McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 449 of 449 results

Chapter: 57.2
Case Name: In re TQ Delta, Civ. A. No. 17-mc-328-RGA, 2018 U.S. Dist. LEXIS 178367 (D. Del. Oct. 17, 2018)
November 28, 2018 (PRIVILEGE POINT)

Courts Deal With Standing to Assert Privilege and Work Product Protections

When a privilege owner shares protected documents with third parties without waiving the protections, who must or can protect those documents from adversaries' discovery? Can the third parties who possess the protected documents assert the protection, or must the owner intervene?

In In re TQ Delta, Civ. A. No. 17-mc-328-RGA, 2018 U.S. Dist. LEXIS 178367 (D. Del. Oct. 17, 2018), defendants served a subpoena on plaintiff's law firm seeking protected documents. Defendants argued that the plaintiff "lacks standing to move to quash a nonparty subpoena." Id. at *3-4. The court rejected defendants' argument, concluding that "Plaintiff's standing is irrelevant," because both the plaintiff and the law firm had moved to quash. Id. at *4. The court bluntly stated that "[a]s the nonparty to whom the subpoenas are directed, [plaintiff's lawyer] clearly has standing to move to quash the subpoenas." Id. Several days later, the court in Sun Sky Hospitality LLC v. U.S. Dep’t of Agriculture, No. CV-18-00094-TUC-RM, 2018 U.S. Dist. 184742 (D. Ariz. Oct. 25, 2018), dealt with the same issue. Plaintiff sought documents from defendant government agency. Nonparty First Citizens Bank sought to intervene, arguing that the privilege protected some of those documents in the government's possession, because its predecessor had worked with the government on an earlier loan to the plaintiff. The court allowed the intervention, explaining that "[a]s First Citizens is the holder of the asserted privilege, First Citizens' interest in the non-disclosure of those documents is not adequately represented by the current parties to this action." Id. at *6.

Corporations whose privileged or work-protected documents are in others' possession might need to assess standing and possible intervention if a third party seeks those documents.

Case Date Jurisdiction State Cite Checked
2018-10-17 Federal

Chapter: 57.2
Case Name: Dominion Resources Services, Inc. v. Alstom Power, Inc., Civ. No. 3:16CV00544 (JCH), 2017 U.S. Dist. LEXIS 132212 (D. Conn. Aug. 18, 2018)
("The Court finds that Dominion has standing to challenge the AEGIS subpoena only to protect any attorney-client privileged communications, or information protected by the work product doctrine, under the common interest that AEGIS and Dominion share.2 Dominion does not have standing to challenge the AEGIS subpoena or to move for a protective order on AEGIS' behalf on grounds of relevancy, burden, or proportionality. Accordingly, the Court will consider whether the AEGIS subpoena should be quashed only on the ground that the testimony would implicate privileged information. The Court notes that Dominion clearly has standing to challenge the subpoena directed at its employee Chris Howell; thus, the Court will evaluate Dominion's motion as to that subpoena on all grounds that Dominion asserts.")

Case Date Jurisdiction State Cite Checked
2018-08-18 Federal CT

Chapter: 57.2
Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
("Whether those privilege claims should prevail is a separate question that concerns the merits of Martorello's motion to quash, not his standing to bring it. Furthermore, Martorello is 'a party- [d]efendant] to th[e] litigation, with interests adverse to Plaintiff[s].' Thus, as in Green [Green v. Sauder Mouldings, Inc., 223 F.R.D. 304, 306 (E.D. Va. 2004)], Martorello has standing to challenge the Subpoena on privilege grounds.")

Case Date Jurisdiction State Cite Checked
2018-03-16 Federal VA

Chapter: 57.2
Case Name: Mun. Auth. of Westmoreland Cnty. v. CNX Gas Co., LLC, Civ. A. No. 2:16-CV-422, 2017 U.S. Dist. LEXIS 209659 (W.D. Pa. Dec. 21, 2017)
("As a general rule, a motion to quash a third-party subpoena must be brought by the third party itself. . . . This rule contains a narrow exception: a party may move to quash a third-party subpoena when the moving party claims a "personal right or privilege" in the subject matter of the subpoena. . . . The court finds that CNX has adequately alleged a privilege in the contents of the emails and thus has standing to move to quash.")

Case Date Jurisdiction State Cite Checked
2017-12-21 Federal PA

Chapter: 57.2
Case Name: Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, Adv. Proc. No. 08-01789 (SMB), Adv. Proc. No. 10-04292 (SMB), 2017 Bankr. LEXIS 3638 (S.D.N.Y. Oct. 17, 2017)
(in a case arising from Bernie Madoff's fraud, holding that drafts of Madoff's declaration deserved work product protection; "Despite Roman's disclosure of the Chaitman [Lawyer for Madoff's sister-in-law's husband] Email, Chaitman has standing to object to her client's waiver of the work product privilege, to the extent the work product includes 'opinion work product.'")

Case Date Jurisdiction State Cite Checked
2017-10-17 Federal NY

Chapter: 57.2
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)
(analyzing ownership of work product prepared by a lawyer who worked with an expert, and then left the firm; explaining that the former firm received a subpoena and was able to produce the work product because the firm owned it; "In this writ proceeding, we are presented with a narrow question of law concerning the attorney work product privilege as codified in Code of Civil Procedure section 2018.030. Specifically, we are asked to determine, as between an employer law firm and a former attorney employee, who is the holder of the attorney work product privilege that attaches to documents created by the attorney employee during and in the scope of his employment? We conclude that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP (Tucker Ellis), and not the former attorney employee, real party in interest Evan C. Nelson (Nelson). As a corollary to our holding, we necessarily conclude that because Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to secure Nelson's permission before it disclosed to others documents he created during and in the scope of his employment. Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson's permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision."; "[A]n attorney can assert his work product privilege even though he is no longer in possession the document . . . and the contents of the documents may have been communicated to the client.")

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

Chapter: 57.2
Case Name: Robinson Mechanical Contractors Inc. v. PTC Group Holding Corp., Case No. 1:15-CV-77 SNLJ, 2017 U.S. Dist. LEXIS 72636 (E.D. Mo. May 12, 2017)
(holding that a parent and a wholly-owned subsidiary were jointly represented by the same lawyer; "Here, PTC Group [parent of now-dissolved former subsidiary Seamless, possessing Seamless's documents] claims that it can independently assert the attorney-client privilege shared by it and Seamless in the alleged joint-client representation. This is so because, as PTC Group alleges, essentially at all times and for all matters relevant to this action, PTC Group and Seamless shared a common interest and shared in-house counsel, making them joint-clients. This Court agrees that PTC Group may assert the joint-client privilege, on behalf of itself and Seamless, for documents that otherwise qualify as privileged and relate to matters of common interest of the two corporations. For the same reasons, PTC Group can assert Seamless' work product doctrine privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-12 Federal MO
Comment:

key case


Chapter: 57.2
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 44192 (D. Kansas March 24, 2017)
(in an opinion by Special Master, finding that a former Monsanto lawyer and business person did not resist discovery after being designated by defendant as a testifying expert; "Fed. R. Civ. P. 45 and Minn. R. Civ. P. 45.01-45.06 govern subpoenas issued to non-parties, such as Mr. Carrato. When a subpoena affects the interests of a second non-party, like Monsanto, the non-party whose interests are implicated has standing to challenge the subpoena.")

Case Date Jurisdiction State Cite Checked
2017-03-24 Federal KS
Comment:

key case


Chapter: 57.2
Case Name: Swoboda v. Manders, No. 16-30074, 2016 U.S. App. LEXIS 19580 (5th Cir. Oct. 31, 2016)
(analyzing standing; holding that the defendant could intervene to protect its alleged work product; plaintiff sought documents from defendant's investigator; "The district court held that HK's interest was adequately represented by Continental because Continental asserted the work product privilege that HK would have asserted if HK had been allowed to intervene. We disagree with the district court's conclusion that Continental's work product privilege and HK's work product privilege are one and the same. Continental's work product privilege argument was overruled because Continental is a company that engages in investigative work, and the district court concluded that the discovery that Swoboda sought was produced in Continental's ordinary course of business, i.e., in the course of a Continental investigation. HK is a gun manufacturer. Investigations are not a part of HK's ordinary course of business. Some of the discovery that Swoboda sought was, from HK's perspective, prepared in anticipation of litigation. We have held that an applicant-intervenor should be allowed to intervene when it 'has a defense not available to the present defendant' HK has a defense unavailable to Continental, and it should have been allowed to present that defense in the district court.")

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

Chapter: 57.2
Case Name: CTB, Inc. v. Hog Slat, Inc., No. 7:14-CV-157-D, 2016 U.S. Dist. LEXIS 39024, at *14 15 (E.D.N.C. Mar. 23, 2016)
(holding that a party had standing to challenge a subpoena to a nonparty, if necessary to protect the party's privilege; "As a threshold matter, generally, a party lacks standing to challenge a subpoena issued to a nonparty. . . . However, a party may move to quash a subpoena to a nonparty where production of documents in which the claimant has some personal right or privilege is at issue. . . . Here, CTB obviously has the attorney-client privilege and work-product protection with respect to covered information and documents that fall within the scope of the subpoenas. With Marr [plaintiff's trial counsel] and his law firm acting as CTB's agent, CTB arguably possesses a right with respect to the deposition testimony sought from Marr and the documents sought from Clark Hill [Marr's law firm] broader than the attorney-client privilege and work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2016-03-23 Federal NC B 8/16

Chapter: 57.2
Case Name: Martinez v. Liberty Insurance Corporation, Civ. A. No. 15-cv-00838-REB-MEH, 2015 U.S. Dist. LEXIS 138169 (D.D.C. Oct. 9, 2015)
("The general rule is that a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege or upon a showing that there is a privacy interest applicable. . . . Here, the Defendant does not challenge Plaintiffs' standing to seek protection from the subpoena based on the attorney-client privilege and work product doctrine, and the Court finds the Plaintiffs have made the requisite showing to demonstrate they have standing to move to quash Defendant's subpoena.").

