McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 54 of 54 results

Chapter: 53.2
Case Name: Western Challenger, LLC v. DNV GL Group, Case No. C16-0915-JCC, 2017 U.S. Dist. LEXIS 182249, at *3 (W.D. Wash. Nov. 2, 2017)
January 31, 2018 (PRIVILEGE POINT)

"If a Court Decides That a Document Deserves Work Product Protection, Should the Court Also Deal With a
Privilege Claim?"

Wise lawyers always consider both attorney-client privilege and work product protection when withholding a document or testimony. Privilege protection is absolute but fragile. Work product protection is qualified but robust. Judges sometimes short circuit the review process by examining only one of the two possible protections.

In Western Challenger, LLC v. DNV GL Group, the court held that emails plaintiff withheld from discovery deserved work product protection, so "the Court need not decide whether the emails are also subject to the attorney-client privilege." Case No. C16-0915-JCC, 2017 U.S. Dist. LEXIS 182249, at *3 (W.D. Wash. Nov. 2, 2017). If the court had stopped there, it would have left a gap in the appropriate analysis – because the defendant might later seek to overcome the qualified work product protection. But the court combined its short circuit approach with its conclusion that defendants "do not meaningfully argue" that they could overcome plaintiff's work product claim. Id. at *3 n.1.

Some courts are not as thoughtful as this. And some courts fail to analyze work product protection if they find that the privilege protects a withheld document. That approach is also frequently inappropriate, because discovery might later show that the client disclosed the withheld document to a friendly third party – which would have waived the fragile privilege protection but not the robust work product protection.

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

key case


Chapter: 53.2
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: 53.301
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: 53.302
Case Name: Gendell v. 42 W. 17th Street Housing Corp., 158100/2015, 2018 N.Y. Misc. LEXIS 2584 (N.Y. Sup. Ct. June 26, 2018)
("With respect to the qualified privilege of 'materials prepared in anticipation of litigation,' the party asserting the privilege must first demonstrate that the materials were prepared exclusively for litigation'. . . Materials prepared for more than one reason, and not exclusively for litigation, may subject the materials to disclosure.")

Case Date Jurisdiction State Cite Checked
2018-06-26 State NY

Chapter: 53.302
Case Name: McIlmail v. Archdiocese of Philadelphia, No. 1009 EDA 2017, 2018 Pa. Super. LEXIS 620 (Pa. Super. June 7, 2018)
(analyzing work product issues related to an archdiocese's investigation into possible sexual misconduct; applying Pennsylvania's unique work product rule; "The rule obviously sets a different restriction on material prepared by a party's attorney compared to material sought from a party's representative. Our Supreme Court set a high bar of protection in relation to the discovery of the work product of an attorney, which may not include disclosure of the mental impressions, conclusions, opinions, memoranda, notes, legal research or legal theories of an attorney. On the other hand, as to materials produced by any other representative of a party, the rule only prohibits the disclosure of the representative's mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. 'Memoranda or notes made by the representative are not protected.' Id.")

Case Date Jurisdiction State Cite Checked
2018-06-07 State PA

Chapter: 53.302
Case Name: McIlmail v. Archdiocese of Philadelphia, No. 1009 EDA 2017, 2018 Pa. Super. LEXIS 620 (Pa. Super. June 7, 2018)
(analyzing work product issues related to an archdiocese's investigation into possible sexual misconduct; applying Pennsylvania's unique work product rule; "The work-product of an attorney must necessarily relate to legal work performed for a client, not to notes memorializing the statements of witnesses taken by an investigator acting a mere agent of the client or of the attorney. To apply the privilege in such a situation as presented here would ignore the differences specified in Rule 4003.3."; "The intent behind Rule 4003.3 is to shield the mental processes of an attorney, designed to protect from disclosure an attorney's thoughts and views about a case including theories, mental impressions or litigation plans. The production of the documents requested by McIlmail will, in no way, infringe upon the protection granted to an attorney's work product. These documents relate solely to factual information obtained by the investigator from the potential witnesses, and do not reflect, in any manner whatsoever, the thought process of the attorneys involved.")

