McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Chapter: 52.2

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

Case Date	Jurisdiction	State	Cite Checked
2018-09-30	Federal	SC

Comment:

key case

Chapter: 52.2

Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)

(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "The Wilder Parties seek to protect the May 25, 2016 emails from disclosure under the attorney-client privilege and work-product doctrines. . . . While we believe there are strong arguments that would have allowed Wilder to delegate to his advisors the task of obtaining confidential and privileged legal advice on his behalf, and thus that the emails are attorney-client privileged, the emails are also protectible under the work-product doctrine. And because the WOB Parties have not shown a 'substantial need' for the emails, any protection under the work-product doctrine will bar disclosure in the same manner as if they were found to be protected by attorney-client privilege. Accordingly, we limit our discussion to the issue of the work-product doctrine.")

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

Chapter: 52.2

Case Name: United States v. Adams, Case No. 0:17-CR-00064-DWF-KMM, 2018 U.S. Dist. LEXIS 41165 (D. Minn. March 12, 2018)

(applying the "practical consequences" test in concluding that the buyer of a company's assets may waive or assert privilege protection; finding that Tekni-Plex [Tekni-Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 674 N.E.2d 663, 651 N.Y.S.2d 954 (N.Y. Ct. App. 1996)] did not apply, because that case involved a corporate acquisition; also holding that the defendants had established that an accountant retained by his tax lawyers was inside privilege protection; "Mr. Adams also argues that these emails are protected by the work-product doctrine. . . . Because the communications are already protected by the attorney-client privilege, the Court need not reach this issue.")

Case Date	Jurisdiction	State	Cite Checked
2018-03-12	Federal	MN

Chapter: 52.2

Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)

("Having found that the Fellman Documents are protected under the work product doctrine, the Court does not review the applicability of the attorney-client privilege to the documents.")

Case Date	Jurisdiction	State	Cite Checked
2018-02-26	Federal	NY

Chapter: 52.2

Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)

("Defendants primarily raise two types of privilege claims -- attorney-client and work product. While both doctrines protect from disclosure documents and other information, there are differences between the two. With regard to attorney-client privilege the underlying purpose of the doctrine is to encourage the client to communicate freely with the attorney. Work product protection on the other hand encourages careful and thorough preparation by the attorney. And sometimes both doctrines may apply to a single communication. An email or memo may contain confidential legal discussions between client and lawyer and at the same time disclose the preparation by the attorney in anticipation of legal proceedings. But even though a party claims both privileges or protections as to the same document the Court must analyze the applicability of each privilege or protection separately.")

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

Chapter: 52.2

Case Name: Western Challenger, LLC v. DNV GL Group, Case No. C16-0915-JCC, 2017 U.S. Dist. LEXIS 182249 (W.D. Wash. Nov. 2, 2017)

("Plaintiff asserts the emails are subject to both the attorney-client and work-product privileges. . . . As discussed below, the Court finds that Plaintiff has met its burden in establishing that the emails are work-product. Therefore, the Court need not decide whether the emails are also subject to the attorney-client privilege."; "'Defendants do not meaningfully argue that production of the emails is required based on Defendant's substantial need. See Fed. R. of Civ. P. 26(b)(3)(A)(ii).'")

Case Date	Jurisdiction	State	Cite Checked
2017-11-02	Federal	WA

Chapter: 52.2

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

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

Comment:

key case

Chapter: 52.2

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

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

Comment:

key case

Chapter: 52.2

Case Name: Abila v. Funk, No. CIV 14-1002 JB/SV, 2016 U.S. Dist. LEXIS 131121 (D.N.M. Sept. 20, 2016)

("Analysis of whether a communication falls within the attorney-client privilege should precede any inquiry into whether the work-product protection applies.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-20	Federal	NM

Chapter: 52.2

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; "'The categories of the Reuther Spreadsheet evaluated in the Court's attorney-client privilege analysis above are not addressed by this section because the Court deems them subject to the more robust protection of the attorney-client privilege. The lack of inclusion should in no way be construed as meaning that those categories could not obtain work product protection if a reviewing court did not find them privileged attorney-client communications.'")

Case Date	Jurisdiction	State	Cite Checked
2016-08-26	Federal	IL

Chapter: 52.2

Case Name: Berens v. Berens, 785 S.E.2d 733, 742 (N.C. Ct. App. 2016)

("We also are unable to determine based on the limited record whether the documents requested, or any of them, are subject to the work product doctrine. This determination is necessary only for documents which Defendant asserts are work product and which the trial court concludes are not protected by the attorney-client privilege.")

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

Chapter: 52.2

**Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948, at *11 n.6 (S.D.N.Y. Mar. 4, 2016)**

(holding that work product doctrine was prepared during a resources consulting group's investigation into a company employee's allegation that she was raped; noting that the defendant dropped an affirmative defense that arguably asserted a Faragher-Ellerth defense, and disclaimed relying on Faragher-Ellerth; "'Defendants also assert the attorney-client privilege with respect to certain correspondence between Vineyard Vines' counsel and Vineyard Vines employees. . . . However, because the Court finds that all of the Investigative Documents are protected by the work-product doctrine, and because Plaintiff does not dispute Defendant' [sic] assertion of the attorney-client privilege except to argue that the privilege has been waived, . . . the Court will not analyze whether a subset of the Investigative Documents is doubly shielded by the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2016-03-04	Federal	NY	B 8/16

Chapter: 52.2

Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2015 U.S. Dist. LEXIS 100109 (E.D. Tex. July 31, 2015)

(holding that a relator's disclosure statement to the government deserved at least fact work product protection; noting that the Fifth Circuit had not decided whether the opinion work product doctrine applied as well; "'The Court will not address Relators' claim that the disclosure statement is protected by attorney-client privilege. However, reported decisions expressly addressing the issue have uniformly concluded that disclosure statements are not protected by the attorney-client privilege.'")

Case Date	Jurisdiction	State	Cite Checked
2015-07-31	Federal	TX

Chapter: 52.2

Case Name: La Suisse, Societe D'Assurances Sur La Vie v. Kraus, 06 Civ. 4404 (CM) (GWG), 2014 U.S. Dist. LEXIS 166673 (S.D.N.Y. Dec. 1, 2014)

(analyzing a lawsuit in which an insurance holder sued Swiss Life, which in turn sued an insurance broker; analyzing communications between plaintiffs' former lawyer Mahon and the broker Kraus; noting that Mahon had not claimed work product protection; "'Mahon alludes to the existence of 'attorney work product' within the materials sought, see Mahon Letter at 4, but nowhere makes an objection to the subpoena based on the work product doctrine, see Fed. R. Civ. P. 26(b)(3). Accordingly, we do not discuss and do not reach the question of whether any of the material sought consists of attorney work product.'")

Case Date	Jurisdiction	State	Cite Checked
2014-12-01	Federal	NY

Chapter: 52.2

**Case Name: Skepnek v. Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *12 (D. Kan. Sept. 4, 2014)**

("While Judge O'Hara may have applied federal common law instead of Kansas state law in conducting his privilege analysis, the two bodies of law do not appear to differ in any material respect. In fact, as will be discussed below, the Kansas Supreme Court has cited with approval federal court discussions of the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-04	Federal	KS

Chapter: 52.2

Case Name: AKH Co., Inc. v. Universal Underwriter Ins. Co., Case No. 13-2003-JAR-KGG, 2014 U.S. Dist. LEXIS 115750 (D. Kansas Aug. 20, 2014)

("An unresolved issue in this case is whether Kansas or California law will apply. However, the analysis of this issue under Kansas privilege law yields the same result.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-20	Federal	KS

Chapter: 52.2

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-13-0273, 2014 Ill. App. Unpub. LEXIS 1789 (Ill. 5th Dist. App. Aug. 18, 2014)

(applying the "no secrets" rule in a joint representation context, and requiring jointly represented clients to turn over all otherwise privileged documents to the other in a dispute between them; extending the rule even to documents created three years after the joint representation ended; "We first note that the parties agree that this case involves a choice-of-law issue between Missouri and Illinois law. However, they also agree that there is no conflict between the law of the two states on the relevant issues.")

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

Chapter: 52.2

**Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794, at *5 (W.D. Va. Aug. 14, 2014)**

("State law governs an evidentiary privilege where, as here, the underlying claim or defense is governed by state law. See Fed. R. Evid. 501. The parties thus agree that Virginia law controls this privilege issue. Under Virginia law, confidential attorney-client communications are privileged from disclosure.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-14	Federal	VA	B 3/16

Chapter: 52.2

Case Name: FDIC v. The Coleman Law Firm, Case No. 11 C 8823, 2014 U.S. Dist. LEXIS 102931 (N.D. Ill. July 29, 2014)

("At the outset, the parties dispute whether federal or Illinois law controls the privilege and work-product doctrine analysis in this case. . . . It does not seem to matter which underlying privilege or work-product doctrine law applies because no relevant difference regarding the common interest exception has been identified by the parties.")

Case Date	Jurisdiction	State	Cite Checked
2014-07-29	Federal	IL

Chapter: 52.2

Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)

("'Because the Court finds that the subject documents qualify as opinion work product (or fact work-product unavailable due to the lack of substantial need and hardship), and therefore, warrant immunity from disclosure, the Court need not reach the question of whether the documents also constitute attorney-client privileged material. At first blush, they do not, however, appear to qualify as attorney-client privilege, and are properly analyzed under the work product doctrine.'")

Case Date	Jurisdiction	State	Cite Checked
2014-07-11	Federal	MD

Chapter: 52.2

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)

("'District Judge Block has held that under New York's choice-of-law rules, Nevada law governs Plaintiffs' substantive claims against Defendants. . . . ('Under New York's choice-of-law rules, the law of Nevada Major's state of incorporation governs the claim.'). Based on the submissions on this privilege issue, the Parties are in apparent agreement that Second Circuit precedent and its progeny govern this privilege dispute insofar as this is the law that both Parties present to the Court in support of their positions. . . . No Party requested the application of Nevada law.'")

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

Chapter: 52.2

**Case Name: Shakima O. v. Westchester Cnty., No. 12 CV 9468 (VB), 2014 U.S. Dist. LEXIS 18644, at *17 n.7 (S.D.N.Y. Feb. 10, 2014)**

("Because the Court holds the e-mail at issue is protected by the attorney-client privilege, it is not necessary to examine whether the e-mail is also privileged attorney work product.")

Case Date	Jurisdiction	State	Cite Checked
2014-02-10	Federal	NY	B 7/15

Chapter: 52.2

**Case Name: Gresser v. Wells Fargo Bank, N.A., Case No. CCB-12-0987, 2014 U.S. Dist. LEXIS 9021, at 18-19, 19, *20 (D. Md. Jan. 24, 2014)**

("While it is true that the Plaintiffs may have stood to benefit from the legal advice Wells Fargo received from Thompson Hine, that benefit was indirect, and would have been owed to Wells Fargo discharging its obligations under its contract with KH Funding. The need to protect Wells Fargo's privileged communications with Thompson Hine far outweighs any benefit the Plaintiffs might have indirectly stood to gain from the advice."; "Wells Fargo retained Thompson Hine for legal advice related to its obligations under the indenture. Wells Fargo and Plaintiffs were not co-clients and Thompson Hine had no duty to act in the Plaintiffs' best interest. Accordingly, I find that no exception to the attorney-client privilege applies in this case that would entitle Plaintiffs to the communications they now seek."; "Wells Fargo's privilege log indicates that all documents were withheld on the basis of the attorney-client privilege, and several documents were withheld on the basis of both the attorney client-privilege and the work-product doctrine. Because I have found that the attorney-client privilege protects all of the documents at issue from disclosure to Plaintiffs, I am not required to address the issue of whether the fiduciary exception applies to the documents Wells Fargo has designated as protected from disclosure by the work-product doctrine.")

Case Date	Jurisdiction	State	Cite Checked
2014-01-24	Federal	MD	B 6/14

Chapter: 52.2

**Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 204, at *21 (Del. Ch. July 25, 2013)**

("Because I have found that the Petition Action Documents are protected by the attorney-client privilege under the analysis set forth in Riggs [Riggs Nat'l Bank of Wash. D.C. v. Zimmer, 355 A.2d 709 (Del. Ch. 1976)], I do not reach the question of work product protection at this time.")

Case Date	Jurisdiction	State	Cite Checked
2013-07-25	State	DE	B 4/14

Chapter: 52.2

**Case Name: Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968, at *13 n.2 (D.S.C. May 23, 2013)**

(holding that the attorney-client privilege protected a collection of historical data; not addressing any possible work product protection; noting that the party produced the raw data to the adversary; "In light of the Court's conclusion that the spreadsheets are protected by the attorney-client privilege, the Court does not reach the issue of whether the spreadsheets also are protected by the work product doctrine.")

Case Date	Jurisdiction	State	Cite Checked
2013-05-23	Federal	SC	B 12/13

Chapter: 52.2

**Case Name: Random Ventures, Inc. v. Advanced Armament Corp., No. 12 Civ. 6792 (KBF), 2013 U.S. Dist. LEXIS 20513, at *7 (S.D.N.Y. Feb. 5, 2013)**

("The attorney-client privilege alone is sufficient to protect the recording from disclosure. The Court therefore declines to reach the question of whether some or all of the recording would be independently protected under the work product doctrine.")

Case Date	Jurisdiction	State	Cite Checked
2013-02-05	Federal	NY	B 2/14

Chapter: 52.2

Case Name: State v. Lead Indus. Assoc., 64 A.3d 1183, 1200 (R.I. 2013)

(holding that a Sherwin-Williams PowerPoint presentation to its board of directors about available insurance coverage deserved fact work product protection; finding that Sherwin-Williams did not waive the applicable work product protection by sharing the PowerPoint with a blogger and a LexisNexis representative in the company's efforts to find out how the PowerPoint had been leaked to the public; "Because we hold that the slides were protected under the work-product doctrine and that this doctrine was not waived, we do not reach the claim of attorney-client privilege.")

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

Chapter: 52.2

**Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *72 n.19 (S.D. Ohio Nov. 13, 2012)**

("Because the Court determines these documents are protected by the attorney-client privilege, there is no need to determine whether they are also documents prepared in anticipation of litigation and qualify as work product.")

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

Chapter: 52.4

Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 226 (4th Cir. 2011)

("Intended to encourage 'full and frank communication between attorneys and their clients,' the attorney-client privilege is 'the oldest of the privileges for confidential communications known to the common law.' Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Nonetheless, the privilege is not absolute, and this court has noted that it 'is to be strictly confined within the narrowest possible limits consistent with the logic of its principle.' United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996) (internal citations and quotation marks omitted).")

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

Chapter: 52.5

Case Name: Mooney v. Diversified Bus. Communs., 2017 Mass. Super. LEXIS 133, 34 Mass L. Rep. 352, 2017 WL 4172592, Dkt. No. SUCV2016-3726-BLS2 (Mass. Super. July 24, 2017)

(applying Massachusetts rather than Delaware law in concluding that a company's former CEO could be denied access to privileged communications that were available to him when he was at the company; "Because there is indeed a conflict between Massachusetts and Delaware law in connection with the present discovery dispute, the Court must determine which law applies. Massachusetts appellate courts have not directly addressed which standard must be used to resolve a conflict of laws question with respect to privilege in the corporate context. The plaintiffs argue that the analysis should be undertaken using the so-called 'internal affairs doctrine,' a choice-of-law principle articulated in the Restatement (Second) of Conflict of Laws §302 which says that the law of the state in which a corporation is incorporated (here Delaware) should be applied to issues concerning relationships among or between the corporation and its officers, directors and shareholders. Certainly, Massachusetts has long recognized the internal affairs doctrine. . . . However, no Massachusetts court has employed the doctrine in connection with a privilege issue. Moreover, the purposes behind the doctrine do not seem to be directly applicable where the issue concerns attorney-client communications."; "This Court . . . finds it significant that the Restatement (Second) of Conflict of Laws provides a conflict of laws rule specifically for privileged communications, directing courts to apply the law with 'the most significant relationship' to the communications. See Restatement (Second) of Conflict of Laws §139. But, Section 139 makes no reference at all to Section 302 of the Restatement describing the internal affairs doctrine. Such a reference would be expected if the internal affairs doctrine were to be an exception to the general rule articulated in Section 139."; "Applying the test outlined in Section 139 of the Restatement (a section embraced by the SJC in other contexts), this Court concludes that Massachusetts has the most significant relationship to the issue at hand. Pri-Med is based in Massaschusetts and directs substantially all its operations from the state. Pri-Med made and received the privileged communications in Massachusetts. Those communications reflected legal advice sought and rendered in the state by local attorneys. They were made in connection with disputes that arose in the state. Massachusetts law thus applies to the question of whether Mooney as a former director of Pri-Med has access to communications between and among Pri-Med and its corporate counsel. If Massachusetts law is as this Court has construed it, Pri-Med is not prevented from asserting a privilege as to Mooney.")

Case Date	Jurisdiction	State	Cite Checked
2017-07-24	State	MA

Chapter: 52.5

Case Name: Mooney v. Diversified Business Communications, Dkt. No. SUCV2016-3726-BLS2, 2017 Mass. Super. LEXIS 133 (Mass. Super. Ct. July 20, 2017)

November 22, 2017 (PRIVILEGE POINT)

"Choice of Laws Analyses Can Be Dispositive"

Although most jurisdictions agree on many basic privilege issues, some important variations remain. The most important involves a few states' rejection of the majority Upjohn v. United States, 449 U.S. 383 (1981) rule protecting corporations' lawyers' communications with middle and lower level corporate employees. But there are other significant distinctions among states that can make a big difference in a corporate context.

In Mooney v. Diversified Business Communications, Dkt. No. SUCV2016-3726-BLS2, 2017 Mass. Super. LEXIS 133 (Mass. Super. Ct. July 20, 2017), a corporation's former CEO/director (now adverse to the corporation) sought access to privileged communications from his time at the corporation. The court acknowledged that "[t]he choice of law issue is an important one" -- because under Delaware law "former directors or officers are entitled to privileged communications created during their tenure," while other states (including Massachusetts) "do not permit former officers and directors to access privileged information for use in litigation where the corporation asserts a privilege." Id. at *6, *7. The court had to decide between applying (1) Delaware law (because that is the defendant's state of incorporation), or (2) Massachusetts law (under the Restatement (Second) of Conflict of Laws § 139 choice of law approach). The court applied the latter standard in denying plaintiff access to the privileged documents.

Although privilege choice of law disputes rarely arise, they occasionally have dispositive effects.

Case Date	Jurisdiction	State	Cite Checked
2017-07-20	State	MA

Comment:

key case

Chapter: 52.5

Case Name: Harris Management, Inc. v. Coulombe, 2016 ME 166, ¶ 15, A.3d (11/8/2016)

January 4, 2017 (PRIVILEGE POINT)

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

Every privilege analysis should start with determining the applicable law. In the corporate context, federal courts handling federal question cases and nearly every state follow the Upjohn standard. Upjohn v. United States, 449 U.S. 383 (1981). Under this standard, the privilege can protect a corporation's lawyer's communications with any corporate employee possessing information the lawyer needs. A handful of states continue to follow the pre-Upjohn "control group" standard – under which the privilege generally protects only communications with upper-level corporate management.

In Harris Management, Inc. v. Coulombe, 2016 ME 166, ¶ 15, ---A.3d ---, Maine's highest court reaffirmed Maine's reliance on the old "control group" standard – extending privilege protection only to employees (usually officers) who direct the corporation's response to its lawyers' legal advice, and other individuals with authority to make corporate decisions. Although Maine corporations feel the main brunt of this narrow approach, corporations from Upjohn states might also lose their privilege if they are sued in Maine.

In some cases, a choice of law analysis will result in application of the narrow "control group" corporate privilege standard. In other cases, courts applying other states' privilege law relieve corporations of that troublesome standard. Next week's Privilege Point will describe such a decision from another "control group" hold-out state – Illinois. Decided on the same day as Harris Management, the decision looked outside Illinois for applicable privilege law.

Case Date	Jurisdiction	State	Cite Checked
2016-11-08	Federal	ME

Comment:

key case

Chapter: 52.5

Case Name: Hyatt v. Cal. Franchise Tax Board, 962 N.Y.S.2d 282, 295 (N.Y. App. Div. 2013)

(analyzing a choice of laws issue, and ultimately relying on the New York "significant relationship" test; "To determine which state's privilege law should apply, New York courts apply an interest analysis. '[T]he law of the jurisdiction having the greatest interest in the litigation will be applied and . . . the facts or contacts which obtain significance in defining State interests are those which relate to the purpose of the particular law in conflict.'" (citation omitted); "Here, despite Hyatt's alleged (and disputed) residency in Nevada during a portion of the relevant period, New York has the greatest interest in applying its privilege law to the subject subpoenas, which seek documents created in New York regarding a licensing program administered in New York by Philips, a New York corporation, and to depose New York-based attorneys.")

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

Chapter: 52.5

Case Name:

Case Date	Jurisdiction	State	Cite Checked
2010-05-31

Chapter: 52.5

Case Name:

Case Date	Jurisdiction	State	Cite Checked
2010-05-31

Chapter: 52.5

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)

(applying Delaware rather than Massachusetts privilege law, and ultimately finding that the attorney-client privilege protected the client's communications with its investment banker Goldman Sachs; "This particular challenge raises a choice-of-law dispute over whether Delaware or Massachusetts law should apply. 3Com would apply the law of Delaware, which extends a wider privilege for communications made between a client and its attorney in the presence of an investment banker than that recognized by Massachusetts.")

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

Chapter: 52.5

Case Name: Upjohn v. United States, 449 U.S. 383 (1981)

January 4, 2017 (PRIVILEGE POINT)

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

Every privilege analysis should start with determining the applicable law. In the corporate context, federal courts handling federal question cases and nearly every state follow the Upjohn standard. Upjohn v. United States, 449 U.S. 383 (1981). Under this standard, the privilege can protect a corporation's lawyer's communications with any corporate employee possessing information the lawyer needs. A handful of states continue to follow the pre-Upjohn "control group" standard – under which the privilege generally protects only communications with upper-level corporate management.

In Harris Management, Inc. v. Coulombe, 2016 ME 166, ¶ 15, ---A.3d ---, Maine's highest court reaffirmed Maine's reliance on the old "control group" standard – extending privilege protection only to employees (usually officers) who direct the corporation's response to its lawyers' legal advice, and other individuals with authority to make corporate decisions. Although Maine corporations feel the main brunt of this narrow approach, corporations from Upjohn states might also lose their privilege if they are sued in Maine.

In some cases, a choice of law analysis will result in application of the narrow "control group" corporate privilege standard. In other cases, courts applying other states' privilege law relieve corporations of that troublesome standard. Next week's Privilege Point will describe such a decision from another "control group" hold-out state – Illinois. Decided on the same day as Harris Management, the decision looked outside Illinois for applicable privilege law.

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

Comment:

key case

Chapter: 52.302

Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. No. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 85697 (M.D. La. May 22, 2018)

(analyzing privilege choice of law issues, and ultimately concluding that UBS was inside privilege protection as a client consultant, although citing Kovel, because UBS's assistance was "indispensable" to the provision of legal advice (citing and quoting other cases); "Based on the case law submitted by the Citco Defendants, the undersigned finds that the Citco Defendants have not carried their burden of proving 'with a reasonable certainty the substance' of English law with respect to the question of privilege over the UBS Documents. Moreover, in light of the Citco Defendants' assertion that 'English law like Louisiana law, upholds the attorney-client privilege over communications between a client, his attorney, and a third-party representative, the undersigned is not convinced that a conflict of law actually exists here. Accordingly, the undersigned proceeds with the analysis of privilege over the UBS Documents pursuant to Louisiana/federal common law of attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2018-05-22	Federal	LA

Chapter: 52.302

Case Name: Blattman v. Scaramellino, No. 17-1589, 2018 U.S. App. LEXIS 14252 (1st Cir. App. May 17, 2018)

("Because 'all parties indicate, at least implicitly, that federal law controls,' we apply the federal common law of privilege.")

Case Date	Jurisdiction	State	Cite Checked
2018-05-17	Federal

Chapter: 52.302

Case Name: Dansko Holdings, Inc. v. Benefit Trust Co., Civ. A. No. 16-324, 2017 U.S. Dist. LEXIS 192230 (E.D. Pa. Nov. 21, 2017)

("'Pennsylvania privilege law applies because Pennsylvania tort law governs the fraud in the inducement claim. . . . The parties make no argument regarding choice of law with respect to the attorney client privilege; however, the Court notes that the only law cited by the parties on this issue.'")

Case Date	Jurisdiction	State	Cite Checked
2017-11-21	Federal	PA

Chapter: 52.302

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)

("'Federal law governs privileges in a bankruptcy case. See Fed. R. Bankr. P. 9017; Fed. R. Evid. 501; Ginzburg, 517 B.R. at 180. However, the result would be the same even if California law applied.'")

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

Chapter: 52.302

Case Name: In re Premera Blue Cross Customer Data Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Ore. Oct. 27, 2017)

(holding that Premera Blue Cross's investigation did not protect its investigation into a data breach; "Plaintiffs originally argued that Oregon law, as the law of the forum state, applies to the parties' dispute regarding the scope of the attorney-client privilege. Premera responds that Washington law applies. In supplemental briefing, Plaintiffs concede that there is no material conflict between Oregon and Washington law on the specific issues of attorney-client privilege relevant to the pending motion. Thus, Plaintiffs do not oppose the application of Washington law. The parties also agree that federal law governs the work-product doctrine in federal court.")

Case Date	Jurisdiction	State	Cite Checked
2017-10-27	Federal	OR

Chapter: 52.302

Case Name: In re Bair Hugger Force Air Warming Devices Prods. Liability Litig., MDL No. 15-2666 (JNE/FLN), 2017 U.S. Dist. LEXIS 141023 (D. Minn. Aug. 30, 2017)

("To determine which state's crime-fraud exception applies, this Court must first analyze state choice-of-law principles. When used in federal court, choice-of-law principles are substantive state law. . . . An MDL transferee court must use the substantive law, including the choice-of-law principles, of the states where the MDL's member actions would have been filed but for transfer. . . . As the MDL transferee, this Court must use a choice-of-law principle consistent with every state's principle."; "As to the crime-fraud exception, a state's choice-of-law principle depends on whether the state considers privilege procedural or substantive. . . . This Court need not decide which choice-of-law principle to use because both have the same result here."; "Using either choice-of-law principle, Minnesota privilege applies. Minnesota is the current forum state. . . . Minnesota also is the state having the most significant relationship to the Documents. The Documents were prepared by a Minnesota entity for another Minnesota entity's benefit and were communicated between those Minnesota entities. Minnesota privilege thus applies.")

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

Chapter: 52.302

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)

("Here, both parties agree that New York law applies to the Court's determination of privilege.")

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

Chapter: 52.302

Case Name: In re Optuminsight, Inc., 2017-116, 2017 U.S. App. LEXIS 13483 (Fed. Cir. App. July 20, 2017)

("OptumInsight contends that Federal Circuit law regarding attorney-client privilege applies. CC Group does not challenge this assertion on appeal. Accordingly, we apply Federal Circuit precedent. But like the district court, we see no reason why the outcome here would be different under Ninth Circuit law.")

Case Date	Jurisdiction	State	Cite Checked
2017-07-20	Federal

Chapter: 52.302

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

("The parties cite and apply federal privilege law to the instant dispute. Because no federal claim remains in this litigation, however, the court questions the applicability of federal law. When jurisdiction is based on diversity of citizenship, 'state law supplies the rule of decision on privilege' by operation of Fed. R. Evid. 501. 'Since this is a multidistrict proceeding, the question arises as to what state's law of privilege the court should apply.' Because the parties seem to agree that federal common-law standards should govern the privilege determinations in this case, because 'no real conflict between federal and Kansas law regarding the attorney-client privilege [exists],' and because 'the Kansas statute concerning the attorney-client privilege and its exceptions is typical of the laws of other jurisdictions,' the court will apply federal law in reaching its determinations on privilege issues.")

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

Chapter: 52.302

Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)

("'There is no material difference between Ohio's attorney-client privilege and the federal attorney-client privilege.'")

Case Date	Jurisdiction	State	Cite Checked
2017-04-11	Federal	OH

Chapter: 52.302

Case Name: Huntington Chase Condominium Assoc. v. Mid-Century Ins. Co., No. 16 C 4877, 2017 U.S. Dist. LEXIS 14082 (N.D. Ill. Feb. 1, 2017)

("As agreed by the parties, because this case is a diversity action arising out of a contractual dispute in which Illinois law governs the rules of decision, this Court must apply Illinois law to determine whether the attorney-client privilege applies to the subject documents.")

Case Date	Jurisdiction	State	Cite Checked
2017-02-01	Federal	IL

Chapter: 52.302

Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)

("The parties agree that California law governs the attorney-client privilege issues now before the Court.")

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

Chapter: 52.302

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

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

Case Date	Jurisdiction	State	Cite Checked
2016-11-08	State	ME

Comment:

key case

Chapter: 52.302

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

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

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

Comment:

key case

Chapter: 52.302

Case Name: Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, A.3d (11/8/2016)

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

Case Date	Jurisdiction	State	Cite Checked
2016-11-08	Federal	ME

Comment:

key case

Chapter: 52.302

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

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

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

Comment:

key case

Chapter: 52.302

Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)

(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "Federal Rule of Evidence 501 governs privilege issues in federal courts. In this case the Court's jurisdiction is based upon diversity. Although applying choice of law principles to this case results in Kansas law defining the scope of the attorney-client privilege, this Court agrees with other cases from this District that there is no conflict between federal and Kansas law regarding the attorney-client privilege and it generally makes no difference which law is applied."; "Plaintiff is entitled to know the factual basis for Defendants' affirmative defenses. Plaintiff's question was a proper inquiry into the facts that support the affirmative defense asserted in paragraph 13 of Defendants' answer. Plaintiff did not ask Naccarato to disclose the substance of any communications he may have had with Defendants' counsel. Following defense counsel's initial objection, Plaintiff's counsel reiterated that she was asking only for the facts upon which Defendant Screenworks relied. Yet, Defendants' counsel persisted in asserting the same objections."; "Defendants' objections were improper for a number of reasons. Because the primary thrust of the objections and the basis upon which Naccarato was instructed not to answer was the attorney-client privilege, the Court will address that issue first. Even presuming Naccarato's answer would have revealed facts from conversations he had with Defendants' counsel, that would not render the 'facts' protected from discovery by the attorney-client privilege. 'A fact is discoverable regardless of how a deponent came to possess it. This is true even if Defendants' attorney informed the deponent of the facts. The instruction by Defendants' counsel to Naccarato not to answer to the extent the question sought 'information gained through conversations with counsel' was an improper and inaccurate assertion of the attorney-client privilege."; "'Defendants' argument that Plaintiff's questions improperly sought the 'theories' upon which Defendants' affirmative defenses are based is simply unsupported by the record. In the line of questioning at issue, Plaintiff expressly asked the 'facts' that support the affirmative defenses and never mentioned or inquired about Defendants' theories.'")

Case Date	Jurisdiction	State	Cite Checked
2016-10-28	Federal	KS

Comment:

key case

Chapter: 52.302

Case Name: Selective Ins. Co. of Am. v. Smiley Body Shop, Inc., No. 1:16-cv-00062-JMS-MJD, 2016 U.S. Dist. LEXIS 148649 (S.D. Ind. Oct. 27, 2016)

("The Federal Rules of Civil Procedure limit discovery to nonprivileged materials that are relevant and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). In diversity cases such as this one, the Federal Rules of Evidence incorporate by reference the privilege laws of the state providing the underlying substantive law. Fed. R. Evid. 501. Based upon their submissions, the parties appear to agree that Indiana law applies. Regardless, '[c]ourts do not worry about conflict of laws unless the parties disagree on which state's law applies.'")

Case Date	Jurisdiction	State	Cite Checked
2016-10-27	Federal	IN

Chapter: 52.302

Case Name: Airport Fast Park-Austin, L.P. v. John Hancock Life Insurance Company, Case No. 1:15-cv-245, 2016 U.S. Dist. LEXIS 125931 (S.D. Ohio Sept. 15, 2016)

(holding that affiliate corporations with common ownership could communicate within privilege protection; "There are no material differences between Ohio's attorney-client privilege and the federal attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-15	Federal	OH

Chapter: 52.302

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)

("Courts within the Second Circuit use the 'touch base' test to determine what country's law of privilege applies to 'foreign documents' such as minutes of Belgian board meetings."; "The communications reflected in the contested portions of the RPI board minutes clearly 'relate' to actual or contemplated lawsuits in the United States, under United States law, in which RPI was or would be represented by United States counsel. The Court will therefore apply domestic privilege law to the parties' dispute."; "'The Court turns to New York law because it is the law of the forum state; because it is the law applied to RPI's common-law claims by the Hon. Alison J. Nathan in ruling on Deutsche Bank's motion to dismiss . . . And because no party has suggested that any other state's privilege law is applicable to the present controversy.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-20	Federal	NY

Chapter: 52.302

Case Name: Guiffre v. Maxwell, 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)

(holding that a media agent was outside privilege protection New York law, which applied to communications with a public relations consultant in Britain; "Defendant's citation does not support the statement for which it is directly cited: that waiver does not apply to communications including a third-party if for the purpose of contemplated litigation. Plaintiff, with the aid of British counsel and without having seen Defendant's British law argument; submits an interpretation of British law directly contradicting Defendant's."; "This precarious support provides an insufficient foundation for the Court to apply foreign law to Defendant's claims."; "Moreover, at least one New York court has found that British privilege law is 'apparently similar' to New York's."; "The privilege analysis under UK law parallels the analysis under New York law, requiring (i) a communication between an attorney and client, (ii) made in the course of the representation, (iii) for the purpose of providing legal advice."; "The potential litigation for which Defendant sought Barden's [Defendant's lawyer] advice never came to fruition and no pending issued in or relating to Britain have been pled. Thus, any consequence resulting from a ruling on the confidentiality of the Barden communications will sound only in New York, the situs of this case and the location of the allegedly defamatory statements at issue. New York therefore has the predominate interest in whether these communications remain confidential. The similarity between New York and British attorney-client privilege' demonstrates that no public policy conflict exists. Consequently, New York law applies to all of Plaintiff's privilege claims.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-02	Federal	NY

Chapter: 52.302

**Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *80 (S.D. W. Va. Mar. 28, 2016)**

("The Court has previously noted the complex nature of choosing which forum's law to apply to claims of attorney-client privilege in this action under Federal Rule of Evidence 501. . . . In discussing the issue, the Court has noted that 'the federal law of privilege and the laws of West Virginia and Michigan are compatible.' . . . In their submissions to the Court, neither party has taken an explicit position as to which jurisdiction's law should control. However, the parties primarily cite to federal law and West Virginia law in support of their attorney-client privilege positions. Accordingly, the Court summarizes and applies attorney-client privilege under both federal law and West Virginia state law.")

Case Date	Jurisdiction	State	Cite Checked
2016-03-28	Federal	WV	B 8/16

Chapter: 52.302

**Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *80 (S.D. W. Va. Mar. 28, 2016)**

("The Court has previously noted the complex nature of choosing which forum's law to apply to claims of attorney-client privilege in this action under Federal Rule of Evidence 501. . . . In discussing the issue, the Court has noted that 'the federal law of privilege and the laws of West Virginia and Michigan are compatible.' . . . In their submissions to the Court, neither party has taken an explicit position as to which jurisdiction's law should control. However, the parties primarily cite to federal law and West Virginia law in support of their attorney-client privilege positions. Accordingly, the Court summarizes and applies attorney-client privilege under both federal law and West Virginia state law.")

Case Date	Jurisdiction	State	Cite Checked
2016-03-28	Federal	WV	B 8/16

Chapter: 52.302

Case Name: Lehman Bros. Int'l (Europe) v. AG Fin. Prods., Inc., No. 653284/2011, 2016 N.Y. Slip Op. 30187(U), at 15 (N.Y. Sup. Ct. Jan. 11, 2016)

(analyzing whether various consultants hired by defendant's lawyers were inside privilege protection; ultimately finding after an in camera review that all but KPMG were inside privilege protection; assuming that the consultants' assistance was necessary to help defendant's lawyer; not analyzing work product protection after finding that the privilege protected the consultants' communications; "As the court will affirm the Special Referee's findings that these documents are protected by the attorney-client privilege, it need not, and does not, reach the possible additional protections of the work product and trial preparation privileges.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-11	Federal	NY	B 8/16

Chapter: 52.302

Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)

("[F]ederal common law and Louisiana statutory law are materially similar concerning the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2015-11-13	Federal	LA

Chapter: 52.302

Case Name: Johnson v. RLI Insurance Co., Case No. 3:14-cv-00095-SLG, 2015 U.S. Dist. LEXIS 115308 (D. Alaska Aug. 31, 2015)

("Choice of law is a contested issue in the parties' summary judgment motions now pending before this Court. As to the specific attorney-client privilege issue, Alaska and North Dakota law have substantially similar evidence rules that create a privilege that applies to 'confidential communications for the purpose of facilitating the rendition of professional legal services to the client.' As such, the Court need not decide which state's law applies on this one issue.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-31	Federal	AK

Chapter: 52.302

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)

(analyzing many opinions dealing with the role of public relations consultants in privilege and work product analyses; ultimately concluding that a public relations consultant was the "functional equivalent" of an employee, and therefore was within privilege protection; "Plaintiffs also assert that there is no conflict between Nevada and Arizona law on the application of the attorney-client privilege. They therefore analyze the privilege issue under both Nevada or Arizona law. . . . Gallagher & Kennedy states that '[f]or purposes of this motion, we will accept that Nevada law applies, but the basic elements of the attorney-client privilege are the same under Arizona and Nevada law.'")

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

Chapter: 52.302

Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. (July 31, 2015)

("Rule 501 does not instruct as to which state's law should govern, however. . . . The court must therefore apply choice-of-law principles to determine what law to apply here. Consistent with Klaxon, the Court will apply the choice-of-law analysis of the District of Columbia."; "Because both states apply the same formulation of the privilege, the Court can discern no conflict between Maryland and D.C. law. As a result, the Court need not determine whether Maryland or D.C. law should apply (to the exclusion of the other) in this instance.")

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

Chapter: 52.302

Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)

("When, as here, a court's jurisdiction arises under the diversity statute, the court construes most privileges under the law of the state in which it sits. . . . Illinois law is identical to federal law for the purpose of deciding whether the attorney client privilege exists.")

Case Date	Jurisdiction	State	Cite Checked
2015-06-18	Federal	IL

Chapter: 52.302

Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)

("'The parties do not contest that New York's attorney-client privilege rule applies to this case. . . . In their filings, however, both parties cite cases applying the federal attorney-client privilege rule. . . . Judge Peebles considered these cases in his orders. . . . Though there are some differences between the New York and federal attorney-client privilege rules . . . 'New York law governing attorney-client privilege is generally similar to accepted federal doctrine'")

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

Chapter: 52.302

Case Name: Conway v. Licata, Civ. A. No. 13-12193-LTS, 2015 U.S. Dist. LEXIS 61276 (D. Mass. May 8, 2015)

("'The parties have not addressed whether federal or state law applies to this claim of privilege. See Fed. R. Evid. 501 ('in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.'). The parties, however, have cited federal caselaw almost exclusively in their papers regarding privilege, and thus, the Court assumes, without deciding, that federal law applies.'")

Case Date	Jurisdiction	State	Cite Checked
2015-05-08	Federal	MA

Chapter: 52.302

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)

(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "[G]iven that the instant action involves claims from multiple states that have been consolidated for discovery, the choice of which state law to apply is not obvious. Conceivably, the law of all twenty-two involved states could or should be consulted. Plaintiffs choose to resolve the dilemma by citing to the law of West Virginia, the state in which this Court sits, and to federal law, and Ford did not object to that approach. Certainly, in cases of complex litigation, federal courts have analyzed the applicability of the attorney-client privilege using federal law despite the language of Rule 501. . . . Another option is to apply the law of the state with the most significant relationship to the communication. . . . In this case, that state would presumably be Michigan as the employees involved in the communication were in Ford's corporate headquarters located in Michigan. Fortunately, the federal law of privilege and the laws of West Virginia and Michigan are compatible.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-14	Federal	WV

Chapter: 52.302

Case Name: Alliance Industries Ltd. v. A-1 Specialized Svcs. & Supplies, Inc., Civ. A. No. 13-2510, 2015 U.S. Dist. LEXIS 45983 (E.D. Pa. April 8, 2015)

(analyzing privilege issues in connection with two closely held corporations owned by two brothers in varying percentages; "To determine which law governs, the Court refers to the choice-of-law rules in the jurisdiction in which it sits, Pennsylvania."; "To the extent that New Jersey law could apply because Suresh and Kumar are New Jersey residents, the Court will apply Pennsylvania law because there is no conflict between Pennsylvania and New Jersey privilege law."; "Because Plaintiffs have not met their burden of showing that Gibraltar law applies and Mr. Phillips's statement indicates there are no significant differences between Gibraltar law and Pennsylvania law on the attorney-client privilege issue, the Court will apply Pennsylvania law to assertions of privilege regarding Mr. Massias.")

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

Chapter: 52.302

Case Name: Lislewood Corp. v. AT&T Corp.; AT&T Corp. v. Marriott Int'l, Inc., No. 13 CV 1418, 2015 U.S. Dist. LEXIS 43089 (N.D. Ill. March 31, 2015)

("In a diversity action such as this one, the applicability and scope of attorney-client privilege is governed by the law of the forum state. . . . Illinois law regarding attorney-client privilege is identical to federal law in that they both require the court to determine whether legal advice of any kind was sought from an attorney in his or her capacity as an attorney, whether the material sought in discovery contains communication related to the purpose of seeking such legal advice, and whether such communication was made in confidence.")

Case Date	Jurisdiction	State	Cite Checked
2015-03-31	Federal	IL

Chapter: 52.302

Case Name: Carlyle Investment Mgmt L.L.C. v. Moonmouth Co. S.A., C.A. No. 7841-VCP, 2015 Del. Ch. LEXIS 42 (Del. Ct. Ch. Feb. 24, 2015)

(holding that Delaware rather than Guernsey law applied to a litigation funding agreement; "Before this Memorandum Opinion, neither Delaware nor Guernsey squarely had addressed whether third-party funding agreements and related documents deserve work product protection. In these circumstances, the Tysons Foods [2011 Del. Super. LEXIS 379, 2011 WL 3926195, at *6] approach seems preferable: 'Since neither jurisdiction has decided the issue using its own laws, the Court will not read a conflict where none exists and will apply the law of the forum state, Delaware.")