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

Chapter: 57.2
Case Name: GE v. United States, 119 F. Supp. 3d 17, 18, 18-19, 19, 20, 20-21, 21 (D. Conn. 2015)
(holding that GE's lawyers at Davis Polk could review for responsiveness GE-related documents sought by the United States from third parties Westport Insurance Company and Cahill Gordon; "Plaintiff General Electric Company ('GE') and defendant United States are embroiled in a high-stakes dispute involving GE's claim for a tax refund with interest of approximately $660 million. The dispute stems from a series of complex corporate restructuring/sale transactions that occurred more than ten years ago."; "The parties are now entangled in a discovery dispute involving a legal issue that does not appear (so far as the parties' briefings reflect) to have been previously addressed in any published decision -- perhaps surprisingly so, because I would expect the issue to be framed with some frequency in complex litigation. The issue here supposes a lawsuit between Party A and Party B and that Party A issues a subpoena to a non-party seeking documents that may be subject to a claim of privilege by opposing party B. It further supposes the right of Party B to conduct a privilege review of the subpoenaed documents before they are produced by the non-party to Party A to ensure that the document production does not include documents subject to a claim of attorney-client privilege."; "The question, then, is whether Party B (or, more precisely, its counsel) may also -- at the non-party's request -- conduct a responsiveness review of the documents before they are produced to Party A. In short, is it proper for a non-party recipient of a document subpoena from Party A to delegate or outsource a portion of its compliance obligations to the opposing Party B and its counsel in the litigation?"; "Here, the issue arises in the context of the Government's complaint about GE's conduct with respect to two subpoenas served by the Government on two non-parties to this action: Westport Insurance Company ('Westport') and Cahill Gordon & Reindel LLP ('Cahill'). Westport is a former subsidiary of GE and possesses documents relating to a former GE insurance subsidiary of great importance to this litigation. Cahill is a major law firm that served as counsel to GE on a range of transactional matters in 2002 and 2003 that are also important to the tax dispute in this case."; "Although the Government does not contest GE's right to conduct a privilege review, it vehemently objects to GE or its counsel's involvement in deciding what documents are responsive to the subpoenas that it has served on Westport and Cahill."; "The Government has a right to receive documents that are responsive to its subpoenas, not to have a completely neutral party review and decide what documents are responsive."; "Nor am I persuaded by the Government's myopic view of the scope of the ethical rules that otherwise govern Davis Polk's conduct. The ethical obligations of counsel do not run solely to a client. Quite to the contrary, counsel have multiple ethical obligations to third parties and to the Court that foreclose them from lying, from concealing or altering evidence, or from otherwise engaging in conduct inimical to the due administration of justice. I decline to conclude that David Polk attorneys are free from ethical constraints with respect to their review of Westport and Cahill documents or to presume that Davis Polk attorneys will fail to disclose non-privileged, responsive documents in breach of their ethical obligations."; "I reject the Government's argument that it is categorically improper for a party (or its counsel) in a lawsuit to undertake not only a privilege review but also a responsiveness review of documents that have been sought by the opposing party from a non-party to the litigation. My conclusion assumes that the non-party has knowingly delegated responsibility to a party to the litigation to conduct a responsiveness review. And of course it presupposes as always that the non-party recipient of a subpoena -- notwithstanding its administrative delegation of functions to any third party -- remains ultimately answerable to ensure that its obligations to fulfill the requirements of the subpoena are fully and faithfully discharged."

Case Date Jurisdiction State Cite Checked
2015-07-22 Federal CT B 5/16

Chapter: 57.2
Case Name: Continental Resources, Inc. v. C&D Oilfield Services, Inc., Case No. 1:13-cv-154, 2015 U.S. Dist. LEXIS 94061 (D.N.D. July 20, 2015)
("[T]he court concludes that C&D could rely upon EMC's objections and motion insofar as presenting and preserving its objections given that EMC is a representative of C&D within the meaning of Rule 26(b)(3)(A). In fact, C&D probably need not have formally joined in EMC's motion.")

Case Date Jurisdiction State Cite Checked
2015-07-20 Federal ND

Chapter: 57.2
Case Name: Bethune-Hill v. Virginia State Board of Elections v. Virginia House of Delegates, Civ. A. No. 3:14cv852, 2015 U.S. Dist. LEXIS 68054 (E.D. Va. May 26, 2015)
("The Intervenors may not assert the privilege on behalf of third parties, including individual delegates, campaign committees, or political parties. If the Intervenors are in possession of communications reflecting an individual delegate's request for outside legal advice, the proper course of action is for the House to advise the delegate so that the delegate can properly claim and establish the privilege.")

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

Chapter: 57.2
Case Name: Exobox Technologies Corp. v. Tsambis, Case No. 2:14-cv-501-RFB-VCF, 2014 U.S. Dist. LEXIS 142748 (D. Nev. Oct. 7, 2014)
(finding that a third party did not have standing to assert a client's privilege protection; "It is axiomatic that standing requires the party requesting relief to have a personal legal interest in the subject matter of the dispute. . . . In the context of the attorney-client privilege, the relevant legal interest -- (viz., the privilege) -- belongs to the attorney's client. . . . This means that a third party, like Tsambis, cannot assert the attorney-client privilege to avoid disclosure."; concluding that there had already been a waiver if the third party possessed the privileged communications; "If Tsambis possesses information that he believes is protected by his co-conspirator's attorney-client privilege, then the privilege was most likely waived because Tsambis -- who is a third party -- possess privileged information.")

Case Date Jurisdiction State Cite Checked
2014-10-07 Federal NV

Chapter: 57.2
Case Name: In re Fundamental Long Term Care, Inc. v. Gen. Elec. Capital Corp., Case No. 8:11-bk-22258-MGW, Chapter 7, Adv. No. 8:13-ap-00893-MGW (consolidated), 2014 Bankr. LEXIS 3927, at *28 (M.D. Fla. Sept. 12, 2014)
("The Court concludes that the GTCR Group has standing to assert the privilege, irrespective of whether the GTCR Group was the sender or recipient of the communication. It is clear from the Court's review of the record that Kirkland & Ellis represented the GTCR Group (a fact that the Trustee does not dispute) and that the GTCR Group and THI were co-clients with respect to the restructuring and Ohio litigation. As THI's co-client, the GTCR Group is entitled to invoke the attorney-client privilege, and THI cannot waive that privilege unilaterally.")

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

Chapter: 57.2
Case Name: In re Sherrod, Case No. 14-bk-08950, Ch. 11, 2014 Bankr. LEXIS 2743, *5-6 (N.D. Ill. June 20, 2014)
("The Debtor here, as the holder of the privilege, has not been heard. Instead, Former Counsel filed the Motion to Quash, ostensibly on behalf of the Debtor. It is difficult to see how counsel who has withdrawn from the representation of a party may nonetheless purport to act on behalf of that party in subsequent matters before the court. Nonetheless, as the Debtor has not waived the privilege, the Debtor remains the holder of the privilege and Former Counsel has an obligation and therefore standing to assert attorney-client privilege on her behalf. . . . A Debtor may waive the privilege by voluntarily disclosing confidential attorney-client communication or authorizing her attorney to do so. . . . As the Debtor in this case has neither disclosed confidential information nor consented to its disclosure on her behalf, Former Counsel has standing to assert the privilege on Debtor's behalf.")

Case Date Jurisdiction State Cite Checked
2014-06-20 Federal IL

Chapter: 57.2
Case Name: Allstate Ins. Co. v. Warns, Civ. No. CCB-11-1846, 2013 U.S. Dist. LEXIS 44507, at *6-7 (D. Md. Mar. 28, 2014)
("The sole remaining question, then, is Allstate's standing to assert the privilege. Ms. Warns contends that the attorney-client privilege cannot be invoked by Allstate because the privilege can only be asserted by the client. . . . The insurance company therefore serves as the 'client' for purposes of invoking the privilege regarding communications between counsel and the insurance company relating to the litigation.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal MD B 3/14

Chapter: 57.2
Case Name: Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., No. 2:10-cv-1207 GEB AC, 2014 U.S. Dist. LEXIS 20694, at *13, *14-15 (E.D. Cal. Feb. 18, 2014)
(analyzing the common interest doctrine in the work product context; finding that the common interest doctrine was more narrow in the privilege than in the work product setting; finding that there had not been a waiver when work product was shared between a district attorney and a private plaintiff suing the same defendant; "The general rule, however, is that a party has no standing to quash a subpoena served upon a third party, except as to claims of privilege relating to the documents being sought."; "Here, plaintiff has made no showing that any responsive documents prepared by Mr. Lane [plaintiff's consultant] and/or Chico Environmental include documents prepared for plaintiff or by plaintiff's counsel. Having failed to make this necessary showing, the court finds that plaintiff lacks standing to move to quash the subpoenas to the extent the motion is directed to request Nos. 5 through 8.")

Case Date Jurisdiction State Cite Checked
2014-02-18 Federal CA B 7/14

Chapter: 57.2
Case Name: Cohen v. Moore Becker, P.C., No. 913 WDA 2012, J-A12019-13, slip op. at 8 (Pa. Super. Ct. Feb. 10, 2014)
(non-precedential decision) ("Attorney Farber's attempt to assert an attorney-client privilege on his own behalf, in contravention of the trial strategy of Ms. Cohen's legal malpractice counsel, is without effect, because the attorney-client privilege belongs to Ms. Cohen, even as it extends to Attorney Farber's communications to Ms. Cohen in other matters. . . . Attorney Farber's attempt to assert the attorney-client privilege on behalf of Ms. Cohen is similarly without effect. Attorney Farber is a non-party to the legal malpractice litigation, without capacity to invoke the attorney-client privilege on behalf of Ms. Cohen in that action.")

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

Chapter: 57.2
Case Name: Holland v. Nat'l Union Fire Ins. Co., No. 2:12-cv-1983 TLN AC, 2013 U.S. Dist. LEXIS 157161, at *8-9, *9 n.1, *10 (E.D. Cal. Oct. 31, 2013)
(analyzing standing issues; explaining that the defendant insurance company provided coverage for losses resulting from plaintiff's injury, and sought discovery from a personal injury lawyer who had represented plaintiff in an earlier action against the hospital and the doctor for medical malpractice following a work injury; further noting that the underlying malpractice case was resolved, after which the insurance company sought discovery from plaintiff's personal injury lawyer and defendants' lawyer; holding that plaintiff had standing to resist the insurance company's discovery of the former but not the latter; "Defendant argues first that plaintiff lacks standing to bring the instant motion because only the subpoenaed non-party may move to quash. The Ninth Circuit has yet to address the question of whether a party may bring a motion to quash a subpoena served on a third party. The general consensus of other courts is that, while a motion to quash a subpoena is normally to be made by the person or entity to which the subpoena is directed, an exception applies 'where the party seeking to challenge the subpoena has a personal right or privilege with respect to the subject matter requested in the subpoena.'. . . Accordingly, plaintiff may move to quash the subpoenas to the extent his personal rights or privileges are implicated."; "Though the option was available to him, plaintiff did not move for a protective order pursuant to Federal Rule of Civil Procedure 26(c)."; "Plaintiff never had an attorney-client relationship with Robert Zaro, defense counsel in the medical malpractice action, and therefore cannot assert the privilege as grounds to quash the subpoena directed to him. Plaintiff also may not assert the attorney work-product doctrine for someone who is not his representative.")