Case Date Jurisdiction State Cite Checked
2018-06-07 State PA

Chapter: 53.302
Case Name: Venture v. Preferred Mutual Ins. Co., 155587/14, 4342N, 4341, 2017 N.Y. App. Div. LEXIS 6596 (N.Y. Sup. Ct. Sept. 26, 2017)
(explaining the scope of New York state's work product doctrine; "'[T]he CPLR establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101[b]); attorney's work product, also absolutely immune (CPLR 3101[c]); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means CPLR 3101 [d][2]' (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 N.Y.2d 371, 376-377, 581 N.E.2d 1055, 575 N.Y.S.2d 809 [1991]).")

Case Date Jurisdiction State Cite Checked
2017-09-26 State NY

Chapter: 53.302
Case Name: In the Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2017 N.Y. Misc. LEXIS 3103 (N.Y. Sup. Ct. Aug. 15, 2017)
(after a remand, analyzing possible work product protection for a communications between Marvel's CEO and his personal defamation lawyer conducted on Marvel's computer system; finding that some documents deserved work product protection and some did not; "Even where an investigation is conducted by an attorney, and documents are generated in connection therewith, unless the documents sought to be protected from disclosure indicate that an attorney had conducted any legal research or analysis or rendered any legal opinion about the client's legal position, the work-product privilege is inapplicable.")

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

Chapter: 53.302
Case Name: In the Matter of Harold Peerenboom v. Marvel Entertainment, LLC, 162152/2015, 2017 N.Y. Misc. LEXIS 3103 (N.Y. Sup. Ct. Aug. 15, 2017)
(after a remand, analyzing possible work product protection for a communications between Marvel's CEO and his personal defamation lawyer conducted on Marvel's computer system; finding that some documents deserved work product protection and some did not; "Even where an investigation is conducted by an attorney, and documents are generated in connection therewith, unless the documents sought to be protected from disclosure indicate that an attorney had conducted any legal research or analysis or rendered any legal opinion about the client's legal position, the work-product privilege is inapplicable.")

Case Date Jurisdiction State Cite Checked
2017-08-15 State NY

Chapter: 53.302
Case Name: JBGR LLC v. Chicago Title Ins. Co., 35140-11, 2017 N.Y. Misc. LEXIS 3008 (N.Y. Sup. Ct. Aug. 2, 2017)
("The Dempsey memo [memorandum allegedly containing privileged communications] is not an attorney work product. While it was prepared by John Dempsey, an attorney, he was not acting as an attorney when he prepared it . . . . Moreover, it does not contain language uniquely reflecting a lawyer's learning and professional skills, including legal research, analysis, conclusions, legal theory or strategy.")

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

Chapter: 53.302
Case Name: Estate of Joseph Paterno v. National Collegiate Athletic Assoc., No. 877 MDA 2015, No. 1709 MDA 2014, No. 878 MDA 2015, 2017 Pa. Super. LEXIS 570, 2017 Pa. 247 (Pa. July 25, 2017)
(holding that a Task Force rather than Penn State itself was the client in connection with the investigation into the Sandusky sexual misconduct scandal conducted by Freeh; holding that the investigation-related interview notes and summaries necessarily reflected lawyers' opinions; noting that Pennsylvania Rules the work product doctrine could extend to documents without anticipated litigation; "Appellees argue that work product does not protect the notes and memoranda of the FSS attorneys and FGIS investigators because those notes and memoranda were not prepared in anticipation of litigation. We disagree. . . . the Rule does not limit work product protection to materials prepared in anticipation. Rather, materials prepared in anticipation are not automatically protected. Nowhere does the Rule limit its protection of 'mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories' to materials prepared in anticipation."; "We reject Appellees' assertion that work product protection is limited to materials prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2017-07-25 State PA