Case Date	Jurisdiction	State	Cite Checked
2015-02-24	State	DE

Chapter: 52.302

**Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civ. A. No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *3 (W.D. Va. July 9, 2014)**

("Under Federal Rules of Evidence Rule 501, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. See FED. R. EVID. 501. The court's jurisdiction in this case is based on diversity, and the parties agree that Virginia state law controls this privilege issue. Virginia law recognizes 'that confidential communications between an attorney and his client, made because of that relationship and concerning the subject-matter of the attorney's employment, are privileged from disclosure." (citation omitted)).

Case Date	Jurisdiction	State	Cite Checked
2014-07-09	Federal	VA	B 5/16

Chapter: 52.302

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)

("This court finds that Plaintiffs have waived their choice-of-law argument. . . . In relying solely on Illinois law, Plaintiffs' previous briefs did not assert that California law controlled or cite to any California cases. . . . Since Plaintiffs did not raise any choice-of-law issues in previous briefing on whether privilege should attach to Janick's documents, they cannot do so here.")

Case Date	Jurisdiction	State	Cite Checked
2014-05-21	Federal	IL

Chapter: 52.302

Case Name: Osborn v. Griffin, Civ. A. No. 11-89-WOB-CJS, Civ. A. No. 13-32-WOB-CJS, 2013 U.S. Dist. LEXIS 201059 (E.D. Ky. Nov. 19, 2013)

(holding that Kentucky applied the common interest doctrine only in pending litigation; "'While Defendants and Griffin Industries did not specifically state Kentucky law applies, their concession is illustrated by their briefing of why Kentucky law, in their opinion, is consistent with the federal case law cited in their original briefing on the issue.'")

Case Date	Jurisdiction	State	Cite Checked
2013-11-19	Federal	KY

Chapter: 52.302

Case Name: Osborn v. Griffin, Civ. A. No. 11-89-WOB-CJS, Civ. A. No. 13-32-WOB-CJS, 2013 U.S. Dist. LEXIS 201059 (E.D. Ky. Nov. 19, 2013)

(holding that Kentucky applied the common interest doctrine only in pending litigation; "The parties briefed the issue of the common interest doctrine under federal common law, and the Court ordered supplemental briefing on the issue of why Kentucky law would not apply given Osborn's case is before the Court on the basis of diversity of citizenship. See Fed. R. Evid. 501 ('state law governs privilege regarding a claim or defense for which state law supplies the rule of decision'). The parties concede in their supplemental briefing that Kentucky law applies to determine the extent and scope of the attorney-client privilege in the Osborn matter. . . . The Court agrees.")

Case Date	Jurisdiction	State	Cite Checked
2013-11-19	Federal	KY

Chapter: 52.302

**Case Name: Tessera, Inc. v. UTAC (Taiwan) Corp., No. C10-04435 EJD (HRL), 2013 U.S. Dist. LEXIS 80605, at 2, 3 n.1 (N.D. Cal. June 6, 2013)**

(not for publication) (finding that a Taiwanese "legal executive" was not actually a lawyer and therefore could not engage in privileged communication; "'Both sides agree that in this diversity case California law controls questions about privilege.'")

Case Date	Jurisdiction	State	Cite Checked
2013-06-06	Federal	CA	B 3/14

Chapter: 52.302

**Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *23 (D. Ariz. Apr. 17, 2013)**

("The parties seem to agree that Arizona law applies on the privilege issue.")

Case Date	Jurisdiction	State	Cite Checked
2013-04-17	Federal	AZ	B 7/13

Chapter: 52.302

**Case Name: Page v. Unimerica Ins. Co., Case No. 3:12-cv-103, 2013 U.S. Dist. LEXIS 4575, at *9 (S.D. Ohio Mar. 29, 2013)**

("There is no material difference between Ohio's attorney-client privilege and the federal attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2013-03-29	Federal	OH	B 3/14

Chapter: 52.302

Case Name: Thai-Lao Lignite (Thai.) Co., Ltd. v. Gov't of Lao People's Democratic Republic, 945 F. Supp. 2d 431, 433-34 (S.D.N.Y. 2013)

(analyzing choice of laws issues involving a Malaysian company; "Given that, based on Respondent's submission, Malaysian privilege law does appear to be at [sic] broad as New York privilege law, Petitioners' raising a choice-of-law issue does not help them here. To the extent that Respondent has shown certain communications to be privileged under New York law, it would appear that Respondent has similarly shown those communications to be privileged under Malaysian law, and Petitioners do not seriously argue to the contrary.")

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

Chapter: 52.302

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 625 (D. Nev. 2013)

("Plaintiff asserts that in accordance with Federal Rule of Evidence 501, Nevada law is applicable. . . . Bard agrees, but suggests that because most of the communications at issue were made by attorneys in New Jersey to employees of Bard in Arizona, it is possible that Arizona or New Jersey law should govern this dispute. . . . Nonetheless, Bard recognizes that under New Jersey, Arizona, and Nevada law, the basic substantive elements of the attorney-client privilege are the same; therefore, Nevada law should apply."; "Federal courts sitting in diversity apply the choice of law rule of the state in which it sits. . . . Applying Nevada's choice of law principles, and with no conflict among the laws of these states, Nevada law should apply.")

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

Chapter: 52.302

**Case Name: Adobe Sys. Inc. v. Wowza Media Sys., Case No. 11-2243 CW (JSC), 2012 U.S. Dist. LEXIS 177567, at *4 (N.D. Cal. Dec. 14, 2012)**

(holding an invalidity defense did not privilege communications at issue; "[T]he Court notes that the parties appear to agree that the law of the Federal Circuit governs whether there has been a waiver of attorney-client privilege and the scope of any such waiver.")

Case Date	Jurisdiction	State	Cite Checked
2012-12-14	Federal	CA	B 9/13

Chapter: 52.302

**Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09-2051-MD-ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *37 (S.D. Fla. Oct. 18, 2012)**

("[I]t is not necessary to determine whether Ohio attorney-client privilege law rather than the Florida attorney-client privilege law should apply because, even assuming that the standards differ under Florida and Ohio law, it is clear that the documents satisfy both standards.")

Case Date	Jurisdiction	State	Cite Checked
2012-10-18	Federal	FL	B 12/13

Chapter: 52.302

**Case Name: Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Civ. A. No. 2:07-CV-116, 2012 U.S. Dist. LEXIS 121830, at *5 (S.D. Ohio Aug. 28, 2012)**

("There is, however, no material difference between Ohio's attorney client privilege and the federal common law privilege.")

Case Date	Jurisdiction	State	Cite Checked
2012-08-28	Federal	OH	B 10/13

Chapter: 52.303

Case Name: Stanziale v. Versa Capital Management, LLC (In re Simplexity, LLC), Ch. 7 Case No. 14-10569 (KG), Adv. Pro. No. 16-50212 (KG), 2018 Bankr. LEXIS 605 (D. Del. March 5, 2018)

("The Common Interest Agreement between the parties provides that Illinois law governs.")

Case Date	Jurisdiction	State	Cite Checked
2018-03-05	Federal	DE

Comment:

key case

Chapter: 52.303

Case Name: Del Giudice v. Harlan, 15 Civ. 7330 (LTS) (JCF), 2016 U.S. Dist. LEXIS 129938 (S.D.N.Y. Sept. 22, 2016)

(applying Delaware law based on the pertinent LLC operating agreement choice of law provision, concluding that an LLC's directors were entitled to access privileged communications even though they were adverse to the corporation; "However, the defendants' analysis is flawed. They recognize that in a diversity case a federal court faced with the possibility that the law of two or more states might govern applies the choice-of-law rules of the forum state to answer the question. . . . Nevertheless, they inexplicably fail to apply New York choice of law rules to the privilege issue. . . . federal law deems the privilege to be a substantive matter."; "In contract cases in New York courts, the 'center of gravity' or 'grouping of contacts' [is] the appropriate analytical approach' to determine 'which State has 'the most significant relationship to the transaction and the parties.'. . . However, New York's Court of Appeals has recently reaffirmed that 'courts should not engage in any conflicts analysis where the parties include a choice-of-law provision in their contract.'. . . under New York state law, where the contract sued upon contains a choice-of-law provision, that choice will generally govern what state's privilege law applies. Here, the Operating Agreement specifies Delaware law. . . . Delaware law therefore applies to issues of attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-22	Federal	NY

Comment:

key case

Chapter: 52.303

Case Name: FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. April 29, 2016)

("Under Federal Rule of Evidence 501, in diversity actions such as this one, the state law that governs the underlying action defines the elements of the attorney-client privilege. Fed. R. Evid. 501. Here, the contract at issue includes a choice-of-law provision designating New York law as the governing authority. . . . Accordingly, the New York law of privilege applies.")

Case Date	Jurisdiction	State	Cite Checked
2016-04-29	Federal	NY

Chapter: 52.303

Case Name: FPP, LLC v. Xaxis US, LLC, No. 14 CV 06172-LTS-AJP, 2016 U.S. Dist. LEXIS 57421 (S.D.N.Y. April 29, 2016)

("Under Federal Rule of Evidence 501, in diversity actions such as this one, the state law that governs the underlying action defines the elements of the attorney-client privilege. Fed. R. Evid. 501. Here, the contract at issue includes a choice-of-law provision designating New York law as the governing authority. . . . Accordingly, the New York law of privilege applies.")

Case Date	Jurisdiction	State	Cite Checked
2016-04-29	Federal	NY

Chapter: 52.303

**Case Name: Wellin v. Wellin, C.A. Nos. 2:13-CV-1831 & -3595-DCN, and 2:14-CV-4067-DCN, 2016 U.S. Dist. LEXIS 5364, at *13 (D.S.C. Jan. 8, 2016)**

March 9, 2016 (PRIVILEGE POINT)

"Courts Wrestle with Privilege Choice of Law Issues"

Although most jurisdictions agree on the basic elements of the attorney-client privilege, some differences among the jurisdictions' standards could be important. For instance, some states take a narrower view than others about client agents/consultants deemed inside privilege protection. Because of these differences, and for obvious other reasons, lawyers should know what privilege law a court will apply — which implicates the court's choice of law rules.

Federal courts sitting in diversity should apply their host state's choice of law approach. This can lead to some odd results. In Wellin v. Wellin, the court applied its host state South Carolina's choice of law rules in selecting South Dakota privilege law — because the trust at issue "contains a choice of law provision specifying that South Dakota law applies." C.A. Nos. 2:13-CV-1831 & -3595-DCN, and 2:14-CV-4067-DCN, 2016 U.S. Dist. LEXIS 5364, at *13 (D.S.C. Jan. 8, 2016). Federal courts handling federal question cases apply federal common law to federal issues, but under Fed. R. Evid. 501 apply state law to "a claim or defense for which state law supplies the rule of decision." Taking it a step further, in Hunt v. Schauerhamer, Case No. 2:15-CV-1-TC-PMW, 2016 U.S. Dist. LEXIS 1744, at *6 (D. Utah Jan. 6, 2016), the court handling a § 1983 action applied Utah privilege law to the "discrete issue now before the court concern[ing] the existence and interpretation of a settlement agreement . . . Requir[ing] application of the rules of state contract law." But in analyzing the scope of waiver, the court concluded that it "must consider Rule 502 of the Federal Rules of Evidence, which provides some federal limitations on the scope of the waiver, even if state privilege law controls." So the court applied Utah privilege law in analyzing waiver but returned to federal law to determine the waiver's scope.

Many litigants and even some judges do not undertake this sort of technically proper choice of laws analysis, and instead apply generic privilege law. But in some situations, the laws and rules must be pieced together to be properly applied.

Case Date	Jurisdiction	State	Cite Checked
2016-01-08	Federal	SC

Comment:

key case

Chapter: 52.303

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)

("Because both states apply the same formulation of the privilege, the Court can discern no conflict between Maryland and D.C. law. As a result, the Court need not determine whether Maryland or D.C. law should apply (to the exclusion of the other) in this instance.")

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

Chapter: 52.303

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)

(applying Delaware rather than Massachusetts privilege law, and ultimately finding that the attorney-client privilege protected the client's communications with its investment banker Goldman Sachs; "The parties . . . selected Delaware law to govern and interpret the Merger Agreement.")

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

Chapter: 52.402

Case Name: United States v. Snyder, Case No. 2:16-CR-160 JVB, 2018 U.S. Dist. LEXIS 166231 (N.D. Ind. Sept. 27, 2018)

("The attorney-client privilege is carefully guarded by the Courts but its violation does not rise to a violation of a constitutional right; rather, it remains an evidentiary rule.")

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

Chapter: 52.402

Case Name: United States v. Gallego, No. CR-18-01537-001-TUC-RM (BPV), 2018 U.S. Dist. LEXIS 152055 (D. Ariz. Sept. 6, 2018)

(appointing a Special Master to review privileged documents the government seized from a criminal defendant's law firm, rather than allowing a government "filter team" to review the documents for privilege; "The attorney-client privilege 'is key to the constitutional guarantees of the right to effective assistance of counsel and a fair trial.'. . . Nevertheless, the privilege itself is 'based in policy, rather than in the Constitution, and therefore it alone cannot stand in the face of countervailing law or strong public policy.'")

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

Chapter: 52.402

Case Name: United States v. Deluca, No. 15-12033 Non-Argument Calendar, 2016 U.S. App. LEXIS 19235 (11th Cir. Oct. 25, 2016)

(finding that the government's taint team had not acted properly, which resulted in the government obtaining a criminal defendant's privileged communication; nevertheless affirming the lower court's refusal to dismiss the indictment, despite the constitutional violation; "Thereafter, the FBI computer analyst segregated the data and provided the potentially privileged communications to the filter team, but one of the members of the filter team, John Guard, a former Assistant United States Attorney ('AUSA'), unilaterally decided that the stipulation was not in effect for various reasons. As a result, he gave the prosecution team – without notice to DeLuca – access to communications that he deemed note privileged, including at least some communications between DeLuca and attorneys on DeLuca's list. Guard gave those communications to Vanessa Stelly, the FBI agent assigned to DeLuca's case, who reviewed them and ultimately provided one of the email communications to Russell Stoddard, the AUSA in charge of DeLuca's trial."; "Precedent from this Circuit clearly establishes that dismissal of the indictment as a sanction for a violation of a defendant's attorney-client privilege is inappropriate absent 'demonstrable prejudice.'"; "In sum, because there has been no showing of prejudice based on the government's violation of DeLuca's attorney-client privilege, the district court properly concluded that dismissal of the indictment was not appropriate. DeLuca does not otherwise challenge his convictions or sentences.")

Case Date	Jurisdiction	State	Cite Checked
2016-10-25	Federal

Chapter: 52.402

Case Name: Le v. Zuffa, LLC, Case No. 2:15-cv-01045-RFB-PAL, 2016 U.S. Dist. LEXIS 69813 (D. Nev. May 26, 2016)

("The attorney-client privilege is a rule of evidence; it has not been held a constitutional right.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-26	Federal	NV

Chapter: 52.402

Case Name: Roberts v. Clark County School District, Case No. 2:15-cv-00388-JAD-PAL, 2016 U.S. Dist. LEXIS 60995 (D. Nev. May 9, 2016)

("The attorney-client privilege is a rule of evidence; it has not been held a constitutional right.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-09	Federal	NV

Chapter: 52.402

Case Name: Williams v. Russo, 636 F. App'x 527, 532 (11th Cir. 2016)

("Williams had no Fourth Amendment right as an addressee in envelopes seized from his client's prison cell. Because we find that Williams failed to allege a violation of a constitutional right, we need not determine whether the alleged right was clearly established.")

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

Chapter: 52.402

Case Name: ACLU v. Livingston County, 15a0182p.06, No. 14-1617, 2015 U.S. App. LEXIS 14022 (6th Dist. App. Aug. 11, 2015)

(enjoining a jail from examining privileged communications with prisoners)

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

Chapter: 52.402

Case Name: Gennusa v. Canova, No. 12-13871, 2014 U.S. App. LEXIS 6410 (11th Cir. April 8, 2014)

(finding a warrantless interception of privileged communications amounted to a Fourth Amendment violation; "While investigating an alleged misdemeanor violation of a domestic violence injunction, Detective Thomas Marmo and Sergeant Brian Canova monitored, intercepted, and listened to privileged conversations between their suspect, Joel Studivant, and his attorney, Anne Marie Gennusa, who were in an interview room at the St. Johns County Sheriff's Office. They did so without any notice to Mr. Studivant and Ms. Gennusa, and without a warrant. Det. Marmo also seized from Ms. Gennusa, on Sgt. Canova's order, a statement written by Mr. Studivant. This too was done without a warrant.")

Case Date	Jurisdiction	State	Cite Checked
2014-04-08	Federal

Chapter: 52.402

Case Name: Godbey v. Simmons, No. 1:11cv704 (TSE/TCB), 2014 U.S. Dist. LEXIS 11811 (E.D. Va. Jan. 30, 2014)

(holding the seizure of privileged documents did not result in a Fourth Amendment violation)

Case Date	Jurisdiction	State	Cite Checked
2014-01-30	Federal	VA	B 6/14

Chapter: 52.402

**Case Name: Elan Microelectronics Corp. v. Pixcir Microelectronics Co., Case No. 2:10-cv-00014-GMN-PAL, 2013 U.S. Dist. LEXIS 114788, at *13 (D. Nev. Aug. 14, 2013)**

("The attorney-client privilege is a rule of evidence; it has not been held a constitutional right.")

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

Chapter: 52.402

**Case Name: Harter v. CPS Sec. (USA), Inc., Case No. 2:12-cv-00084-MMD-PAL, 2013 U.S. Dist. LEXIS 85237, at *16 (D. Nev. June 18, 2013)**

("The attorney-client privilege is a rule of evidence; it has not been held a constitutional right.")

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

Chapter: 52.402

**Case Name: Marvin v. Clark, Civ. A. No. No. 7:11-cv-00609, 2013 U.S. Dist. LEXIS 36105, at *22 (W.D. Va. Mar. 15, 2013)**

("Petitioner alleges in claim 73 that the prosecutor violated marital confidentiality and the attorney-client privilege by obtaining evidence from the mother about petitioner's dishonorable military discharge for selling LSD. These two privileges arise from common law rules and generally do not implicate the Constitution. See Trammel v. United States, 445 U.S. 40, 44, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980) (recognizing the privilege against adverse spousal testimony as a common law rule, modified by rules of evidence and determining only testifying spouse may invoke privilege); Smith v. Moore, 137 F.3d 808, 819 (4th Cir. 1998) (recognizing the attorney-client privilege is a common law rule generally not implicating the constitution). Petitioner does not describe a violation of a marital or attorney-client privilege, and petitioner fails to establish how these common law privileges relate to a federal right.")

Case Date	Jurisdiction	State	Cite Checked
2013-03-15	Federal	VA

Chapter: 52.402

Case Name: Chittick v. Lafler, 514 F. App'x 614 (6th Cir. 2013)

(finding that the government had violated a criminal defendant's Sixth Amendment rights when it seized privileged communications, but that the violation did not result in any prejudice)

Case Date	Jurisdiction	State	Cite Checked
2013-01-01	Federal		B 2/14

Chapter: 52.402

Case Name: Howell v. Trammell, 728 F.3d 1202, 1222 (10th Cir. 2013)

("To be sure, the former attorneys' testimony may have violated Watson's [plaintiff's girlfriend] attorney-client privilege. On that basis, Watson's trial counsel made an objection, which the judge overruled because he believed that Watson had waived the privilege. And it is true that Watson may in fact have waived her privilege when she testified about some of her communications with the former attorneys."; "But we need not decide whether the privilege was violated, because 'standing alone, the attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional right.'" (citation omitted))

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

Chapter: 52.402

Case Name: United States v. Nelson, 732 F.3d 504, 517-18, 581, 519 (5th Cir. 2013)

("Nelson argues that in testifying about the circumstances surrounding his signing the factual basis, his former attorney violated the attorney-client privilege and Nelson's Sixth Amendment right to counsel. . . . An attorney-client communication is also protected under the Sixth Amendment 'if it is intended to remain confidential and was made under such circumstances that it was reasonably expected and understood to be confidential.'" (citation omitted); "The government called Nelson's former attorney, Mary Pierson, to testify regarding the circumstances surrounding Nelson's signing his plea agreement."; "The government admitted the factual basis into evidence through Pierson's testimony, and she read it aloud to the jury. Pierson confirmed the authenticity of the document and of Nelson's signature. She stated that Nelson's signature on the document indicated that she and Nelson had 'read [the document] together, and he had read it, and he understood it and agreed with it.' She testified that before Nelson signed the document, they had a 'lengthy discussion.' She did not discuss the details of the conversation. Pierson confirmed that Nelson came to her office of his own free will to sign the document and there were no government officials present. She stated that she was not aware of any coercion or threats made against Nelson and, when asked if Nelson signed the document 'knowingly and voluntarily,' Pierson responded, 'I believe so.'"; "We have . . . allowed attorneys, in narrow circumstances, to testify about their former clients' mental competence."; "Pierson's testimony, however, was not confined to observations about Nelson's demeanor that could have easily been made by a layperson; nor was it offered outside the presence of a trial jury on a narrow issue like competency or voluntariness. Instead, it was trial testimony that described a meeting held 'for the primary purpose of securing . . . a legal opinion' on whether to sign the agreement. . . . Called by the government, defense counsel Pierson testified that her former client in this case, Nelson, read the plea agreement admitting to federal criminal offense conduct with her, that he 'understood' and 'agreed with' it, and that he signed it only after a 'lengthy discussion' with his experienced attorney. Such information reveals more than the plain fact of the voluntariness of Nelson's signature on a guilty plea attestation and document inclusive of the offense's factual basis, and we conclude that it is protected by the attorney-client privilege." (footnote omitted); "Although Pierson's testimony falls under the attorney-client privilege, we nonetheless conclude that its admission in this case was harmless error.")

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

Chapter: 52.402

Case Name: United States v. Khan, 309 F. Supp. 2d 789 (E.D. Va. 2004)

("Although the attorney-client privilege is a common law right, when, as here, it is invoked by a criminal defendant to protect the confidentiality of his communication with his attorney regarding a law enforcement investigation, the privilege must be considered an extension of the Fifth Amendment right against self-incrimination and the Sixth Amendment right to effective assistance of counsel. See Swidler & Berlin v. United States, 524 U.S. 399, 407, 141 L. Ed. 2d 379, 118 S. Ct. 2081 (1998); Bittaker v. Woodford, 331 F.3d 715, 723 n.9 (9th Cir. 2003) (citing cases).")

Case Date	Jurisdiction	State	Cite Checked
2004-01-01	Federal	VA

Chapter: 52.402

Case Name: Smith v. Moore, 137 F.3d 808, 819 (4th Cir. Ct. 1998)

("Because federal habeas review is limited to 'violations of the United States Constitution or its law and treaties,' Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (en banc), cert. denied, 139 L. Ed. 2d 40, 118 S. Ct. 83 (1997), a mere violation of Smith's attorney-client privilege would not warrant habeas relief")

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

Chapter: 52.402

Case Name: Smith v. Moore, 137 F.3d 808, 819 (4th Cir. Ct. 1998)

("[T]he 'attorney-client privilege is a creation of the common law, not the Constitution.' Lange v. Young, 869 F.2d 1008, 1012 n.2 (7th Cir. 1989).")

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

Chapter: 52.403

Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)

(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "A federal court refers to state law to resolve issues of attorney-client privilege relating to state law claims. See Fed. R. Evid. 501. Currently, all of the claims in this case are state law claims, and neither party appears to contest the applicability of Tennessee law to those claims. The court thus looks to the Tennessee law of attorney-client privilege. However, this is done with the understanding that 'the courts of Tennessee are often guided by state and federal common law when fashioning the contours of the attorney-client privilege.' See Royal Surplus Lines Ins. Co. v. Sofamor Danek Group, Inc., 190 F.R.D. 463, 484 (W.D. Tenn. 1999).")

Case Date	Jurisdiction	State	Cite Checked
2018-07-03	Federal	TN

Chapter: 52.403

Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)

(finding that Dynegy waived its privilege protection by giving the federal government documents about a gas price fixing investigation, but did not waive its work product protection; "The Regents [Regents of the University of California v. Superior Court, 165 Cal. App. 4th 672, 81 Cal. Rptr. 3d 186 (Cal. App. 4th 2008)] case is not persuasive because it applied a California Evidence Code provision. This case is governed by federal common law principles.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-05	Federal	NV

Chapter: 52.403

Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)

("In cases such as this where claims are based on federal statutes, the attorney-client privilege is governed by federal common law.")

Case Date	Jurisdiction	State	Cite Checked
2015-01-21	Federal	NY

Chapter: 52.403

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

("Delaware Rule of Evidence 502 establishes the scope of the attorney-client privilege under Delaware law.")

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

Chapter: 52.403

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

("In a civil case based on a federal cause of action, questions of privilege are governed by federal common law as interpreted by the court 'in light of reason and experience.' Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir. 1998) (quoting Fed. R. Evid. 501)")

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

Chapter: 52.403

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 n.2 (W.D. Va. 2005)

("Because this case is civil and based on a federal cause of action, the Court will apply the principles of common law as they may be interpreted by the courts of the United States in light of reason and experience. Hawkins, 148 F.3d at 382. The Fourth Circuit has approved Supreme Court Standard 503(b) as a 'comprehensive guide to the federal common law of attorney-client privilege.' United States v. (Under Seal) (In re Grand Jury 83-2 John Doe No. 462), 748 F.2d 871, 874 n. 5 (4th Cir. 1984)")

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

Chapter: 52.403

Case Name: Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir. 1998)

("The current matter is a civil case based upon a federal cause of action, 18 U.S.C.A. § 2520 (West. Supp. 1998). Therefore, following the mandate of Rule 501, we must apply 'the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.' Fed. R. Evid. 501.")

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

Chapter: 52.404

**Case Name: Canton Drop Forge, Inc. v. Travelers Casualty & Surety Co., Case No. 5:18-cv-01253, 2019 U.S. Dist. 41668, at *2-3 (N.D. Ohio Mar. 14, 2019) (citation omitted)**

June 5, 2019 (PRIVILEGE POINTS)

"Source And Choice Of Privilege Law In Diversity Cases — Part I"

Not surprisingly, the federal rules govern all work product issues in all federal courts. But determining the correct attorney-client privilege law is much more complicated. The federal common law of privilege applies in federal question cases. In diversity cases, federal courts apply state privilege law. This requires such federal courts to: (1) find the source of state privilege law; and (2) determine which state's privilege law applies.

In Canton Drop Forge, Inc. v. Travelers Casualty & Surety Co., the court properly acknowledged that federal courts apply state law "to resolve attorney-client claims." Case No. 5:18-cv-01253, 2019 U.S. Dist. 41668, at *2-3 (N.D. Ohio Mar. 14, 2019) (citation omitted). The court then described its host state's usual if not unique source of privilege law: "[t]he Supreme Court of Ohio has explained that the attorney-client privilege in Ohio is governed by statute . . . or, in cases not covered by the statute, by common law." Id. at *3. Most states look to one or the other of those sources, but not both. To further complicate such a search, some states also deal with privilege in their court rules.

Finding the source of states' privilege law can sometimes present a challenge for federal courts handling diversity cases. But determining which state's law applies in diversity cases can be even more troublesome – and many courts seem to get it wrong. Next week's Privilege Point will focus on that issue.

Case Date	Jurisdiction	State	Cite Checked
2019-03-14	Federal	OH

Comment:

key case

Chapter: 52.404

Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)

(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "'By statute and common law, Tennessee recognizes an evidentiary privilege that protects the confidentiality of attorney-client communications.'")

Case Date	Jurisdiction	State	Cite Checked
2018-07-03	Federal	TN

Chapter: 52.404

Case Name: Nadeau v. Wealth Counsel LLC, No. 2:17-cv-00561-MCE-AC, 2018 U.S. Dist. LEXIS 100125 (E.D. Cal. June 14, 2018)

("California's statutory privilege applies by its terms to communications between client and lawyer; it does not apply on its face to communications among non-lawyers regarding a matter in which lawyers are also involved. Defendants have not provided a legal or factual basis for application of the privilege to the communications among non-attorneys here. . . . Accordingly, the assertion of privilege fails and the motion to compel must be granted.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-14	Federal	CA

Chapter: 52.404

Case Name: Morris v. Spectra Energy Partners (DE) GP, LP, Civ. A. No. 12110-VCG, 2018 Del. Ch. LEXIS 146 (Del. Ch. May 7, 2018)

("The attorney-client privilege promotes justice by encouraging candor between clients and their attorneys. The privilege is codified in Delaware Rule of Evidence 502(b), which provides that '[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client's representative and the client's lawyer or the lawyer's representative, (2) between the lawyer and the lawyer's representative, (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.'")

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

Chapter: 52.404

Case Name: Buttonwood Tree Value Partners, L.P. v. R.L. Polk & Co., Civ. A. No. 9250-VCG, 2018 Del. Ch. LEXIS 6 (Del. Ch. Ct. Jan. 10, 2018)

("The privilege is codified in Delaware Rule of Evidence 502(b), which provides that '[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client's representative and the client's lawyer or the lawyer's representative, (2) between the lawyer and the lawyer's representative, (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another in a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.'")

Case Date	Jurisdiction	State	Cite Checked
2018-01-10	State	DE

Chapter: 52.404

Case Name: Selby v. O'Dea, No. 1-15-1572, 2017 Ill. App. LEXIS 749 (Ill. App. 1d 4th Div. Dec. 7, 2017)

(affirming and explaining the contours of the common interest doctrine under Illinois law; "When parties on the same side of a lawsuit wish to strategize to defeat their common litigation opponent, they may meet together and share information that would otherwise be privileged under the attorney-client or work-product doctrines. A lawyer may share privileged information from his or her client with the other party's lawyer. One party may speak to the other party's lawyer. One client may speak to the other client, in the presence of the lawyers. When these communications occur, the parties risk waiving privileges because they are disclosing privileged information to third parties -- the other client and the other client's lawyer."; "This case requires us to decide whether two codefendants to a lawsuit waived these privileges when they met and shared information about that lawsuit as part of a 'joint defense agreement' they executed."; "Federal courts and many state courts have recognized an exception to the waiver rule in this context, protecting the confidentiality of these joint communications as to third parties. Other states have codified this exception to the waiver rule into statute. Surprisingly, no published decision in Illinois has ever decided whether parties with a common interest in defeating a litigation opponent may share and pool information without waiving their attorney-client and work-product privileges as to third parties."; "After considering our supreme court's decisions on related issues and taking into account case law from other jurisdictions, we likewise recognize a common-interest exception to the waiver rule. As in virtually every other jurisdiction, we hold that coparties in a case who agree to share information pursuant to their common interest in defeating their litigation opponent do not waive either the attorney-client or work-product privilege when they do so."; "While we agree with the trial court's recognition of this common-interest exception to the waiver rule, we remand this matter to the trial court to conduct an in camera, communication-by-communication review of the challenged conversations involving the codefendants and their attorneys. We vacate the trial court's dispositive rulings -- the dismissal of one count, the grant of summary judgment on two others -- pending the outcome of the in camera review, given the possibility that additional facts may become discoverable after that review.")

Case Date	Jurisdiction	State	Cite Checked
2017-12-07	State	IL

Chapter: 52.404

Case Name: Salberg v. Genworth Financial, Inc., C.A. No. 2017-0018-JRS, 2017 Del Ch. LEXIS 130 (Del. Ch. July 27, 2017)

("The attorney-client privilege, rooted in common law principles, is now codified in Delaware Rule of Evidence 502(b).")

Case Date	Jurisdiction	State	Cite Checked
2017-07-27	State	DE

Chapter: 52.404

Case Name: Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 Pa. Super. LEXIS 543 (Pa. Super. July 19, 2017)

(finding that a public relations consultant was outside privilege and work product protection, and was not the functional equivalent of an employee; "The attorney-client privilege was derived from the common law, id., and was codified at 42 Pa.C.S. § 5928, which states: 'In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.'")

Case Date	Jurisdiction	State	Cite Checked
2017-07-19	State	PA

Chapter: 52.404

Case Name: Endeavor Energy Resources, L.P. v. Gatto & Reitz, LLC, 2:13cv542, 2017 U.S. Dist. LEXIS 48715 (W.D. Pa. March 31, 2017)

("Pennsylvania's attorney-client privilege rule has been codified since 1887.")

Case Date	Jurisdiction	State	Cite Checked
2017-03-31	Federal	PA

Chapter: 52.404

Case Name: Leblanc v. Texas Brine Co., LLC, Case No. CIV-16-1026-D, 2017 U.S. Dist. LEXIS 31822 (W.D. Okla. March 7, 2017)

("In Louisiana, the attorney-client privilege is governed by Article 506 of the Louisiana Code of Evidence.")

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

Chapter: 52.404

Case Name: CAC Atlantic LLC v. Hartford Fire Ins. Co., 16 Civ. 5454 (GHW) (JCF), 2017 U.S. Dist. LEXIS 11010 (S.D.N.Y. Jan. 19, 2017)

("In New York, the attorney-client privilege is governed by section 4503 of the Civil Practice Laws and Rules, which protects 'confidential communication[s] made between the attorney . . . and the client in the course of professional employment . . . . ' CPLR § 4503(a) (1).")

Case Date	Jurisdiction	State	Cite Checked
2017-01-19	Federal	NY

Chapter: 52.404

Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)

("Under California law, the attorney-client privilege is a product of statute.")

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

Chapter: 52.404

Case Name: Airport Fast Park-Austin, L.P. v. John Hancock Life Insurance Company, Case No. 1:15-cv-245, 2016 U.S. Dist. LEXIS 125931 (S.D. Ohio Sept. 15, 2016)

("The attorney-client privilege in Ohio is governed by Ohio Rev. Code § 2317.02(A) and, in situations where the statute does not apply, by common law.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-15	Federal	OH

Chapter: 52.404

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

("The attorney-client privilege, however, is not a creature of statute; the statute codified the common-law privilege.")

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

Chapter: 52.404

Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)

("Kentucky has codified the attorney-client privilege (or 'lawyer-client privilege,' as it is called under Kentucky law) in Rule 503 of the Kentucky Rules of Evidence. Accordingly, the Court will apply Kentucky law with respect to Chapman's assertion of attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2016-04-28	Federal	KY

Chapter: 52.404

Case Name: Young v. Chapman, Civ. A. No. 3:14-CV-666-JHM-CHL, 2016 U.S. Dist. LEXIS 56409 (W.D. Ky. April 28, 2016)

("Kentucky has codified the attorney-client privilege (or 'lawyer-client privilege,' as it is called under Kentucky law) in Rule 503 of the Kentucky Rules of Evidence. Accordingly, the Court will apply Kentucky law with respect to Chapman's assertion of attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2016-04-28	Federal	KY

Chapter: 52.404

**Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420, at *4 (S.D. Cal. Feb. 1, 2016)**

("The Ninth Circuit's strict construction of the attorney-client privilege is in direct conflict with the liberal view of the privilege taken by California state law, which presumes the privilege attaches.")

Case Date	Jurisdiction	State	Cite Checked
2016-02-01	Federal	CA	B 8/16

Chapter: 52.404

Case Name: Gebremedhin v. American Family Mutual Insurance Company, Civ. A. No. 1:13-cv-02813-CMA-NYW, 2015 U.S. Dist. LEXIS 91948 (D. Colo. July 15, 2015)

("Colorado has codified the attorney-client privilege in pertinent part as follows: 'An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment . . . ' Colo.Rev.Stat. § 13-90-107(1)(b).")

Case Date	Jurisdiction	State	Cite Checked
2015-07-15	Federal	CO

Chapter: 52.404

Case Name: Pemberton v. Republic Services, Inc., Case No. 4:14-cv-01421 AGF, 2015 U.S. Dist. LEXIS 81063 (E.D. Mo. June 23, 2015)

("In Missouri, the attorney-client privilege has been statutorily codified . . . The Missouri statute has been construed to be declaratory of the common law rule, and the attorney-client privilege is to be construed broadly to encourage its fundamental policy of encouraging uninhibited communication between the client and his attorney.")

Case Date	Jurisdiction	State	Cite Checked
2015-06-23	Federal	MO

Chapter: 52.404

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

("The attorney-client privilege is derived from the common law . . . But is also codified at 42 Pa. C.S. § 5928.").

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

Chapter: 52.404

Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)

("'[A]n attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication.'"; "N.Y. C.P.L.R. § 4503(a)(1).")

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

Chapter: 52.404

Case Name: Roach v. Hughes, Civ. A. No. 4:13-CV-00136-JHM, 2015 U.S. Dist. LEXIS 67669 (W.D. Ky. May 26, 2015)

("Consequently, Kentucky state law governs this issue of privilege. Kentucky's attorney-client privilege is set forth in KRE 503.")

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

Chapter: 52.404

Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924 (S.D. Fla. April 8, 2015)

("Under Florida Statute § 90.502(2), a client possesses the privilege to refuse disclosure of confidential communications made during the rendition of legal services to the client. That statute applies to both communications from the client to the attorney and from the attorney to the client. A communication is confidential if it is not intended to be disclosed to third persons.")

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

Chapter: 52.404

Case Name: Coyote Springs Investment, LLC v. The Eighth Judicial Dist. Ct. of Nevada, No. 64623, 2015 Nev. LEXIS 23 (Nev. April 2, 2015)

("The attorney-client privilege, codified in NRS 49.095, protects communications between clients or client representatives and lawyers when made in furtherance of legal services and 'appl[ies] at all stages of all proceedings.'")

Case Date	Jurisdiction	State	Cite Checked
2015-04-02	State	NV

Chapter: 52.404

Case Name: Hayas v. GEICO General Ins. Co., Case No. 8:13-cv-1432-T-33AEP, 2014 U.S. Dist. LEXIS 149772 (M.D. Fla. Oct. 21, 2014)

(analyzing the common interest doctrine; "Attorney-client privilege is codified in Florida Statutes § 90.502.")

Case Date	Jurisdiction	State	Cite Checked
2014-10-21	Federal	FL

Chapter: 52.404

Case Name: Clifford v. Church Mutual Ins. Co., Civ. A. 2:13-cv-853, 2014 U.S. Dist. LEXIS 149224 (S.D. Ohio Oct. 21, 2014)

("'In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law.'")

Case Date	Jurisdiction	State	Cite Checked
2014-10-21	Federal	OH

Chapter: 52.404

Case Name: XTL-NH, Inc. v. New Hampshire State Liquor Comm. and Exel, Inc., No. 2013-CV-119, 2014 N.H. Super. LEXIS 17 (N.H. Sup. Ct. Oct. 1, 2014)

("The attorney-client privilege, set forth in New Hampshire Rule of Evidence 502, is a common-law privilege that has long been recognized in New Hampshire.")

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

Chapter: 52.404

**Case Name: Ellis v. Arrowood Indem. Co., Civil Action No. 2:14-mc-00146, 2014 U.S. Dist. LEXIS 121913, at *10 (S.D. W. Va. Sept. 2, 2014)**

("In Kentucky, the attorney-client privilege is governed by Kentucky Rule of Evidence 503.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-02	Federal	WV

Chapter: 52.404

**Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civ. A. No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *3 n.1 (W.D. Va. July 9, 2014)**

("While Virginia has adopted rules of evidence effective July 1, 2012, VA. R. EVID. Rule 2:502 states that the existence and application of the attorney-client privilege, in most instances, is governed by the common law.")

Case Date	Jurisdiction	State	Cite Checked
2014-07-09	Federal	VA	B 3/16

Chapter: 52.404

Case Name: In re Freeway Foods of Greensboro, Inc. v. Freeway Foods, Inc., Case No. 10-11282, AP Case No. 10-02057, 2014 Bankr. LEXIS 1823 (M.D.N.C. April 24, 2014)

("In North Carolina, the attorney-client privilege is a common law doctrine.")

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

Chapter: 52.404

**Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *30 (S.D. Cal. Mar. 6, 2014)**

(analyzing a claim by plaintiffs, who sold their stock in the Neology to Smarttrac, after which the defendant eliminated plaintiffs' liquidation preferences; "California also recognizes the fiduciary-duty exception, however, California's view of the exception is much narrower than Delaware's and does not stem from Garner [Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970)].")

Case Date	Jurisdiction	State	Cite Checked
2014-03-06	Federal	CA	B 8/14

Chapter: 52.404

**Case Name: Accusoft Corp. v. Quest Diagnostics, Inc., Civ. A. No. 12-cv-400070-TSH, 2014 U.S. Dist. LEXIS 18976, at *12 (D. Mass. Feb. 14, 2014)**

April 30, 2014 (PRIVILEGE POINT)

"States Adopting Federal Rules of Evidence Sometimes Add Their Own Variations"

Under Federal Rule of Evidence 612, courts can order the production of privilege or work product protected documents that witnesses review before they testify if (1) the review refreshed the witnesses' recollection, and (2) "justice requires" the production. Fed. R. Evid. 612(a). This contrasts with documents the witnesses review while testifying, which witnesses must always produce. Some states have adopted Rule 612, some have not – and some have adopted variations.

In Accusoft Corp. v. Quest Diagnostics, Inc., the federal court found that Rule 612 did not require production of a protected email an in-house lawyer reviewed before testifying, noting that the witness "never testified specifically that [the email] refreshed his recollection." Civ. A. No. 12-cv-400070-TSH, 2014 U.S. Dist. LEXIS 18976, at *12 (D. Mass. Feb. 14, 2014). About two weeks later, the Nevada Supreme Court applied that state's version of Rule 612 – focusing on testimony by a witness at a sanctions hearing, who admitted that his pre-testimony review of documents had refreshed his recollection. The Nevada court noted an enormous difference between Federal Rule 612 and its Nevada counterpart – explaining that the Nevada rule "mandates that documents relied on before and during testimony to refresh recollection be treated the same [and thus automatically produced]." Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 623 (Nev. 2014) (emphasis added). However, the Nevada rule is also narrower than the federal rule, because it requires the adversary to invoke the rule during the hearing at which the witness testifies. The Nevada Supreme Court therefore concluded that the trial court improperly ordered production of the protected documents two months after the hearing. Id. at 624.

Many states have adopted federal evidence rules, but some have "tweaked" their rules in significant ways. As always, lawyers must check the applicable rule.