Case Date Jurisdiction State Cite Checked
2013-10-31 Federal CA B 5/14

Chapter: 57.2
Case Name: Holland v. Nat'l Union Fire Ins. Co., No. 2:12-cv-1983 TLN AC, 2013 U.S. Dist. LEXIS 157161, at *15 (E.D. Cal. Oct. 31, 2013)
(analyzing standing issues; explaining that the defendant insurance company provided coverage for losses resulting from plaintiff's injury, and sought discovery from a personal injury lawyer who had represented plaintiff in an earlier action against the hospital and the doctor for medical malpractice following a work injury; further noting that the underlying malpractice case was resolved, after which the insurance company sought discovery from plaintiff's personal injury lawyer and defendants' lawyer; holding that plaintiff had standing to resist the insurance company's discovery of the former but not the latter; "Here, since defendant has not shown exceptional circumstances to obtain these reports, it is only due to them as provided in Federal Rule of Civil Procedure 35(b). Thus, plaintiff's motion is granted as to consulting experts." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-10-31 Federal CA B 5/14

Chapter: 57.2
Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 142516, at *5-6 (S.D.N.Y. Sept. 27, 2013)
(acknowledging the bank examination privilege, but noting that it belongs to government; "UBS points out that the Code of Federal Regulations prohibits an entity from disclosing an SAR [suspicious activity report] or the information contained in it and requires any entity that is requested to do so to notify the OCC [Office of Comptroller of the Currency], presumably so that the agency can determine whether to assert the privilege. 12 C.F.R. § 21.11(k). Therefore, while I will order UBS to produce the subject documents, as well as any similar documents listed on the privilege log, I will stay that portion of the order so that UBS may notify the OCC, if it determines that it is required to do so.")

Case Date Jurisdiction State Cite Checked
2013-09-27 Federal NY B 5/14

Chapter: 57.2
Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *17 (N.D. Ohio Aug. 8, 2013)
(analyzing a situation in which a bankruptcy trustee sought documents from the debtor's accountant; holding that the privilege protected communications from the accountant to a lawyer, but did not protect communications that were merely copied to the lawyer or were from the accountant to the client; holding that the accountant could not create protected work product because he was not a party; "Trustee is correct that Scott Snow [accountant] is not a party to this litigation. Having found that Scott Snow acted as Debtor and Karen Myers' agent, Debtor and Karen Myers, as parties in the current litigation in which discovery is sought, have standing to assert work product doctrine protection to documents in Scott Snow's possession, including communications between Scott Snow and themselves, between Scott Snow and their attorneys, as well between themselves and their attorneys. Fed. R. Civ. P. 26(b)(3)(A). Thus, Debtor and Karen Myers have standing to assert work product doctrine with respect to the documents requested by Trustee from Scott Snow.")

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

Chapter: 57.2
Case Name: Waite, Schneider, Bayless & Chesley Co. v. Davis, Case No. 1:11-cv-0851, 2013 U.S. Dist. LEXIS 5253, at *14 (S.D. Ohio Jan. 14, 2013)
("The only basis upon which a party could have standing to quash a non-party subpoena would be a claim or personal right or privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-14 Federal OH B 7/13

Chapter: 57.2
Case Name: United States v. Martoma, 962 F. Supp. 2d 602, 604 (S.D.N.Y. 2013)
(holding that the government did not have standing to assert privilege protection on behalf of a cooperating witness, employed by the University of Michigan; "While the Government may have an ethical obligation to bring the privilege issue to the Court's attention, that obligation does not confer standing on the Government to assert privilege on Dr. Gilman's behalf under the circumstances of this case.")

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

Chapter: 57.2
Case Name: Hyatt v. Cal. Franchise Tax Board, 962 N.Y.S.2d 282, 288 (N.Y. App. Div. 2013)
("A person other than one to whom a subpoena is directed has standing to move to quash the subpoena where he or she has a proprietary interest in the subject documents or where they involve privileged communications.")

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

Chapter: 57.2
Case Name: In re Grand Jury, 705 F.3d 133, 142 (3d Cir. 2012)
(holding that a company could not rely on the Perlman [Perlman v. United States, 247 U.S. 7 (1918)] doctrine to immediately appeal a court order requiring its law firm to produce privileged documents, because the company could retrieve the documents from the law firm, withhold them, and then appeal the contempt order; "ABC Corp. has standing to challenge the grand jury subpoenas because it claims attorney-client and work product privileges in the documents and testimony at issue. . . . John Doe 1 and John Doe 2, in contrast, do not hold any privilege in the sought-after documents or testimony and have not asserted any other interest in them. They therefore lacked standing to oppose the Government's motion to enforce the subpoenas, and do not have standing to appeal the District Court's resulting Orders." (footnote omitted))

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

Chapter: 57.2
Case Name: Green v. Sauder Mouldings, Inc., 223 F.R.D. 304, 306 (E.D. Va. 2004)
("In its memorandum, United contends that Plaintiff lacks standing to quash its subpoena duces tecum. Absent any specific Fourth Circuit guidance on the issues addressed therein, this Court agrees. A motion to quash should be made by the person or entity from whom or from which the documents or things are requested. Generally, a party to litigation has no standing to move to quash a third-party subpoena duces tecum unless the movant claims some personal right or privilege to the documents sought. Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1974); Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979); 9A Wright & Miller, Federal Practice and Procedure, Civ. 2d 2459 (1995). Here, Plaintiff is not the party to whom the subpoena was issued. Consequently, absent a showing of privilege or private right, he has no standing upon which to quash it. Plaintiff attempts to demonstrate privilege, and thus manufacture standing, by asserting the 'work-product doctrine' of Federal Rule of Civil Procedure [hereinafter "Rule"] 26(b)(3).")

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

Chapter: 57.2
Case Name: Fordham v. Onesoft Corp., Civ. A. No. 00-1078-A, 2000 U.S. Dist. LEXIS 23019, at *5, *5 n.1 (E.D. Va. Nov. 6, 2000)
("Fordham argues that Defendants lack standing to sue because Defendants are not parties to the Order. Specifically, Fordham argues that the Order compels Mintz Levin to produce the documents, not OneSoft. . . . This Court finds this argument is without merit. OneSoft's attorney client privilege is called into question, therefore, OneSoft has standing to challenge the violation of such privilege. See generally In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984).")

Case Date Jurisdiction State Cite Checked
2000-11-06 Federal VA

Chapter: 57.2
Case Name: In re Grand Jury Proceedings (John Doe), 727 F.2d 1352, 1355 (4th Cir. 1984)
("The rule is that an attorney in a situation such as that of the petitioner is entitled to raise such privilege on behalf of his alleged client.")

Case Date Jurisdiction State Cite Checked
1984-01-01 Federal

Chapter: 57.3
Case Name: Broyles v. Cantor Fitzgerald & Co., Civ. A. No. 10-854-JJB-CBW, Civ. A. No. 10-857-JJB-CBW, 2016 U.S. Dist. LEXIS 122625 (M.D. La. Sept. 8, 2016)
(entering an order prohibiting plaintiff from using an adverse inference based on defendant's privilege claim, and also prohibiting the plaintiff from asking witnesses questions that are likely to draw a privilege objection; "At this stage of the proceedings, the Court cannot determine what the trial testimony will be and whether these issues will even arise. Nevertheless, the Court finds that the Motion shall be granted and the CA Funds are precluded from offering any evidence or argument concerning the S&Y Parties' invocations of their attorney client privilege in this case. As discussed herein, calling the jury's attention to that privilege would only serve to imply that the jury should draw an adverse inference, which this Court finds to be improper. The CA Funds shall further be prohibited from asking any question of the S&Y Parties' witnesses where it would be reasonable to conclude that the question would elicit an invocation of the attorney client privilege. However, the instant Ruling has no bearing on whether the CA Funds shall be entitled to a 'missing witness' inference at trial. Should the CA Funds seek such an inference at trial, they shall re-urge their request at that time.")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal LA
Comment:

key case


Chapter: 57.3
Case Name: The People of the State of New York v. Loiseau, 2014-10938, 2016 N.Y. App. Div. LEXIS 5016 (N.Y. Sup. Ct. June 29, 2016)
(allowing a new trial for a criminal defendant because the prosecutor was allowed to ask if the criminal defendant had provided information to his lawyer contradicting his trial testimony; "The defendant contends that he was deprived of a fair trial because the Supreme court allowed the prosecutor, on cross-examination, to question him, in violation of the attorney-client privilege, as to whether he made a certain admission to his attorney which contradicted his trial testimony. . . . The error was not harmless, as the proof of the defendant's guilt was not over-whelming and the questioning was highly damaging to the defendant's credibility, the jury's assessment of which, compared to that of the complainant, was the central issue in the case. . . . Under the circumstances of this case, the court's instructions to the jury in its preliminary instructions and final charge that questions in and of themselves were not evidence, and that the jurors were prohibited from inferring any facts from the mere asking of a question, cannot be deemed to have obviated any prejudice resulting from the error.")