Chapter: 53.302
Case Name: Estate of Joseph Paterno v. National Collegiate Athletic Assoc., No. 877 MDA 2015, No. 1709 MDA 2014, No. 878 MDA 2015, 2017 Pa. Super. LEXIS 570, 2017 Pa. 247 (Pa. July 25, 2017)
(holding that a Task Force rather than Penn State itself was the client in connection with the investigation into the Sandusky sexual misconduct scandal conducted by Freeh; holding that the investigation-related interview notes and summaries necessarily reflected lawyers' opinions; noting that Pennsylvania Rules the work product doctrine could extend to documents without anticipated litigation; "While Upjohn is not binding on this Court, we find its analysis persuasive and in accord with the text of Rule 4003.3 and its explanatory comment. Indeed, Rule 4003.3 explicitly identifies memoranda and notes as worthy of protection because, as Upjohn explains, notes and memoranda are highly likely to reflect an attorney's mental impressions, opinions, and conclusions -- the other items explicitly protected by the Rule. A contrary result would discourage written notes and summaries such as those presently at issue. The trial court erred in ordering Appellants to produce redacted copies of FSS attorney interview notes and summaries. Work product doctrine protects those documents in their entirety."; "The same result does not obtain for the notes of FGIS investigators. Concerning representatives other than the party's attorney, the Rule protects only 'representative's disclosure of his mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.' Pa.R.C.P. No. 4003.3. The explanatory comment clarifies, '[m]emoranda or notes made by the representative are not protected.' Pa.R.C.P. No. 4003.3, explanatory comment. Thus, Rule 4003.3 protects FGIS investigator notes only to the extent that those notes reflect 'mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.' Pa.R.C.P. No. 4003.3.")

Case Date Jurisdiction State Cite Checked
2017-07-25 State PA

Chapter: 53.302
Case Name: In re Residential Capital, LLC v. Certain Underwriters at Lloyd's of London, Ch. 11, Case No. 12-12020 (MG), Jointly Administered, Adv. No. 15-01025 (SHL), 2017 Bankr. LEXIS 1951 (S.D.N.Y. July 14, 2017)
("The parties agree that the Court should apply New York law to the dispute over attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-07-14 Federal NY

Chapter: 53.302
Case Name: Tucker Ellis LLP v. Superior Ct. of the City and County of San Francisco, A148956, 2017 Cal. App. LEXIS 571 (Cal. App. 3d June 21, 2017)
("'California's civil work product privilege is codified in section 2018.030. Subdivision (a) provides absolute protection to any 'writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories.' (§ 2018.030, subd. (a).) Such a writing 'is not discoverable under any circumstances.' (Ibid.) The term 'writing' includes any form of recorded information, including [transmitting by electronic mail or facsimile, and any record thereby created, regardless of the manner in which the record has been stored]."; "In response to Hickman, and, later California cases interpreting Hickman, our Legislature codified an attorney work product privilege in section 2018.010 et seq. . . . Thus, the attorney work product privilege 'recognizes what is termed an 'absolute' privilege as to writings containing the attorney's impressions, opinions, legal research and theories and recognizes a 'qualified' privilege as to all written materials and oral information not reflecting the attorney's legal thoughts.'"; "We note at the outset that the primary purpose of the privilege is to encourage attorneys to honestly and objectively evaluate cases by eliminating fear of compelled disclosure of the results of their efforts to those outside the attorney-client relationship. . . . In this case, Gradient, a consultant, entered into a retention agreement with Tucker Ellis, not Nelson, in order to assist in litigation for a client of Tucker Ellis. The documents in question, which were exchanged between Gradient and Nelson, were created while Nelson was acting in his capacity as an employee of Tucker Ellis. Under these circumstances, we conclude 'the attorney' entitled to invoke the attorney work product privilege is Tucker Ellis, not Nelson."; "Our conclusion that Tucker Ellis is the holder of the attorney work product privilege under the circumstances of this case is further buttressed when we consider the anomalous results that would potentially flow were we to adopt Nelson's position. Concededly, this case involves law firm documents created by a single employee attorney for a client of the employer law firm. But, as Tucker Ellis notes, many law firm documents will reflect the work product of multiple current and former attorneys, potentially practicing in multiple jurisdictions. Securing permission from these attorneys to disclose their work product, and resolving conflicts among them when they do not agree about whether certain information constitutes work product or who was involved in creating it, will be a burdensome and complicated task for a law firm required to comply with requests for disclosure while preserving the privilege. In addition, to the extent this task involves former attorneys who created work product for current firm clients, as here, the purpose of the attorney work product privilege will be better served by allowing the firm itself -- with current knowledge of ongoing litigation and client issues and in the context of the firm's on-going attorney-client relationships -- to speak with one voice regarding the assertion of the privilege. By declining to extend the scope of the attorney work product privilege to include Nelson in this case we also avoid undue intrusion into the equally sacrosanct duty of a law firm to zealously represent the interests of its clients with undivided loyalty.")