Case Date	Jurisdiction	State	Cite Checked
2014-02-14	Federal	MA

Comment:

key case

Chapter: 52.404

Case Name: Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 623 (Nev. 2014)

April 30, 2014 (PRIVILEGE POINT)

"States Adopting Federal Rules of Evidence Sometimes Add Their Own Variations"

Under Federal Rule of Evidence 612, courts can order the production of privilege or work product protected documents that witnesses review before they testify if (1) the review refreshed the witnesses' recollection, and (2) "justice requires" the production. Fed. R. Evid. 612(a). This contrasts with documents the witnesses review while testifying, which witnesses must always produce. Some states have adopted Rule 612, some have not – and some have adopted variations.

In Accusoft Corp. v. Quest Diagnostics, Inc., the federal court found that Rule 612 did not require production of a protected email an in-house lawyer reviewed before testifying, noting that the witness "never testified specifically that [the email] refreshed his recollection." Civ. A. No. 12-cv-400070-TSH, 2014 U.S. Dist. LEXIS 18976, at *12 (D. Mass. Feb. 14, 2014). About two weeks later, the Nevada Supreme Court applied that state's version of Rule 612 – focusing on testimony by a witness at a sanctions hearing, who admitted that his pre-testimony review of documents had refreshed his recollection. The Nevada court noted an enormous difference between Federal Rule 612 and its Nevada counterpart – explaining that the Nevada rule "mandates that documents relied on before and during testimony to refresh recollection be treated the same [and thus automatically produced]." Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 623 (Nev. 2014) (emphasis added). However, the Nevada rule is also narrower than the federal rule, because it requires the adversary to invoke the rule during the hearing at which the witness testifies. The Nevada Supreme Court therefore concluded that the trial court improperly ordered production of the protected documents two months after the hearing. Id. at 624.

Many states have adopted federal evidence rules, but some have "tweaked" their rules in significant ways. As always, lawyers must check the applicable rule.

Case Date	Jurisdiction	State	Cite Checked
2014-01-01	State	NV

Comment:

key case

Chapter: 52.404

Case Name: Seahaus La Jolla Owners Ass'n v. Superior Court, 196 Cal. Rptr. 3d 396, 399 (Cal. Ct. App. 2014)

("The overarching standards for the scope and applicability of a privilege are statutory in nature.")

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

Chapter: 52.404

**Case Name: Norstar Residential, LLLP v. First Mercury Ins. Co., Civ. A. No. 13-cv-00785-WJM-BNB, 2013 U.S. Dist. LEXIS 152194 , at *4 (D. Colo. Oct. 23, 2013)**

("The attorney-client privilege in Colorado is codified at section 13-90-107(1)(b), C.R.S.")

Case Date	Jurisdiction	State	Cite Checked
2013-10-23	Federal	CO	B 5/14

Chapter: 52.404

**Case Name: Truck Ins. Exch. v. Superior Court, No. A137420, 2013 Cal App. Unpub. LEXIS 5487, at *1 n.1 (Cal. Ct. App. July 31, 2013)**

(granting an interlocutory appeal in state court; "The California Evidence Code refers to this privilege as the 'lawyer-client' privilege . . . instead of 'the more accurate denomination [of] "attorney-client privilege."'. . . Because the privilege is 'commonly known as the attorney-client privilege'. . . we use that nomenclature in this opinion.")

Case Date	Jurisdiction	State	Cite Checked
2013-07-31	State	CA	B 4/14

Chapter: 52.404

**Case Name: Waite, Schneider, Bayless & Chesley Co., L.P.A. v. Davis, Case No. 1:11CV00851, 2013 U.S. Dist. LEXIS 123936, at *12 (S.D. Ohio July 12, 2013)**

("Ohio thus no longer recognizes the common law doctrine of implied waiver.")

Case Date	Jurisdiction	State	Cite Checked
2013-07-12	Federal	OH	B 4/14

Chapter: 52.404

**Case Name: In re Comverge, Inc. S'holders Litig., Civ. A. No. 7368-VCP, 2013 Del. Ch. LEXIS 92, at *3 (Del. Ch. Apr. 10, 2013)**

("Lawyer--client privilege is codified in Rule 502 of the Delaware Rules of Evidence.")

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

Chapter: 52.404

**Case Name: Maxtena, Inc. v. Marks, Civ. A. No. DKC 11-0945, 2013 U.S. Dist. LEXIS 42332, at 17-18, 18 (D. Md. Mar. 26, 2013)**

(holding that Maryland had not yet decided whether to follow the control group or the Upjohn test; "The Maryland Court of Appeals has not yet delineated a precise test for determining the applicability of the attorney-client privilege 'in the corporate context.' See E.I. du Pont, 351 Md. at 418-21 [E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396 (D. Md. 1998)] (discussing the 'control group' test, the 'subject matter' test, and hybrids of the two tests without deciding which presents the soundest approach). . . . "Under the control group test, a corporation's attorney-client privilege protects 'communications directed to or from employees in the control group, which is comprised of those who play a substantial role in corporate decision-making.' Id. [at 418-19]."; "As a director of Maxtena -- a corporation organized under Delaware law -- Mr. Dann clearly played a substantial role in corporate decision-making as of October 3, 2012, the date of his appointment.")

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

Chapter: 52.404

**Case Name: Maxtena, Inc. v. Marks, Civ. A. No. DKC 11-0945, 2013 U.S. Dist. LEXIS 42332, at *17 (D. Md. Mar. 26, 2013)**

May 22, 2013 (PRIVILEGE POINT)

"Some States Still Haven't Decided Between the "Control Group" Standard and the Upjohn Standard"

Before 1981, most states applied what is called the "control group" privilege standard for corporate communications -- extending privilege protection only to communications between the company's lawyer and members of upper management who act on the lawyer's advice. In that year, the United States Supreme Court took a totally different approach. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.

Most states have moved to the Upjohn standard. Illinois is the chief remaining proponent of the "control group" standard. Remarkably, some states have still not decided which approach to take. In Maxtena, Inc. v. Marks, the federal district court explained that "[t]he Maryland Court of Appeals has not yet delineated a precise test for determining the applicability of the attorney-client privilege 'in the corporate context.'" Civ. A. No. DKC 11-0945, 2013 U.S. Dist. LEXIS 42332, at *17 (D. Md. Mar. 26, 2013) (citation omitted). The court found it unnecessary to predict which standard Maryland's highest court would chose.

Ironically, the Upjohn case itself recognized that "[a]n uncertain privilege . . . Is little better than no privilege at all." 449 U.S. at 393. Some states' continuing uncertainty about the privilege's applicability in the corporate setting highlights the wisdom of this principle.

Case Date	Jurisdiction	State	Cite Checked
2013-03-26	Federal	MD

Comment:

key case

Chapter: 52.404

Case Name: DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1198 (Colo. 2013)

(finding that a title opinion can deserve privilege protection; "In Colorado, the attorney-client privilege is codified by statute, and it operates to protect communications between attorney and client relating to legal advice.")

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

Chapter: 52.404

Case Name: Med. Assurance Co. v. Weinberger, 295 F.R.D. 176, 182 (N.D. Ind. 2013)

("Indiana codified the attorney-client privilege under Indiana Code §34-46-3-1.")

Case Date	Jurisdiction	State	Cite Checked
2013-01-01	Federal	IN	B 2/14

Chapter: 52.404

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 867 (Tex. Ct. App. 2013)

("The scope of the attorney-client privilege is defined in Texas Rule of Evidence 503.")

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

Chapter: 52.404

Case Name: Ctr. Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 355 (Ill. 2012)

(holding that disclosure of privileged communications during an earlier business transaction did not trigger a subject matter waiver; "Our court rules govern disclosure of privileged material and work product during discovery.")

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

Chapter: 52.404

Case Name: Collins v. Braden, 384 S.W.3d 154, 161 (Ky. 2012)

(holding that the attorney-client privilege might protect documents created during an internal corporate investigation about a plaintiff's suicide; remanding for further evidence; "Unlike in the federal courts, the attorney-client privilege in Kentucky is governed by the Rules of Evidence, specifically KRE 503.")

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

Chapter: 52.404

**Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *5 (E.D. Va. May 12, 2011)**

("Attorney-client privilege, as recognized at common law, is addressed in Federal Rule of Evidence 501. Nellis v. Air Line Pilots Ass'n, 144 F.R.D. 68 (E.D. Va. 1992).")

Case Date	Jurisdiction	State	Cite Checked
2011-05-12	Federal	VA	B 3/16

Chapter: 52.404

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

("In Virginia, as in the federal courts, the attorney-client privilege is an evidentiary rule not defined by statute, but by the common law. See, e.g., Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296 (1988); Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 413 S.E.2d 630 (1992); Seventh Dist. Comm. v. Gunter, 212 Va. 278, 183 S.E.2d 713 (1971); Cook v. Hayden, 183 Va. 203, 31 S.E.2d 625 (1944); Virginia-Lincoln Furniture Corp. v. Southern Factories and Stores Corp., 162 Va. 767, 174 S.E. 848 (1934); Grant v. Harris, 116 Va. 642, 82 S.E. 718 (1914).")

Case Date	Jurisdiction	State	Cite Checked
2000-01-01	State	VA	B 3/16

Chapter: 52.404

Case Name: Smith v. Moore, 137 F.3d 808, 819 (4th Cir. Ct. 1998)

("[T]he 'attorney-client privilege is a creation of the common law, not the Constitution.' Lange v. Young, 869 F.2d 1008, 1012 n.2 (7th Cir. 1989).")

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

Chapter: 52.404

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 68 (E.D. Va. 1998)

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

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

Chapter: 52.404

Case Name: Upjohn Co. v. United States, 449 U.S. 383 (1981)

May 22, 2013 (PRIVILEGE POINT)

"Some States Still Haven't Decided Between the "Control Group" Standard and the Upjohn Standard"

Before 1981, most states applied what is called the "control group" privilege standard for corporate communications -- extending privilege protection only to communications between the company's lawyer and members of upper management who act on the lawyer's advice. In that year, the United States Supreme Court took a totally different approach. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.

Most states have moved to the Upjohn standard. Illinois is the chief remaining proponent of the "control group" standard. Remarkably, some states have still not decided which approach to take. In Maxtena, Inc. v. Marks, the federal district court explained that "[t]he Maryland Court of Appeals has not yet delineated a precise test for determining the applicability of the attorney-client privilege 'in the corporate context.'" Civ. A. No. DKC 11-0945, 2013 U.S. Dist. LEXIS 42332, at *17 (D. Md. Mar. 26, 2013) (citation omitted). The court found it unnecessary to predict which standard Maryland's highest court would chose.

Ironically, the Upjohn case itself recognized that "[a]n uncertain privilege . . . Is little better than no privilege at all." 449 U.S. at 393. Some states' continuing uncertainty about the privilege's applicability in the corporate setting highlights the wisdom of this principle.

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

Comment:

key case

Chapter: 52.405

Case Name: Gelman v. W2 Limited, Civ. A. No. 14-6548, 2016 U.S. Dist. LEXIS 14787 (E.D. Pa. Feb. 5, 2016)

(analyzing the common interest doctrine's application to communications between the plaintiff suing a defendant for breach of contract and the defendant's "authorized agent" which signed the contract -- and who was pursuing a lawsuit against the same defendant in another court; ordering an in camera production of the common interest agreement; "[A]lthough the Pennsylvania Supreme Court has not explicitly adopted the common interest doctrine, I predict that it would.")

Case Date	Jurisdiction	State	Cite Checked
2016-02-05	Federal	PA

Chapter: 52.405

**Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *15 (C.D. Cal. Sept. 11, 2014)**

("Federal law, which has similar general standards for 'at issue' waiver of attorney-client privilege, can provide guidance on this issue of first impression.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-11	Federal	CA

Chapter: 52.405

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794 (W.D. Va. Aug. 14, 2014)

("Where state law is unclear because the state's highest court 'has spoken neither directly nor indirectly on the particular issue,' this court may predict how the state court would rule by considering the decisions of other courts, among other things.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-14	Federal	VA

Chapter: 52.405

**Case Name: Shakima O. v. Westchester Cnty., No. 12 CV 9468 (VB), 2014 U.S. Dist. LEXIS 18644, at *18 n.8 (S.D.N.Y. Feb. 10, 2014)**

("'Because the Court concludes the New York law addressing inadvertent waiver is similar to Rule 502, but somewhat less protective of the privilege, as it is further required in New York that the party in possession of the disclosed document not be unduly prejudiced.'")

Case Date	Jurisdiction	State	Cite Checked
2014-02-10	Federal	NY	B 7/14

Chapter: 52.405

**Case Name: S.S. v. Leatt Corp., Case No. 1:12 CV 483, 2014 U.S. Dist. LEXIS 12192, at *15 (N.D. Ohio Jan. 31, 2014)**

("Pursuant to Fed.R.Evid. 501, this Court must look to state law in resolving issues of attorney-client privilege. 'There is no material difference between Ohio's attorney-client privilege and the federal attorney-client privilege.'" (citation omitted))

Case Date	Jurisdiction	State	Cite Checked
2014-01-31	Federal	OH	B 6/14

Chapter: 52.405

**Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *7 (D. Ore. Feb. 4, 2013)**

("The federal law of privilege applies in claims arising under a federal question. . . . Although federal law controls, state law may still be considered when state actors are involved.")

Case Date	Jurisdiction	State	Cite Checked
2013-02-04	Federal	OR	B 2/14

Chapter: 52.405

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 625 (D. Nev. 2013)

("[I]n the absence of controlling Nevada law, the court must look to decisional law in the Ninth Circuit, or if there is no law on point in the circuit, to other circuits or district courts.")

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

Chapter: 52.405

Case Name: Egiazaryan v. Zalmayev, 290 F.R.D. 421, 433 (S.D.N.Y. 2013)

("New York courts applying the common interest rule to civil proceedings have often looked to federal case law for guidance.")

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

Chapter: 52.405

**Case Name: Scheurer Hosp. v. Lancaster Pollard & Co., Case No. 12-cv-11536, 2012 U.S. Dist. LEXIS 160842, at *(12 (E.D. Mich. Nov. 9, 2012)**

("Michigan law is 'harmonious' with federal law on this topic and thus either can be used to lay out the general principles governing attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2012-11-09	Federal	MI	B 7/13

Chapter: 52.405

**Case Name: Fortunatus v. Clinton Cnty., Civ. No. 8:12-CV-458 (RFT), 2012 U.S. Dist. LEXIS 143108, at 19, 20, *28 (N.D.N.Y. Oct. 2, 2012)**

(holding that the state protections such as executive session privilege can apply in federal question jurisdiction; "State privileges are not absolute in federal court, especially when a federal question forms the basis for federal jurisdiction."; "[F]ederal courts are required to engage in the following analysis: '[w]hile as a matter of comity federal courts accord deference to state-created privileges, . . . such privileges are construed narrowly, . . . and must yield when outweighed by a federal interest in presenting relevant information to a trier of fact[.]'" (citation omitted); concluding that "the importance of this statutory protection significantly outweighs Fortunatus's effort to obtain cumulative evidence that the Court finds not keenly central to his claims of race discrimination and denial of equal protection.")

Case Date	Jurisdiction	State	Cite Checked
2012-10-02	Federal	NY	B 12/13

Chapter: 52.601

**Case Name: In re Naranjo v. Page, No. 13-1382, No. 13-2018, 2014 U.S. App. LEXIS 18293, at *20-22 (4th Cir. Sept. 24, 2014)**

("Under former Rule 45(a)(2), 'a subpoena for production or inspection [was to] issue from the court for the district in which the production or inspection is to be made.' . . . . The Federal Rules of Civil Procedure were amended in December 2013 so that all subpoenas now issue from the court where the underlying action is pending.")

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

Chapter: 52.601

**Case Name: In re Naranjo v. Page, No. 13-1382, No. 13-2018, 2014 U.S. App. LEXIS 18293, at 33-34, 36-37 (4th Cir. Sept. 24, 2014)**

("Were we to decline to apply the Donziger Waiver in this proceeding, we would significantly undermine the New York court's decisions and potentially spawn conflicting judgments as to the very same subject matter. . . . [W]e find comity a compelling reason to affirm the application of the Donziger Waiver in the Maryland proceeding to the documents in Page's possession.")

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

Chapter: 52.601

**Case Name: Ellis v. Arrowood Indem. Co., Civil Action No. 2:14-mc-00146, 2014 U.S. Dist. LEXIS 121913, at *7 (S.D. W. Va. Sept. 2, 2014)**

("Under post-2013 Rule 45, the proper court to resolve a motion to quash is the court in the district where compliance is required. Most courts look to the subpoena to determine where compliance is required.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-02	Federal	WV

Chapter: 52.602

Case Name: Hale v. Emporia State University, Case No. 16-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 56524 (D. Kansas April 3, 2018)

(analyzing the crime-fraud exception in connection with a University's racial discrimination internal investigation; affirming the Magistrate Judge's decision refusing to apply the crime-fraud exception to the attorney-client privilege; noting among other things that the Magistrate Judge properly applied Kansas law in analyzing the exception; "And she [Judge] applied federal common law to define the scope of the privilege and the crime-fraud exception. . . . Judge James then determined that plaintiff's allegations failed to make a prima facie showing of fraud to invoke the crime-fraud exception. Judge James cited Kansas law when she identified the elements of fraud. . . . This approach makes sense because, to determine whether the facts establish a prima facie showing that defendant had committed a crime or fraud sufficient to support the crime-fraud exception under federal common law, the court may apply the forum's law governing the alleged crime or fraud."; "Judge James had erred by using Kansas law as a point of reference, federal common law defines fraud using the same elements as Kansas law.")

Case Date	Jurisdiction	State	Cite Checked
2018-04-03	Federal	KS

Chapter: 52.602

**Case Name: Certain Underwriters at Lloyd's v. AMTRAK, No. 14-CV-4717 (FB), 2016 U.S. Dist. LEXIS 27041, at *65 n.3 (E.D.N.Y. Feb. 19, 2016)**

("LMI [London Market Insurers] brings this action pursuant to this Court's federal question jurisdiction. . . . Thus, the Court applies federal common law to the privilege issues implicated in the instant motion.")

Case Date	Jurisdiction	State	Cite Checked
2016-02-19	Federal	NY	B 8/16

Chapter: 52.602

Case Name: Cantu v. Titlemax, Inc., 5:14-CV-628 RP, 2015 U.S. Dist. LEXIS 139406 (W.D. Tex. Oct. 9, 2015)

(disclosing privileged communications to an accountant waived the privilege protection, and that documents an accountant created did not deserve work product protection because they would not be used to "aid" in litigation; "[T]he Texas Rules of Evidence have no bearing on whether PRIV001 enjoys attorney-client privilege. There is no federal analog to Texas Rule of Evidence 503. Accordingly, even if the recipient of PRIV001 was authorized to obtain legal services on behalf of Defendant, there is no reason to believe that finding would disturb the conclusion that under federal law a client's disclosure of documents directly to an auditor or accountant destroys the attorney client privilege.")

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

Chapter: 52.602

Case Name: Obeid v. La Mack, 14 cv. 6498 (LTS) (MHD), 2015 U.S. Dist. LEXIS 127327 (S.D.N.Y. Sept. 16, 2015)

("'This lawsuit rests in part on claims under federal law, and hence privilege issues are governed by federal law insofar as it controls those claims.'").

Case Date	Jurisdiction	State	Cite Checked
2015-09-16	Federal	NY

Chapter: 52.602

Case Name: Wultz v. Bank of China Ltd., 11 Civ. 1266 (SAS) (GWG), 2015 U.S. Dist. LEXIS 8605 (S.D.N.Y. Jan. 21, 2015)

("In cases such as this where claims are based on federal statutes, the attorney-client privilege is governed by federal common law.")

Case Date	Jurisdiction	State	Cite Checked
2015-01-21	Federal	NY

Chapter: 52.602

Case Name: Chevron Midstream Pipelines LLC v. Settoon Towing LLC, Civ. A. No. 13-2809c/w13-3197, 2014 U.S. Dist. LEXIS 179284 (E.D. La. Jan. 5, 2015)

("The federal common law of privilege governs these maritime-law claims.")

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

Chapter: 52.602

Case Name: Newspring Mezzanine Capital II, L.P. v. Hayes, Jr., Civ. A. No. 14-1706, 2014 U.S. Dist. LEXIS 169900 (E.D. Pa. Dec. 9, 2014)

("Because this dispute concerns claims of privilege, I look to Federal Rule of Evidence 501, which states that federal privilege laws apply in federal claims and state privilege laws apply in state claims. Fed. R. Evid. 501.")

Case Date	Jurisdiction	State	Cite Checked
2014-12-09	Federal	PA

Chapter: 52.602

Case Name: Davis v. Drake, Case No. 3:14 CV 113, 2014 U.S. Dist. LEXIS 157313 (N.D. Ohio Nov. 6, 2014)

("The rule of privilege is codified in the Federal Rules of Evidence, which provides that '[t]he common law -- as interpreted by the United States courts in the light of reason and experience -- governs a claim of privilege.' FED. R. EVID. 501 (West 2014). The rule is also applicable where a case includes pendent state law claims.")

Case Date	Jurisdiction	State	Cite Checked
2014-11-06	Federal	OH

Chapter: 52.602

Case Name: Perez v. El Tequila LLC, Case No. 12-CV-588-JED-PJC, 2014 U.S. Dist. LEXIS 149372 (N.D. Okla. Oct. 20, 2014)

("In a case such as this, federal common law governs issues relating to the privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-10-20	Federal	OK

Chapter: 52.602

Case Name: East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civ. No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272 (D.N.H. Sept. 16, 2014)

November 5, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part I”

Although both federal and state courts apply their own rules (including the work product rule), they normally must undertake a choice of law analysis when assessing attorney-client privilege claims. This usually results in fairly predictable conclusions — but not always.

Federal courts handling federal question cases apply federal common law privilege principles. East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civ. No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272 (D.N.H. Sept. 16, 2014) (not for publication) (28 U.S.C. § 1338 patent infringement case). Bankruptcy cases can involve more subtle issues. In Litigation Trust for Trust Beneficiaries of SNTL Corp. v. JP Morgan Chase (In re Superior National Insurance GR), an insurance company and several subsidiaries filed for Chapter 11 relief. Ch. 11 Case No. 1:00-bk-14099-GM, Adv. No.: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885 (Bankr. C.D. Cal. Sept. 11, 2014). A litigation trust for the debtors' trust beneficiaries sued a bank, which then sought some of the trust's documents. In determining which privilege law applied, the court relied on Federal Rule of Evidence 501, which "states that 'state law governs privilege regarding a claim or defense for which state law supplies the rules of decision.'" Id. at *7. The court concluded that California privilege law applied, because the trust's claims against the bank "are all state law causes of action." Id. However, the court also acknowledged that if "any of the [trust's] claims were governed by federal law, then federal law of privileges would govern the entire proceeding." Id.

Federal courts' privilege choice of law analyses become more complicated in diversity cases. Next week's Privilege Point discusses that scenario.

Case Date	Jurisdiction	State	Cite Checked
2014-09-16	Federal	NH

Comment:

key case

Chapter: 52.602

Case Name: Litigation Trust for Trust Beneficiaries of SNTL Corp. v. JP Morgan Chase (In re Superior National Insurance GR), Ch. 11 Case No. 1:00-bk-14099-GM, Adv. No.: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885 (Bankr. C.D. Cal. Sept. 11, 2014)

November 5, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part I”

Although both federal and state courts apply their own rules (including the work product rule), they normally must undertake a choice of law analysis when assessing attorney-client privilege claims. This usually results in fairly predictable conclusions — but not always.

Federal courts handling federal question cases apply federal common law privilege principles. East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civ. No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272 (D.N.H. Sept. 16, 2014) (not for publication) (28 U.S.C. § 1338 patent infringement case). Bankruptcy cases can involve more subtle issues. In Litigation Trust for Trust Beneficiaries of SNTL Corp. v. JP Morgan Chase (In re Superior National Insurance GR), an insurance company and several subsidiaries filed for Chapter 11 relief. Ch. 11 Case No. 1:00-bk-14099-GM, Adv. No.: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885 (Bankr. C.D. Cal. Sept. 11, 2014). A litigation trust for the debtors' trust beneficiaries sued a bank, which then sought some of the trust's documents. In determining which privilege law applied, the court relied on Federal Rule of Evidence 501, which "states that 'state law governs privilege regarding a claim or defense for which state law supplies the rules of decision.'" Id. at *7. The court concluded that California privilege law applied, because the trust's claims against the bank "are all state law causes of action." Id. However, the court also acknowledged that if "any of the [trust's] claims were governed by federal law, then federal law of privileges would govern the entire proceeding." Id.

Federal courts' privilege choice of law analyses become more complicated in diversity cases. Next week's Privilege Point discusses that scenario.

Case Date	Jurisdiction	State	Cite Checked
2014-09-11	Federal	CA

Comment:

key case

Chapter: 52.602

**Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *7 (C.D. Cal. Sept. 11, 2014)**

("The claims in the SAC are all state law causes of action and both the Plan (§12.14) and the EON (§10) provide that they are governed by California law, so the California law of privilege (Cal. Code. Evid. §950 et seq.) is applicable to the resolution of attorney-client privilege issues. (If any of the claims were governed by federal law, then federal law of privileges would govern the entire proceeding.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-11	Federal	CA

Chapter: 52.602

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

("The federal common law of privilege applies in this case brought under the court's federal question jurisdiction.")

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

Chapter: 52.602

Case Name: Pick v. City of Remsen, No. C13-4041-MWB, 2014 U.S. Dist. LEXIS 57685 (N.D. Iowa April 25, 2014)

("Because this is a federal question case, federal law governs all issues of privilege, including the alleged waiver thereof.")

Case Date	Jurisdiction	State	Cite Checked
2014-04-25	Federal	IA

Chapter: 52.602

Case Name: Goswami v. Depaul University, No. 12 C 7167, 2014 U.S. Dist. LEXIS 44249 (N.D. Ill. March 31, 2014)

(holding that the Illinois control group standard did not apply in federal question cases; "It's not clear why plaintiff thinks Illinois law applies to this question. The gravamen of her complaint is that DePaul discriminated against her in violation of federal Civil Rights law. She bases jurisdiction on the presence of a federal question. She advances four federal claims and has a single state law claim pending. The court need not apply state law to the privilege question here where the principal claim, and the claim upon which jurisdiction is based, arises under federal law.")

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

Chapter: 52.602

Case Name: Goswami v. DePaul University, No. 12 C 7167, 2014 U.S. Dist. LEXIS 44249 (N.D. Ill. March 31, 2014)

(finding that the Upjohn standard rather than the control group standard applied to a federal question; "The plaintiff has filed a motion to compel former DePaul University professor, Dr. David Krell, to appear for a second deposition and answer questions about discussions he had with DePaul's counsel in preparation for his first deposition. At that first deposition, when plaintiff's counsel asked Dr. Krell what he discussed with DePaul's attorney, she interposed an objection that such information was privileged. Plaintiff submits that the attorney-client privilege does not apply to those discussions because Dr. Krell was not a member of DePaul's 'control group' under Illinois law and, moreover, is a former, rather than a current, employee."; "It's not clear why plaintiff thinks Illinois law applies to this question. The gravamen of her complaint is that DePaul discriminated against her in violation of federal Civil Rights law. She bases jurisdiction on the presence of a federal question. She advances four federal claims and has a single state law claim pending. The court need not apply state law to the privilege question here where the principal claim, and the claim upon which jurisdiction is based, arises under federal law."; "As such, Illinois' 'control group' test does not apply.").

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

Chapter: 52.602

Case Name: Goswami v. DePaul University, No. 12 C 7167, 2014 U.S. Dist. LEXIS 44249 (N.D. Ill. March 31, 2014)

(finding that the Upjohn standard rather than the control group standard applied to a federal question; "The plaintiff has filed a motion to compel former DePaul University professor, Dr. David Krell, to appear for a second deposition and answer questions about discussions he had with DePaul's counsel in preparation for his first deposition. At that first deposition, when plaintiff's counsel asked Dr. Krell what he discussed with DePaul's attorney, she interposed an objection that such information was privileged. Plaintiff submits that the attorney-client privilege does not apply to those discussions because Dr. Krell was not a member of DePaul's 'control group' under Illinois law and, moreover, is a former, rather than a current, employee."; "It's not clear why plaintiff thinks Illinois law applies to this question. The gravamen of her complaint is that DePaul discriminated against her in violation of federal Civil Rights law. She bases jurisdiction on the presence of a federal question. She advances four federal claims and has a single state law claim pending. The court need not apply state law to the privilege question here where the principal claim, and the claim upon which jurisdiction is based, arises under federal law."; "As such, Illinois' 'control group' test does not apply.")

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

Chapter: 52.602

**Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2014 U.S. Dist. LEXIS 31330, at *3 n.1 (S.D. Ohio Mar. 11, 2014)**

("Because Plaintiffs raise claims under federal law (the FMLA), 'federal common law determines the extent of the privilege.'" (citation omitted))

Case Date	Jurisdiction	State	Cite Checked
2014-03-11	Federal	OH	B 8/14

Chapter: 52.602

**Case Name: Swift Spindrift, Ltd. v. Alvada Ins., Inc., No. 09 Civ. 9342 (AJN) (FM), 2013 U.S. Dist. LEXIS 104296, at *9 (S.D.N.Y. July 24, 2013)**

("Federal law governs privilege disputes in admiralty and maritime cases.")

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

Chapter: 52.602

**Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *132 (D. Minn. June 4, 2013)**

("The federal common law of attorney-client privilege applies to this case because it is based on federal question jurisdiction.")

Case Date	Jurisdiction	State	Cite Checked
2013-06-04	Federal	MN	B 4/14

Chapter: 52.602

**Case Name: Smith v. Pizza Hut, Inc., Civ. A. No. 09-cv-01632-CMA-BNB, 2013 U.S. Dist. LEXIS 57929, at *4 (D. Colo. Apr. 23, 2013)**

("This case arises under the federal Fair Labor Standards Act, and jurisdiction exists under 28 U.S.C. § 1331. Consequently, questions of privilege are determined by applying the federal common law of privileges.")

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

Chapter: 52.602

**Case Name: Dukes v. Wal-Mart Stores, Inc., Case No. 01-cv-2252 CRB (JSC), 2013 U.S. Dist. LEXIS 42740, at *13 (N.D. Cal. Mar. 26, 2013)**

("Federal common law governs a claim of privilege in federal question cases.")

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

Chapter: 52.602

**Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *5 n.3 (Bankr. E.D. Va. May 11, 2012)**

("This is not a case in which applicable state law governs for purposes of a claim or defense, with respect to the claim of privilege. Accordingly, federal law governs the issue in this case.")

Case Date	Jurisdiction	State	Cite Checked
2012-05-11	Federal	VA

Chapter: 52.602

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

("In a civil case based on a federal cause of action, questions of privilege are governed by federal common law as interpreted by the court 'in light of reason and experience.' Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir. 1998) (quoting Fed. R. Evid. 501)")

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

Chapter: 52.602

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 n.2 (W.D. Va. 2005)

("Because this case is civil and based on a federal cause of action, the Court will apply the principles of common law as they may be interpreted by the courts of the United States in light of reason and experience. Hawkins, 148 F.3d at 382. The Fourth Circuit has approved Supreme Court Standard 503(b) as a 'comprehensive guide to the federal common law of attorney-client privilege.' United States v. (Under Seal) (In re Grand Jury 83-2 John Doe No. 462), 748 F.2d 871, 874 n. 5 (4th Cir. 1984)")

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

Chapter: 52.602

Case Name: Hawkins v. Stables, 148 F.3d 379, 382 (4th Cir. 1998)

("The current matter is a civil case based upon a federal cause of action, 18 U.S.C.A. § 2520 (West. Supp. 1998). Therefore, following the mandate of Rule 501, we must apply 'the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.' Fed. R. Evid. 501.")

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

Chapter: 52.603

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 the consultant with the City's lawyer; concluding that the City's lawyer was not a decision-maker in connection with the plaintiff's firing; "Federal law governs federal claims even if state law claims are asserted in the same action pursuant to the court's supplemental jurisdiction.")

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

Chapter: 52.603

Case Name: Absolute Activist Value Master Fund Ltd. v. Devine, Case No. 2:15-cv-328-FtM-29MRM, 2017 U.S. Dist. LEXIS 56624 (M.D. Fla. April 13, 2017)

("In this case, only Plaintiffs' state-law unjust enrichment claims remain. . . . Because only state-law claims remain, state law provides the applicable rule of decision and, therefore, the application of any privilege.")

Case Date	Jurisdiction	State	Cite Checked
2017-04-13	Federal	FL

Chapter: 52.603

Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Pro. No. 08-01789 (SMB), Adv. Pro. No. 10-04216 (SMB), 2017 Bankr. LEXIS 519 (S.D.N.Y. Feb. 17, 2017)

("As explained in the Decision and Order, because the complaint in this adversary proceeding alleges claims for relief under both state and federal law, the applicability of the privilege must be decided based upon the application of federal common law.")

Case Date	Jurisdiction	State	Cite Checked
2017-02-17	Federal	NY

Chapter: 52.603

Case Name: Carlin v. Dairy America, Case No. 1:09-cv-430 AWI-EPG, 2016 U.S. Dist. LEXIS 108737 (E.D. Cal. Aug. 16, 2016)

(holding that defendant's spreadsheet about possible damages was not privileged, but deserved work product protection which the plaintiff could overcome; declining to allow the inadvertently produced spreadsheet to be clawed-back by the defendant; "In this case, both state and federal claims are alleged. The Ninth Circuit has held that when the same evidence relates to both federal and state law claims, federal privilege law governs.")

Case Date	Jurisdiction	State	Cite Checked
2016-08-16	Federal	CA

Chapter: 52.603

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)

("The federal law of privilege governs even where the evidence sought might be relevant to a pendent state claim.")

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

Chapter: 52.603

Case Name: Anderson v. Marsh, Case No. 1:14-cv-01599-TLN-SAB, 2015 U.S. Dist. LEXIS 169071 (E.D. Cal. Dec. 17, 2015)

("Where a litigant has brought federal question claims and pendent state law claims, the federal law of privilege applies.")

Case Date	Jurisdiction	State	Cite Checked
2015-12-17	Federal	CA

Chapter: 52.603

Case Name: Shipyard Associates, L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927 (D.N.J. Aug. 3, 2015)

("'This case has both federal and state law claims. Under such circumstances, the federal common law of privilege applies.'")

Case Date	Jurisdiction	State	Cite Checked
2015-08-03	Federal	NJ

Chapter: 52.603

Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)

("The federal common law regarding attorney-client privilege applies because this adversary proceeding involves both federal and state law claims.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-03	Federal	SC

Chapter: 52.603

Case Name: La Suisse, Societe D'Assurances Sur La Vie v. Kraus, 06 Civ. 4404 (CM) (GWG), 2014 U.S. Dist. LEXIS 166673 (S.D.N.Y. Dec. 1, 2014)

("'Mahon and Swiss Life cite both federal and New York state law to support their positions on the privilege issue, without discussing which law applies. We apply federal law because the original complaint and the third-party complaint each sought damages under federal statutes, even if state law claims were also asserted. . . . Where, as here, a case includes federal and state law claims and the evidence sought is relevant to both, 'the asserted privileges are governed by the principles of federal law.'")

Case Date	Jurisdiction	State	Cite Checked
2014-12-01	Federal	NY

Chapter: 52.603

Case Name: Davis v. Drake, Case No. 3:14 CV 113, 2014 U.S. Dist. LEXIS 157313 (N.D. Ohio Nov. 6, 2014)

("The rule of privilege is codified in the Federal Rules of Evidence, which provides that '[t]he common law -- as interpreted by the United States courts in the light of reason and experience -- governs a claim of privilege.' FED. R. EVID. 501 (West 2014). The rule is also applicable where a case includes pendent state law claims.")

Case Date	Jurisdiction	State	Cite Checked
2014-11-06	Federal	OH

Chapter: 52.603

Case Name: Goswami v. Depaul University, No. 12 C 7167, 2014 U.S. Dist. LEXIS 44249 (N.D. Ill. March 31, 2014)

(holding that the Illinois control group standard did not apply in federal question cases; "It's not clear why plaintiff thinks Illinois law applies to this question. The gravamen of her complaint is that DePaul discriminated against her in violation of federal Civil Rights law. She bases jurisdiction on the presence of a federal question. She advances four federal claims and has a single state law claim pending. The court need not apply state law to the privilege question here where the principal claim, and the claim upon which jurisdiction is based, arises under federal law.")

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

Chapter: 52.603

Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 3-4 (W.D. Va. May 31, 2013)

("A proper analysis of privilege questions must begin with a determination of the applicable law. Federal Rule of Evidence 501 provides that, for claims and defenses for which federal law applies, federal common law governs a claim of privilege, unless the Constitution, federal statutory law, or the Federal Rules provide otherwise. Fed. R. Evid. 501. Conversely, when State law 'supplies the rule of decision' for an element of a claim or defense, the privilege 'shall be determined in accordance with State law.'. . . Here, the claims McAirlaids asserts pose a federal question based on the Lanham Act, as well as supplemental state law claims. When both federal and state substantive laws apply, 'Rule 501 would seem to require that federal privilege law control the federal claims, and state privilege law control the supplemental state law claims.' Cont'l Cas. Co. v. Under Armour, Inc., 537 F. Supp. 2d 761, 767 n. 3 (D. Md. 2008). Yet, 'the majority of courts . . . have held that federal privilege trumps state law, because were it otherwise, the jury would be faced with a hopelessly confusing task.' Id. (collecting cases). Thus, federal privilege law applies to the privilege issues in this case.")

Case Date	Jurisdiction	State	Cite Checked
2013-05-31	Federal	VA	B 9/13

Chapter: 52.603

**Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *4-5 (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; "[I]n instances where both the federal and state privilege law is the same, there is no practical difficulty. The challenge arises when, as here, both federal and state substantive laws apply and federal and state privilege laws differ. . . . Under these circumstances, 'Rule 501 would seem to require that federal privilege law control the federal claims, and state privilege law control the supplemental state law claims.'. . . Yet, 'the majority of courts have held that federal privilege trumps state law,' and applies to all claims, 'because were it otherwise, the jury would be faced with a hopelessly confusing task.'" (citation omitted))

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

Chapter: 52.603

**Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *7 (D.N.H. Feb. 22, 2013)**

(not for publication) (analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by workplace harassment; "Because this Title VII action arises under federal law, and the state law claims in the case are asserted pursuant to this court's supplemental jurisdiction, federal law governs the applicability of both the attorney-client privilege and the work-product doctrine.")

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

Chapter: 52.603

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 904 (N.D. Ill. 2013)

("Inequitable conduct is a matter of substantive patent law, and the issue of waiver in this case is so bound up in the matter of inequitable conduct that it too is a matter of substantive patent law.")

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

Chapter: 52.603

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 899-900, 900 n.3 (N.D. Ill. 2013)

("Before addressing the waiver issue, however, the Court must first determine whether to apply Federal Circuit law or Seventh Circuit law. This case involves claims under the federal patent laws, and consequently the federal common law of privilege governs."; "The present discovery dispute is governed in part by Seventh Circuit law and in part by Federal Circuit law. Mylan's claim of inequitable conduct -- the defense underlying the discovery dispute -- implicates substantive patent law. . . . [T]he discoverability of evidence required to establish and defend against inequitable conduct similarly implicates substantive patent law. . . . The issue of waiver by disclosure, however, belongs to the category of 'procedural questions that are not themselves substantive patent law issues,' and the Court will apply Seventh Circuit Law to the issue of whether waiver by disclosure has occurred, and the scope of any waiver by disclosure that occurred."; 'Ultimately, Seventh Circuit law and Federal Circuit law treat privilege similarly, and thus the choice of law analysis does not alter the outcome in this case.")

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

Chapter: 52.603

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 380 (W.D. Va. 2012)

("Because the remaining claims in these cases are state law claims before the court under both pendent and diversity jurisdiction, see 28 U.S.C.A. §§ 1332(d)(2), 1367(a), the determination of whether the documents at issue are protected from production by a claim of privilege is governed by Virginia law. See FED. R. EVID. 501.")

Case Date	Jurisdiction	State	Cite Checked
2012-01-01	Federal	VA	B 4/13

Chapter: 52.604

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)

("This court applies the law of the Federal Circuit when addressing discovery matters that implicate substantive patent law as this one does.")

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

Chapter: 52.604

Case Name: Regents of the University of California v. Affymetrix, Inc., Case No. 3:17-cv-1394-H-NLS, 2018 U.S. Dist. LEXIS 102554 (S.D. Cal. June 19, 2018)

("Where issues are not unique to patent law, the law of the circuit in which the dispute arises is applicable.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-19	Federal	CA

Chapter: 52.604

Case Name: Tech Pharmacy Services, LLC v. Alixa Rx LLC, Civ. A. No. 4:15-CV-766, 2017 U.S. Dist. LEXIS 130369 (E.D. Tex. Aug. 16, 2017)

("Courts apply regional circuit law to procedural questions that are not themselves substantive patent law issues, so long as they do not: (1) pertain to patent law; (2) bear an essential relationship to matters committed to the Federal Circuit's exclusive control by statute; or (3) clearly implicate the jurisprudential responsibilities of the Federal Circuit in a field within its exclusive jurisdiction. . . . For procedural matters that are not unique to patent issues, the perceived law of the regional circuit applies."; "Here, the parties do not dispute substantive areas of patent law like inequitable conduct. Instead, the parties dispute whether attorney-client privilege applies to communications between a company's attorney and a particular company employee. This issue constitutes a 'procedural matter' that is 'not unique to patent issues.'. . . Accordingly, the Court will apply Fifth Circuit law in determining whether the Disputed Documents are privileged."; "Fifth Circuit law also applies to Defendants' assertion of waiver. According to the Federal Circuit, courts apply regional circuit law to issues regarding 'waiver by disclosure of privileged material.'")

Case Date	Jurisdiction	State	Cite Checked
2017-08-16	Federal	TX

Chapter: 52.604

Case Name: Waymo LLC v. Uber Technologies, Inc., No. C 17-00939 WHA, 2017 U.S. Dist. LEXIS 96852 (N.D. Cal. June 21, 2017)

("'The law of our circuit applies to questions of privilege and waiver that do not implicate substantive issues unique to patent law.'")

Case Date	Jurisdiction	State	Cite Checked
2017-06-21	Federal	CA

Chapter: 52.604

Case Name: Crane Security Technologies, Inc. v. Rolling Optics, AB, Civ. A. No. 14-124280-LTS, 2017 U.S. Dist. 15529 (D. Mass. Feb. 3, 2017)

("While this is a patent case, the issues raised here pertaining to privilege and waiver are not unique to patent law and thus First Circuit law concerning privilege applies.")

