according to Progressive, the District Court's decision will discourage open and confident relationships between clients and attorneys. That may be so, but we, like Judge Restrepo, are incredulous that an employer in this situation would decline to share the legal advice it received when the issue of good faith is raised, and we will not preclude a court from considering this in its thought process.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-13	Federal

Chapter: 28.1103

Case Name: Secretary U.S. Dept. of Labor v. Am. Future Sys., Inc., No. 16-2685, 2017 U.S. App. LEXIS 19991 (3rd Cir. Oct. 13, 2017)

(in an FLSA case; of liquidated damages based in part on defendant's refusal to waive its attorney-client privilege; "In assessing liquidated damages, the District Court noted that Satell sought advice of counsel, but he refused to waive the attorney-client privilege and disclose this advice to the court. Satell's testimony placed the court in an untenable position of having to assume that counsel's advice was consistent with the adopted policy while ignoring the fact that Satell refused to tell the court what counsel advised. The District Court concluded that, given the unwillingness to share what it was told by counsel, 'it is entirely possible that Defendants implemented the new break policy in 2009, despite being told by one or more of its lawyers that the policy violated the FLSA. It would be an absurd result to classify such conduct as 'good faith' . . . .'"; "Progressive argues that the District Court abused its discretion in finding that it did not act in good faith when setting its break policy simply because Progressive refused to waive its attorney-client privilege. It claims that the District Court's decision punishes Progressive for seeking legal advice that was not essential to a good-faith determination, as employers are not required to seek legal advice to demonstrate good faith. Thus, according to Progressive, the District Court's decision will discourage open and confident relationships between clients and attorneys. That may be so, but we, like Judge Restrepo, are incredulous that an employer in this situation would decline to share the legal advice it received when the issue of good faith is raised, and we will not preclude a court from considering this in its thought process.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-13	Federal

Comment:

key case

Chapter: 28.1103

Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)

("The next 'issue injection' issue to consider is whether Defendants have expressly waived the attorney-client privilege by asserting certain affirmative defenses. Specifically, Defendants have asserted good faith affirmative defenses . . . and they have asserted that Plaintiffs were exempt from the FLSA's minimum wage and overtime compensation requirements . . . . But importantly, Defendants have never expressly stated that they are relying upon advice of counsel to support any defense in this case. An express reliance upon advice of counsel to support Defendants' affirmative defenses would waive the attorney-client privilege as to attorney-client communications related to such advice. However, Defendants are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case. In fact, they have specifically stated that they are not going to adduce any evidence or testimony about any advice of counsel Defendants received."; "The above cited relevant case law, when read carefully as a whole, puts cases into three general categories. First, the case law is in agreement that a mere denial of willfulness does not amount to issue injection which would impliedly waive the attorney-client privilege. Second, asserting an affirmative defense (such as good faith in an FLSA case) that explicitly states that a defendant relied on the advice of counsel, or refers to advice or consultation with counsel to support such affirmative defense, does amount to issue injection sufficient to waive the attorney-client privilege. Third, the more nuanced situation, which is similar to what we have here, is whether issue injection sufficient to waive the attorney-client privilege occurs when a defendant in an FLSA case asserts a good faith (or outside sales exemption) affirmative defense, but does not explicitly mention reliance on advice of counsel in that affirmative defense and further represents that it does not intend to rely on counsel's advice to support such defense. Courts seem to require something additional to find issue injection in this third category of cases.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-05	Federal	FL

Comment:

key case

Chapter: 28.1103

Case Name: Kasper v. AAC Holdings, Inc., Case No. 3:15-cv-00923, 2017 U.S. Dist. LEXIS 144949 (M.D. Tenn. Sept. 7, 2017)

("While Plaintiffs contend that Defendants are relying on an 'advice of counsel' defense in this matter, Defendants have consistently maintained otherwise. There is no such defense to be found in Defendants' Answer and Affirmative Defenses. . . . In response to Plaintiffs' Interrogatory that asks '[i]f you intend to assert reliance on the advice of counsel as a defense in this Action, identify the counsel and the advice You intend to rely upon,' Defendants answered: '[s]ubject to and without waiver of the General Objections set forth below, Defendants do not currently intend to assert reliance on the advice of counsel defense.'. . . Rather, they describe conversations between Mr. Greer [AAC lawyer] and third parties, which were not subject to attorney-client privilege by definition, and facts relayed by Mr. Greer to Defendants, not legal advice upon which Defendants claim to have relied. The Sixth Circuit has held that '[i]t is clear that when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged.'. . . Thus, Defendants' responses to these interrogatories neither revealed privileged information nor asserted an advice of counsel defense.")

Case Date	Jurisdiction	State	Cite Checked
2017-09-07	Federal	TN

Comment:

key case

Chapter: 28.1103

Case Name: In re Grand Jury Matter #3 John Doe, No. 15-2475, 2017 U.S. App. LEXIS 1498 (3rd Cir. Jan. 27, 2017)

("'The Government also contends this appeal is moot for an unrelated reason. It argues that Doe has waived attorney-client protections because his pretrial memorandum indicates that he might rely on the advice-of-counsel defense. . . . We disagree. That Doe's trial strategy has changed given the development of this case does not mean he has waived the issues he continues to challenge on appeal.'")

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

Chapter: 28.1103

**Case Name: Johnson v. Zurich Am. Ins. Co., Case No. 14-cv-1095-MJR-SCW, 2016 U.S. Dist. LEXIS 10754, at *3 (S.D. Ill. Jan. 28, 2016)**

("The Court first took up the issue of Plaintiff's assertion that Triple Crown [defendant] signaled that it intends to put forward a defense it was relying in good faith on the advice of counsel and/or Hylant [insured's broker]. If that were the case then the Court would likely agree that Triple Crown would have to waive its claim of attorney client privilege for the communications at issue. But at the hearing, counsel for Triple Crown unequivocally stated on the record that it would not rely on such a defense. Given that representation the Court determined it need not further consider Plaintiff's arguments on this point.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-28	Federal	IL	B 7/16

Chapter: 28.1103

Case Name: Scherer v. Steel Creek Property Owners Assoc., 1:13cv121, 2015 U.S. Dist. LEXIS 56196 (W.D.N.C. April 29, 2015)

(analyzing the scope of an implied waiver based on defendant's reliance on advice of counsel; allowing defendant to amend its answer and withdraw an advice of counsel defense on certain matters, but requiring production of otherwise privileged documents relating to the remaining advice of counsel defense; "As a threshold matter, the Court's prior Order granting Defendants leave to amend their Answers was not an invitation for Defendants to take back the assertion of the advice of counsel defense as to areas where Defendants had specifically asserted it and acknowledge to this Court that they had waived the attorney client privilege as to the subject matter of these areas. Rather, the Court was allowing Defendants the opportunity to avoid the unintended consequences of waiving the attorney client privilege as to the subject matter of all the claims in Plaintiffs' Amended Complaint because of the broad language Defendants included in their Answers. Consistent with the Court's prior Orders, the Court finds that Defendants have waived the attorney client privilege as to the following subject matters as a result of their prior, specific assertion of the advice of counsel defense in these proceedings: (1) The charging of retroactive assessments based on 16 platted lots instead of four; (2) The calculation of future assessments; (3) The interpretation of the Covenants; (4) The charging of 18% interest; (5) The rejection of the construction plans or drawings; and (6) The initial refusal to comply with the Plaintiffs' requests for inspection.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-29	Federal	NC

Chapter: 28.1103

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

(finding that the defendant did not impliedly waive its privilege, because it explicitly denied any intent to rely on privileged communications; "Here, Defendants have not raised the affirmative defense that they relied on the Borello Memo in deciding to terminate Bauer's employment. Defendants have repeatedly and unequivocally represented that they will not introduce into evidence either the existence of the Borello Memo or the content of any privileged communication in defense their claims. Indeed, it was Bauer, rather than Defendants, who claims that the Borello Memo would affect Defendants' defense. But because Defendants have not taken, and have represented that they will not take, any affirmative steps to place the content of the confidential communication into the litigation, they have not waived the attorney-client privilege with respect to those documents."; "Defendants have not yet (and contend that they will not) use the advice of counsel as a defense to any of Bauer's claims. Until they do so, those communications are protected by the attorney-client privilege.")

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

Chapter: 28.1202

Case Name: Regeneron Pharms., Inc. v. Merus N.V., 14-cv-1650 (KBF), 2018 U.S. Dist. LEXIS 49513 (S.D.N.Y. March 26, 2018)

(holding that a patent litigant's reliance on a lawyer's affidavit triggered a broad subject matter waiver; "Thus, on the day that Regeneron disclosed Dr. Smeland's [Regeneron's in-house lawyer] trial affidavit, it waived the privilege as to the subject matter of each of the topics the affidavit addressed. This was intentional and permanent. As described above, this included his views on meaning and scope of claim language, understanding of the technology, materiality (including cumulativeness) of each of the Withheld References. Many of his documents are to or from Dr. Murphy, while others involve Dr. Jones. And as noted below, this process revealed a host of withheld non-privileged documents. Accordingly, the waiver rippled throughout the case."; "The problem, of course, was how this position at trial interacted with Regeneron's discovery obligations. In order to take this position at trial, Regeneron was obligated to have previously produced the documents from Dr. Smeland's files that would have allowed Merus to test his various assertions. This would have substantially altered a significant swath of discovery, including Dr. Smeland's deposition, the deposition of others with whom he interacted, expert discovery, and on. Regeneron did not fulfill its discovery obligations in this regard. That is clear both from a review of the log and the Court's in camera review of documents on the log. There are dozens of documents on Regeneron's privilege log which are from Dr. Smeland's files, and which concern these very topics."; "The Court conducted an in camera review of the documents on the log. Regeneron was, after all, asserting it had done all it was obligated to do. Merus pointed to seemingly inconsistent entries on the log. As it turned out, the log was 'Pandora's Box.' The Court's review revealed that Merus was certainly correct -- there were dozens of 'Smeland documents' as to which the privilege had now been waived."; "But the in camera review revealed far more. It revealed additional serious discovery issues: a number of non-privileged documents related to topics at issue throughout the litigation had been withheld on the basis of privilege, and other documents that should have been produced pursuant to the order regarding the Jones Memo issue had not in fact been disclosed. In all, there were three categories of documents that presented serious concerns of discovery misconduct: (1) Non-privileged documents that were not produced and instead have resided throughout this case on the privilege log (e.g., numerous Excel spreadsheets with scientific test results, third party filings to the PTO, fact statements by non-lawyers not seeking legal advice, etc.). (2) Previously privileged documents as to which Regeneron affirmatively waived the privilege and that this Court ordered be produced pursuant to its February 25, 2015 order. (ECF No. 272.) (3) Documents on the privilege log relating to precisely those topics waived by Regeneron on May 29, 2015 when it filed its trial declarations."; "The Court determined that failure to make full and adequate production of documents in the first two categories during the period of fact discovery itself and independently of the trial misconduct warranted serious sanction. The production failure is undoubtedly larger than the few exemplars revealed by the Court's own review. Given the many thousands of documents on Regeneron's privilege log, the Court could not know the full extent of the problem.")

Case Date	Jurisdiction	State	Cite Checked
2018-03-26	Federal	NY

Chapter: 28.1202

Case Name: In re Alcon Laboratories, Inc., 2018-115 (U.S. App. Feb. 14, 2018)

(holding that defendant's advice of counsel defense in a patent case triggered a subject matter waiver; "In June 2015, Johns Hopkins filed suit against Alcon alleging willful infringement of U.S. Patent No. 7,077,848 ('the '848 patent'). In response, Alcon asserted an advice-of-counsel defense and produced two opinion letters, from 2006 and 2007. Alcon also designated its in-house counsel as the only trial witness as to its mental state. Johns Hopkins filed a motion to compel Alcon to produce all documents and communications concerning the subject matter of the opinion letters. Alcon objected to Johns Hopkins' request and produced only a log of privileged documents."; "[T]he district court judge . . . ordered production of 'all documents and communications, whether listed on defendants' privilege log or not, other than communications with trial counsel, that address the '848 patent's validity or its infringement by defendants' products.'. . . Alcon's petition for mandamus followed.")

Case Date	Jurisdiction	State	Cite Checked
2018-02-14	Federal

Chapter: 28.1202

Case Name: Doe v. Hamilton Cty. Bd. of Educ., Case No. 1:16-CV-373 (lead), Case No. 1:16-CV-497, 2018 U.S. Dist. LEXIS 11117 (E.D. Tenn. Jan. 12, 2018)

(analyzing the waiver effect of a school board releasing the results of an investigation into alleged sexual assaults by basketball team members; finding that the disclosure triggered a subject matter waiver that included internal communications between school board representatives and the school board's lawyer; "Similarly, when the Board released the Bullard Report to the public, and expressed an intention to rely upon the investigation and report to defend the lawsuits against it, it waived the protection afforded under the work product doctrine as to both fact and opinion work product found in any documents prepared by Attorney Bullard (including draft reports) and in any communications to or from Attorney Bullard which directly relate to her investigation and preparation of the Bullard Report.")

Case Date	Jurisdiction	State	Cite Checked
2018-01-12	Federal	TN

Chapter: 28.1202

Case Name: In re United Shore Fin. Servs., LLC, No. 17-2290, 2018 U.S. App. LEXIS 138 (6th Circuit App. Jan. 3, 2018)

(analyzing privilege issues in a data breach investigation case; denying defendant's petition for writ of mandamus allowing them to withhold documents relating to its affirmative defense pointing to its lawyer's investigation and conclusion that another defendant caused the breach; "Plaintiff Al Leibovic filed a putative class action against United Shore and Xerox Management Services, Inc. ('XMS') arising from intrusions into an XMS program on which United Shore stored potential borrowers' personal identification information. United Shore asserted several affirmative defenses, including that Leibovic and the class claims were barred based on XMS's acts or failure to act."; "In response to XMS's discovery requests, United Shore stated that the firm it retained through counsel to investigate and prevent future intrusions had concluded that XMS's actions caused the intrusions. United Shore, however, withheld hundreds of documents relevant to the investigation, citing attorney-client privilege. XMS moved to compel United Shore to produce the withheld documents, alleging that it implicitly waived the attorney-client privilege by citing to the investigation's conclusions. The district court granted XMS's motion and denied United Shore's subsequent motion to clarify its order."; "The district court correctly concluded that the attorney-client privilege can be implicitly waived. . . . Here, United Shore cited XMS's action or lack of action as an affirmative defense. And it commissioned an investigation that concluded that XMS was at fault. Thus, it attempted to prove a defense by disclosing or describing the attorney-client communications. See In re G-I-Holdings, Inc., 218 F.R.D. 428, 433 (D.N.J. 2003). Once waived, the privilege is waived with respect to all communications involving the same subject matter. Id. The district court did not clearly err in compelling disclosure of the privileged documents.")

Case Date	Jurisdiction	State	Cite Checked
2018-01-03	Federal

Comment:

key case

Chapter: 28.1202

Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)

(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date	Jurisdiction	State	Cite Checked
2017-08-28	Federal	MI

Chapter: 28.1202

Case Name: Leibovic v. United Shore Financial Services, LLC, Case No. 15-12639, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017)

(analyzing protection for an internal investigation after a software system intrusion; finding that the company created a subject matter waiver by disclosing the third party investigator's conclusions; "The second unresolved issue is raised in XMS's motion to compel against United Shore. . . . "; "In the aftermath of the alleged intrusions to XMS's software system, United Shore's counsel commissioned Navigant -- a third-party -- to conduct an investigation."; "XMS's Interrogatory No. 8 asked United Shore to state with particularity all investigations, notifications and remedial efforts taken in response to any unauthorized use of its accounts -- in relation to the alleged intrusions to XMS's database. In response, United Shore indicated that Navigant conducted an investigation, and it also provided Navigant's conclusions from the investigation. However, United Shore withheld a significant amount of documents related to Navigant's investigation on the basis that they were protected by attorney-client privilege, since its counsel had commissioned the investigation."; "XMS says United Shore is engaging in impermissible selective waiver because it is seeking the benefit of using the results of the investigation, but withholding information about what the investigation considered and how the investigation was conducted. It further says that by including Navigant's conclusions in its response to the Interrogatory, it was using the results of the investigation offensively, which waived the privilege."; "United Shore says it was merely responding to the Interrogatory with factual information related to its retention of Navigant and the existence of Navigant's investigation."; "Although United Shore was responding to XMS's Interrogatory regarding investigations it had commissioned, its response went beyond providing factual information regarding the existence of the investigation and retention of Navigant. United Shore's response also included details regarding Navigant's conclusions. This exceeded the scope of the Interrogatory and -- as XMS contends -- United Shore fails to explain 'why the conclusions of a supposedly privileged investigation commissioned by counsel would not themselves be privileged."; "Because United Shore disclosed the privileged conclusions of Navigant's investigations, and because it appears United Shore intends to use the findings of the investigation to prove the cause of the intrusion of XMS's database, XMS is entitled to see documents related to how the investigation was conducted and what was considered during the investigation.")

Case Date	Jurisdiction	State	Cite Checked
2017-08-28	Federal	MI

Chapter: 28.1202

Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)

July 26, 2017 (PRIVILEGE POINT)

"Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part II"

Last week's Privilege Point explained that Cadwalader Wickersham & Taft's client Washington Metropolitan Transit Authority (WMATA) lost a work product claim for 51 witness interviews the firm prepared during its internal investigation into self-dealing at WMATA. Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017).

Unlike the court's focus on the investigation's primary business motivation in rejecting the work product claim, the court's privilege analysis found that WMATA waived its privilege protection. The court noted that WMATA publicly released the final Cadwalader report -- which "disclosed counsel's legal and factual conclusions," and "cite[d] extensively to the interview memoranda throughout the entirety of the document." Id. at *18-19. The court acknowledged a Cadwalader lawyer's declaration that the interview memoranda references "were intended only for use by Cadwalader" -- but noted that "WMATA failed to remove the references . . . from the version of the [Cadwalader] Report that was made available to the public." Id. at *19 n.1. The court also noted that WMATA "has also used the [Cadwalader] Report to its advantage in this litigation" – by "us[ing] the [Cadwalader] Report and facts disclosed in that report to support its claims and defenses." Id. at *19. The court therefore found a subject matter waiver, and ordered WMATA to produce all of Cadwalader's 51 witness interview memoranda except the portions which (1) "contain subjects not covered by the [Cadwalader] Report," and (2) "material and other comments, if any, as to a lawyer's mental impressions." Id. at *20.

Case Date	Jurisdiction	State	Cite Checked
2017-05-16	Federal	DC

Comment:

key case

Chapter: 28.1202

**Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017)**

May 17, 2017 (PRIVILEGE POINT)

"Privilege Implications of an Explicit or Implicit 'Advice of Counsel' Defense: Part II'"

Last week's Privilege Point described the normal broad subject matter waiver triggered by litigants' explicit defensive reliance on legal advice. Litigants' implicit reliance can have the same effect.

In Maar v. Beall's, Inc., FLSA defendant Beall's contended that any employee miscalculations were "not willful, and made in a good faith attempt to comply with the law." Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017). Answering interrogatories about one of its defenses, Beall's noted that it "'consulted with legal counsel regarding such classification.'" Id. at *5 (emphasis and internal citation omitted). The court concluded that Beall's waived its privilege protection "by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification." Id. at *11. The court even ordered Beall's to produce its lawyer to be deposed "concerning the substance of advice the company received from legal counsel as to the classification of Area Managers." Id. at *12. Beall's argued that the court's draconian standard would give FLSA plaintiffs "automatic access" to companies' legal advice whenever they assert a "good faith" defense. Id. at *11-12. The court rejected what it called Beall's "dire pronouncement" -- explaining that companies "can always deny the element of a plaintiff's claim alleging a certain mental state 'without affirmatively asserting' a good faith belief in an act's legality." Id. at *12 (citation omitted). The court did not explain how that approach would work.

Corporations and their lawyers must remember the scope of any explicit "advice of counsel" defense, and the less obvious danger of implicitly relying on their good faith attempt to comply with the law.

Case Date	Jurisdiction	State	Cite Checked
2017-02-28	Federal	FL

Comment:

key case

Chapter: 28.1202

Case Name: Attain Specialty Ins. Co. v. Reno Cab Company, Inc., Case No. 3:15-cv-00406-MMD-VPC, 2017 U.S. Dist. LEXIS 21484 (D. Nev. Feb. 15, 2017)

(finding that plaintiff waived privilege protection by relying on counsel's advice; "Here, Atain's representative testified that Atain's coverage counsel investigated Reno Cab's claim and made the decision to deny coverage based on coverage counsel's recommendation. Atain suggests that Reno Cab took Ms. Rock's testimony out of context, but Ms. Rock's deposition testimony is clear -- she relied on counsel to investigate Reno Cab's claim and denied coverage based on counsel's recommendations. . . . While Atain has not asserted advice of counsel as an affirmative defense, Atain's response to Reno Cab's bad faith claim implicitly raises advice of counsel. Under these circumstances, the Magistrate Judge did not commit clear error when she found implied waiver of the privilege and the attorney work product.")

Case Date	Jurisdiction	State	Cite Checked
2017-02-15	Federal	NV

Chapter: 28.1202

Case Name: Sprint Communications Co. L.P. v. Time Warner Cable, Inc., Case No. 11-2686-JWL, 2016 U.S. Dist. LEXIS 168693 (D. Kansas Dec. 6, 2016)

(finding the 'at issue' doctrine inapplicable because plaintiff Sprint put the advice at issue rather than the defendant having put it at issue; "The court declines to find implicit waiver under these circumstances -- i.e., where Sprint's summary judgment motion made specific reference to the state of mind of TWC's in-house counsel, and TWC offered, in a footnote in its opposition brief, its counsel's non-privileged legal conclusion to counter Sprint's assertion as to its counsel's understanding. To be clear, the court, like Sprint, does not interpret the 'affirmative act' requirement of Hearn so narrowly as to preclude a finding of waiver where the party asserting privilege is defending against, rather than moving for, summary judgment. Still, because Sprint's motion for summary judgment made a specific representation as to TWC's counsel's knowledge, the court does not find that TWC, in responding with its counsel's uncommunicated legal conclusion, has placed its privileged communications at issue by its own affirmative act."; "Here too, the court does not find TWC has put its privileged information at issue through its own affirmative act. At Block's deposition, Sprint elicited testimony about 'what [Block] did and what [he] concluded' after expressly agreeing that his 'answer to [the] question will not waive privilege.' The court declines to find waiver based on TWC's reference at summary judgment to Block's responsive testimony for the limited purpose for which it was offered.")

Case Date	Jurisdiction	State	Cite Checked
2016-12-06	Federal	KS

Chapter: 28.1202

Case Name: Sprint Communications Co. L.P. v. Time Warner Cable, Inc., Case No. 11-2686-JWL, 2016 U.S. Dist. LEXIS 168693 (D. Kansas Dec. 6, 2016)

(finding the 'at issue' doctrine inapplicable because plaintiff Sprint put the advice at issue rather than the defendant having put it at issue; "Sprint asserts TWC has effected at-issue waiver by its affirmative use of 'attorney-related evidence' at summary judgment. Sprint argues that the first and second Hearn prongs are satisfied because TWC placed its in-house counsel's beliefs at issue when it volunteered 'attorney beliefs about the legal rights between TWC and Sprint based on interpretation of contract and business dealings' to support the reliance element of TWC's equitable estoppel defense."; "However, the undersigned does agree with TWC's assertion that under this court's prior orders, none of the statements with which Sprint takes issue are privileged."; "First, the statements regarding Block's participation in the joint investigation and his simultaneous undertaking to educate himself on the 'unique history between TWC and Sprint' merely reveal facts, topics of discussion, and acts of counsel, none of which are privileged."; "Second, the statements referencing Block's general legal conclusion that TWC had the right to 'Go It Alone' do not reveal privileged information, insofar as those statements do not reveal any substantive communication or attorney analysis behind the conclusion.")

Case Date	Jurisdiction	State	Cite Checked
2016-12-06	Federal	KS

Chapter: 28.1202

Case Name: Father Doe v. Phillips Exeter Academy, Civ. No. 16-cv-396-JL, 2016 U.S. Dist. LEXIS 141877 (D.N.H. Oct. 13, 2016)

(finding that defendant Phillips Exeter Academy could not successfully claim privilege protection for a lawyer's investigation into possible sexual misconduct by a student; noting that defendant called the lawyer an "independent investigator," which meant that the lawyer was not assisting the defendant's lawyer in providing legal advice; also finding an implied waiver because the defendant relied on the investigation report in disciplining a student; also finding that defendant waived any possible privilege protection by disclosing portions of the investigation report to parents; inexplicably failing to deal with the work product doctrine; "After weighing the facts and circumstances of this case, the court concludes that PEA has waived any privilege that may have attached to Attorney McGintee's reports. First, a party who puts the subject matter of attorney-client communications at issue in litigation waives the privilege by implication. . . . PEA has done so here by asserting its reliance on the reports as, at least in part, its basis for disciplining John Doe. According to Dean Mischke, PEA placed John on Dean's Leave based, at least in part, 'on the findings of the investigation' and PEA's review thereof. . . . Upon receiving the deans' recommendations, Principal MacFarlane 'determined that it would be in the best interest of all parties involved for John Doe to be withdrawn from PEA' after reviewing, and on the basis of, among other considerations, Attorney McGintee's reports. . . . The reports are thus, if not central, certainly relevant to one of the issues raised in this litigation: whether PEA violated a contractual agreement through its decision-making process with respect to John Doe's discipline. Having injected the reports' contents into the litigation, PEA waived the privilege. . . . And because this waiver involves 'a disclosure made in the course of a judicial proceeding,' it extends to the subject matter of the reports, not merely the documents themselves. Id.")

Case Date	Jurisdiction	State	Cite Checked
2016-10-13	Federal	NH

Chapter: 28.1202

Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2016 U.S. Dist. LEXIS 134010 (N.D. Ill. Sept. 28, 2016)

("Controlling Federal Circuit precedent holds that a party puts its attorney's advice 'at issue' in a case -- and waives its rights to assert the attorney-client privilege -- when it relies on a statement based on the advice of an attorney in an effort to obtain a certificate of correction, and the party uses that certificate of correction to prove issues related to enforceability in a patent suit."; "Dyson has placed the advice of counsel at issue by petitioning the PTO to correct the inventors of the '010 and '823 patents during the pendency of a law suit that Dyson initiated to enforce its rights under those patents. The change of inventorship was precipitated by the new priority date that Dyson is now claiming, and may have drastic effects on the enforceability of the '010 and '823 patents. As such, it has waived its protections under the attorney-client privilege or the work product doctrine. As noted above, the scope of that waiver is limited to the subject matter and temporal scope implicated by Dyson's attempt to change the inventors on the relevant patents. Therefore, the Court finds that the privilege is only waived on the issue of inventorship and only between February 1, 2016, and April 21, 2016.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-28	Federal	IL

Chapter: 28.1202

**Case Name: Carson v. Lake Cty., Cause No. 2:14-CV-117-PRC, 2016 U.S. Dist. LEXIS 52055, at 15, 16, 17-18, 18 (N.D. Ind. Apr. 19, 2016)**

("In this case, the parties do not dispute that the communications between Attorney Dull and Defendant are protected by the attorney-client privilege but instead dispute whether Defendant impliedly waived the privilege by asserting the affirmative defenses of acting in good faith, exercising reasonable care, and acting in good faith with the understanding that it acted lawfully and in compliance with all applicable law. The Court finds that Defendant has impliedly waived its attorney-client privilege as to communications with Attorney Dull related to Plaintiffs' termination both through [county commissioner] Repay's testimony concerning portions of the attorney-client communication and by asserting reliance on the advice to support its affirmative defenses."; "Repay testified that Attorney Dull gave legal advice regarding whether the action of terminating Plaintiffs' employment would be in violation of age discrimination laws, which was considered when making the decision to terminate Plaintiff's employment. It also appears, based on Repay's testimony, that Attorney Dull and/or his office was involved with preparing the PowerPoint presentation and Plaintiffs' termination letters."; "Thus, Repay's testimony that he believed Defendants' actions were legal constitutes testimony about the attorney-client communications and put Defendants' knowledge of the law and the basis for its understanding of what the law required in issue on the affirmative defenses. . . . Defendant has opened the door to these communications through Repay's testimony that to his knowledge, Attorney Dull alone confirmed compliance with age discrimination law. Contrary to Defendant's assertion, this is not an instance in which a defendant merely pleads a good faith defense nor was Attorney Dull simply a messenger delivering Attorney Grudzien's opinion to Defendant; the evidence of record indicates that Dull participated in the decision making process and that Defendant relied on Attorney Dull's legal advice in making the decision to terminate Plaintiffs' employment. Defendant does not address, much less refute that evidence."; "An explicit intent by Defendant to rely on Attorney Dull's advice is not required to find waiver because Plaintiffs are entitled to know what legal advice Defendant received from Dull in order to test Defendant's assertions of good faith. . . . Whether Defendant acted in good faith and believed that its actions were 'in compliance with all applicable law' can only be assessed by examining Attorney Dull's communications with Defendant regarding compliance with age discrimination laws and his interpretation of Attorney Grudzien's opinion. In fairness, Plaintiff must be permitted to explore these communications.")

Case Date	Jurisdiction	State	Cite Checked
2016-04-19	Federal	IN	B 8/16

Comment:

key case

Chapter: 28.1202

**Case Name: Sheena v. Issa, Nos. 326400 & 326750, 2016 Mich. App. LEXIS 733, at *8-9 (Mich. Ct. App. Apr. 14, 2016)**

("Plaintiffs assert, first, that defendants waived the attorney-client privilege. Indeed, Nader [defendant] testified that he considered the $40,000 payment in 2005 a full satisfaction of the 2001 debt. However, this explanation does leave a logical gap in the evidence: why would the parties enter into the 2005 transaction if it was immediately being paid? Nader's explanation at trial and throughout the proceedings was that he believed the documents he signed in 2005 were to pay off the loan, not to start another loan. Nader specifically attributed this to the advice of his attorney, Abbo. Whether Nader knowingly signed the documents was relevant to the proceedings, and defendants' assertion of privilege effectively prevented plaintiffs from asserting their claim. Nader's claim that he did not understand the 2005 transaction was critical to his explanation of the events. In order to find his version of the events 'plausible,' it was necessary to conclude, minimally, that Nader did not understand the documents he was signing. Without Abbo's testimony, plaintiffs could not rebut Nader's claim regarding his understanding. Thus, Nader waived his privilege as it related to his understanding and comprehension of the documents.")