Case Date Jurisdiction State Cite Checked
2016-06-29 Federal NY

Chapter: 57.3
Case Name: GSI Technology, Inc. v. United Memories, Inc., Case No. 5:13-cv-01081-PSG, 2016 U.S. Dist. LEXIS 69984 (N.D. Cal. May 26, 2016)
(declining to grant plaintiff a new trial based on defendant's display to the jury of a videotaped deposition which involved privilege objections, and a picture of plaintiff's lawyer; "UMI's references to GSI fact witness David Chapman's assertion of the attorney-client privilege during deposition and to GSI counsel Jeffrey Shohet do not warrant a new trial. During trial, UMI played a video clip of Chapman's deposition, in which UMI asked Chapman about the contract negotiations with UMI. UMI asked Chapman about his concerns about the non-compete provisions in the contract and their compliance with California law, and Chapman's lawyer, Shohet, instructed Chapman not to answer 'to the extent that there was anything in the disclosure of counsel. If your concerns were based on anything you learned from your counsel.' UMI also displayed a photo of Shohet, taken from DLA Piper's website, for the jury. Over GSI's objection, the photo was used but not admitted into evidence. GSI argues that the evidence of the invocation of the attorney-client privilege caused the jury to draw an adverse inference based on the assertion, and that the photo and other references to Shohet suggested to the jury that the privileged communications between GSI and its attorneys concealed negative information."; "Neither of GSI's arguments is persuasive. GSI cites a number of cases holding that it is impermissible to draw an adverse inference from the assertion of the attorney-client privilege; GSI does not cite, however, any cases holding that evidence of the assertion of the privilege causes a jury to draw an adverse inference. GSI identifies only one instance of UMI referring to GSI's invocation of the privilege, and UMI did not comment on or characterize GSI's invocation in any way. Based on these facts, it is implausible that the assertion of the privilege caused the jury to draw an adverse inference --and in the end, Chapman's invocation of the privilege occurred during his testimony on the contract negotiations, and the jury found for GSI on the breach of contract claim, suggesting that they did not draw any adverse inference."; "GSI also does not provide any basis for finding that displaying Shohet's photo or referring to his communications with his client, GSI, warrants a new trial. GSI argues that UMI showed the photo to suggest to the jury that privileged communications between GSI and its counsel concealed 'some negative information,' but GSI points to no precedent and to no behavior by UMI that explains how showing this photo created that suggestion. The photo was from DLA Piper's website and was not an inappropriate or demeaning photo. Moreover, the photo was used during testimony but not admitted into evidence, limiting whatever impact it might have had on the jury.")

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

Chapter: 57.3
Case Name: GSI Technology, Inc. v. United Memories, Inc., Case No. 5:13-cv-01081-PSG, 2016 U.S. Dist. LEXIS 69984 (N.D. Cal. May 26, 2016)
(declining to grant plaintiff a new trial based on defendant's display to the jury of a videotaped deposition which involved privilege objections, and a picture of plaintiff's lawyer; "UMI's references to GSI fact witness David Chapman's assertion of the attorney-client privilege during deposition and to GSI counsel Jeffrey Shohet do not warrant a new trial. During trial, UMI played a video clip of Chapman's deposition, in which UMI asked Chapman about the contract negotiations with UMI. UMI asked Chapman about his concerns about the non-compete provisions in the contract and their compliance with California law, and Chapman's lawyer, Shohet, instructed Chapman not to answer 'to the extent that there was anything in the disclosure of counsel. If your concerns were based on anything you learned from your counsel.' UMI also displayed a photo of Shohet, taken from DLA Piper's website, for the jury. Over GSI's objection, the photo was used but not admitted into evidence. GSI argues that the evidence of the invocation of the attorney-client privilege caused the jury to draw an adverse inference based on the assertion, and that the photo and other references to Shohet suggested to the jury that the privileged communications between GSI and its attorneys concealed negative information."; "Neither of GSI's arguments is persuasive. GSI cites a number of cases holding that it is impermissible to draw an adverse inference from the assertion of the attorney-client privilege; GSI does not cite, however, any cases holding that evidence of the assertion of the privilege causes a jury to draw an adverse inference. GSI identifies only one instance of UMI referring to GSI's invocation of the privilege, and UMI did not comment on or characterize GSI's invocation in any way. Based on these facts, it is implausible that the assertion of the privilege caused the jury to draw an adverse inference --and in the end, Chapman's invocation of the privilege occurred during his testimony on the contract negotiations, and the jury found for GSI on the breach of contract claim, suggesting that they did not draw any adverse inference."; "GSI also does not provide any basis for finding that displaying Shohet's photo or referring to his communications with his client, GSI, warrants a new trial. GSI argues that UMI showed the photo to suggest to the jury that privileged communications between GSI and its counsel concealed 'some negative information,' but GSI points to no precedent and to no behavior by UMI that explains how showing this photo created that suggestion. The photo was from DLA Piper's website and was not an inappropriate or demeaning photo. Moreover, the photo was used during testimony but not admitted into evidence, limiting whatever impact it might have had on the jury.")

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

Chapter: 57.3
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2768, 2016 U.S. Dist. LEXIS 7477, at *27, *28, *28-29 (E.D. Pa. Jan. 22, 2016)
(entering an order prohibiting plaintiffs from arguing an adverse inference from defendants' privilege assertion; "[I]t would be 'improper to draw an inference of bad faith from the assertion of the attorney-client privilege.'" (citation omitted); "Plaintiffs have thus far offered no evidentiary basis for highlighting Defendants' invocation of the attorney-client privilege or the work product doctrine. Calling the jury's attention to that invocation, would serve only to imply that the jury should draw an adverse inference. As noted above, such an implication is wholly improper. Therefore, Plaintiffs may not mention or draw the jury's attention to Defendants' invocation of the attorney-client privilege or the work product doctrine."; "Plaintiffs also may not ask any question of a defense witness where it would be reasonable to conclude that the question will elicit an invocation of the attorney-client privilege. Plaintiffs' counsel should be well aware of the types of questions that will prompt Defendants to assert the attorney-client privilege at trial, given the extensive discovery undertaken in this case.")

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

key case


Chapter: 57.3
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-CV-8176, 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015)
(agreeing with General Motors that plaintiff should not be able to argue an adverse inference based on General Motors' assertion of privilege or work product protection, but denying General Motors' motions to have plaintiffs pre-clear questions before they pose them at trial; "New GM's motion is GRANTED to the extent that it seeks to preclude any evidence or argument concerning its invocations to the attorney-client privilege (or related protections, such as the work product doctrine), in this litigation or elsewhere. Relatedly, Plaintiff may not introduce evidence or make arguments concerning the crime-fraud allegations made in the motion to compel or the Court's findings."; "New GM does not appear to challenge Plaintiff's opposition to paragraph five of the proposed order, which would have imposed a potentially onerous 'pre-clearance' requirement with respect to any question 'likely to seek privileged information or draw a privilege objection.'"; "'The Court also agrees with New GM that the parties should use good faith efforts to avoid asking questions of a witness that are likely to draw instructions not to answer on the basis of privilege.'").

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

Chapter: 57.3
Case Name: Fleck v. GM LLC (In re GM LLC Ignition Switch Litigation), Nos. 14-MD-2543 (JMF) & 14-CV-8176, 2015 U.S. Dist. LEXIS 163255, at *383 (S.D.N.Y. Dec. 3, 2015)
January 27, 2016 (PRIVILEGE POINT)

"Can Plaintiffs Seek an Adverse Inference from Defendant Corporations' Privilege Assertions?"

The attorney-client privilege benefits society by encouraging clients' frank disclosure to their lawyers, but it undeniably conceals highly relevant communications. Surprisingly, only a few courts have addressed plaintiffs' tactics designed to imply that corporate defendants are relying on the privilege to hide important evidence the jury should hear -- such as (1) directly arguing that defendants are hiding something, or (2) deliberately posing questions that will draw defendants' privilege objections.

In yet another decision from the court handling GM's ignition switch litigation, Judge Furman dealt with this issue. In Fleck v. GM LLC (In re GM LLC Ignition Switch Litigation), the court granted GM's motion "to preclude any evidence or argument concerning its invocations of the attorney-client privilege (or related protections, such as the work product doctrine), in this litigation or elsewhere." Nos. 14-MD-2543 (JMF) & 14-CV-8176, 2015 U.S. Dist. LEXIS 163255, at *383 (S.D.N.Y. Dec. 3, 2015). However, the court denied GM's motion to impose what the court called "a potentially onerous 'pre-clearance' requirement with respect to any question 'likely to seek privileged information or draw a privilege objection.'" Id. At *384 (internal citation omitted). Instead, the court directed that "the parties should use good faith efforts to avoid asking questions of a witness that are likely to draw instruction not to answer on the basis of privilege." Id. At *385-86.

Corporations which have successfully asserted privilege protection during discovery should be prepared to resist plaintiffs' possible attempts to make jurors think that the corporations are improperly hiding evidence from them.

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

key case


Chapter: 57.3
Case Name: Sharer v. Tandberg, Inc., No. 1:06cv626 (JCC), 2007 U.S. Dist. LEXIS 22391, at *3, *4, *4-5, *6 (E.D. Va. Mar. 27, 2007)
(assessing defendant's questions to plaintiff about his meeting with his lawyer; noting that during depositions, the defendant's lawyer asked about the time of communications between the plaintiff and his lawyer; "Plaintiffs anticipate that Defendant will attempt to raise an inference at trial that Law [plaintiff] may have consulted with legal counsel concerning the April 2006 emails, and move to exclude such negative inferences regarding Law's assertion of the attorney client privilege."; explaining that "[t]he mere fact of legal consultation also falls outside the protection of the privilege"; explaining plaintiff's position; "It is clear that the substance of any communications between Law and his attorney are protected by the attorney client privilege, while the fact that he met with an attorney--which he has openly admitted during the course of this litigation is not. . . . Thus, Plaintiffs do not seek to protect the fact of legal consultation under the guise of the attorney client privilege, but instead seek to protect against a negative inference about the substantive information sought during such consultations--namely whether Law was advised by counsel in writing the emails to Tandberg. The issue for this Court to resolve is whether an inference regarding assertion of the privilege intrudes upon that privilege or is irrelevant under Rule 402 of the Federal Rules of Evidence."; "The fact that Law met with an attorney prior to the email exchange with Smith, Ricci, and Kent is only relevant to the extent that an inference may be drawn as to the substance of legal communications between attorney and client. As the Fourth Circuit held in Parker, 'any such inference would intrude upon the protected realm of the attorney client privilege.' . . . Accordingly, Defendant may not refer to Plaintiff's legal consultation prior to the April emails to draw an inference about the substance of legal advice. In concordance with the Fourth Circuit precedent established in Parker, because the fact of legal consultation is only relevant in order to draw this improper inference, the danger of unfair prejudice to the Plaintiff greatly outweighs any probative value under Rule 403 of the Federal Rules of Evidence. Accordingly, this Court sees no reason to allow Defendants to question Law regarding his consultations with counsel prior to the sending of the emails.")