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

Chapter: 53.302
Case Name: Giovinazzo v. Susquehanna Bank, No. 3147 EDA 2014, 2016 Pa. Super. Unpub. LEXIS 2305 (Pa. July 1, 2016)
(explaining that Pennsylvania's work product rule only covers what generally is considered to be opinion work product; "The work-product doctrine is codified in Rule 4003.3 of the Pennsylvania Rules of Civil Procedure. This rule states in pertinent part: 'Subject to the provisions of Rules 4003.4 and 4003.5 a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative, including his attorney . . . insurer or agent. The discovery shall not include disclosure of the mental impressions of a party's attorney or his conclusions, opinions, memoranda notes, or summaries, legal research or legal theories. With respect to the representative of a party other than the party's attorney, discovery shall not include disclosure of his mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.'")

Case Date Jurisdiction State Cite Checked
2016-07-01 Federal PA

Chapter: 53.302
Case Name: Brown v. Greyhound Lines, Inc., No. 1167 EDA 2015, No. 1169 EDA 2015, No. 1174 EDA 2015, No. 1602 EDA 2015, No. 1866 EDA 2015, No. 1879 EDA 2015, No. 1931 EDA 2015, No. 1932 EDA 2015, 2016 Pa. Super. LEXIS 288 (Pa. Super. May 24, 2016)
(holding that under Pennsylvania's work product rule, the protection does not extend to a mock deposition; "Pennsylvania Rules of Civil Procedure also provide as follows: 'Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative, including his or her attorney . . . insurer or agent. The discovery shall not include disclosure of the mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party's attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.' Pa. R.C.P. 4003.3.")

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

Chapter: 53.302
Case Name: Fox Paine & Co., LLC v. Houston Cas. Co., No. 52607/2014, 2016 NY Slip Op 50635(U), at 15 (N.Y. Sup. Ct. Apr. 21, 2016)
("The attorney work product privilege (CPLR 3101[c]) applies only to documents prepared by counsel, as an attorney, which reflect counsel's learning and professional skills, including legal research, analysis, conclusions, legal theory and strategy.")

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal NY B 8/16

Chapter: 53.302
Case Name: Fox Paine & Co., LLC v. Houston Cas. Co., No. 52607/2014, 2016 NY Slip Op 50635(U), at 15 (N.Y. Sup. Ct. Apr. 21, 2016)
("The attorney work product privilege (CPLR 3101[c]) applies only to documents prepared by counsel, as an attorney, which reflect counsel's learning and professional skills, including legal research, analysis, conclusions, legal theory and strategy.")

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal NY B 8/16

Chapter: 53.302
Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Civ. A. No. 13-1995 (ABJ), 2015 U.S. Dist. LEXIS 124152 (D.D.C. Sept. 17, 2015)
("'Because the Magistrate Judge found that Maryland and District of Columbia law apply the same formulation of the attorney-client privilege, he did not determine which law governed.'").

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

Chapter: 53.302
Case Name: Johnson v. Ford Motor Co., Case No.: 3:13-cv-06529, Case No.: 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 119886 (S.D.W. Va. Sept. 3, 2015)
("'It is important to note that neither party has taken an explicit position on which jurisdiction's law governs with respect to questions concerning the existence of the attorney-client privilege. As previously indicated in this litigation, the Court could apply federal law, but there are also good arguments that either the law of Michigan or the law of West Virginia should be used. Since both parties cite extensively to federal law in their memoranda, the undersigned has applied federal law in this opinion.'").

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

Chapter: 53.302
Case Name: Deutsche Bank National Trust Co. v. WMC Mortgage, LLC, 3:12-CV-933 (CSH), 3:12-CV-969 (CSH), 3:12-CV-1699 (CSH), 3:13-CV-1347 (CSH), 2015 U.S. Dist. LEXIS 49158 (D. Conn. April 14, 2015)
(adopting the "because of" work product standard; "It should be noted that under New York law, which governed MBIA, the party seeking work product protection is required to show that the documents were created primarily for the purpose of litigation, whereas the Second Circuit requires under Adlman II that the documents be created because of anticipated litigation, a standard that 'affords broader protection' against disclosure.")