Case Date	Jurisdiction	State	Cite Checked
2016-04-14	Federal	MI	B 8/16

Chapter: 28.1202

Case Name: Financial Guaranty Insurance Co. v. The Putnam Advisory Co., LLC, 12 Civ. 7372, 2016 U.S. Dist. LEXIS 33352 (S.D.N.Y. March 15, 2016)

(finding that the plaintiff waived any otherwise available attorney-client privilege and work product protection for documents prepared by a consultant, and which the plaintiff referred to and cited in its complaint and in Second Circuit briefing; noting that referring to the consultant's work in the complaint would not have caused a waiver by itself, but that the waiver came from reliance in court; finding that the scope of the waiver can not extend beyond documents referred to in the complaint; "In its briefing, FGIC attempts to rehabilitate the privilege over the report by promising not to utilize the analysis in the future, including at trial. . . . The reference to the analysis in FGIC's complaint, standing alone, does not constitute a waiver. However, by referring to the analysis during the Second Circuit's review of this Court's decision on the motion to dismiss -- in which the Circuit determined that FGIC's allegations were 'sufficient to state claims for fraud, negligent misrepresentation, and negligence,'. . . FGIC has already used the report to sustain its causes of action, rendering MBIA distinguishable. Since FGIC 'inject[ed] the contents of a privileged communication into the litigation' by utilizing it in connection with a dispositive motion, the 'at issue' waiver applies.")

Case Date	Jurisdiction	State	Cite Checked
2016-03-15	Federal	NY

Chapter: 28.1202

Case Name: Financial Guaranty Insurance Co. v. The Putnam Advisory Co., LLC, 12 Civ. 7372, 2016 U.S. Dist. LEXIS 33352 (S.D.N.Y. March 15, 2016)

(finding that the plaintiff waived any otherwise available attorney-client privilege and work product protection for documents prepared by a consultant, and which the plaintiff referred to and cited in its complaint and in Second Circuit briefing; noting that referring to the consultant's work in the complaint would not have caused a waiver by itself, but that the waiver came from reliance in court; finding that the scope of the waiver can not extend beyond documents referred to in the complaint; "Lastly, Putnam seeks the production of an economic analysis commissioned by FGIC for this litigation. Although expert reports and other such documents prepared for the purpose of litigation are normally covered by the attorney-client and work product privileges, Putnam contends that FGIC waived any such protection when it cited to and quoted from the analysis in the SAC, and when it used the report in its Second Circuit briefing."; "In Paragraph 122 of the SAC, FGIC declares that it retained a firm of economic analysts to assess the likelihood that a suspicious pattern of referenced securities in Pyxis and other related CDOs could have occurred by chance, rather than by design. That paragraph also includes three bullet-pointed quotations from the analysis, concluding that the pattern 'may indicate that the portfolio selection by independent portfolio managers was influenced by an external factor,' that 'the probability of this happening by chance across independent portfolio managers is less than 1 in a billion,' and that the likelihood was similar to that observed in cases involving fraudulent options backdating. The analysis was referenced in order to show that the selection of financial instruments in Pyxis' portfolio was in fact conducted in conjunction with Magnetar Capital LLC ('Magnetar'), a hedge fund with a short position in Pyxis, with the goal of having Pyxis fail, creating a profit for Magnetar. See id. FGIC also referred to the report in its briefing before the Second Circuit."; "'Although FGIC did not directly cite to Paragraph 122 of the SAC in its Second Circuit briefing, it does repeatedly assert that it had independently confirmed without discovery that Pyxis' collateral was not selected independently, but. Rather for Magnetar's Benefit, a clear reference to the economic analysis.'")

Case Date	Jurisdiction	State	Cite Checked
2016-03-15	Federal	NY

Chapter: 28.1202

Case Name: Piazza v. County of Luzerne, Civ. A. No. 3:13-CV-1755, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015)

(holding that defendant waived its attorney-client privilege because the decision maker responsible for firing the plaintiff indicated in his deposition that he relied on advance of counsel, even though the City had not filed a formal "Advice of counsel affirmative defense"; "This motion is based on the assertion of the attorney-client privilege during Defendant Lawton's deposition. When asked why he terminated Plaintiff's employment, Defendant Lawton responded 'I did so on the advice of counsel.'. . . He was then asked 'Anything else?' and responded 'That's all at this point.'"; "When asked if these beliefs were based on advice from counsel, Defendant Lawton was advised by his counsel not to answer. . . . When asked what the sources of information informed his belief that Plaintiff had exceeded his authority, Defendants' counsel again objected: 'Object to form of the question to the extent that it includes attorney-client. You can answer it with that caveat.'. . . Plaintiff responded: 'Okay. Based upon my conversations with the county's chief solicitor at the time, I believed that the county had been exposed to significant liability -- financial liability. And that in undertaking the actions he did, Mr. Piazza exceeded the scope of his authority as county director of elections. Based upon Mr. Piazza's own conduct during the Loudermill hearing, I believe that he did not apprehend the seriousness of those two issues and that he would not refrain from the same course of conduct in the future.'"; "Plaintiff does not assert that Defendants waived the attorney-client privilege merely because advice of counsel is relevant and might have affected the decision-maker's state of mind, nor does he assert that the privilege was waived by defending the suit. He alleges specifically and simply that the privilege was waived because Defendant Lawton testified that he terminated Plaintiff on the advice of counsel and when asked 'Anything else?' Defendant Lawton responded 'That's all at this point.'"; "Defendants may now point to other bases for the termination decision but they have not met their burden of establishing that the attorney-client privilege applies to shield from discovery the communication relied on by Defendant Lawton which he testified formed the basis of his termination decision. Not only did he state that he initially had nothing to add to his statement that he terminated Plaintiff 'on the advice of counsel'. . . He later testified more specifically that he terminated Plaintiff based on his belief that Plaintiff had exceeded the scope of his authority under statute and this belief was based on his conversations with the county's acting chief solicitor . . . . Thus, we are not persuaded by Defendant's argument that Defendant Lawton did not waive the attorney-client privilege. Plaintiff's motion is properly granted regarding communications between Defendant Lawton and his counsel related to the reasons counsel advised him to terminate Plaintiff.")

Case Date	Jurisdiction	State	Cite Checked
2015-10-30	Federal	PA

Chapter: 28.1202

Case Name: In Piazza v. County of Luzerne, Civ. A. No. 3:13-CV-1755, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015)

December 23, 2015 (PRIVILEGE POINT)

"Corporations Can Risk Privilege Protection by Relying Too Heavily on Legal Advice when Firing Employees"

Corporations firing employees normally must explain why. All corporate lawyers recognize that affirmatively pleading "advice of counsel" as an employment case defense normally waives privilege protection, but the risks can be more subtle.

In Piazza v. County of Luzerne, Civ. A. No. 3:13-CV-1755, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015), plaintiff claimed that the county unlawfully fired him. When asked why the county fired plaintiff, the county's decision-maker (and co-defendant) answered "'I did so on the advice of counsel.'" Id. At *2 (internal citation omitted). When asked if there was "'[a]nything else?,'" the witness responded, "'That's all at this point.'" Id. Later in the deposition, the county's lawyer objected to questions about whether the decision-maker's "beliefs were based on advice from counsel," and what "sources of information informed [the decision-maker's] belief that Plaintiff had exceeded his authority." Id. At *4. Acknowledging that the defendants had not filed a formal "advice of counsel" defense, the court nevertheless found a privilege waiver — pointing to (1) the decision-maker's testimony "that he initially had nothing to add to his statement that he terminated Plaintiff 'on the advice of counsel,'" and (2) his later testimony that the firing was based on his belief that the plaintiff acted improperly "and this belief was based on his conversations" with the county's lawyer. Id. At *11. The court held that the waiver extended to all "communication[s] relied on by [the decision-maker] which he testified formed the basis of his termination decision." Id.

Corporations (and other institutions) can impliedly waive their privilege protection without affirmatively pleading an "advice of counsel" defense. In employment cases, decision-makers should rely on underlying facts from sources other than just their lawyers, and should be prepared to testify about the reasons for employment decisions other than those lawyers' advice.

Case Date	Jurisdiction	State	Cite Checked
2015-10-30	Federal	PA

Comment:

key case

Chapter: 28.1202

Case Name: SEC v. Carrillo Huettel LLP, 13 Civ. 1735 (GBD) (JCF), 2015 U.S. Dist. LEXIS 45988 (S.D.N.Y. April 8, 2015)

(finding that a defunct corporation privilege, and therefore ordering the former corporation's law firm to produce documents; finding that state law defines "whether a corporation is, in fact, defunct"; "In this case, Mr. De Beer has plainly argued that he should be relieved of liability because he relied on the advice of counsel. His Answer asserts as an affirmative defense that he 'acted at all times in good faith and without reckless disregard for, knowledge of, or intent to engage in any supposed wrongdoing.'. . . This alone would not be enough to place attorney-client communications at issue. However, in moving to dismiss the Complaint, he explicitly contended that he was 'entitled to rely on counsel when it came to securities law issues.'")

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

Chapter: 28.1202

**Case Name: Klemp v. Columbia Collection Serv., Inc., No. 3:13-cv-01577-PK, 2014 U.S. Dist. LEXIS 6248, at 2, 8-10 (D. Ore. Jan. 17, 2014)**

("On December 27, 2013, plaintiff deposed Joseph Galvan, Columbia's Federal Rule of Civil Procedure 30(b)(6) representative. During the deposition, plaintiff asked Galvan how Columbia arrived at the amounts requested in its counterclaims filed in the small-claims actions. Galvan declined to answer, citing attorney-client privilege. Plaintiff also asked Galvan about a conversation Columbia's attorney, David Schumacher, had with a court clerk. Again, Galvan refused to answer on the basis of attorney-client privilege."; "Applying the Hearn test, I find that Columbia waived its attorney-client privilege with respect to its communications with Mr. Schumacher about the amount of its counterclaims. Under the first prong of the Hearn test, Columbia is asserting its privilege as a result of the affirmative act of filing counterclaims in the underlying small-claims cases. Second, Columbia has placed the privileged communications at issue. The record reflects numerous instances in which plaintiff's counsel asked Galvan, Columbia's Rule 30(b)(6) representative, what evidence Columbia relied on in filing its counterclaims. Galvan primarily responded that he relied on privileged communications with Columbia's attorney, Mr. Schumacher. . . . Finally, under the third prong of the Hearn test, the substance of the communications Columbia had with Mr. Schumacher is vital to plaintiff's case. Absent disclosure of the privileged communications, plaintiff has no means of determining why Columbia asserted counterclaims for $10,000 to $35,000, which is highly relevant to plaintiff's second claim. In light of the foregoing, I find that Columbia impliedly waived its attorney-client privilege and, therefore, must disclose the substance of the communications it had with Mr. Schumacher concerning the amount of the counterclaims filed in small-claims court.")

Case Date	Jurisdiction	State	Cite Checked
2014-01-17	Federal	OR	B 6/14

Chapter: 28.1202

**Case Name: Formax Inc. v. Alkar-Rapidpak-MP Equipment Inc., Case No. 11-C-0298, 2013 U.S. Dist. LEXIS 75263, at 3, 7-8 (E.D. Wis. May 29, 2013)**

("Generally, where a party relies on an opinion of counsel as part of a defense to an allegation of willful infringement, it waives privilege as to the opinion."; "Even if the Defendants are not relying on an advice of counsel defense, Tournour [defendant] intentionally disclosed information concerning communications he had with counsel regarding the expiration of the '743 patent.")

Case Date	Jurisdiction	State	Cite Checked
2013-05-29	Federal	WI	B 4/14

Chapter: 28.1202

**Case Name: McCarthy v. Barrett, Case No. C09-5120RBL, 2013 U.S. Dist. LEXIS 402, at *3 (W.D. Wash. Jan. 2, 2013)**

("In this case, the City repeatedly asserted the attorney-client privilege to thwart discovery into the advice the City sought and received from its counsel. It now claims that the fact it took steps to obtain legal advice is admissible evidence that it was not deliberately indifferent to plaintiffs' First Amendment rights, and that it did not intend to cause any constitutional deprivation. In doing so, the City has affirmatively put the advice it sought and received at issue in the case.")

Case Date	Jurisdiction	State	Cite Checked
2013-01-02	Federal	WA	B 7/13

Chapter: 28.1202

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 905 (N.D. Ill. 2013)

("TMC [Plaintiff] has waived privilege through its reliance on Dr. Motheram's [plaintiff's scientist] assertion that the New Process was not followed in Lot No. 1344985 to shield it from Mylan's inequitable conduct defense.")

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

Chapter: 28.1202

Case Name: In re Residential Capital, LLC, 491 B.R. 63, 72 (S.D.N.Y. 2013)

(holding that the law firm of Morrison & Foerster had claimed privilege for several communications during discovery, and therefore its client could not claim advice of counsel at trial; "The Debtors are walking a fine line between arguing that they sought and received the advice of counsel when negotiating and evaluating (and ultimately approving) the RMBS Trust Settlement, and that they relied on the advice of counsel in approving the RMBS Trust Settlement. For example, the Debtors claim they only want to introduce the fact that the critical negotiations were handled by the Debtors' attorneys, without delving into the substance of those negotiations (to the extent they were undertaken by the Debtors' attorneys). . . . Yet, the Debtors' RMBS Reply Briefs are replete with statements such as '[t]he directors were entitled to rely on these [legal and financial] experts' advice and counsel' and 'ResCap LLC's directors . . . relied on advice and presentation materials from their advisors that were fair, accurate, and adequate to the task.'" (internal citation omitted); "The attorney-client privilege is not waived if the Debtors argued that they sought the advice of counsel, among other actions, in an effort to reasonably educate themselves as to the merits of the settlement. However, after having asserted the attorney-client privilege throughout discovery, the Debtors cannot now introduce the substance of whatever advice it sought and received in order to demonstrate that it exercised proper business judgment in approving the RMBS Trust Settlement, even for the purpose of rebutting a 'due care' challenge.")

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

Chapter: 28.1202

Case Name: Mass. Mut. Life Ins. Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 293 F.R.D. 244, 246-47, 247, 249, 250, 253 (D. Mass. 2013)

(analyzing plaintiff's reliance on a outside consultant's forensic review in its complaint, and its later disclaimer of any intent to use the review at trial; applying the Rule 502 subject matter waiver standard, and finding that the plaintiff had not triggered an at issue doctrine or other waiver requiring disclosure of additional documents relating to the review; "The 'forensic review,' was conducted by an outside consultant at the direction of plaintiff's litigation counsel. . . . There is no dispute but that the review was a substantial basis upon which the allegations of the complaint were made and was cited in over thirty separate paragraphs of its complaint."; "Defendants sought discovery concerning the forensic review; plaintiff resisted, claiming that the forensic review is protected by the attorney-client privilege and/or work product doctrine. . . . In defendants' view, any privilege was waived when the plaintiff put the materials at issue by relying on them in its complaint."; "[T]he plaintiff opposed the defendants' motion, but as to the third ground, stated unequivocally that it does not intend to rely on the forensic review to prove its claims at trial. . . . The plaintiff contends that the documents concerning the pre-filing forensic review are privileged under the attorney-client privilege and/or are protected by the work-product documents [sic] and that the use of the forensic review in the complaint does not operate as a waiver of the privilege or protection because of its disclaimer that it will not use the review in any way to prove its claims at trial. Rather, the forensic review was simply 'pre-filing data and analysis used to determine whether allegations have a good-faith basis.'"; "The Court rules that, under Massachusetts law, the forensic review materials are privileged as attorney-client matter."; "In the instant case, the plaintiff's claims are almost entirely premised on the results of its review. . . . Thus, the defendants' answers and defenses likewise respond to plaintiff's reliance on the privileged material. This would make the forensic review relevant but, on the facts of this case, is the forensic review 'enmeshed'. . . such that the privilege should fall? . . . Put another way, is forensic review 'enmeshed' if it will in no way be used as evidence to prove MassMutual's claims?"; "[T]he Court looks to cases in which pre-litigation evaluations, audits or reviews are referenced in support of the allegations of the initial complaint and whether there is a disclaimer that the materials will not be used as evidence at trial to prove any of plaintiff's claims."; "[T]he issue of waiver, in the end, is whether what was disclosed and what is sought by the motion to compel 'ought in fairness be considered together.' Rule 502(a)(3), Fed. R. Evid. Based on the above-cited case law, the Court rules that, in the circumstances of the instant case, 'fairness' does not require that MassMutual disclose any additional documents or information relative to the forensic review. The major factor which leads to this ruling is that MassMutual does not need the forensic review to prove its claims and has explicitly eschewed any use of the forensic review as evidence at trial. There has been no 'at issue' waiver, . . . and since the forensic review will be not be used as evidence at trial, there is no danger that what has not been disclosed is 'enmeshed' with what has been disclosed so as to create any unfairness or prejudice to the defendants.")

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

Chapter: 28.1202

Case Name: In re Residential Capital, LLC, 491 B.R. 63, 71 (S.D.N.Y. 2013)

(holding that the law firm of Morrison & Foerster had claimed privilege for several communications during discovery, and therefore its client could not claim advice of counsel at trial; "[A] party who argues that it made a business decision because of its reliance on counsel, regardless of whether it is asserted as a 'defense' to a 'due care' challenge, still waives its attorney-client privilege by placing its reliance on counsel directly at issue.")

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

Chapter: 28.1202

**Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *12 (W.D. Va. June 15, 2011)**

("Such conduct may include asserting claims or defenses that put an attorney's advice at issue for example, by asserting reliance on counsel as an affirmative defense.")

Case Date	Jurisdiction	State	Cite Checked
2011-06-15	Federal	VA

Chapter: 28.1203

Case Name: In re United Shore Fin. Servs., LLC, No. 17-2290, 2018 U.S. App. LEXIS 138 (6th Circuit App. Jan. 3, 2018)

(analyzing privilege issues in a data breach investigation case; denying defendant's petition for writ of mandamus allowing them to withhold documents relating to its affirmative defense pointing to its lawyer's investigation and conclusion that another defendant caused the breach; "Plaintiff Al Leibovic filed a putative class action against United Shore and Xerox Management Services, Inc. ('XMS') arising from intrusions into an XMS program on which United Shore stored potential borrowers' personal identification information. United Shore asserted several affirmative defenses, including that Leibovic and the class claims were barred based on XMS's acts or failure to act."; "In response to XMS's discovery requests, United Shore stated that the firm it retained through counsel to investigate and prevent future intrusions had concluded that XMS's actions caused the intrusions. United Shore, however, withheld hundreds of documents relevant to the investigation, citing attorney-client privilege. XMS moved to compel United Shore to produce the withheld documents, alleging that it implicitly waived the attorney-client privilege by citing to the investigation's conclusions. The district court granted XMS's motion and denied United Shore's subsequent motion to clarify its order."; "The district court correctly concluded that the attorney-client privilege can be implicitly waived. . . . Here, United Shore cited XMS's action or lack of action as an affirmative defense. And it commissioned an investigation that concluded that XMS was at fault. Thus, it attempted to prove a defense by disclosing or describing the attorney-client communications. See In re G-I-Holdings, Inc., 218 F.R.D. 428, 433 (D.N.J. 2003). Once waived, the privilege is waived with respect to all communications involving the same subject matter. Id. The district court did not clearly err in compelling disclosure of the privileged documents.")

Case Date	Jurisdiction	State	Cite Checked
2018-01-03	Federal

Comment:

key case

Chapter: 28.1203

**Case Name: Maar v. Beall's, Inc., Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017)**

May 17, 2017 (PRIVILEGE POINT)

"Privilege Implications of an Explicit or Implicit 'Advice of Counsel' Defense: Part II'"

Last week's Privilege Point described the normal broad subject matter waiver triggered by litigants' explicit defensive reliance on legal advice. Litigants' implicit reliance can have the same effect.

In Maar v. Beall's, Inc., FLSA defendant Beall's contended that any employee miscalculations were "not willful, and made in a good faith attempt to comply with the law." Case No. 16-cv-14121-MIDDLEBROOKS/LYNCH, 2017 U.S. Dist. LEXIS 29016, at *4 (S.D. Fla. Feb. 28, 2017). Answering interrogatories about one of its defenses, Beall's noted that it "'consulted with legal counsel regarding such classification.'" Id. at *5 (emphasis and internal citation omitted). The court concluded that Beall's waived its privilege protection "by setting forth an affirmative defense that invoked its good faith belief in the legality of its employee classification." Id. at *11. The court even ordered Beall's to produce its lawyer to be deposed "concerning the substance of advice the company received from legal counsel as to the classification of Area Managers." Id. at *12. Beall's argued that the court's draconian standard would give FLSA plaintiffs "automatic access" to companies' legal advice whenever they assert a "good faith" defense. Id. at *11-12. The court rejected what it called Beall's "dire pronouncement" -- explaining that companies "can always deny the element of a plaintiff's claim alleging a certain mental state 'without affirmatively asserting' a good faith belief in an act's legality." Id. at *12 (citation omitted). The court did not explain how that approach would work.

Corporations and their lawyers must remember the scope of any explicit "advice of counsel" defense, and the less obvious danger of implicitly relying on their good faith attempt to comply with the law.

Case Date	Jurisdiction	State	Cite Checked
2017-02-28	Federal	FL

Comment:

key case

Chapter: 28.1203

Case Name: Regions Bank v. Kaplan, Case No. 8:12-CV-1837-T-17MAP, 2016 U.S. Dist. LEXIS 65650 (M.D. Fla. May 18, 2016)

(analyzing the following deposition questions and answers: "(Q) In speaking with Mr. Parrish, were you seeking legal advice? Again, not telling me what was talked about, but in speaking with him, were you seeking legal advice?"; "(A) No."; "(Q) Okay. What did Mr. Parrish tell you?"; "(A) He said -- I was telling him about the deal, and he said it sounded too good to be true."; finding that plaintiff sought protected legal advice; "Defendant Kaplan's brief testimony reveals the mental impression of the attorney Defendant Kaplan was consulting. In light of the overall purpose of the meeting, Defendant Kaplan's knowledge that Mr. Parrish was a lawyer, the fact that Defendant Kaplan was charged a fee for the meeting, what Mr. Parrish said in that meeting arguably constitutes legal advice rather than business advice."; "In the context of an attorney-client privilege issue arising at deposition, it is not unusual for an individual client to have an opinion different from his counsel as to the same communication. Given the context, with Defendant's counsel immediately interposing a privilege objection that overrides an individual's testimony, the Court views the objection as providing appropriate guidance on an arguable issue.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-18	Federal	FL

Chapter: 28.1203

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)

(limiting plaintiffs' questioning of the lawyer who investigated GM's ignition switch issue; noting that GM pledged not to call the lawyer or rely on the report at trial; "Whether or not New GM has held the Valukas Report out to the world as a definitive account (something that New GM has disputed), it has repeatedly committed to not holding the Report out at all in these proceedings, and the Court will hold New GM to that commitment. . . . the Report's contents will not be introduced as evidence unless Plaintiffs themselves choose to do so.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-11	Federal	NY

Chapter: 28.1203

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)

(limiting plaintiffs' questioning of the lawyer who investigated GM's ignition switch issue; noting that GM pledged not to call the lawyer or rely on the report at trial; "New GM's commitment not to make offensive use of the Valukas Report also undermines Plaintiff's argument that they are entitled to ask about the bases for Valukas's conclusions because 'multiple MDL deponents interviewed by Mr. Valukas have disputed his account of their interviews.'. . . As New GM points out, '[b]ecause New GM will not offer the Valukas Report as evidence or call Mr. Valukas to testify, any alleged discrepancy between the Valukas Report and any witness's testimony is irrelevant.'. . . Plaintiffs can call whatever witnesses they believe will help their case, and New GM will not be permitted to contradict those witnesses' testimony with the information contained in the Valukas Report. Accordingly, the Court agrees with New GM that Plaintiffs may not question Valukas about what documents and materials he considered in connection with preparation of the Valukas Report or about the bases for conclusions contained in the Report.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-11	Federal	NY

Comment:

key case

Chapter: 28.1203

**Case Name: Minter v. Liberty Mutual Fire Ins. Co., Civil Action No. 3:11CV-249-S, 2014 U.S. Dist. LEXIS 86989, at *2-3 (W.D. Ky. June 26, 2014)**

(finding that a litigant's boilerplate "compliance with the law" affirmative defense did not trigger an implied waiver; "Nevertheless, attorney-client privilege may be impliedly waived if a party relies on 'advice of counsel' as a defense, regardless of whether any privileged documents or information have already been disclosed. . . . Yet, while it is true that Liberty Mutual's answer to the complaint contains many statements that it acted in accordance with the law, those are boilerplate contentions common to many answers that cannot reasonably be construed as an express or implied 'advice of counsel' defense, particularly since Liberty Mutual explicitly stated in its response to Ms. Minter's motion to compel that 'advice of counsel' is not one of its defenses. . . . Accordingly, the court determines that Liberty Mutual has not waived its attorney-privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-06-26	Federal	KY

Chapter: 28.1203

**Case Name: DeWitt v. Sw. Bell Tel. Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17-18 (D. Kan. Feb. 24, 2014)**

(finding that a plaintiff had not triggered an at issue waiver by answering questions about communications with her lawyer, and that defendant had not triggered an at issue waiver by asserting "good faith" defenses; "Typically, a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department. The answers deponents provided were presumably elicited by Ms. DeWitt's counsel in response to questions. These excerpts of testimony from unidentified deponents lack any context supporting a conclusion that Southwestern Bell made an affirmative act that put at issue reliance on counsel's advice.")

Case Date	Jurisdiction	State	Cite Checked
2014-02-24	Federal	KS	B 7/14

Chapter: 28.1203

**Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *25-26 (D. Kan. Feb. 11, 2014)**

(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "[D]efendants have not demonstrated that Sprint relied on the advice or communications of its counsel to prove a claim or justify certain conduct on Sprint's part, nor that if Sprint had so done, it was 'manifestly unfair' to Vonage [defendant in a separate trial]. Second, defendants have not presented any support for their inferred argument that implicit waiver (in contrast to subject matter waiver based on explicit waiver) in one case can carry over to a subsequent case. Given the fairness consideration at issue in implicit waiver situations -- i.e., manifest unfairness to the opposing party -- the court is not persuaded that implicit waiver automatically carries over to subsequent cases. Finally, defendants have not demonstrated that Sprint plans to rely on the advice that counsel gave it with respect to possible infringement by Vonage to prove a claim in this case. The court will follow the approach taken in Williams [Williams v. Sprint/United Mgmt. Co., 464 F. Supp. 2d 1100 (D. Kan. 2006)] and New Jersey v. Sprint [New Jersey v. Sprint Corp., 258 F.R.D. 421 (D. Kan. 2009)] by allowing defendants to revisit this issue should Sprint 'affirmatively and voluntarily inject the reliance on counsel issue at trial or in subsequent briefing' in this action." (footnotes omitted))

Case Date	Jurisdiction	State	Cite Checked
2014-02-11	Federal	KS	B 7/14

Chapter: 28.1203

**Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at 6-7, 7-8, 8, 15-16 (Del. Ch. Apr. 10, 2013)**

(in a derivative case, concluding that defendants had not triggered an "at issue" waiver; "Plaintiffs base their contentions on several assertions made by the Comverge Defendants. These assertions include that: (1) '[t]he Board discussed with its legal advisors what action, if any, it could and/or should take relative to HIG's actions'; (2) 'the Committee and Board were exceptionally active and well informed. . . . The Board received advice throughout this period from five different teams of financial advisors, and the Committee received advice from three different financial advisors and three law firms'; (3) 'the Committee, the full Board, and management, with the advice of outside counsel, actively considered the question of whether to sue HIG for allegedly breaching the NDA'; and (4) '[the Board] sought legal advice from board and company counsel on multiple occasions.'"; analyzing what the court called "Prong 1: Injecting privileged communications into the litigation."; "The first prong of the at issue exemption is whether the party injected privileged lawyer-client communications into the litigation. The first prong usually applies when a party asserts lawyer-client privilege to protect a communication and then later seeks to admit that same communication as evidence."; "Here, the Comverge Defendants have not injected or sought to inject any specific attorney-client communications into the litigation. Questions regarding the existence or nonexistence of such communications were raised by Plaintiffs and not the Comverge Defendants. Therefore, the first prong of the 'at issue' exemption does not apply to the circumstances of this case. The at issue exemption, however, still would apply if Plaintiffs prove the second prong."; "[T]he Comverge Defendants have not injected a privilege-laden issue into this litigation, attempted to rely on the substance of a privileged communication, or partially disclosed such a communication. Indeed, a close examination of the Comverge Defendants' statements reveals that they have adhered fairly assiduously to assertions that the Board sought, obtained, received, or considered the advice of counsel. Those statements, however, do not go as far as to say that the Comverge Defendants acted in accordance with the legal advice they received or that those Defendants cannot be liable because they relied on some specific advice of legal counsel. Instead, the information the Comverge Defendants have disclosed in this action regarding any privileged communications is summary in nature and comparable to what would be disclosed in a privilege log. I therefore reject Plaintiffs' argument that the Comverge Defendants waived the attorney--client privilege through the at issue exception." (footnotes omitted))

Case Date	Jurisdiction	State	Cite Checked
2013-04-10	State	DE	B 3/14

Chapter: 28.1203

**Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at 6-7, 7-8, 8, 10, 11, 15-16 (Del. Ch. Apr. 10, 2013)**

("Plaintiffs base their contentions on several assertions made by the Comverge Defendants. These assertions include that: (1) '[t]he Board discussed with its legal advisors what action, if any, it could and/or should take relative to HIG's actions'; (2) 'the Committee and Board were exceptionally active and well informed. . . . The Board received advice throughout this period from five different teams of financial advisors, and the Committee received advice from three different financial advisors and three law firms'; (3) 'the Committee, the full Board, and management, with the advice of outside counsel, actively considered the question of whether to sue HIG for allegedly breaching the NDA'; and (4) '[the Board] sought legal advice from board and company counsel on multiple occasions.'" (internal citation omitted); analyzing what the court called "Prong 1: Injecting privileged communications into the litigation."; "The first prong of the at issue exemption is whether the party injected privileged lawyer--client communications into the litigation. The first prong usually applies when a party asserts lawyer-client privilege to protect a communication and then later seeks to admit that same communication as evidence."; "Here, the Comverge Defendants have not injected or sought to inject any specific attorney-client communications into the litigation. Questions regarding the existence or nonexistence of such communications were raised by Plaintiffs and not the Comverge Defendants. Therefore, the first prong of the 'at issue' exemption does not apply to the circumstances of this case. The at issue exemption, however, still would apply if Plaintiffs prove the second prong."; analyzing what the court called "Prong 2: 'Injecting an issue into the litigation, the truthful resolution of which requires an examination of confidential communications"; "The Comverge Defendants are correct that it was Plaintiffs who first raised the issue of whether the Board solicited the advice of legal counsel. Moreover, the examination of privileged communications is not required for the truthful resolution of this litigation because the Comverge Defendants merely seek to rely on the fact that they sought and obtained legal advice rather than that they relied on the substance of privileged communications to prove that the Board was fully informed. Thus, the Comverge Defendants did not 'inequitably us[e] attorney-client privilege as a sword' or inject a privilege-laden issue into the litigation." (citation and footnote omitted); "[A] number of cases have held that it is the existence of legal advice that is material to the question of whether the board acted with due care, not the substance of that advice."; "[T]he Comverge Defendants have not injected a privilege-laden issue into this litigation, attempted to rely on the substance of a privileged communication, or partially disclosed such a communication. Indeed, a close examination of the Comverge Defendants' statements reveals that they have adhered fairly assiduously to assertions that the Board sought, obtained, received, or considered the advice of counsel. Those statements, however, do not go as far as to say that the Comverge Defendants acted in accordance with the legal advice they received or that those Defendants cannot be liable because they relied on some specific advice of legal counsel. Instead, the information the Comverge Defendants have disclosed in this action regarding any privileged communications is summary in nature and comparable to what would be disclosed in a privilege log. I therefore reject Plaintiffs' argument that the Comverge Defendants waived the attorney--client privilege through the at issue exception." (footnotes omitted))

Case Date	Jurisdiction	State	Cite Checked
2013-04-10	State	DE	B 3/14

Chapter: 28.1203

Case Name: In re Residential Capital, LLC, 491 B.R. 63, 72 (S.D.N.Y. 2013)

(holding that the law firm of Morrison & Foerster had claimed privilege for several communications during discovery, and therefore its client could not claim advice of counsel at trial; "The Debtors are walking a fine line between arguing that they sought and received the advice of counsel when negotiating and evaluating (and ultimately approving) the RMBS Trust Settlement, and that they relied on the advice of counsel in approving the RMBS Trust Settlement. For example, the Debtors claim they only want to introduce the fact that the critical negotiations were handled by the Debtors' attorneys, without delving into the substance of those negotiations (to the extent they were undertaken by the Debtors' attorneys). . . . Yet, the Debtors' RMBS Reply Briefs are replete with statements such as '[t]he directors were entitled to rely on these [legal and financial] experts' advice and counsel' and 'ResCap LLC's directors . . . relied on advice and presentation materials from their advisors that were fair, accurate, and adequate to the task.'" (internal citation omitted); "The attorney-client privilege is not waived if the Debtors argued that they sought the advice of counsel, among other actions, in an effort to reasonably educate themselves as to the merits of the settlement. However, after having asserted the attorney-client privilege throughout discovery, the Debtors cannot now introduce the substance of whatever advice it sought and received in order to demonstrate that it exercised proper business judgment in approving the RMBS Trust Settlement, even for the purpose of rebutting a 'due care' challenge.")