Case Date Jurisdiction State Cite Checked
2007-03-27 Federal VA

Chapter: 57.3
Case Name: Sharer v. Tandberg, Inc., No. 1:06cv626 (JCC), 2007 U.S. Dist. LEXIS 22391, at *4-6 (E.D. Va. Mar. 27, 2007)
("The attorney client privilege 'protects only the communications themselves, not underlying facts.' X-Corp. v. Doe, 805 F. Supp. 1298, 1305 (E.D. Va. 1992) (citing Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)). The mere fact of legal consultation also falls outside the protection of the privilege. See, e.g., In Re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983); Howell v. Jones, 516 F.2d 53, 58 (5th Cir. 1975). It is clear that the substance of any communications between Law and his attorney are protected by the attorney-client privilege, while the fact that he met with an attorney – which he has openly admitted during the course of this litigation is not. Thus, Plaintiffs do not seek to protect the fact of legal consultation under the guise of the attorney-client privilege, but instead seek to protect against a negative inference about the substantive information sought during such consultations – namely whether Law was advised by counsel in writing the emails to Tandberg. The issue for this Court to resolve is whether an inference regarding assertion of the privilege intrudes upon that privilege or is irrelevant under Rule 402 of the Federal Rules of Evidence. The Fourth Circuit examined the issue of whether a negative inference may be drawn by invocation of the attorney-client privilege in Parker v. Prudential Ins. Co. of America, 900 F.2d 772 (4th Cir. 1990). In that case, the Fourth Circuit held that 'a client asserting the privilege should not face a negative inference about the substance of the information sought.' Id. at 775. The Court's decision was based upon the finding that the testimony was only probative if one infers that the attorney advised the client to act as she did. The fact that Law met with an attorney prior to the email exchange with Smith, Ricci, and Kent is only relevant to the extent that an inference may be drawn as to the substance of legal communications between attorney and client. As the Fourth Circuit held in Parker, 'any such inference would intrude upon the protected realm of the attorney-client privilege.' Id. Accordingly, Defendant may not refer to Plaintiff's legal consultation prior to the April emails to draw an inference about the substance of legal advice. In concordance with the Fourth Circuit precedent established in Parker, because the fact of legal consultation is only relevant in order to draw this improper inference, the danger of unfair prejudice to the Plaintiff greatly outweighs any probative value under Rule 403 of the Federal Rules of Evidence. Accordingly, this Court sees no reason to allow Defendants to question Law regarding his consultations with counsel prior to the sending of the emails." (footnotes omitted))

Case Date Jurisdiction State Cite Checked
2007-03-27 Federal VA B 3/16

Chapter: 57.3
Case Name: Trigon Ins. Co. v. United States, 204 F.R.D. 277, 291 (E.D. Va. 2001)
("[I]t is appropriate to draw adverse inferences respecting the substantive testimony and credibility of the experts. That will be done based on the evidence presented at trial.")

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

Chapter: 57.3
Case Name: Parker v. Prudential Ins. Co. of Am., 900 F.2d 772, 775 (4th Cir. 1990)
("To protect that interest, a client asserting the privilege should not face a negative inference about the substance of the information sought.")

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal

Chapter: 57.4
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("Therefore, evidentiary privileges should be 'strictly construed and accepted only to the very limited extent that . . . [what they protect] transcend[s] the normally predominant principle of utilizing all rational means for ascertaining truth.'")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 57.4
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "In keeping with this well-settled principle and the broad investigatory and subpoena authority given to agencies, courts have indicated that the privilege should be granted cautiously where administrative investigations are involved.")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal

Chapter: 57.4
Case Name: One World Foods, Inc. v. Stubb's Austin Restaurant Company LC, Case No. A-15-CA-1071-SS, 2016 U.S. Dist. LEXIS 167125 (W.D. Tex. Dec. 2, 2016)
(holding that plaintiff had waived privilege protection for a legal opinion by turning it over to McCormick, which insisted on receiving the opinion before purchasing the plaintiff; rejecting plaintiff's argument that it and McCormick shared a common interest, because the court found there was no palpable threat of litigation; "Because the assertion of privilege inhibits the search for truth, courts generally construe privilege exemptions narrowly.")

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

Chapter: 57.4
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 burden of establishing that certain documents are privileged and protected from discovery is on the party asserting the privilege, and the protection claimed must be narrowly construed.")

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

Chapter: 57.4
Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 145811 (N.D. Ill. Oct. 28, 2015)
("The attorney-client privilege, like all testimonial privileges and all exclusionary rules, comes at a price. Since it makes the search for truth more difficult by preventing disclosure of what is often exceedingly relevant information, the privilege is strictly construed and is limited to those instances where it is necessary to achieve its purposes.").

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

Chapter: 57.4
Case Name: United States v. von Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139 (E.D.N.C. March 25, 2015)
("These rules are set against the backdrop that the attorney client privilege is disfavored . . . Because its application interferes with 'the truth seeking mission of the legal process.'")

Case Date Jurisdiction State Cite Checked
2015-03-25 Federal NC

Chapter: 57.4
Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civil Action No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *4 (W.D. Va. July 9, 2014)
("[T]he privilege is an exception to the general duty to disclose, and, thus, is an obstacle to investigation of the truth; as such, it should be strictly construed.")

Case Date Jurisdiction State Cite Checked
2014-07-09 Federal VA

Chapter: 57.4
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "Since the privilege, like all testimonial privileges and all exclusionary rules, makes the search for truth more difficult by preventing disclosure of what is often exceedingly relevant and probative information, it is narrowly construed . . . and is limited to those instances where it is necessary to achieve its purposes.")

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

Chapter: 57.4
Case Name: A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., Civ. No. 3:07CV929 (WWE), 2013 U.S. Dist. LEXIS 162331, at *25 (D. Conn. Nov. 14, 2013)
("The Court construes the privilege narrowly because it renders relevant information undiscoverable; we apply it 'only where necessary to achieve its purpose.'")

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

Chapter: 57.4
Case Name: Toensing v. United States Dep't of Justice, Civ. A. No. 11-1215 (BAH), 2013 U.S. Dist. LEXIS 162158, at *14 (D.D.C. Nov. 14, 2013)
("In applying the work product doctrine, the D.C. Circuit has instructed that, it 'should be interpreted broadly and held largely inviolate.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal DC B 5/14

Chapter: 57.4
Case Name: Lord Abbett Municipal Income Fund, Inc. v. Asami, No. C-12-03694 DMR, 2013 U.S. Dist. LEXIS 147830, at *5-6 (N.D. Cal. Oct. 11, 2013)
(analyzing the common interest doctrine; finding that bondholders and Wells Fargo (the indenture trustee) did not share a common interest; "Because evidentiary privileges prevent the admission of relevant and otherwise admissible evidence, they should be narrowly construed.")

Case Date Jurisdiction State Cite Checked
2013-10-11 Federal CA B 5/14

Chapter: 57.4
Case Name: Guidiville Rancheria of Cal. v. United States, Case No. 12-cv-1326 YGR (KAW), 2013 U.S. Dist. LEXIS 120509, at *4 (N.D. Cal. Aug. 23, 2013)
("[T]he attorney-client privilege is strictly construed, and it is Defendants' burden to prove every element, including that the privilege was not waived.")

Case Date Jurisdiction State Cite Checked
2013-08-23 Federal CA B 4/14

Chapter: 57.4
Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *8 (S.D. Ind. June 3, 2013)
("In Indiana, privilege is applied narrowly, especially to communications with in-house counsel.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 57.4
Case Name: Elat v. Emandopngoubene, Case No. PWG-11-2931, 2013 U.S. Dist. LEXIS 37875, at *10 (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; "[C]ourts have narrowly construed the attorney-client privilege.")

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

Chapter: 57.4
Case Name: Buxbaum v. St. Vincent's Health Servs., Inc., Civ. No. 3:12CV117 (WWE), 2013 U.S. Dist. LEXIS 2246, at *6 (D. Conn. Jan. 7, 2013)
("The Court construes the privilege narrowly because it renders relevant information undiscoverable; we apply it 'only where necessary to achieve its purpose.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-07 Federal CT B 7/13

Chapter: 57.4
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 583 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "Because application of the attorney-client privilege obstructs the truth-seeking process, it must be narrowly construed.")

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

Chapter: 57.4
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222 (Ill. 2013)
("[T]he attorney-client privilege constitutes a departure from the general duty to disclose and, accordingly, must be 'strictly confined within its narrowest possible limits.'" (citation omitted))

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

Chapter: 57.4
Case Name: People v. Radojcic, 998 N.E.2d 1212, 1222 (Ill. 2013)
("[T]he attorney-client privilege constitutes a departure from the general duty to disclose and, accordingly, must be 'strictly confined within its narrowest possible limits.'" (citation omitted))

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

Chapter: 57.4
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *3 (E.D. Va. July 12, 2012)
("Because of this adverse result, in the Fourth Circuit, the work product and attorney-client privileges are construed 'quite narrowly.' Id. [Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004)]. They are recognized 'only to the very limited extent that . . . excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.' Id. [Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004)] (quoting Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)).")

Case Date Jurisdiction State Cite Checked
2012-07-12 Federal VA

Chapter: 57.4
Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *6 (W.D. Va. June 28, 2012)
("'[T]he privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed.' Edwards, 370 S.E.2d at 301; see In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984) (privilege not favored by federal courts and 'is to be strictly confined within the narrowest possible limits. . . .').")

Case Date Jurisdiction State Cite Checked
2012-06-28 Federal VA

Chapter: 57.4
Case Name: Turner v. Digital Broad. Corp., Civ. A. No. 7:10 cv 00559, 2012 U.S. Dist. LEXIS 1416, at *3 n.2 (W.D. Va. Jan. 5, 2012)
("The attorney client privilege must be narrowly construed because it interferes with 'the truth seeking mission of the legal process.' In re Grand Jury Subpoena, 415 F.3d 333, 338 (4th Cir. 2005) (quoting on United States v. Tedder, 801 F.2d 1437, 1441 (4th Cir. 1986)). It will be recognized 'only to the very limited extent that . . . excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.' Id. (relying on Trammel v. United States, 445 U.S. 40, 50, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980)).")