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

Chapter: 53.302
Case Name: Borgwarner, Inc. v. Kuhlman Elec. Corp., No. 1-13-1824, 2014 Ill. App. LEXIS 847 (Ill. 1d App. Dec. 8, 2014)
(applying the Waste Management doctrine; "Illinois Supreme Court Rule 201(b)(2) govern both the attorney-client privilege and work-product doctrine: '[a]ll matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party's attorney.' Ill. S. Ct. R. 201(b)(2) (eff. Jan. 1, 2013)")

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

Chapter: 53.302
Case Name: Cheung v. City of New York, No. 590208/2013, 157328/2012, 2014 N.Y. Misc. LEXIS 2465, at *10 (N.Y. Sup. Ct. May 30, 2014)
(describing New York state's work product rule; "[T]he City and the DEP have failed to establish with any specificity that the materials sought by the subpoena were prepared exclusively for litigation.")

Case Date Jurisdiction State Cite Checked
2014-05-30 State NY

Chapter: 53.302
Case Name: Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 623 (Nev. 2014)
(applying Nevada's parallel to Rule 612; finding the same standard applied to documents a witness reviews before testifying or while testifying (thus requiring disclosure), but also noting that the exception only applies at the hearing where the witness testified; denying a request to order production of the documents because the adversary waited until after the hearing; "We conclude that the differences between NRS 50.125 and FRE 612 are significant. Whereas FRE 612 permits the district court's exercise of discretion to preclude disclosure of privileged documents used to refresh a witness's recollection before testifying, no such discretionary language exists in NRS 50.125. Without such language in NRS 50.125, Nevada district courts lack discretion to halt the disclosure of privileged documents when a witness uses the privileged documents to refresh his or her recollection prior to testifying. In the 40 years since the passage of FRE 612, the Nevada Legislature has had the option to bring NRS 50.125 in line with the federal rule by adding a discretionary prong, but has not. Thus, we conclude that NRS 50.125 mandates that documents relied on before and during testimony to refresh recollection be treated the same. We therefore decline to read a discretionary element into NRS 50.125 where the Legislature has provided none.")

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

Chapter: 53.302
Case Name: Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 319 P.3d 618, 623, 624 (Nev. 2014)
(applying Nevada's parallel to Rule 612; finding the same standard applied to documents a witness reviews before testifying or while testifying (thus requiring disclosure), but also noting that the exception only applies at the hearing where the witness testified; denying a request to order production of the documents because the adversary waited until after the hearing; "Jacobs did not properly invoke NRS 50.125 at the sanctions hearing, rendering the issue of Jones's credibility a moot point."; "We note that Jones's reliance on the purportedly privileged documents for the purposes of refreshing his recollection would have only required disclosure of the documents to opposing counsel upon appropriate request under NRS 50.125, and would not constitute any further waiver of the work product doctrine or the attorney-client privilege that would have made the documents discoverable at a later point."; "The district court read NRS 50.125 too broadly when it ordered the production of the billing entries and e-mails two months after Jones left the stand and after it issued its sanctions order.")

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

Chapter: 53.302
Case Name: 34-06 73, LLC v. Seneca Ins. Co., No. 652422/2011, 2013 NY Slip Op. 33048(U), at 2 (N.Y. Sup. Ct. Dec. 4, 2013)
(analyzing privilege and work product protection in a first party insurance context; "Under CPLR [N.Y. Code of Civil Practice Law & Rules] §3101(c), an attorney's work product is immune from discovery. Similarly, CPLR §3101 (d) (2) conditionally protects materials prepared in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2013-12-04 State NY B 5/14

Chapter: 53.302
Case Name: 34-06 73, LLC v. Seneca Ins. Co., No. 652422/2011, 2013 NY Slip Op. 33048(U), at 1-2 (N.Y. Sup. Ct. Dec. 4, 2013)
(analyzing privilege and work product protection in a first party insurance context; "The CPLR [N.Y. Code of Civil Practice Law & Rules] recognizes three categories of protected materials: attorney-client communications, attorney's work product, and trial preparation materials.")