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

Chapter: 28.1203

**Case Name: Botkin v. Donegal Mut. Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at 13, 14, 18-19, 20 (W.D. Va. June 15, 2011)**

(analyzing privilege and work product issues in a first party insurance case; after citing Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994); analyzing the "at issue" doctrine under the Hearn standard; "The court in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), set forth a framework for determining whether the party asserting a privilege has impliedly waived it through his own affirmative conduct. Courts must determine whether: a) the assertion of privilege was the result of some affirmative act, such as filing suit, by the asserting party; b) through this act, the asserting party put the protected information at issue by making it relevant to the case; and c) application of the privilege would have denied the opposing party access to information vital to his defense. Id. at 581. Although the Hearn framework has not been met with universal acceptance, it remains the most widely accepted approach."; "Plaintiffs . . . contend that Stacey Callahan's deposition testimony, in which she acknowledged that Donegal relied on the advice of counsel in denying the Botkins' claim, is enough to constitute waiver. Stacey Callahan testified as follows: '(Q) Did Mr. Roswell [of Niles Barton], anything that Mr. Roswell or his opinion or anything else -- I'm not asking what it was. I'm just asking you, did that have anything to do with Donegal's decision to deny coverage?' (A) The Niles Barton firm had given us the coverage analysis, and based on their analysis -- partially based on their analysis, we denied coverage.'" (internal citation omitted); "Plaintiffs have offered no evidence other than Stacey Callahan's deposition testimony to suggest that Donegal interjected the advice of counsel into this litigation. And Callaghan's response to a question about whether Niles Barton's advice factored into Donegal's decision to deny coverage is not enough to show that Donegal put its communications with counsel at issue. . . . The mere fact that Donegal relied on the opinion of coverage counsel in denying plaintiffs' claim does not waive the attorney-client privilege. Certainly, when Donegal enlisted the assistance of Niles Barton in this matter, it intended to rely on counsel's advice. There would be little point in retaining coverage counsel to issue an opinion if a party did not intend to rely on it. Likewise, if reliance always gave rise to waiver in this circumstance, no one would seek coverage counsel's advice."; "Donegal has not used the attorney-client privilege as a sword in this litigation. . . . Donegal's reliance on coverage counsel's opinion, without more, is not sufficient enough to show it put the advice of counsel 'at issue.' Thus, the first Hearn factor has not been met.")

Case Date	Jurisdiction	State	Cite Checked
2011-06-15	Federal	VA	B 7/16

Chapter: 28.1204

Case Name: Wendt v. City of Denison, No. 16-CV-4130-LTS; No. 16-CV-4131-LTS, 2018 U.S. Dist. LEXIS 52550 (N.D. Iowa March 29, 2018)

(holding that City witnesses did not waive the City's attorney-client privilege by testifying that he consulted with the City's lawyer; concluding that the City's lawyer was not a decision maker in connection with the plaintiff's firing; "In this case, the City has not claimed an advice of counsel defense. An advice of counsel defense does not arise merely as a result of City employees stating that they consulted an attorney before making decisions. The City has not claimed that it was justified in taking adverse employment actions against plaintiffs because the City relied in good faith upon the advice of counsel. The City has not, as plaintiffs assert . . . divulged favorable information and then asserted the privilege to bury detrimental facts. Moreover, Mayor Leinen discussed consulting with the City Attorney only in response to questioning by plaintiffs' counsel; Mayor Leinen did not assert advice from the City Attorney as a justification for his actions."; "Plaintiffs allege that Mayor Leinen 'repeatedly indicated he completely abdicated his authority to Mr. Franck, or at the very least relied solely upon Mr. Franck's recommendation.' (Id.). The record does not, however, support this broad assertion. Mayor Leinen testified that he consulted the City Attorney and obtained advice from the City Attorney in making the decisions to fire the officers. It is to be expected that a decision-maker may consult an attorney regarding whether the decision-maker has the legal authority to terminate an employee or obtain advice on how best to terminate the employee. That does not make the attorney the decision-maker. To the extent that plaintiffs believe the City will mention the consultation at trial and thus allow the jury to unfairly infer that the City is claiming advice of counsel as a defense, plaintiffs can address the issue by filing a motion in limine.")

Case Date	Jurisdiction	State	Cite Checked
2018-03-29	Federal	IA

Chapter: 28.1204

Case Name: United States v. Buckingham, Case No. RWT 13-cv-3227, 2018 U.S. Dist. LEXIS 40659 (D. Md. March 13, 2018)

(finding it unnecessary to decide if a fraudulent conveyance claim can trigger the crime-fraud exception; finding that the plaintiff had not shown enough ill intent to apply the crime-fraud exception; "Although these statements by David do refer to specific communications with Mr. Cobb, that alone is not enough to constitute a waiver. . . . It matters how the specific communications are being used by the party claiming the privilege: specifically, whether the party is attempting to use the privilege as both a sword and a shield. . . . In this case, unlike in CR-RSC Tower I, LLC, both Susan's and David's references to Mr. Cobb were done so only as shields, as protection against disclosing privileged material. Nowhere in the cited statements do the Defendants attempt to use those communications with Mr. Cobb as a defense of wrongful conduct taken. In response to the question posed to David about the legal fees, David does not assert that he made his decision based on communications with Mr. Cobb or that the decision was done in good faith as justified by his consultation with Mr. Cobb, unlike the defendants in CR-RSC Tower I, LLC who attempted to use their communications with their attorneys to prove they acted in good faith. . . . In this crucial way, the Defendants' invocation of the attorney-client privilege was done only as a shield, the traditional and protected use of the privilege, and not as a sword to deny wrongdoing or as affirmative justification for their allegedly wrongful conduct.")

Case Date	Jurisdiction	State	Cite Checked
2018-03-13	Federal	MD

Chapter: 28.1204

**Case Name: Aboudara v. City of Santa Rosa, Case No. 17-cv-01661-HSG (JSC), 2018 U.S. Dist. LEXIS 10033, at *2 (N.D. Cal. Jan. 22, 2018)**

April 4, 2018 (PRIVILEGE POINT)

"May a Defendant Avoid an Implied Privilege Waiver by Withdrawing an 'Advice of Counsel' Defense?'"

Because implied waivers do not involve actual disclosure of privileged communications, litigants triggering an implied waiver can sometimes change their position before it is too late.

In Aboudara v. City of Santa Rosa, the FLSA defendant filed an amended answer raising "an affirmative defense of good faith" – "specifically alleg[ing] that it acted in good faith because, among other things, 'Defendant consulted with legal counsel regarding its FLSA compliance.'" Case No. 17-cv-01661-HSG (JSC), 2018 U.S. Dist. LEXIS 10033, at *2 (N.D. Cal. Jan. 22, 2018) (internal citation omitted). However, defendant then prohibited its witness "from answering any questions as to advice she received," and refused "to produce any documents reflecting such advice." Id. Plaintiff moved to compel the discovery, but the court rejected the plaintiff's motion. The court noted that defendant "has offered to stipulate that it will not in any way rely on advice of counsel in support of its good faith defense and will move to amend its answer if need be." Id. at *3. But the court closed its analysis with an obvious warning about what it called defendant's "change of heart" -- "of course, Defendant is now bound by its current representation and may not in any way rely on the fact that legal advice was sought." Id. at *2, *4.

Corporate defendants not appreciating the waiver implications of early pleadings normally have a chance to reconsider and avoid potentially disastrous implied waivers.

Case Date	Jurisdiction	State	Cite Checked
2018-01-22	Federal	CA

Comment:

key case

Chapter: 28.1204

Case Name: Secretary U.S. Dept. of Labor v. Am. Future Sys., Inc., No. 16-2685, 2017 U.S. App. LEXIS 19991 (3rd Cir. Oct. 13, 2017)

("In assessing liquidated damages, the District Court noted that Satell sought advice of counsel, but he refused to waive the attorney-client privilege and disclose this advice to the court. Satell's testimony placed the court in an untenable position of having to assume that counsel's advice was consistent with the adopted policy while ignoring the fact that Satell refused to tell the court what counsel advised. The District Court concluded that, given the unwillingness to share what it was told by counsel, 'it is entirely possible that Defendants implemented the new break policy in 2009, despite being told by one or more of its lawyers that the policy violated the FLSA. It would be an absurd result to classify such conduct as 'good faith' . . . .'"; "Progressive argues that the District Court abused its discretion in finding that it did not act in good faith when setting its break policy simply because Progressive refused to waive its attorney-client privilege. It claims that the District Court's decision punishes Progressive for seeking legal advice that was not essential to a good-faith determination, as employers are not required to seek legal advice to demonstrate good faith. Thus, according to Progressive, the District Court's decision will discourage open and confident relationships between clients and attorneys. That may be so, but we, like Judge Restrepo, are incredulous that an employer in this situation would decline to share the legal advice it received when the issue of good faith is raised, and we will not preclude a court from considering this in its thought process.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-13	Federal

Chapter: 28.1204

Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)

("The next 'issue injection' issue to consider is whether Defendants have expressly waived the attorney-client privilege by asserting certain affirmative defenses. Specifically, Defendants have asserted good faith affirmative defenses . . . and they have asserted that Plaintiffs were exempt from the FLSA's minimum wage and overtime compensation requirements . . . . But importantly, Defendants have never expressly stated that they are relying upon advice of counsel to support any defense in this case. An express reliance upon advice of counsel to support Defendants' affirmative defenses would waive the attorney-client privilege as to attorney-client communications related to such advice. However, Defendants are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case. In fact, they have specifically stated that they are not going to adduce any evidence or testimony about any advice of counsel Defendants received."; "The above cited relevant case law, when read carefully as a whole, puts cases into three general categories. First, the case law is in agreement that a mere denial of willfulness does not amount to issue injection which would impliedly waive the attorney-client privilege. Second, asserting an affirmative defense (such as good faith in an FLSA case) that explicitly states that a defendant relied on the advice of counsel, or refers to advice or consultation with counsel to support such affirmative defense, does amount to issue injection sufficient to waive the attorney-client privilege. Third, the more nuanced situation, which is similar to what we have here, is whether issue injection sufficient to waive the attorney-client privilege occurs when a defendant in an FLSA case asserts a good faith (or outside sales exemption) affirmative defense, but does not explicitly mention reliance on advice of counsel in that affirmative defense and further represents that it does not intend to rely on counsel's advice to support such defense. Courts seem to require something additional to find issue injection in this third category of cases.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-05	Federal	FL

Chapter: 28.1204

Case Name: Blake v. Batmasian, Case No. 15-cv-81222-Marra/Matthewman, 2017 U.S. Dist. LEXIS 166208 (S.D. Fla. Oct. 5, 2017)

("The next 'issue injection' issue to consider is whether Defendants have expressly waived the attorney-client privilege by asserting certain affirmative defenses. Specifically, Defendants have asserted good faith affirmative defenses . . . and they have asserted that Plaintiffs were exempt from the FLSA's minimum wage and overtime compensation requirements . . . . But importantly, Defendants have never expressly stated that they are relying upon advice of counsel to support any defense in this case. An express reliance upon advice of counsel to support Defendants' affirmative defenses would waive the attorney-client privilege as to attorney-client communications related to such advice. However, Defendants are not attempting in any way to rely on attorney-client privileged communications to support any defense in this case. In fact, they have specifically stated that they are not going to adduce any evidence or testimony about any advice of counsel Defendants received."; "The above cited relevant case law, when read carefully as a whole, puts cases into three general categories. First, the case law is in agreement that a mere denial of willfulness does not amount to issue injection which would impliedly waive the attorney-client privilege. Second, asserting an affirmative defense (such as good faith in an FLSA case) that explicitly states that a defendant relied on the advice of counsel, or refers to advice or consultation with counsel to support such affirmative defense, does amount to issue injection sufficient to waive the attorney-client privilege. Third, the more nuanced situation, which is similar to what we have here, is whether issue injection sufficient to waive the attorney-client privilege occurs when a defendant in an FLSA case asserts a good faith (or outside sales exemption) affirmative defense, but does not explicitly mention reliance on advice of counsel in that affirmative defense and further represents that it does not intend to rely on counsel's advice to support such defense. Courts seem to require something additional to find issue injection in this third category of cases.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-05	Federal	FL

Comment:

key case

Chapter: 28.1204

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Co., 14-CV-04394 (AJN) (BCM), 2017 U.S. Dist. LEXIS 152307 (S.D.N.Y. Sept. 15, 2017)

(striking defendant's advice of counsel defense because defendant had claimed privilege during discovery; "Discovery in this action has been protracted and frequently contentious. Throughout the fact discovery period, which largely concluded on August 31, 2017, Deutsche Bank has routinely withheld documents based on the attorney-client privilege and the attorney work product doctrine, including documents prepared by or reflecting advice by its in-house legal staff. Similarly, it has routinely instructed deposition witnesses not to reveal confidential attorney-client communications with, or legal advice provided by, its in-house counsel."; "Given the vagueness of that response, I warned Deutsche Bank that if it continued to assert the attorney-client privilege in discovery it could be precluded from later attempting to assert the advice of counsel defense."; "In this case, Deutsche Bank was required to choose between the advice of counsel defense and the attorney-client privilege by June 1, 2017. On that date it unambiguously chose the attorney-client privilege; that is, in order to continue withholding privileged documents, it stated that it was not asserting any 'reliance on advice of counsel' defense.")

Case Date	Jurisdiction	State	Cite Checked
2017-09-15	Federal	NY

Chapter: 28.1204

Case Name: Royal Park Investments SA/NV v. U.S. Bank National Assoc., 14 Civ. 2590 (VM), 2017 U.S. Dist. LEXIS 157986 (S.D.N.Y. Aug. 28, 2017)

(noting that a court can set the deadline for a defendant to assert or not assert an advice of counsel defense; "[T]he Court finds that Magistrate Judge Francis's decision to extend the time by which U.S. Bank could assert the advice-of-counsel defense to a date beyond the close of fact discovery was not clear error or contrary to law. While courts in this district have stated in dicta that a defendant 'must clearly elect whether it will raise an advice-of-counsel defense before the close of discovery and in time to allow for such discovery,'. . . it was not contrary to law for Magistrate Judge Francis to balance this interest against U.S. Bank's competing interest in receiving outstanding responses to interrogatories furnished to Royal Park over a year ago. . . . ('If . . . . HSBC is considering asserting only a more limited defense in connection with a specific allegation of breach, then HSBC is entitled to better understand the plaintiffs' claims.') Indeed, just as it would be unfair to permit a trustee defendant to assert an advice-of-counsel defense at any time, without any deadline in sight, . . . it would likewise be unfair to permit a plaintiff to potentially withhold information regarding specific breaches to the point of running out the clock on defendant's time to assert the defense and thereby secure a waiver of the defense. Ultimately, it was in Magistrate Judge Francis's broad discretion over discovery matters to balance these equities.")

Case Date	Jurisdiction	State	Cite Checked
2017-08-28	Federal	NY

Chapter: 28.1204

Case Name: United States v. Kmart Corp., Case No. 12-CV-881-NJR-RJD, 2017 U.S. Dist. LEXIS 110613 (S.D. Ill. July 17, 2017)

(finding that defendant's denial of scienter did not trigger an at issue waiver; "Relator asserts that these statements, indicating Kmart employees acted on the 'good faith' belief their conduct was within the bounds of applicable regulations, implicitly waives the attorney-client privilege because the truthful resolution of these statements requires the examination of confidential communications."; "In response, Kmart avers it did not place its own attorney-client communications 'at issue' in this case merely by denying scienter has been proven."; "[T]he Court concludes that Kmart has not waived the attorney-client privilege. As an initial matter, more than three years ago, Magistrate Judge Frazier found no waiver of the attorney-client privilege . . . . Magistrate Judge Frazier stated that the privilege would not be waived unless Kmart affirmatively adduced evidence at trial indicating a Kmart employee relied on legal advice . . . . Magistrate Judge Frazier also noted that if Kmart did not intend to raise such a defense, then no witness would be allowed, under anyone's questioning, to say they 'ran it by counsel.'. . . Since that day, Kmart has continued to affirmatively disavow a reliance on counsel defense. In its response to Relator's motion for summary judgment on scienter, Kmart did not raise any matter outside the scope of Relator's prima facie case, and it did not attempt to prove any defense by referring to attorney-client communications. Kmart merely denied Relator's allegations that it had the requisite knowledge to establish the scienter element of Relator's case."; "Kmart is not wielding any swords in this case. Kmart has assured the Court on multiple occasions that it will not assert a good faith reliance on counsel defense at trial. It has not affirmatively placed its communications with counsel at issue in the case.")

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

Chapter: 28.1204

Case Name: Leftwich v. City of Pittsburgh, Case No. 16-2112-JWL-GLR, 2017 U.S. Dist. LEXIS 56627 (D. Kansas April 12, 2017)

(holding that a litigant claiming an affirmative defense of qualified immunity did not waive privilege protection, but that the defendant did waive privilege protection through deposition testimony about the reasons for an employment termination; "Defendants essentially argue that the first condition is not met, because they have not taken an affirmative act to put the privileged information at issue by making it relevant to the case. Plaintiff, however, suggests their assertion of the defense of qualified immunity is itself an affirmative act. Qualified immunity serves 'to protect public officials who act in good faith, on the basis of objectively reasonable understandings of the law at the time of their actions, from personal liability on account of later-announced, evolving constitutional norms.' Defendants contend they have 'made it abundantly clear that Defendants do not intend to rely on advice or counsel from the city attorney in furtherance of [their defense(s)] . . . Defendants are not relying on the privileged legal advice from the city attorney as part of any defense in this case and have not otherwise put the legal advice at issue.'"; "The mere assertion of a defense, here qualified immunity, does not operate to waive the privilege. Similar to Heglet [Heglet v. City of Hays, Kan., No. 13-2228-KHV/KGG, 2014 U.S. Dist. LEXIS 35738, 2014 WL 1094458, at *3 (D. Kan. Mar. 19, 2014)], there is here no clear showing that Defendants have gone further than to merely assert the defense. If Defendants assert that their consultation with the City Attorney caused or justified their conduct (which, as quoted above, they adamantly deny they will do), that affirmative act would waive the privilege. At this point, however, Defendants have not waived attorney-client privilege by merely asserting a defense of qualified immunity.")

Case Date	Jurisdiction	State	Cite Checked
2017-04-12	Federal	KS

Chapter: 28.1204

**Case Name: United States ex rel. Calilung v. Ormat Industries, Ltd., No. 3:14-cv-00325-RCJ-VPC, 2016 U.S. Dist. LEXIS 100292, at *5 (D. Nev. Aug. 1, 2016)**

October 19, 2016 (PRIVILEGE POINT)

"Can You "Undo" an Implied Waiver?"

An intentional express disclosure of privileged communications normally triggers an irreversible waiver, although the disclosure might or might not cause a subject matter waiver. The waiver implications of implied waivers present more subtle issues, because clients can impliedly waive their privilege protection without disclosing privileged communications. For instance, pleading an "advice of counsel" defense impliedly waives privilege protection for pertinent privileged communications.

In United States ex rel. Calilung v. Ormat Industries, Ltd., a qui tam defendant filed an affirmative defense that it "'acted reasonably and in good faith in light of all circumstances and in compliance with all applicable legal requirements.'" No. 3:14-cv-00325-RCJ-VPC, 2016 U.S. Dist. LEXIS 100292, at *5 (D. Nev. Aug. 1, 2016) (internal citation omitted). The court found that defendant's "affirmative defenses go beyond mere denial of scienter to put its state of mind and knowledge of the [legal] requirements at issue." Id. at *14. The court thus held that defendant's implied waiver required it to produce all privileged communications about the applicable legal provisions. But then the court found it "appropriate to give [defendant] a choice": (1) "proceed with its good faith defenses and produce the relevant documents," or (2) "preserve the communications' confidentiality by abandoning the defenses that giv[e] rise to the waiver." Id. at *18.

Not all courts would be this generous, but most courts allow litigants to "undo" implied waivers by withdrawing the assertion that would otherwise require disclosure of privileged communications.

Case Date	Jurisdiction	State	Cite Checked
2016-08-01	Federal	NV	B 10/16

Comment:

key case

Chapter: 28.1204

Case Name: Financial Guaranty Insurance Co. v. The Putnam Advisory Co., LLC, 12 Civ. 7372, 2016 U.S. Dist. LEXIS 33352 (S.D.N.Y. March 15, 2016)

(finding that the plaintiff waived any otherwise available attorney-client privilege and work product protection for documents prepared by a consultant, and which the plaintiff referred to and cited in its complaint and in Second Circuit briefing; noting that referring to the consultant's work in the complaint would not have caused a waiver by itself, but that the waiver came from reliance in court; finding that the scope of the waiver can not extend beyond documents referred to in the complaint; "In its briefing, FGIC attempts to rehabilitate the privilege over the report by promising not to utilize the analysis in the future, including at trial. . . . The reference to the analysis in FGIC's complaint, standing alone, does not constitute a waiver. However, by referring to the analysis during the Second Circuit's review of this Court's decision on the motion to dismiss -- in which the Circuit determined that FGIC's allegations were 'sufficient to state claims for fraud, negligent misrepresentation, and negligence,'. . . FGIC has already used the report to sustain its causes of action, rendering MBIA distinguishable. Since FGIC 'inject[ed] the contents of a privileged communication into the litigation' by utilizing it in connection with a dispositive motion, the 'at issue' waiver applies.")

Case Date	Jurisdiction	State	Cite Checked
2016-03-15	Federal	NY

Chapter: 28.1204

Case Name: Financial Guaranty Insurance Co. v. The Putnam Advisory Co., LLC, 12 Civ. 7372, 2016 U.S. Dist. LEXIS 33352 (S.D.N.Y. March 15, 2016)

(finding that the plaintiff waived any otherwise available attorney-client privilege and work product protection for documents prepared by a consultant, and which the plaintiff referred to and cited in its complaint and in Second Circuit briefing; noting that referring to the consultant's work in the complaint would not have caused a waiver by itself, but that the waiver came from reliance in court; finding that the scope of the waiver can not extend beyond documents referred to in the complaint; "Lastly, Putnam seeks the production of an economic analysis commissioned by FGIC for this litigation. Although expert reports and other such documents prepared for the purpose of litigation are normally covered by the attorney-client and work product privileges, Putnam contends that FGIC waived any such protection when it cited to and quoted from the analysis in the SAC, and when it used the report in its Second Circuit briefing."; "In Paragraph 122 of the SAC, FGIC declares that it retained a firm of economic analysts to assess the likelihood that a suspicious pattern of referenced securities in Pyxis and other related CDOs could have occurred by chance, rather than by design. That paragraph also includes three bullet-pointed quotations from the analysis, concluding that the pattern 'may indicate that the portfolio selection by independent portfolio managers was influenced by an external factor,' that 'the probability of this happening by chance across independent portfolio managers is less than 1 in a billion,' and that the likelihood was similar to that observed in cases involving fraudulent options backdating. The analysis was referenced in order to show that the selection of financial instruments in Pyxis' portfolio was in fact conducted in conjunction with Magnetar Capital LLC ('Magnetar'), a hedge fund with a short position in Pyxis, with the goal of having Pyxis fail, creating a profit for Magnetar. See id. FGIC also referred to the report in its briefing before the Second Circuit."; "'Although FGIC did not directly cite to Paragraph 122 of the SAC in its Second Circuit briefing, it does repeatedly assert that it had independently confirmed without discovery that Pyxis' collateral was not selected independently, but. Rather for Magnetar's Benefit, a clear reference to the economic analysis.'")

Case Date	Jurisdiction	State	Cite Checked
2016-03-15	Federal	NY

Chapter: 28.1204

Case Name: Variety Stores, Inc. v. Wal-Mart Stores, Inc., No. 5:14-CV-217-BO(2), 2016 U.S. Dist. LEXIS 30085 (E.D.N.C. March 9, 2016)

(holding that Wal-Mart's Rule 30(b)(6) witness did not waive the company's privilege protection by testifying management learned from its lawyer about a trademark issue, because the testimony did not disclose the substance of the communications; also finding Wal-Mart had not impliedly waived the privilege, and that it disclaimed any intent to rely on the privilege at trial; "Variety contends that Wal-Mart impliedly waived its attorney-client privilege by allowing its Rule 30(b)(6) deponent to testify that Wal-Mart's Brand Team learned of Variety's registered tradename THE BACKYARD and associated marks from Wal-Mart's legal team. . . . Variety further argues that Wal-Mart waived the privilege by arguing on summary judgment that it acted prudently in vetting potential brand names."; "Wal-Mart has not waived its attorney-client privilege with respect to the information sought by Variety. The deposition testimony of Wal-Mart's Rule 30(b)(6) deponent did not disclose the substance of communications between legal counsel and its client. Nor did Wal-Mart place its attorney's advice in issue by disclosing or describing privileged communications in support of any claim or defense raised by Wal-Mart. Accordingly, the undersigned denies Variety's motion to compel production of the documents to which Wal-Mart has asserted attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2016-03-09	Federal	NC

Chapter: 28.1204

Case Name: Variety Stores, Inc. v. Wal-Mart Stores, Inc., No. 5:14-CV-217-BO(2), 2016 U.S. Dist. LEXIS 30085 (E.D.N.C. March 9, 2016)

(holding that Wal-Mart's Rule 30(b)(6) witness did not waive the company's privilege protection by testifying management learned from its lawyer about a trademark issue, because the testimony did not disclose the substance of the communications; also finding Wal-Mart had not impliedly waived the privilege, and that it disclaimed any intent to rely on the privilege at trial; "Wal-Mart represents that it does not intend to produce any evidence in this case as to legal counsel's advice or Wal-Mart's decision to rely upon or to disregard the advice of legal counsel.")