Case Date	Jurisdiction	State	Cite Checked
2017-02-03	Federal	MA

Chapter: 52.604

Case Name: Dyson, Inc. v. Sharkninja Operating LLC, Case No. 14-cv-779, 2017 U.S. Dist. LEXIS 14434 (N.D. Ill. Feb. 2, 2017)

("Dyson correctly states that Federal Circuit law applies to attorney-client privilege in the area of inventorship.")

Case Date	Jurisdiction	State	Cite Checked
2017-02-02	Federal	IL

Chapter: 52.604

Case Name: Cave Consulting Group, Inc. v. OptumInsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 179966 (N.D. Cal. Dec. 29, 2016)

("'The parties dispute whether Federal Circuit or Ninth Circuit law applies to the present dispute. 'Federal Circuit law applies when deciding whether particular written or other materials are discoverable in a patent case, if those materials relate to an issue of substantive patent law.'. . . In the Court's view, the question of whether disclosure in a patent reexamination procedure of attorney-client communication for the purpose of patent prosecution and reexamination waives privilege and work product protection of related protected material prepared during patent litigation, prosecution, and reexamination is sufficiently specific to patent law to apply Federal Circuit precedent. The question is not particularly significant, however, as the parties have identified no material difference between Federal Circuit and Ninth Circuit law with respect to the issues in dispute. Assuming that Federal Circuit law applies to the present motion, the Court finds the reasoning of Ninth Circuit decisions cited herein persuasive and consistent with Federal Circuit law. Conversely, to the extent that Ninth Circuit law might apply, the Court finds the Federal Circuit authority cited herein persuasive and consistent.'")

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

Chapter: 52.604

Case Name: Cave Consulting Group, Inc. v. Optuminsight, Inc., Case No. 15-cv-03424-JCS, 2016 U.S. Dist. LEXIS 147900 (N.D. Cal. Oct. 25, 2016)

("'The parties dispute whether Federal Circuit or Ninth Circuit law applies to the present dispute. 'Federal Circuit law applies when deciding whether particular written or other materials are discoverable in a patent case, if those materials relate to an issue of substantive patent law.' EchoStar, 448 F.3d at 1298 (quoting Advanced Cardiovascular Sys. v. Medtronic, Inc., 265 F.3d 1294, 1307 (Fed. Cir. 2001)). In the Court's view, the question of whether disclosure in a patent reexamination procedure of attorney-client communication for the purpose of patent prosecution and reexamination waives privilege and work product protection of related protected material prepared during patent litigation, prosecution, and reexamination is sufficiently specific to patent law to apply Federal Circuit precedent. The question is not particularly significant, however, as the parties have identified no material difference between Federal Circuit and Ninth Circuit law with respect to the issues in dispute. Assuming that Federal Circuit law applies to the present motion, the Court finds the reasoning of Ninth Circuit decisions cited herein persuasive and consistent with Federal Circuit law. Conversely, to the extent that Ninth Circuit law might apply, the Court finds the Federal Circuit authority cited herein persuasive and consistent.'")

Case Date	Jurisdiction	State	Cite Checked
2016-10-25	Federal	CA

Chapter: 52.604

Case Name: In re Queen's Univ., 820 F.3d 1287, 1290, 1291 (Fed. Cir. 2016)

(holding that the attorney-client privilege covered nonlawyer patent agents' communications relating to patent prosecution, but not relating to infringement opinions or communications about the sale or purchase of a patent; analyzing patent and choice of law standards; "When reviewing a district court's decision, we apply the law of the regional circuit where that district court sits for non-patent issues, but we apply our own law for questions impacting substantive patent questions."; "Applying these standards, we have held that we apply our own law when deciding whether particular documents are discoverable in a patent case because they relate to issues of validity and infringement. . . . [T]his case involves the applicability of privilege for a patentee's communications with a non-attorney patent agent regarding prosecution of the patents-in-suit. Those types of communications are potentially relevant to numerous substantive issues of patent law, including claim construction, validity, and inequitable conduct.")

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

Chapter: 52.604

**Case Name: Medline Indus., Inc. v. C.R. Bard, Inc., No. 14 CV 3618, 2016 U.S. Dist. LEXIS 9767, at 5-6, 6-7, *7 (N.D. Ill. Jan. 26, 2016)**

("The court must first determine whether to apply Federal Circuit law or Seventh Circuit law. . . . Because this case involves claims under federal patent laws, federal common law regarding privilege governs. . . . But regional circuit law applies to procedural questions not themselves issues of substantive patent law unless they: (1) pertain to patent law; (2) bear an essential relationship to matters committed by statute to the exclusive control of the Federal Circuit; or (3) clearly implicate the responsibilities of the Federal Circuit in a field within its exclusive jurisdiction."; "Therefore, because the procedural issue of whether privilege applies to the draft declarations -- which Bard asserts it will use to establish a claim of inequitable conduct -- necessarily implicates substantive patent law, Federal Circuit law governs that determination. . . . However, to the extent relevant Federal Circuit case law is unavailable, the court will look to regional circuit law and other federal cases for guidance."; "Whether the Tomes Agreement is protected by attorney-client privilege or the work-product doctrine is a procedural question that does not implicate substantive patent law. . . . Accordingly, the court will apply Seventh Circuit law in deciding whether attorney-client privilege or work-product doctrine protects the Tomes Agreement from disclosure.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-26	Federal	IL	B 7/16

Chapter: 52.604

**Case Name: East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civil No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272, at *4 (D.N.H. Sept. 16, 2014)**

("Because jurisdiction over EastCoast's patent infringement claim is based upon 28 U.S.C. § 1338, federal common law of privilege applies to this case.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-16	Federal	NH

Chapter: 52.604

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 *3-4 (S.D. Ind. June 30, 2104)

("The law of the Federal Circuit applies to the attorney-client privilege and work product issues raised here because they concern discovery relevant to the inequitable conduct defense to a patent infringement claim, which is a substantive patent law issue.")

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

Chapter: 52.604

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at 6 n.3, 7-8, *8 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "A District court deciding issues in a patent case is required to apply the law of the circuit in which it sits with respect to nonpatent issues and the law of the Federal Circuit to the issues of substantive patent law. . . . Questions of privilege, confidentiality and waiver in a patent suit are generally governed by regional circuit law, rather than the Federal Circuit law."; "Most courts apply the 'touch base' analysis in deciding choice of law issues in cases where the alleged privileged communications occurred in a foreign country or involved foreign attorneys or proceedings. . . . Under this approach, a court applies principles of comity in a traditional choice of law 'contacts' analysis. . . . A court first determines whether the communication involves or 'touches base' with the U.S. or foreign law, and then examines the applicable law for privilege."; "Courts engaging in the 'touch base' analysis defer to the law of the country that has the 'predominant' or 'the most direct and compelling interest' in whether the challenged communications should remain confidential, unless that foreign law is contrary to the public policy of the forum. . . . The country with the 'predominant interest' is either 'the place where the allegedly privileged relationship was entered into' or 'the place in which that relationship was centered at the time communication was sent.'" (citation omitted))

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

Chapter: 52.604

**Case Name: Theranos, Inc. v. Fuisz Techs., Ltd., Case No. C 11-5236 PSG, 2013 U.S. Dist. LEXIS 70564, at *4 n.9 (N.D. Cal. May 16, 2013)**

("Cases pre-dating the introduction of Fed. R. Evid. 502 distinguish between waiver of materials that arise exclusively in patent law and waiver of materials that arise outside of the patent context. . . . But Rule 502 supplants federal common law. . . . The court therefore looks to the Ninth Circuit and the Federal Circuit for guidance, see Fed. R. Evid. 502 Advisory Committee Note (2011).")

Case Date	Jurisdiction	State	Cite Checked
2013-05-16	Federal	CA	B 3/14

Chapter: 52.604

Case Name: Meds. Co. v. Mylan Inc., 936 F. Supp. 2d 894, 899, 900 & n.3 (N.D. Ill. 2013)

(analyzing waiver issues in a patent case; holding that express waiver issues were governed by Seven Circuit law while implied waiver issues were governed by Federal circuit patent law; "This case involves claims under the federal patent laws, and consequently the federal common law of privilege governs. . . . In patent cases regional circuit law governs non-patent issues, while Federal Circuit law governs issues of substantive patent law. . . . Federal Circuit law may also govern any substantive or procedural issues 'intimately involved in the substance of enforcement of the patent right.'. . . Regional circuit law, however, applies to procedural questions not themselves issues of substantive patent law unless they (1) pertain to patent law, (2) bear an essential relationship to matters committed by statute to the exclusive control of the Federal Circuit, or (3) clearly implicate the responsibilities of the Federal Circuit in a field within its exclusive jurisdiction."; "[T]he procedural issue of whether and to what extent waiver applies to privileged information used to establish or defend against a claim of inequitable conduct necessarily implicates substantive patent law, and thus Federal Circuit law, not Seventh Circuit law, governs. . . . The issue of waiver by disclosure, however, belongs to the category of 'procedural questions that are not themselves substantive patent law issues,' and the Court will apply Seventh Circuit Law to the issue of whether waiver by disclosure has occurred, and the scope of any waiver by disclosure that occurred."; "Ultimately, Seventh Circuit law and Federal Circuit law treat privilege similarly, and thus the choice of law analysis does not alter the outcome in this case.")

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

Chapter: 52.604

Case Name: In re Shared Memory Graphics LLC, Misc. Dkt. 978, 2011 U.S. App. LEXIS 19414 (Fed. Cir. App. Sept. 22, 2011)

("A request for mandamus relief is determined under Federal Circuit law, except to the extent that underlying procedural issues may be governed by the law of the regional circuit, which in this case is the law of the Ninth Circuit. . . . Motions to disqualify under the law of that circuit in turn are decided under state law, in this case California law, where this case is pending.")

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

Chapter: 52.604

Case Name: Lifenet, Inc. v. Musculoskeletal Transplant Found., Inc., 490 F. Supp. 2d 681, 684 (E.D. Va. 2007)

(assessing the scope of waiver in a patent infringement case in which a party relies on advice of counsel; noting that EchoStar supplied the guiding principles; "Federal Circuit law governs issues of privilege and discoverability arising from the assertion of the advice of counsel defense in patent litigation.")

Case Date	Jurisdiction	State	Cite Checked
2007-01-01	Federal	VA	B 3/08

Chapter: 52.605

Case Name: Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., No. 2:17-cv-01515 KJM AC, 2019 U.S. Dist. LEXIS 40911 (E.D. Cal. Mar. 12, 2019)

June 19, 2019 (PRIVILEGE POINTS)

"Source And Choice Of Privilege Law In Diversity Cases — Part III"

The last two Privilege Points (Part I and Part II) addressed federal courts' identification of and choice of the appropriate state's privilege law in diversity cases. The latter process should start with federal courts' application of their host state's choice of law rules, but some courts seem to erroneously skip that process and automatically apply their host state's privilege law.

And there is another possible source of guidance for federal courts handling privilege issues in diversity cases. In Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., No. 2:17-cv-01515 KJM AC, 2019 U.S. Dist. LEXIS 40911 (E.D. Cal. Mar. 12, 2019), the court may have mistakenly applied California privilege law without making the necessary choice of law analysis. But the court correctly concluded that "in diversity cases, federal law governs procedure." Id. at *11. The court then recognized that "[t]he use of in camera review to determine whether attorney-client privilege is properly claimed is a procedural matter." Id.

Here is the choice of law breakdown in federal courts: (1) federal work product rules apply in all federal cases; (2) federal privilege common law applies in federal question cases; (3) federal law governs procedural issues; (4) state privilege law applies in federal diversity cases. Federal courts should choose the governing state privilege law after applying their host state's choice of law rules – not short circuit the process and automatically apply their host state's privilege law.

Case Date	Jurisdiction	State	Cite Checked
2019-03-12	Federal	CA

Comment:

key case

Chapter: 52.605

Case Name: First Am. Title Ins. Co. v. Rice, Civ. A. No. 1:16cv219, 2017 U.S. Dist. LEXIS 203163 (N.D.W. Va. Dec. 11, 2017)

("In this diversity action, attorney-client privilege is governed by West Virginia law, Fed. R. Evid. 501")

Case Date	Jurisdiction	State	Cite Checked
2017-12-11	Federal	VA

Chapter: 52.605

Case Name: Edeball v. Bankers Standard Ins. Co., CV 14-7095 (JS) (AKT), 2017 U.S. Dist. LEXIS 110665 (E.D.N.Y. July 17, 2017)

("'In light of the fact that the Court's subject matter jurisdiction is predicated on diversity grounds (as opposed to federal question), the elements and scope of the attorney-client privilege are governed by New York law.'")

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

Chapter: 52.605

Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)

("In diversity actions, such as the instant litigation, the law governing evidentiary privileges is supplied by the courts of the state in which the federal court sits.")

Case Date	Jurisdiction	State	Cite Checked
2017-06-08	Federal	PA

Chapter: 52.605

Case Name: Endeavor Energy Resources, L.P. v. Gatto & Reitz, LLC, 2:13cv542, 2017 U.S. Dist. LEXIS 48715 (W.D. Pa. March 31, 2017)

("Federal courts in diversity cases must look to state law when contemplating attorney-client privilege issues.")

Case Date	Jurisdiction	State	Cite Checked
2017-03-31	Federal	PA

Chapter: 52.605

Case Name: CAC Atlantic LLC v. Hartford Fire Ins. Co., 16 Civ. 5454 (GHW) (JCF), 2017 U.S. Dist. LEXIS 11010 (S.D.N.Y. Jan. 19, 2017)

("Because subject matter jurisdiction over this action is based on diversity, state law governs matters of privilege.")

Case Date	Jurisdiction	State	Cite Checked
2017-01-19	Federal	NY

Chapter: 52.605

Case Name: In re Riddell Concussion Reduction Litig., Civ. No. 13-7585 (JBS/JS), 2016 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2016)

("The Court sits in diversity and, therefore, will apply New Jersey law to decide attorney-client privilege issues.")

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

Chapter: 52.605

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

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

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

Comment:

key case

Chapter: 52.605

Case Name: Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, A.3d (11/8/2016)

January 11, 2017 (PRIVILEGE PONT)

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

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

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

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

Case Date	Jurisdiction	State	Cite Checked
2016-11-08	Federal	ME

Comment:

key case

Chapter: 52.605

Case Name: Barge v. State Farm Mutual Automobile Ins. Co., Case No. C16-0249JLR, 2016 U.S. Dist. LEXIS 155066 (W.D.D. Wash. Nov. 8, 2016)

("'Matters of attorney-client privilege are governed by state law.'")

Case Date	Jurisdiction	State	Cite Checked
2016-11-08	Federal	WA

Chapter: 52.605

Case Name: Indergit v. Rite Aid Corp., 08 Civ. 9361 (JPO) (HBP), 2016 U.S. Dist. LEXIS 150565 (S.D.N.Y. Oct. 31, 2016)

(holding that a lawyer for a defendant Rite Aid (who is not involved in defending the class action for the court) may interview ex parte class members about their role as regional managers (after they had been promoted from being store managers, who were members of the class); but also holding that these lawyers could not advise the lawyers representing defendant in the class action what the regional managers had said; "'Although no statute mandates the application of state rules of professional conduct to actions pending in federal court, neither side disputes their applicability here. See generally United States v. Hammad, 858 F.2d 834, 837 (2d Cir. 1988); Jackson v. Bloomberg, L.P., 13 Civ. 2001 (JPO), 2015 WL 1822695 at *2 (S.D.N.Y. Apr. 22, 2015) (Oetken, D.J.).'")

Case Date	Jurisdiction	State	Cite Checked
2016-10-31	Federal	NY

Chapter: 52.605

Case Name: Margulis v. The Hertz Corp., Civ. A. No. 14-1209 (JMV), 2016 U.S. Dist. LEXIS 149472 (D.N.J. Oct. 28, 2016)

("This case is in federal court based on the Class Action Fairness Act, which is an extension of federal diversity jurisdiction. . . . When a case is based on federal diversity jurisdiction, courts are to decide issues of privilege based on state law.")

Case Date	Jurisdiction	State	Cite Checked
2016-10-28	Federal	NJ

Chapter: 52.605

Case Name: Selective Ins. Co. of Am. v. Smiley Body Shop, Inc., No. 1:16-cv-00062-JMS-MJD, 2016 U.S. Dist. LEXIS 148649 (S.D. Ind. Oct. 27, 2016)

("The Federal Rules of Civil Procedure limit discovery to nonprivileged materials that are relevant and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). In diversity cases such as this one, the Federal Rules of Evidence incorporate by reference the privilege laws of the state providing the underlying substantive law. Fed. R. Evid. 501. Based upon their submissions, the parties appear to agree that Indiana law applies. Regardless, '[c]ourts do not worry about conflict of laws unless the parties disagree on which state's law applies.'")

Case Date	Jurisdiction	State	Cite Checked
2016-10-27	Federal	IN

Chapter: 52.605

Case Name: Wellin v. Wellin, Nos. 2:13-cv-1831-, -3595-DCN, & 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

November 9, 2016 (PRIIVLEGE POINT)

"Can Contracting Transactional Parties Select Favorable Privilege Law?: Part I"

Federal privilege common law governs federal question cases, but federal courts hearing diversity cases must choose the applicable attorney-client privilege law.

Many litigants do not even focus on the choice of law issue. In Greyhound Lines Inc. v. Viad Corp., the court noted that "[t]he parties do not address this choice of law issue." No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483, at *2-3 (D. Ariz. Sept. 8, 2016). The court eventually applied Arizona privilege law, because plaintiff cited Arizona law and defendant "does not cite contrary authority." Id. at *3. To be sure, in many cases the choice of laws does not make any difference. In Wellin v. Wellin, Nos. 2:13-cv-1831-, -3595-DCN, & 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016), the court extensively analyzed the choice of law issue — correctly using South Carolina's standard for that analysis. The court ultimately concluded that South Carolina privilege law applied, but then acknowledged that "this may be something of a hollow victory for [plaintiffs] as the court is not convinced there is any significant difference between New York and South Carolina [privilege] law." Id. at *32.

But in some situations there are huge differences between states' privilege laws. Next week's Privilege Point will discuss a noteworthy case where such a difference was dispositive, and in which the Southern District of New York gave a road map for corporations seeking to maximize their privilege protection.

Case Date	Jurisdiction	State	Cite Checked
2016-09-30	Federal	SC	B 11/16

Comment:

key case

Chapter: 52.605

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("Federal Rule of Evidence 501 provides that, 'in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.' Fed. R. Evid. 501. Federal courts have interpreted this language to require the court to determine the 'availability of an evidentiary privilege' based on the choice of law rules of the forum state.")

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

Chapter: 52.605

Case Name: Airport Fast Park-Austin, L.P. v. John Hancock Life Insurance Company, Case No. 1:15-cv-245, 2016 U.S. Dist. LEXIS 125931 (S.D. Ohio Sept. 15, 2016)

("State law governs AFP's claim of attorney-client privilege in this diversity action.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-15	Federal	OH

Chapter: 52.605

**Case Name: Greyhound Lines Inc. v. Viad Corp., No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483, at *2-3 (D. Ariz. Sept. 8, 2016)**

November 9, 2016 (PRIVILEGE POINT)

"Can Contracting Transactional Parties Select Favorable Privilege Law?: Part I"

Federal privilege common law governs federal question cases, but federal courts hearing diversity cases must choose the applicable attorney-client privilege law.

Many litigants do not even focus on the choice of law issue. In Greyhound Lines Inc. v. Viad Corp., the court noted that "[t]he parties do not address this choice of law issue." No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483, at *2-3 (D. Ariz. Sept. 8, 2016). The court eventually applied Arizona privilege law, because plaintiff cited Arizona law and defendant "does not cite contrary authority." Id. at *3. To be sure, in many cases the choice of laws does not make any difference. In Wellin v. Wellin, Nos. 2:13-cv-1831-, -3595-DCN, & 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016), the court extensively analyzed the choice of law issue — correctly using South Carolina's standard for that analysis. The court ultimately concluded that South Carolina privilege law applied, but then acknowledged that "this may be something of a hollow victory for [plaintiffs] as the court is not convinced there is any significant difference between New York and South Carolina [privilege] law." Id. at *32.

But in some situations there are huge differences between states' privilege laws. Next week's Privilege Point will discuss a noteworthy case where such a difference was dispositive, and in which the Southern District of New York gave a road map for corporations seeking to maximize their privilege protection.

Case Date	Jurisdiction	State	Cite Checked
2016-09-08	Federal	AZ	B 11/16

Comment:

key case

Chapter: 52.605

Case Name: Bivins v. Rogers, Civ. No. 15-cv-81298-MARRA/MATTHEWMAN, 2016 U.S. Dist. LEXIS 120892 (S.D. Fla. Sept. 7, 2016)

("State law provides the rule of decision in diversity actions where a party asserts the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-07	Federal	FL

Chapter: 52.605

Case Name: Turubchuk v. E.T. Simonds Construction Co., Case No. 3:12-cv-594-SMY-DGW, 2015 U.S. Dist. LEXIS 133512 (S.D. Ill. Sept. 30, 2015)

("In this diversity action, the applicability of a privilege is governed by state law. FED.R.EVID. 501.")

Case Date	Jurisdiction	State	Cite Checked
2015-09-30	Federal	IL

Chapter: 52.605

Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924 (S.D. Fla. April 8, 2015)

("'In a diversity action, state law governs the application of the attorney-client privilege.'")

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

Chapter: 52.605

Case Name: CSX Transportation, Inc. v. Chicago South Shore and South Bend Railroad, Cause No. 2:13-CV-285-RL-PRC, 2015 U.S. Dist. LEXIS 13090 (N.D. Ind. Feb. 4, 2015)

("CSX applied federal common law on the attorney-client privilege. However, Indiana state law governs the assertion of attorney-client privilege in this diversity action.")

Case Date	Jurisdiction	State	Cite Checked
2015-02-04	Federal	IN

Chapter: 52.605

Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)

("It is undisputed that this Court sits in diversity and must accordingly apply New York law in considering whether communications with Ms. Napp are protected by attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2015-01-30	Federal	NY

Chapter: 52.605

Case Name: Winthrop Resources Corp. v. CommScope, Inc., Civ. A. No. 5:11-CV-172, 2014 U.S. Dist. LEXIS 158413 (W.D.N.C. Nov. 7, 2014)

("The Fourth Circuit states that 'the availability of an evidentiary privilege is governed by the law of the forum state.'. . . Therefore, the Court will apply North Carolina privilege law to this matter."; "'Courts look to the conflict of law provisions of the forum state to determine which privilege to apply. . . . North Carolina utilizes the traditional conflict of law rules. '[M]atters affecting the substantial rights of the parties are determined by lex loci, the law of the situs of the claim, and remedial or procedural rights are determined by lex fori, the law of the forum.'. . . In North Carolina, '[t]he law of the forum governs the admissibility of evidence.'. . . Therefore, the North Carolina attorney-client privilege applies. . . . This means Fourth Circuit law interpreting the federal law of privilege is not binding.'")

Case Date	Jurisdiction	State	Cite Checked
2014-11-07	Federal	NC

Chapter: 52.605

**Case Name: Gresser v. Wells Fargo Bank, N.A., Case No. CCB-12-0987, 2014 U.S. Dist. LEXIS 9021, at *4 (D. Md. Jan. 24, 2014)**

("Maryland law, which supplies the rule of decision, also governs the applicability of the attorney-client privilege. With respect to the work product doctrine, which is not a privilege, but a qualified immunity from discovery, federal law applies.")

Case Date	Jurisdiction	State	Cite Checked
2014-01-24	Federal	MD	B 6/14

Chapter: 52.605

**Case Name: EMC Ins. Co. v. Zicolello, No. 4:13-cv-00825, 2014 U.S. Dist. LEXIS 4785, at *3-4 (M.D. Pa. Jan. 13, 2014)**

("The Court has jurisdiction over this matter on the basis that complete diversity exists between the parties, and courts sitting in diversity should apply the privilege rules of the forum state in determining whether attorney-client privilege applies to the communications at issue.")

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

Chapter: 52.605

**Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *1-2 (M.D. Ga. Dec. 6, 2013)**

("Whether documents are protected by the attorney-client privilege is a substantive issue governed by state law. Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 691 (N.D. Ga. 2012). In Georgia, the attorney-client privilege generally applies in the context of communications between in-house corporate counsel and the corporation's management and employees.")

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

Chapter: 52.605

**Case Name: Scheurer Hosp. v. Lancaster Pollard & Co., Case No. 12-cv-11536, 2012 U.S. Dist. LEXIS 160842, at *12 (E.D. Mich. Nov. 9, 2012)**

("Since Plaintiff's claims arise under Michigan law, i.e., malpractice, breach of contract, and negligence, Rule 501 of the Federal Rules of Evidence provides that state law governs the privilege question.")

Case Date	Jurisdiction	State	Cite Checked
2012-11-09	Federal	MI	B 7/13

Chapter: 52.605

**Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *5 (W.D. Va. June 28, 2012)**

("Adair's remaining claims are Virginia state law claims before the court based on diversity of citizenship. Therefore, Virginia state law governs EQT's assertion of privilege. See FED. R. EVID. 501; Commercial Union Ins. Co. of Am. v. Talisman, Inc., 69 F.R.D. 490, 491 (E.D. Mo. 1975).")

Case Date	Jurisdiction	State	Cite Checked
2012-06-28	Federal	VA

Chapter: 52.605

Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 691 (N.D. Ga. 2012)

("Whether documents are protected by the attorney-client privilege is a substantive issue governed by state law.")

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

Chapter: 52.605

**Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *14-15 (W.D. Va. Apr. 16, 2009)**

("In this diversity case, the court will apply Virginia state law to resolve attorney-client privilege issues. See, e.g., In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006) ('In a diversity case, the court applies federal law to resolve work product claims and state law to resolve attorney-client claims.') (citations omitted). In Virginia, '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment "are privileged from disclosure, even for the purpose of administering justice."' Commonwealth of Virginia, et rel., etc. v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988) (quotations omitted).")

Case Date	Jurisdiction	State	Cite Checked
2009-04-16	Federal	VA	B 3/16

Chapter: 52.606

Case Name: Paramount Financial Communications, Inc. v. Broadridge Investor Communication Solutions, Inc., Civ. A. No. 15-405, 2016 U.S. Dist. LEXIS 133105 (E.D. Pa. Sept. 28, 2016)

("The production of the draft Marketing Agreement by defendant, and the subsequent failure to assert the attorney-client privilege with respect to the document at the deposition of Mr. Kopelman in accordance with Fed. R. Civ. P. 26(b)(5)(B), therefore, constitutes a waiver of the attorney-client privilege by defendant with respect to the draft Marketing Agreement. Thus, plaintiffs may depose Mr. Roux and Mr. Glantz [Defendant's in-house lawyer] regarding the comments made in the draft Marketing Agreement. However, the waiver of the attorney-client privilege is limited only to the comments within that document."; "Plaintiffs further argue that defendant's failure to assert the attorney-client privilege with respect to the draft Marketing Agreement constitutes a broad subject matter waiver of any attorney-client communications regarding the Marketing Agreement. This court disagrees for two reasons. First, while the federal courts have recognized a broad subject matter waiver doctrine, 'Pennsylvania court have not adopted subject matter waiver.'. . . Second, when the federal courts have found a subject matter waiver, they have found that the party disclosing the document containing attorney-client materials has intentionally put the protected information into the litigation in a selective, misleading and unfair manner."; "In the instant case, plaintiffs have not established that defendant disclosed the draft Marketing Agreement to gain a tactical advantage. This case is not the 'unusual situation[] in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage plaintiff the adversary.'. . . Therefore, the court finds that defendant did not waive the attorney-client privilege as to the entire subject matter relating to the Marketing Agreement.")

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

Comment:

key case

Chapter: 52.606

Case Name: Paramount Financial Communications, Inc. v. Broadridge Investor Communication Solutions, Inc., Civ. A. No. 15-405, 2016 U.S. Dist. LEXIS 133105 (E.D. Pa. Sept. 28, 2016)

("The production of the draft Marketing Agreement by defendant, and the subsequent failure to assert the attorney-client privilege with respect to the document at the deposition of Mr. Kopelman in accordance with Fed. R. Civ. P. 26(b)(5)(B), therefore, constitutes a waiver of the attorney-client privilege by defendant with respect to the draft Marketing Agreement. Thus, plaintiffs may depose Mr. Roux and Mr. Glantz [Defendant's in-house lawyer] regarding the comments made in the draft Marketing Agreement. However, the waiver of the attorney-client privilege is limited only to the comments within that document."; "Plaintiffs further argue that defendant's failure to assert the attorney-client privilege with respect to the draft Marketing Agreement constitutes a broad subject matter waiver of any attorney-client communications regarding the Marketing Agreement. This court disagrees for two reasons. First, while the federal courts have recognized a broad subject matter waiver doctrine, 'Pennsylvania court have not adopted subject matter waiver.'. . . Second, when the federal courts have found a subject matter waiver, they have found that the party disclosing the document containing attorney-client materials has intentionally put the protected information into the litigation in a selective, misleading and unfair manner."; "In the instant case, plaintiffs have not established that defendant disclosed the draft Marketing Agreement to gain a tactical advantage. This case is not the 'unusual situation[] in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage plaintiff the adversary.'. . . Therefore, the court finds that defendant did not waive the attorney-client privilege as to the entire subject matter relating to the Marketing Agreement.")

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

Comment:

key case

Chapter: 52.606

Case Name: Paramount Financial Communications, Inc. v. Broadridge Investor Communication Solutions, Inc., Civ. A. No. 15-405, 2016 U.S. Dist. LEXIS 133105 (E.D. Pa. Sept. 28, 2016)

("The production of the draft Marketing Agreement by defendant, and the subsequent failure to assert the attorney-client privilege with respect to the document at the deposition of Mr. Kopelman in accordance with Fed. R. Civ. P. 26(b)(5)(B), therefore, constitutes a waiver of the attorney-client privilege by defendant with respect to the draft Marketing Agreement. Thus, plaintiffs may depose Mr. Roux and Mr. Glantz [Defendant's in-house lawyer] regarding the comments made in the draft Marketing Agreement. However, the waiver of the attorney-client privilege is limited only to the comments within that document."; "Plaintiffs further argue that defendant's failure to assert the attorney-client privilege with respect to the draft Marketing Agreement constitutes a broad subject matter waiver of any attorney-client communications regarding the Marketing Agreement. This court disagrees for two reasons. First, while the federal courts have recognized a broad subject matter waiver doctrine, 'Pennsylvania court have not adopted subject matter waiver.'. . . Second, when the federal courts have found a subject matter waiver, they have found that the party disclosing the document containing attorney-client materials has intentionally put the protected information into the litigation in a selective, misleading and unfair manner."; "In the instant case, plaintiffs have not established that defendant disclosed the draft Marketing Agreement to gain a tactical advantage. This case is not the 'unusual situation[] in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage plaintiff the adversary.'. . . Therefore, the court finds that defendant did not waive the attorney-client privilege as to the entire subject matter relating to the Marketing Agreement.")

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

Comment:

key case

Chapter: 52.606

**Case Name: Loop Ai Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2016 U.S. Dist. LEXIS 22656, at *6-7 (N.D. Cal. Feb. 24, 2016)**

(analyzing the fiduciary exception's applicability to law firms; finding internal Orrick documents were not covered by the fiduciary exception, because the law firm withdrew from representing the plaintiff client twelve days after learning of its conflict; "As a preliminary matter, Loop and Orrick [third party] dispute whether federal or state privilege law applies to this dispute. This court exercises federal question jurisdiction over Loop's federal RICO and CFAA claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Loop's pendent state law claims. . . . While the 'interplay of these two principles has created somewhat inconsistent case law regarding the application of federal privilege doctrine to pendent state law claims in federal question cases' . . . the Ninth Circuit has held that '[w]here there are federal question claims and pendent state law claims present, the federal law of privilege applies.'" (citation omitted))

Case Date	Jurisdiction	State	Cite Checked
2016-02-24	Federal	CA	B 8/16

Chapter: 52.606

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

March 9, 2016 (PRIVILEGE POINT)

"Courts Wrestle with Privilege Choice of Law Issues"

Although most jurisdictions agree on the basic elements of the attorney-client privilege, some differences among the jurisdictions' standards could be important. For instance, some states take a narrower view than others about client agents/consultants deemed inside privilege protection. Because of these differences, and for obvious other reasons, lawyers should know what privilege law a court will apply — which implicates the court's choice of law rules.

Federal courts sitting in diversity should apply their host state's choice of law approach. This can lead to some odd results. In Wellin v. Wellin, the court applied its host state South Carolina's choice of law rules in selecting South Dakota privilege law — because the trust at issue "contains a choice of law provision specifying that South Dakota law applies." C.A. Nos. 2:13-CV-1831 & -3595-DCN, and 2:14-CV-4067-DCN, 2016 U.S. Dist. LEXIS 5364, at *13 (D.S.C. Jan. 8, 2016). Federal courts handling federal question cases apply federal common law to federal issues, but under Fed. R. Evid. 501 apply state law to "a claim or defense for which state law supplies the rule of decision." Taking it a step further, in Hunt v. Schauerhamer, Case No. 2:15-CV-1-TC-PMW, 2016 U.S. Dist. LEXIS 1744, at *6 (D. Utah Jan. 6, 2016), the court handling a § 1983 action applied Utah privilege law to the "discrete issue now before the court concern[ing] the existence and interpretation of a settlement agreement . . . Requir[ing] application of the rules of state contract law." But in analyzing the scope of waiver, the court concluded that it "must consider Rule 502 of the Federal Rules of Evidence, which provides some federal limitations on the scope of the waiver, even if state privilege law controls." So the court applied Utah privilege law in analyzing waiver but returned to federal law to determine the waiver's scope.

Many litigants and even some judges do not undertake this sort of technically proper choice of laws analysis, and instead apply generic privilege law. But in some situations, the laws and rules must be pieced together to be properly applied.

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

Comment:

key case

Chapter: 52.606

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

(in a § 1983 action, concluding that state law supplies the question of the plaintiff's waiver, but that federal law determines the scope of the waiver; "Although the case was filed under 42 U.S.C. § 1983, the discrete issue now before the court concerns the existence and interpretation of a settlement agreement and so requires application of the rules of state contract law. 'Issues involving the formation and construction of a purported settlement agreement are resolved by applying state contract law.' Shoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir. 2004). Because Utah law supplies the rule of decision on the issue now before the court, the court applies Utah's law governing waiver of the attorney-client privilege."; "Even though the court holds that Ms. Hunt has waived the privilege, the court must consider Rule 502 of the Federal Rules of Evidence, which provides some federal limitations on the scope of the waiver, even if state privilege law controls.")

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

Comment:

key case

Chapter: 52.606

Case Name: Ingenco Holdings, LLC v. Ace American Insurance Co., Case No. C13-543RAJ, 2014 U.S. Dist. LEXIS 170357 (W.D. Wash. Dec. 8, 2015)

("Ingenco's motion invokes Cedell v. Farmers Ins. Co., 176 Wn.2d 686, 295 P.3d 239 (Wash. 2013), to either compel production of every document in ACE's claim file for which it invoked the attorney-client privilege or work product doctrine, or to compel the court to review those documents in camera to determine which are discoverable."; "[T]hat every federal court to consider the issue has held that the in camera review mandate of Cedell does not apply in federal court.")

Case Date	Jurisdiction	State	Cite Checked
2015-12-08	Federal	WA

Chapter: 52.606

Case Name: Cardinal Aluminum Company v. Continental Casualty Company, Case No. 3:14-CV-857-TBR-LLK, 2015 U.S. Dist. LEXIS 95361 (W.D. Ky. July 22, 2015)

("For questions of attorney-client privilege, the Court must apply state law if 'state law supplies the rule of decision' for the claim. Fed. R. Evid. 501. State law applies the rules of decision for all of the claims in the instant case. Therefore, this Court must apply Kentucky law regarding attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2015-07-22	Federal	KY

Chapter: 52.606

Case Name: Malbco Holdings, LLC v. Patel, 6:14-cv-00947-PK, 2015 U.S. Dist. LEXIS 62501 (D. Ore. May 13, 2015)

("Federal courts sitting in diversity are charged with applying the law of the forum state when determining whether a holder has waived the right to claim the attorney-client privilege.")

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

Chapter: 52.606

Case Name: Valley Forge Insurance Company v. Hartford Iron & Metal, Inc., Cause No. 1:14-CV-6-RLM-SLC, 2015 U.S. Dist. LEXIS 61143 (N.D. Ind. May 11, 2015)

(holding that under Ohio law the insured's lawyer also represented the insurance company; "This dispute causes two well established principles to collide -- open court records and attorney-client confidences. The court has jurisdiction over this suit based on diversity jurisdiction, so the court applies state law to substantive issues and federal law to procedural issues. . . . Under Federal Rule of Evidence 501, in a diversity case in which state law supplies the rule of decision, the state's substantive law of privilege governs as well. . . . Accordingly, federal law controls the request to seal, and Indiana law determines the attorney-client privilege.")

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

Comment:

key case

Chapter: 52.606

Case Name: Conway v. Licata, Civ. A. No. 13-12193-LTS, 2015 U.S. Dist. LEXIS 61276 (D. Mass. May 8, 2015)

("'The parties have not addressed whether federal or state law applies to this claim of privilege. See Fed. R. Evid. 501 ('in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.'). The parties, however, have cited federal caselaw almost exclusively in their papers regarding privilege, and thus, the Court assumes, without deciding, that federal law applies.'")

Case Date	Jurisdiction	State	Cite Checked
2015-05-08	Federal	MA

Chapter: 52.606

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)

(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "While the applicability of the privilege is governed by state law, waiver of the privilege is a matter of federal law.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-14	Federal	WV

Chapter: 52.606

Case Name: La Suisse, Societe D'Assurances Sur La Vie v. Kraus, 06 Civ. 4404 (CM) (GWG), 2014 U.S. Dist. LEXIS 166673 (S.D.N.Y. Dec. 1, 2014)

("'Mahon and Swiss Life cite both federal and New York state law to support their positions on the privilege issue, without discussing which law applies. We apply federal law because the original complaint and the third-party complaint each sought damages under federal statutes, even if state law claims were also asserted. . . . Where, as here, a case includes federal and state law claims and the evidence sought is relevant to both, 'the asserted privileges are governed by the principles of federal law.'")

Case Date	Jurisdiction	State	Cite Checked
2014-12-01	Federal	NY

Chapter: 52.606

Case Name: East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civ. No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272 (D.N.H. Sept. 16, 2014)

November 5, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part I”

Although both federal and state courts apply their own rules (including the work product rule), they normally must undertake a choice of law analysis when assessing attorney-client privilege claims. This usually results in fairly predictable conclusions — but not always.

Federal courts handling federal question cases apply federal common law privilege principles. East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civ. No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272 (D.N.H. Sept. 16, 2014) (not for publication) (28 U.S.C. § 1338 patent infringement case). Bankruptcy cases can involve more subtle issues. In Litigation Trust for Trust Beneficiaries of SNTL Corp. v. JP Morgan Chase (In re Superior National Insurance GR), an insurance company and several subsidiaries filed for Chapter 11 relief. Ch. 11 Case No. 1:00-bk-14099-GM, Adv. No.: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885 (Bankr. C.D. Cal. Sept. 11, 2014). A litigation trust for the debtors' trust beneficiaries sued a bank, which then sought some of the trust's documents. In determining which privilege law applied, the court relied on Federal Rule of Evidence 501, which "states that 'state law governs privilege regarding a claim or defense for which state law supplies the rules of decision.'" Id. at *7. The court concluded that California privilege law applied, because the trust's claims against the bank "are all state law causes of action." Id. However, the court also acknowledged that if "any of the [trust's] claims were governed by federal law, then federal law of privileges would govern the entire proceeding." Id.

Federal courts' privilege choice of law analyses become more complicated in diversity cases. Next week's Privilege Point discusses that scenario.

Case Date	Jurisdiction	State	Cite Checked
2014-09-16	Federal	NH

Comment:

key case

Chapter: 52.606

Case Name: Litigation Trust for Trust Beneficiaries of SNTL Corp. v. JP Morgan Chase (In re Superior National Insurance GR), Ch. 11 Case No. 1:00-bk-14099-GM, Adv. No.: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885 (Bankr. C.D. Cal. Sept. 11, 2014)

November 5, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part I”

Although both federal and state courts apply their own rules (including the work product rule), they normally must undertake a choice of law analysis when assessing attorney-client privilege claims. This usually results in fairly predictable conclusions — but not always.

Federal courts handling federal question cases apply federal common law privilege principles. East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civ. No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272 (D.N.H. Sept. 16, 2014) (not for publication) (28 U.S.C. § 1338 patent infringement case). Bankruptcy cases can involve more subtle issues. In Litigation Trust for Trust Beneficiaries of SNTL Corp. v. JP Morgan Chase (In re Superior National Insurance GR), an insurance company and several subsidiaries filed for Chapter 11 relief. Ch. 11 Case No. 1:00-bk-14099-GM, Adv. No.: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885 (Bankr. C.D. Cal. Sept. 11, 2014). A litigation trust for the debtors' trust beneficiaries sued a bank, which then sought some of the trust's documents. In determining which privilege law applied, the court relied on Federal Rule of Evidence 501, which "states that 'state law governs privilege regarding a claim or defense for which state law supplies the rules of decision.'" Id. at *7. The court concluded that California privilege law applied, because the trust's claims against the bank "are all state law causes of action." Id. However, the court also acknowledged that if "any of the [trust's] claims were governed by federal law, then federal law of privileges would govern the entire proceeding." Id.

Federal courts' privilege choice of law analyses become more complicated in diversity cases. Next week's Privilege Point discusses that scenario.