Case Date Jurisdiction State Cite Checked
2013-12-04 State NY B 5/14

Chapter: 53.302
Case Name: Satterlee Stephens Burke & Burke LLP v. Coney on the Park, LLC, No. 103294/11, 2013 N.Y. Slip Op, 31375(U), at 4, 4-5 (N.Y. Sup. Ct. June 10, 2013)
("In light of 'the strong public policy favoring full disclosure,' Atlantic Court [defendant] has the burden of proving each element of a privilege." (citation omitted); "An attorney's work product is entitled to absolute immunity (CPLR 3101 [c]), while materials prepared in anticipation of litigation are subject to conditional privilege (CPLR 3101[d]). . . . 'Lawyer's interviews, mental impressions and personal beliefs procured in the course of litigation are deemed to be an attorney's work product.' . . . However, the work product privilege has been construed narrowly. . . . Thus, to be shielded from discovery based on the work product privilege, it must be shown that the materials in issue are 'uniquely the products of a lawyer's learning and professional skills.'" (citation omitted))

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

Chapter: 53.302
Case Name: Sherwin-Williams Co. v. Motley Rice, L.L.C., 2013-Ohio-3233, at ¶ 11 (Ohio Ct. App. 2013)
(analyzing the Ohio work product rule, which applies the same standard for all common fact and opinion work product; "Therefore, unlike the federal rule and case law, it appears that Ohio has made no distinction regarding work product and opinion work product -- 'attorney work product' may be discoverable upon a showing of good cause, (1) that it is directly at issue in the case, (2) there is a compelling need for the information, and (3) the evidence cannot be obtained elsewhere. Therefore, whether work product is classified as 'opinion' or 'factual' is of no consequence for our analysis in this case. Accordingly, our review of this case is for an abuse of discretion.")

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

Chapter: 53.302
Case Name: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC (In re N.Y.C. Abestos Litig.), 966 N.Y.S.2d 420, 424 (N.Y. App. Div. 2013)
(analyzing the crime-fraud exception, and ordering Georgia-Pacific to produce otherwise protected internal documents about studies it intended to use to support its assertions about the health effects of a Georgia-Pacific product; "Attorney work product under CPLR 3101(c), which is subject to an absolute privilege, is limited to 'documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory or strategy.'" (citation omitted))

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

Chapter: 53.302
Case Name: Sherwin-Williams Co. v. Motley Rice, L.L.C., 2013-Ohio-3233, at ¶ 13 (Ohio Ct. App. 2013)
(analyzing the Ohio work product rule, which applies the same standard for all common fact and opinion work product; "Our review of the documents and record reflect that Sherwin-Williams has shown good cause that the documents are discoverable. The information sought to be discovered is directly at issue to Sherwin-Williams' claims against Motley Rice in the underlying lawsuit and is necessary to establish Sherwin-Williams' claims. Sherwin-Williams identified in its motion to compel that its purpose in requesting the documents and information was to discover how Motley Rice acquired, kept, used, and disseminated Sherwin-Williams' confidential and privileged property.")

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

Chapter: 53.302
Case Name: Fields v. First Liberty Ins. Corp., 954 N.Y.S.2d 427, 431 (N.Y. Sup. Ct. 2012)
("Materials prepared in anticipation of litigation are subject to a conditional privilege (CPLR 3101[d]). To demonstrate that this privilege is applicable, it must be shown that the material was prepared exclusively in anticipation of litigation.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State NY B 5/13

Chapter: 53.302
Case Name: Gama Aviation Inc. v. Sandton Capital Partners, L.P., 951 N.Y.S.2d 519, 521 (N.Y. App. Div. 2012)
(explaining the New York State Court work product rules; "Gama also contends that entries 316, 319, 325-26, 332-33, 356-57, 361, and 368 constitute attorney work product, which, unlike trial preparation, is subject to an absolute privilege. . . . Upon review of Gama's original and revised privilege logs, we conclude that Gama deliberately chose to use the label 'Trial Preparation Privilege' instead of 'Work Product Doctrine' in its revised log.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State NY B 12/13

Chapter: 53.303
Case Name: Massenburg v. Hawkins, 70 Va. Cir. 13, 14 (Va. Cir. Ct. 2005)
(in a third-party insurance context: "Because the Virginia Rules governing discovery procedure are 'substantially the same' as those in the Federal Rules of Civil Procedure, the Virginia Supreme Court gives consideration to federal cases in interpreting the Virginia Rules. See Rakes v. Fulcher, 210 Va. 542, 545, 172 S.E.2d 751, 755 (1970).")