Case Date Jurisdiction State Cite Checked
2012-01-05 Federal VA

Chapter: 57.4
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Because of this adverse result, in the Fourth Circuit, work product and attorney-client privilege are construed 'quite narrowly.'")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 57.4
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, ??? (W.D. Va. 2012)
("Since the privilege is an exception to the general rule of disclosure 'an obstacle to investigation of the truth' it is to be strictly construed. Edwards, 370 S.E.2d at 301 [Commonwealth v. Edwards, 235 Va. 499, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (Va. 1988)]

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal

Chapter: 57.4
Case Name: Camacho v. Nationwide Mut. Ins. Co., 287 F.R.D. 688, 692 (N.D. Ga. 2012)
("In Georgia, the attorney-client privilege is to be narrowly construed.")

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

Chapter: 57.4
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *11 (W.D. Va. June 15, 2011)
("Given that it impedes the full and free discovery of the truth, however, the privilege must be narrowly construed. Hawkins, 148 F.3d at 383.")

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

Chapter: 57.4
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *11 (W.D. Va. June 15, 2011)
("Given that it impedes the full and free discovery of the truth, however, the privilege must be narrowly construed.")

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

Chapter: 57.4
Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, *6-7 (E.D. Va. May 12, 2011)
("[T]he Fourth Circuit Court of Appeals, as the governing appellate authority for this Court, has determined that the attorney-client privilege is to be 'strictly confined within the narrowest possible limits consistent with the logic of its principle.'")

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

Chapter: 57.4
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; finding that the privilege should be "strictly" construed)

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

Chapter: 57.4
Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 571 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [the medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); concluding that the attorney-client privilege did not protect communications between the new employer's president/CEO and the doctor's lawyer; "However, 'the privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed.'" (footnote omitted))

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

Chapter: 57.4
Case Name: The Flexible Benefits Council v. Feldman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *10 (E.D. Va. Oct. 8, 2008)
("In the Fourth Circuit, this privilege is disfavored and is 'strictly confined within the narrowest possible limits.' In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984).")

Case Date Jurisdiction State Cite Checked
2008-10-08 Federal VA

Chapter: 57.4
Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, *12 (W.D. Va. Apr. 15, 2008)
("Because the privilege is an impediment to 'full and free discovery of the truth,' it is to be narrowly construed." (citation omitted))

Case Date Jurisdiction State Cite Checked
2008-04-15 Federal VA B 5/09

Chapter: 57.4
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007)
("Courts disfavor assertions of evidentiary privilege because they shield evidence from the truth-seeking process. . . . assertions of evidentiary privilege are narrowly and strictly construed.")

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal VA

Chapter: 57.4
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 750 (E.D. Va. 2007)
("[A]s with assertions of work-product protection, the privilege is strictly construed, United States v. (Under Seal), 748 F.2d 871, 875 (4th Cir. 1984).")

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal VA

Chapter: 57.4
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 748 (E.D. Va. 2007)
("Courts disfavor assertions of evidentiary privilege because they shield evidence from the truth-seeking process."; requiring the proponent of a protection to demonstrate the protection's applicability, "preferably through affidavits from knowledgeable persons"; "[A]ssertions of evidentiary privilege are narrowly and strictly construed.")

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal VA

Chapter: 57.4
Case Name: United States v. Regan, 281 F. Supp. 2d 795, 803 (E.D. Va. 2002)
("'[T]he attorney-client privilege is to be narrowly construed.' Id. [Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)] See also United States v. Oloyede, 982 F.2d 133, 141 (4th Cir. 1993) (same); In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984)")

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

Chapter: 57.4
Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("This privilege is inconsistent with the general duty to disclose, impedes the investigation of the truth, and should be strictly construed. [Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988)]")

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

Chapter: 57.4
Case Name: Commonwealth of Va. v. Evans, 55 Va. Cir. 237, 242 (Va. Cir. Ct. 2001)
("The privilege, however, 'is an obstacle to investigation of the truth, and should be strictly construed.' Id. [Commonwealth v. Edwards, 235 Va. 499, 508-510, 370 S.E.2d 296, 301 (1988) (quoting Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914)] (citing 8 Wigmore, Evidence § 2291 at 554 (McNaughton rev. 1961)).")

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

Chapter: 57.4
Case Name: Commonwealth v. Miller, 66 Va. Cir. 470, 470 (Va. Cir. Ct. 2001)
("This, however, is a privilege that is strictly construed. Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 4 Va. Law Rep. 3003 (1988).")

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

Chapter: 57.4
Case Name: Duncan v. Duncan, 56 Va. Cir. 262, 263 (Va. Cir. Ct. 2001)
(addressing efforts by a lawyer to avoid discovery sought by plaintiff (administrator of a daughter's estate) from the lawyer, who formerly represented both the plaintiff and his former wife (mother of the deceased daughter); finding that the privilege must be "strictly construed") [Hudson, J.]

Case Date Jurisdiction State Cite Checked
2001-01-01 State VA N 11/08

Chapter: 57.4
Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 188 (Va. Cir. Ct. 2000)
("The Supreme Court has noted that 'the privilege is an exception to the general duty to disclose . . . and should be strictly construed.' Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296 (1988) (citing 8 Wigmore, Evidence, § 2291 at 554 (McNaughton rev. 1961)).")

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

Chapter: 57.4
Case Name: S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 242 (Va. Cir. Ct. 1993)
("However, the privilege is an exception to the general duty to disclose, is an obstacle to the investigation of the truth, and should be strictly construed.")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA B 12/09

Chapter: 57.4
Case Name: X Corp. v. Doe, 805 F. Supp. 1298, 1305 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "[T]he privilege is narrowly construed to apply only to those situations in which the party invoking the privilege consulted an attorney for the purpose of securing a legal opinion or services and in connection with that consultation communicated information intended to be kept confidential."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

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

Chapter: 57.4
Case Name: Commonwealth v. Edwards, 370 S.E.2d 296, 301 (Va. 1988)
("Nevertheless, the privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed."; affirming the trial court's rulings on attorney-client privilege and work product doctrine issued after an in camera review of documents sought by the state government in a Medicaid investigation of a nursing home)

Case Date Jurisdiction State Cite Checked
1988-01-01 State VA

Chapter: 57.4
Case Name: Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (Va. 1988)
("[T]he privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed.")

Case Date Jurisdiction State Cite Checked
1988-01-01 State VA

Chapter: 57.404
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 827 (E.D. Va. 2005)
("And importantly, the burden is on the proponent of the attorney-client privilege to demonstrate its applicability. Specifically, the proponent must establish 'not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003)." (footnotes omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

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

Chapter: 57.502
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 protects legal advice only; it does not shield business advice. . . . Where business and legal advice cannot be separated in a given communication, 'the communication will be considered privileged only if the legal aspects predominate.' On the other hand, where business and legal advice can be easily segregated, the communication 'must be produced with the legal-related portions redacted.' And if 'it is too difficult to determine if the legal issues predominate in a given communication,' 'the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced.'")

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

Chapter: 57.502
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 protects legal advice only; it does not shield business advice. . . . Where business and legal advice cannot be separated in a given communication, 'the communication will be considered privileged only if the legal aspects predominate.' On the other hand, where business and legal advice can be easily segregated, the communication 'must be produced with the legal-related portions redacted.' And if 'it is too difficult to determine if the legal issues predominate in a given communication,' 'the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced.'")

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

Chapter: 57.502
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; finding that the report deserved privilege protection; "Attorney-client privilege protects confidential communications between attorneys and clients, including internal investigation reports supplied by attorneys to their clients, when one of the significant purposes of communication is legal advice, rather than only business advice. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)."; "After reviewing the report in camera, the Court concludes that the report was confidential legal advice from an attorney to a client, and therefore is protected by attorney-client privilege. The Court presumes that outside counsel is retained for legal purposes. . . . Here, the presumption is borne out by the document itself. It includes legal conclusions as to the company's exposure to liability, legal recommendations for avoiding liability from these allegations and protecting against future misconduct that could lead to new allegations, and litigation strategies relating to the sexual harassment allegations at issue at the time of the report. Thus, a 'significant purpose' of the report was to provide legal advice. . . . There are also several indications that the document was intended to be a confidential communication between an attorney and his clients. The report is labeled 'Attorney-Client Privilege' and states that it is '[n]ot to be disseminated beyond ownership group,' with Ergo's owners listed by name underneath. Thus, because the report contains primarily legal advice and was a confidential communication between an attorney and his clients, the report is privileged.")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 57.502
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)
("In determining whether the attorney-client privilege applies, California law employs a shifting burden approach. Initially, the party claiming the privilege must establish "'the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.'"; "Once the party claiming the attorney-client privilege makes the prima facie showing described above, "'the communication is presumed to have been made in confidence.'. . . Then, "'the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.'")

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

Chapter: 57.502
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: 57.502
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: 57.502
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: 57.502
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: 57.502
Case Name: Cedar Grove Composting Inc. v. Ironshore Specialty Ins. Co., Case No. C14-1443RAJ, 2015 U.S. Dist. LEXIS 171576 (W.D. Wash. Dec. 23, 2015)
("Under Washington law, 'in first-party bad faith insurance suits, Cedell creates a 'presumption that there is no attorney-client privilege relevant between the insured and the insurer in the claims adjusting process, and that the attorney-client and work product privileges are generally not relevant.'").

Case Date Jurisdiction State Cite Checked
2015-12-23 Federal WA

Chapter: 57.502
Case Name: Neelon v. Blair Krueger, Civ. A. No. 12-cv-11198-IT, 2015 U.S. Dist. LEXIS 29146 (D. Mass. March 10, 2015)
("The magistrate judge found that 'communications between Plaintiff and his counsel in the instant litigation" were "presumptively privileged' and need not be disclosed.")

Case Date Jurisdiction State Cite Checked
2015-03-10 Federal MA

Chapter: 57.502
Case Name: Neelon v. Krueger; Civ. A. No. 12-11198-IT, 2014 U.S. Dist. LEXIS 175792 (D. Mass. Dec. 19, 2014)
("Section D is entitled 'Communications between Plaintiff and his Litigation Counsel.' Paragraph 1 refers to communications between the plaintiff and Attorney Andrews, his counsel of record in this case. If all of these communications were in connection of the instant litigation, the Court would not require a privilege log unless the defendants indicated that they sought discovery of these communications and demonstrated some reason why the attorney-client privilege would not apply. The Court views such communications as presumptively privileged.")

Case Date Jurisdiction State Cite Checked
2014-12-19 Federal MA

Chapter: 57.502
Case Name: Neelon v. Krueger; Civ. A. No. 12-11198-IT, 2014 U.S. Dist. LEXIS 175792 (D. Mass. Dec. 19, 2014)
("To the extent that the privilege is claimed as to communications between plaintiff and his counsel in the instant litigation, the Court, as previously stated, views these communications as presumptively privileged.")