Case Date	Jurisdiction	State	Cite Checked
2016-03-09	Federal	NC

Chapter: 28.1204

**Case Name: Johnson v. Zurich Am. Ins. Co., Case No. 14-cv-1095-MJR-SCW, 2016 U.S. Dist. LEXIS 10754, at *3 (S.D. Ill. Jan. 28, 2016)**

("The Court first took up the issue of Plaintiff's assertion that Triple Crown [defendant] signaled that it intends to put forward a defense it was relying in good faith on the advice of counsel and/or Hylant [insured's broker]. If that were the case then the Court would likely agree that Triple Crown would have to waive its claim of attorney client privilege for the communications at issue. But at the hearing, counsel for Triple Crown unequivocally stated on the record that it would not rely on such a defense. Given that representation the Court determined it need not further consider Plaintiff's arguments on this point.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-28	Federal	IL	B 7/16

Chapter: 28.1204

**Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2768, 2016 U.S. Dist. LEXIS 7477, at *29 (E.D. Pa. Jan. 22, 2016)**

("Defendants have consistently invoked the attorney-client privilege while assuring Plaintiffs and this Court that they will not state or imply that their decisions to settle the Paragraph IV litigation were premised on the advice of counsel. Defendants have reaffirmed these positions in the motion currently before me. While it is expressly within Defendants' rights to assert the privilege, I have repeatedly advised Defendants, and I do so again here, that any last minute reversal of this position will not be allowed.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-22	Federal	PA	B 7/16

Comment:

key case

Chapter: 28.1204

Case Name: Fosbre v. Las Vegas Sands Corp., Case No. 2:10-cv-00765-APG-GWF Consolidated with: Case No.: 2:10-cv-01210-APG-GWF, 2016 U.S. Dist. LEXIS 5422 (D. Nev. Jan. 14, 2016)

(holding that defendant would not be able to rely on an advice of counsel argument at trial because they had not allowed discovery into privileged communication during pre-trial, but that they claim "good faith" reliance on others such as financial advisors without waiving their privilege protection; "Defendants allege only that they relied in good faith upon information provided by others. They have not alleged that they relied on the advice of counsel. Because Defendants assert the attorney-client privilege, they are also precluded from asserting reliance on the advice of counsel as a defense at trial. In regard to what information Defendants may have 'relied on in good faith,' Plaintiffs have had the opportunity to inquire about this during discovery. Presumably Defendants relied on financial advice received from Goldman Sachs and Jefferies which has been disclosed in discovery. Defendants have not waived the attorney-client privilege by placing the advice they received from counsel in issue.")

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

Comment:

key case

Chapter: 28.1204

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)

(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; denying General Motors' motion to impose a presumption that a witness's reference to privileged documents did not trigger a waiver, noting that the court would also have denied General Motors' argument that witnesses trial testimony should be assumed to be based on their personal knowledge rather than what they learned during privileged communications; "'New GM proposes to create a rebuttable presumption that a witness's reference to the Valukas Report or other privileged documents in response to questioning from Plaintiff's counsel is not 'offensive or affirmative use' and, in the event the Court finds the presumption is rebutted, to give New GM an 'opportunity to respond to such a finding, including by agreeing to strike such testimony and/or through a curative jury instruction.'. . . The Court agrees with Plaintiff, however, that there is no reason to impose such a presumption ex ante. . . . The process described above (and memorialized in the accompanying Order) will assure that, before acting on any alleged waiver, Plaintiff alerts the Court and New GM. If or when that happens, New GM will be given an opportunity to be heard, and the Court will weigh the factors set forth in Rule 502(a) of the Federal Rules of Evidence with the benefit of context. In light of that process, there is no need to alter the substantive standards in advance.'")

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

Comment:

key case

Chapter: 28.1204

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)

(limiting plaintiffs' questioning of the lawyer who investigated GM's ignition switch issue; noting that GM pledged not to call the lawyer or rely on the report at trial; "New GM's commitment not to make offensive use of the Valukas Report also undermines Plaintiff's argument that they are entitled to ask about the bases for Valukas's conclusions because 'multiple MDL deponents interviewed by Mr. Valukas have disputed his account of their interviews.'. . . As New GM points out, '[b]ecause New GM will not offer the Valukas Report as evidence or call Mr. Valukas to testify, any alleged discrepancy between the Valukas Report and any witness's testimony is irrelevant.'. . . Plaintiffs can call whatever witnesses they believe will help their case, and New GM will not be permitted to contradict those witnesses' testimony with the information contained in the Valukas Report. Accordingly, the Court agrees with New GM that Plaintiffs may not question Valukas about what documents and materials he considered in connection with preparation of the Valukas Report or about the bases for conclusions contained in the Report.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-11	Federal	NY

Comment:

key case

Chapter: 28.1204

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)

(limiting plaintiffs' questioning of the lawyer who investigated GM's ignition switch issue; noting that GM pledged not to call the lawyer or rely on the report at trial; "Whether or not New GM has held the Valukas Report out to the world as a definitive account (something that New GM has disputed), it has repeatedly committed to not holding the Report out at all in these proceedings, and the Court will hold New GM to that commitment. . . . the Report's contents will not be introduced as evidence unless Plaintiffs themselves choose to do so.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-11	Federal	NY

Chapter: 28.1204

Case Name: Cue, Inc. v. GM LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)

(holding that General Motors did not waive privilege protection by mentioning in a pleading its intent to rely on advice of counsel, because GM disclaimed any intent to do so at trial; "In its opposition to Cue's motion to compel, GM provided a list of six facts on which it intends to rely to demonstrate its lack of bad faith in selecting the CADILLAC CUE mark. . . . One of those facts consists of evidence that '[t]he legal liaison [Mr. Merrill] conveyed to the ad hoc committee that the legal department gave an 'okay' to proceed with using the name CADILLAC CUE[.]'. . . During oral argument on the motion to compel, Cue seized on this statement to argue that GM has waived its claim of privilege over the April 3, 2011 email by placing its attorney's advice directly at issue. While this court agrees that GM's use of that fact would place its counsel's advice at issue in the case, it finds that GM's statement is at odds with its representations to the court that it did not intend to rely on advice of its counsel, and its otherwise consistent efforts to preserve the privilege over email communications involving such advice. Therefore, this court will deny the motion without prejudice to renewal if GM seeks to use the legal department's 'okay' in order to show a lack of bad faith.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-10	Federal	MA

Chapter: 28.1204

Case Name: Smith v. Scottsdale Insurance Company, No. 15-1002, 2015 U.S. App. LEXIS 13290 (4th Cir. App. July 30, 2015)

("We conclude that Scottsdale did not affirmatively place any attorney-client privileged matters at issue. '[A]dvice is not in issue merely because it is relevant, and does not come in issue merely because it may have some affect on a client's state of mind.'. . . Further, Scottsdale did not assert any claim or defense based on counsel's advice in the underlying case; instead, it maintained that its actions were based on its own evaluation of the case and the City's refusal to consent to a settlement.")

Case Date	Jurisdiction	State	Cite Checked
2015-07-30	Federal

Chapter: 28.1204

Case Name: Smith v. Scottsdale Insurance Company, No. 15-1002, 2015 U.S. App. LEXIS 13290 (4th Cir. App. July 30, 2015)

("The Estate argues that the attorney's opinions are 'at issue' here because of the intimacy of the involvement of the attorneys and adjusters in determining the course of the civil rights lawsuit. Here, however, Scottsdale has never contended that it relied upon counsel's opinions in refusing to settle. It has consistently asserted that it made the decision based on its own conclusions and the City's decision, which was not made on the advice of counsel.")

Case Date	Jurisdiction	State	Cite Checked
2015-07-30	Federal

Chapter: 28.1204

Case Name: Perino v. Edible Arrangements Int'l, Inc., Civ. No. 3:13CV1411 (JBA), 2015 U.S. Dist. 39131 (D. Conn. March 27, 2015)

(finding that the privilege protected a forensic audit of plaintiff's alleged misconduct prepared by an outside accounting firm retained by a lawyer; also finding that the defendant did not waive the privilege by mentioning the report in press releases, because it did not intend to rely on the report at trial; "At the March 2 conference, defendant represented that it was not relying on the subject report in support of its defense and that defendant had maintained the confidentiality of the report. Further, to the extent that plaintiff relies on Mr. Farid's reference of the report to the media, the Court finds that the reference does not reveal the specifics of the report, and if anything, more corresponds to a party generally consulting with counsel.")

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

Chapter: 28.1204

Case Name: In re Method of Processing Ethanol Byproducts and Related Subsystems ('858) Patent Litig., Master Case: 1:10-ml-02181-LJM-DML, Related Case: 1:13-mc-00058-LJM-DML, 2014 U.S. Dist. LEXIS 88512, at *12-13 (S.D. Ind. June 30, 2104)

("This court has no indication that CleanTech or the inventors intend to use the fact or content of any communications with and advice from counsel (whether their original patent prosecution counsel or lawyers at Cantor Colburn) as evidence of good faith dealings with the PTO. There is thus no basis, at this point, on which to find an express or implied waiver of the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-06-30	Federal	IN

Chapter: 28.1204

**Case Name: Int'l Union v. Honeywell Int'l, Inc., Civil Action No. 11-14036, 2014 U.S. Dist. LEXIS 81608, at *16-17 (E.D. Mich. June 12, 2014)**

(analyzing the at issue doctrine; although acknowledging that defendant's subjective understanding was important, finding that defendant's disclaimer of any intent to rely on privileged communications prevented an at issue waiver; "Finally, the Court addresses the UAW's argument that without access to these privileged materials it will not be able to rebut Honeywell's claims of actual reliance. The Court acknowledges the UAW's point that the District Court has found the 'actual reliance' prong of a breach of implied warranty claim to be wholly subjective in nature. . . . While the Court appreciates the uphill battle the UAW must fight on this issue, it would fight one whether these materials remained privileged or, as Honeywell claims, do not even exist. The Court reiterates that there is presently no evidence that these communications do exist, as no one has testified to their existence, and at least some negotiators have specifically denied discussing the matter with counsel.")

Case Date	Jurisdiction	State	Cite Checked
2014-06-12	Federal	MI

Chapter: 28.1204

**Case Name: Int'l Union v. Honeywell Int'l, Inc., Civil Action No. 11-14036, 2014 U.S. Dist. LEXIS 81608, at *18-19 (E.D. Mich. June 12, 2014)**

(analyzing the at issue doctrine; although acknowledging that defendant's subjective understanding was important, finding that defendant's disclaimer of a many intent to rely on privileged communications prevented an at issue waiver; "[I]n the present motion, the UAW points to the timing of Honeywell's declaratory judgment action, the number of attorneys Honeywell retained and their quality, the number of times it communicated with its attorneys, the well-settled nature of the law as to the UAW's authority to bind retirees, as well as other outward representations by Honeywell on the subject of authority to bargain, all of which constitutes circumstantial evidence that could be used to rebut Honeywell's claims of actual reliance. And indeed, while the UAW will be free to make these same arguments at the merits stage of the proceedings, it would seem that Honeywell would be unable to directly attack these arguments without drawing in the very communications it seeks to protect. . . . But that appears to be a risk Honeywell is willing to take and, as a result, it has preserved its privilege with regard to the materials at issue.")

Case Date	Jurisdiction	State	Cite Checked
2014-06-12	Federal	MI

Chapter: 28.1204

**Case Name: Int'l Union v. Honeywell Int'l, Inc., Civil Action No. 11-14036, 2014 U.S. Dist. LEXIS 81608, at *13-14 (E.D. Mich. June 12, 2014)**

(analyzing the at issue doctrine; although acknowledging that defendant's subjective understanding was important, finding that defendant's disclaimer of a many intent to rely on privileged communications prevented an at issue waiver; "In the instant case, however, Honeywell has repeatedly and unequivocally represented that it will not introduce into evidence either the existence or the content of any privileged communication in proving its claims or defending against the UAW's claims. In fact, Honeywell represents that it will not even introduce into evidence the fact that its negotiators did not have communications with counsel, let alone the content of any such communication. Therefore, because Honeywell has not taken, and has represented that it will not take any 'affirmative step[s] to place the content of the confidential communication into the litigation,' it has not waived the attorney-client privilege with respect to those documents.")

Case Date	Jurisdiction	State	Cite Checked
2014-06-12	Federal	MI

Chapter: 28.1204

Case Name: Teal Bay Alliances, Inc. v. Southbound One, Inc., Case No. MJG-13-2180, 2014 U.S. Dist. LEXIS 55378 (D. Md. April 21, 2014)

("Until Southbound asserts that it will rely on the advice-of-counsel defense with respect to advice it received from its litigation counsel, this communication remains protected by the attorney-client privilege and the work-product doctrine.")

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

Chapter: 28.1204

Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-02186-BLW-CWD, 2014 U.S. Dist. LEXIS 50828 (D. Idaho April 11, 2014)

("Offutt Defendants explain in their memorandum that they have not, will not, and need not rely upon communications with counsel to prove their affirmative defenses. The Court has no reason to question Offutt Defendants' assertions. Because Offutt Defendants have not put the withheld documents at issue, the Court will not order production of the withheld documents."; "However, based upon the reasoning above, if Offutt Defendants refer to or attempt to put into evidence any suggestion that Offutt Defendants sought, obtained or relied upon counsel's advice in determining whether to conduct business with the cooperative organizations, Offutt Defendants waive the privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-04-11	Federal	ID

Chapter: 28.1204

**Case Name: DeWitt v. Sw. Bell Tel. Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *19-20 (D. Kan. Feb. 24, 2014)**

(finding that a plaintiff had not triggered an at issue waiver by answering questions about communications with her lawyer, and that defendant had not triggered an at issue waiver by asserting "good faith" defenses; "Southwestern Bell states that at trial it 'does not intend to offer or rely on evidence of the substance of any legal advice it received concerning the disciplinary actions taken against Plaintiff.' Instead, it plans to rely on its policies, anti-discrimination enforcement efforts, and the like. The court finds that Southwestern Bell has not waived the attorney-client privilege through assertion of these affirmative defenses." (internal citation and footnote omitted))

Case Date	Jurisdiction	State	Cite Checked
2014-02-24	Federal	KS	B 7/14

Chapter: 28.1204

**Case Name: DeWitt v. Southwestern Bell Telephone Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014)**

May 7, 2014 (PRIVILEGE POINT)

"Is it Possible to Gain the Advantage of an "Advice of Counsel" Defense Without Suffering the Waiver Consequences?"

The logistics of privileged communications generally do not deserve protection – so a company executive can testify that she obtained a lawyer's advice without risking a waiver. See, e.g., Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014) (finding that a plaintiff had not waived privilege protection by testifying at a deposition that "she had conversations with" her lawyer). However, a company would clearly waive privilege protection by affirmatively asserting an "advice of counsel" defense. Can a company "thread the needle" by presenting the logistical facts to the jury with the hope that it will essentially give the company the advantage of the defense – without its cost?

In DeWitt v. Southwestern Bell Telephone Co., plaintiff argued that Southwestern waived its privilege when employees testified that "they took certain actions after they 'cleared it with legal' or 'got approval from legal.'" Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014) (internal citation omitted). The court rejected plaintiff's argument, concluding that "a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department." Id. The court also rejected plaintiff's argument that Southwestern Bell waived its privilege by filing defenses pointing to the company's "good faith" handling of plaintiff's disability. The court noted that Southwestern pledged "that at trial it 'does not intend to offer or rely on evidence of the substance of any legal advice it received concerning the disciplinary actions taken against Plaintiff.'" Id. at *19 (internal citation omitted). This promise pointedly dealt only with the "substance of" legal advice, not the logistics of company executives' interactions with the law department.

Some courts would expect companies hoping to avoid a waiver to explicitly disclaim any intent to affirmatively introduce at trial either the "substance" or the fact of such privileged communications.

Case Date	Jurisdiction	State	Cite Checked
2014-02-24	Federal	KS

Comment:

key case

Chapter: 28.1204

**Case Name: Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014)**

May 7, 2014 (PRIVILEGE POINT)

"Is it Possible to Gain the Advantage of an "Advice of Counsel" Defense Without Suffering the Waiver Consequences?"

The logistics of privileged communications generally do not deserve protection – so a company executive can testify that she obtained a lawyer's advice without risking a waiver. See, e.g., Mendillo v. Prudential Ins. Co. of Am., Civ. No. 3:12CV1383 (WWE), 2014 U.S. Dist. LEXIS 22451, at *17 (D. Conn. Feb. 20, 2014) (finding that a plaintiff had not waived privilege protection by testifying at a deposition that "she had conversations with" her lawyer). However, a company would clearly waive privilege protection by affirmatively asserting an "advice of counsel" defense. Can a company "thread the needle" by presenting the logistical facts to the jury with the hope that it will essentially give the company the advantage of the defense – without its cost?

In DeWitt v. Southwestern Bell Telephone Co., plaintiff argued that Southwestern waived its privilege when employees testified that "they took certain actions after they 'cleared it with legal' or 'got approval from legal.'" Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014) (internal citation omitted). The court rejected plaintiff's argument, concluding that "a deponent does not waive the attorney-client privilege when, in response to questions, the deponent references its interactions with the legal department." Id. The court also rejected plaintiff's argument that Southwestern Bell waived its privilege by filing defenses pointing to the company's "good faith" handling of plaintiff's disability. The court noted that Southwestern pledged "that at trial it 'does not intend to offer or rely on evidence of the substance of any legal advice it received concerning the disciplinary actions taken against Plaintiff.'" Id. at *19 (internal citation omitted). This promise pointedly dealt only with the "substance of" legal advice, not the logistics of company executives' interactions with the law department.

Some courts would expect companies hoping to avoid a waiver to explicitly disclaim any intent to affirmatively introduce at trial either the "substance" or the fact of such privileged communications.

Case Date	Jurisdiction	State	Cite Checked
2014-02-20	Federal	CT

Comment:

key case

Chapter: 28.1204

**Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *25-26 (D. Kan. Feb. 11, 2014)**

(holding that testimony about the fact of a communication did not result in a waiver, even if it included the ultimate conclusion but did not disclose the reasoning or analysis; "[D]efendants have not demonstrated that Sprint relied on the advice or communications of its counsel to prove a claim or justify certain conduct on Sprint's part, nor that if Sprint had so done, it was 'manifestly unfair' to Vonage [defendant in a separate trial]. Second, defendants have not presented any support for their inferred argument that implicit waiver (in contrast to subject matter waiver based on explicit waiver) in one case can carry over to a subsequent case. Given the fairness consideration at issue in implicit waiver situations -- i.e., manifest unfairness to the opposing party -- the court is not persuaded that implicit waiver automatically carries over to subsequent cases. Finally, defendants have not demonstrated that Sprint plans to rely on the advice that counsel gave it with respect to possible infringement by Vonage to prove a claim in this case. The court will follow the approach taken in Williams [Williams v. Sprint/United Mgmt. Co., 464 F. Supp. 2d 1100 (D. Kan. 2006)] and New Jersey v. Sprint [New Jersey v. Sprint Corp., 258 F.R.D. 421 (D. Kan. 2009)] by allowing defendants to revisit this issue should Sprint 'affirmatively and voluntarily inject the reliance on counsel issue at trial or in subsequent briefing' in this action." (footnotes omitted))

Case Date	Jurisdiction	State	Cite Checked
2014-02-11	Federal	KS	B 7/14

Chapter: 28.1204

**Case Name: Yarberry v. Gregg Appliances, Inc., Case No. 1:12-cv-611, 2013 U.S. Dist. LEXIS 117198, at *15 (S.D. Ohio Aug. 19, 2013)**

("[T]he current record indicates only that Mr. Buttrick [lawyer] provided legal counsel to Ms. Bush and there is no evidence that Mr. Buttrick was involved in the decision to terminate Plaintiff. As detailed above, the evidence reflects that Ms. Bush made the decision to terminate Plaintiff. . . . If there is an advice of counsel defense raised at trial, or if privileged information relating to Mr. Buttrick's legal advice is presented or otherwise disclosed at trial, Plaintiff may revisit the waiver of privilege issue at that time.")

Case Date	Jurisdiction	State	Cite Checked
2013-08-19	Federal	OH	B 4/14

Chapter: 28.1204

**Case Name: Grace Vill. Health Care Facilities, Inc. v. Lancaster Pollard & Co., Civ. No. 3:11cv295, 2013 U.S. Dist. LEXIS 110313, at *9-10 (N.D. Ind. Aug. 6, 2013)**

(finding the at issue doctrine inapplicable in a case where the plaintiff claimed that the defendant had botched plaintiffs' claim in the Lehman bankruptcy, which forced plaintiffs to settle with Lehman; "[T]he law is clear that Grace Village does not have to defend the advice it received from its attorneys. Price [Price v. Amoco Oil Co., 527 F. Supp. 364, 365 (S.D. Ind. 1981)], supra; Deutsche Bank [Deutsche Bank Trust Co. of Ams. v. Tri-Links Inv. Trust, 43 A.D.3d 56 (N.Y. App. Div. 2007)], supra. Rather, Grace Village need only prove that the decision to settle, and the terms, were reasonable. This is an objective standard, and the Court sees no need to require Grace Village to divulge the specifics of its communications with counsel regarding the settlement. As the Magistrate Judge noted, Grace Village has not stated that it intends to use privileged materials as proof of its claims (nor is any such implication apparent in the record).")

Case Date	Jurisdiction	State	Cite Checked
2013-08-06	Federal	IN	B 4/14

Chapter: 28.1204

**Case Name: Swift Spindrift, Ltd. v. Alvada Ins., Inc., No. 09 Civ. 9342 (AJN) (FM), 2013 U.S. Dist. LEXIS 104296, at *18 (S.D.N.Y. July 24, 2013)**

("Alvada argues further that Swift has waived the attorney-client privilege by placing its reliance on the advice of counsel at issue. . . . While it is true that the assertion of an advice-of-counsel defense ordinarily results in an implied waiver of the privilege . . ., Swift has not raised that defense in this case. Indeed, Swift has expressly disavowed that defense. . . . Furthermore, should Swift seek to change its position at a later date, it will risk having waived the defense.")

Case Date	Jurisdiction	State	Cite Checked
2013-07-24	Federal	NY	B 4/14

Chapter: 28.1204

**Case Name: Smith v. Pizza Hut, Inc., Civ. A. No. 09-cv-01632-CMA-BNB, 2013 U.S. Dist. LEXIS 57929, at *5-6 (D. Colo. Apr. 23, 2013))**

("In this case, I find that there has not been an at issue waiver of the attorney-client privilege. Although Pizza Hut will rely on certain studies performed by Runzheimer [consultant] and others, there is no showing that it will rely in its defense on materials created by Ms. Burkhardt or other Pizza Hut lawyers or on their legal advice or opinions. The studies, which are not privileged and on which Pizza Hut will rely in defense, must be produced in their entirety, including drafts and raw data. The legal advice given to Pizza Hut based on those studies, on which Pizza Hut does not intend to rely, is privileged, and there has been no waiver of that privilege.")

Case Date	Jurisdiction	State	Cite Checked
2013-04-23	Federal	CO	B 3/14

Chapter: 28.1204

Case Name: Mass. Mut. Life Ins. Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 293 F.R.D. 244, 246-47, 247, 249, 250, 253 (D. Mass. 2013)

(analyzing plaintiff's reliance on a outside consultant's forensic review in its complaint, and its later disclaimer of any intent to use the review at trial; applying the Rule 502 subject matter waiver standard, and finding that the plaintiff had not triggered an at issue doctrine or other waiver requiring disclosure of additional documents relating to the review; "The 'forensic review,' was conducted by an outside consultant at the direction of plaintiff's litigation counsel. . . . There is no dispute but that the review was a substantial basis upon which the allegations of the complaint were made and was cited in over thirty separate paragraphs of its complaint."; "Defendants sought discovery concerning the forensic review; plaintiff resisted, claiming that the forensic review is protected by the attorney-client privilege and/or work product doctrine. . . . In defendants' view, any privilege was waived when the plaintiff put the materials at issue by relying on them in its complaint."; "[T]he plaintiff opposed the defendants' motion, but as to the third ground, stated unequivocally that it does not intend to rely on the forensic review to prove its claims at trial. . . . The plaintiff contends that the documents concerning the pre-filing forensic review are privileged under the attorney-client privilege and/or are protected by the work-product documents [sic] and that the use of the forensic review in the complaint does not operate as a waiver of the privilege or protection because of its disclaimer that it will not use the review in any way to prove its claims at trial. Rather, the forensic review was simply 'pre-filing data and analysis used to determine whether allegations have a good-faith basis.'"; "The Court rules that, under Massachusetts law, the forensic review materials are privileged as attorney-client matter."; "In the instant case, the plaintiff's claims are almost entirely premised on the results of its review. . . . Thus, the defendants' answers and defenses likewise respond to plaintiff's reliance on the privileged material. This would make the forensic review relevant but, on the facts of this case, is the forensic review 'enmeshed'. . . such that the privilege should fall? . . . Put another way, is forensic review 'enmeshed' if it will in no way be used as evidence to prove MassMutual's claims?"; "[T]he Court looks to cases in which pre-litigation evaluations, audits or reviews are referenced in support of the allegations of the initial complaint and whether there is a disclaimer that the materials will not be used as evidence at trial to prove any of plaintiff's claims."; "[T]he issue of waiver, in the end, is whether what was disclosed and what is sought by the motion to compel 'ought in fairness be considered together.' Rule 502(a)(3), Fed. R. Evid. Based on the above-cited case law, the Court rules that, in the circumstances of the instant case, 'fairness' does not require that MassMutual disclose any additional documents or information relative to the forensic review. The major factor which leads to this ruling is that MassMutual does not need the forensic review to prove its claims and has explicitly eschewed any use of the forensic review as evidence at trial. There has been no 'at issue' waiver, . . . and since the forensic review will be not be used as evidence at trial, there is no danger that what has not been disclosed is 'enmeshed' with what has been disclosed so as to create any unfairness or prejudice to the defendants.")

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

Chapter: 28.1204

**Case Name: Shared Med. Res., LLC v. Histologics, LLC, No. SACV 12 0612 DOC (RNBx), 2012 U.S. Dist. LEXIS 164336, at *7 (C.D. Cal. Nov. 14, 2012)**

("A party may stop the waiver-by affirmative-reliance doctrine from applying 'by not voluntarily disclosing privileged information.'" (citation omitted))

Case Date	Jurisdiction	State	Cite Checked
2012-11-14	Federal	CA	B 7/13

Chapter: 28.1302

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)

(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; denying General Motors' motion to impose a presumption that a witness's reference to privileged documents did not trigger a waiver, noting that the court would also have denied General Motors' argument that witnesses trial testimony should be assumed to be based on their personal knowledge rather than what they learned during privileged communications; "'New GM proposes to create a rebuttable presumption that a witness's reference to the Valukas Report or other privileged documents in response to questioning from Plaintiff's counsel is not 'offensive or affirmative use' and, in the event the Court finds the presumption is rebutted, to give New GM an 'opportunity to respond to such a finding, including by agreeing to strike such testimony and/or through a curative jury instruction.'. . . The Court agrees with Plaintiff, however, that there is no reason to impose such a presumption ex ante. . . . The process described above (and memorialized in the accompanying Order) will assure that, before acting on any alleged waiver, Plaintiff alerts the Court and New GM. If or when that happens, New GM will be given an opportunity to be heard, and the Court will weigh the factors set forth in Rule 502(a) of the Federal Rules of Evidence with the benefit of context. In light of that process, there is no need to alter the substantive standards in advance.'")

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

Comment:

key case

Chapter: 28.1303

Case Name: Bivins v. Rogers, Civ. No. 15-CV-81298-MARRA/MATTHEWMAN, 2017 U.S. Dist. LEXIS 64067 (S.D. Fla. April 27, 2017)

(holding that defendant's deposition questions about having relied on the advice of counsel did not trigger an implied waiver; "In each of the three motions, Plaintiff is moving to compel responses to certain deposition questions for which Defendants Ashley Crispin, Esq., Brian M. O'Connell, Esq., and Stephen Kelly asserted the attorney-client and/or work-product privilege. . . . Plaintiff argues that, since Defendant Stephen Kelly, as guardian, testified at his January 11, 2017 deposition that he relied upon the advice of legal counsel in acting for the deceased ward, privilege has been waived based on the principles of sword and shield and issue injection."; "Defendants point out that the guardians 'never stated that they believed their actions were legal because of the advice of counsel. Rather, they merely explained in deposition that certain actions taken, which the Guardianship Court approved, were done with the advice of counsel.'. . . Defendants argue that the guardians have not alleged advice of counsel as a defense and that none of the defendants need 'the information that is claimed as privileged to establish their defenses.'"; "The guardians have not made an argument at any stage of the case that they could not have breached their fiduciary duty because they relied on the advice of counsel to carry out their duties to the ward. They have not asserted in their affirmative defenses or motion for summary judgment a reliance on advice of counsel defense, nor did they file a counter-claim. Thus, the guardians have not injected the issue into the proceedings such that the attorney-client privilege has been waived. Rather, the guardians and defense counsel simply asserted the attorney-client privilege on a question-by-question basis at the various depositions when they believed that information was protected by the privilege.")

Case Date	Jurisdiction	State	Cite Checked
2017-04-27	Federal	FL

Chapter: 28.1303

Case Name: N.J. Manufacturers Ins. Co. v. Brady, Civ. A. No. 3:15-CV-02236, 2017 U.S. Dist. LEXIS 8268 (M.D. Pa. Jan. 20, 2017)

(finding that litigant did not trigger an at issue doctrine waiver by saying that it relied on advice of counsel; "The Court concludes that NJM has not waived its privilege with respect to the confidential communications in the NJM file by affirmatively placing its attorneys' advice at issue. First, NJM is not attempting to prove a claim or defense by disclosing or describing an attorney-client communication. Rather, it is the Defendants who seek confidential communications between NJM and Curtin & Heefner to ultimately support their own defenses that (1) NJM would have successfully molded the arbitration award to the policy limits had it not elected to settle, and (2) NJM was motivated to settle because of its exposure to bad faith liability. . . . Because NJM has not taken an affirmative step to place the advice of counsel in issue in order to prove an essential element of its malpractice claim or any defense, the Court concludes it has not implicitly waived the attorney-client privilege with respect to the confidential communications in the NJM file."; "[J]ust as the content of the deposition testimony of Bartolino and Buurma does not constitute an express waiver, it also does not place the confidential communications sought "at issue" in the litigation. No testimony cited by Defendants disclosed or described the details of any confidential communication made between NJM and Curtin & Heefner. . . . The mere fact that a party states that it relied on the advice of counsel in making a decision, standing alone, does not show that the party took an 'affirmative step' to place that advice in issue.")