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

Chapter: 53.303
Case Name: Wilson v. Rogers, 53 Va. Cir. 280, 281 (Va. Cir. Ct. 2000)
("At the outset it should be observed that opinions of the U.S. District Court construing the Federal Rules of Civil Procedure are in no way binding upon this court. However, where the Virginia rules and the federal rules are the same or essentially the same, such decisions can be helpful and should not be discarded out of hand. On the other hand, where the Virginia Supreme Court has addressed an issue, that opinion must control the decision of this court.")

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

Chapter: 53.303
Case Name: Smith v. Nat'l R.R. Passenger Corp., 22 Va. Cir. 348, 350 (Va. Cir. Ct. 1991)
(a railroad worker sought the production of any investigation reports prepared by the defendant; noting the paucity of discovery decisions in Virginia but indicating that Virginia courts "'use federal precedents to guide Virginia practice in the field of discovery.'" (quoting William H. Bryson, Handbook on Va. Civ. Procedure 319 (2d ed. 1989)))

Case Date Jurisdiction State Cite Checked
1991-01-01 State VA B 3/16

Chapter: 53.401
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)
("'While the attorney-client privilege in this case is a creature of state law, the work-product doctrine is federally created. The work-product doctrine was developed in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947) and codified in Federal Rule of Civil Procedure 26(b)(3).'")

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

Chapter: 53.401
Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("Moreover, the work-product doctrine, unlike the attorney-client privilege, is a doctrine governed by federal law.")

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

Chapter: 53.401
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: 53.401
Case Name: Aparicio v. URS Baumann, No. 3:13-cv-00281-HDM-VPC, 2014 U.S. Dist. LEXIS 7042, at *1 2, *2, *3, *3-4, *4, *5 (D. Nev. Jan. 21, 2014)
(inexplicably applying British Columbia law to a work product issue; "This case concerns a March 3, 2011 accident that involved plaintiff Patricia Aparicio ('plaintiff'), a Nevada resident, and defendant Urs Baumann ('defendant'), a Canadian who resides in British Columbia. According to defendant's unopposed motion, a police officer took witness statements at the scene, including defendant's statement. On March 16, 2011, defendant's insurer, Insurance Company of British Columbia ('ICBC') received correspondence from plaintiff's counsel advising that she was represented."; "On March 16, 2011, while home in British Columbia, defendant contacted ICBC. On March 22, 2011, ICBC sent its agent to defendant's farm in British Columbia. The agent took defendant's oral and written statement."; "Defendant argues that under British Columbia law, these statements are protected from discovery as work product because the doctrine or privilege is more expansive in Canada than in Nevada. . . . Defendant seeks an order declaring that the British Columbia privilege protects these statements from discovery in this lawsuit."; "Nevada generally applies the Second Restatement of Conflict of Laws's 'most significant relationship' test to tort actions, unless another, more specific section of the Second Restatement applies . . . .' [Restatement (Second) of Conflict of Laws, § 139 (1989),] which addresses privileged communications, provides that: '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 will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.'"; "In British Columbia, the work-product privilege protects records that came into existence for the dominant purpose of preparing for, advising on, or conducting litigation that was under way or in reasonable prospect at the time the record was created. . . . Non-attorneys may claim this privilege, and Canadian courts have routinely protected the type of communications at issue here from discovery."; "The state with the most significant relationship with the communication at issue is usually the state where the communication took place."; "The court finds that British Columbia has the most significant relationship to the written and oral statements that defendant gave to his insurer, ICBC. As set forth in defendant's unopposed motion, the statements took place in British Columbia between defendant, a citizen of British Columbia, and ICBC, his insurer and an insurance company in British Columbia. Moreover, the insurance contract was entered into in British Columbia, which is where defendant resides and where ICBC conducts its business.")