Case Date	Jurisdiction	State	Cite Checked
2014-09-11	Federal	CA

Comment:

key case

Chapter: 52.606

**Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *9 (C.D. Cal. Sept. 11, 2014)**

("It is not clear whether state or federal law governs common interest doctrine in the same state law action if the underlying privilege is work product (which itself is governed by federal law). Some cases have stated that state law applies. . . . Other cases have applied federal law to the question of whether the common interest doctrine protected a work product privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-11	Federal	CA

Chapter: 52.606

Case Name: Newspring Mezzanine Capital II, L.P. v. Hayes, Jr., Civ. A. No. 14-1706, 2014 U.S. Dist. LEXIS 169900 (E.D. Pa. Dec. 9, 2014)

(analyzing protection of privileged transaction-related documents between a law firm which helped a number of owners of a company sell the company stock to the new owners; ultimately finding that the new company management owned the transactional communications; "Resolving this dispute requires first addressing what laws should govern the issue. In this case, a plaintiff corporation based in Pennsylvania but organized under Delaware law has brought claims against three Florida residents, a North Carolina company, and another corporation based in North Carolina but organized under Delaware law. There is a spider's web of claims, cross-claims, and counter-claims among these geographically diverse parties that sound in federal, Delaware, Pennsylvania law."; "Because this dispute concerns claims of privilege, I look to Federal Rule of Evidence 501, which states that federal privilege laws apply in federal claims and state privilege laws apply in state claims."; "Thus, federal privilege law must govern in this case.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-09	Federal	PA

Chapter: 52.606

**Case Name: Ellis v. Arrowood Indem. Co., Civil Action No. 2:14-mc-00146, 2014 U.S. Dist. LEXIS 121913, at *8-9 (S.D. W. Va. Sept. 2, 2014)**

("'[S]tate law governs privilege regarding a claim or defense for which state law supplies the rule of decision.'")

Case Date	Jurisdiction	State	Cite Checked
2014-09-02	Federal	WV

Chapter: 52.606

**Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *5-7 (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; "Here, the Complaint alleges a federal claim based on the TVRPA [Trafficking Victims Protection Reauthorization Act] and supplemental Maryland state claims. Yet, the evidence sought from Plaintiff is relevant only to the state law claims because Defendants do not contend that the federal claim was untimely. Such a dispute does not appear to implicate conflicting state and federal privilege law, raising the question whether the general rule, that applies federal privilege law when both federal and state claims have been pleaded, controls. . . . I conclude that the federal law of privilege controls in this civil proceeding where the Court's jurisdiction is premised upon a federal question, even if the evidence is relevant to only a supplemental state law claim which may be controlled by contrary state privilege law. . . . Accordingly, the federal law of privilege shall apply for the resolution of the present discovery dispute.")

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

Chapter: 52.607

Case Name: Med. Mut. of Ohio v. AbbVie, Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig., MDL No. 2545, Case No. 14 C 1748, Case No. 14 C 8857, 2018 U.S. Dist. LEXIS 41412 (N.D. Ill. March 14, 2018)

(analyzing privilege issues in connection with a corporate investigation; holding that a court-approved protective order claw-back agreement trumped the Rule 502 inadvertent production standards; "'When applying federal law . . . the transferee court in an MDL proceeding applies the law of the circuit in which it sits.'")

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

Chapter: 52.607

Case Name: In re Bair Hugger Force Air Warming Devices Prods. Liability Litig., MDL No. 15-2666 (JNE/FLN), 2017 U.S. Dist. LEXIS 141023 (D. Minn. Aug. 30, 2017)

("To determine which state's crime-fraud exception applies, this Court must first analyze state choice-of-law principles. When used in federal court, choice-of-law principles are substantive state law. . . . An MDL transferee court must use the substantive law, including the choice-of-law principles, of the states where the MDL's member actions would have been filed but for transfer. . . . As the MDL transferee, this Court must use a choice-of-law principle consistent with every state's principle."; "As to the crime-fraud exception, a state's choice-of-law principle depends on whether the state considers privilege procedural or substantive. . . . This Court need not decide which choice-of-law principle to use because both have the same result here."; "Using either choice-of-law principle, Minnesota privilege applies. Minnesota is the current forum state. . . . Minnesota also is the state having the most significant relationship to the Documents. The Documents were prepared by a Minnesota entity for another Minnesota entity's benefit and were communicated between those Minnesota entities. Minnesota privilege thus applies.")

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

Chapter: 52.607

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

("The parties cite and apply federal privilege law to the instant dispute. Because no federal claim remains in this litigation, however, the court questions the applicability of federal law. When jurisdiction is based on diversity of citizenship, 'state law supplies the rule of decision on privilege' by operation of Fed. R. Evid. 501. 'Since this is a multidistrict proceeding, the question arises as to what state's law of privilege the court should apply.' Because the parties seem to agree that federal common-law standards should govern the privilege determinations in this case, because 'no real conflict between federal and Kansas law regarding the attorney-client privilege [exists],' and because 'the Kansas statute concerning the attorney-client privilege and its exceptions is typical of the laws of other jurisdictions,' the court will apply federal law in reaching its determinations on privilege issues.")

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

Chapter: 52.607

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)

(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "[G]iven that the instant action involves claims from multiple states that have been consolidated for discovery, the choice of which state law to apply is not obvious. Conceivably, the law of all twenty-two involved states could or should be consulted. Plaintiffs choose to resolve the dilemma by citing to the law of West Virginia, the state in which this Court sits, and to federal law, and Ford did not object to that approach. Certainly, in cases of complex litigation, federal courts have analyzed the applicability of the attorney-client privilege using federal law despite the language of Rule 501. . . . Another option is to apply the law of the state with the most significant relationship to the communication. . . . In this case, that state would presumably be Michigan as the employees involved in the communication were in Ford's corporate headquarters located in Michigan. Fortunately, the federal law of privilege and the laws of West Virginia and Michigan are compatible.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-14	Federal	WV

Chapter: 52.607

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)

(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; "'Insofar as many of the cases in this MDL are subject to this Court's diversity jurisdiction, it is by no means clear that federal law should govern analysis of the attorney-client privilege. . . . In their memoranda, however, the parties rely solely on federal law and fail to address the issue of choice of law. Given that, the Court finds that the parties have implicitly consented to application of federal privilege law and that that implied consent 'is sufficient to establish choice of law' on the question.'")

Case Date	Jurisdiction	State	Cite Checked
2015-01-15	Federal	NY

Chapter: 52.607

**Case Name: Callaway v. Cofield (In re Cofield), Case No. 11-02034-8-SWH, Adv. No. 12-00270-8-SWH-AP, 2013 Bankr. LEXIS 1555, at *7 (E.D.N.C. Apr. 11, 2013)**

("This adversary proceeding involves a federal cause of action, and therefore the federal common law of attorney-client privilege applies.")

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

Chapter: 52.701

Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)

("Federal Rule of Evidence 501 provides that 'in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.' Fed. R. Evid. 501. This case includes federal and state claims . . . but the parties do not address whether federal or state privilege law should apply. When state law does apply, Rule 501 'does not tell us which state law the forum state should apply.' KL Grp.v. Case, Kay & Lynch, 829 F.2d 909, 918 (9th Cir. 1987). Commentators have suggested several methods of resolving this choice-of-law issue: (1) use the privilege law of the state whose substantive law provides the rule of decision; (2) apply the privilege law of the state in which the federal court sits; or (3) apply the choice-of-law doctrine of the state in which the federal court sits. Id. (citing 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure § 5435, at 865-69 (1980); 2 Weinstein's Federal Evidence § 501[02] (1986)). The parties do not address this choice of law issue either."; "Greyhound relies on an Arizona statute that defines the attorney-client privilege for corporations, A.R.S. § 12-2234. . . . Viad does object to the use of this statute, and does not cite contrary authority. . . . Because Greyhound is the party challenging Viad's assertion of the privilege, and Viad does not object to Greyhound's legal arguments, the Court will apply the Arizona statute and relevant cases.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-08	Federal	AZ

Comment:

key case

Chapter: 52.701

Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)

("Federal Rule of Evidence 501 provides that 'in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.' Fed. R. Evid. 501. This case includes federal and state claims . . . but the parties do not address whether federal or state privilege law should apply. When state law does apply, Rule 501 'does not tell us which state law the forum state should apply.' KL Grp.v. Case, Kay & Lynch, 829 F.2d 909, 918 (9th Cir. 1987). Commentators have suggested several methods of resolving this choice-of-law issue: (1) use the privilege law of the state whose substantive law provides the rule of decision; (2) apply the privilege law of the state in which the federal court sits; or (3) apply the choice-of-law doctrine of the state in which the federal court sits. Id. (citing 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure § 5435, at 865-69 (1980); 2 Weinstein's Federal Evidence § 501[02] (1986)). The parties do not address this choice of law issue either."; "Greyhound relies on an Arizona statute that defines the attorney-client privilege for corporations, A.R.S. § 12-2234. . . . Viad does object to the use of this statute, and does not cite contrary authority. . . . Because Greyhound is the party challenging Viad's assertion of the privilege, and Viad does not object to Greyhound's legal arguments, the Court will apply the Arizona statute and relevant cases.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-08	Federal	AZ

Comment:

key case

Chapter: 52.701

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 625 (D. Nev. 2013)

("Plaintiff asserts that in accordance with Federal Rule of Evidence 501, Nevada law is applicable. . . . Bard agrees, but suggests that because most of the communications at issue were made by attorneys in New Jersey to employees of Bard in Arizona, it is possible that Arizona or New Jersey law should govern this dispute. . . . Nonetheless, Bard recognizes that under New Jersey, Arizona, and Nevada law, the basic substantive elements of the attorney-client privilege are the same; therefore, Nevada law should apply."; "Federal courts sitting in diversity apply the choice of law rule of the state in which it sits. . . . Applying Nevada's choice of law principles, and with no conflict among the laws of these states, Nevada law should apply.")

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

Chapter: 52.702

**Case Name: Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., No. 2:17-cv-01515 KJM AC, 2019 U.S. Dist. LEXIS 40911, at *10 (E.D. Cal. Mar. 13, 2019)**

June 12, 2019 (PRIVILEGE POINTS)

"Source And Choice Of Privilege Law In Diversity Cases — Part II"

Last week's Privilege Point explained that federal courts handling diversity cases must find the source or sources of the appropriate state's privilege law – sometimes a mixture of statute, common law and court rules. In determining which state's privilege law applies, federal courts should apply their host state's choice of law rule. That analysis often results in the host state's privilege law applying, but not always.

Unfortunately, federal courts sometimes seem to reflexively apply their host state's privilege law – rather than applying their host state's choice of law principles. For instance, in Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc. , the court properly held that "[t]he law of the forum state governs claims of attorney-client privilege in diversity cases." No. 2:17-cv-01515 KJM AC, 2019 U.S. Dist. LEXIS 40911, at *10 (E.D. Cal. Mar. 13, 2019). That governing "law" includes the forum state's choice of law principles -- which may lead the court to apply some other state's privilege law. But the court immediately followed that correct statement with this blunt conclusion: "[a]ccordingly, California law controls here" – meaning its privilege law. Id. A couple weeks later, another court undertook the proper analysis. In Argos Holdings Inc. v. Wilmington N.A., No. 18cv5773 (DLC), 2019 U.S. Dist. LEXIS 53104, at *5-6 (S.D.N.Y. Mar. 28, 2019), the court applied its host state's privilege law, but explained its reasoning: "because this is a diversity action regarding a claim for which New York law supplies the rule of decision."

Federal courts usually apply their host state's privilege law in diversity cases, but it can be difficult to tell if they have: (1) erroneously done so by short-circuiting the proper approach; or (2) correctly applied their host state's choice of law rules. Next week's Privilege Point will address another choice of law issue.

Case Date	Jurisdiction	State	Cite Checked
2019-03-13	Federal	CA

Comment:

key case

Chapter: 52.702

Case Name: Brown v. Nationwide Affinity Ins. Co. of America, 4:17-CV-04176-LLP, 2018 U.S. Dist. LEXIS 109115 (D.S.D. June 29, 2018)

("When a case rests on a federal court's grant of diversity jurisdiction, although state privilege law applies as to an assertion of attorney-client privilege, federal law governs the assertion of work product doctrine as a barrier to discovery.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-29	Federal	SD

Chapter: 52.702

Case Name: In re Mt. Hawley Insurance Co., No. 18-1401, 2018 U.S. App. LEXIS 17910 (4th Cir. App. June 19, 2018)

(certifying to the South Carolina Supreme Court an issue about that state's adoption of the Hearn "at issue" doctrine; "Because this is a diversity action involving claims for which South Carolina law provides the rule of decision, South Carolina's law of attorney-client privilege applies.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-19	Federal

Chapter: 52.702

Case Name: Nadeau v. Wealth Counsel LLC, No. 2:17-cv-00561-MCE-AC, 2018 U.S. Dist. LEXIS 100125 (E.D. Cal. June 14, 2018)

("The law of the forum state governs claims of attorney-client privilege in diversity cases. Fed. R. Evid. 501. Accordingly, California law controls here.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-14	Federal	CA

Chapter: 52.702

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; "Because this is a diversity action involving only state law claims, Maryland privilege law applies.")

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

Chapter: 52.702

Case Name: First Am. Title Ins. Co. v. Rice, Civ. A. No. 1:16cv219, 2017 U.S. Dist. LEXIS 203163 (N.D.W. Va. Dec. 11, 2017)

("In this diversity action, attorney-client privilege is governed by West Virginia law, Fed. R. Evid. 501.")

Case Date	Jurisdiction	State	Cite Checked
2017-12-11	Federal	WV

Chapter: 52.702

Case Name: Flanagan v. Nationwide Property and Casualty Ins. Co., Civ. A. No. 2:17-cv-33-KS-MTP, 2017 U.S. Dist. LEXIS 123204 (S.D. Ms. Aug. 4, 2017)

("Pursuant to Federal Rule of Evidence 501, state law determines the applicability of a privilege in diversity actions such as the case sub judice. Thus, Mississippi law governs this privilege issue. In Mississippi, the attorney-client privilege is defined as the client's right to refuse to disclose and prevent others from 'disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . .' Miss. R. Evid. 502(b).'")

Case Date	Jurisdiction	State	Cite Checked
2017-08-04	Federal	MS

Chapter: 52.702

Case Name: Edeball v. Bankers Standard Ins. Co., CV 14-7095 (JS) (AKT), 2017 U.S. Dist. LEXIS 110665 (E.D.N.Y. July 17, 2017)

("'In light of the fact that the Court's subject matter jurisdiction is predicated on diversity grounds (as opposed to federal question), the elements and scope of the attorney-client privilege are governed by New York law.'")

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

Chapter: 52.702

Case Name: Audi of Am., Inc. v. Bronsberg & Hughes Pontiac, Inc., Civ. No. 3:16-CV-2470, 2017 U.S. Dist. LEXIS 87740 (M.D. Pa. June 8, 2017)

("In diversity actions, such as the instant litigation, the law governing evidentiary privileges is supplied by the courts of the state in which the federal court sits.")

Case Date	Jurisdiction	State	Cite Checked
2017-06-08	Federal	PA

Chapter: 52.702

Case Name: Margulis v. The Hertz Corporation, Civ. A. No. 14-1209 (JMV), 2017 U.S. Dist. LEXIS 28311 (D.N.J. Feb. 28, 2017)

(holding that a corporate family was not "one" client, but that the United States law firm jointly represented a U.S. company and an overseas affiliate; "'When federal jurisdiction is based on diversity, courts are to decide issues of privilege based on state law. . . . Therefore, New Jersey privilege law applies in this case.'")

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

Chapter: 52.702

Case Name: Valenzuela v. Union Pacific Railroad Co., No. CV-15-01092-PHX-DGC, 2016 U.S. Dist. LEXIS 176640 (D. Ariz. Dec. 21, 2016)

("The Court need not engage in a choice-of-law analysis because Rule 502 resolves most of the issues and, where state law is relevant, the result would be the same under Arizona and California law.")

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

Chapter: 52.702

Case Name: Wellin v. Wellin, Nos. 2:13-cv-1831-, -3595-DCN, & 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

November 9, 2016 (PRIVILEGE POINT)

"Can Contracting Transactional Parties Select Favorable Privilege Law?: Part I"

Federal privilege common law governs federal question cases, but federal courts hearing diversity cases must choose the applicable attorney-client privilege law.

Many litigants do not even focus on the choice of law issue. In Greyhound Lines Inc. v. Viad Corp., the court noted that "[t]he parties do not address this choice of law issue." No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483, at *2-3 (D. Ariz. Sept. 8, 2016). The court eventually applied Arizona privilege law, because plaintiff cited Arizona law and defendant "does not cite contrary authority." Id. at *3. To be sure, in many cases the choice of laws does not make any difference. In Wellin v. Wellin, Nos. 2:13-cv-1831-, -3595-DCN, & 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016), the court extensively analyzed the choice of law issue — correctly using South Carolina's standard for that analysis. The court ultimately concluded that South Carolina privilege law applied, but then acknowledged that "this may be something of a hollow victory for [plaintiffs] as the court is not convinced there is any significant difference between New York and South Carolina [privilege] law." Id. at *32.

But in some situations there are huge differences between states' privilege laws. Next week's Privilege Point will discuss a noteworthy case where such a difference was dispositive, and in which the Southern District of New York gave a road map for corporations seeking to maximize their privilege protection.

Case Date	Jurisdiction	State	Cite Checked
2016-09-30	Federal	SC	B 11/16

Comment:

key case

Chapter: 52.702

**Case Name: Greyhound Lines Inc. v. Viad Corp., No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483, at *2-3 (D. Ariz. Sept. 8, 2016)**

November 9, 2016 (PRIVILEGE POINT)

"Can Contracting Transactional Parties Select Favorable Privilege Law?: Part I"

Federal privilege common law governs federal question cases, but federal courts hearing diversity cases must choose the applicable attorney-client privilege law.

Many litigants do not even focus on the choice of law issue. In Greyhound Lines Inc. v. Viad Corp., the court noted that "[t]he parties do not address this choice of law issue." No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483, at *2-3 (D. Ariz. Sept. 8, 2016). The court eventually applied Arizona privilege law, because plaintiff cited Arizona law and defendant "does not cite contrary authority." Id. at *3. To be sure, in many cases the choice of laws does not make any difference. In Wellin v. Wellin, Nos. 2:13-cv-1831-, -3595-DCN, & 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016), the court extensively analyzed the choice of law issue — correctly using South Carolina's standard for that analysis. The court ultimately concluded that South Carolina privilege law applied, but then acknowledged that "this may be something of a hollow victory for [plaintiffs] as the court is not convinced there is any significant difference between New York and South Carolina [privilege] law." Id. at *32.

But in some situations there are huge differences between states' privilege laws. Next week's Privilege Point will discuss a noteworthy case where such a difference was dispositive, and in which the Southern District of New York gave a road map for corporations seeking to maximize their privilege protection.

Case Date	Jurisdiction	State	Cite Checked
2016-09-08	Federal	AZ	B 11/16

Comment:

key case

Chapter: 52.702

Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)

("Louisiana evidence law governs privilege questions in this breach of contract action brought under Louisiana substantive law.")

Case Date	Jurisdiction	State	Cite Checked
2015-11-13	Federal	LA

Chapter: 52.702

Case Name: Lillieroos v. Starr Indemnity & Liability Co., Case No. CIV-12-1359-D, 2015 U.S. Dist. LEXIS 112988 (W.D. Okla. Aug. 26, 2015)

("Pursuant to Rule 501 of the Federal Rules of Evidence, in this diversity action, Oklahoma law governs the scope of that privilege.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-26	Federal	OK

Chapter: 52.702

Case Name: Kelley v. Lempesis, No. 13 CV 4922, 2015 U.S. Dist. LEXIS 103508 (N.D. Ill. Aug. 7, 2015)

("Because federal jurisdiction in this action is based upon diversity of citizenship, and Illinois supplies the rules of decision, Illinois law governs whether the attorney-client privilege applies.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-07	Federal	IL

Chapter: 52.702

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

("Because this is a diversity action, the elements of the attorney-client privilege are governed by West Virginia law.")

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

Chapter: 52.702

Case Name: Roberts Technology Group, Inc. v. Curwood, Inc., Civ. A. No. 14-5677, 2015 U.S. Dist. LEXIS 95779 (E.D. Pa. July 20, 2015)

("Sitting in diversity, this Court applies Pennsylvania's substantive law.")

Case Date	Jurisdiction	State	Cite Checked
2015-07-20	Federal	PA

Chapter: 52.702

Case Name: Gebremedhin v. American Family Mutual Insurance Company, Civ. A. No. 1:13-cv-02813-CMA-NYW, 2015 U.S. Dist. LEXIS 91948 (D. Colo. July 15, 2015)

("[B]ecause the court's subject matter jurisdiction is based on diversity, Colorado substantive law regarding the attorney-client privilege governs.")

Case Date	Jurisdiction	State	Cite Checked
2015-07-15	Federal	CO

Chapter: 52.702

Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)

("Since the Court's jurisdiction in this case is based on diversity . . . New York law governs the applicability of the attorney-client privilege")

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

Chapter: 52.702

Case Name: VC Management, LLC v. Reliastar Life Ins. Co., No. 14 CV 1385, 2015 U.S. Dist. LEXIS 51343 (N.D. Ill. April 20, 2015)

("Because this action is a diversity action arising out of a contractual dispute in which Illinois law supplies the rules of decision, the court must apply Illinois law to determine whether the attorney-client privilege applies to the subject emails.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-20	Federal	IL

Chapter: 52.702

Case Name: Lislewood Corp. v. AT&T Corp.; AT&T Corp. v. Marriott Int'l, Inc., No. 13 CV 1418, 2015 U.S. Dist. LEXIS 43089 (N.D. Ill. March 31, 2015)

("In a diversity action such as this one, the applicability and scope of attorney-client privilege is governed by the law of the forum state. . . . Illinois law regarding attorney-client privilege is identical to federal law in that they both require the court to determine whether legal advice of any kind was sought from an attorney in his or her capacity as an attorney, whether the material sought in discovery contains communication related to the purpose of seeking such legal advice, and whether such communication was made in confidence.")

Case Date	Jurisdiction	State	Cite Checked
2015-03-31	Federal	IL

Chapter: 52.702

Case Name: Slaven v. Great American Ins. Co., No. 13 C 1370, 2015 U.S. Dist. LEXIS 33591 (N.D. Ill. March 18, 2015)

("The threshold question is what law governs the present dispute. As jurisdiction is based on diversity, the parties agree that Illinois law applies to questions of attorney/client privilege.")

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

Chapter: 52.702

Case Name: Frickey v. Kobelco Stewart Bolling, Inc., Civ. A. No. 14-2 Sec. "I" (2), 2015 U.S. Dist. 27264 (E.D. La. March 5, 2015)

("Louisiana evidence law governs privilege questions in this action brought under Louisiana substantive law.")

Case Date	Jurisdiction	State	Cite Checked
2015-03-05	Federal	LA

Chapter: 52.702

Case Name: CSX Transportation, Inc. v. Chicago South Shore and South Bend Railroad, Cause No. 2:13-CV-285-RL-PRC, 2015 U.S. Dist. LEXIS 13090 (N.D. Ind. Feb. 4, 2015)

("CSX applied federal common law on the attorney-client privilege. However, Indiana state law governs the assertion of attorney-client privilege in this diversity action.")

Case Date	Jurisdiction	State	Cite Checked
2015-02-04	Federal	IN

Chapter: 52.702

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)

("Because this diversity suit arises under Oklahoma law, Oklahoma law governs the contours of the attorney-client privilege.")

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

Chapter: 52.702

Case Name: Hostetler v. Dillard, Civ. A. No. 3:13-cv-351-DCB-MTP, 2014 U.S. Dist. LEXIS 167374 (S.D. Miss. Dec. 3, 2014)

("Pursuant to Federal Rule of Evidence 501, state law determines the applicability of a privilege in diversity actions such as the case sub judice. Thus Mississippi law governs the attorney-client privilege issue.")

Case Date	Jurisdiction	State	Cite Checked
2014-12-03	Federal	MS

Chapter: 52.702

Case Name: Hayas v. GEICO General Ins. Co., Case No. 8:13-cv-1432-T-33AEP, 2014 U.S. Dist. LEXIS 149772 (M.D. Fla. Oct. 21, 2014)

(analyzing the common interest doctrine; "In this diversity action, Florida law guides the Court's application of the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-10-21	Federal	FL

Chapter: 52.702

**Case Name: Bank of America, N.A. v. Georgia Farm Bureau Mut. Inc. Co., No. 3:12-CV-155 (CAR), 2014 U.S. Dist. LEXIS 136914, at *10 (M.D. Ga. Sept. 29, 2014)**

("In a diversity action, issues of privileges are substantive and, thus, governed by state law. Therefore, Georgia law determines whether attorney-client privilege attaches to the information sought by BANA.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-29	Federal	GA

Chapter: 52.702

**Case Name: Berlinger v. Wells Fargo, N.A., Case No.: 2:11-cv-459-FtM-29CM, 2014 U.S. Dist. LEXIS 134643, at *7 (M.D. Fla. Sept. 24, 2014)**

("Florida law governs the application of the attorney-client privilege in diversity actions such as this that raise no federal question.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-24	Federal	FL

Chapter: 52.702

**Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *7 (C.D. Cal. Sept. 11, 2014)**

("The claims in the SAC are all state law causes of action and both the Plan (§12.14) and the EON (§10) provide that they are governed by California law, so the California law of privilege (Cal. Code. Evid. §950 et seq.) is applicable to the resolution of attorney-client privilege issues. (If any of the claims were governed by federal law, then federal law of privileges would govern the entire proceeding.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-11	Federal	CA

Chapter: 52.702

**Case Name: Skepnek v. Roper & Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10 (D. Kan. Sept. 4, 2014)**

November 12, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part II”

Last week's Privilege Point explained that federal common law privilege principles govern federal question cases, and that analyzing choice of law issues in bankruptcy matters can be more subtle.

Federal courts sitting in diversity should rely on their host jurisdiction's choice of law rules in selecting the proper privilege law. However, most federal courts inexplicably short-circuit this process — automatically applying the host jurisdiction's privilege law rather than its choice of law principles. See, e.g., Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013). Courts undertaking the proper analysis sometimes reach surprising results. In Skepnek v. Roper & Twardowsky, LLC, the court handling a diversity case properly looked to Kansas choice of law rules — almost apologetically explaining that Kansas follows the "older, minority approach" of the Restatement (First) of Conflict of Laws (1934). Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10 (D. Kan. Sept. 4, 2014). That approach "provides that '[t]he law of the forum determines the admissibility of a particular piece of evidence.'" Id. at *11 (quoting Restatement § 597). The court therefore applied Kansas privilege law principles to emails among "New Jersey clients communicating with their New Jersey law firm about a New Jersey lawsuit." Id. at *11-12. Not surprisingly, the court acknowledged that those New Jersey clients "may find it unusual that Kansas state law determines whether their e-mails are privileged." Id. at *12.

This type of counterintuitive result usually makes little difference, but in some cases Illinois state courts have relied on this analysis to apply that state's narrow "control group" privilege standard to communications that deserved privilege protection under the more corporate-friendly Upjohn standard of when and where the communications took place.

Case Date	Jurisdiction	State	Cite Checked
2014-09-04	Federal	KS

Comment:

key case

Chapter: 52.702

**Case Name: Ellis v. Arrowood Indem. Co., Civil Action No. 2:14-mc-00146, 2014 U.S. Dist. LEXIS 121913, at 9, 9 n.4 (S.D. W. Va. Sept. 2, 2014)**

("Therefore, Kentucky law governs the issue of attorney-client privilege. Rule 501 does not address horizontal choice of law issues -- that is, which state's law applies to the privilege issue. The Fourth Circuit has yet to provide a framework in determining this issue. . . . Courts have taken three different approaches: (1) assume that the law that applies the rule of the decision also provides the rule for privileges, (2) apply the privilege rules of the state in which the court sits, or (3) apply the conflict law doctrines of the state in which the court sits.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-02	Federal	WV

Chapter: 52.702

**Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794, at *5 (W.D. Va. Aug. 14, 2014)**

("State law governs an evidentiary privilege where, as here, the underlying claim or defense is governed by state law. See Fed. R. Evid. 501. The parties thus agree that Virginia law controls this privilege issue. Under Virginia law, confidential attorney-client communications are privileged from disclosure.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-14	Federal	VA	B 3/16

Chapter: 52.702

**Case Name: Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc. Case No. 13-23881-CIV-MARTINEZ/GOODMAN, 2014 U.S. Dist. LEXIS 80757, at *5 (S.D. Fla. June 13, 2014)**

(analyzing the common interest doctrine in the insurance context; adopting the Rhone-Poulenc approach; "This is a federal diversity action. As such, state law, and specifically Florida state law, governs attorney-client privilege issues, while federal law governs work product doctrine issues.")

Case Date	Jurisdiction	State	Cite Checked
2014-06-13	Federal	FL

Chapter: 52.702

Case Name: Amerisure Mutual Ins. Co. v. Crum & Forster Specialty Insurance Co., Case No. 2:12-cv-443-FtM-29CM, 2014 U.S. Dist. LEXIS 59265 (M.D. Fla. April 29, 2014)

("Florida law governs the application of the attorney-client privilege in diversity actions such as this that raise no federal question.")

Case Date	Jurisdiction	State	Cite Checked
2014-04-29	Federal	FL

Chapter: 52.702

Case Name: Kephart v. ABB, Inc., Civ. A. No. 2:12-668, 2014 U.S. Dist. 51411 (W.D. Pa. April 14, 2014)

("Under Rule 501 of the Federal Rules of Evidence, a district court exercising diversity jurisdiction applies the law of privilege from the state in which it sits.")

Case Date	Jurisdiction	State	Cite Checked
2014-04-14	Federal	PA

Chapter: 52.702

**Case Name: Galena St. Fund, L.P. v. Wells Fargo Bank, N.A., Civ. A. No. 12-cv-00587-BNB-KMT, 2014 U.S. Dist. LEXIS 31257, at *2 (D. Colo. Mar. 10, 2014)**

(analyzing a claim by plaintiff, an investor in mortgage-backed trusts; "'In a civil action based upon a state cause of action, state law controls the determination of privileges.'. . . Consequently, I look to Colorado state law in resolving the privilege issues raised in the Motion to Compel.")

Case Date	Jurisdiction	State	Cite Checked
2014-03-10	Federal	CO	B 8/14

Chapter: 52.702

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

("Illinois law governs the determination of attorney-client privilege waiver in this case.")

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

Chapter: 52.702

**Case Name: EMC Ins. Co. v. Zicolello, No. 4:13-cv-00825, 2014 U.S. Dist. LEXIS 4785, at *3-4 (M.D. Pa. Jan. 13, 2014)**

("The Court has jurisdiction over this matter on the basis that complete diversity exists between the parties, and courts sitting in diversity should apply the privilege rules of the forum state in determining whether attorney-client privilege applies to the communications at issue.")

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

Chapter: 52.702

**Case Name: Great-West Life & Annuity In. Co. v. Am. Economy Ins. Co., Case No. 2:11-cv-02082-APG-CWH, 2013 U.S. Dist. LEXIS 135750, at *23-24 (D. Nev. Sept. 23, 2013)**

("Before addressing whether there has been a waiver of privilege under Fed. R. Evid. 502, the Court must first determine whether the documents at issue are privileged in the first instance. . . . Because this is a diversity action which asserts state law claims and counterclaims, Nevada law governs the assertion of privilege.")

Case Date	Jurisdiction	State	Cite Checked
2013-09-23	Federal	NV	B 4/14

Chapter: 52.702

**Case Name: Sullivan v. Alcatel-Lucent USA, Inc., Case No. 12 C 7528, 2013 U.S. Dist. LEXIS 82407, at *4 (N.D. Ill. June 12, 2013)**

(applying the Illinois control group test, and analyzing each employee to determine if the employee was inside privilege protection; "Because diversity of citizenship is the basis for jurisdiction in this case, Illinois law also governs questions of attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2013-06-12	Federal	IL	B 4/14

Chapter: 52.702

**Case Name: Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., Nos. 12 Civ. 1579 & 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 41785, at *27 n.7 (S.D.N.Y. Mar. 25, 2013)**

("New York law governs attorney-client privilege in cases such as this, where state law provides the rule of decision. Fed. R. Evid. 501.")

Case Date	Jurisdiction	State	Cite Checked
2013-03-25	Federal	NY	B 3/14

Chapter: 52.702

**Case Name: Spread Enters., Inc. v. First Data Merch. Servs. Corp., No. CV 11-4743 (ADS) (ETB), 2013 U.S. Dist. LEXIS 22307, at *3 (E.D.N.Y. Feb. 19, 2013)**

("In diversity actions, such as this one, attorney-client privilege is governed by state law.")

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

Chapter: 52.702

**Case Name: Baird v. Dolgencorp, L.L.C., No. 4:11 CV 1589 DDN, 2013 U.S. Dist. LEXIS 17269, at *3 (E.D. Mo. Feb. 5, 2013)**

(finding that a plaintiff could depose the defendant's investigator, who had videotaped plaintiff as part of the investigation; "In this diversity case, the state law that supplies the rule of decision also supplies the law regarding privileges. . . . In this case, Missouri law governs the inquiry regarding the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2013-02-05	Federal	MO	B 2/14

Chapter: 52.702

Case Name: Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013)

November 12, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part II”

Last week's Privilege Point explained that federal common law privilege principles govern federal question cases, and that analyzing choice of law issues in bankruptcy matters can be more subtle.

Federal courts sitting in diversity should rely on their host jurisdiction's choice of law rules in selecting the proper privilege law. However, most federal courts inexplicably short-circuit this process — automatically applying the host jurisdiction's privilege law rather than its choice of law principles. See, e.g., Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013). Courts undertaking the proper analysis sometimes reach surprising results. In Skepnek v. Roper & Twardowsky, LLC, the court handling a diversity case properly looked to Kansas choice of law rules — almost apologetically explaining that Kansas follows the "older, minority approach" of the Restatement (First) of Conflict of Laws (1934). Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10 (D. Kan. Sept. 4, 2014). That approach "provides that '[t]he law of the forum determines the admissibility of a particular piece of evidence.'" Id. at *11 (quoting Restatement § 597). The court therefore applied Kansas privilege law principles to emails among "New Jersey clients communicating with their New Jersey law firm about a New Jersey lawsuit." Id. at *11-12. Not surprisingly, the court acknowledged that those New Jersey clients "may find it unusual that Kansas state law determines whether their e-mails are privileged." Id. at *12.

This type of counterintuitive result usually makes little difference, but in some cases Illinois state courts have relied on this analysis to apply that state's narrow "control group" privilege standard to communications that deserved privilege protection under the more corporate-friendly Upjohn standard of when and where the communications took place.

Case Date	Jurisdiction	State	Cite Checked
2013-01-28	Federal	PA

Comment:

key case

Chapter: 52.702

**Case Name: Zuniga v. Sw. Airlines, No. 11 CV 939, 2013 U.S. Dist. LEXIS 8524, at *9 (N.D. Ill. Jan. 22, 2013)**

("Because this lawsuit is a diversity action, the applicability and scope of the attorney-client privilege is governed by Illinois law.")

Case Date	Jurisdiction	State	Cite Checked
2013-01-22	Federal	IL	B 7/13

Chapter: 52.702

Case Name: Med. Assurance Co. v. Weinberger, 295 F.R.D. 176, 182 (N.D. Ind. 2013)

("When the basis of federal jurisdiction is diversity, the court applies the state law of attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2013-01-01	Federal	IN	B 2/14

Chapter: 52.702

Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 137 (D.D.C. 2013)

("Because this is a diversity case in which District of Columbia law applies,6 that law also governs the scope of the privilege and waiver." (footnote omitted))

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

Chapter: 52.702

**Case Name: Reid v. Neighborhood Assistance Corp. of Am., No. 11 C 8683, 2012 U.S. Dist. LEXIS 170006, at *12 (N.D. Ill. Nov. 30, 2012)**

("Because diversity of citizenship is the basis for jurisdiction in this case and the claims at issue arise under Illinois law, Illinois law also governs questions of attorney-client privilege.")

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

Chapter: 52.702

Case Name: Franklin United Methodist Home, Inc. v. Lancaster Pollard & Co., 909 F. Supp. 2d 1037, 1047 (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; "Because FUMH is asserting an Indiana state-law claim, it is Indiana's privilege law that governs.")

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

Chapter: 52.702

**Case Name: Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Civ. A. No. 2:07-CV-116, 2012 U.S. Dist. LEXIS 121830, at *5 (S.D. Ohio Aug. 28, 2012)**

("This is a diversity action; therefore, it is Ohio's law of privilege that applies.")

Case Date	Jurisdiction	State	Cite Checked
2012-08-28	Federal	OH	B 10/13

Chapter: 52.702

**Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *5 (W.D. Va. June 28, 2012)**

("Adair's remaining claims are Virginia state law claims before the court based on diversity of citizenship. Therefore, Virginia state law governs EQT's assertion of privilege. See FED. R. EVID. 501; Commercial Union Ins. Co. of Am. v. Talisman, Inc., 69 F.R.D. 490, 491 (E.D. Mo. 1975).")

Case Date	Jurisdiction	State	Cite Checked
2012-06-28	Federal	VA	B 3/16

Chapter: 52.702

**Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *3-4 (W.D. Va. Oct. 6, 2011)**

(in a diversity case, applying Virginia law without any choice of laws analysis; "Because this is a diversity case, the determination of whether the documents at issue are protected by the attorney client privilege is governed by Virginia law. See, e.g., Union County v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008) ('[In] a diversity case, the determination of whether attorney-client privilege applies is governed by state law.') (citing Fed. R. Evid. 501). As a general rule, '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure, even for the purpose of administering justice.' Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (Va. 1998) (internal citation and quotation marks omitted).")

Case Date	Jurisdiction	State	Cite Checked
2011-10-06	Federal	VA	B 3/16

Chapter: 52.702

**Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *14-15 (W.D. Va. Apr. 16, 2009)**

("In this diversity case, the court will apply Virginia state law to resolve attorney-client privilege issues. See, e.g., In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir. 2006) ('In a diversity case, the court applies federal law to resolve work product claims and state law to resolve attorney-client claims.') (citations omitted). In Virginia, '[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment "are privileged from disclosure, even for the purpose of administering justice."' Commonwealth of Virginia, et rel., etc. v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988) (quotations omitted).")

Case Date	Jurisdiction	State	Cite Checked
2009-04-16	Federal	VA

Chapter: 52.703

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("South Carolina has not yet established a choice of law doctrine applicable to privilege issues. Like the parties and the Special Master, this court was unable to unearth any decision addressing this issue in a South Carolina court.")

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

Chapter: 52.703

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

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

Comment:

key case

Chapter: 52.703

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

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

Comment:

key case

Chapter: 52.703

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

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

Comment:

key case

Chapter: 52.703

Case Name: Del Giudice v. Harlan, 15 Civ. 7330 (LTS) (JCF), 2016 U.S. Dist. LEXIS 129938 (S.D.N.Y. Sept. 22, 2016)

(applying Delaware law based on the pertinent LLC operating agreement choice of law provision, concluding that an LLC's directors were entitled to access privileged communications even though they were adverse to the corporation; "The parties engage in a half-hearted dispute about what state's law should determine whether the attorney-client privilege applies to the documents at issue. The plaintiffs contend that the Court may apply either Delaware law or New York law because they are materially indistinguishable. . . . The defendants insist that New York law and Delaware law are not congruent and that the proper choice-of-law analysis compels application of New York law."; "First, it appears that the Delaware law differs from New York law in material ways. The plaintiffs rely on Kirby v. Kirby, 1987 Del. Ch. LEXIS 463, 1987 WL 14862 (Del. Ch. July 29, 1987), and its progeny to support their position that the directors of Rockland are entitled to access Bracewell's advice. . . . The defendants point out, however, that some New York courts have disagreed with that line of cases. . . . In light of these cases, I cannot say with authority that the law of the two states is materially identical. A choice-of-law analysis is therefore necessary.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-22	Federal	NY

Comment:

key case

Chapter: 52.703

Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)

("Federal Rule of Evidence 501 provides that 'in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.' Fed. R. Evid. 501. This case includes federal and state claims . . . but the parties do not address whether federal or state privilege law should apply. When state law does apply, Rule 501 'does not tell us which state law the forum state should apply.' KL Grp.v. Case, Kay & Lynch, 829 F.2d 909, 918 (9th Cir. 1987). Commentators have suggested several methods of resolving this choice-of-law issue: (1) use the privilege law of the state whose substantive law provides the rule of decision; (2) apply the privilege law of the state in which the federal court sits; or (3) apply the choice-of-law doctrine of the state in which the federal court sits. Id. (citing 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure § 5435, at 865-69 (1980); 2 Weinstein's Federal Evidence § 501[02] (1986)). The parties do not address this choice of law issue either."; "Greyhound relies on an Arizona statute that defines the attorney-client privilege for corporations, A.R.S. § 12-2234. . . . Viad does object to the use of this statute, and does not cite contrary authority. . . . Because Greyhound is the party challenging Viad's assertion of the privilege, and Viad does not object to Greyhound's legal arguments, the Court will apply the Arizona statute and relevant cases.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-08	Federal	AZ

Comment:

key case

Chapter: 52.703

Case Name: Greyhound Lines Incorporated v. Viad Corporation, No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483 (D. Ariz. Sept. 8, 2016)

("Federal Rule of Evidence 501 provides that 'in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.' Fed. R. Evid. 501. This case includes federal and state claims . . . but the parties do not address whether federal or state privilege law should apply. When state law does apply, Rule 501 'does not tell us which state law the forum state should apply.' KL Grp.v. Case, Kay & Lynch, 829 F.2d 909, 918 (9th Cir. 1987). Commentators have suggested several methods of resolving this choice-of-law issue: (1) use the privilege law of the state whose substantive law provides the rule of decision; (2) apply the privilege law of the state in which the federal court sits; or (3) apply the choice-of-law doctrine of the state in which the federal court sits. Id. (citing 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure § 5435, at 865-69 (1980); 2 Weinstein's Federal Evidence § 501[02] (1986)). The parties do not address this choice of law issue either."; "Greyhound relies on an Arizona statute that defines the attorney-client privilege for corporations, A.R.S. § 12-2234. . . . Viad does object to the use of this statute, and does not cite contrary authority. . . . Because Greyhound is the party challenging Viad's assertion of the privilege, and Viad does not object to Greyhound's legal arguments, the Court will apply the Arizona statute and relevant cases.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-08	Federal	AZ

Comment:

key case

Chapter: 52.703

**Case Name: In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liability Litig., Master File No. 1:00-1898, MDL 1358 (SAS), 2016 U.S. Dist. LEXIS 46294, at 13, 14-15 (S.D.N.Y. Apr. 4, 2016)**

("Under Federal Rules of Evidence 501, 'in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.' I have previously held, and the parties do not dispute, that Pennsylvania choice of law rules apply to this case. The only dispute is whether Pennsylvania choice of law rules direct this Court to apply New York or Pennsylvania privilege law." (footnote omitted); "I find that New York law applies. Under Pennsylvania choice of law rules, a court must conduct an interest analysis. This requires a court to first 'determin[e] whether the laws of the competing states actually differ.' 'If a true conflict exists, the Court must then determine which state has the 'greater interest in the application of its law.' Here, the parties agree that New York and Pennsylvania attorney-client privilege law differ. The only question is which state has the greater interest in the application of its law." (citations omitted); "New York has the greater interest. Lewis [LAC's general counsel] and the two LAC [defendant] executives were located in New York, and the legal work they discussed occurred in New York. The communication lacks a 'direct and explicit connection' to Pennsylvania. Although the Commonwealth seeks to use the emails as evidence in the present litigation, a post hoc connection to litigation brought in Pennsylvania unrelated to the substance of the communication does not implicate the policy justifying the attorney-client privilege as the interest analysis demands." (footnote and citation omitted))

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

Chapter: 52.703

Case Name: Wellin v. Wellin, C.A. NO. 2:13-CV-1831-DCN, C.A. NO. 2:13-CV-3595-DCN, C.A. NO. 2:14-CV-4067-DCN, 2016 U.S. Dist. LEXIS 5364 (D.S.C. Jan. 8, 2016)

("Because these cases are diversity cases, the availability of an evidentiary privilege is governed by the law of the forum state."; "South Carolina is both the forum of the pending actions and the Motion for Protective Order. Therefore, a Federal Court applies the choice of law rules prevailing in South Carolina."; "As to issues related to the Wellin Family 2009 Irrevocable Trust, South Carolina applies the law as it is found in South Dakota because the Trust contains a choice of law provision specifying that South Dakota law applies."; finding that a litigant did not waive work product protection for disclosing work product to a friend; "[T]he disclosure was made to a person who has testified he was a close friend to the Plaintiff, Keith Wellin, and was a trustee of Hamilton College. Hamilton College named him as a witness in the litigation, albeit in his individual capacity. Hamilton College is a beneficiary under Mr. Wellin's last will and related estate planning documents directly involved in this litigation, and is in that sense aligned with the Plaintiff, opposing the efforts of the Defendants to have Keith Wellin's last will and related documents declared void on the grounds of undue influence and incapacity. Furthermore, Mr. Kennedy is and has been a client of Mr. Zixinis, one of Keith Wellin's attorneys retained in the course of this litigation, for over fifteen years."; "Under these circumstances, I conclude there was no waiver of the work product privilege for these communications, and they are entitled to protection from disclosure.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-08	Federal	SC

Comment:

key case

Chapter: 52.703

Case Name: Ingenco Holdings, LLC v. Ace American Insurance Co., Case No. C13-543RAJ, 2014 U.S. Dist. LEXIS 170357 (W.D. Wash. Dec. 8, 2015)

(analyzing choice of laws issues, but not only always determining whether Virginia or Washington law applied; "The parties' attempts to answer these questions begin in the right place by noting that in a diversity case like this one, the court applies the choice-of-law rules of the forum state.")