Case Date	Jurisdiction	State	Cite Checked
2017-01-20	Federal	PA

Comment:

key case

Chapter: 28.1303

Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)

(ultimately not deciding whether a deponent's one word deposition answers triggered an at issue waiver; "We turn now to the question of at-issue waiver. While our supreme court has recognized some implied waivers of the attorney-client privilege . . . it has not yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that federal caselaw has recognized an at-issue waiver, but the court declined to address the issue because it was not necessary in the case before it. . . . Nor has this court recognized an at-issue waiver."; "Truscott was compelled in a deposition -- in a case in which she is a defendant -- to answer respondents' questions as to whether she relied on the advice of her counsel. She gave one-word responses to the questions. These compelled responses are not affirmative steps taken by a client to place privileged communications 'at issue.' . . . Respondents have cited no case where a defendant's answer to such a question in a deposition effects an implied waiver of the attorney-client privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants in depositions if they relied on the advice of their counsel in taking an action. Defendants who wisely sought legal advice before terminating an employee, publishing a news article, or taking any other number of actions later giving rise to a claim where their state of mind is at issue would find their privileged communications subject to discovery simply because they truthfully responded in a deposition that they relied on the advice of counsel. Such an implied waiver could chill parties from being candid with their counsel or even seeking legal advice."; "Truscott insists that she has no plans to assert a reliance-on-counsel defense in this case. She made the same assertion to the district court in her memorandum of law supporting her motion to quash. We agree with Truscott that she has not raised a reliance-on-counsel defense through the generic statement in her answer that respondents' claims 'may be barred . . . by any or all of the affirmative defenses contemplated by the Minnesota Rules of Civil Procedure.'. . . If Truscott attempts to raise the defense, respondents may seek appropriate relief and the district court may consider whether such an affirmative step implies a waiver of the attorney-client privilege. At present, however, Truscott has not affirmatively asserted the reliance-on-counsel defense and has not by implication waived the attorney-client privilege.")

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

Comment:

key case

Chapter: 28.1303

Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)

(ultimately not deciding whether a deponent's one word deposition answers triggered an at issue waiver; "We turn now to the question of at-issue waiver. While our supreme court has recognized some implied waivers of the attorney-client privilege . . . It has not yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that federal caselaw has recognized an at-issue waiver, but the court declined to address the issue because it was not necessary in the case before it. . . . Nor has this court recognized an at-issue waiver."; "Truscott was compelled in a deposition -- in a case in which she is a defendant -- to answer respondents' questions as to whether she relied on the advice of her counsel. She gave one-word responses to the questions. These compelled responses are not affirmative steps taken by a client to place privileged communications 'at issue.' . . . Respondents have cited no case where a defendant's answer to such a question in a deposition effects an implied waiver of the attorney-client privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants in depositions if they relied on the advice of their counsel in taking an action. Defendants who wisely sought legal advice before terminating an employee, publishing a news article, or taking any other number of actions later giving rise to a claim where their state of mind is at issue would find their privileged communications subject to discovery simply because they truthfully responded in a deposition that they relied on the advice of counsel. Such an implied waiver could chill parties from being candid with their counsel or even seeking legal advice."; "Truscott insists that she has no plans to assert a reliance-on-counsel defense in this case. She made the same assertion to the district court in her memorandum of law supporting her motion to quash. We agree with Truscott that she has not raised a reliance-on-counsel defense through the generic statement in her answer that respondents' claims 'may be barred . . . By any or all of the affirmative defenses contemplated by the Minnesota Rules of Civil Procedure.'. . . If Truscott attempts to raise the defense, respondents may seek appropriate relief and the district court may consider whether such an affirmative step implies a waiver of the attorney-client privilege. At present, however, Truscott has not affirmatively asserted the reliance-on-counsel defense and has not by implication waived the attorney-client privilege.")

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

Comment:

key case

Chapter: 28.1303

**Case Name: Garcia v. Completely Kids, No. 8:14CV119, 2016 U.S. Dist. LEXIS 5356, at 9, 9 10 (D. Neb. Jan. 15, 2016)**

(finding that an employer defendant did not impliedly waive privilege protection, although the evidence showed that the decision-maker consulted with a lawyer before firing the plaintiff; noting that the employer's Rule 30(b)(6) representative mentioned the consultation in response to a leading question; "As to the good faith defense, Parker, as the 30(b)(6) representative for Completely kids [sic], provided a long explanation for the basis of defendant's good faith defense, mentioning consultation with counsel in response to only one leading question."; "There is nothing of record stating Defendant relied on counsel in deciding whether to terminate, discriminate, or retaliate against Plaintiff. At most, Defendant testified that it relied on defense counsel regarding the necessary procedural steps for termination under Defendant's employee policies and plans. Plaintiff is not pursuing an action for breach of company policies. As such, the record fails to show Defendant asserted reliance on an attorney's advice regarding any 'element of a claim or defense' at issue. Under the facts presented, and as to the claims alleged in this case, Defendant is not relying on the advice of counsel such that it would be unfair and inconsistent to permit Defendant to retain the privilege. In accordance with the high protection afforded attorney-client communications, and the caution to be exercised in finding any implied waiver, IT IS ORDERED that Defendant's Motion for Protective Order . . . is granted.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-15	Federal	NE	B 7/16

Comment:

key case

Chapter: 28.1303

Case Name: In Piazza v. County of Luzerne, Civ. A. No. 3:13-CV-1755, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015)

December 23, 2015 (PRIVILEGE POINT)

"Corporations Can Risk Privilege Protection by Relying Too Heavily on Legal Advice when Firing Employees"

Corporations firing employees normally must explain why. All corporate lawyers recognize that affirmatively pleading "advice of counsel" as an employment case defense normally waives privilege protection, but the risks can be more subtle.

In Piazza v. County of Luzerne, Civ. A. No. 3:13-CV-1755, 2015 U.S. Dist. LEXIS 147283 (M.D. Pa. Oct. 30, 2015), plaintiff claimed that the county unlawfully fired him. When asked why the county fired plaintiff, the county's decision-maker (and co-defendant) answered "'I did so on the advice of counsel.'" Id. At *2 (internal citation omitted). When asked if there was "'[a]nything else?,'" the witness responded, "'That's all at this point.'" Id. Later in the deposition, the county's lawyer objected to questions about whether the decision-maker's "beliefs were based on advice from counsel," and what "sources of information informed [the decision-maker's] belief that Plaintiff had exceeded his authority." Id. At *4. Acknowledging that the defendants had not filed a formal "advice of counsel" defense, the court nevertheless found a privilege waiver — pointing to (1) the decision-maker's testimony "that he initially had nothing to add to his statement that he terminated Plaintiff 'on the advice of counsel,'" and (2) his later testimony that the firing was based on his belief that the plaintiff acted improperly "and this belief was based on his conversations" with the county's lawyer. Id. At *11. The court held that the waiver extended to all "communication[s] relied on by [the decision-maker] which he testified formed the basis of his termination decision." Id.

Corporations (and other institutions) can impliedly waive their privilege protection without affirmatively pleading an "advice of counsel" defense. In employment cases, decision-makers should rely on underlying facts from sources other than just their lawyers, and should be prepared to testify about the reasons for employment decisions other than those lawyers' advice.

Case Date	Jurisdiction	State	Cite Checked
2015-10-30	Federal	PA

Comment:

key case

Chapter: 28.1303

Case Name: McKee v. Petsmart, Inc., Civ. A. No. 12-1117-SLR-SRF, 2014 U.S. Dist. LEXIS 146583 (D. Del. Oct. 15, 2014)

(analyzing the implied waiver doctrine in the context of a compliance review; "Plaintiffs' counsel persisted in their efforts to obtain an admission by Burris [Defendant's Director of Compensation] that various legal opinions provided by defendant's counsel factored into his analysis of operations manager exemption classifications under the FLSA, but Burris denied relying on or reviewing such opinions at numerous points throughout his testimony.")

Case Date	Jurisdiction	State	Cite Checked
2014-10-15	Federal	DE

Chapter: 28.1303

Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644 Section "N" (3), 2014 U.S. Dist. LEXIS 138661 (E.D. La. Sept. 30, 2014)

(concluding that in deposition testimony an executive relied on legal advice did not cause a waiver; explaining the context: "When asked who led Total to the decision not to pay the ORRIs, Total identified its former CEO Jean-Michel Lavergne and indicated that he relied on the advice of counsel Thoams W. Ryan, David C. Houck, C. Peck Hayne, Jr., and Scott A. O'Connor. Lavergne testified that he relied on the advice of counsel Tom Ryan when he concluded not to pay the ORRIs. Ryan was then instructed not to answer certain questions at his deposition regarding the determination not to pay the ORRIs."; "Total begins its opposition with the sentence: 'To avoid any question of doubt, Total hereby stipulates that it will not assert reliance on its counsel as an element of any claim or defense in this case.'"; "Here, Total stipulated that it will not raise the advice of counsel as a claim or defense. In addition, Total notes that it has never even used the term; Kerr-McGee used it at Total's corporate deposition. Because it stipulated so, there can be no finding of blanket waiver. And as to specific waiver, the Court finds nothing in the pleadings about the substance of any communication. That Total or its counsel testified that advice occurred is of no moment. Courts hold that only if the substance of the underlying communication is disclosed will there be a finding of waiver."; "Kerr-McGee asks the Court to open a precipitous door. Were the Court to hold as Kerr-McGee asks, any individual involved in litigation who testifies, 'I talked to an attorney,' would be deemed to have waived any attorney-client privilege. This Court is not willing to open that door.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-30	Federal	LA

Comment:

key case

Chapter: 28.1303

**Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *22-23 (N.D. Ohio Aug. 8, 2013)**

("The Court rejects Trustee's argument that Karen Myers waived attorney-client privilege either through a good faith belief in her claim or through her statement that she made her claim only after an analysis of her situation and review of the law. These assertions by Karen Myers do not rise to the level of putting her attorney's advice in issue in the litigation at the present time.")

Case Date	Jurisdiction	State	Cite Checked
2013-08-08	Federal	OH	B 4/14

Chapter: 28.1303

**Case Name: Synygy, Inc. v. ZS Assocs., Inc., Civ. A. No. 07-3536, 2013 U.S. Dist. LEXIS 106109, at 5, 7, *7-8 (E.D. Pa. July 29, 2013)**

("ZS and ZSAI have not set forth any evidence to support a finding that, prior to Stiffler's [plaintiff's CEO] deposition, Synygy had asserted advice of counsel as a defense to ZS's and ZSAI's claims that the press release was defamatory, commercially disparaging and in violation of the Lanham Act."; "After review of the relevant deposition excepts, I find that it was counsel for ZS and ZSAI and not Stiffler who first raised the issue of whether Synygy had relied on the advice of its counsel in choosing the language included in the press release."; "Upon further questioning, Stiffler explained that the release 'was vetted by legal counsel,' . . . prompting counsel for ZS and ZSAI to ask, '[s]o you're saying that legal counsel chose the word 'theft?' . . . Counsel for Synygy objected and Stiffler answered that he was 'saying that legal counsel allowed the word to be sent in a press release.' . . . Counsel for ZS and ZSAI then asked '[y]ou're not blaming legal counsel for the contents of this release, are you?' . . . Siffler answered, '[n]o, I'm - lawyers are never to blame.'" (internal citation omitted); "I agree with Synygy that, in his testimony, 'Mr. Stiffler merely revealed the fact of a communication with counsel without revealing the substance of that communication.' . . . His testimony does not support a conclusion that he 'ha[d] made the decision and taken the affirmative step in the litigation to place the advice of the attorney in issue.' . . . Nor does it support a finding that Stiffler had a 'clear intent to waive the attorney-client privilege . . . .' . . . Accordingly I will deny ZS and ZSAI's motion to compel on the basis of my finding that Synygy has not waived the attorney-client privilege by relying on advice of counsel.")

Case Date	Jurisdiction	State	Cite Checked
2013-07-29	Federal	PA	B 5/14

Chapter: 28.1303

**Case Name: Starr Indem. & Liab. Co. v. Cont'l Cement Comp., Case No. 4:11CV809 JAR, 2012 U.S. Dist. LEXIS 170988, at *5-6 (E.D. Mo. Dec. 3, 2012)**

(analyzing privilege and work product issues in a first party insurance context; "The Court finds that, at this point, Starr [insurance company] has not performed an 'affirmative act' waiving the attorney-client privilege. . . . Starr's consultation with its counsel did not constitute a waiver of the attorney-client privilege because it has not raised an advice of counsel defense. Rather, Starr's executives testified that they merely consulted with their counsel as part of their decision-making process. Starr's witnesses made clear that they primarily relied on their experience and own reading of the policy when making their determinations. . . . Continental has not provided any evidence that Starr changed course based upon the advice of its counsel or that it would have acted otherwise. The Court finds that this cannot constitute an affirmative act waiving privilege because 'if reliance always gave rise to waiver in this circumstance, no one would seek coverage counsel's advice.'" (citation omitted))

Case Date	Jurisdiction	State	Cite Checked
2012-12-03	Federal	MO	B 9/13

Chapter: 28.1303

Case Name: Tate v. Tate's Ex'r, 75 Va. 522, 532-33 (1881)

("It is conceded that these conversations related to matters of professional confidence, and were therefore privileged; but it is insisted that the appellant has waived the privilege by testifying with respect to the conversation between Mr. Gilmore and himself. The rule of law which protects professional conversation is for the benefit of the client, and there is no doubt he may waive it; but the waiver must be distinct and unequivocal. It has been held that the client does not waive his privilege by calling his solicitor as a witness unless he also examines him as to the privileged matter. If, however, the client offers himself as a witness, he may be asked as to his communications to his counsel, if it be part of the case he undertakes to prove. In the present instance, however, the client did not, upon his examination in chief, make any disclosure or statement with regard to any conversation between himself and Mr. Gilmore." (citation omitted); holding that the client had not waived any privilege because the lawyer's testimony "was brought out by the adverse counsel upon the cross-examination" and that "[t]o allow one party to extract from his adversary a conversation between the latter and his attorney, and then to call the attorney to contradict the client, would result in the grossest injustice")

Case Date	Jurisdiction	State	Cite Checked
1881-01-01	State	VA

Chapter: 28.1304

Case Name: In re Kathryn M. Truscott v. Truscott, A15-1767, 2016 Minn. App. Unpub. LEXIS 511 (Minn. App. May 23, 2016)

(ultimately not deciding whether a deponent's one word deposition answers triggered an at issue waiver; "We turn now to the question of at-issue waiver. While our supreme court has recognized some implied waivers of the attorney-client privilege . . . It has not yet recognized an at-issue waiver. As recently as 2011, our supreme court observed that federal caselaw has recognized an at-issue waiver, but the court declined to address the issue because it was not necessary in the case before it. . . . Nor has this court recognized an at-issue waiver."; "Truscott was compelled in a deposition -- in a case in which she is a defendant -- to answer respondents' questions as to whether she relied on the advice of her counsel. She gave one-word responses to the questions. These compelled responses are not affirmative steps taken by a client to place privileged communications 'at issue.' . . . Respondents have cited no case where a defendant's answer to such a question in a deposition effects an implied waiver of the attorney-client privilege. If it did, plaintiffs could create an at-issue waiver simply by asking defendants in depositions if they relied on the advice of their counsel in taking an action. Defendants who wisely sought legal advice before terminating an employee, publishing a news article, or taking any other number of actions later giving rise to a claim where their state of mind is at issue would find their privileged communications subject to discovery simply because they truthfully responded in a deposition that they relied on the advice of counsel. Such an implied waiver could chill parties from being candid with their counsel or even seeking legal advice."; "Truscott insists that she has no plans to assert a reliance-on-counsel defense in this case. She made the same assertion to the district court in her memorandum of law supporting her motion to quash. We agree with Truscott that she has not raised a reliance-on-counsel defense through the generic statement in her answer that respondents' claims 'may be barred . . . By any or all of the affirmative defenses contemplated by the Minnesota Rules of Civil Procedure.'. . . If Truscott attempts to raise the defense, respondents may seek appropriate relief and the district court may consider whether such an affirmative step implies a waiver of the attorney-client privilege. At present, however, Truscott has not affirmatively asserted the reliance-on-counsel defense and has not by implication waived the attorney-client privilege.")

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

Comment:

key case

Chapter: 28.1304

**Case Name: Garcia v. Completely Kids, No. 8:14CV119, 2016 U.S. Dist. LEXIS 5356, at 9, 9 10 (D. Neb. Jan. 15, 2016)**

(finding that an employer defendant did not impliedly waive privilege protection, although the evidence showed that the decision-maker consulted with a lawyer before firing the plaintiff; noting that the employer's Rule 30(b)(6) representative mentioned the consultation in response to a leading question; "As to the good faith defense, Parker, as the 30(b)(6) representative for Completely kids [sic], provided a long explanation for the basis of defendant's good faith defense, mentioning consultation with counsel in response to only one leading question."; "There is nothing of record stating Defendant relied on counsel in deciding whether to terminate, discriminate, or retaliate against Plaintiff. At most, Defendant testified that it relied on defense counsel regarding the necessary procedural steps for termination under Defendant's employee policies and plans. Plaintiff is not pursuing an action for breach of company policies. As such, the record fails to show Defendant asserted reliance on an attorney's advice regarding any 'element of a claim or defense' at issue. Under the facts presented, and as to the claims alleged in this case, Defendant is not relying on the advice of counsel such that it would be unfair and inconsistent to permit Defendant to retain the privilege. In accordance with the high protection afforded attorney-client communications, and the caution to be exercised in finding any implied waiver, IT IS ORDERED that Defendant's Motion for Protective Order . . . is granted.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-15	Federal	NE	B 7/16

Comment:

key case

Chapter: 28.1304

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)

(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; denying General Motors' motion to impose a presumption that a witness's reference to privileged documents did not trigger a waiver, noting that the court would also have denied General Motors' argument that witnesses trial testimony should be assumed to be based on their personal knowledge rather than what they learned during privileged communications; "'New GM proposes to create a rebuttable presumption that a witness's reference to the Valukas Report or other privileged documents in response to questioning from Plaintiff's counsel is not 'offensive or affirmative use' and, in the event the Court finds the presumption is rebutted, to give New GM an 'opportunity to respond to such a finding, including by agreeing to strike such testimony and/or through a curative jury instruction.'. . . The Court agrees with Plaintiff, however, that there is no reason to impose such a presumption ex ante. . . . The process described above (and memorialized in the accompanying Order) will assure that, before acting on any alleged waiver, Plaintiff alerts the Court and New GM. If or when that happens, New GM will be given an opportunity to be heard, and the Court will weigh the factors set forth in Rule 502(a) of the Federal Rules of Evidence with the benefit of context. In light of that process, there is no need to alter the substantive standards in advance.'")

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

Comment:

key case

Chapter: 28.1304

**Case Name: Int'l Union v. Honeywell Int'l, Inc., Civil Action No. 11-14036, 2014 U.S. Dist. LEXIS 81608, at *13-14 (E.D. Mich. June 12, 2014)**

(analyzing the at issue doctrine; although acknowledging that defendant's subjective understanding was important, finding that defendant's disclaimer of a many intent to rely on privileged communications prevented an at issue waiver; "In the instant case, however, Honeywell has repeatedly and unequivocally represented that it will not introduce into evidence either the existence or the content of any privileged communication in proving its claims or defending against the UAW's claims. In fact, Honeywell represents that it will not even introduce into evidence the fact that its negotiators did not have communications with counsel, let alone the content of any such communication. Therefore, because Honeywell has not taken, and has represented that it will not take any 'affirmative step[s] to place the content of the confidential communication into the litigation,' it has not waived the attorney-client privilege with respect to those documents.")

Case Date	Jurisdiction	State	Cite Checked
2014-06-12	Federal	MI

Chapter: 28.1402

Case Name: Sweeney v. Montana Third Judicial Dist. Court, OP 17-0677, 2018 Mont. LEXIS 126 (Mont. Sup. April 24, 2018)

(analyzing an implied waiver issue when a criminal defendant did not attend a hearing, and his lawyer argued that the client was not aware of the hearing date; concluding over a dissent that the lawyer's communication about a hearing date to a client deserved privilege protection, which meant that the government could not discover the substance of such a communication; "Given that advising a client of a hearing date in a criminal case is inseparably intertwined with the concept of legal advice and that compelled inquiry of counsel to distinguish between advice and non-advice would vitiate counsel's duty of undivided loyalty to the client, we hold that the District Court erred when it denied the motion to quash the subpoena compelling Sweeney to submit to examination on whether she advised her client of the fate of his final pretrial conference. Furthermore, § 26-1-803(1), MCA, prohibits the District Court from compelling Sweeney to testify about communications made with McClanahan without his consent when her testimony would prove the elements of a new charge against McClanahan. We expressly limit this holding to the unique facts and circumstances of this case.")

Case Date	Jurisdiction	State	Cite Checked
2018-04-24	State	MO

Comment:

key case

Chapter: 28.1402

**Case Name: In re Quest Software Inc. S'holders Litig., Civ. A. No. 7357-VCG, 2013 Del. Ch. LEXIS 167, at 3-4, 8, *11-12 (Del. Ch. May 20, 2013)**

(explaining the background: "the Plaintiffs seek otherwise-privileged documents, including unredacted versions of the notes, minutes and draft minutes of the special committee meetings; communications with counsel concerning the Litigation that reflect discussions with any of the Defendants; and all litigation updates provided to the special committee."; "In a case such as the one before me here, where a defendant opposes a plaintiff's request for attorneys' fees on the grounds that the litigation did not produce a corporate benefit, the defendant does not place attorney-client privileged communication 'at issue' simply by indicating that its counsel has provided updates on the status of litigation."; "What the Defendants have not done is assert, for instance, that counsel indicated that the Board should ignore the Litigation because it was without merit. Relying on, but refusing to produce, such communication would be an impermissible use of the attorney-client privilege as both sword and shield. Here, on the other hand, the Defendants' representation is that no communication from counsel affected their actions with respect to the Dell merger. That simple negation is not the equivalent of a reliance on advice of counsel that put the substance of the communication at issue in this litigation. Moreover, the Individual Defendants themselves were amenable to discovery, including depositions and requests for admissions; disclosure of privileged communications is not required for the truthful resolution of the issues at hand. Accordingly, I conclude that the Plaintiffs have failed to meet their burden to show that the at-issue exception applies.")

Case Date	Jurisdiction	State	Cite Checked
2013-05-20	State	DE	B 4/14

Chapter: 28.1402

**Case Name: United States v. Hassan-Gouda, Crim. A. No. 07-258 (JBS), 2013 U.S. Dist. LEXIS 39297, at 21, 22-23, 23, 23-24 (D.N.J. Mar. 21, 2013)**

(holding the criminal defendant's denial of knowledge of his indictment resulted in a waiver of any privilege covering communications with his lawyer; "[I]t is clear that Gouda has placed the issue of his notice of the Indictment's charges into contention. He has denied prior knowledge of the Indictment in his certification filed herein."; "Gouda is essentially asserting that Gindhart [Lawyer] failed to advise him of the Indictment and the court date on or before April 6th. This necessarily means Gouda is claiming he had no communication with Gindhart between March 28th and April 6th about the Indictment and court date. Where the accused affirmatively raises the absence of communication from counsel as a basis for dismissal of the charges, he has opened the door to inquiry of counsel whether such information was transmitted to the accused. If it was not transmitted, there is no concern with attorney-client privilege because there was no communication. If it was transmitted, that fact can be probed because the privilege is waived to that extent."; "There is an implied waiver in the case at bar because, by claiming that he was unaware of the Indictment, and seeking dismissal of the case based on that fact, Gouda has placed in issue any conversation that he may have had with his attorney about the issuance of the Indictment."; "Waiver by implication only extends to communications between attorney and client that lie within the scope of that narrow subject matter, namely, whether Gindart informed Gouda of the indictment and his need to appear in court during the time frame of March 27 to April 6, 2007. Other communications, such as legal strategies, tactics, weight of evidence and the like, remain privileged." (footnote omitted))

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

Chapter: 28.1402

Case Name: Hawkins v. Stables, 148 F.3d 379, 381, 384 & n.4 (4th Cir. 1998)

(holding that a former wife had waived the attorney-client privilege by answering "no" to the following deposition question: "Is it true or not that Larry Diehl, in his capacity as your [divorce] attorney, told you to take a wiretap off the phone at the marital residence?"; at a later trial the former wife asserted the attorney-client privilege and refused to answer questions about her conversations with Diehl; Diehl also refused to answer questions when called to the stand at the trial; "[a]lthough the question asked during the deposition clearly elicited information regarding confidential communications Stables may have had with Diehl, and was objectionable on its face on the ground of attorney-client privilege, neither Stables nor her attorney asserted an objection. In response to the question, Stables simply stated that she never had a discussion of the matter with her attorney. By answering the question as she did, Stables both waived her privilege and provided probative evidence that she had had no conversation with her attorney on the subject of a phone tap. Without a communication, there is nothing to which the privilege can attach. Based on her own testimony, Stables cannot meet her burden of proof [to move the privilege's applicability, which the district court had erroneously placed on the former husband rather than the former wife]" (footnotes omitted); holding that Stables' waiver of the privilege "also waives the privilege as to the subject matter of the disclosure"; "[i]n this case, the subject matter revealed related to the wiretap. Thus, on remand Diehl's testimony should be limited to the wiretapping issue. Stables' subject matter waiver does not open up the possibility of a fishing expedition of all confidential communications that she had with Diehl during the course of the divorce representation")

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

Chapter: 28.1501

Case Name: In re Alcon Laboratories, Inc., 2018-115 (U.S. App. Feb. 14, 2018)

(holding that defendant's advice of counsel defense in a patent case triggered a subject matter waiver; "Alcon has designated their former in-house counsel as the only trial witness as to its mental state. The court discerns no clear abuse of discretion or otherwise manifest injustice in the trial court's exercise of its discretion in this situation. Additionally, while Alcon states that the order 'could encompass' documents relating to: 'the merits of Alcon's litigation defenses as assessed by in-house counsel; litigation strategy and reasons for pursuing some theories more heavily than others; settlement assessments and internal settlement authorization requests from management; case budget rationales; consultation with specialty counsel in other fields (e.g., regulatory, antitrust); and evaluations assessing situations outside the scope of this lawsuit, e.g., the impact of presenting a given theory on other cases that may involve the company; future licensing efforts for other patents,' Alcon has neither specifically identified nor produced any such documents to the district court or this court for in camera review.")

Case Date	Jurisdiction	State	Cite Checked
2018-02-14	Federal

Chapter: 28.1502

Case Name: Blattman v. Siebel, C.A. No. 15-530-GMS, 2017 U.S. Dist. LEXIS 207144 (D. Del. Dec. 1, 2017)

(holding that a litigant does not waive privilege protection by designating her lawyer as a fact witness on non-privileged facts; "[T]he Defendants' mere designation of Mr. Dwyer [Lawyer] to testify regarding the non-privileged communications does not constitute a waiver of privileged communications.")

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

Comment:

key case

Chapter: 28.1505

Case Name: Melendrez v. Superior Court, 156 Cal. Rptr. 3d 335, 341, 342 (Cal. Ct. App. 2013)

(holding that if a lawyer verifies a corporation's discovery response, it triggers a limited waiver; "[A]n attorney may verify a response as an officer or agent of a corporate party. (§§ 2030.250, subd. (b), 2033.240, subd. (b).) Doing so, however, will constitute a limited waiver of the attorney-client and work product privileges, 'during any subsequent discovery from that attorney concerning the identity of the sources of the information contained in the response.' (§§ 2030.250, subd. (b), 2033.240, subd. (b).)"; "The reason for this waiver should be obvious. As a general matter, when an individual verifies discovery responses, further discovery can be directed to that individual to determine the sources for the initial responses. Indeed, SECO [Special Electric Co., bankrupt subject of the underlying suit] conceded this is one of the purposes of a verification of a discovery response, and Melendrez pursued this course by following the RFAs with form interrogatory No. 17.1. But if an attorney verifies the initial discovery response without a corresponding limited waiver of the privileges, the attorney can frustrate followup discovery by simply asserting those privileges."; "The applicable statutes narrowly circumscribe the waiver; the privileges are only waived during any subsequent discovery from the attorney concerning the identity of the sources of the information contained in the response. The statutes do not provide for or permit lengthy further discovery from a verifying attorney. Indeed, there is no indication that a deposition of the verifying attorney would ever be necessary in any particular case.")

Case Date	Jurisdiction	State	Cite Checked
2013-01-01	State	CA	B 7/13

Chapter: 28.1505

**Case Name: Reid v. Neighborhood Assistance Corp. of Am., No. 11 C 8683, 2012 U.S. Dist. LEXIS 170006, at 14-15, 17, *18-19 (N.D. Ill. Nov. 30, 2012)**

(holding that a party's Amendment of an interrogatory that a lawyer had verified did not automatically trigger an at issue waiver; "The fact that an issue may be merely 'subject to dispute' by the parties, however, does not equate with waiver of the privilege with respect to any attorney client communications 'that might touch on that question.'. . . Rather, waiver arises only if 'the litigant directly puts the attorney's advice at issue in the litigation.'" (citation omitted); "[N]otwithstanding Illinois' policy of narrowly construing the privilege, a holding that verification of an interrogatory response that subsequently requires amendment results in a waiver of any privileged information underlying the response 'would quickly swallow the attorney-client privilege and frustrate the important policy considerations it exists to protect.'" (citation omitted); "Mr. Horowitz's verification of an interrogatory that NACA would later amend is not comparable to the Lama [Lama v. Preskill, 818 N.E.2d 443(Ill. App. Ct. 2004)] plaintiff's raising of a tolling issue in her complaint that was necessary for her suit to survive and for which the disclosure of privileged information was vital to the issue's resolution.")