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal NV B 6/14

Chapter: 53.401
Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913, at *3 (M.D. Ga. Dec. 6, 2013)
("The work product doctrine is governed by federal as opposed to state law in a diversity action.")

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

Chapter: 53.402
Case Name: Crumpley v. Associated Wholesale Groceries, Inc., Case No. 16-2298-DDC-GLR, 2017 U.S. Dist. LEXIS 178300 (D. Kansas Oct. 27, 2017)
(declining to find a waiver based on a litigant's inadequate log, but requiring a revised log with additional evidentiary support; "The identity of the person(s) who prepared the document, along with their role(s) in the company and litigation."; "The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, 'including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney' and the role(s) of such person(s) in the defendant company and in this litigation."; "The purpose of preparing the document, including an evidentiary showing, based on competent evidence, 'supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent;' a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, based on competent evidence, 'that the documents do not contain or incorporate non-privileged underlying facts.'"; "The number of pages of the document and any attachments thereto.")

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

Chapter: 53.403
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: 53.403
Case Name:


Case Date Jurisdiction State Cite Checked
2017-02-09 Federal VA

Chapter: 53.403
Case Name: Breslow v. Am. Sec. Ins. Co., Case No. 14-62834-CIV-GOODMAN, 2016 U.S. Dist. LEXIS 21133, at *15 (S.D. Fla. Feb. 19, 2016)
("Florida law governs the attorney-client privilege in a federal diversity of citizenship case while federal law governs work product assertions in diversity actions.")

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

Chapter: 53.403
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: 53.403
Case Name: Leprino Foods Co. v. DCI, Inc., Civil Action No. 13BcvB02430BRMBKMT, 2014 U.S. Dist. LEXIS 87822, at *12-13 (D. Colo. June 27, 2014)
("The work-product doctrine is governed by a uniform federal standard")

Case Date Jurisdiction State Cite Checked
2014-06-27 Federal CO

Chapter: 53.403
Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *4 (N.D. Tex. Feb. 27, 2014)
("[T]he issue of whether documents are exempt from discovery under the attorney work product doctrine is governed by federal law in diversity cases because work product is not a substantive privilege within the meaning of Federal Rule of Evidence 501.")

Case Date Jurisdiction State Cite Checked
2014-02-27 Federal TX B 8/14

Chapter: 53.403
Case Name: City of Glendale v. Nat'l Union Fire Ins. Co., No. CV-12-380-PHX-BSB, 2013 U.S. Dist. LEXIS 60711, at *33 (D. Ariz. Apr. 29, 2013)
("Because the work product doctrine is a limitation on discovery, and not an evidentiary privilege, federal law governs its application.")

Case Date Jurisdiction State Cite Checked
2013-04-29 Federal AZ B 7/13

Chapter: 53.403
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: 53.403
Case Name: Tudor Ins. Co. v. Stay Secure Constr. Corp., 390 F.R.D. 37, 39 (S.D.N.Y. 2013)
("While state law governs the question of attorney-client privilege in a diversity action, federal law governs the applicability of the work product doctrine.")

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

Chapter: 53.403
Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 694 (N.D. Ga. 2012)
("Unlike the attorney-client privilege, the scope of protection provided by the work product doctrine is a procedural question and thus governed by federal as opposed to state law in a diversity action.")

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

Chapter: 53.603
Case Name: Slaven v. Great American Ins. Co., No. 13 C 1370, 2015 U.S. Dist. LEXIS 33591 (N.D. Ill. March 18, 2015)
("By contrast to analysis of attorney/client privilege claims, courts sitting in diversity consider the work-product doctrine not under Illinois law, but on the basis of federal law.")

Case Date Jurisdiction State Cite Checked
2015-03-18 Federal IL

Chapter: 53.603
Case Name: In re Fundamental Long Term Care, Inc., 489 B.R. 451, 473 (M.D. Fla. 2013)
(holding that a trustee's lawyer may seek files of a firm which also represented debtor's subsidiary and another company, based on the co-client privilege; "The Court, however, need not decide whether state or federal law governs application of the work product doctrine because the answer is the same in either case.")

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