Case Date	Jurisdiction	State	Cite Checked
2015-12-08	Federal	WA

Chapter: 52.703

Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)

("[T]he Court must therefore apply choice-of-law principles to determine what law to apply here. Id. Consistent with Klaxon, the Court will apply the choice-of-law analysis of the District of Columbia.")

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

Chapter: 52.703

Case Name: Alliance Industries Ltd. v. A-1 Specialized Svcs. & Supplies, Inc., Civ. A. No. 13-2510, 2015 U.S. Dist. LEXIS 45983 (E.D. Pa. April 8, 2015)

(analyzing privilege issues in connection with two closely held corporations owned by two brothers in varying percentages; "To determine which law governs, the Court refers to the choice-of-law rules in the jurisdiction in which it sits, Pennsylvania."; "To the extent that New Jersey law could apply because Suresh and Kumar are New Jersey residents, the Court will apply Pennsylvania law because there is no conflict between Pennsylvania and New Jersey privilege law."; "Because Plaintiffs have not met their burden of showing that Gibraltar law applies and Mr. Phillips's statement indicates there are no significant differences between Gibraltar law and Pennsylvania law on the attorney-client privilege issue, the Court will apply Pennsylvania law to assertions of privilege regarding Mr. Massias.")

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

Chapter: 52.703

Case Name: Cohen v. Cohen, 09 Civ. 10230 (LAP), 2015 U.S. Dist. LEXIS 21319 (S.D.N.Y. Jan. 30, 2015)

("It is undisputed that this Court sits in diversity and must accordingly apply New York law in considering whether communications with Ms. Napp are protected by attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2015-01-30	Federal	NY

Chapter: 52.703

Case Name: Winthrop Resources Corp. v. CommScope, Inc., Civ. A. No. 5:11-CV-172, 2014 U.S. Dist. LEXIS 158413 (W.D.N.C. Nov. 7, 2014)

("The Fourth Circuit states that 'the availability of an evidentiary privilege is governed by the law of the forum state.'. . . Therefore, the Court will apply North Carolina privilege law to this matter."; "'Courts look to the conflict of law provisions of the forum state to determine which privilege to apply. . . . North Carolina utilizes the traditional conflict of law rules. '[M]atters affecting the substantial rights of the parties are determined by lex loci, the law of the situs of the claim, and remedial or procedural rights are determined by lex fori, the law of the forum.'. . . In North Carolina, '[t]he law of the forum governs the admissibility of evidence.'. . . Therefore, the North Carolina attorney-client privilege applies. . . . This means Fourth Circuit law interpreting the federal law of privilege is not binding.'")

Case Date	Jurisdiction	State	Cite Checked
2014-11-07	Federal	NC

Chapter: 52.703

**Case Name: Skepnek v. Roper & Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10 (D. Kan. Sept. 4, 2014)**

November 12, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part II”

Last week's Privilege Point explained that federal common law privilege principles govern federal question cases, and that analyzing choice of law issues in bankruptcy matters can be more subtle.

Federal courts sitting in diversity should rely on their host jurisdiction's choice of law rules in selecting the proper privilege law. However, most federal courts inexplicably short-circuit this process — automatically applying the host jurisdiction's privilege law rather than its choice of law principles. See, e.g., Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013). Courts undertaking the proper analysis sometimes reach surprising results. In Skepnek v. Roper & Twardowsky, LLC, the court handling a diversity case properly looked to Kansas choice of law rules — almost apologetically explaining that Kansas follows the "older, minority approach" of the Restatement (First) of Conflict of Laws (1934). Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10 (D. Kan. Sept. 4, 2014). That approach "provides that '[t]he law of the forum determines the admissibility of a particular piece of evidence.'" Id. at *11 (quoting Restatement § 597). The court therefore applied Kansas privilege law principles to emails among "New Jersey clients communicating with their New Jersey law firm about a New Jersey lawsuit." Id. at *11-12. Not surprisingly, the court acknowledged that those New Jersey clients "may find it unusual that Kansas state law determines whether their e-mails are privileged." Id. at *12.

This type of counterintuitive result usually makes little difference, but in some cases Illinois state courts have relied on this analysis to apply that state's narrow "control group" privilege standard to communications that deserved privilege protection under the more corporate-friendly Upjohn standard of when and where the communications took place.

Case Date	Jurisdiction	State	Cite Checked
2014-09-04	Federal	KS

Comment:

key case

Chapter: 52.703

**Case Name: Skepnek v. Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10-12 (D. Kan. Sept. 4, 2014)**

("The Court first conducts a choice-of-law analysis to determine the appropriate attorney-client privilege law to apply to this dispute. Defendants argue that because the e-mails at issue were written by New Jersey clients to their New Jersey lawyers about a New Jersey lawsuit, New Jersey attorney-client privilege law should apply. While Judge O'Hara does not appear to have made an explicit choice-of-law selection, he seems to have applied federal common law of attorney-client privilege."; "The Court has subject matter jurisdiction over this lawsuit based on diversity of citizenship, and plaintiffs' Complaint brings claims for breach of contract, breach of fiduciary duty, and quantum meruit. Because state law provides the rule of decision for all of plaintiffs' claims, state law governs the application of the attorney-client privilege here. Fed. R. Evid. 501. When Rule 501 requires application of state privilege law and there are factual connections to more than one state, federal courts engage in a choice-of-law analysis and employ the choice-of-law principles of the forum state. . . . State courts generally use one of two basic choice-of-law approaches. The older, minority approach, is set forth by the Restatement (First) of Conflict of Laws and focuses on the location of a particular event. . . . The more modern approach follows the Restatement (Second) of Conflict of Laws, which directs courts to identify and apply the law of the most interested state. . . . This 'interests' analysis appears to be gaining increasing acceptance. . . . Kansas is among those states that still follow the Restatement (First) of Conflict of Laws. . . . Thus, while there is no Kansas case directly on point, the Court concludes that the Kansas Supreme Court would apply Kansas state law to determine the applicability of the attorney-client privilege to the client e-mails at issue here. The Court is aware that New Jersey clients communicating with their New Jersey law firm about a New Jersey lawsuit may find it unusual that Kansas state law determines whether their e-mails are privileged. However, as discussed, the Court is bound to follow the privilege law it believes the Kansas Supreme Court would apply. Thus, Judge O'Hara did not clearly err by declining to apply New Jersey law.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-04	Federal	KS

Comment:

key case

Chapter: 52.703

Case Name: Moon Mountain Farms, LLC v. Rural Community Ins. Co., Case No. 14-mc-80099-SC, 2014 U.S. Dist. LEXIS 94650 (N.D. Cal. July 10, 2014)

("'Federal Rule of Evidence 501 specifies that state law privileges apply when state law supplies the rule of decision, but 'the rule does not specify which state law should be applied.' Wolpin v. Philip Morris Inc., 189 F.R.D. 418, 423 (C.D. Cal. 1999). Thus the process of determining which state's privilege law to apply begins with Arizona's choice of law rules. See id. (applying California choice of law rules to determine which state's privilege law applied, where California law supplied the rule of decision). Arizona follows the Restatement (Second) of Conflict of Laws. . . . Whether communications privileged under California law, but not under Arizona law, would be inadmissible in the District of Arizona would then depend upon whether "some special reason" exists not to give effect to the Arizona law. . . .'")

Case Date	Jurisdiction	State	Cite Checked
2014-07-10	Federal	CA

Comment:

key case

Chapter: 52.703

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)

("'District Judge Block has held that under New York's choice-of-law rules, Nevada law governs Plaintiffs' substantive claims against Defendants. . . . ('Under New York's choice-of-law rules, the law of Nevada Major's state of incorporation governs the claim.'). Based on the submissions on this privilege issue, the Parties are in apparent agreement that Second Circuit precedent and its progeny govern this privilege dispute insofar as this is the law that both Parties present to the Court in support of their positions. . . . No Party requested the application of Nevada law.'")

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

Chapter: 52.703

Case Name: United States Surety Co. v. Stevens Family Ltd. P’ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438 (N.D. Ill. Mar. 7, 2014)

May 28, 2014 (PRIVILEGE POINT)

"Federal Courts Undertake Choice of Law Analyses"

Under Fed. R. Evid. 501, federal courts sitting in diversity apply their host jurisdiction's choice of law principles in determining which state's privilege law applies. This contrasts with federal courts' application of (1) federal common law of privilege in federal question cases, and (2) the Fed. R. Civ. P. 26(b)(3) work product rule when addressing work product claims.

Some courts seem to short-circuit the process – simply applying their host state's privilege law without undertaking or even mentioning a choice of law analysis. Other courts properly recognize that "[t]o determine which state law is applicable, 'the federal court applies the choice-of-law rules of the forum state,'" and carefully analyze its host state's principles. Swortwood v. Tenedora de Empresas, S.A. de C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *28 (S.D. Cal. Mar. 6, 2014) (citation omitted). The Swortwood court dealt with a privilege claim by a company incorporated in Delaware but with its principal place of business in California. The court analyzed those two states' varying common interest doctrine rules – ultimately concluding that California law should apply because that state's "interests would be more significantly impaired if its privilege law was not applied in the instant matter." Id. at *35. Some courts apply the law selected as controlling in transactional parties' documents. In United States Surety Co. v. Stevens Family Ltd. P’ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438 (N.D. Ill. Mar. 7, 2014), the court relied on Fed. R. Evid. 501 in applying California's privilege law, because the parties had chosen California law to govern their contract.

Most states generally follow the same basic attorney-client privilege principles, but lawyers should keep in mind that (1) federal courts might look to states other than their host state for the applicable privilege law, and (2) clients may have the power to choose the applicable privilege law in their contracts.

Case Date	Jurisdiction	State	Cite Checked
2014-03-07	Federal	IL

Comment:

key case

Chapter: 52.703

**Case Name: Swortwood v. Tenedora de Empresas, S.A. de C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *28 (S.D. Cal. Mar. 6, 2014)**

May 28, 2014 (PRIVILEGE POINT)

"Federal Courts Undertake Choice of Law Analyses"

Under Fed. R. Evid. 501, federal courts sitting in diversity apply their host jurisdiction's choice of law principles in determining which state's privilege law applies. This contrasts with federal courts' application of (1) federal common law of privilege in federal question cases, and (2) the Fed. R. Civ. P. 26(b)(3) work product rule when addressing work product claims.

Some courts seem to short-circuit the process – simply applying their host state's privilege law without undertaking or even mentioning a choice of law analysis. Other courts properly recognize that "[t]o determine which state law is applicable, 'the federal court applies the choice-of-law rules of the forum state,'" and carefully analyze its host state's principles. Swortwood v. Tenedora de Empresas, S.A. de C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *28 (S.D. Cal. Mar. 6, 2014) (citation omitted). The Swortwood court dealt with a privilege claim by a company incorporated in Delaware but with its principal place of business in California. The court analyzed those two states' varying common interest doctrine rules – ultimately concluding that California law should apply because that state's "interests would be more significantly impaired if its privilege law was not applied in the instant matter." Id. at *35. Some courts apply the law selected as controlling in transactional parties' documents. In United States Surety Co. v. Stevens Family Ltd. P’ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438 (N.D. Ill. Mar. 7, 2014), the court relied on Fed. R. Evid. 501 in applying California's privilege law, because the parties had chosen California law to govern their contract.

Most states generally follow the same basic attorney-client privilege principles, but lawyers should keep in mind that (1) federal courts might look to states other than their host state for the applicable privilege law, and (2) clients may have the power to choose the applicable privilege law in their contracts.

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

Comment:

key case

Chapter: 52.703

**Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at 28, 33-35 (S.D. Cal. Mar. 6, 2014)**

(analyzing a claim by plaintiffs, who sold their stock in the Neology to Smarttrac, after which the defendant eliminated plaintiffs' liquidation preferences; "In an action brought to federal court under diversity jurisdiction, the attorney-client privilege is governed by the state law otherwise applicable to the case. . . . To determine which state law is applicable, 'the federal court applies the choice-of-law rules of the forum state.'"; explaining Delaware and California have different fiduciary exception rules; "It is clear that there is a difference of law and a true conflict between the states. Accordingly, this Court must apply the law of the state whose interests would be more significantly impaired if its laws were not applied. . . . Here, the Court finds that California has the greater interest in having its attorney-client privilege law applied. While it is true that Neology is incorporated in Delaware, its principal place of business is in California and the Court assumes that at least a portions of the communications at issue took place in or were sent to or from California. . . . In addition, the subpoena sent by Plaintiffs requesting the documents at issue was served in California . . . and the instant suit was filed in California. . . . Neology's legal counsel, John Cleary, also is located in San Diego, California. . . . The Court therefore concludes that California's interests would be more significantly impaired if its privilege law was not applied in the instant matter.")

Case Date	Jurisdiction	State	Cite Checked
2014-03-06	Federal	CA	B 8/14

Chapter: 52.703

**Case Name: Melchior v. Hilite Int'l, Inc., Case No. 13-50177, 2013 U.S. Dist. LEXIS 71393, at *4 (E.D. Mich. May 21, 2013)**

(analyzing proposed discovery in a patent case pending in the Northern District of Texas; applying Michigan law because the third party from which discovery was sought was located in Michigan; "Because Hilite seeks to compel emails from BorgWarner, a Michigan company, Michigan law applies.")

Case Date	Jurisdiction	State	Cite Checked
2013-05-21	Federal	MI	B 3/14

Chapter: 52.703

Case Name: Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013)

November 12, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part II”

Last week's Privilege Point explained that federal common law privilege principles govern federal question cases, and that analyzing choice of law issues in bankruptcy matters can be more subtle.

Federal courts sitting in diversity should rely on their host jurisdiction's choice of law rules in selecting the proper privilege law. However, most federal courts inexplicably short-circuit this process — automatically applying the host jurisdiction's privilege law rather than its choice of law principles. See, e.g., Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013). Courts undertaking the proper analysis sometimes reach surprising results. In Skepnek v. Roper & Twardowsky, LLC, the court handling a diversity case properly looked to Kansas choice of law rules — almost apologetically explaining that Kansas follows the "older, minority approach" of the Restatement (First) of Conflict of Laws (1934). Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10 (D. Kan. Sept. 4, 2014). That approach "provides that '[t]he law of the forum determines the admissibility of a particular piece of evidence.'" Id. at *11 (quoting Restatement § 597). The court therefore applied Kansas privilege law principles to emails among "New Jersey clients communicating with their New Jersey law firm about a New Jersey lawsuit." Id. at *11-12. Not surprisingly, the court acknowledged that those New Jersey clients "may find it unusual that Kansas state law determines whether their e-mails are privileged." Id. at *12.

This type of counterintuitive result usually makes little difference, but in some cases Illinois state courts have relied on this analysis to apply that state's narrow "control group" privilege standard to communications that deserved privilege protection under the more corporate-friendly Upjohn standard of when and where the communications took place.

Case Date	Jurisdiction	State	Cite Checked
2013-01-28	Federal	PA

Comment:

key case

Chapter: 52.703

Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 625 (D. Nev. 2013)

("Plaintiff asserts that in accordance with Federal Rule of Evidence 501, Nevada law is applicable. . . . Bard agrees, but suggests that because most of the communications at issue were made by attorneys in New Jersey to employees of Bard in Arizona, it is possible that Arizona or New Jersey law should govern this dispute. . . . Nonetheless, Bard recognizes that under New Jersey, Arizona, and Nevada law, the basic substantive elements of the attorney-client privilege are the same; therefore, Nevada law should apply."; "Federal courts sitting in diversity apply the choice of law rule of the state in which it sits. . . . Applying Nevada's choice of law principles, and with no conflict among the laws of these states, Nevada law should apply.")

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

Chapter: 52.703

**Case Name: C.B. Fleet Co., Inc. v. Colony Specialty Ins. Co., Case No. 1:11-CV-0375, 2012 U.S. Dist. LEXIS 180950, at *5-6 (N.D. Ohio Dec. 21, 2012)**

(analyzing conflict of law issues; "A federal court sitting in diversity jurisdiction applies 'the choice of law rules of the state in which it sits.'. . . Therefore, Ohio's choice-of-law rules determine which law controls Colony's assertion of attorney-client privilege. Ohio has adopted the Restatement (Second) of Conflicts of Law . . . so Ohio courts apply Restatement §139 to issues regarding attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2012-12-21	Federal	OH	B 9/13

Chapter: 52.703

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

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

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

Chapter: 52.703

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

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

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

Chapter: 52.704

**Case Name: Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., No. 2:17-cv-01515 KJM AC, 2019 U.S. Dist. LEXIS 40911, at *10 (E.D. Cal. Mar. 13, 2019)**

June 12, 2019 (PRIVILEGE POINTS)

"Source And Choice Of Privilege Law In Diversity Cases — Part II"

Last week's Privilege Point explained that federal courts handling diversity cases must find the source or sources of the appropriate state's privilege law – sometimes a mixture of statute, common law and court rules. In determining which state's privilege law applies, federal courts should apply their host state's choice of law rule. That analysis often results in the host state's privilege law applying, but not always.

Unfortunately, federal courts sometimes seem to reflexively apply their host state's privilege law – rather than applying their host state's choice of law principles. For instance, in Aerojet Rocketdyne, Inc. v. Global Aerospace, Inc., the court properly held that "[t]he law of the forum state governs claims of attorney-client privilege in diversity cases." No. 2:17-cv-01515 KJM AC, 2019 U.S. Dist. LEXIS 40911, at *10 (E.D. Cal. Mar. 13, 2019). That governing "law" includes the forum state's choice of law principles -- which may lead the court to apply some other state's privilege law. But the court immediately followed that correct statement with this blunt conclusion: "[a]ccordingly, California law controls here" – meaning its privilege law. Id. A couple weeks later, another court undertook the proper analysis. In Argos Holdings Inc. v. Wilmington N.A., No. 18cv5773 (DLC), 2019 U.S. Dist. LEXIS 53104, at *5-6 (S.D.N.Y. Mar. 28, 2019), the court applied its host state's privilege law, but explained its reasoning: "because this is a diversity action regarding a claim for which New York law supplies the rule of decision."

Federal courts usually apply their host state's privilege law in diversity cases, but it can be difficult to tell if they have: (1) erroneously done so by short-circuiting the proper approach; or (2) correctly applied their host state's choice of law rules. Next week's Privilege Point will address another choice of law issue.

Case Date	Jurisdiction	State	Cite Checked
2019-03-13	Federal	CA

Comment:

key case

Chapter: 52.704

Case Name: Terrell v. Memphis Zoo, Inc., 17-cv-2928-JPM-tmp, 2018 U.S. Dist. LEXIS 112385 (W.D. Tenn. July 3, 2018)

(analyzing privilege and work product issues related to the plaintiff's allegation of employment discrimination; "A federal court refers to state law to resolve issues of attorney-client privilege relating to state law claims. See Fed. R. Evid. 501. Currently, all of the claims in this case are state law claims, and neither party appears to contest the applicability of Tennessee law to those claims. The court thus looks to the Tennessee law of attorney-client privilege. However, this is done with the understanding that 'the courts of Tennessee are often guided by state and federal common law when fashioning the contours of the attorney-client privilege.' See Royal Surplus Lines Ins. Co. v. Sofamor Danek Group, Inc., 190 F.R.D. 463, 484 (W.D. Tenn. 1999).")

Case Date	Jurisdiction	State	Cite Checked
2018-07-03	Federal	TN

Chapter: 52.704

Case Name: In re Mt. Hawley Insurance Co., No. 18-1401, 2018 U.S. App. LEXIS 17910 (4th Cir. App. June 19, 2018)

(certifying to the South Carolina Supreme Court an issue about that state's adoption of the Hearn "at issue" doctrine; "Because this is a diversity action involving claims for which South Carolina law provides the rule of decision, South Carolina's law of attorney-client privilege applies.")

Case Date	Jurisdiction	State	Cite Checked
2018-06-19	Federal

Chapter: 52.704

Case Name: Dansko Holdings, Inc. v. Benefit Trust Co., Civ. A. No. 16-324, 2017 U.S. Dist. LEXIS 192230 (E.D. Pa. Nov. 21, 2017)

("'Pennsylvania privilege law applies because Pennsylvania tort law governs the fraud in the inducement claim. . . . The parties make no argument regarding choice of law with respect to the attorney client privilege; however, the Court notes that the only law cited by the parties on this issue.'")

Case Date	Jurisdiction	State	Cite Checked
2017-11-21	Federal	PA

Chapter: 52.704

Case Name: Mooney v. Diversified Bus. Communs., 2017 Mass. Super. LEXIS 133, 34 Mass L. Rep. 352, 2017 WL 4172592, Dkt. No. SUCV2016-3726-BLS2 (Mass. Super. July 24, 2017)

(applying Massachusetts rather than Delaware law in concluding that a company's former CEO could be denied access to privileged communications that were available to him when he was at the company; "Because there is indeed a conflict between Massachusetts and Delaware law in connection with the present discovery dispute, the Court must determine which law applies. Massachusetts appellate courts have not directly addressed which standard must be used to resolve a conflict of laws question with respect to privilege in the corporate context. The plaintiffs argue that the analysis should be undertaken using the so-called 'internal affairs doctrine,' a choice-of-law principle articulated in the Restatement (Second) of Conflict of Laws §302 which says that the law of the state in which a corporation is incorporated (here Delaware) should be applied to issues concerning relationships among or between the corporation and its officers, directors and shareholders. Certainly, Massachusetts has long recognized the internal affairs doctrine. . . . However, no Massachusetts court has employed the doctrine in connection with a privilege issue. Moreover, the purposes behind the doctrine do not seem to be directly applicable where the issue concerns attorney-client communications."; "This Court . . . finds it significant that the Restatement (Second) of Conflict of Laws provides a conflict of laws rule specifically for privileged communications, directing courts to apply the law with 'the most significant relationship' to the communications. See Restatement (Second) of Conflict of Laws §139. But, Section 139 makes no reference at all to Section 302 of the Restatement describing the internal affairs doctrine. Such a reference would be expected if the internal affairs doctrine were to be an exception to the general rule articulated in Section 139."; "Applying the test outlined in Section 139 of the Restatement (a section embraced by the SJC in other contexts), this Court concludes that Massachusetts has the most significant relationship to the issue at hand. Pri-Med is based in Massaschusetts and directs substantially all its operations from the state. Pri-Med made and received the privileged communications in Massachusetts. Those communications reflected legal advice sought and rendered in the state by local attorneys. They were made in connection with disputes that arose in the state. Massachusetts law thus applies to the question of whether Mooney as a former director of Pri-Med has access to communications between and among Pri-Med and its corporate counsel. If Massachusetts law is as this Court has construed it, Pri-Med is not prevented from asserting a privilege as to Mooney.")

Case Date	Jurisdiction	State	Cite Checked
2017-07-24	State	MA

Chapter: 52.704

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

("The parties cite and apply federal privilege law to the instant dispute. Because no federal claim remains in this litigation, however, the court questions the applicability of federal law. When jurisdiction is based on diversity of citizenship, 'state law supplies the rule of decision on privilege' by operation of Fed. R. Evid. 501. 'Since this is a multidistrict proceeding, the question arises as to what state's law of privilege the court should apply.' Because the parties seem to agree that federal common-law standards should govern the privilege determinations in this case, because 'no real conflict between federal and Kansas law regarding the attorney-client privilege [exists],' and because 'the Kansas statute concerning the attorney-client privilege and its exceptions is typical of the laws of other jurisdictions,' the court will apply federal law in reaching its determinations on privilege issues.")

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

Chapter: 52.704

Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)

("Thus, state law governs OneBeacon's claim of attorney-client privilege in this diversity action. . . . Under Ohio law, communications a client makes to his or her attorney 'with a view to professional advice or assistance are privileged,' and the court will not require those communications to be divulged by the attorney without the client's consent.")

Case Date	Jurisdiction	State	Cite Checked
2017-04-11	Federal	OH

Chapter: 52.704

Case Name: Walker v. City of Pocatello, Case No. 4:15-cv-00498-BLW, 2017 U.S. Dist. LEXIS 46566 (D. Idaho March 27, 2017)

("State law governs privilege claims in this case. Fed.R.Evid. 501. Here, Idaho supplies the rule of decision, so Idaho privilege law applies. Id. Under Idaho law, the party wishing to withhold documents as privileged has the burden of establishing the privileged character of communications.")

Case Date	Jurisdiction	State	Cite Checked
2017-03-27	Federal	ID

Chapter: 52.704

Case Name: Turner Construction Co. v. TIG Ins. Co., Civ. A. No. 1:15CV83 (STAMP), 2017 U.S. Dist. LEXIS 20655 (N.D.W. Va. Feb. 14, 2017)

("'Because West Virginia's substantive contract law applies to DSM's claims in this civil action, West Virginia law governs privilege claims. Fed. R. Evid. 501.'")

Case Date	Jurisdiction	State	Cite Checked
2017-02-14	Federal	WV

Chapter: 52.704

Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)

("The parties agree that California law governs the attorney-client privilege issues now before the Court.")

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

Chapter: 52.704

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

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

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

Comment:

key case

Chapter: 52.704

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

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

Case Date	Jurisdiction	State	Cite Checked
2016-11-08	State	ME

Comment:

key case

Chapter: 52.704

Case Name: Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, A.3d (11/8/2016)

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

Case Date	Jurisdiction	State	Cite Checked
2016-11-08	Federal	ME

Comment:

key case

Chapter: 52.704

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

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

Comment:

key case

Chapter: 52.704

Case Name: Selective Ins. Co. of Am. v. Smiley Body Shop, Inc., No. 1:16-cv-00062-JMS-MJD, 2016 U.S. Dist. LEXIS 148649 (S.D. Ind. Oct. 27, 2016)

("The Federal Rules of Civil Procedure limit discovery to nonprivileged materials that are relevant and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). In diversity cases such as this one, the Federal Rules of Evidence incorporate by reference the privilege laws of the state providing the underlying substantive law. Fed. R. Evid. 501. Based upon their submissions, the parties appear to agree that Indiana law applies. Regardless, '[c]ourts do not worry about conflict of laws unless the parties disagree on which state's law applies.'")

Case Date	Jurisdiction	State	Cite Checked
2016-10-27	Federal	IN

Chapter: 52.704

Case Name: Wellin v. Wellin, Nos. 2:13-cv-1831-, -3595-DCN, & 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

November 9, 2016 (PRIIVLEGE POINT)

"Can Contracting Transactional Parties Select Favorable Privilege Law?: Part I"

Federal privilege common law governs federal question cases, but federal courts hearing diversity cases must choose the applicable attorney-client privilege law.

Many litigants do not even focus on the choice of law issue. In Greyhound Lines Inc. v. Viad Corp., the court noted that "[t]he parties do not address this choice of law issue." No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483, at *2-3 (D. Ariz. Sept. 8, 2016). The court eventually applied Arizona privilege law, because plaintiff cited Arizona law and defendant "does not cite contrary authority." Id. at *3. To be sure, in many cases the choice of laws does not make any difference. In Wellin v. Wellin, Nos. 2:13-cv-1831-, -3595-DCN, & 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016), the court extensively analyzed the choice of law issue — correctly using South Carolina's standard for that analysis. The court ultimately concluded that South Carolina privilege law applied, but then acknowledged that "this may be something of a hollow victory for [plaintiffs] as the court is not convinced there is any significant difference between New York and South Carolina [privilege] law." Id. at *32.

But in some situations there are huge differences between states' privilege laws. Next week's Privilege Point will discuss a noteworthy case where such a difference was dispositive, and in which the Southern District of New York gave a road map for corporations seeking to maximize their privilege protection.

Case Date	Jurisdiction	State	Cite Checked
2016-09-30	Federal	SC	B 11/16

Comment:

key case

Chapter: 52.704

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

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

Comment:

key case

Chapter: 52.704

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

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

Comment:

key case

Chapter: 52.704

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

("[T]his case does not present an Erie [Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)] problem because it does not involve choice between federal and state law but rather, a choice between the law of different states. Nevertheless, the court finds that the purposes animating the Erie doctrine are sufficiently similar to the purposes underlying the First Restatement approach to bear upon the analysis here."; "Many courts have recognized that when the substantive-procedural distinction is tailored to these aims, privilege must be considered substantive because it affects conduct beyond the context of litigation. . . . Given this recognition, and the purposes underlying the First Restatement's substantive-procedural distinction, there is good reason to think that a South Carolina court would consider privilege a substantive matter."; "To determine what state has the most significant relationship with a particular communication, the court will usually look to the state 'where the communication took place.'. . . Under § 139 [Restatement], this means 'the state where an oral interchange between persons occurred, where a written statement was received or where an inspection was made of a person or thing.'. . . The Second Restatement also indicates that a court can look to the state of the most significant relationship between the parties to the communication. . . ."; "The Special Master determined that New York has the most 'significant relationship' to the communications at issue here because, at the time the communications were made, Plum was located in New York."; "The court agrees with Wendy and McDevitt that South Carolina has the most significant relationship with the communications. It is unclear where exactly the communications occurred. . . . It appears that Plum communicated with her attorneys from New York, while they communicated with her from South Carolina."; "However, this may be something of a hollow victory for Wendy and McDevitt as the court is not convinced there is any significant difference between New York and South Carolina law. As an initial matter, the parties have failed to point to any fundamental differences in the general scope of the privilege under New York and South Carolina law.";"This practice suggests South Carolina privilege law is compatible with federal and New York privilege law. The court will therefore look to federal and New York law when South Carolina law does not supply a needed answer in this case.")

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

Comment:

key case

Chapter: 52.704

**Case Name: Greyhound Lines Inc. v. Viad Corp., No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483, at *2-3 (D. Ariz. Sept. 8, 2016)**

November 9, 2016 (PRIVILEGE POINT)

"Can Contracting Transactional Parties Select Favorable Privilege Law?: Part I"

Federal privilege common law governs federal question cases, but federal courts hearing diversity cases must choose the applicable attorney-client privilege law.

Many litigants do not even focus on the choice of law issue. In Greyhound Lines Inc. v. Viad Corp., the court noted that "[t]he parties do not address this choice of law issue." No. CV-15-01820-PHX-DGC, 2016 U.S. Dist. LEXIS 121483, at *2-3 (D. Ariz. Sept. 8, 2016). The court eventually applied Arizona privilege law, because plaintiff cited Arizona law and defendant "does not cite contrary authority." Id. at *3. To be sure, in many cases the choice of laws does not make any difference. In Wellin v. Wellin, Nos. 2:13-cv-1831-, -3595-DCN, & 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016), the court extensively analyzed the choice of law issue — correctly using South Carolina's standard for that analysis. The court ultimately concluded that South Carolina privilege law applied, but then acknowledged that "this may be something of a hollow victory for [plaintiffs] as the court is not convinced there is any significant difference between New York and South Carolina [privilege] law." Id. at *32.

But in some situations there are huge differences between states' privilege laws. Next week's Privilege Point will discuss a noteworthy case where such a difference was dispositive, and in which the Southern District of New York gave a road map for corporations seeking to maximize their privilege protection.

Case Date	Jurisdiction	State	Cite Checked
2016-09-08	Federal	AZ	B 11/16

Comment:

key case

Chapter: 52.704

Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)

("Federal Rule of Evidence 501 commands that 'state law governs privilege regarding a claim . . . for which state law supplies the rule of decision.' Because federal jurisdiction exists based on diversity of the parties, state law supplies the controlling law. Both parties brief the issue applying Illinois law as controlling, so we likewise apply Illinois law.")

Case Date	Jurisdiction	State	Cite Checked
2016-08-26	Federal	IL

Chapter: 52.704

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)

("Courts within the Second Circuit use the 'touch base' test to determine what country's law of privilege applies to 'foreign documents' such as minutes of Belgian board meetings."; "The communications reflected in the contested portions of the RPI board minutes clearly 'relate' to actual or contemplated lawsuits in the United States, under United States law, in which RPI was or would be represented by United States counsel. The Court will therefore apply domestic privilege law to the parties' dispute."; "'The Court turns to New York law because it is the law of the forum state; because it is the law applied to RPI's common-law claims by the Hon. Alison J. Nathan in ruling on Deutsche Bank's motion to dismiss . . . And because no party has suggested that any other state's privilege law is applicable to the present controversy.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-20	Federal	NY

Chapter: 52.704

Case Name: Guiffre v. Maxwell, 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)

(holding that a media agent was outside privilege protection New York law, which applied to communications with a public relations consultant in Britain; "Defendant's citation does not support the statement for which it is directly cited: that waiver does not apply to communications including a third-party if for the purpose of contemplated litigation. Plaintiff, with the aid of British counsel and without having seen Defendant's British law argument; submits an interpretation of British law directly contradicting Defendant's."; "This precarious support provides an insufficient foundation for the Court to apply foreign law to Defendant's claims."; "Moreover, at least one New York court has found that British privilege law is 'apparently similar' to New York's."; "The privilege analysis under UK law parallels the analysis under New York law, requiring (i) a communication between an attorney and client, (ii) made in the course of the representation, (iii) for the purpose of providing legal advice."; "The potential litigation for which Defendant sought Barden's [Defendant's lawyer] advice never came to fruition and no pending issued in or relating to Britain have been pled. Thus, any consequence resulting from a ruling on the confidentiality of the Barden communications will sound only in New York, the situs of this case and the location of the allegedly defamatory statements at issue. New York therefore has the predominate interest in whether these communications remain confidential. The similarity between New York and British attorney-client privilege' demonstrates that no public policy conflict exists. Consequently, New York law applies to all of Plaintiff's privilege claims.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-02	Federal	NY

Chapter: 52.704

**Case Name: In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liability Litig., Master File No. 1:00-1898, MDL 1358 (SAS), 2016 U.S. Dist. LEXIS 46294, at 13, 14-15 (S.D.N.Y. Apr. 4, 2016)**

("Under Federal Rules of Evidence 501, 'in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.' I have previously held, and the parties do not dispute, that Pennsylvania choice of law rules apply to this case. The only dispute is whether Pennsylvania choice of law rules direct this Court to apply New York or Pennsylvania privilege law." (footnote omitted); "I find that New York law applies. Under Pennsylvania choice of law rules, a court must conduct an interest analysis. This requires a court to first 'determin[e] whether the laws of the competing states actually differ.' 'If a true conflict exists, the Court must then determine which state has the 'greater interest in the application of its law.' Here, the parties agree that New York and Pennsylvania attorney-client privilege law differ. The only question is which state has the greater interest in the application of its law." (citations omitted); "New York has the greater interest. Lewis [LAC's general counsel] and the two LAC [defendant] executives were located in New York, and the legal work they discussed occurred in New York. The communication lacks a 'direct and explicit connection' to Pennsylvania. Although the Commonwealth seeks to use the emails as evidence in the present litigation, a post hoc connection to litigation brought in Pennsylvania unrelated to the substance of the communication does not implicate the policy justifying the attorney-client privilege as the interest analysis demands." (footnote and citation omitted))

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

Chapter: 52.704

**Case Name: Certain Underwriters at Lloyd's v. AMTRAK, No. 14-CV-4717 (FB), 2016 U.S. Dist. LEXIS 27041, at *69 n.4 (E.D.N.Y. Feb. 19, 2016)**

(holding that London insurance brokers were outside privilege protection because they did not meet the Kovel [United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)] standard; noting the difference between New York state and New York federal court law on the issue of client agents within privilege protection; "'To be sure, LMI [London Market Insurers] cites an unpublished 1995 New York State Supreme Court opinion, in which a court affirmed a special referee's finding that the London broker method of distribution did not waive the attorney-client privilege. . . . New York law does not govern the privilege issues before the Court and, in any event, even if it did, the Occidental Opinion [Occidental Chem. Corp. v. Hartford Accident & Indem. Co., No. DE-266-4. Slip Op. (N.Y. Sup. Ct. Mar. 22,1995)] does not address the necessity of the practice -- one of the elements of the agency exception to waiver of the attorney-client privilege.'")

Case Date	Jurisdiction	State	Cite Checked
2016-02-19	Federal	NY	B 8/16

Comment:

key case

Chapter: 52.704

Case Name: Ingenco Holdings, LLC v. Ace American Insurance Co., Case No. C13-543RAJ, 2014 U.S. Dist. LEXIS 170357 (W.D. Wash. Dec. 8, 2015)

(analyzing choice of laws issues, but not only always determining whether Virginia or Washington law applied; "What state's attorney-client privilege law applies when a client located in Pennsylvania communicates, either directly or via an agent located in New York or New Jersey, or via an agent of that agent located in British Columbia, with an attorney in Illinois? Ingenco would have the court apply Washington law; ACE would have the court apply Virginia law. Both answers seem an affront to intuition. The attorney-client privilege is, after all, a privilege protecting a client's communications with her attorney. If none of the communications took place in Washington or Virginia, why would either state's privilege law apply?")

Case Date	Jurisdiction	State	Cite Checked
2015-12-08	Federal	WA

Chapter: 52.704

Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)

("When, as here, a court's jurisdiction arises under the diversity statute, the court construes most privileges under the law of the state in which it sits. . . . Illinois law is identical to federal law for the purpose of deciding whether the attorney client privilege exists.")

Case Date	Jurisdiction	State	Cite Checked
2015-06-18	Federal	IL

Chapter: 52.704

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 48623 (S.D.W.Va. April 14, 2015)

(finding draft response to possible media inquiries deserved privilege protection because an in-house lawyer had provided legal advice at various points, and that defendant Ford did not waive privilege protection for the document by inadvertently disclosing it; "[G]iven that the instant action involves claims from multiple states that have been consolidated for discovery, the choice of which state law to apply is not obvious. Conceivably, the law of all twenty-two involved states could or should be consulted. Plaintiffs choose to resolve the dilemma by citing to the law of West Virginia, the state in which this Court sits, and to federal law, and Ford did not object to that approach. Certainly, in cases of complex litigation, federal courts have analyzed the applicability of the attorney-client privilege using federal law despite the language of Rule 501. . . . Another option is to apply the law of the state with the most significant relationship to the communication. . . . In this case, that state would presumably be Michigan as the employees involved in the communication were in Ford's corporate headquarters located in Michigan. Fortunately, the federal law of privilege and the laws of West Virginia and Michigan are compatible.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-14	Federal	WV

Chapter: 52.704

**Case Name: Skepnek v. Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10-12 (D. Kan. Sept. 4, 2014)**

("The Court first conducts a choice-of-law analysis to determine the appropriate attorney-client privilege law to apply to this dispute. Defendants argue that because the e-mails at issue were written by New Jersey clients to their New Jersey lawyers about a New Jersey lawsuit, New Jersey attorney-client privilege law should apply. While Judge O'Hara does not appear to have made an explicit choice-of-law selection, he seems to have applied federal common law of attorney-client privilege."; "The Court has subject matter jurisdiction over this lawsuit based on diversity of citizenship, and plaintiffs' Complaint brings claims for breach of contract, breach of fiduciary duty, and quantum meruit. Because state law provides the rule of decision for all of plaintiffs' claims, state law governs the application of the attorney-client privilege here. Fed. R. Evid. 501. When Rule 501 requires application of state privilege law and there are factual connections to more than one state, federal courts engage in a choice-of-law analysis and employ the choice-of-law principles of the forum state. . . . State courts generally use one of two basic choice-of-law approaches. The older, minority approach, is set forth by the Restatement (First) of Conflict of Laws and focuses on the location of a particular event. . . . The more modern approach follows the Restatement (Second) of Conflict of Laws, which directs courts to identify and apply the law of the most interested state. . . . This 'interests' analysis appears to be gaining increasing acceptance. . . . Kansas is among those states that still follow the Restatement (First) of Conflict of Laws. . . . Thus, while there is no Kansas case directly on point, the Court concludes that the Kansas Supreme Court would apply Kansas state law to determine the applicability of the attorney-client privilege to the client e-mails at issue here. The Court is aware that New Jersey clients communicating with their New Jersey law firm about a New Jersey lawsuit may find it unusual that Kansas state law determines whether their e-mails are privileged. However, as discussed, the Court is bound to follow the privilege law it believes the Kansas Supreme Court would apply. Thus, Judge O'Hara did not clearly err by declining to apply New Jersey law.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-04	Federal	KS

Comment:

key case

Chapter: 52.704

**Case Name: Skepnek v. Roper & Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10 (D. Kan. Sept. 4, 2014)**

November 12, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part II”

Last week's Privilege Point explained that federal common law privilege principles govern federal question cases, and that analyzing choice of law issues in bankruptcy matters can be more subtle.