Case Date	Jurisdiction	State	Cite Checked
2012-11-30	Federal	IL	B 8/13

Chapter: 28.1901

**Case Name: Brown v. Tethy's Bioscience, Inc., Civ. A. No. 3:11MC11, 2011 U.S. Dist. LEXIS 117075, at *4 (E.D. Va. Oct. 11, 2011)**

("Under Rule 612(1), a party is entitled to the production of documents actually used by a witness while testifying. Coryn Grp. II, LLC v. O.C. Seacrets, Inc., 265 F.R.D. 235, 240 (D. Md. 2010).")

Case Date	Jurisdiction	State	Cite Checked
2011-10-11	Federal	VA

Chapter: 28.1901

Case Name: Shanholtzer v. Dean, 51 Va. Cir. 493, 493, 493-94, (Va. Cir. Ct. 2000)

(refusing to compel a party to "identify all items, including statements and photographs, that she reviewed and relied upon in preparation for her deposition"; noting that the party's counsel represented to the court "that all items that Dean reviewed prior to her deposition were items that were previously produced in discovery"; concluding that "forcing Dean to identify what specific items she looked over would only serve to invade defense counsel's work product. Once all documents have been turned over in discovery, answering a question such as this would reveal defense counsel's trial tactics and thoughts by way of showing Plaintiff exactly what the Defendant feels is and is not important to his or her case."; rejecting any decisions relying on Fed. R. Evid. 612 because "they are federal cases that rely on a federal rule of evidence that Virginia has not adopted")

Case Date	Jurisdiction	State	Cite Checked
2000-01-01	Federal	VA

Chapter: 28.1901

Case Name: Mills v. MCC Behavioral Care, Inc., 37 Va. Cir. 225, 226 (Va. Cir. Ct. 1995)

(explaining that Virginia does not have a parallel to Rule 612).

Case Date	Jurisdiction	State	Cite Checked
1995-01-01	State	VA	B 3/16

Comment:

key case

Chapter: 28.1901

Case Name: Virginia Supreme Court Rule 2:612 Writing or Object Used to Refresh Memory

("If while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.")

Case Date	Jurisdiction	State	Cite Checked
	State	VA

Chapter: 28.1903

Case Name: Siegmund v. Bian, Case No. 16-CV-62506-MORENO/LOUIS, 2018 U.S. Dist. LEXIS 155507 (S.D. Fla. Sept. 5, 2018)

(analyzing both the opinion work product doctrine and Rule 612's application connection with deposition questions about the deponent's review of documents before testifying; holding that the adversary's lawyer could ask generally about what documents the witness interviewed; "It is well-settled law that except for pure opinion work product, 'any work product protection [is] lost when the witness specifically relie[s] on the document in preparation for his deposition.'. . . Moreover, 'whatever heightened protection may be conferred upon opinion work product, that level of protection is not triggered unless disclosure creates a real, non-speculative danger of revealing the lawyer's thoughts.'. . . Here, Plaintiff is not seeking production the documents on which Mr. Paskowitz relied; instead, Plaintiff contends that Plaintiff should have been permitted to question Mr. Paskowitz about the general nature of the documents he used to prepare for his deposition."; "Mr. Paskowitz testified that in preparation for his deposition, he met with his counsel for about five or six hours and reviewed certain documents (ECF No. 188-1 at 18). When asked, 'can you generally describe the documents that you reviewed,' Mr. Paskowitz was instructed not to answer on grounds of work product privilege and attorney-client communication. This was error. Plaintiff should have been permitted to examine Mr. Paskowitz regarding the general nature of the documents he used to prepare himself for the deposition, absent a 'real, non-speculative danger' of revealing opinion work product."; "Defendant also claims that by identifying which groups of documents Mr. Paskowitz relied on for his preparation, he would be revealing the sorting and grouping process of his attorneys. Although federal courts disagree over whether the selection and compilation of documents by counsel may constitute opinion work product, it is clear that 'the mere selection and grouping of information by counsel for a deponent to review does not automatically transform otherwise discoverable documents into work product.' Calderon v. Reederei Claus-Peter Offen Gmbh & Co., No. 07-61022-CIV, 2009 U.S. Dist. LEXIS 130423, 2009 WL 1748089, at *3 (S.D. Fla. June 19, 2009). As such, the party asserting a work product claim 'must come forward with some evidence that disclosure of the requested documents creates a real, non-speculative danger of revealing counsel's thoughts.". . . In this case, Defendant, whose burden it is to demonstrate the applicability of the work-product doctrine or attorney-client privilege, has not shown that the identification of the documents Mr. Paskowitz reviewed in preparation for his deposition creates a 'real, non-speculative danger' of revealing counsel's thoughts, or implicating the attorney-client privilege. Accordingly, the Court finds that Plaintiff should have been permitted to question Mr. Paskowitz regarding the general nature of the documents he reviewed in preparation for his deposition.")

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

Chapter: 28.1903

Case Name: Lubritz v. AIG Claims, Inc., Case No. 2:17-cv-02310-APG-NJK, 2018 U.S. Dist. LEXIS 65951 (D. Nev. April 18, 2018)

("'The vast majority of cases that have considered the issue have concluded that Rule 612 is applicable to depositions.'")

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

Chapter: 28.1903

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

("Pursuant to FRCP 30(c)(1), FRE 612 applies to depositions.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Chapter: 28.1903

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

("Pursuant to FRCP 30(c)(1), FRE 612 applies to depositions.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Chapter: 28.1903

Case Name: N. Natural Gas Co. v. Approx. 9117.53 acres, 289 F.R.D. 644, 651, 651-52, 652 (D. Kan. 2013)

(analyzing Rule 612; "The court must then decide whether the interests of justice require that the materials be produced."; "One factor is when the events took place that are the subject of the examination."; "When the documents were reviewed should also be considered. Here the review apparently took place shortly before the date of the noticed deposition. This strongly suggests that the sole purpose of the document review was to prepare for the deposition rather than for some other potential purpose."; "Whether the documents themselves contain, in whole or in part, 'pure' attorney work product may be important."; "Whether the documents have been previously produced during discovery is another consideration."; "Finally, the number of documents reviewed may be important."; "After considering the information provided about the documents reviewed and the depositions, the court finds that it is in the interest of justice to allow examining counsel to inquire of the two witnesses what documents the witnesses reviewed in preparation for the deposition, and also to allow examining counsel to review the actual documents prior to concluding the deposition of the witnesses.")

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

Chapter: 28.1904

Case Name: Siegmund v. Bian, Case No. 16-CV-62506-MORENO/LOUIS, 2018 U.S. Dist. LEXIS 155507 (S.D. Fla. Sept. 5, 2018)

(analyzing both the opinion work product doctrine and Rule 612's application connection with deposition questions about the deponent's review of documents before testifying; holding that the adversary's lawyer could ask generally about what documents the witness interviewed; "Defendant argues that the documents reviewed by Mr. Paskowtiz in preparation for his deposition are not subject to disclosure because, when asked whether he reviewed any documents to refresh his recollection or memory, Plaintiff answered 'not to refresh my memory, no.' Id. Accordingly, Defendant avers that Federal Rule of Evidence 612, which would generally permit the disclosure of documents used to refresh a witness's recollection, is inapplicable here. However, Mr. Paskowitz testified that he reviewed the documents at issue to prepare for his deposition. By reviewing documents with counsel in preparation for his deposition, Defendant exposed that selection of documents to scrutiny.")

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

Chapter: 28.1904

Case Name: Hsingching Hsu v. Puma Biotechnology, Inc., Case No. 8:15-cv-00865-AG (SHK), 2018 U.S. Dist. LEXIS 103353 (C.D. Cal. June 20, 2018)

(analyzing the interplay of Rule 30(b)(6) and Rule 612; "The first factor -- whether the documents refreshed the designee's recollection -- is read broadly because 'it is the corporation that has the 'prior knowledge of the facts contained in the documents' and thus it is the corporation's knowledge that is being 'refreshed' under FRE 612." 2017 U.S. Dist. LEXIS 193445, [WL] at *8 (citations omitted). Consequently, '[t]his element is presumed to be met when the corporation or its attorneys choose to refresh the corporation's knowledge with the selected documents.' Id."; "Here, Mr. Bleharski testified that he refreshed his recollection with respect to the topics for discussion during the Rule 30(b)(6) deposition. Mr. Bleharski testified that he refreshed his recollection by 'reviewing various documents and emails' in order to prepare for his deposition. ECF No. 268-1, Conn Decl., Ex. F at 33. Read broadly, this factor is satisfied."; "The second factor -- whether the documents were used for the purpose of testifying -- the Court applies a rebuttable presumption when the party orders specific documents that were shown to a designated corporate representative to prepare that witness under 30(b)(6). Adidas, 2017 U.S. Dist. LEXIS 193445, 2017 WL 5630038, at *8. 'This is particularly true 'where a corporate designee testifies on topics of which he denies any personal knowledge, [because] he is an 'empty vessel' and documents reviewed on those topics in preparation for the deposition necessarily informed his testimony.' Id. (citation omitted)."; "The third factor looks to the whether the disclosure of documents relied on in preparation for a Rule 30(b)(6) deposition would serve the interests of justice."; "Here, the Court finds that the balance favors disclosure of the documents that JPM relied on to prepare Mr. Bleharski for his deposition under Rule 30(b)(6) on the noticed topics at issue. First, the topics on which Mr. Bleharski testified were negotiated by JPM's litigation counsel. Second, none of the topics involve areas that seek legal conclusions. Third, there is no indication that the materials include core work product. Fourth, JPM has failed to carry its burden in noting that the number of documents at issue are a very small subset of the produced documents that would necessarily disclose JPM's counsel's thought processes. Finally, there is no indication that producing the index of documents would be burdensome.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-20	Federal	CA

Comment:

key case

Chapter: 28.1904

Case Name: Hsingching Hsu v. Puma Biotechnology, Inc., Case No. 8:15-cv-00865-AG (SHK), 2018 U.S. Dist. LEXIS 103353 (C.D. Cal. June 20, 2018)

(analyzing the interplay of Rule 30(b)(6) and Rule 612; "Although the Ninth Circuit has not yet addressed the specific question of whether a corporate representative's review of documents that are protected by the attorney-client privilege or work-product doctrine that the corporate representative designee relied upon in preparation for testimony under a Rule 30(b)(6) deposition waives that privilege or protection, the Court adopts the balancing test from the set out in Adidas, 2017 U.S. Dist. LEXIS 193445, 2017 WL 5630038, at *8. The Court in Adidas laid out a three-part balancing test considering the following factors: (1) whether the documents that the designee used in preparation for a Rule 30(b)(6) deposition was used to refresh his or her recollection; (2) whether the documents were used for the purpose of testifying; and (3) whether the interests of justice require disclosure of such documents. 2017 U.S. Dist. LEXIS 193445, [WL] at *8-9.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-20	Federal	CA

Comment:

key case

Chapter: 28.1904

Case Name: Lubritz v. AIG Claims, Inc., Case No. 2:17-cv-02310-APG-NJK, 2018 U.S. Dist. LEXIS 65951 (D. Nev. April 18, 2018)

(analyzing Rule 6.12, and holding that the documents a deponent reviewed did not impact his testimony – and therefore declining to order production of the documents; "[T]he Court concludes that Rule 612(a)(2) does not mandate the disclosure of documents used to refresh a deponent's recollection prior to testifying."; "There has not been devised a uniform mechanism by which courts analyze the interests of justice for purposes of Rule 612 disclosures, and different courts have looked to varying factors in conducting that analysis."; "Asking a witness in cursory manner about refreshing his recollection by reviewing a writing, without explanation as to the extent or scope of the refreshing and the impact on the testimony, is plainly insufficient."; "[A]n insufficient showing has been made that Mr. McCabe's review of the redacted portion of the claims file impacted his testimony. . . . No direct question was posed to Mr. McCabe that he even reviewed the redacted portions of the claims notes and whether those particular portions refreshed his recollection in any way. Instead, counsel asked indirectly whether 'reviewing all of the entries in your claim notes refreshed your recollection.'. . . Moreover, no testimony was elicited as to whether the claims notes (and the redacted portions of it, in particular) impacted in any way Mr. McCabe's testimony, and instead the record reflects otherwise given the testimony that the review was not extensive. In short, Plaintiff's showing falls well short of establishing that Mr. McCabe's review of the redacted aspects of the claims notes impacted his testimony in any way. As such, disclosure is not warranted.")

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

Chapter: 28.1904

**Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445, at 15-16, 18 (D. Or. Nov. 22, 2017)**

February 28, 2018 (PRIVILEGE POINT)

"Court Analyzes the Complex Interplay Between Federal Rule of Evidence 612 and Federal Rule of Civil Procedure 30(b)(6)"

Under Federal Rule of Evidence 612, courts concluding that "justice requires" it may order disclosure of privileged or work product protected documents that refreshed a witness's recollection before testifying. How does that rule apply to Rule 30(b)(6) witnesses, who generally have no recollection -- but instead absorb a corporation's collective knowledge before testifying as the corporation's representative?

In Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445, at *15-16, *18 (D. Or. Nov. 22, 2017), the court noted that (1) some courts "appl[y] an 'automatic' waiver under FRE 612" requiring Rule 30(b)(6) witnesses to produce every document they reviewed – an approach the court said had "some appeal," and (2) "many courts exercise discretion by applying a case-by-case balancing test." The court ultimately adopted its own standard, "a middle-ground approach between the automatic waiver rule and the balancing test." Id. at *20-21. Among other things, the court understandably held that in a Rule 30(b)(6) setting an individual witness "is not having his or her own personal knowledge refreshed" – so it is the corporation's knowledge that is being "refreshed" under FRE 612. Id. at *21.

Each of Rule 612 and Rule 30(b)(6) is complicated on its own, but their combination creates additional subtle issues.

Case Date	Jurisdiction	State	Cite Checked
2017-11-22	Federal	OR

Comment:

key case

Chapter: 28.1904

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "The first element discussed in Sporck [Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985)] is that a document be used to refresh a witness's recollection. In the context of a deposition of a corporate representative under FRCP 30(b)(6), this element should be read broadly. This is because even if the designee lacks independent knowledge of the noticed topics and is not having his or her own personal knowledge refreshed, because the corporation has an obligation to educate a witness regarding the noticed topics, it is the corporation that has the 'prior knowledge of the facts contained in the documents' and thus it is the corporation's knowledge that is being 'refreshed' under FRE 612. . . . This element is presumed to be met when the corporation or its attorneys choose to refresh the corporation's knowledge with the selected documents."; "Although Mr. Federspiel joined the company in 2015, the relevant topics for purposes of this motion involve conduct that occurred in late 2011 and 2012. Accordingly, Defendants argue, this corporate representative necessarily had to educate himself from the documents he reviewed, including the privileged documents. The Court agrees. The corporation had to refresh its recollection by educating Mr. Federspiel with documents, and the corporation, through its counsel, chose a selection of documents that included privileged documents to do so. Thus, the first element is met with respect to Mr. Federspiel and the documents provided to him. Similarly, with regard to Ms. Vanderhoff, again the company chose to refresh her (and its) recollection and educate her on the relevant topics with privileged documents. Therefore, the first element is met with respect to Ms. Vanderhoff.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1904

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "Considering the issues and concerns of fairness and the attorney-client privilege and work-product protection, the Court finds that the balance favors disclosure of the documents selected by the company and provided to the corporate representative witnesses to prepare them for their depositions under FRCP 30(b)(6) on the specified topics. The identified topics are of significant importance to the defense, are narrow in scope, and involve only a subset of privileged and work-product protected documents selected by the company to educate and refresh the recollection of Plaintiffs' FRCP 30(b)(6) witnesses who otherwise did not have personal knowledge of the topics. The documents were reviewed for the specific purpose of deposition preparation, and the topics involved events that occurred years before the depositions took place. Accordingly, subject to the caveats and opportunities to seek further protection from the Court noted above, Plaintiffs must produce the documents that were shown to Mr. Federspiel and Ms. Vanderhoff to prepare them for their FRCP 30(b)(6) testimony on topics 5, 6, 40, and 42, regardless of attorney-client privilege or work-product protection.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1904

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; also analyzing documents that the two witnesses reviewed independently; also analyzing the interplay of the rules for a non-Rule 30(b)(6) fact witness; "[T]he Court finds that witnesses designated under FRCP 30(b)(6) are unique based on the specific obligations and responsibilities placed on both the noticing party and responding party by that rule. The fact that a percipient witness is given a binder of documents to prepare for deposition does not create the same burdens and obligations of a witness designated under FRCP 30(b)(6)."; "Furthermore, Defendants fail to show that this 'binder' refreshed Ms. Rodal's recollection, included privileged documents, or could reasonably have influenced her testimony. Under Defendants' theory, every percipient witness who is given documents by an attorney to prepare for a deposition would be subject to having those documents disclosed under FRE 612 based on a showing of nothing more than the fact that documents were given to the percipient witness. The Court finds this to be an insufficient basis to trigger FRE 612. Accordingly, the Court denies Defendants' motion with respect to Ms. Rodal.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1904

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "The second element [under Sporck, [Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985)] asks whether the documents were 'used' for the purpose of testifying. Plaintiffs argue that Defendants fail to show that the witnesses actually relied upon any privileged documents."; "When dealing with FRE 612 issues in the context of depositions of percipient witnesses, courts not infrequently conduct an in camera review to compare the documents at issue with the actual deposition testimony. The court can then evaluate whether the documents appear to have influenced the testimony. In the context of FRCP 30(b)(6) depositions, however, the Court concludes that a better practice is for there to be a rebuttable presumption that the witness relied on the documents selected by the corporation (or its counsel) and then presented to the corporate representative to educate that witness on the noticed topics. Because the deposing party has an obligation to provide a deposition notice with specific and detailed topics and the responding corporation (or other organization) has a corresponding obligation to provide a witness who is knowledgeable on each specified topic, it is an reasonable inference that documents selected by the corporation and provided to the witness to educate him or her on a particular topic is intended to (and thus is likely to) have an influence on the witness's testimony on that topic.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1904

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; also analyzing documents that the two witnesses reviewed independently; "Defendants assert that they recently learned that Mr. Federspiel and Ms. Vanderhoff also independently reviewed privileged documents in preparing for their depositions, in addition to the documents selected by the company to prepare them for their testimony under FRCP 30(b)(6). Plaintiffs respond that Defendants fail to meet their burden to show that Mr. Federspiel and Ms. Vanderhoff actually reviewed any documents independently. Plaintiffs do not deny that these witnesses reviewed documents independently, but merely argue that Defendants do not sufficiently prove such review. Given the history of less-than-full candor in discovery by Plaintiffs in this case, the Court is not persuaded by this form-over-substance argument."; "The Court's application of the modified balancing test, however, is only applicable in the context of witnesses designated under FRCP 30(b)(6) for documents selected by the corporation. The presumption of disclosure (that arises from the rebuttable presumptions of elements one and two) is not supported for documents that a witness independently reviews. It is one thing for a corporation to select what documents will educate its FRCP 30(b)(6) witnesses. Those are documents that the company apparently has found to be of such importance to the topic and the need to educate its corporate representatives before their depositions that the company selected them in order to meet its obligations under FRCP 30(b)(6). Therefore, it is both logical and fair to rebuttably presume that those documents were intended to and did refresh the recollection of and influence the testimony of the witnesses and will be of such importance that the interests of justice support disclosure. When a witness independently decides to review a certain document, however, that presents a different matter."; "Documents that a witness -- particularly a witness who lacks personal knowledge of the relevant topic, came to the company after the relevant events, or who is an 'empty vessel' with respect to the relevant topic -- believes may be important to a topic may not be important at all. Presumably, if documents are important to a topic, the company would have selected those documents to meet its obligations under FRCP 30(b)(6). Accordingly, the Court does not find that a presumption of disclosure is appropriate for any documents that Mr. Federspiel or Ms. Vanderhoff may have independently reviewed relating to topics 5, 6, 40, and 42. Instead, the Court orders that, to the extent Mr. Federspiel or Ms. Vanderhoff independently reviewed documents, those documents must be produced to the Court in camera, along with the complete deposition transcripts for these two witnesses. The Court will make a determination as to whether those documents were appropriately designated as privileged or work-product protected and, if so, whether those documents appear to have influenced a witness's testimony such that they should be produced in the interests of justice.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1904

Case Name: McDaniels v. State Auto Property and Casualty Ins. Co., Civ. A. No. 3:15-CV-69 (GROH), 2016 U.S. Dist. LEXIS 62795 (N.D.W. Va. May 12, 2016)

(analyzing Federal Rule of Evidence 612; "Rule 612 is "silent with respect to whether it applies to work product [and other privileged] materials used to refresh recollection.'. . . Courts have adopted differing approaches to this issue, some holding that privileged materials reviewed by a witness prior to being deposed are subject to disclosure under Rule 612, while others have held that they are not."; "The undersigned finds that Plaintiff has not established the three foundational elements that must be met before an adverse party is required to produce documents pursuant to Rule 612. Regarding the first element, that the witness used a writing to refresh his or her memory, it is unclear from Mr. Lovrak's deposition testimony whether he actually used his notes to refresh his recollection. When initially asked whether the notes 'help[ed his] recollection,' Mr. Lovrak testified 'I don't think so.' However, later in the deposition, Mr. Lovrak testified that, 'at that time,' he was looking at the notes to help refresh his memory. Regardless of whether Mr. Lovrak used his notes to refresh his recollection, Plaintiff must establish all three foundational elements for documents to be produced pursuant to Rule 612."; "Regarding the second element, that the writing was used for the purpose of testifying, Mr. Lovrak testified that the purpose of the notes 'would deal with a discussion [he] had with counsel.' When asked if a purpose of the notes was to refresh his memory, Mr. Lovrak reiterated that the notes were for a meeting with Defendant's counsel. Furthermore, when asked what documents he reviewed 'for purposes of refreshing [his] memory or preparing [for the deposition],' Mr. Lovrak did not mention his notes. Finally, the undersigned reviewed the notes in camera during the evidentiary hearing and finds that Plaintiff clearly used his notes, not to prepare for his deposition, but to receive Defendant's counsel's advice and guidance. Therefore, Plaintiff has failed to establish the second foundational element."; "Plaintiff fails to establish the third element, that justice requires Defendant to produce the notes. When analyzing the third element, a court must initially determine whether the documents at issue are protected from disclosure. In this case, Defendant argues that Mr. Lovrak's notes are protected by the attorney-client privilege and work product doctrines. Although Plaintiff did not dispute that the notes constitute documents protected by the attorney-client privilege and work product doctrine at the evidentiary hearing, he argued that Defendant's claims of privilege and work product were waived when Defendant's counsel failed to raise these specific objections during the deposition. Defendant countered by arguing that, while it may have waived its work product claim, Mr. Lovrak asserted the attorney-client privilege during his deposition. Because the undersigned agrees that Mr. Lovrak clearly asserted the attorney-client privilege as to his notes during the deposition and had the authority as a Rule 30(b)(6) corporate representative to do so, the undersigned finds that Mr. Lovrak's notes are privileged."; "A thorough review of Mr. Lovrak's deposition testimony and an in camera review of Mr. Lovrak's notes revealed that the notes would only be marginally, if at all, useful for the purposes of cross-examination and impeachment.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-12	Federal	WV

Chapter: 28.1904

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. Cir. Aug. 11, 2015)

September 23, 2015 (PRIVILEGE POINT)

"The D.C. Circuit Issues Another Privilege-Friendly Decision: Part I"

In 2014, the D.C. Circuit adopted a very favorable privilege standard — protecting communications if "one significant . . . Purpose[]" was corporations' need for legal advice, even if that was not the communications' "primary purpose." In re Kellogg Brown & Root, Inc ., 756 F.3d 754, 760 (D.C. Cir. 2014). Now a different panel of D.C. Circuit judges dealing with the same internal corporate investigation has taken a privilege-friendly approach to two more peripheral privilege issues — granting another petition for writ of mandamus. In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. Cir. Aug. 11, 2015).

In the first holding, the appellate court found that the district court had erroneously applied Federal Rule of Evidence 612. That rule allows courts to order the production of otherwise privileged documents which refreshed a witness's recollection upon reviewing them before testifying — "'if the court decides that justice requires'" disclosure. Id. At *11. The plaintiff sought production of documents KBR's Rule 30(b)(6) deponent had reviewed before testifying. The court explained that trial courts undertake the "justice requires" analysis only if the witness's document review refreshed her recollection — implying that the plaintiff had not satisfied that prerequisite. The court then held that even if the balancing "justice requires" test had been appropriate, the district court "failed to give due weight to the privilege and protection attached to the internal investigation materials." Id. At *15.

The D.C. Circuit's privilege-friendly decision should remind lawyers of Rule 612's possible counter-intuitive effect. Even showing undeniably privileged internal corporate communications to a corporate employee preparing to testify can forfeit the privilege if (1) the documents refresh the witness's recollection, and (2) the court finds that "justice requires" the documents' production to the adversary. Next week's Privilege Point will discuss the D.C. Circuit's other holding.

Case Date	Jurisdiction	State	Cite Checked
2015-08-11	Federal	DC

Comment:

key case

Chapter: 28.1904

Case Name: Wells Fargo Bank, N.A. v. RLJ Lodging Trust, Case No. 13-cv-00758, 2014 U.S. Dist. LEXIS 106273 (N.D. Ill. Aug. 4, 2014)

(finding Rule 612 inapplicable; "Defendant has to show two things to prevail on its Motion to Compel. First, that the redacted portion of the ASR that the Torchlight witnesses admit they reviewed before their respective depositions refreshed their memories and, second, that the material they reviewed influenced or had an impact upon their testimony. . . . It is not clear that Mr. Montalti's memory was refreshed from his review of the ASR and it certainly is not clear from his testimony that the redacted sentence containing the advice from counsel at Holland & Knight that was included in Mr. Greenholtz's ASR had any impact on Mr, Montalti's testimony whatsoever."; "In any event, Mr. Greenholtz did not testify that the ASR in particular either did or did not refresh his recollection nor, more specifically, did Mr. Greenholtz say that the material that was redacted from the ASR refreshed his recollection about anything."; "[T]he redacted material reflects Mr. Greenholtz's own prior privileged communication with counsel, not something about which he had no knowledge before his deposition or facts known only to someone else that were communicated to him in preparation for his deposition. This is an area in which courts have been particularly careful in balancing the interests of justice involved in determining whether to order production of a writing within the meaning of Rule 612.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-04	Federal	IL

Chapter: 28.1904

**Case Name: Accusoft Corp. v. Quest Diagnostics, Inc., Civ. A. No. 12-cv-40007-TSH, 2014 U.S. Dist. LEXIS 18976, at *11-12 (D. Mass. Feb. 14, 2014)**

(analyzing Rule 612 in connection with an in-house lawyer's deposition; ultimately finding that the witness could not remember whether the particular documents at issue refreshed his recollection; "When asked if the documents he reviewed refreshed his recollection, he said they did not. . . . Rule 612 applies only if the writing refreshed the witness's memory. That is not the case here. Accusoft cannot use Rule 612 to pierce the privilege. The motion to compel the unredacted version of Email One is denied.")

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

Chapter: 28.1904

**Case Name: Accusoft Corp. v. Quest Diagnostics, Inc., Civ. A. No. 12-cv-40007-TSH, 2014 U.S. Dist. LEXIS 18976, at *14 (D. Mass. Feb. 14, 2014)**

(analyzing Rule 612 in connection with an in-house lawyer's deposition; ultimately finding that the witness could not remember whether the particular documents at issue refreshed his recollection; "Hackett indicated he reviewed the document in its unredacted form in preparation for his deposition, and that his memories of the events surrounding Email Four were in fact based on a review of the unredacted version of this email chain. . . . Here, Accusoft has carried its burden to show that the writing actually refreshed Hackett's memory.")

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

Chapter: 28.1904

**Case Name: Accusoft Corp. v. Quest Diagnostics, Inc., Civ. A. No. 12-cv-40007-TSH, 2014 U.S. Dist. LEXIS 18976, at 12, 13-14 (D. Mass. Feb. 14, 2014)**

(analyzing Rule 612 in connection with an in-house lawyer's deposition; ultimately finding that the witness could not remember whether the particular documents at issue refreshed his recollection; "Hackett never testified specifically that Email Two refreshed his recollection; rather, he testified that his review of all the documents provided to him, of which Email Two was but a portion, generally refreshed his memory."; "Hackett never testified specifically that Email Three refreshed his recollection; rather, he testified that his review of all the documents provided to him, of which Email Three was but a portion, generally refreshed his memory. . . . As with Email Two, this testimony is insufficient to support the production of information claimed to be protected by the attorney-client privilege. The motion to compel the unredacted version of Email Three is denied.")

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

Chapter: 28.1904

Case Name: N. Natural Gas Co. v. Approx. 9117.53 acres, 289 F.R.D. 644, 650, 651 (D. Kan. 2013)

(holding that the work product doctrine did not protect the identity of documents a lawyer selected to prepare a deposition witness; "In the first deposition, the witness Peshka acknowledged that he reviewed the material to refresh his recollection and that the review in fact refreshed his memory. In the second deposition, again it is undisputed that the purpose of the review of documents by the witness Dobbins was to refresh his memory for the purpose of testifying. Northern stated at the January 30 status conference, however, that Dobbins testified that only two of the documents he reviewed actually refreshed his recollection. This statement does not, however, protect the other documents that were reviewed from being produced."; "Judge Rushfelt noted in Audiotext [Audiotext Commc'ns Network, Inc. v. US Telecom, Inc., 164 F.R.D. 250 (D. Kan. 1996)] that '[a]ctual refreshment of recollection is immaterial.' Id. In so holding he concluded that it would be fairer to allow production upon proof that the witness reviewed the document for the purpose of refreshing his recollection, and to require a showing that it in fact refreshed his memory would likely lead to arbitrary or capricious results. . . . Even if a witness only identifies a few documents out of all he reviewed that actually refreshed his recollection, the court has ordered production of all the documents he reviewed.")

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

Chapter: 28.1904

Case Name: Fields v. First Liberty Ins. Corp., 954 N.Y.S.2d 427, 431 (N.Y. Sup. Ct. 2012)

("A document protected by an unqualified privilege is not waived by a party merely by allowing its own employee to review the document in preparation for a deposition. . . . There is no dispute that Latten and Russo are employed by the defendant. Thus, if the redacted information contains confidential communication protected by the attorney-client privilege, the privilege was not waived.")