Case Date Jurisdiction State Cite Checked
2014-12-19 Federal MA

Chapter: 57.502
Case Name: Safety Text & Equip. Co. Inc. v. Am. Safety Util. Corp., 13 CVS 1037, 2014 NCBC 40, at *14, *15 (N.C. Super. Ct. Sept. 2, 2014)
("Some courts expressly presume that there has been no waiver until a party opposing privilege demonstrates a factual predicate for claiming waiver."; "Other courts, including the Fourth Circuit, implicitly presume the absence of waiver absent contrary evidence."; "The court concludes that this burden-shifting approach is consistent with North Carolina precedent and should be followed here. The approach prevents placing an initial heavy and unrealistic burden on the privilege holder to account for and disprove every possibility of waiver.")

Case Date Jurisdiction State Cite Checked
2014-09-02 State NC

Chapter: 57.502
Case Name: Collazo v. Balboa Ins. Co., Case No. C13-892 JCC, 2014 U.S. Dist. LEXIS 109336 (W.D. Wash. Aug. 7, 2014)
("Where an attorney is engaged in the tasks of 'investigating and evaluating or processing the claim' during the claims adjustment process . . . The presumption against the attorney-client privilege applies and the insurer may not raise the shield of privilege. However, where an attorney instead engages in core attorney-client communications with the insurer, such as 'providing the insurer with counsel as to its own potential liability,' there is no presumption against the attorney-client privilege. . . . Here, upon review of the unredacted documents in camera, the Court finds that the relevant entries did not relate to the investigation, evaluation, or processing of the claim. Instead, they consist solely of statements that are an attorney's work-product, or are protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-08-07 Federal WA

Chapter: 57.502
Case Name: Collazo v. Balboa Ins. Co., Case No. C13-892 JCC, 2014 U.S. Dist. LEXIS 109336 (W.D. Wash. Aug. 7, 2014)
("In Washington, 'in first party insurance claims by insured's [sic] claiming bad faith in the handling and processing of claims . . . There is a presumption of no attorney-client privilege' in the claims adjustment process.")

Case Date Jurisdiction State Cite Checked
2014-08-07 Federal WA

Chapter: 57.502
Case Name: Feld v. Fireman's Fund Insurance Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. LEXIS 52525 (D.D.C. Apr. 16, 2014)
July 2, 2014 (PRIVILEGE POINT)

"Court Requires an Adversary to Specifically Challenge a Litigant's Privilege Log"

In most situations, litigants withholding protected documents must specifically list and describe the documents, rather than relying on blanket privilege or work product assertions. Do courts require an adversary to show the same level of specificity in challenging a litigant's privilege log?

In Feld v. Fireman's Fund Insurance Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. LEXIS 52525 (D.D.C. Apr. 16, 2014), circus owner Feld sought attorneys' fees after winning an insurance coverage action against defendant insurance company. Among other things, the insurance company challenged Feld's withholding of documents on work product protection grounds. Although acknowledging that the defendant "ha[d] not seen the actual documents, so it might have been difficult to offer detailed objections to individual entries on Feld's privilege log," the court noted that defendant "has not even attempted to do so, instead offering only one paragraph of generalized argument that is purportedly applicable to every single document in dispute." Id. at *9. The court rejected the insurance company's blanket challenge to Feld's log -- concluding that Feld's lawyers "are presumed to be conducting themselves diligently and in good faith" in preparing privilege logs in their role as "officers of the court." Id. at *11. The court nevertheless "reviewed a limited sample of the disputed documents in camera" and found Feld's privilege log adequate. Id. (footnote omitted). Interestingly, the court specifically described one log entry as an "email thread" -- thus implicitly disagreeing with courts that require each email to be separately logged. Id. at *13.

Corporations that frequently log numerous protected documents should take comfort in both aspects of such common-sense opinions.

Case Date Jurisdiction State Cite Checked
2014-04-16 Federal DC
Comment:

key case


Chapter: 57.502
Case Name: Swortwood v. Tenedora De Empresas, S.A. DE C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247, at *42 (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; "Once an attorney-client relationship is established, communications between attorney and client are presumed to be in confidence, and an opposing party bears the burden of proving the communication was not in confidence. Cal. Evid.Code § 917.")

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

Chapter: 57.502
Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *4 5 (Del. Ch. Dec. 9, 2013
("I further note that the attorney-client privilege protects legal advice only, and not business or personal advice. Where business and legal advice are inseparable in a communication -- or the communication includes individuals serving in both business and legal advisory roles -- the communication will be considered privileged only if the legal aspects predominate. . . . In addition, for communications containing both business and legal advice, in which the business and legal advice can be segregated easily, they 'must be produced with the legal-related portions redacted.' There are circumstances, however, in which legal and business advice cannot be segregated or it is too difficult to determine if the legal issues predominate in a given communication. In those situations, the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced." (citation and footnotes omitted))

Case Date Jurisdiction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 57.502
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 634 (D. Nev. 2013)
("Both Chen [United States v. Chen, 99 F.3d 1495 (9th Cir. 1996)] and United States v. ChevronTexaco Corp. [, 241 F.Supp.2d 1065 (N.D. Cal. 2002)] affirm that '[c]ommunications between a client and its outside counsel are presumed to be made for the purpose of obtaining legal advice.'" (citation omitted))

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

Chapter: 57.502
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 643 (D. Nev. 2013)
("While there is a presumption that communications between a client and outside counsel are made for the purpose of obtaining legal advice, this presumption is rebuttable.")

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

Chapter: 57.502
Case Name: Hedden v. Kean Univ., 82 A.3d 238, 245 (N.J. Super. Ct. App. Div. 2013)
("[T]here is a presumption that a communication made in the lawyer-client relationship has been made in professional confidence.")

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

Chapter: 57.502
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *8 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "Communication between corporate client and outside litigation counsel are cloaked with a presumption of privilege. . . . Communications between corporate client and corporate counsel -- on the other hand -- involve a much different dynamic and require the proponent to satisfy a 'purpose and intent' threshold test.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 57.502
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; "While a claim of privilege should be presumed to be proper until challenged by the party seeking the materials, Ms. Collins has challenged the hospital's claim at every turn. . . . The burden of establishing the privilege . . . falls solely on the hospital.")

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

Chapter: 57.502
Case Name: Collins v. Braden, 384 S.W.3d 154, 161 (Ky. 2012)
("While a claim of privilege should be presumed to be proper until challenged by the party seeking the materials, Ms. Collins has challenged the hospital's claim at every turn.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State KY B 1/14

Chapter: 57.502
Case Name:


Case Date Jurisdiction State Cite Checked

Chapter: 57.503
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 643 (D. Nev. 2013)
("While there is a presumption that communications between a client and outside counsel are made for the purpose of obtaining legal advice, this presumption is rebuttable.")

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

Chapter: 57.504
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
("An existing attorney-client relationship does not alone warrant a presumption of confidentiality.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 57.504
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "After considering the parties' arguments, the magistrate judge concluded that the EEOC had communicated with witnesses and obtained information about their discussions with BDO attorneys."; "We agree that the trial court appears to have applied an incorrect legal standard. During the show cause hearing, the magistrate judge on several occasions articulated an overly broad definition of attorney-client privilege. For example, during a colloquy with the EEOC regarding the protective order, the magistrate judge stated, 'Frankly, anything that comes out of that lawyer's mouth is legal advice,' explained that her position was that 'anything that's communicated from or to [c]ounsel is privileged and [Bower] cannot discuss that in any manner,' and said to counsel, 'I'm telling you that if it's communications from or to an attorney, it's privileged.' The magistrate judge also approved BDO's contention that 'the default position should be that if the conversation is with an attorney, a lawyer who has an ethical responsibility, should not invade that privilege' and rejected the EEOC's assertion that 'it's not legal advice when [Bower is] being told to do things that are not ethical, that are not within the bounds of her position.' These statements support the EEOC's claim that the magistrate judge granted and determined the scope of the protective order based on an erroneous interpretation of the law."; "We do not, however, hold that a protective order is unwarranted, and we leave the decision whether to grant such an order to the trial court.")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal

Chapter: 57.504
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "Based on the foregoing, by adopting the magistrate judge's recommendation, the district court erred when inverting the burden of proof, requiring that the EEOC prove that BDO improperly asserted the attorney-client privilege as to its withheld documents, and concluding that all communications between a corporation's employees and its counsel are per se privileged. Accordingly, we vacate the district court's judgment and remand for a determination applying the correct attorney-client privilege principles and legal standards.")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal

Chapter: 57.504
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "Although the magistrate judge did not explicitly address the burden of proof issue, she did, for example, state to the EEOC: 'You haven't made a sufficient showing that that's an improperly claimed privilege when Counsel is . . . copied on a lot of these -- on all these documents.'"; "These pronouncements plainly run afoul of well-settled attorney-client privilege principles. There is no presumption that a company's communications with counsel are privileged.")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal

Chapter: 57.504
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("There is no presumption that a company's communications with counsel are privileged.")

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

Chapter: 57.504
Case Name: U.S. Bank Nat'l Ass'n v. PHL Variable Ins. Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *7 n.3 (D. Minn. Mar. 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; concluding after an in camera review the risk assessment involved business rather than legal concerns; "PHL provides no cases suggesting that Chen [United States v. Chen, 99 F.3d 1495 (9th Cir. 1996)] has been adopted by either Connecticut or Minnesota courts. Additionally, the presumption described in Chen does not reconcile well with Minnesota and Connecticut cases suggesting that the burden is on the party seeking to prevent disclosure.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN B 8/16

Chapter: 57.504
Case Name: U.S. Bank Nat'l Ass'n v. PHL Variable Ins. Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *5-6 (D. Minn. Mar. 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; concluding after an in camera review the risk assessment involved business rather than legal concerns; "PHL contends that the Report should be presumed privileged because it was created by attorneys in response to PHL's request for legal advice. . . . However, a document is not automatically privileged merely because it involves an attorney and a client or because it is labeled privileged or confidential.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN B 8/16

Chapter: 57.504
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 124696 (S.D.W. Va. Sept. 11, 2015)
("As to the parties' disagreement regarding a 'presumptive privilege,' the undersigned is not persuaded that such a privilege applies to documents collected in prior litigation.").