Federal courts sitting in diversity should rely on their host jurisdiction's choice of law rules in selecting the proper privilege law. However, most federal courts inexplicably short-circuit this process — automatically applying the host jurisdiction's privilege law rather than its choice of law principles. See, e.g., Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013). Courts undertaking the proper analysis sometimes reach surprising results. In Skepnek v. Roper & Twardowsky, LLC, the court handling a diversity case properly looked to Kansas choice of law rules — almost apologetically explaining that Kansas follows the "older, minority approach" of the Restatement (First) of Conflict of Laws (1934). Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10 (D. Kan. Sept. 4, 2014). That approach "provides that '[t]he law of the forum determines the admissibility of a particular piece of evidence.'" Id. at *11 (quoting Restatement § 597). The court therefore applied Kansas privilege law principles to emails among "New Jersey clients communicating with their New Jersey law firm about a New Jersey lawsuit." Id. at *11-12. Not surprisingly, the court acknowledged that those New Jersey clients "may find it unusual that Kansas state law determines whether their e-mails are privileged." Id. at *12.

This type of counterintuitive result usually makes little difference, but in some cases Illinois state courts have relied on this analysis to apply that state's narrow "control group" privilege standard to communications that deserved privilege protection under the more corporate-friendly Upjohn standard of when and where the communications took place.

Case Date	Jurisdiction	State	Cite Checked
2014-09-04	Federal	KS

Comment:

key case

Chapter: 52.704

**Case Name: Ellis v. Arrowood Indem. Co., Civil Action No. 2:14-mc-00146, 2014 U.S. Dist. LEXIS 121913, at 9, 9 n.4 (S.D. W. Va. Sept. 2, 2014)**

("Therefore, Kentucky law governs the issue of attorney-client privilege. Rule 501 does not address horizontal choice of law issues -- that is, which state's law applies to the privilege issue. The Fourth Circuit has yet to provide a framework in determining this issue. . . . Courts have taken three different approaches: (1) assume that the law that applies the rule of the decision also provides the rule for privileges, (2) apply the privilege rules of the state in which the court sits, or (3) apply the conflict law doctrines of the state in which the court sits.")

Case Date	Jurisdiction	State	Cite Checked
2014-09-02	Federal	WV

Chapter: 52.704

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794 (W.D. Va. Aug. 14, 2014)

("Where state law is unclear because the state's highest court 'has spoken neither directly nor indirectly on the particular issue,' this court may predict how the state court would rule by considering the decisions of other courts, among other things.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-14	Federal	VA

Chapter: 52.704

Case Name: United States Surety Co. v. Stevens Family Ltd. P’ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438 (N.D. Ill. Mar. 7, 2014)

May 28, 2014 (PRIVILEGE POINT)

"Federal Courts Undertake Choice of Law Analyses"

Under Fed. R. Evid. 501, federal courts sitting in diversity apply their host jurisdiction's choice of law principles in determining which state's privilege law applies. This contrasts with federal courts' application of (1) federal common law of privilege in federal question cases, and (2) the Fed. R. Civ. P. 26(b)(3) work product rule when addressing work product claims.

Some courts seem to short-circuit the process – simply applying their host state's privilege law without undertaking or even mentioning a choice of law analysis. Other courts properly recognize that "[t]o determine which state law is applicable, 'the federal court applies the choice-of-law rules of the forum state,'" and carefully analyze its host state's principles. Swortwood v. Tenedora de Empresas, S.A. de C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *28 (S.D. Cal. Mar. 6, 2014) (citation omitted). The Swortwood court dealt with a privilege claim by a company incorporated in Delaware but with its principal place of business in California. The court analyzed those two states' varying common interest doctrine rules – ultimately concluding that California law should apply because that state's "interests would be more significantly impaired if its privilege law was not applied in the instant matter." Id. at *35. Some courts apply the law selected as controlling in transactional parties' documents. In United States Surety Co. v. Stevens Family Ltd. P’ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438 (N.D. Ill. Mar. 7, 2014), the court relied on Fed. R. Evid. 501 in applying California's privilege law, because the parties had chosen California law to govern their contract.

Most states generally follow the same basic attorney-client privilege principles, but lawyers should keep in mind that (1) federal courts might look to states other than their host state for the applicable privilege law, and (2) clients may have the power to choose the applicable privilege law in their contracts.

Case Date	Jurisdiction	State	Cite Checked
2014-03-07	Federal	IL

Comment:

key case

Chapter: 52.704

**Case Name: Swortwood v. Tenedora de Empresas, S.A. de C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *28 (S.D. Cal. Mar. 6, 2014)**

May 28, 2014 (PRIVILEGE POINT)

"Federal Courts Undertake Choice of Law Analyses"

Under Fed. R. Evid. 501, federal courts sitting in diversity apply their host jurisdiction's choice of law principles in determining which state's privilege law applies. This contrasts with federal courts' application of (1) federal common law of privilege in federal question cases, and (2) the Fed. R. Civ. P. 26(b)(3) work product rule when addressing work product claims.

Some courts seem to short-circuit the process – simply applying their host state's privilege law without undertaking or even mentioning a choice of law analysis. Other courts properly recognize that "[t]o determine which state law is applicable, 'the federal court applies the choice-of-law rules of the forum state,'" and carefully analyze its host state's principles. Swortwood v. Tenedora de Empresas, S.A. de C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *28 (S.D. Cal. Mar. 6, 2014) (citation omitted). The Swortwood court dealt with a privilege claim by a company incorporated in Delaware but with its principal place of business in California. The court analyzed those two states' varying common interest doctrine rules – ultimately concluding that California law should apply because that state's "interests would be more significantly impaired if its privilege law was not applied in the instant matter." Id. at *35. Some courts apply the law selected as controlling in transactional parties' documents. In United States Surety Co. v. Stevens Family Ltd. P’ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438 (N.D. Ill. Mar. 7, 2014), the court relied on Fed. R. Evid. 501 in applying California's privilege law, because the parties had chosen California law to govern their contract.

Most states generally follow the same basic attorney-client privilege principles, but lawyers should keep in mind that (1) federal courts might look to states other than their host state for the applicable privilege law, and (2) clients may have the power to choose the applicable privilege law in their contracts.

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

Comment:

key case

Chapter: 52.704

**Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at 28, 33-35 (S.D. Cal. Mar. 6, 2014)**

(analyzing a claim by plaintiffs, who sold their stock in the Neology to Smarttrac, after which the defendant eliminated plaintiffs' liquidation preferences; "In an action brought to federal court under diversity jurisdiction, the attorney-client privilege is governed by the state law otherwise applicable to the case. . . . To determine which state law is applicable, 'the federal court applies the choice-of-law rules of the forum state.'"; explaining Delaware and California have different fiduciary exception rules; "It is clear that there is a difference of law and a true conflict between the states. Accordingly, this Court must apply the law of the state whose interests would be more significantly impaired if its laws were not applied. . . . Here, the Court finds that California has the greater interest in having its attorney-client privilege law applied. While it is true that Neology is incorporated in Delaware, its principal place of business is in California and the Court assumes that at least a portions of the communications at issue took place in or were sent to or from California. . . . In addition, the subpoena sent by Plaintiffs requesting the documents at issue was served in California . . . and the instant suit was filed in California. . . . Neology's legal counsel, John Cleary, also is located in San Diego, California. . . . The Court therefore concludes that California's interests would be more significantly impaired if its privilege law was not applied in the instant matter.")

Case Date	Jurisdiction	State	Cite Checked
2014-03-06	Federal	CA	B 8/14

Chapter: 52.704

Case Name: Osborn v. Griffin, Civ. A. No. 11-89-WOB-CJS, Civ. A. No. 13-32-WOB-CJS, 2013 U.S. Dist. LEXIS 201059 (E.D. Ky. Nov. 19, 2013)

(holding that Kentucky applied the common interest doctrine only in pending litigation; "The parties briefed the issue of the common interest doctrine under federal common law, and the Court ordered supplemental briefing on the issue of why Kentucky law would not apply given Osborn's case is before the Court on the basis of diversity of citizenship. See Fed. R. Evid. 501 ('state law governs privilege regarding a claim or defense for which state law supplies the rule of decision'). The parties concede in their supplemental briefing that Kentucky law applies to determine the extent and scope of the attorney-client privilege in the Osborn matter. . . . The Court agrees.")

Case Date	Jurisdiction	State	Cite Checked
2013-11-19	Federal	KY

Chapter: 52.704

**Case Name: In re Uehling, Case Nos. 1: 13-mc-00022-BAM & 2: 12-cv-01301-SLG, 2013 U.S. Dist. LEXIS 90867, at *13-15 (E.D. Cal. June 27, 2013)**

(holding that the deposition of a non-party in California was subject to California privilege rules; "Here, however, Uehling is not a party to this action, and Millennium's motion to compel Uehling's deposition testimony is an 'independent action' filed in California. . . . Another California court has held that where, as here, state and federal claims are joined and a non-party deponent in a foreign deposition proceeding asserts attorney-client privilege, 'the privilege of the state in which the deposition is taken applies.'. . . Neither party raised any disagreement with the Court's belief that California law should apply to Uehling's claim of privilege.")

Case Date	Jurisdiction	State	Cite Checked
2013-06-27	Federal	CA	B 4/14

Chapter: 52.704

Case Name: Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013)

November 12, 2014 (PRIVILEGE POINT)

“Courts Apply Privilege Choice of Law Principles: Part II”

Last week's Privilege Point explained that federal common law privilege principles govern federal question cases, and that analyzing choice of law issues in bankruptcy matters can be more subtle.

Federal courts sitting in diversity should rely on their host jurisdiction's choice of law rules in selecting the proper privilege law. However, most federal courts inexplicably short-circuit this process — automatically applying the host jurisdiction's privilege law rather than its choice of law principles. See, e.g., Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013). Courts undertaking the proper analysis sometimes reach surprising results. In Skepnek v. Roper & Twardowsky, LLC, the court handling a diversity case properly looked to Kansas choice of law rules — almost apologetically explaining that Kansas follows the "older, minority approach" of the Restatement (First) of Conflict of Laws (1934). Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *10 (D. Kan. Sept. 4, 2014). That approach "provides that '[t]he law of the forum determines the admissibility of a particular piece of evidence.'" Id. at *11 (quoting Restatement § 597). The court therefore applied Kansas privilege law principles to emails among "New Jersey clients communicating with their New Jersey law firm about a New Jersey lawsuit." Id. at *11-12. Not surprisingly, the court acknowledged that those New Jersey clients "may find it unusual that Kansas state law determines whether their e-mails are privileged." Id. at *12.

This type of counterintuitive result usually makes little difference, but in some cases Illinois state courts have relied on this analysis to apply that state's narrow "control group" privilege standard to communications that deserved privilege protection under the more corporate-friendly Upjohn standard of when and where the communications took place.

Case Date	Jurisdiction	State	Cite Checked
2013-01-28	Federal	PA

Comment:

key case

Chapter: 52.704

**Case Name: C.B. Fleet Co., Inc. v. Colony Specialty Ins. Co., Case No. 1:11-CV-0375, 2012 U.S. Dist. LEXIS 180950, at *6 (N.D. Ohio Dec. 21, 2012)**

(analyzing conflict of law issues; "Section 139(2) of the Restatement reads: 'Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum [here, Ohio law] will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.' (Emphasis added.) Thus, documents that would not be privileged under Ohio law will be admitted, absent special circumstances.")

Case Date	Jurisdiction	State	Cite Checked
2012-12-21	Federal	OH	B 9/13

Chapter: 52.704

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

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

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

Chapter: 52.704

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

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

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

Chapter: 52.705

Case Name: Nalco Company LLC v. Pall Corporation, 16-cv-6755 (PKC), 2017 U.S. Dist. LEXIS 63122 (S.D.N.Y. April 13, 2017)

("New York law governs the inquiry because subject matter jurisdiction is based on diversity of citizenship, and the underlying agreement is governed by New York law (Agreement, XII(h).).")

Case Date	Jurisdiction	State	Cite Checked
2017-04-13	Federal	NY

Chapter: 52.705

Case Name: Huntington Chase Condominium Assoc. v. Mid-Century Ins. Co., No. 16 C 4877, 2017 U.S. Dist. LEXIS 14082 (N.D. Ill. Feb. 1, 2017)

("As agreed by the parties, because this case is a diversity action arising out of a contractual dispute in which Illinois law governs the rules of decision, this Court must apply Illinois law to determine whether the attorney-client privilege applies to the subject documents.")

Case Date	Jurisdiction	State	Cite Checked
2017-02-01	Federal	IL

Chapter: 52.705

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

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

Case Date	Jurisdiction	State	Cite Checked
2016-11-08	State	ME

Comment:

key case

Chapter: 52.705

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

January 11, 2017 (PRIVILEGE POINT)

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

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

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

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

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

Comment:

key case

Chapter: 52.705

Case Name: Del Giudice v. Harlan , No. 15 Civ. 7330 (LTS) (JCF), 2016 U.S. Dist. LEXIS 129938 (S.D.N.Y. Sept. 22, 2016)

November 16, 2016 (PRIVILEGE POINT)

"Can Contracting Transactional Parties Select Favorable Privilege Law?: Part II"

Last week's Privilege Point described diversity cases in which litigants did not address the choice of laws issue, and in which the issue was irrelevant because there appeared to be no material difference between the possibly applicable privilege laws.

Del Giudice v. Harlan , No. 15 Civ. 7330 (LTS) (JCF), 2016 U.S. Dist. LEXIS 129938 (S.D.N.Y. Sept. 22, 2016), generated substantial news about its corporate governance holding – that under Delaware law even directors who are adverse to their corporation can sometimes access privileged communications about their dispute. But the news articles have not covered what could be a more broadly significant point. After noting that "[t]he parties engage in a half-hearted dispute about what state's law should determine whether the attorney-client privilege applies," respected Magistrate Judge Francis emphasized that "it appears that the Delaware [privilege] law differs from New York law in material ways" – so "[a] choice-of-law analysis is therefore necessary." Id. at *8-9. After tiptoeing into New York's elaborate choice of laws standard, Judge Francis short-circuited the analysis – holding "under New York state law, where the contract sued upon contains a choice-of-law provision, that choice will generally govern what state's privilege law applies." Id. at *11-12. Because the LLC's operating agreement specified Delaware law, Judge Francis applied Delaware privilege law. As it turned out, that was dispositive -- and resulted in the widely reported corporate governance decision.

This is not the first time a privilege choice of laws analysis played a decisive role. In 2010, a Delaware state court relied on a merger agreement's choice of law provision to apply Delaware rather than Massachusetts privilege law to communications that occurred in Massachusetts. 3Com Corp. v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ch. May 31, 2010). That conclusion made a huge difference – because Goldman Sachs was outside privilege protection under Massachusetts law but inside privilege protection under Delaware law. Although such situations may arise infrequently, lawyers should be looking for them.

Case Date	Jurisdiction	State	Cite Checked
2016-09-22	Federal	NY	B 11/16

Comment:

key case

Chapter: 52.705

Case Name: Celanese Corp. v. Clariant Corp., No. 3:14-cv-4165-M, 2015 U.S. Dist. LEXIS 16978 (N.D. Tex. Dec. 21, 2015)

(apply choice of laws principles rather than relying on the contractual parties' choice of law provision; "The parties agree that Texas law governs the attorney-client privilege assertions in this diversity case, even in the face of a choice-of-law clause selecting North Carolina law in the contracts giving rise to the indemnity obligations that Celanese invokes as the basis for its claims against Clariant.")

Case Date	Jurisdiction	State	Cite Checked
2015-12-21	Federal	TX

Chapter: 52.705

Case Name: Executive Mgmt. Svcs., Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2015 U.S. Dist. LEXIS 105600 (S.D. Ind. Aug. 12, 2015)

(applying New York privilege law to a dispute between parties to a contract that contain a provision applying New York law; "[T]he federal court should apply the choice of law rules of the state in which it sits, and those forum choice of law rules determine which state's privilege laws should be applied."; "In this matter, when faced with Defendant's Motion for Judgment on the Pleadings, the District Judge first applied Indiana's choice-of-law doctrine that 'favors contractual stipulations as to governing law.". . . Accordingly, given that the Schedule to the parties' Agreement explicitly states that such Agreement 'will be governed by and construed in accordance with the laws of the State of New York,' the District Judge concluded that 'this Court will apply New York law.'. . . Thus, in applying the holding made by the Stevens court [United States Sur. Co. v. Stevens Family Ltd. P'ship, No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438, 2014 WL 902893, at *2 (N.D. Ill. Mar. 7, 2014)] to this matter, because the Court has already determined that New York law applies to the substantive claims before the Court based on Indiana's choice of law rules, the privilege issues before the Court must likewise be determined by New York law."; "[A] close review of the Stevens docket, which is accessible online via PACER, provides that the applicable provision of the indemnity agreement in question reads: 'This Agreement shall be governed by and construed in accordance with the laws of the State of California.' [United States Sur. Co. v. Stevens Family Ltd. P'ship, N.D. Ill., 1:11-cv-07480 Dkt. 1-1 at 6.] Save the substitution of the State of 'New York' for the State of 'California,' the relevant provision in Stevens is indistinguishable from the relevant provision presently before the Court.")

Case Date	Jurisdiction	State	Cite Checked
2015-08-12	Federal	IN

Chapter: 52.705

Case Name: United States Surety Co. v. Stevens Family Ltd. P’ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438 (N.D. Ill. Mar. 7, 2014)

May 28, 2014 (PRIVILEGE POINT)

"Federal Courts Undertake Choice of Law Analyses"

Under Fed. R. Evid. 501, federal courts sitting in diversity apply their host jurisdiction's choice of law principles in determining which state's privilege law applies. This contrasts with federal courts' application of (1) federal common law of privilege in federal question cases, and (2) the Fed. R. Civ. P. 26(b)(3) work product rule when addressing work product claims.

Some courts seem to short-circuit the process – simply applying their host state's privilege law without undertaking or even mentioning a choice of law analysis. Other courts properly recognize that "[t]o determine which state law is applicable, 'the federal court applies the choice-of-law rules of the forum state,'" and carefully analyze its host state's principles. Swortwood v. Tenedora de Empresas, S.A. de C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *28 (S.D. Cal. Mar. 6, 2014) (citation omitted). The Swortwood court dealt with a privilege claim by a company incorporated in Delaware but with its principal place of business in California. The court analyzed those two states' varying common interest doctrine rules – ultimately concluding that California law should apply because that state's "interests would be more significantly impaired if its privilege law was not applied in the instant matter." Id. at *35. Some courts apply the law selected as controlling in transactional parties' documents. In United States Surety Co. v. Stevens Family Ltd. P’ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438 (N.D. Ill. Mar. 7, 2014), the court relied on Fed. R. Evid. 501 in applying California's privilege law, because the parties had chosen California law to govern their contract.

Most states generally follow the same basic attorney-client privilege principles, but lawyers should keep in mind that (1) federal courts might look to states other than their host state for the applicable privilege law, and (2) clients may have the power to choose the applicable privilege law in their contracts.

Case Date	Jurisdiction	State	Cite Checked
2014-03-07	Federal	IL

Comment:

key case

Chapter: 52.705

**Case Name: United States Sur. Co. v. Stevens Family Ltd. P'ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438, at 3, 3-4, *4-5 (N.D. Ill. Mar. 7, 2014)**

(applying California law, because the pertinent contract designated California law as controlling the substantive issues; noting that "[i]ssues of privilege are substantive"; "[W]hen a 'contract specifies the application of another state's (say California's) law,' the court must 'honor[] the contractual provision that looks to substantive California law' if that law 'would be chosen under the choice-of-law rules used by the state where the court sits.'" (citation omitted); "Once the court has, by applying appropriate choice of law principles, determined the substantive law applicable to a claim based on state law, the privilege issues are determined by that same state's law. Accordingly, the law of California -- not Illinois governs plaintiff's claim of attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-03-07	Federal	IL	B 8/14

Chapter: 52.705

**Case Name: Swortwood v. Tenedora de Empresas, S.A. de C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *28 (S.D. Cal. Mar. 6, 2014)**

May 28, 2014 (PRIVILEGE POINT)

"Federal Courts Undertake Choice of Law Analyses"

Under Fed. R. Evid. 501, federal courts sitting in diversity apply their host jurisdiction's choice of law principles in determining which state's privilege law applies. This contrasts with federal courts' application of (1) federal common law of privilege in federal question cases, and (2) the Fed. R. Civ. P. 26(b)(3) work product rule when addressing work product claims.

Some courts seem to short-circuit the process – simply applying their host state's privilege law without undertaking or even mentioning a choice of law analysis. Other courts properly recognize that "[t]o determine which state law is applicable, 'the federal court applies the choice-of-law rules of the forum state,'" and carefully analyze its host state's principles. Swortwood v. Tenedora de Empresas, S.A. de C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *28 (S.D. Cal. Mar. 6, 2014) (citation omitted). The Swortwood court dealt with a privilege claim by a company incorporated in Delaware but with its principal place of business in California. The court analyzed those two states' varying common interest doctrine rules – ultimately concluding that California law should apply because that state's "interests would be more significantly impaired if its privilege law was not applied in the instant matter." Id. at *35. Some courts apply the law selected as controlling in transactional parties' documents. In United States Surety Co. v. Stevens Family Ltd. P’ship, Case No. 11 C 7480, 2014 U.S. Dist. LEXIS 29438 (N.D. Ill. Mar. 7, 2014), the court relied on Fed. R. Evid. 501 in applying California's privilege law, because the parties had chosen California law to govern their contract.

Most states generally follow the same basic attorney-client privilege principles, but lawyers should keep in mind that (1) federal courts might look to states other than their host state for the applicable privilege law, and (2) clients may have the power to choose the applicable privilege law in their contracts.

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

Comment:

key case

Chapter: 52.801

Case Name: Kiobel v. Cravath, Swaine & Moore LLP, No. 17-424-cv, 2018 U.S. App. LEXIS 18755 (2nd Cir. App. July 10, 2018)

(overturning the district court, and rejecting a foreign litigant's efforts to obtain documents from Cravath under the Alien Tort Statute 28 U.S.C.S. § 1782; "We conclude that while the district court had jurisdiction over Kiobel's petition, it was an abuse of discretion to grant it. As we cautioned in Application of Sarrio, S.A., 119 F.3d 143 (2d Cir. 1997), an order compelling American counsel to deliver documents that would not be discoverable abroad, and that are in counsel's hands solely because they were sent to the United States for the purpose of American litigation, would jeopardize 'the policy of promoting open communications between lawyers and their clients.' Id. at 146."; "The district court determined that Kiobel's petition should be granted because: Cravath is not a party to the Dutch litigation; not all of the documents Kiobel sought were likely to be still in Shell's possession over a decade after litigation began in the U.S.; the Netherlands does not prohibit or restrict parties from gathering evidence similar to what is sought from Cravath in the U.S., and there was no evidence that the courts of the Netherlands would be unreceptive to U.S. discovery; and the production would be minimally burdensome for Cravath."; "We conclude that the district court erred in its analysis and application of the four Intel [Intel, 542 U.S. at 264-265] factors. As the district court acknowledged in its opinion, under existing precedent in this Circuit, when the real party from whom documents are sought (here, Shell) is involved in foreign proceedings, the first Intel factor counsels against granting a Section 1782 petition seeking documents from U.S. counsel for the foreign company."; "As a practical matter, the combination of the confidentiality order and the more restrictive Dutch discovery practices makes the documents at issue undiscoverable from Shell in the Netherlands. To now modify the confidentiality order that Shell and Kiobel agreed to, and thereby provide access to the documents, would be perilous for multiple reasons, a feature of this case that makes it extraordinary, and possibly unique."; "To begin, the district court's ruling would undermine confidence in protective orders."; "Kiobel did not (presumably because she cannot) provide the U.S. courts with assurance that Dutch courts will enforce the protective orders that safeguard the confidentiality of Shell's documents. It is perilous to override the confidentiality order; doing so would inhibit foreign companies from producing documents to U.S. law firms, even under a confidentiality order, lest Section 1782 become a workaround to gain discovery. This would entail several unintended consequences."; "In order to avoid potential disclosure issues under Section 1782, U.S. law firms with foreign clients may be forced to store documents and servers abroad, which would result in excessive costs to law firms and clients. Alternatively, U.S. law firms may have to return documents to foreign clients (or destroy them) as soon as litigation concludes. As amicus the New York City Bar Association notes, its Ethics Opinion 780 states that law firms have an interest in retaining documents where needed to protect themselves from accusations of wrongful conduct. So U.S. law firms may be harmed if they must destroy or return a foreign client's documents as soon as possible once a proceeding is completed. Or foreign entities may simply be less willing to engage with U.S. law firms.")

Case Date	Jurisdiction	State	Cite Checked
2018-07-10	Federal

Chapter: 52.801

Case Name: Hully Enters. v. Baker Botts LLP, Misc. Case No. 17-1466 (BAH), 2017 U.S. Dist. LEXIS 203066 (D.D.C. Dec. 9, 2017)

(finding it unnecessary to analyze choice of law for foreign communications, but warning of the danger for mischief; "Given the parties' disputes about the protections provided by foreign law, the Court would be drawn into legal experts' debates about the meaning and scope of the laws of at least two, and perhaps more, countries. In addition, as the respondents point out, a choice-of-law analysis would likely result in a 'hybrid regime that combines narrow foreign privilege rules with broad U.S. discovery.'. . . Indeed, the finding urged by petitioners that no foreign attorney-client privilege law would protect the requested documents would encourage parties involved in ligation overseas to exploit the broad discovery regime available under the Federal Rules of Civil Procedure while simultaneously seeking to defeat fundamental protections for attorney-client privilege and work product guaranteed by the American legal system.")

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

Chapter: 52.802

Case Name: In re Abilify (Aripiprazole) Products Liability Litigation, Case No. 3:16-md-2734, 2019 U.S. Dist. LEXIS 3279 (N.D. Fla. Jan. 8, 2019)

March 13, 2019 (PRIVILEGE POINTS)

"Federal Courts Assess Privilege Protection for International Communications"

American courts assessing privilege protection for international communications usually apply U.S. privilege law to communications that "touch base" with the U.S. But purely overseas communications present a more difficult analysis – which depends on the country's privilege tradition and attitude toward in-house lawyers, among things. Before undertaking this subtle overseas communication analysis, courts first must determine if the overseas participant involved in the communication is authorized to practice law in that country.

In In re Abilify (Aripiprazole) Products Liability Litigation, Case No. 3:16-md-2734, 2019 U.S. Dist. LEXIS 3279 (N.D. Fla. Jan. 8, 2019), plaintiffs claimed that two Japanese defendant companies had improperly withheld as privileged communications to and from Japanese nonlawyers. The court noted that "there are three types of legal personnel in Japan: Bengoshi, who are licensed attorneys; non-Bengoshi, who are non-licensed law undergraduates; and Benrishi, who are patent lawyers." Id. at *6. The court emphasized that "[t]his distinction is important because attorney-client privilege does not apply to communications with unlicensed counsel." Id. But the court found the issue moot, because the defendants assured the court that none of these privilege claims were "based solely on non-licensed legal personnel." Id. One day later, in Circuitronics, LLC v. Shenzhen Kinwong Electronic Co., the court rejected defendant's privilege claim for communications with "in house counsel who were not licensed Chinese lawyers." Case No. 17-22462-CIV-UNGARO/O'SULLIVAN, 2019 U.S. Dist. LEXIS 3971, at *3 (S.D. Fla. Jan. 9, 2019). The court explained that "[u]nder Chinese law, there is no attorney-client privilege and at least prior to the recent change in 2015, in-house counsel in China are not persons authorized to practice law." Id. at *4.

Lawyers dealing with international communications must start their analysis with determining the legal status of the overseas participants.

Case Date	Jurisdiction	State	Cite Checked
2019-01-08	Federal	FL

Comment:

key case

Chapter: 52.802

Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. No. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 85697 (M.D. La. May 22, 2018)

(analyzing privilege choice of law issues, and ultimately concluding that UBS was inside privilege protection as a client consultant, although citing Kovel, because UBS's assistance was "indispensable" to the provision of legal advice (citing and quoting other cases); "Based on the case law submitted by the Citco Defendants, the undersigned finds that the Citco Defendants have not carried their burden of proving 'with a reasonable certainty the substance' of English law with respect to the question of privilege over the UBS Documents. Moreover, in light of the Citco Defendants' assertion that 'English law like Louisiana law, upholds the attorney-client privilege over communications between a client, his attorney, and a third-party representative, the undersigned is not convinced that a conflict of law actually exists here. Accordingly, the undersigned proceeds with the analysis of privilege over the UBS Documents pursuant to Louisiana/federal common law of attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2018-05-22	Federal	LA

Chapter: 52.802

Case Name: Sebastian Holdings, Inc. v. Deutsche Bank AG, 603431/08, 13189, 13188, 2014 N.Y. App. Div. LEXIS 8403 (N.Y. 1d App. Dec. 4, 2014)

(overruling a discovery referee's holding applying Swiss law to deprive an in-house lawyer of privilege protection, because the party entered into a stipulated order designating the Hague Convention as governing, which resulted in the application of New York privilege law; "By order dated March 25, 2013, the discovery referee determined that Swiss law governed application of the attorney-client privilege and ordered Deutsch Bank to produce all responsive in-house documents. However, the motion court modified the referee's order in part, holding that New York privilege law applied. In so holding, the court noted that under the stipulated Hague Convention orders, discovery is to proceed under the CPLR.")

Case Date	Jurisdiction	State	Cite Checked
2014-12-04	State	NY

Chapter: 52.802

Case Name: In re Application Pursuant to 28 U.S.C. § 1782 of Okean B.V., 12 Misc. 104 (PAE), 2014 U.S. Dist. LEXIS 145548 (S.D.N.Y. Oct. 10, 2014)

(analyzing discovery issues in connection with 28 U.S.C. § 1782, which governs discovery for use in a foreign proceeding; ultimately refusing to apply the crime-fraud exception to Russian documents; "[T]he Court is particularly loathe to subvert foreign laws limiting discovery (here, the Russian and Ukrainian confidentiality and data privacy limitations) by reconceiving them to include a crime-fraud limitation.")

Case Date	Jurisdiction	State	Cite Checked
2014-10-10	Federal	NY

Chapter: 52.802

Case Name: Veleron Holding, B.V. v. BNP Paribas SA, 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)

(analyzing the "touch base" test in connection with foreign communications; "In this case, the only connection the United Kingdom and Canada have to the communications at issue is through choice of law clauses in the relevant contracts for Russian Machine and Magna that dictate that any dispute shall be subject to and governed by British and Canadian law, respectively. Comparatively, Russia and the Netherlands have a strong interest in the uniform application of attorney client privilege law for Russian and Dutch attorneys and for communications that occur in their respective countries. Accordingly, the touch base analysis favors the application of Russian and Dutch attorney-privilege law to the communications at issue.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-22	Federal	NY

Chapter: 52.802

**Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at 7-8, 8 (S.D.N.Y. Oct. 24, 2013)**

(applying the "touch base" test in applying U.S. law to some Chinese documents, but Chinese law (which does not include privilege protection) to documents prepared before the plaintiff demanded compensation from defendant for allegedly aiding terrorists; "'In determining which country's law applies to claims of privilege involving foreign documents, courts in the Second Circuit have adopted the 'touch base' approach applied in Golden Trade [Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514 (S.D.N.Y. 1992)].' 'Under this analysis, the Court applies "the law of the country that has the predominant or the most direct and compelling interest in whether [the] communications should remain confidential, unless that foreign law is contrary to the public policy of this forum."'" (citations omitted); "The country with the 'predominant interest' is either 'the place where the allegedly privileged relationship was entered into' or 'the place in which that relationship was centered at the time the communication was sent.'" (citation omitted); "'Thus, American law typically applies to communications concerning "legal proceedings in the United States" or "advice regarding American law," while communications relating to "foreign legal proceeding[s] or foreign law" are generally governed by foreign privilege law.'" (citation omitted); largely confirmed in a November 19, 2013, opinion)

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

Chapter: 52.803

Case Name: Bartech Systems Int'l v. Mobile Simple Solutions, Inc., Case No. 2:15-cv-02422-MMD-NJK, 2018 U.S. Dist. LEXIS 22296 (D. Nev. Feb. 12, 2018)

(applying the "touch base" test to apply Canadian law to a privilege issue; "To determine whether American or a foreign country's privilege law applies, the "touch base" analysis requires the court to look at (1) where the legal advice protected by the privilege was rendered; (2) what the legal advice relates to; and (3) whether foreign counsel was involved in rendering the advice. . . . Courts will 'defer to the law of the country that has the 'predominant' or 'the most direct and compelling interest' in whether the challenged communications should remain confidential, unless that foreign law is contrary to the public policy of the forum.'. . . To determine which country has the 'predominant interest,' the court looks to where the privileged relationship was entered into or where the privileged relationship was 'centered' at the time of the communication. . . . As a general matter, American law will apply when the communication concerns a legal proceeding in the United States or when the advice was regarding American law; a foreign country's law will apply when the communication relates to a foreign proceeding. . . ."; "In the instant case, the communications at issue pertain to the asset sale between Defendant and Defendant Mobile Canada. . . . Plaintiff filed a 'proof of claim' in the Canadian court regarding Defendant Mobile Canada's bankruptcy. . . . As part of that proceeding, Plaintiff deposed Defendant Pigeat as Defendant Mobile Canada's former CEO. . . . During the deposition, Plaintiff requested 'copies of Mobile Canada's and Pigeat's written communications to [GEM], and to its representative, Jacques Manardo.'. . . Defendant Pigeat's counsel objected on the grounds that the communications were protected by the attorney-client privilege. . . . The Canadian court found that the communications were privileged because 'Mobile Canada, Pigeat, and GEM were jointly seeking and obtaining legal advice from GBV' regarding the sale, despite the fact that non-parties were included on those communications. . . ."; "This Court applies the 'touch base' analysis. The Court assumes that the deposition took place in Canada, given that the deposition was taken pursuant to a legal proceeding initiated in Canada. . . . Therefore, as to the first factor, the legal advice was rendered in Canada. As to the second factor, the advice relates to communications made between a Canadian company (Defendant Mobile Canada) and a Belgian company (Defendant), regarding a business transaction between the two companies. . . . Therefore, as to the second factor, the legal advice relates to foreign countries and companies. As to the third factor, GBV is a Canadian law firm."; "The Court further finds that Canada has the predominant interest in keeping the communications at issue confidential. The privileged relationship was centered in Canada at the time of the communication, the Canadian court conducted a hearing solely on the issue of whether the attorney-client privileged applied to the communications, and found that the communications are privileged. . . . Canada, therefore, has the predominant interest in maintaining the privileged relationship determined by its court. Lastly, the Court finds that the attorney-client privilege, as applied in the Canadian proceeding, is not contrary to American public policy. The Canadian court found that 'for the privilege to exist there must be: (i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties.'")

Case Date	Jurisdiction	State	Cite Checked
2018-02-12	Federal	NV

Comment:

key case

Chapter: 52.803

Case Name: In re Ex parte Application of financialright GmbH, 17-mc-105 (DAB), 2017 U.S. Dist. LEXIS 107778 (S.D.N.Y. June 23, 2017)

(addressing plaintiffs' efforts to discover documents related to Jones Day's investigation into the "Volkswagen emissions scandal"; concluding that U.S. law applied to privilege and work product issues; "The parties discuss both United States federal common law and German law with respect to whether attorney-client privilege applies here. In determining what law to apply with respect to attorney-client privilege, this Court considers the country with which the allegedly privileged communications 'touch base.'. . . Using this test, the Court 'appl[ies] the law of the country that has the predominant or the most direct and compelling interest in whether [the] communications should remain confidential, unless that foreign law is contrary to the public policy of this forum.'"; "In this case, the attorney-client relationship was entered into Germany involving both American and German attorneys. Many of the relevant interviews were conducted in Germany and in German, and many documents allegedly in Jones Day's possession came from Germany. However, in addition to having a presence in Germany, Jones Day is principally an American law firm, and American lawyers are working on the Volkswagen case. While Jones Day's investigation pertains to the whole of the emissions scandal, including in Germany, it was retained specifically to represent Volkswagen vis-à-vis American authorities. Furthermore, Jones Day has in fact represented Volkswagen before American authorities, specifically the Justice Department, in a proceeding involving U.S. law. Accordingly, the Court holds that United States law applies with respect to attorney-client privilege and the work product doctrine as to this Application.")

Case Date	Jurisdiction	State	Cite Checked
2017-06-23	Federal	NY

Comment:

key case

Chapter: 52.803

Case Name: Royal Park Investments SA/NV v. Deutsche Bank National Trust Company, 14-CV-04394 (AJN) (BCM), 2016 U.S. Dist. LEXIS 66741 (S.D.N.Y. May 20, 2016)

("Courts within the Second Circuit use the 'touch base' test to determine what country's law of privilege applies to 'foreign documents' such as minutes of Belgian board meetings."; "The communications reflected in the contested portions of the RPI board minutes clearly 'relate' to actual or contemplated lawsuits in the United States, under United States law, in which RPI was or would be represented by United States counsel. The Court will therefore apply domestic privilege law to the parties' dispute."; "'The Court turns to New York law because it is the law of the forum state; because it is the law applied to RPI's common-law claims by the Hon. Alison J. Nathan in ruling on Deutsche Bank's motion to dismiss . . . And because no party has suggested that any other state's privilege law is applicable to the present controversy.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-20	Federal	NY

Chapter: 52.803

Case Name: Carlyle Investment Mgmt L.L.C. v. Moonmouth Co. S.A., C.A. No. 7841-VCP, 2015 Del. Ch. LEXIS 42 (Del. Ct. Ch. Feb. 24, 2015)

(holding that a litigation funding agreement would not deserve protection under Guernsey's litigation privilege; "To the extent that Guernsey law on the subject can be determined on the basis of a single English case, it would appear that those courts would not find litigation privilege applicable to funding agreements. The English Court's comments regarding legal advice privilege, as well as the agreed-upon redactions, leave the breadth of Excalibur's [Excalibur Ventures LLC v. Texas Keystone Inc., [2012] EWHC (QB) 2176] holding unclear. Guernsey law on the question of work product privilege over funding documents, therefore, either finds the privilege inapplicable or is uncertain. In either event, the Liquidators have failed to establish that Guernsey law would find the litigation privilege broadly applicable to litigation funding agreements.")

Case Date	Jurisdiction	State	Cite Checked
2015-02-24	State	DE

Chapter: 52.803

Case Name: Carlyle Investment Mgmt L.L.C. v. Moonmouth Co. S.A., C.A. No. 7841-VCP, 2015 Del. Ch. LEXIS 42 (Del. Ct. Ch. Feb. 24, 2015)

(holding that Delaware rather than Guernsey law applied to a litigation funding agreement; "Before this Memorandum Opinion, neither Delaware nor Guernsey squarely had addressed whether third-party funding agreements and related documents deserve work product protection. In these circumstances, the Tysons Foods [2011 Del. Super. LEXIS 379, 2011 WL 3926195, at *6] approach seems preferable: 'Since neither jurisdiction has decided the issue using its own laws, the Court will not read a conflict where none exists and will apply the law of the forum state, Delaware.")

Case Date	Jurisdiction	State	Cite Checked
2015-02-24	State	DE

Chapter: 52.803

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *12-13 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "The fact that patent litigation is currently pending in the U.S. is not sufficient to establish a 'more than incidental connection to the U.S.' . . . Because the legal advice in this case was rendered in Germany and related to the prosecution of European patent applications, as well as the application of a German statute, the connection to the U.S. is incidental. . . . The communications at issue thus do not 'touch base' with the U.S.")

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

Chapter: 52.803

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at 6 n.3, 7-8, *8 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "A District court deciding issues in a patent case is required to apply the law of the circuit in which it sits with respect to nonpatent issues and the law of the Federal Circuit to the issues of substantive patent law. . . . Questions of privilege, confidentiality and waiver in a patent suit are generally governed by regional circuit law, rather than the Federal Circuit law."; "Most courts apply the 'touch base' analysis in deciding choice of law issues in cases where the alleged privileged communications occurred in a foreign country or involved foreign attorneys or proceedings. . . . Under this approach, a court applies principles of comity in a traditional choice of law 'contacts' analysis. . . . A court first determines whether the communication involves or 'touches base' with the U.S. or foreign law, and then examines the applicable law for privilege."; "Courts engaging in the 'touch base' analysis defer to the law of the country that has the 'predominant' or 'the most direct and compelling interest' in whether the challenged communications should remain confidential, unless that foreign law is contrary to the public policy of the forum. . . . The country with the 'predominant interest' is either 'the place where the allegedly privileged relationship was entered into' or 'the place in which that relationship was centered at the time communication was sent.'" (citation omitted))

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

Chapter: 52.803

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *8 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "The inquiry into whether communications 'touch base' with the United States or with a foreign jurisdiction is fact specific and focuses on whether the communications have a 'more than incidental' connection with the U.S. . . . American law typically applies to communications concerning 'legal proceedings in the United States' or 'advice regarding American law,' whereas foreign privilege law typically governs communications relating to 'foreign legal proceeding[s] or foreign law.'" (citation omitted))

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

Chapter: 52.803

**Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 165210, at *5-6 (S.D.N.Y. Nov. 19, 2013)**

(reconsidering an October 24, 2013, opinion, and affirming the court's early conclusions; "'Communications relating to legal proceedings in the United States or communications providing advice on American law . . . "touch base" with the United States and should be governed by American privilege law.' BOC's request is granted in order to clarify that American privilege law applies to all communications that properly 'touch base' with U.S. legal matters, even if those matters are unrelated to the present litigation." (citation omitted))

Case Date	Jurisdiction	State	Cite Checked
2013-11-19	Federal	NY	B 5/14

Chapter: 52.803

**Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 0118 (VM), 2013 U.S. Dist. LEXIS 162638, at 27-28, 28 n.2 (S.D.N.Y. Nov. 8, 2013)**

(finding that either under U.S. or Dutch law an unlicensed in-house Dutch lawyer who never held himself out as a lawyer could not engage in privileged communications; "Judge Maas's ruling was not clearly erroneous in finding that Boonstra's [unlicensed Dutch in-house lawyer] communications could touch base with either the United States or the Netherlands and that the result would be the same in either case. Based on the record before it, the Court finds that Magistrate Judge Maas could correctly conclude, under either the 'legal proceedings in the United States' or 'advice regarding American law' prong of the Gucci I [Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 2010)] test, at least some portion of the communications touch base with the United States because some of Boonstra's communications could have concerned United States-based litigation stemming from the Madoff scheme."; "Magistrate Judge Maas stated that 'Mr. Boonstra's communications likely "touch base" with the United States because they are related to legal issues arising out of the Citco Defendants' role in the administration of key feeder funds involved in the Madoff scheme.'" (citation omitted))

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

Chapter: 52.803

**Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 0118 (VM), 2013 U.S. Dist. LEXIS 162638, at *29-30 (S.D.N.Y. Nov. 8, 2013)**

(finding that either under U.S. or Dutch law an unlicensed in-house Dutch lawyer who never held himself out as a lawyer could not engage in privileged communications; "Magistrate Judge Maas could correctly conclude that the Netherlands is the country with the predominant or the most direct and compelling interest in whether the communications at issue should remain confidential. The Netherlands is the jurisdiction where the relationship between Boonstra [unlicensed Dutch in-house lawyer] and his employer was entered into and the place in which that relationship was centered at the time of the communications at issue.")