Case Date	Jurisdiction	State	Cite Checked
2012-01-01	State	NY	B 5/13

Chapter: 28.1904

**Case Name: Brown v. Tethy's Bioscience, Inc., Civ. A. No. 3:11MC11, 2011 U.S. Dist. LEXIS 117075, at 4-5, 5-6, 6-7, 7 (E.D. Va. Oct. 11, 2011)**

("Courts have developed the following three-part test to determine whether otherwise privileged documents should be produced under Rule 612 based on their use by a deponent to refresh his or her recollection prior to the deposition: '(1) a witness must use a writing to refresh his or her memory; (2) for the purpose of testifying; and (3) the court must determine that, in the interest of justice, the adverse party is entitled to see the writing.' Nutramax Labs., Inc., 183 F.R.D. at 468; see also Coryn Grp. II, LLC, 265 F.R.D. at 242; Ferry v. BJ's Wholesale Club, No. 3:06CV226-C, 2007 U.S. Dist. LEXIS 1808, 2007 WL 75375, at *3 (W.D.N.C. Jan. 8, 2007). In exercising its discretion under Rule 612(2), courts balance the need for disclosure, in order to examine the witness fully, against the need to protect the policies underlying the asserted privilege. Coryn Grp. II, LLC, 265 F.R.D. at 241; Nutramax Labs., Inc., 183 F.R.D. at 468."; "Factors to consider when making this determination include the following: (1) the witness's status; (2) the importance of the witness's testimony to the case; (3) when the events took place; (4) when the documents were reviewed; (5) the number of documents reviewed; (6) whether the witness prepared the documents reviewed; (6) what type of privilege applies to the documents; (7) whether the documents were previously disclosed; and, (8) the existence of credible concerns regarding manipulation, concealment, or destruction of evidence. Nutramax Labs., Inc., 183 F.R.D. at 469-70; see also Coryn Grp. II, LLC, 265 F.R.D. at 244."; "Plaintiffs contend that Funk 'brought several documents in a folder to the deposition,' that he 'reviewed the documents in preparation for the deposition,' and that he referred to and reviewed the documents 'while formulating a response to questions.' . . . Because they fail to specify any conduct regarding the two documents subject to challenge here, these conclusory allegations insufficiently meet the burden under Rule 612. Rule 612 provides access 'only to those writings which may fairly be said in part to have an impact upon the testimony of the witness.' Coryn Grp. II, LLC, 265 F.R.D. at 242 (quoting Nutramax Labs., Inc., 183 F.R.D. at 468). Plaintiffs have failed to sufficiently demonstrate that Funk reviewed the October 11, 2010 E Mail and the October 12, 2010 Document while testifying or in preparation for testifying. This failure renders Rule 612 inapplicable."; declining to order production of the documents even if the witness had reviewed them; "Even if the Court were to assume that Funk reviewed the October 11, 2010 E-Mail and the October 12, 2010 Document in preparation for testifying, the Court, in its discretion, would not require the production of the two documents. Considering the information contained in these two documents, the need to fully examine Funk's testimony, the policies underlying the privileges at issue, and the other factors listed above, the Court concludes that the balance weighs against requiring the production of these two documents.")

Case Date	Jurisdiction	State	Cite Checked
2011-10-11	Federal	VA

Chapter: 28.1904

**Case Name: Brown v. Tethy's Bioscience, Inc., Civ. A. No. 3:11MC11, 2011 U.S. Dist. LEXIS 117075, at *4 (E.D. Va. Oct. 11, 2011)**

("Rule 612(2) 'leaves to the Court's discretion whether to require production of documents reviewed to refresh a witness's memory in preparation for testifying.' . . . The party who is seeking to invoke Rule 612 has the burden of showing that the documents at issue were actually used by a deponent to refresh his or her recollection while testifying or in preparation for testifying. Nutramax Labs., Inc. v. Twin Labs. Inc., 183 F.R.D. 458, 472 (D. Md. 1998); see also In re Managed Care Litig., 415 F. Supp. 2d 1378, 1380 (S.D. Fla. 2006); Jos. Schlitz Brewing Co. v. Muller & Phipps (Hawaii), Ltd., 85 F.R.D. 118, 120 (W.D. Mo. 1980).")

Case Date	Jurisdiction	State	Cite Checked
2011-10-11	Federal	VA

Chapter: 28.1905

Case Name: Hsingching Hsu v. Puma Biotechnology, Inc., Case No. 8:15-cv-00865-AG (SHK), 2018 U.S. Dist. LEXIS 103353 (C.D. Cal. June 20, 2018)

(analyzing the interplay of Rule 30(b)(6) and Rule 612; "The first factor -- whether the documents refreshed the designee's recollection -- is read broadly because 'it is the corporation that has the 'prior knowledge of the facts contained in the documents' and thus it is the corporation's knowledge that is being 'refreshed' under FRE 612." 2017 U.S. Dist. LEXIS 193445, [WL] at *8 (citations omitted). Consequently, '[t]his element is presumed to be met when the corporation or its attorneys choose to refresh the corporation's knowledge with the selected documents.' Id."; "Here, Mr. Bleharski testified that he refreshed his recollection with respect to the topics for discussion during the Rule 30(b)(6) deposition. Mr. Bleharski testified that he refreshed his recollection by 'reviewing various documents and emails' in order to prepare for his deposition. ECF No. 268-1, Conn Decl., Ex. F at 33. Read broadly, this factor is satisfied."; "The second factor -- whether the documents were used for the purpose of testifying -- the Court applies a rebuttable presumption when the party orders specific documents that were shown to a designated corporate representative to prepare that witness under 30(b)(6). Adidas, 2017 U.S. Dist. LEXIS 193445, 2017 WL 5630038, at *8. 'This is particularly true 'where a corporate designee testifies on topics of which he denies any personal knowledge, [because] he is an 'empty vessel' and documents reviewed on those topics in preparation for the deposition necessarily informed his testimony.' Id. (citation omitted)."; "The third factor looks to the whether the disclosure of documents relied on in preparation for a Rule 30(b)(6) deposition would serve the interests of justice."; "Here, the Court finds that the balance favors disclosure of the documents that JPM relied on to prepare Mr. Bleharski for his deposition under Rule 30(b)(6) on the noticed topics at issue. First, the topics on which Mr. Bleharski testified were negotiated by JPM's litigation counsel. Second, none of the topics involve areas that seek legal conclusions. Third, there is no indication that the materials include core work product. Fourth, JPM has failed to carry its burden in noting that the number of documents at issue are a very small subset of the produced documents that would necessarily disclose JPM's counsel's thought processes. Finally, there is no indication that producing the index of documents would be burdensome.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-20	Federal	CA

Comment:

key case

Chapter: 28.1905

Case Name: Hsingching Hsu v. Puma Biotechnology, Inc., Case No. 8:15-cv-00865-AG (SHK), 2018 U.S. Dist. LEXIS 103353 (C.D. Cal. June 20, 2018)

(analyzing the interplay of Rule 30(b)(6) and Rule 612; "Although the Ninth Circuit has not yet addressed the specific question of whether a corporate representative's review of documents that are protected by the attorney-client privilege or work-product doctrine that the corporate representative designee relied upon in preparation for testimony under a Rule 30(b)(6) deposition waives that privilege or protection, the Court adopts the balancing test from the set out in Adidas, 2017 U.S. Dist. LEXIS 193445, 2017 WL 5630038, at *8. The Court in Adidas laid out a three-part balancing test considering the following factors: (1) whether the documents that the designee used in preparation for a Rule 30(b)(6) deposition was used to refresh his or her recollection; (2) whether the documents were used for the purpose of testifying; and (3) whether the interests of justice require disclosure of such documents. 2017 U.S. Dist. LEXIS 193445, [WL] at *8-9.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-20	Federal	CA

Comment:

key case

Chapter: 28.1905

**Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445, at 15-16, 18 (D. Or. Nov. 22, 2017)**

February 28, 2018 (PRIVILEGE POINT)

"Court Analyzes the Complex Interplay Between Federal Rule of Evidence 612 and Federal Rule of Civil Procedure 30(b)(6)"

Under Federal Rule of Evidence 612, courts concluding that "justice requires" it may order disclosure of privileged or work product protected documents that refreshed a witness's recollection before testifying. How does that rule apply to Rule 30(b)(6) witnesses, who generally have no recollection -- but instead absorb a corporation's collective knowledge before testifying as the corporation's representative?

In Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445, at *15-16, *18 (D. Or. Nov. 22, 2017), the court noted that (1) some courts "appl[y] an 'automatic' waiver under FRE 612" requiring Rule 30(b)(6) witnesses to produce every document they reviewed – an approach the court said had "some appeal," and (2) "many courts exercise discretion by applying a case-by-case balancing test." The court ultimately adopted its own standard, "a middle-ground approach between the automatic waiver rule and the balancing test." Id. at *20-21. Among other things, the court understandably held that in a Rule 30(b)(6) setting an individual witness "is not having his or her own personal knowledge refreshed" – so it is the corporation's knowledge that is being "refreshed" under FRE 612. Id. at *21.

Each of Rule 612 and Rule 30(b)(6) is complicated on its own, but their combination creates additional subtle issues.

Case Date	Jurisdiction	State	Cite Checked
2017-11-22	Federal	OR

Comment:

key case

Chapter: 28.1905

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "Considering the issues and concerns of fairness and the attorney-client privilege and work-product protection, the Court finds that the balance favors disclosure of the documents selected by the company and provided to the corporate representative witnesses to prepare them for their depositions under FRCP 30(b)(6) on the specified topics. The identified topics are of significant importance to the defense, are narrow in scope, and involve only a subset of privileged and work-product protected documents selected by the company to educate and refresh the recollection of Plaintiffs' FRCP 30(b)(6) witnesses who otherwise did not have personal knowledge of the topics. The documents were reviewed for the specific purpose of deposition preparation, and the topics involved events that occurred years before the depositions took place. Accordingly, subject to the caveats and opportunities to seek further protection from the Court noted above, Plaintiffs must produce the documents that were shown to Mr. Federspiel and Ms. Vanderhoff to prepare them for their FRCP 30(b)(6) testimony on topics 5, 6, 40, and 42, regardless of attorney-client privilege or work-product protection.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1905

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; also analyzing documents that the two witnesses reviewed independently; "Defendants assert that they recently learned that Mr. Federspiel and Ms. Vanderhoff also independently reviewed privileged documents in preparing for their depositions, in addition to the documents selected by the company to prepare them for their testimony under FRCP 30(b)(6). Plaintiffs respond that Defendants fail to meet their burden to show that Mr. Federspiel and Ms. Vanderhoff actually reviewed any documents independently. Plaintiffs do not deny that these witnesses reviewed documents independently, but merely argue that Defendants do not sufficiently prove such review. Given the history of less-than-full candor in discovery by Plaintiffs in this case, the Court is not persuaded by this form-over-substance argument."; "The Court's application of the modified balancing test, however, is only applicable in the context of witnesses designated under FRCP 30(b)(6) for documents selected by the corporation. The presumption of disclosure (that arises from the rebuttable presumptions of elements one and two) is not supported for documents that a witness independently reviews. It is one thing for a corporation to select what documents will educate its FRCP 30(b)(6) witnesses. Those are documents that the company apparently has found to be of such importance to the topic and the need to educate its corporate representatives before their depositions that the company selected them in order to meet its obligations under FRCP 30(b)(6). Therefore, it is both logical and fair to rebuttably presume that those documents were intended to and did refresh the recollection of and influence the testimony of the witnesses and will be of such importance that the interests of justice support disclosure. When a witness independently decides to review a certain document, however, that presents a different matter."; "Documents that a witness -- particularly a witness who lacks personal knowledge of the relevant topic, came to the company after the relevant events, or who is an 'empty vessel' with respect to the relevant topic -- believes may be important to a topic may not be important at all. Presumably, if documents are important to a topic, the company would have selected those documents to meet its obligations under FRCP 30(b)(6). Accordingly, the Court does not find that a presumption of disclosure is appropriate for any documents that Mr. Federspiel or Ms. Vanderhoff may have independently reviewed relating to topics 5, 6, 40, and 42. Instead, the Court orders that, to the extent Mr. Federspiel or Ms. Vanderhoff independently reviewed documents, those documents must be produced to the Court in camera, along with the complete deposition transcripts for these two witnesses. The Court will make a determination as to whether those documents were appropriately designated as privileged or work-product protected and, if so, whether those documents appear to have influenced a witness's testimony such that they should be produced in the interests of justice.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1905

Case Name: Long v. Destination Maternity Corp., Case No. 15-cv-2836 WQH-RBB, 2017 U.S. Dist. LEXIS 69302 (S.D. Cal. May 5, 2017)

(holding that a notebook fraught by a Rule 30(b)(6) witness to a deposition deserved work product protection; also holding that application of Rule 612 required an analysis the magistrate judge had not undertaken; "In this case, the transcript of the deposition shows that the witness relied upon some limited reference to the binder while testifying. However, the order fails to identify any document subject to disclosure under Rule 612 and does not make any finding regarding the interests of justice. Based upon the record before this Court, the Court concludes that the order . . . is contrary to law.")

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

Chapter: 28.1905

Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)

(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "Manitowoc creatively argues that Reuther waived any protection afforded the spreadsheet by using it to refresh his memory prior to the deposition. Manitowoc correctly asserts that the use of a privileged document to refresh a witness's recollection can lead to the waiver of both work product and attorney-client communication. Federal Rule of Evidence 612 controls this blended evidentiary and discovery issue and applies to depositions via Federal Rule of Civil Procedure 30(c). . . . Crucially, however, Rule 612 relies heavily on the Court's discretion in determining whether to order a party to produce otherwise privileged documents."; "As a threshold matter, we observe that it is not clear that Reuther used the spreadsheet to refresh his recollection in the manner Federal Rule of Evidence 612 contemplates that concept. While Reuther openly acknowledged that he 'reviewed' the spreadsheet prior to his deposition . . . Manitowoc makes no showing that Reuther's memory was ever exhausted such that Reuther needed the spreadsheet to 'refresh' his compromised memory. . . . Suffice to say, we are not confident that a witness's 'review' of a document in the standard course of preparation for a deposition even implicates Rule 612. At the very least, this form of usage distinguishes it from the case law Manitowoc cites and raises sufficient ambiguity to weigh against a finding of waiver."; "To resolve this matter, we also look to Rule 612's directive that disclosure of a document used to refresh a witness's memory in advance of her testimony is appropriate 'if the court decides that justice requires the [requesting] party' to have the document available. Fed. R. Evid. 612(a)(2). The foregoing sections of this opinion make abundantly clear that, even absent disclosure of the Reuther Spreadsheet, Manitowoc will not suffer any inability to obtain identifying information regarding the documents that Reuther has in possession. Rather, Reuther provided this information in his answer to Interrogatory No. 15 (and answers to other interrogatories). (See Dkt. 140, Ex. C.) And, Manitowoc fails to identify any compelling need for the attorney-client privileged information contained in the Reuther spreadsheet. We therefore do not find that 'justice requires' the production of the Reuther spreadsheet.")

Case Date	Jurisdiction	State	Cite Checked
2016-08-26	Federal	IL

Chapter: 28.1905

Case Name: McDaniels v. State Auto Property and Casualty Ins. Co., Civ. A. No. 3:15-CV-69 (GROH), 2016 U.S. Dist. LEXIS 62795 (N.D.W. Va. May 12, 2016)

(analyzing Federal Rule of Evidence 612; "Rule 612 is "silent with respect to whether it applies to work product [and other privileged] materials used to refresh recollection.'. . . Courts have adopted differing approaches to this issue, some holding that privileged materials reviewed by a witness prior to being deposed are subject to disclosure under Rule 612, while others have held that they are not."; "The undersigned finds that Plaintiff has not established the three foundational elements that must be met before an adverse party is required to produce documents pursuant to Rule 612. Regarding the first element, that the witness used a writing to refresh his or her memory, it is unclear from Mr. Lovrak's deposition testimony whether he actually used his notes to refresh his recollection. When initially asked whether the notes 'help[ed his] recollection,' Mr. Lovrak testified 'I don't think so.' However, later in the deposition, Mr. Lovrak testified that, 'at that time,' he was looking at the notes to help refresh his memory. Regardless of whether Mr. Lovrak used his notes to refresh his recollection, Plaintiff must establish all three foundational elements for documents to be produced pursuant to Rule 612."; "Regarding the second element, that the writing was used for the purpose of testifying, Mr. Lovrak testified that the purpose of the notes 'would deal with a discussion [he] had with counsel.' When asked if a purpose of the notes was to refresh his memory, Mr. Lovrak reiterated that the notes were for a meeting with Defendant's counsel. Furthermore, when asked what documents he reviewed 'for purposes of refreshing [his] memory or preparing [for the deposition],' Mr. Lovrak did not mention his notes. Finally, the undersigned reviewed the notes in camera during the evidentiary hearing and finds that Plaintiff clearly used his notes, not to prepare for his deposition, but to receive Defendant's counsel's advice and guidance. Therefore, Plaintiff has failed to establish the second foundational element."; "Plaintiff fails to establish the third element, that justice requires Defendant to produce the notes. When analyzing the third element, a court must initially determine whether the documents at issue are protected from disclosure. In this case, Defendant argues that Mr. Lovrak's notes are protected by the attorney-client privilege and work product doctrines. Although Plaintiff did not dispute that the notes constitute documents protected by the attorney-client privilege and work product doctrine at the evidentiary hearing, he argued that Defendant's claims of privilege and work product were waived when Defendant's counsel failed to raise these specific objections during the deposition. Defendant countered by arguing that, while it may have waived its work product claim, Mr. Lovrak asserted the attorney-client privilege during his deposition. Because the undersigned agrees that Mr. Lovrak clearly asserted the attorney-client privilege as to his notes during the deposition and had the authority as a Rule 30(b)(6) corporate representative to do so, the undersigned finds that Mr. Lovrak's notes are privileged."; "A thorough review of Mr. Lovrak's deposition testimony and an in camera review of Mr. Lovrak's notes revealed that the notes would only be marginally, if at all, useful for the purposes of cross-examination and impeachment.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-12	Federal	WV

Chapter: 28.1905

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. Cir. Aug. 11, 2015)

September 23, 2015 (PRIVILEGE POINT)

"The D.C. Circuit Issues Another Privilege-Friendly Decision: Part I"

In 2014, the D.C. Circuit adopted a very favorable privilege standard — protecting communications if "one significant . . . Purpose[]" was corporations' need for legal advice, even if that was not the communications' "primary purpose." In re Kellogg Brown & Root, Inc ., 756 F.3d 754, 760 (D.C. Cir. 2014). Now a different panel of D.C. Circuit judges dealing with the same internal corporate investigation has taken a privilege-friendly approach to two more peripheral privilege issues — granting another petition for writ of mandamus. In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. Cir. Aug. 11, 2015).

In the first holding, the appellate court found that the district court had erroneously applied Federal Rule of Evidence 612. That rule allows courts to order the production of otherwise privileged documents which refreshed a witness's recollection upon reviewing them before testifying — "'if the court decides that justice requires'" disclosure. Id. At *11. The plaintiff sought production of documents KBR's Rule 30(b)(6) deponent had reviewed before testifying. The court explained that trial courts undertake the "justice requires" analysis only if the witness's document review refreshed her recollection — implying that the plaintiff had not satisfied that prerequisite. The court then held that even if the balancing "justice requires" test had been appropriate, the district court "failed to give due weight to the privilege and protection attached to the internal investigation materials." Id. At *15.

The D.C. Circuit's privilege-friendly decision should remind lawyers of Rule 612's possible counter-intuitive effect. Even showing undeniably privileged internal corporate communications to a corporate employee preparing to testify can forfeit the privilege if (1) the documents refresh the witness's recollection, and (2) the court finds that "justice requires" the documents' production to the adversary. Next week's Privilege Point will discuss the D.C. Circuit's other holding.

Case Date	Jurisdiction	State	Cite Checked
2015-08-11	Federal	DC

Comment:

key case

Chapter: 28.1905

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)

(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "Barko cannot 'overcome the privilege by putting [the COBC investigation] in issue' at the deposition . . . and then demanding under Rule 612 to see the investigatory documents the witness used to prepare. Allowing privilege and protection to be so easily defeated would defy 'reason and experience,' FED. R. EVID. 501, and 'potentially upend certain settled understandings and practices' about the protections for such investigations. . . ."; "In sum, the District Court's Rule 612 ground for its production order was clear error because there was no basis for the fairness balancing test it conducted and, even had there been, the test failed to give due weight to the privilege and protection attached to the internal investigation materials.")

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

Chapter: 28.1905

Case Name: Wells Fargo Bank, N.A. v. RLJ Lodging Trust, Case No. 13-cv-00758, 2014 U.S. Dist. LEXIS 106273 (N.D. Ill. Aug. 4, 2014)

("The better reasoned cases employ a functional approach in determining whether 'justice requires' production of a document reviewed by a witness before testifying. That involves inquiry into, among other things, whether the document or, in this case, the portion of the document being withheld reasonably can be said to have influenced the witness's testimony, whether production of the withheld material would resolve credibility issues, whether disclosure would breach confidentiality, and whether production is necessary for fair cross-examination or whether, instead, the examining party is on a 'fishing expedition.'")

Case Date	Jurisdiction	State	Cite Checked
2014-08-04	Federal	IL

Chapter: 28.1905

**Case Name: Accusoft Corp. v. Quest Diagnostics, Inc., Civ. A. No. 12-cv-40007-TSH, 2014 U.S. Dist. LEXIS 18976, at *16 (D. Mass. Feb. 14, 2014)**

(analyzing Rule 612 in connection with an in-house lawyer's deposition; ultimately finding that the witness could not remember whether the particular documents at issue refreshed his recollection; "Hackett was reviewing his own privileged communications so that he would be prepared to testify at his deposition. To ask him to not review his internal communications would be to ask him to not be prepared for the deposition. If the court were to order the production of an unredacted Email Four, Accusoft would realize an 'end run' around the attorney-client privilege. The Court is unwilling to facilitate such a result.")

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

Chapter: 28.1905

Case Name: N. Natural Gas Co. v. Approx. 9117.53 acres, 289 F.R.D. 644, 651, 651-52, 652 (D. Kan. 2013)

(analyzing Rule 612; "The court must then decide whether the interests of justice require that the materials be produced."; "One factor is when the events took place that are the subject of the examination."; "When the documents were reviewed should also be considered. Here the review apparently took place shortly before the date of the noticed deposition. This strongly suggests that the sole purpose of the document review was to prepare for the deposition rather than for some other potential purpose."; "Whether the documents themselves contain, in whole or in part, 'pure' attorney work product may be important."; "Whether the documents have been previously produced during discovery is another consideration."; "Finally, the number of documents reviewed may be important."; "After considering the information provided about the documents reviewed and the depositions, the court finds that it is in the interest of justice to allow examining counsel to inquire of the two witnesses what documents the witnesses reviewed in preparation for the deposition, and also to allow examining counsel to review the actual documents prior to concluding the deposition of the witnesses.")

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

Chapter: 28.1905

**Case Name: Brown v. Tethy's Bioscience, Inc., Civ. A. No. 3:11MC11, 2011 U.S. Dist. LEXIS 117075, at 4-5, 5-6, 6-7, 7 (E.D. Va. Oct. 11, 2011)**

("Courts have developed the following three-part test to determine whether otherwise privileged documents should be produced under Rule 612 based on their use by a deponent to refresh his or her recollection prior to the deposition: '(1) a witness must use a writing to refresh his or her memory; (2) for the purpose of testifying; and (3) the court must determine that, in the interest of justice, the adverse party is entitled to see the writing.' Nutramax Labs., Inc., 183 F.R.D. at 468; see also Coryn Grp. II, LLC, 265 F.R.D. at 242; Ferry v. BJ's Wholesale Club, No. 3:06CV226-C, 2007 U.S. Dist. LEXIS 1808, 2007 WL 75375, at *3 (W.D.N.C. Jan. 8, 2007). In exercising its discretion under Rule 612(2), courts balance the need for disclosure, in order to examine the witness fully, against the need to protect the policies underlying the asserted privilege. Coryn Grp. II, LLC, 265 F.R.D. at 241; Nutramax Labs., Inc., 183 F.R.D. at 468."; "Factors to consider when making this determination include the following: (1) the witness's status; (2) the importance of the witness's testimony to the case; (3) when the events took place; (4) when the documents were reviewed; (5) the number of documents reviewed; (6) whether the witness prepared the documents reviewed; (6) what type of privilege applies to the documents; (7) whether the documents were previously disclosed; and, (8) the existence of credible concerns regarding manipulation, concealment, or destruction of evidence. Nutramax Labs., Inc., 183 F.R.D. at 469-70; see also Coryn Grp. II, LLC, 265 F.R.D. at 244."; "Plaintiffs contend that Funk 'brought several documents in a folder to the deposition,' that he 'reviewed the documents in preparation for the deposition,' and that he referred to and reviewed the documents 'while formulating a response to questions.' . . . Because they fail to specify any conduct regarding the two documents subject to challenge here, these conclusory allegations insufficiently meet the burden under Rule 612. Rule 612 provides access 'only to those writings which may fairly be said in part to have an impact upon the testimony of the witness.' Coryn Grp. II, LLC, 265 F.R.D. at 242 (quoting Nutramax Labs., Inc., 183 F.R.D. at 468). Plaintiffs have failed to sufficiently demonstrate that Funk reviewed the October 11, 2010 E Mail and the October 12, 2010 Document while testifying or in preparation for testifying. This failure renders Rule 612 inapplicable."; declining to order production of the documents even if the witness had reviewed them; "Even if the Court were to assume that Funk reviewed the October 11, 2010 E-Mail and the October 12, 2010 Document in preparation for testifying, the Court, in its discretion, would not require the production of the two documents. Considering the information contained in these two documents, the need to fully examine Funk's testimony, the policies underlying the privileges at issue, and the other factors listed above, the Court concludes that the balance weighs against requiring the production of these two documents.")

Case Date	Jurisdiction	State	Cite Checked
2011-10-11	Federal	VA

Chapter: 28.1906

Case Name: Siegmund v. Bian, Case No. 16-CV-62506-MORENO/LOUIS, 2018 U.S. Dist. LEXIS 155507 (S.D. Fla. Sept. 5, 2018)

(analyzing both the opinion work product doctrine and Rule 612's application connection with deposition questions about the deponent's review of documents before testifying; holding that the adversary's lawyer could ask generally about what documents the witness interviewed; "It is well-settled law that except for pure opinion work product, 'any work product protection [is] lost when the witness specifically relie[s] on the document in preparation for his deposition.'. . . Moreover, 'whatever heightened protection may be conferred upon opinion work product, that level of protection is not triggered unless disclosure creates a real, non-speculative danger of revealing the lawyer's thoughts.'. . . Here, Plaintiff is not seeking production the documents on which Mr. Paskowitz relied; instead, Plaintiff contends that Plaintiff should have been permitted to question Mr. Paskowitz about the general nature of the documents he used to prepare for his deposition."; "Mr. Paskowitz testified that in preparation for his deposition, he met with his counsel for about five or six hours and reviewed certain documents (ECF No. 188-1 at 18). When asked, 'can you generally describe the documents that you reviewed,' Mr. Paskowitz was instructed not to answer on grounds of work product privilege and attorney-client communication. This was error. Plaintiff should have been permitted to examine Mr. Paskowitz regarding the general nature of the documents he used to prepare himself for the deposition, absent a 'real, non-speculative danger' of revealing opinion work product."; "Defendant also claims that by identifying which groups of documents Mr. Paskowitz relied on for his preparation, he would be revealing the sorting and grouping process of his attorneys. Although federal courts disagree over whether the selection and compilation of documents by counsel may constitute opinion work product, it is clear that 'the mere selection and grouping of information by counsel for a deponent to review does not automatically transform otherwise discoverable documents into work product.' Calderon v. Reederei Claus-Peter Offen Gmbh & Co., No. 07-61022-CIV, 2009 U.S. Dist. LEXIS 130423, 2009 WL 1748089, at *3 (S.D. Fla. June 19, 2009). As such, the party asserting a work product claim 'must come forward with some evidence that disclosure of the requested documents creates a real, non-speculative danger of revealing counsel's thoughts.". . . In this case, Defendant, whose burden it is to demonstrate the applicability of the work-product doctrine or attorney-client privilege, has not shown that the identification of the documents Mr. Paskowitz reviewed in preparation for his deposition creates a 'real, non-speculative danger' of revealing counsel's thoughts, or implicating the attorney-client privilege. Accordingly, the Court finds that Plaintiff should have been permitted to question Mr. Paskowitz regarding the general nature of the documents he reviewed in preparation for his deposition.")

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

Chapter: 28.1906

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "The second element [under Sporck, [Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985)] asks whether the documents were 'used' for the purpose of testifying. Plaintiffs argue that Defendants fail to show that the witnesses actually relied upon any privileged documents."; "When dealing with FRE 612 issues in the context of depositions of percipient witnesses, courts not infrequently conduct an in camera review to compare the documents at issue with the actual deposition testimony. The court can then evaluate whether the documents appear to have influenced the testimony. In the context of FRCP 30(b)(6) depositions, however, the Court concludes that a better practice is for there to be a rebuttable presumption that the witness relied on the documents selected by the corporation (or its counsel) and then presented to the corporate representative to educate that witness on the noticed topics. Because the deposing party has an obligation to provide a deposition notice with specific and detailed topics and the responding corporation (or other organization) has a corresponding obligation to provide a witness who is knowledgeable on each specified topic, it is an reasonable inference that documents selected by the corporation and provided to the witness to educate him or her on a particular topic is intended to (and thus is likely to) have an influence on the witness's testimony on that topic.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1906

Case Name: N. Natural Gas Co. v. Approx. 9117.53 acres, 289 F.R.D. 644, 651, 651-52, 652 (D. Kan. 2013)

(analyzing Rule 612; "The court must then decide whether the interests of justice require that the materials be produced."; "One factor is when the events took place that are the subject of the examination."; "When the documents were reviewed should also be considered. Here the review apparently took place shortly before the date of the noticed deposition. This strongly suggests that the sole purpose of the document review was to prepare for the deposition rather than for some other potential purpose."; "Whether the documents themselves contain, in whole or in part, 'pure' attorney work product may be important."; "Whether the documents have been previously produced during discovery is another consideration."; "Finally, the number of documents reviewed may be important."; "After considering the information provided about the documents reviewed and the depositions, the court finds that it is in the interest of justice to allow examining counsel to inquire of the two witnesses what documents the witnesses reviewed in preparation for the deposition, and also to allow examining counsel to review the actual documents prior to concluding the deposition of the witnesses.")

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

Chapter: 28.1907

Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 105619 (N.D. Cal. Aug. 9, 2016)

("Apparently defense counsel made a strategic choice to not use Manogue's [Defendant's general counsel] own notes -- which were in their possession and logged (albeit incorrectly) in the privilege log -- to refresh her recollection prior to her deposition. It also appears that, despite the significance of the Watson settlement to Endo, Manogue cannot recall any substantive details about the negotiations of that settlement. Contemporaneous information regarding this topic is central both to plaintiffs' burden at trial and Endo's defenses."; "Endo has not shown that any of the participants in the settlement negotiations can provide -- either through contemporaneous documents or through testimony -- concrete information about the exact terms that were exchanged, much less when those terms were proposed, debated, agreed to, or rejected. The terms of the Watson settlement -- both those rejected and those agreed-to -- are key to plaintiffs' claims and defendants' defenses on the merits of this case. As a result, there is a compelling need to disclose Manogue's notes.")

Case Date	Jurisdiction	State	Cite Checked
2016-08-09	Federal	CA

Chapter: 28.1907

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)

(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "[E]ven if the balancing test had been appropriate, the District Court's conclusions were precluded by Upjohn. Courts have divided on how to reconcile Rule 612 balancing with attorney-client privilege and work product protection.")

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

Chapter: 28.1908

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "Considering the issues and concerns of fairness and the attorney-client privilege and work-product protection, the Court finds that the balance favors disclosure of the documents selected by the company and provided to the corporate representative witnesses to prepare them for their depositions under FRCP 30(b)(6) on the specified topics. The identified topics are of significant importance to the defense, are narrow in scope, and involve only a subset of privileged and work-product protected documents selected by the company to educate and refresh the recollection of Plaintiffs' FRCP 30(b)(6) witnesses who otherwise did not have personal knowledge of the topics. The documents were reviewed for the specific purpose of deposition preparation, and the topics involved events that occurred years before the depositions took place. Accordingly, subject to the caveats and opportunities to seek further protection from the Court noted above, Plaintiffs must produce the documents that were shown to Mr. Federspiel and Ms. Vanderhoff to prepare them for their FRCP 30(b)(6) testimony on topics 5, 6, 40, and 42, regardless of attorney-client privilege or work-product protection.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1908

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "The second element [under Sporck, [Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985)] asks whether the documents were 'used' for the purpose of testifying. Plaintiffs argue that Defendants fail to show that the witnesses actually relied upon any privileged documents."; "When dealing with FRE 612 issues in the context of depositions of percipient witnesses, courts not infrequently conduct an in camera review to compare the documents at issue with the actual deposition testimony. The court can then evaluate whether the documents appear to have influenced the testimony. In the context of FRCP 30(b)(6) depositions, however, the Court concludes that a better practice is for there to be a rebuttable presumption that the witness relied on the documents selected by the corporation (or its counsel) and then presented to the corporate representative to educate that witness on the noticed topics. Because the deposing party has an obligation to provide a deposition notice with specific and detailed topics and the responding corporation (or other organization) has a corresponding obligation to provide a witness who is knowledgeable on each specified topic, it is an reasonable inference that documents selected by the corporation and provided to the witness to educate him or her on a particular topic is intended to (and thus is likely to) have an influence on the witness's testimony on that topic.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1908

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; also analyzing documents that the two witnesses reviewed independently; also analyzing the interplay of the rules for a non-Rule 30(b)(6) fact witness; "[T]he Court finds that witnesses designated under FRCP 30(b)(6) are unique based on the specific obligations and responsibilities placed on both the noticing party and responding party by that rule. The fact that a percipient witness is given a binder of documents to prepare for deposition does not create the same burdens and obligations of a witness designated under FRCP 30(b)(6)."; "Furthermore, Defendants fail to show that this 'binder' refreshed Ms. Rodal's recollection, included privileged documents, or could reasonably have influenced her testimony. Under Defendants' theory, every percipient witness who is given documents by an attorney to prepare for a deposition would be subject to having those documents disclosed under FRE 612 based on a showing of nothing more than the fact that documents were given to the percipient witness. The Court finds this to be an insufficient basis to trigger FRE 612. Accordingly, the Court denies Defendants' motion with respect to Ms. Rodal.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1908

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; also analyzing documents that the two witnesses reviewed independently; "Defendants assert that they recently learned that Mr. Federspiel and Ms. Vanderhoff also independently reviewed privileged documents in preparing for their depositions, in addition to the documents selected by the company to prepare them for their testimony under FRCP 30(b)(6). Plaintiffs respond that Defendants fail to meet their burden to show that Mr. Federspiel and Ms. Vanderhoff actually reviewed any documents independently. Plaintiffs do not deny that these witnesses reviewed documents independently, but merely argue that Defendants do not sufficiently prove such review. Given the history of less-than-full candor in discovery by Plaintiffs in this case, the Court is not persuaded by this form-over-substance argument."; "The Court's application of the modified balancing test, however, is only applicable in the context of witnesses designated under FRCP 30(b)(6) for documents selected by the corporation. The presumption of disclosure (that arises from the rebuttable presumptions of elements one and two) is not supported for documents that a witness independently reviews. It is one thing for a corporation to select what documents will educate its FRCP 30(b)(6) witnesses. Those are documents that the company apparently has found to be of such importance to the topic and the need to educate its corporate representatives before their depositions that the company selected them in order to meet its obligations under FRCP 30(b)(6). Therefore, it is both logical and fair to rebuttably presume that those documents were intended to and did refresh the recollection of and influence the testimony of the witnesses and will be of such importance that the interests of justice support disclosure. When a witness independently decides to review a certain document, however, that presents a different matter."; "Documents that a witness -- particularly a witness who lacks personal knowledge of the relevant topic, came to the company after the relevant events, or who is an 'empty vessel' with respect to the relevant topic -- believes may be important to a topic may not be important at all. Presumably, if documents are important to a topic, the company would have selected those documents to meet its obligations under FRCP 30(b)(6). Accordingly, the Court does not find that a presumption of disclosure is appropriate for any documents that Mr. Federspiel or Ms. Vanderhoff may have independently reviewed relating to topics 5, 6, 40, and 42. Instead, the Court orders that, to the extent Mr. Federspiel or Ms. Vanderhoff independently reviewed documents, those documents must be produced to the Court in camera, along with the complete deposition transcripts for these two witnesses. The Court will make a determination as to whether those documents were appropriately designated as privileged or work-product protected and, if so, whether those documents appear to have influenced a witness's testimony such that they should be produced in the interests of justice.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1908

Case Name: McDaniels v. State Auto Property and Casualty Ins. Co., Civ. A. No. 3:15-CV-69 (GROH), 2016 U.S. Dist. LEXIS 62795 (N.D.W. Va. May 12, 2016)

(analyzing Federal Rule of Evidence 612; "Rule 612 is "silent with respect to whether it applies to work product [and other privileged] materials used to refresh recollection.'. . . Courts have adopted differing approaches to this issue, some holding that privileged materials reviewed by a witness prior to being deposed are subject to disclosure under Rule 612, while others have held that they are not."; "The undersigned finds that Plaintiff has not established the three foundational elements that must be met before an adverse party is required to produce documents pursuant to Rule 612. Regarding the first element, that the witness used a writing to refresh his or her memory, it is unclear from Mr. Lovrak's deposition testimony whether he actually used his notes to refresh his recollection. When initially asked whether the notes 'help[ed his] recollection,' Mr. Lovrak testified 'I don't think so.' However, later in the deposition, Mr. Lovrak testified that, 'at that time,' he was looking at the notes to help refresh his memory. Regardless of whether Mr. Lovrak used his notes to refresh his recollection, Plaintiff must establish all three foundational elements for documents to be produced pursuant to Rule 612."; "Regarding the second element, that the writing was used for the purpose of testifying, Mr. Lovrak testified that the purpose of the notes 'would deal with a discussion [he] had with counsel.' When asked if a purpose of the notes was to refresh his memory, Mr. Lovrak reiterated that the notes were for a meeting with Defendant's counsel. Furthermore, when asked what documents he reviewed 'for purposes of refreshing [his] memory or preparing [for the deposition],' Mr. Lovrak did not mention his notes. Finally, the undersigned reviewed the notes in camera during the evidentiary hearing and finds that Plaintiff clearly used his notes, not to prepare for his deposition, but to receive Defendant's counsel's advice and guidance. Therefore, Plaintiff has failed to establish the second foundational element."; "Plaintiff fails to establish the third element, that justice requires Defendant to produce the notes. When analyzing the third element, a court must initially determine whether the documents at issue are protected from disclosure. In this case, Defendant argues that Mr. Lovrak's notes are protected by the attorney-client privilege and work product doctrines. Although Plaintiff did not dispute that the notes constitute documents protected by the attorney-client privilege and work product doctrine at the evidentiary hearing, he argued that Defendant's claims of privilege and work product were waived when Defendant's counsel failed to raise these specific objections during the deposition. Defendant countered by arguing that, while it may have waived its work product claim, Mr. Lovrak asserted the attorney-client privilege during his deposition. Because the undersigned agrees that Mr. Lovrak clearly asserted the attorney-client privilege as to his notes during the deposition and had the authority as a Rule 30(b)(6) corporate representative to do so, the undersigned finds that Mr. Lovrak's notes are privileged."; "A thorough review of Mr. Lovrak's deposition testimony and an in camera review of Mr. Lovrak's notes revealed that the notes would only be marginally, if at all, useful for the purposes of cross-examination and impeachment.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-12	Federal	WV

Chapter: 28.1908

**Case Name: Carpenter Co. v. BASF SE (In re Urethane Antitrust Litig.), MDL No. 1616, Case No. 04-MD-1616-JWL, 2013 U.S. Dist. LEXIS 128353, at *41 (D. Kan. Sept. 5, 2013)**

(finding it unnecessary to analyze Rule 612; "[T]he undersigned notes that were he required to address the matter, he would conclude that Rule 612 does not apply here. The undersigned has reviewed the transcript of Barbour's [former employee of defendant Dow] deposition. At no time during the deposition did Barbour testify that she used the Ella [Barbour's former lawyer] memorandum to refresh her memory.")

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

Chapter: 28.1909

Case Name: Siegmund v. Bian, Case No. 16-CV-62506-MORENO/LOUIS, 2018 U.S. Dist. LEXIS 155507 (S.D. Fla. Sept. 5, 2018)

(analyzing both the opinion work product doctrine and Rule 612's application connection with deposition questions about the deponent's review of documents before testifying; holding that the adversary's lawyer could ask generally about what documents the witness interviewed; "It is well-settled law that except for pure opinion work product, 'any work product protection [is] lost when the witness specifically relie[s] on the document in preparation for his deposition.'. . . Moreover, 'whatever heightened protection may be conferred upon opinion work product, that level of protection is not triggered unless disclosure creates a real, non-speculative danger of revealing the lawyer's thoughts.'. . . Here, Plaintiff is not seeking production the documents on which Mr. Paskowitz relied; instead, Plaintiff contends that Plaintiff should have been permitted to question Mr. Paskowitz about the general nature of the documents he used to prepare for his deposition."; "Mr. Paskowitz testified that in preparation for his deposition, he met with his counsel for about five or six hours and reviewed certain documents (ECF No. 188-1 at 18). When asked, 'can you generally describe the documents that you reviewed,' Mr. Paskowitz was instructed not to answer on grounds of work product privilege and attorney-client communication. This was error. Plaintiff should have been permitted to examine Mr. Paskowitz regarding the general nature of the documents he used to prepare himself for the deposition, absent a 'real, non-speculative danger' of revealing opinion work product."; "Defendant also claims that by identifying which groups of documents Mr. Paskowitz relied on for his preparation, he would be revealing the sorting and grouping process of his attorneys. Although federal courts disagree over whether the selection and compilation of documents by counsel may constitute opinion work product, it is clear that 'the mere selection and grouping of information by counsel for a deponent to review does not automatically transform otherwise discoverable documents into work product.' Calderon v. Reederei Claus-Peter Offen Gmbh & Co., No. 07-61022-CIV, 2009 U.S. Dist. LEXIS 130423, 2009 WL 1748089, at *3 (S.D. Fla. June 19, 2009). As such, the party asserting a work product claim 'must come forward with some evidence that disclosure of the requested documents creates a real, non-speculative danger of revealing counsel's thoughts.". . . In this case, Defendant, whose burden it is to demonstrate the applicability of the work-product doctrine or attorney-client privilege, has not shown that the identification of the documents Mr. Paskowitz reviewed in preparation for his deposition creates a 'real, non-speculative danger' of revealing counsel's thoughts, or implicating the attorney-client privilege. Accordingly, the Court finds that Plaintiff should have been permitted to question Mr. Paskowitz regarding the general nature of the documents he reviewed in preparation for his deposition.")

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

Chapter: 28.1909

Case Name: Hsingching Hsu v. Puma Biotechnology, Inc., Case No. 8:15-cv-00865-AG (SHK), 2018 U.S. Dist. LEXIS 103353 (C.D. Cal. June 20, 2018)

(analyzing the interplay of Rule 30(b)(6) and Rule 612; "The first factor -- whether the documents refreshed the designee's recollection -- is read broadly because 'it is the corporation that has the 'prior knowledge of the facts contained in the documents' and thus it is the corporation's knowledge that is being 'refreshed' under FRE 612." 2017 U.S. Dist. LEXIS 193445, [WL] at *8 (citations omitted). Consequently, '[t]his element is presumed to be met when the corporation or its attorneys choose to refresh the corporation's knowledge with the selected documents.' Id."; "Here, Mr. Bleharski testified that he refreshed his recollection with respect to the topics for discussion during the Rule 30(b)(6) deposition. Mr. Bleharski testified that he refreshed his recollection by 'reviewing various documents and emails' in order to prepare for his deposition. ECF No. 268-1, Conn Decl., Ex. F at 33. Read broadly, this factor is satisfied."; "The second factor -- whether the documents were used for the purpose of testifying -- the Court applies a rebuttable presumption when the party orders specific documents that were shown to a designated corporate representative to prepare that witness under 30(b)(6). Adidas, 2017 U.S. Dist. LEXIS 193445, 2017 WL 5630038, at *8. 'This is particularly true 'where a corporate designee testifies on topics of which he denies any personal knowledge, [because] he is an 'empty vessel' and documents reviewed on those topics in preparation for the deposition necessarily informed his testimony.' Id. (citation omitted)."; "The third factor looks to the whether the disclosure of documents relied on in preparation for a Rule 30(b)(6) deposition would serve the interests of justice."; "Here, the Court finds that the balance favors disclosure of the documents that JPM relied on to prepare Mr. Bleharski for his deposition under Rule 30(b)(6) on the noticed topics at issue. First, the topics on which Mr. Bleharski testified were negotiated by JPM's litigation counsel. Second, none of the topics involve areas that seek legal conclusions. Third, there is no indication that the materials include core work product. Fourth, JPM has failed to carry its burden in noting that the number of documents at issue are a very small subset of the produced documents that would necessarily disclose JPM's counsel's thought processes. Finally, there is no indication that producing the index of documents would be burdensome.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-20	Federal	CA

Comment:

key case

Chapter: 28.1909

Case Name: Adidas Am., Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445 (D. Ore. Nov. 2, 2017)

(analyzing the interplay between Rule 612 and Rule 30(b)(6); eventually adopting a modified balancing test, and ordering production of some documents a Rule 30(b)(6) witness reviewed before testifying; "The second element [under Sporck, [Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985)] asks whether the documents were 'used' for the purpose of testifying. Plaintiffs argue that Defendants fail to show that the witnesses actually relied upon any privileged documents."; "When dealing with FRE 612 issues in the context of depositions of percipient witnesses, courts not infrequently conduct an in camera review to compare the documents at issue with the actual deposition testimony. The court can then evaluate whether the documents appear to have influenced the testimony. In the context of FRCP 30(b)(6) depositions, however, the Court concludes that a better practice is for there to be a rebuttable presumption that the witness relied on the documents selected by the corporation (or its counsel) and then presented to the corporate representative to educate that witness on the noticed topics. Because the deposing party has an obligation to provide a deposition notice with specific and detailed topics and the responding corporation (or other organization) has a corresponding obligation to provide a witness who is knowledgeable on each specified topic, it is an reasonable inference that documents selected by the corporation and provided to the witness to educate him or her on a particular topic is intended to (and thus is likely to) have an influence on the witness's testimony on that topic.")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	OR

Comment:

key case

Chapter: 28.1909

**Case Name: Accusoft Corp. v. Quest Diagnostics, Inc., Civ. A. No. 12-cv-40007-TSH, 2014 U.S. Dist. LEXIS 18976, at *16 (D. Mass. Feb. 14, 2014)**

(analyzing Rule 612 in connection with an in-house lawyer's deposition; ultimately finding that the witness could not remember whether the particular documents at issue refreshed his recollection; "Hackett was reviewing his own privileged communications so that he would be prepared to testify at his deposition. To ask him to not review his internal communications would be to ask him to not be prepared for the deposition. If the court were to order the production of an unredacted Email Four, Accusoft would realize an 'end run' around the attorney-client privilege. The Court is unwilling to facilitate such a result.")

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

Chapter: 28.1909

Case Name: N. Natural Gas Co. v. Approx. 9117.53 acres, 289 F.R.D. 644, 651, 651-52, 652 (D. Kan. 2013)

(analyzing Rule 612; "The court must then decide whether the interests of justice require that the materials be produced."; "One factor is when the events took place that are the subject of the examination."; "When the documents were reviewed should also be considered. Here the review apparently took place shortly before the date of the noticed deposition. This strongly suggests that the sole purpose of the document review was to prepare for the deposition rather than for some other potential purpose."; "Whether the documents themselves contain, in whole or in part, 'pure' attorney work product may be important."; "Whether the documents have been previously produced during discovery is another consideration."; "Finally, the number of documents reviewed may be important."; "After considering the information provided about the documents reviewed and the depositions, the court finds that it is in the interest of justice to allow examining counsel to inquire of the two witnesses what documents the witnesses reviewed in preparation for the deposition, and also to allow examining counsel to review the actual documents prior to concluding the deposition of the witnesses.")

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

Chapter: 28.1909

Case Name: Virginia Supreme Court Rule 2:612 Writing or Object Used to Refresh Memory

("If while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.")

Case Date	Jurisdiction	State	Cite Checked
	State	VA

Chapter: 28.1910

Case Name: Siegmund v. Bian, Case No. 16-CV-62506-MORENO/LOUIS, 2018 U.S. Dist. LEXIS 155507 (S.D. Fla. Sept. 5, 2018)

(analyzing both the opinion work product doctrine and Rule 612's application connection with deposition questions about the deponent's review of documents before testifying; holding that the adversary's lawyer could ask generally about what documents the witness interviewed; "It is well-settled law that except for pure opinion work product, 'any work product protection [is] lost when the witness specifically relie[s] on the document in preparation for his deposition.'. . . Moreover, 'whatever heightened protection may be conferred upon opinion work product, that level of protection is not triggered unless disclosure creates a real, non-speculative danger of revealing the lawyer's thoughts.'. . . Here, Plaintiff is not seeking production the documents on which Mr. Paskowitz relied; instead, Plaintiff contends that Plaintiff should have been permitted to question Mr. Paskowitz about the general nature of the documents he used to prepare for his deposition."; "Mr. Paskowitz testified that in preparation for his deposition, he met with his counsel for about five or six hours and reviewed certain documents (ECF No. 188-1 at 18). When asked, 'can you generally describe the documents that you reviewed,' Mr. Paskowitz was instructed not to answer on grounds of work product privilege and attorney-client communication. This was error. Plaintiff should have been permitted to examine Mr. Paskowitz regarding the general nature of the documents he used to prepare himself for the deposition, absent a 'real, non-speculative danger' of revealing opinion work product."; "Defendant also claims that by identifying which groups of documents Mr. Paskowitz relied on for his preparation, he would be revealing the sorting and grouping process of his attorneys. Although federal courts disagree over whether the selection and compilation of documents by counsel may constitute opinion work product, it is clear that 'the mere selection and grouping of information by counsel for a deponent to review does not automatically transform otherwise discoverable documents into work product.' Calderon v. Reederei Claus-Peter Offen Gmbh & Co., No. 07-61022-CIV, 2009 U.S. Dist. LEXIS 130423, 2009 WL 1748089, at *3 (S.D. Fla. June 19, 2009). As such, the party asserting a work product claim 'must come forward with some evidence that disclosure of the requested documents creates a real, non-speculative danger of revealing counsel's thoughts.". . . In this case, Defendant, whose burden it is to demonstrate the applicability of the work-product doctrine or attorney-client privilege, has not shown that the identification of the documents Mr. Paskowitz reviewed in preparation for his deposition creates a 'real, non-speculative danger' of revealing counsel's thoughts, or implicating the attorney-client privilege. Accordingly, the Court finds that Plaintiff should have been permitted to question Mr. Paskowitz regarding the general nature of the documents he reviewed in preparation for his deposition.")

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

CHAPTERS

SECTIONS

STATES

JURISDICTION

CASE TYPE

Chapter: 28.2

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)

Chapter: 28.2

Case Name: In re Grand Jury Investigation, Misc. A. No. 17-2336 (BAH), 2017 U.S. Dist. LEXIS 186420 (D.D.C. Oct. 2, 2017)

Chapter: 28.2

Case Name: Gardner v. Major Automobile Co., Inc., 11 Civ. 1664 (FB) (VMS), 2014 U.S. Dist. LEXIS 44877 (E.D.N.Y. March 31, 2014)

Chapter: 28.2

Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *20, *21 (N.D. Cal. Mar. 26, 2013)

Chapter: 28.2

Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *12-13 (D. Md. Mar. 15, 2013)

Chapter: 28.2

Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *15 (D.N.H. Feb. 22, 2013)

Chapter: 28.2

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *11-12 (E.D. Va. Dec. 3, 2012)

Chapter: 28.2

Case Name: Shared Med. Res., LLC v. Histologics, LLC, No. SACV 12 0612 DOC (RNBx), 2012 U.S. Dist. LEXIS 164336, at *5 n.2 (C.D. Cal. Nov. 14, 2012)

Chapter: 28.2

Case Name: Northern Virginia Real Estate, Inc. v. Martins, 80 Va. Cir. 478, 484 (Va. Cir. Ct. 2010)

Chapter: 28.2

Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)

Chapter: 28.2

Case Name: Billings v. Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 445 (W.D. Va. 2009)

Chapter: 28.2

Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *8 (W.D. Va. Dec. 8, 2006)

Chapter: 28.2

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 n.3 (W.D. Va. 2005)

Chapter: 28.2

Case Name: Hanson v. United States Agency for Int'l Dev., 372 F.3d 286, 293-94 (4th Cir. 2004)

Chapter: 28.2

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)

Chapter: 28.2

Case Name: Commonwealth v. Miller, 66 Va. Cir. 470, 470-71 (Va. Cir. Ct. 2001)

Chapter: 28.2

Case Name: Commonwealth of Va. v. Evans, 55 Va. Cir. 237, 242 (Va. Cir. Ct. 2001)

Chapter: 28.2

Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 188 (Va. Cir. Ct. 2000)

Chapter: 28.2

Case Name: Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th Cir. 1998)

Chapter: 28.16

Case Name: Doe v. Hamilton Cty. Bd. of Educ., Case No. 1:16-CV-373 (lead), Case No. 1:16-CV-497, 2018 U.S. Dist. LEXIS 11117 (E.D. Tenn. Jan. 12, 2018)

Chapter: 28.17

Case Name: In re Residential Capital, LLC, 491 B.R. 63, 72 (S.D.N.Y. 2013)

Chapter: 28.20

Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)

Chapter: 28.20

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)

Chapter: 28.702

Case Name: Heth v. Satterlee Stephens Burke & Burke LLP, No. 650379/2015, 2019 NY Slip Op 30555(U) (N.Y. Sup. Ct. Mar. 5, 2019)

Chapter: 28.702

Case Name: Moody v. Hill, A18A1011, 2018 Ga. App. LEXIS 241 (Ga. App. April 30, 2018)

Chapter: 28.702

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-15-0384, 2018 Ill. App. LEXIS 51 (Ill. App. 5d Feb. 7, 2018)

Chapter: 28.702

Case Name: Newsome v. Lawson, Civ. No. 14-842-RGA-MPT, 2017 U.S. Dist. LEXIS 203691 (D. Del. Dec. 12, 2017)

Chapter: 28.702

Case Name: Windsor Securities, LLC v. Arent Fox LLP, 16 Civ. 1533 (GBD) (GWG), 2017 U.S. Dist. LEXIS 127984 (S.D.N.Y. Aug. 11, 2017)

Chapter: 28.702

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2017 U.S. Dist. 7137 (N.D. Ga. Jan. 18, 2017)

Chapter: 28.702

Case Name: Monitronics International, Inc. v. Hall, Booth, Smith, P.C., 1:15-cv-3927-WSD, 2016 U.S. Dist. LEXIS 166402 (N.D. Ga. Dec. 2, 2016)

Chapter: 28.702

Case Name: Anten v. Superior Ct. of Los Angeles, B258437, 2015 Cal. App. LEXIS 96 (Cal. App. 2d Div. 1 Jan. 30, 2015)

Chapter: 28.702

Case Name: FDIC v. Lowis & Gellen LLP, No. 11 CV 5902, 2014 U.S. Dist. LEXIS 21022, at *22 (N.D. Ill. Feb. 20, 2014)

Chapter: 28.702

Case Name: Radware, Ltd. v. A10 Networks, Inc., Case No. C-13-02021-RMW, 2014 U.S. Dist. LEXIS 2769, at *2-3, *5-6, *8, *12 (N.D. Cal. Jan. 8, 2014)

Chapter: 28.702

Case Name: IP Telesis Inc. v. Velocity Networks Inc., No. CV 11 09950 RGK (AJWx), slip op. at 2 (C.D. Cal. Nov. 5, 2012)

Chapter: 28.702

Case Name: Tomblyn v. Compton, 26 Va. Cir. 131, 132 (Va. Cir. Ct. 1991)

Chapter: 28.703

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)

Chapter: 28.703

Case Name: Courtade v. United States, Civ. No. 2:16cv736,[Original Crim. No. 2:15cr29], 2017 U.S. Dist. LEXIS 47928 (E.D. Va. March 20, 2017)

Chapter: 28.703

**Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at 20, 21 (N.D. Cal. Mar. 26, 2013)**

**Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *12-13 (D. Md. Mar. 15, 2013)**

**Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *15 (D.N.H. Feb. 22, 2013)**

**Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *11-12 (E.D. Va. Dec. 3, 2012)**

**Case Name: Shared Med. Res., LLC v. Histologics, LLC, No. SACV 12 0612 DOC (RNBx), 2012 U.S. Dist. LEXIS 164336, at *5 n.2 (C.D. Cal. Nov. 14, 2012)**

**Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *8 (W.D. Va. Dec. 8, 2006)**

**Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)**

**Case Name: FDIC v. Lowis & Gellen LLP, No. 11 CV 5902, 2014 U.S. Dist. LEXIS 21022, at *22 (N.D. Ill. Feb. 20, 2014)**

**Case Name: Radware, Ltd. v. A10 Networks, Inc., Case No. C-13-02021-RMW, 2014 U.S. Dist. LEXIS 2769, at 2-3, 5-6, 8, 12 (N.D. Cal. Jan. 8, 2014)**

**Case Name: Mitchell v. United States, Case Nos. 2:15-cv-05501 & 2:13-cr-00201, 2016 U.S. Dist. LEXIS 5758, at *4-5 (S.D. W. Va. Jan. 19, 2016)**

**Case Name: Washington v. United States of America, Case No.: 2:14-cv-13603, Criminal Case No.: 2:12-cr-00187-1, 2014 U.S. Dist. LEXIS 78576, *6 (S.D. W.Va. June 10, 2014)**

**Case Name: Porter v. Warden of the Sussex I State Prison, Supreme Court Record No. 091615, (Circuit Court Civil No. CL 10-8257), 2010 Va. Cir. LEXIS 204, at *8 (Dec. 20, 2010)**

**Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)**

**Case Name: Radware, Ltd. v. A10 Networks, Inc., Case No. C-13-02021-RMW, 2014 U.S. Dist. LEXIS 2769, at 2-3, 5-6, 8, 12 (N.D. Cal. Jan. 8, 2014)**

**Case Name: United States v. White, Crim. No. 3:11-2303-CMC, 2013 U.S. Dist. LEXIS 68159, at *12 (D.S.C. Apr. 12, 2013)**

**Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *28-29 (E.D. Va. Dec. 3, 2012)**

**Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *28-29 (E.D. Va. Dec. 3, 2012)**

**Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *4-5 (E.D. Va. Dec. 3, 2012)**

**Case Name: United States v. Lander, No. 13-CR-151-A, 2018 U.S. Dist. LEXIS 129133, at *1-2 (W.D.N.Y. Aug. 1, 2018)**

**Case Name: DeWitt v. Southwestern Bell Telephone Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *17 (D. Kan. Feb. 24, 2014)**

**Case Name: EMC Ins. Co. v. Zicolello, No. 4:13-cv-00825, 2014 U.S. Dist. LEXIS 4785, at 6, 7, *14-15 (M.D. Pa. Jan. 13, 2014)**

**Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at 32-33, 32 n.7, 33-34, 35-36 (D.D.C. Dec. 23, 2013)**

**Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *30-31 (D.D.C. Dec. 23, 2013)**

**Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at 22-23, 24 (D.D.C. Dec. 23, 2013)**