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

Chapter: 52.803

**Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 0118 (VM), 2013 U.S. Dist. LEXIS 162638, at 26-27, 27 (S.D.N.Y. Nov. 8, 2013)**

(finding that either under U.S. or Dutch law an unlicensed in-house Dutch lawyer who never held himself out as a lawyer could not engage in privileged communications; "Judge Maas properly stated the applicable legal standard for determining which country's law to apply to a privilege dispute involving foreign attorney-client communications. . . . In making such a choice of law determination, courts in this Circuit consider the country with which the communications 'touch base.'"; "Communications concerning legal proceedings in the United States or advice regarding United States law are typically governed by United States privilege law, while communications relating to foreign legal proceedings or foreign law are generally governed by foreign privilege law.")

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

Chapter: 52.803

**Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at *16-17 (S.D.N.Y. Oct. 24, 2013)**

(applying the "touch base" test in applying U.S. law to some Chinese documents, but Chinese law (which does not include privilege protection) to documents prepared before the plaintiff demanded compensation from defendant for allegedly aiding terrorists; "[C]ourts have found that communications relating to legal proceedings in the United States or communications providing advice on American law do 'touch base' with the United States and should be governed by American privilege law."; largely confirmed in a November 19, 2013 opinion)

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

Chapter: 52.803

**Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at 7-8, 8 (S.D.N.Y. Oct. 24, 2013)**

(applying the "touch base" test in applying U.S. law to some Chinese documents, but Chinese law (which does not include privilege protection) to documents prepared before the plaintiff demanded compensation from defendant for allegedly aiding terrorists; "'In determining which country's law applies to claims of privilege involving foreign documents, courts in the Second Circuit have adopted the 'touch base' approach applied in Golden Trade [Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514 (S.D.N.Y. 1992)].' 'Under this analysis, the Court applies "the law of the country that has the predominant or the most direct and compelling interest in whether [the] communications should remain confidential, unless that foreign law is contrary to the public policy of this forum."'" (citations omitted); "The country with the 'predominant interest' is either 'the place where the allegedly privileged relationship was entered into' or 'the place in which that relationship was centered at the time the communication was sent.'" (citation omitted); "'Thus, American law typically applies to communications concerning "legal proceedings in the United States" or "advice regarding American law," while communications relating to "foreign legal proceeding[s] or foreign law" are generally governed by foreign privilege law.'" (citation omitted); largely confirmed in a November 19, 2013, opinion)

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

Chapter: 52.803

**Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM)(FM), 2013 U.S. Dist. LEXIS 96721, at *22-23 (S.D.N.Y. July 8, 2013)**

(analyzing the "touch base" test, and finding the privilege inapplicable because the in-house lawyer practicing in the Netherlands was not actually licensed anywhere; "In determining which country's law applies to a privilege dispute involving foreign attorney-client communications, courts in this Circuit consider the country with which the communications 'touch base.'. . . Under this analysis, the Court applies 'the law of the country that has the 'predominant' or 'the most direct and compelling interest' in whether [the] communications should remain confidential, unless that foreign law is contrary to the public policy of this forum.'. . . 'The jurisdiction with the "predominant interest" is either "the place where the allegedly privileged relationship was entered into" or "the place in which that relationship was centered at the time the communication was sent."' . . . Thus, American law typically applies to communications concerning 'legal proceedings in the United States' or 'advice regarding American law,' while communications relating to 'foreign legal proceeding[s] or foreign law' are generally governed by foreign privilege law." (citation omitted))

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

Chapter: 52.803

**Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM)(FM), 2013 U.S. Dist. LEXIS 96721, at *25-26, 26-27 (S.D.N.Y. July 8, 2013)**

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

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

Chapter: 52.804

Case Name: Serious Fraud Office (SFO) v. Eurasian Natural Resources Corporation Ltd., [2017] EWHC 1017 (QB) (08 May 2017)

(assessing protection for materials created by Dechert during an internal investigation into its client's alleged Kazakh and African-related bribery and other wrongdoing; among other things, explaining that: "the legal advice privilege protects a lawyer's working papers . . . only if documents would betray the trend of the legal advice"; legal advice privilege does not automatically apply to a lawyer's notes – rejecting the argument that "the process inevitably represented the work of the lawyer's mind and his selection of what should be written down, so that taken as a whole, these matters inevitably give a clue as to the trend of the advice"; pointing to the Three Rivers case in explaining that for legal advice privilege to apply "the employee must be authorized to seek/obtain the legal advice that is the reason for the communication"; litigation privilege applies if litigation "is in progress or reasonably in contemplation," the communications "are made with the sole or dominant purpose of conducting that anticipated litigation," and the litigation "must be adversarial, not investigative or inquisitorial"; litigation privilege does not apply if the communications were intended to "avoid contemplated litigation"; for litigation privilege to apply the litigation must be "a real likelihood rather than a mere possibility"; "[t]he reasonable contemplation of a criminal investigation does not necessarily equate to the reasonable contemplation of a prosecution"; "identifying issues" in anticipation of a SFO criminal investigation "is not the same thing as preparing for the conduct of adversarial litigation or enabling lawyers to give advice about its conduct"; ultimately rejecting legal advice and litigation privilege protection for: Dechert's interview notes; documents prepared by the client's forensic accountants; fact-based presentation documents used for reporting to the client's board; communications to and from a client senior executive who was also a Swiss lawyer; distinguishing between criminal investigations and adversarial litigation in finding the documents prepared for use in the former did not deserve litigation privilege)

Case Date	Jurisdiction	State	Cite Checked
2017-05-08	Other

Chapter: 52.804

Case Name: Veleron Holding, B.V. v. BNP Paribas SA, 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)

(analyzing the "touch base" test in connection with foreign communications; "In this case, the only connection the United Kingdom and Canada have to the communications at issue is through choice of law clauses in the relevant contracts for Russian Machine and Magna that dictate that any dispute shall be subject to and governed by British and Canadian law, respectively. Comparatively, Russia and the Netherlands have a strong interest in the uniform application of attorney client privilege law for Russian and Dutch attorneys and for communications that occur in their respective countries. Accordingly, the touch base analysis favors the application of Russian and Dutch attorney-privilege law to the communications at issue.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-22	Federal	NY

Chapter: 52.804

Case Name: Veleron Holding, B.V. v. BNP Paribas SA, 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)

(analyzing the "touch base" test in connection with foreign communications; "The Parties do not dispute that Russian law does not recognize attorney-client privilege or work product immunity for communications between or work product provided by (1) in-house counsel; or (2) 'outside' counsel who are not licensed 'advocates' registered with the Russian Ministry of Justice. . . . Therefore, since Veleron has not provided any information establishing that the outside counsel whose communications are at issue were advocates registered with the Russian Ministry of Justice, it has not carried its burden of showing that the communications at issue are protected under Russian law. Dutch law does not recognize attorney-client privilege for unlicensed lawyers. . . . Because Veleron has not provided any information establishing that the Dutch attorneys whose communications were at issue were licensed, it has not carried its burden of showing the communications at issue are protected under Dutch law.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-22	Federal	NY

Chapter: 52.804

Case Name: Veleron Holding, B.V. v. BNP Paribas SA, No. 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)

October 1, 2014 (PRIVILEGE POINT)

“Another Court Deals With Foreign In-House Lawyers”

Most foreign countries do not extend privilege protection to communications to and from in-house lawyers, so United States companies normally seek to apply U.S. privilege law when discovery disputes in U.S. courts involve overseas communications. Fortunately for such companies, the commonly-used "touch base" test normally applies U.S. privilege law to (1) communications to and from the United States, and (2) purely overseas communications whose content primarily focuses on the United States.

In Veleron Holding, B.V. v. BNP Paribas SA, No. 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014), plaintiff Veleron withheld purely overseas communications to and from in-house lawyers in Russia and the Netherlands — which did not meet the "touch base" standard justifying U.S. privilege law's application. The court therefore applied a "'predominant interest'" standard in selecting the applicable law. Id. at *13 (citation omitted). Significantly, the court rejected Veleron's reliance on contractual choice of law clauses indicating that British and Canadian law governed any disputes — instead applying Russia's and the Netherlands' privilege laws because those countries "have a strong interest in the uniform application of attorney client privilege law for Russian and Dutch attorneys and for communications that occur in their respective countries." Id. at *14. The court then noted that (1) Russia does not recognize privilege protection for in-house lawyers, or outside lawyers who are not licensed by the Russian Administrator of Justice, and (2) Dutch law does not extend privilege protection to "unlicensed lawyers." Id. at *14-15. The court ultimately rejected Veleron's privilege claim, because the company had not established with evidence that its Russian lawyers were licensed outside lawyers, or that its Dutch lawyers were licensed at all.

Companies with foreign operations or (especially) foreign lawyers should monitor the case law for developments in this area, and be prepared to present whatever evidence will support their privilege claims. When appropriate, company employees can also enhance the likelihood of U.S. privilege law's application by copying a U.S. lawyer (in-house or outside) or by focusing on U.S. issues in purely overseas communications.

Case Date	Jurisdiction	State	Cite Checked
2014-08-22	Federal	NY

Comment:

key case

Chapter: 52.804

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

April 2, 2014 (PRIVILEGE POINT)

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

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

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

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

Case Date	Jurisdiction	State	Cite Checked
2014-02-03	Federal	CA

Comment:

key case

Chapter: 52.804

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *13-14 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "Consequently, this Court should, as a matter of comity, look to the law of Germany to determine whether the disputed communications are privileged, unless the applicable German law is clearly inconsistent with important policies embodied in federal law.")

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

Chapter: 52.804

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *8-9 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "In the context of patent law, courts often look to the law of the country where legal advice was rendered or where the patent application is pending. . . . Communications between a foreign client and a foreign patent agent 'relating to assistance in prosecuting patent applications in the United States' are governed by the U.S. privilege law. . . . Communications 'relating to assistance in prosecuting' foreign patent applications or 'rendering legal advice . . . on the patent law' of foreign country are, as a matter of comity, governed by the privilege 'law of the foreign country in which the patent application is filed,' even if the client is a party to a suit in the U.S." (citation omitted))

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

Chapter: 52.804

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *12 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "Because FMC AG's [defendant] Legal Department is located in Germany, the legal advice in this case was rendered in Germany to the company's European personnel. . . . The challenged communications, as described on the privilege log generated by Fresenius, concerned 'legal advice and analysis' regarding the prosecution of European patent applications, as well as the application of a German statute. . . . The principles of Golden Trade [Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514 (S.D.N.Y. 1992)] and Astra [Astra Aktiebolag v. Andrx Pharms., Inc., 208 F.R.D. 92 (S.D.N.Y. 2002)] thus suggest that the challenged communications 'touch base' with Germany.")

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

Chapter: 52.804

**Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at *27-28 (S.D.N.Y. Oct. 24, 2013)**

(applying the "touch base" test in applying U.S. law to some Chinese documents, but Chinese law (which does not include privilege protection) to documents prepared before the plaintiff demanded compensation from defendant for allegedly aiding terrorists; "Because Chinese law does not recognize the attorney-client privilege or the work-product doctrine, BOC must produce those items listed on its privilege log which are governed by Chinese privilege law. The responsive documents are those: (1) dated prior to January 28, 2008 and (2) documents dated after January 28, 2008 that do not relate to plaintiffs' demand letter."; largely confirmed in a November 19, 2013, opinion)

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

Chapter: 52.804

**Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at *25 (S.D.N.Y. Oct. 24, 2013)**

(applying the "touch base" test in applying U.S. law to some Chinese documents, but Chinese law (which does not include privilege protection) to documents prepared before the plaintiff demanded compensation from defendant for allegedly aiding terrorists; "Based on the Golden Trade [Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514 (S.D.N.Y. 1992)]. 'touch base' analysis, U.S. privilege law applies to all documents created after January 28, 2008 that do in fact relate to the demand letter and the subject matter that gave rise to this lawsuit, because those documents pertain to American law 'or the conduct of litigation in the United States.'" (citation omitted); largely confirmed in a November 19, 2013, opinion)

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

Chapter: 52.804

**Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM) (FM), 2013 U.S. Dist. LEXIS 96721, at *22 (S.D.N.Y. July 8, 2013)**

(applying the "touch base" test, but finding it unnecessary to decide whether a communication "touch base" with the United States; "Under this analysis, the Court applies 'the law of the country that has the 'predominant' or 'the most direct and compelling interest' in whether [the] communications should remain confidential, unless that foreign law is contrary to the public policy of this forum.'" (citation omitted))

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

Chapter: 52.804

**Case Name: Anwar v. Fairfield Greenwich Ltd., No. 09 Civ. 118 (VM)(FM), 2013 U.S. Dist. LEXIS 96721, at *25-26, 26-27 (S.D.N.Y. July 8, 2013)**

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

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

Chapter: 52.804

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

April 2, 2014 (PRIVILEGE POINT)

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

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

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

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

Case Date	Jurisdiction	State	Cite Checked
2012-04-24	Federal	CA

Comment:

key case

Chapter: 52.804

Case Name: Renfield Corp. v. E. Remy Martin & Co., S.A., 98 F.R.D. 442, 444-445 (D. Del. 1982)

("The Hague Evidence Convention is not applicable to documents located in the United States. Therefore, I must apply choice-of-law principles to determine whether United States or French privilege law applies. There is no dispute that the choice-of-law standard is that the applicable law is that of the state with the most significant relationship with the communications. Restatement (Second) of Conflict of Laws § 139(1) (1971). In this case, the United States has the most significant relationship with the communications. The officials located in the New York office of Remy Amerique are the ones who have sought the legal advice and the United States has the same interest in protecting the freedom of these individuals to obtain legal advice as it does for any other American residents. For the same reasons stated above in connection with the Remy S.A. documents, the United States privilege law does recognize the Remy Amerique communications as privileged. It follows, therefore, that the attorney-client privilege is also appropriately applied to communications of Remy Amerique officials with French 'in-house counsel.'")

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

Chapter: 52.804

Case Name: Renfield Corp. v. E. Remy Martin & Co., S.A., 98 F.R.D. 442, 444 (D. Del. 1982)

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

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

Chapter: 52.805

Case Name: In re Abilify (Aripiprazole) Products Liability Litigation, Case No. 3:16-md-2734, 2019 U.S. Dist. LEXIS 3279 (N.D. Fla. Jan. 8, 2019)

March 13, 2019 (PRIVILEGE POINTS)

"Federal Courts Assess Privilege Protection for International Communications"

American courts assessing privilege protection for international communications usually apply U.S. privilege law to communications that "touch base" with the U.S. But purely overseas communications present a more difficult analysis – which depends on the country's privilege tradition and attitude toward in-house lawyers, among things. Before undertaking this subtle overseas communication analysis, courts first must determine if the overseas participant involved in the communication is authorized to practice law in that country.

In In re Abilify (Aripiprazole) Products Liability Litigation, Case No. 3:16-md-2734, 2019 U.S. Dist. LEXIS 3279 (N.D. Fla. Jan. 8, 2019), plaintiffs claimed that two Japanese defendant companies had improperly withheld as privileged communications to and from Japanese nonlawyers. The court noted that "there are three types of legal personnel in Japan: Bengoshi, who are licensed attorneys; non-Bengoshi, who are non-licensed law undergraduates; and Benrishi, who are patent lawyers." Id. at *6. The court emphasized that "[t]his distinction is important because attorney-client privilege does not apply to communications with unlicensed counsel." Id. But the court found the issue moot, because the defendants assured the court that none of these privilege claims were "based solely on non-licensed legal personnel." Id. One day later, in Circuitronics, LLC v. Shenzhen Kinwong Electronic Co., the court rejected defendant's privilege claim for communications with "in house counsel who were not licensed Chinese lawyers." Case No. 17-22462-CIV-UNGARO/O'SULLIVAN, 2019 U.S. Dist. LEXIS 3971, at *3 (S.D. Fla. Jan. 9, 2019). The court explained that "[u]nder Chinese law, there is no attorney-client privilege and at least prior to the recent change in 2015, in-house counsel in China are not persons authorized to practice law." Id. at *4.

Lawyers dealing with international communications must start their analysis with determining the legal status of the overseas participants.

Case Date	Jurisdiction	State	Cite Checked
2019-01-08	Federal	FL

Comment:

key case

Chapter: 52.805

Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. No. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 85697 (M.D. La. May 22, 2018)

(analyzing privilege choice of law issues, and ultimately concluding that UBS was inside privilege protection as a client consultant, although citing Kovel, because UBS's assistance was "indispensable" to the provision of legal advice (citing and quoting other cases); "Based on the case law submitted by the Citco Defendants, the undersigned finds that the Citco Defendants have not carried their burden of proving 'with a reasonable certainty the substance' of English law with respect to the question of privilege over the UBS Documents. Moreover, in light of the Citco Defendants' assertion that 'English law like Louisiana law, upholds the attorney-client privilege over communications between a client, his attorney, and a third-party representative, the undersigned is not convinced that a conflict of law actually exists here. Accordingly, the undersigned proceeds with the analysis of privilege over the UBS Documents pursuant to Louisiana/federal common law of attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2018-05-22	Federal	LA

Chapter: 52.805

Case Name: Hully Enters. v. Baker Botts LLP, Misc. Case No. 17-1466 (BAH), 2017 U.S. Dist. LEXIS 203066 (D.D.C. Dec. 9, 2017)

(finding it unnecessary to analyze choice of law for foreign communications, but warning of the danger for mischief; "Given the parties' disputes about the protections provided by foreign law, the Court would be drawn into legal experts' debates about the meaning and scope of the laws of at least two, and perhaps more, countries. In addition, as the respondents point out, a choice-of-law analysis would likely result in a 'hybrid regime that combines narrow foreign privilege rules with broad U.S. discovery.'. . . Indeed, the finding urged by petitioners that no foreign attorney-client privilege law would protect the requested documents would encourage parties involved in ligation overseas to exploit the broad discovery regime available under the Federal Rules of Civil Procedure while simultaneously seeking to defeat fundamental protections for attorney-client privilege and work product guaranteed by the American legal system.")

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

Chapter: 52.805

Case Name: Serious Fraud Office (SFO) v. Eurasian Natural Resources Corporation Ltd., [2017] EWHC 1017 (QB) (08 May 2017)

(assessing protection for materials created by Dechert during an internal investigation into its client's alleged Kazakh and African-related bribery and other wrongdoing; among other things, explaining that: "the legal advice privilege protects a lawyer's working papers . . . only if documents would betray the trend of the legal advice"; legal advice privilege does not automatically apply to a lawyer's notes – rejecting the argument that "the process inevitably represented the work of the lawyer's mind and his selection of what should be written down, so that taken as a whole, these matters inevitably give a clue as to the trend of the advice"; pointing to the Three Rivers case in explaining that for legal advice privilege to apply "the employee must be authorized to seek/obtain the legal advice that is the reason for the communication"; litigation privilege applies if litigation "is in progress or reasonably in contemplation," the communications "are made with the sole or dominant purpose of conducting that anticipated litigation," and the litigation "must be adversarial, not investigative or inquisitorial"; litigation privilege does not apply if the communications were intended to "avoid contemplated litigation"; for litigation privilege to apply the litigation must be "a real likelihood rather than a mere possibility"; "[t]he reasonable contemplation of a criminal investigation does not necessarily equate to the reasonable contemplation of a prosecution"; "identifying issues" in anticipation of a SFO criminal investigation "is not the same thing as preparing for the conduct of adversarial litigation or enabling lawyers to give advice about its conduct"; ultimately rejecting legal advice and litigation privilege protection for: Dechert's interview notes; documents prepared by the client's forensic accountants; fact-based presentation documents used for reporting to the client's board; communications to and from a client senior executive who was also a Swiss lawyer; distinguishing between criminal investigations and adversarial litigation in finding the documents prepared for use in the former did not deserve litigation privilege)

Case Date	Jurisdiction	State	Cite Checked
2017-05-08	Other

Chapter: 52.805

Case Name: Guiffre v. Maxwell, 15 Civ. 7433 (RWS), 2016 U.S. Dist. LEXIS 58204 (S.D.N.Y. May 2, 2016)

(holding that a media agent was outside privilege protection New York law, which applied to communications with a public relations consultant in Britain; "Defendant's citation does not support the statement for which it is directly cited: that waiver does not apply to communications including a third-party if for the purpose of contemplated litigation. Plaintiff, with the aid of British counsel and without having seen Defendant's British law argument; submits an interpretation of British law directly contradicting Defendant's."; "This precarious support provides an insufficient foundation for the Court to apply foreign law to Defendant's claims."; "Moreover, at least one New York court has found that British privilege law is 'apparently similar' to New York's."; "The privilege analysis under UK law parallels the analysis under New York law, requiring (i) a communication between an attorney and client, (ii) made in the course of the representation, (iii) for the purpose of providing legal advice."; "The potential litigation for which Defendant sought Barden's [Defendant's lawyer] advice never came to fruition and no pending issued in or relating to Britain have been pled. Thus, any consequence resulting from a ruling on the confidentiality of the Barden communications will sound only in New York, the situs of this case and the location of the allegedly defamatory statements at issue. New York therefore has the predominate interest in whether these communications remain confidential. The similarity between New York and British attorney-client privilege' demonstrates that no public policy conflict exists. Consequently, New York law applies to all of Plaintiff's privilege claims.")

Case Date	Jurisdiction	State	Cite Checked
2016-05-02	Federal	NY

Chapter: 52.805

Case Name: In re Application Pursuant to 28 U.S.C. § 1782 of Okean B.V., 12 Misc. 104 (PAE), 2014 U.S. Dist. LEXIS 145548 (S.D.N.Y. Oct. 10, 2014)

(analyzing discovery issues in connection with 28 U.S.C. § 1782, which governs discovery for use in a foreign proceeding; ultimately refusing to apply the crime-fraud exception to Russian documents; "Okean has not claimed that an analog to the American crime-fraud exception actually exists so as to limit the reach of the Russian and Ukrainian confidentiality and privacy laws that the Court has held are implicated here. Okean did not, for example, submit a declaration to this effect from an expert on such laws. Chadbourne, by contrast, put forward the declaration of a knowledgeable expert to establish the existence of the relevant Russian and Ukrainian laws and their application to this case.")

Case Date	Jurisdiction	State	Cite Checked
2014-10-10	Federal	NY

Chapter: 52.805

Case Name: Veleron Holding, B.V. v. BNP Paribas SA, 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)

(analyzing the "touch base" test in connection with foreign communications; "Once Morgan Stanley challenged Veleron's claims of privilege, by asserting that Russian and Dutch law did not recognize attorney-client privilege or work product immunity for the attorney communications at issue, Veleron was required to submit evidence establishing the challenged elements of the privilege.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-22	Federal	NY

Chapter: 52.805

Case Name: Veleron Holding, B.V. v. BNP Paribas SA, 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)

(analyzing the "touch base" test in connection with foreign communications; "The Parties do not dispute that Russian law does not recognize attorney-client privilege or work product immunity for communications between or work product provided by (1) in-house counsel; or (2) 'outside' counsel who are not licensed 'advocates' registered with the Russian Ministry of Justice. . . . Therefore, since Veleron has not provided any information establishing that the outside counsel whose communications are at issue were advocates registered with the Russian Ministry of Justice, it has not carried its burden of showing that the communications at issue are protected under Russian law. Dutch law does not recognize attorney-client privilege for unlicensed lawyers. . . . Because Veleron has not provided any information establishing that the Dutch attorneys whose communications were at issue were licensed, it has not carried its burden of showing the communications at issue are protected under Dutch law.")

Case Date	Jurisdiction	State	Cite Checked
2014-08-22	Federal	NY

Chapter: 52.805

Case Name: Veleron Holding, B.V. v. BNP Paribas SA, No. 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)

October 1, 2014 (PRIVILEGE POINT)

“Another Court Deals With Foreign In-House Lawyers”

Most foreign countries do not extend privilege protection to communications to and from in-house lawyers, so United States companies normally seek to apply U.S. privilege law when discovery disputes in U.S. courts involve overseas communications. Fortunately for such companies, the commonly-used "touch base" test normally applies U.S. privilege law to (1) communications to and from the United States, and (2) purely overseas communications whose content primarily focuses on the United States.

In Veleron Holding, B.V. v. BNP Paribas SA, No. 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014), plaintiff Veleron withheld purely overseas communications to and from in-house lawyers in Russia and the Netherlands — which did not meet the "touch base" standard justifying U.S. privilege law's application. The court therefore applied a "'predominant interest'" standard in selecting the applicable law. Id. at *13 (citation omitted). Significantly, the court rejected Veleron's reliance on contractual choice of law clauses indicating that British and Canadian law governed any disputes — instead applying Russia's and the Netherlands' privilege laws because those countries "have a strong interest in the uniform application of attorney client privilege law for Russian and Dutch attorneys and for communications that occur in their respective countries." Id. at *14. The court then noted that (1) Russia does not recognize privilege protection for in-house lawyers, or outside lawyers who are not licensed by the Russian Administrator of Justice, and (2) Dutch law does not extend privilege protection to "unlicensed lawyers." Id. at *14-15. The court ultimately rejected Veleron's privilege claim, because the company had not established with evidence that its Russian lawyers were licensed outside lawyers, or that its Dutch lawyers were licensed at all.

Companies with foreign operations or (especially) foreign lawyers should monitor the case law for developments in this area, and be prepared to present whatever evidence will support their privilege claims. When appropriate, company employees can also enhance the likelihood of U.S. privilege law's application by copying a U.S. lawyer (in-house or outside) or by focusing on U.S. issues in purely overseas communications.

Case Date	Jurisdiction	State	Cite Checked
2014-08-22	Federal	NY

Comment:

key case

Chapter: 52.805

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *17 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "The Court having determined that German law applies, the burden remains on Fresenius, as the party invoking privilege, to prove that German law protects the communications at issue from disclosure.")

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

Chapter: 52.805

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *9-10 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "The party invoking a foreign privilege has the burden of proving the applicability of the foreign law and must establish that the foreign law protects the communication from discovery. . . . The burden then shifts to the opponent of the privilege to present evidence to contest the existence of the privilege. . . . Privilege for foreign patent agent communications should be 'strictly construed,' and all 'doubts should be resolved in favor of disclosure.'" (citation omitted))

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

Chapter: 52.805

**Case Name: Cadence Pharms., Inc. v. Fresenius Kabi USA, LLC, Case No. 13-cv-00139 DMS (MDD), 2014 U.S. Dist. LEXIS 13661, at *17-18 (S.D. Cal. Feb. 3, 2014)**

(applying the "touch base" test in concluding that German privilege law applied to communications with a patent agent in Germany about a German patent; finding that German law protected such communications as privileged; "Fresenius also provides as evidence the Declaration of Stefan Weiss, a European patent attorney employed as a Director of Patents at FMC AG [defendant]. . . . Weiss asserts that at the time of the communications at issue, Bichlmaier was a 'patent manager' at the Patent Department working under his direction, as well as under the direction of other patent attorneys, to 'assist in providing and obtaining legal advice.' . . . Fresenius thus asserts that Bichlmaier's communications reflected 'legal advice provided by the FMC AG Patent Department.'" (internal citation omitted))

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

Chapter: 52.805

**Case Name: In re Application of Tinsel Grp., S.A., Misc. A. No. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *5-6 (S.D. Tex. Jan. 22, 2014)**

(analyzing the common interest doctrine; "Respondents have not provided authoritative [sic] proof regarding Dutch law on their particular claims of privilege. Respondents have provided an affidavit by Planck's [respondent] Dutch counsel who expounds general principles of Dutch privilege law. . . . [T]he court cannot accept the conclusory assertions of Dutch counsel that all the information sought by Tinsel would be privileged under Dutch law. Respondents have not pointed to any 'judicial, executive, or legislative declaration that clearly demonstrates that allowing discovery in this case would offend [Dutch] judicial norms." . . . Indeed, respondents have not clearly and definitively established that disclosure of documents shared among themselves or their attorneys would violate Dutch privilege law or that the Common Interest Agreement has any effect in the Dutch legal system. Therefore, the court will apply federal common law to objections lodged by respondents.")

Case Date	Jurisdiction	State	Cite Checked
2014-01-22	Federal	TX	B 6/14

Chapter: 52.805

**Case Name: Wultz v. Bank of China Ltd., No. 11 Civ. 1266 (SAS), 2013 U.S. Dist. LEXIS 154343, at *20-21 (S.D.N.Y. Oct. 24, 2013)**

(applying the "touch base" test in applying U.S. law to some Chinese documents, but Chinese law (which does not include privilege protection) to documents prepared before the plaintiff demanded compensation from defendant for allegedly aiding terrorists; "The critical inquiry in Astra [Astra Aktiebolag v. Andrx Pharms., Inc., 208 F.R.D. 92 (S.D.N.Y. 2002)] is not whether the disclosure of attorney-client communications would happen, but rather whether it could happen. The court in Astra made clear that the documents at issue could not be produced under the 'specific limited circumstances designated by statute' and the opposing party had 'no independent legal right to the documents under Korean law.'" (citation omitted); largely confirmed in a November 19, 2013, opinion)

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

Chapter: 52.805

Case Name: R (Prudential plc) v. Special Commissioner of Income Tax [2013] UKSC 1

(holding that advice given by an accountant was not eligible for protection under the legal advice privilege)

Case Date	Jurisdiction	State	Cite Checked
2013-01-01	Other	Other	B 6/13

Chapter: 52.806

Case Name: In re Abilify (Aripiprazole) Products Liability Litigation, Case No. 3:16-md-2734, 2019 U.S. Dist. LEXIS 3279 (N.D. Fla. Jan. 8, 2019)

March 13, 2019 (PRIVILEGE POINTS)

"Federal Courts Assess Privilege Protection for International Communications"

American courts assessing privilege protection for international communications usually apply U.S. privilege law to communications that "touch base" with the U.S. But purely overseas communications present a more difficult analysis – which depends on the country's privilege tradition and attitude toward in-house lawyers, among things. Before undertaking this subtle overseas communication analysis, courts first must determine if the overseas participant involved in the communication is authorized to practice law in that country.

In In re Abilify (Aripiprazole) Products Liability Litigation, Case No. 3:16-md-2734, 2019 U.S. Dist. LEXIS 3279 (N.D. Fla. Jan. 8, 2019), plaintiffs claimed that two Japanese defendant companies had improperly withheld as privileged communications to and from Japanese nonlawyers. The court noted that "there are three types of legal personnel in Japan: Bengoshi, who are licensed attorneys; non-Bengoshi, who are non-licensed law undergraduates; and Benrishi, who are patent lawyers." Id. at *6. The court emphasized that "[t]his distinction is important because attorney-client privilege does not apply to communications with unlicensed counsel." Id. But the court found the issue moot, because the defendants assured the court that none of these privilege claims were "based solely on non-licensed legal personnel." Id. One day later, in Circuitronics, LLC v. Shenzhen Kinwong Electronic Co., the court rejected defendant's privilege claim for communications with "in house counsel who were not licensed Chinese lawyers." Case No. 17-22462-CIV-UNGARO/O'SULLIVAN, 2019 U.S. Dist. LEXIS 3971, at *3 (S.D. Fla. Jan. 9, 2019). The court explained that "[u]nder Chinese law, there is no attorney-client privilege and at least prior to the recent change in 2015, in-house counsel in China are not persons authorized to practice law." Id. at *4.

Lawyers dealing with international communications must start their analysis with determining the legal status of the overseas participants.

Case Date	Jurisdiction	State	Cite Checked
2019-01-08	Federal	FL

Comment:

key case

Chapter: 52.806

Case Name: Veleron Holding, B.V. v. BNP Paribas SA, No. 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)

October 1, 2014 (PRIVILEGE POINT)

“Another Court Deals With Foreign In-House Lawyers”

Most foreign countries do not extend privilege protection to communications to and from in-house lawyers, so United States companies normally seek to apply U.S. privilege law when discovery disputes in U.S. courts involve overseas communications. Fortunately for such companies, the commonly-used "touch base" test normally applies U.S. privilege law to (1) communications to and from the United States, and (2) purely overseas communications whose content primarily focuses on the United States.

In Veleron Holding, B.V. v. BNP Paribas SA, No. 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014), plaintiff Veleron withheld purely overseas communications to and from in-house lawyers in Russia and the Netherlands — which did not meet the "touch base" standard justifying U.S. privilege law's application. The court therefore applied a "'predominant interest'" standard in selecting the applicable law. Id. at *13 (citation omitted). Significantly, the court rejected Veleron's reliance on contractual choice of law clauses indicating that British and Canadian law governed any disputes — instead applying Russia's and the Netherlands' privilege laws because those countries "have a strong interest in the uniform application of attorney client privilege law for Russian and Dutch attorneys and for communications that occur in their respective countries." Id. at *14. The court then noted that (1) Russia does not recognize privilege protection for in-house lawyers, or outside lawyers who are not licensed by the Russian Administrator of Justice, and (2) Dutch law does not extend privilege protection to "unlicensed lawyers." Id. at *14-15. The court ultimately rejected Veleron's privilege claim, because the company had not established with evidence that its Russian lawyers were licensed outside lawyers, or that its Dutch lawyers were licensed at all.

Companies with foreign operations or (especially) foreign lawyers should monitor the case law for developments in this area, and be prepared to present whatever evidence will support their privilege claims. When appropriate, company employees can also enhance the likelihood of U.S. privilege law's application by copying a U.S. lawyer (in-house or outside) or by focusing on U.S. issues in purely overseas communications.

Case Date	Jurisdiction	State	Cite Checked
2014-08-22	Federal	NY

Comment:

key case

Chapter: 52.806

Case Name: Akzo Nobel Chems. Ltd. v. Comm'n of European Comtys., Nos. T-125/03 & T-253/03 (Ct. First Instance Sept. 17, 2007) (available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= CELEX:62003A0125:EN:HTML)

(assessing privilege claims for documents created in connection with an investigation conducted by Akzo Nobel and its affiliate; holding that internal documents would deserve privilege protection only if they were "exclusively" created for purposes of receiving legal advice, and their "sole aim" was to seek legal advice; also holding that Akzo's in-house lawyers based in Holland did not engage in privileged communications with Akzo employees, because the in-house lawyers were not independent; holding that the privilege did not protect documents sent by the general manager of an Akzo subsidiary to his supervisor; noting that the documents did not mention legal advice and were not sent to or from an outside lawyer; likewise finding that the privilege did not protect a business person's notes and communications with an in-house lawyer based in Holland)

Case Date	Jurisdiction	State	Cite Checked
2007-09-17	Other

Chapter: 52.806

Case Name: Renfield Corp. v. E. Remy Martin & Co., S.A., 98 F.R.D. 442, 444 (D. Del. 1982)

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

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

CHAPTERS

SECTIONS

STATES

JURISDICTION

CASE TYPE

Chapter: 52.2

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

Chapter: 52.2

Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)

Chapter: 52.2

Case Name: United States v. Adams, Case No. 0:17-CR-00064-DWF-KMM, 2018 U.S. Dist. LEXIS 41165 (D. Minn. March 12, 2018)

Chapter: 52.2

Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)

Chapter: 52.2

Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)

Chapter: 52.2

Case Name: Western Challenger, LLC v. DNV GL Group, Case No. C16-0915-JCC, 2017 U.S. Dist. LEXIS 182249 (W.D. Wash. Nov. 2, 2017)

Chapter: 52.2

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

Chapter: 52.2

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)

Chapter: 52.2

Case Name: Abila v. Funk, No. CIV 14-1002 JB/SV, 2016 U.S. Dist. LEXIS 131121 (D.N.M. Sept. 20, 2016)

Chapter: 52.2

Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)

Chapter: 52.2

Case Name: Berens v. Berens, 785 S.E.2d 733, 742 (N.C. Ct. App. 2016)

Chapter: 52.2

Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948, at *11 n.6 (S.D.N.Y. Mar. 4, 2016)

Chapter: 52.2

Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2015 U.S. Dist. LEXIS 100109 (E.D. Tex. July 31, 2015)

Chapter: 52.2

Case Name: La Suisse, Societe D'Assurances Sur La Vie v. Kraus, 06 Civ. 4404 (CM) (GWG), 2014 U.S. Dist. LEXIS 166673 (S.D.N.Y. Dec. 1, 2014)

Chapter: 52.2

Case Name: Skepnek v. Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *12 (D. Kan. Sept. 4, 2014)

Chapter: 52.2

Case Name: AKH Co., Inc. v. Universal Underwriter Ins. Co., Case No. 13-2003-JAR-KGG, 2014 U.S. Dist. LEXIS 115750 (D. Kansas Aug. 20, 2014)

Chapter: 52.2

Case Name: Daily v. Greensfelder, Hemker & Gale, P.C., No. 5-13-0273, 2014 Ill. App. Unpub. LEXIS 1789 (Ill. 5th Dist. App. Aug. 18, 2014)

Chapter: 52.2

Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794, at *5 (W.D. Va. Aug. 14, 2014)

Chapter: 52.2

Case Name: FDIC v. The Coleman Law Firm, Case No. 11 C 8823, 2014 U.S. Dist. LEXIS 102931 (N.D. Ill. July 29, 2014)

Chapter: 52.2

Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)

Chapter: 52.2

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: 52.2

Case Name: Shakima O. v. Westchester Cnty., No. 12 CV 9468 (VB), 2014 U.S. Dist. LEXIS 18644, at *17 n.7 (S.D.N.Y. Feb. 10, 2014)

Chapter: 52.2

Case Name: Gresser v. Wells Fargo Bank, N.A., Case No. CCB-12-0987, 2014 U.S. Dist. LEXIS 9021, at *18-19, *19, *20 (D. Md. Jan. 24, 2014)

Chapter: 52.2

Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 204, at *21 (Del. Ch. July 25, 2013)

Chapter: 52.2

Case Name: Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968, at *13 n.2 (D.S.C. May 23, 2013)

Chapter: 52.2

Case Name: Random Ventures, Inc. v. Advanced Armament Corp., No. 12 Civ. 6792 (KBF), 2013 U.S. Dist. LEXIS 20513, at *7 (S.D.N.Y. Feb. 5, 2013)

Chapter: 52.2

Case Name: State v. Lead Indus. Assoc., 64 A.3d 1183, 1200 (R.I. 2013)

Chapter: 52.2

Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *72 n.19 (S.D. Ohio Nov. 13, 2012)

Chapter: 52.4

Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 226 (4th Cir. 2011)

Chapter: 52.5

Case Name: Mooney v. Diversified Bus. Communs., 2017 Mass. Super. LEXIS 133, 34 Mass L. Rep. 352, 2017 WL 4172592, Dkt. No. SUCV2016-3726-BLS2 (Mass. Super. July 24, 2017)

Chapter: 52.5

Case Name: Mooney v. Diversified Business Communications, Dkt. No. SUCV2016-3726-BLS2, 2017 Mass. Super. LEXIS 133 (Mass. Super. Ct. July 20, 2017)

Chapter: 52.5

Case Name: Harris Management, Inc. v. Coulombe, 2016 ME 166, ¶ 15, A.3d (11/8/2016)

Chapter: 52.5

Case Name: Hyatt v. Cal. Franchise Tax Board, 962 N.Y.S.2d 282, 295 (N.Y. App. Div. 2013)

Chapter: 52.5

Case Name:

Chapter: 52.5

Case Name:

Chapter: 52.5

Case Name: 3Com Corporation v. Diamond II Holdings, Inc., C.A. No. 3933-VCN, 2010 Del. Ch. LEXIS 126 (Del. Ct. Ch. May 31, 2010)

Chapter: 52.5

Case Name: Upjohn v. United States, 449 U.S. 383 (1981)

Chapter: 52.302

**Case Name: Robinson v. Vineyard Vines, LLC, 15 Civ. 4972 (VB)(JCM), 2016 U.S. Dist. LEXIS 27948, at *11 n.6 (S.D.N.Y. Mar. 4, 2016)**

**Case Name: Skepnek v. Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *12 (D. Kan. Sept. 4, 2014)**

**Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Case No. 1:12CV00046, 2014 U.S. Dist. LEXIS 112794, at *5 (W.D. Va. Aug. 14, 2014)**

**Case Name: Shakima O. v. Westchester Cnty., No. 12 CV 9468 (VB), 2014 U.S. Dist. LEXIS 18644, at *17 n.7 (S.D.N.Y. Feb. 10, 2014)**

**Case Name: Gresser v. Wells Fargo Bank, N.A., Case No. CCB-12-0987, 2014 U.S. Dist. LEXIS 9021, at 18-19, 19, *20 (D. Md. Jan. 24, 2014)**

**Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 204, at *21 (Del. Ch. July 25, 2013)**

**Case Name: Church of Christ at Azalea Drive v. Forest River, Inc., C.A. No. 2:11-cv-3371-PMD, 2013 U.S. Dist. LEXIS 72968, at *13 n.2 (D.S.C. May 23, 2013)**

**Case Name: Random Ventures, Inc. v. Advanced Armament Corp., No. 12 Civ. 6792 (KBF), 2013 U.S. Dist. LEXIS 20513, at *7 (S.D.N.Y. Feb. 5, 2013)**

**Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *72 n.19 (S.D. Ohio Nov. 13, 2012)**

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

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

**Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *80 (S.D. W. Va. Mar. 28, 2016)**

**Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *80 (S.D. W. Va. Mar. 28, 2016)**