Case Date Jurisdiction State Cite Checked
2015-09-11 Federal WV

Chapter: 57.504
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 attempts to justify his assertion of the privilege because of the 'general rule' that 'communications are deemed privileged if they tend to reveal client communications.'. . . But this statement assumes that Kraus was Mahon's 'client,' which Mahon has never claimed. The mere fact that Kraus was communicating with Mahon regarding the litigation, even if he did so on a regular basis, does not by itself establish an attorney-client relationship between Kraus and Mahon.")

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

Chapter: 57.504
Case Name: In re McDonald, Case No. 13-10663C-7G, Case No. 13-10664C-7G, Jointly Administered in Case No. 13-10661, 2014 Bankr. LEXIS 3780, at *11 (M.D.N.C. Sept. 3, 2014)
("Moreover, as previously noted, there is no presumption that every communication between a client and an attorney is protected by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-09-03 Federal NC

Chapter: 57.504
Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2014 U.S. Dist. LEXIS 31330, at *5-6 (S.D. Ohio Mar. 11, 2014)
("Defendant does not point to a case decided by the United States Court of Appeals for the Sixth Circuit addressing or holding that the presumption — called a rebuttable assumption in Chen, 99 F.3d at 1501-02 [United States v. Chen, 99 F.3d 1495 (9th Cir. 1996)] — applies in situations similar to those at issue presently in this case.")

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

Chapter: 57.504
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *8 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "There is no presumption that the privilege either arises or is waived merely as a result of the number of people involved in a communication.")

Case Date Jurisdiction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 57.504
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *7-8 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Communications from Wertjes [in-house lawyer] to Astellas [defendant] employees - subject to the same factors listed above - are also entitled to the privilege to the extent that they relate to legal advice. It must be emphasized that only Wertjes's communications related to rendering legal advice are protected. Any communications by Wertjes pertaining to business matters, including the petition's factual and technical content, objective merit, and timing of filing, are not privileged. There is no presumption that the privilege either arises or is waived merely as a result of the number of people involved in a communication.")

Case Date Jurisdiction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 57.504
Case Name: Cedell v. Farmers Ins. Co. of Wash., 295 P.3d 239, 246 (Wash. 2013)
(analyzing privilege issues in connection with an insurance bad faith claim; "[I]n first party insurance claims by insured's claiming bad faith in the handling and processing of claims, other than UIM claims, there is a presumption of no attorney-client privilege. However, the insurer may assert an attorney-client privilege upon a showing in camera that the attorney was providing counsel to the insurer and not engaged in a quasi-fiduciary function. Upon such a showing, the insured may be entitled to pierce the attorney-client privilege.")

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

Chapter: 57.504
Case Name: Cedell v. Farmers Ins. Co. of Wash., 295 P.3d 239, 246 (Wash. 2013)
(analyzing privilege issues in connection with an insurance bad faith claim; "[W]e adopt the same basic approach as the Court of Appeals did in Barry [Barry v. USAA, 989 P.2d 1172 (1999)]. We start from the presumption that there is no attorney-client privilege relevant between the insured and the insurer in the claims adjusting process, and that the attorney-client and work product privileges are generally not relevant. . . . However, the insurer may overcome the presumption of discoverability by showing its attorney was not engaged in the quasi-fiduciary tasks of investigating and evaluating or processing the claim, but instead in providing the insurer with counsel as to its own potential liability; for example, whether or not coverage exists under the law. Upon such a showing, the insurance company is entitled to an in camera review of the claims file, and to the redaction of communications from counsel that reflected the mental impressions of the attorney to the insurance company, unless those mental impressions are directly at issue in its quasi-fiduciary responsibilities to its insured. . . . If the trial judge finds the attorney-client privilege applies, then the court should next address any claims the insured may have to pierce the attorney-client privilege.")

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

Chapter: 57.504
Case Name: Fordham v. Onesoft Corp., Civ. A. No. 00-1078-A, 2000 U.S. Dist. LEXIS 23019, at *8 (E.D. Va. Nov. 6, 2000)
("The mere relationship of attorney-client does not warrant a presumption of confidentiality. See id. at 1356. [In re Grand Jury Proceedings, 727 F.2d 1352 (4th Cir. 1984)]")

Case Date Jurisdiction State Cite Checked
2000-11-06 Federal VA

Chapter: 57.504
Case Name: Fordham v. Onesoft Corp., Civ. A. No. 00-1078-A, 2000 U.S. Dist. LEXIS 23019, at *8 (E.D. Va. Nov. 6, 2000)
("The mere relationship of attorney-client does not warrant a presumption of confidentiality. See id. at 1356. [In re Grand Jury Proceedings, 727 F.2d 1352 (4th Cir. 1984)]")

Case Date Jurisdiction State Cite Checked
2000-11-06 Federal VA

Chapter: 57.504
Case Name: In re Grand Jury Proceedings (John Doe), 727 F.2d 1352, 1356 (4th Cir. 1984)
("it is the unquestioned rule that the mere relationship of attorney-client does not warrant a presumption of confidentiality.")

Case Date Jurisdiction State Cite Checked
1984-01-01 Federal

Chapter: 57.607
Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
("In their briefs, the parties rely primarily on case law from the Ninth Circuit discussing Martorello's ability to bring the motion to quash and the substance of his privilege assertions. Rule 45(f) is silent about which law binds transferee courts that are deciding a transferred motion -- the law of the circuit in which the transferee court sits, or the law of the circuit where the subpoena will be enforced. Nonetheless, transferee courts have uniformly relied on their own circuits' law. . . . Similarly, the Court relies on Fourth Circuit precedent to guide its analysis, but considers the Ninth Circuit case law as persuasive authority.")

Case Date Jurisdiction State Cite Checked
2016-03-16 Federal VA

Chapter: 57.702
Case Name: Progressive Southeastern Insurance Co. v. Arbormax Tree Service, LLC, 5:16-CV-662-BR, 2018 U.S. Dist. LEXIS 159222 (E.D.N.C. Sept. 17, 2018)
(analyzing log requirements in a third party insurance context; "The burden is on the party asserting the privilege to demonstrate that it is applicable.")

Case Date Jurisdiction State Cite Checked
2018-09-17 Federal NC

Chapter: 57.702
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 16-5356 Consolidated with 16-5357, 2018 U.S. App. LEXIS 16403 (D.C. App. June 19, 2018)
("The burden is on the proponent of the privilege to demonstrate that it applies. . . . To the extent the Commission challenges the legal test employed by the District Court, our review is de novo. To the extent the Commission challenges the facts found by the District Court, our review is for clear error.")

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

Chapter: 57.702
Case Name: In re Mt. Hawley Insurance Co., No. 18-1401, 2018 U.S. App. LEXIS 17910 (4th Cir. App. June 19, 2018)
("'In general, the burden of establishing the privilege rests upon the party asserting it.'")

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

Chapter: 57.702
Case Name: Knopick v. Dennis Boyle & Boyle Litigation, No. 99 MDA 2017, 2018 Pa. Super. LEXIS 552 (Pa. Super. May 30, 2018)
("Here, Appellant casts its position on the attorney-client privilege largely in generic terms, as if Mr. Sherman and Appellant are one entity/client, which is grossly misleading. First, Mr. Sherman created the email before consulting an attorney and sent the email to himself. Mr. Sherman's email was not created as a confidential communication to an attorney for the purpose of securing legal advice or created upon directive of counsel. Further, Mr. Sherman is the proper owner of any privilege that might attach to the email he created. Moreover, Mr. Sherman is not a party to the present litigation and is not asserting the privilege."; "Appellant cites no law to support its contention that it can invoke Mr. Sherman's privilege or that the privilege somehow transferred to Appellant or that Appellant absorbed it by osmosis, simply because Appellant's counsel once assumed he could assert the privilege on Mr. Sherman's behalf at a deposition in the present case. No one disputes the order at issue directed only Appellant to produce the email, and Appellant shares no attorney-client relationship with Mr. Sherman. Thus, as the party raising the attorney-client privilege, Appellant failed to satisfy the burden of production to invoke protection under the privilege. See Estate of Paterno, supra; Custom Designs & Mfg. Co., supra. Therefore, the court had no reason to conduct an in camera inspection of the email before ordering Appellant to disclose it in this case.")

Case Date Jurisdiction State Cite Checked
2018-05-30 State PA

Chapter: 57.702
Case Name: UPMC v. CBIZ, Inc., Case No. 3:16-cv-204, 2018 U.S. Dist. LEXIS 52810 (W.D. Pa. March 29, 2018)
("Most pertinent in the present case, the party asserting the applicability of attorney-client privilege – in this case, Plaintiffs – bears the burden to show that the withheld documents are privileged.")

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

Chapter: 57.702
Case Name: Buchanan v. Sterling Construction Co., Civ. A. No. 4:16-cv-3429 JURY, 2018 U.S. Dist. LEXIS 39792 (S.D. Tex. March 12, 2018)
(analyzing privilege issues in connection with a corporate investigation (although without explaining what the investigation focused on); "[D]efendants have refused to produce emails authored by or received by plaintiffs when they were employed by defendants because they were under the 'umbrella' of defendants' privilege. Defendants insist the emails are privileged attorney communications and/or attorney work product. The burden is on defendants to show the attorney client privilege or the work product protection is applicable. . . . Defendants have pointed to no authority to support their insistence that a party cannot obtain copies of emails he himself authored or received merely because that communication involved an attorney.")

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

Chapter: 57.702
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
("The court finds that Sutter has not met its burden of establishing that this document is privileged. Sutter originally claimed work-product protection for this document, but Sutter's revised submission to the court now asserts only attorney-client privilege. (Sutter's submission did not include the information the court required for the documents being submitted in camera for which Sutter was claiming work-product protection, such as the identity of the actual or reasonably-anticipated litigation for which the document was created, so the court assumes that Sutter is withdrawing its claim of work-product protection.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA

Chapter: 57.702
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("'The proponent has the burden to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.'")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 57.702
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("The party objecting to discovery on the basis of any privilege has the burden of establishing the existence and application of that privilege.")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 57.702
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "Ambiguities as to whether the elements of a privilege claim have been met are construed against the proponent.")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal

Chapter: 57.702
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)
("Defendants, as proponents, have the burden of establishing the applicability of the attorney-client privilege and the nonwaiver of it.")

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

Chapter: 57.702
Case Name: Watchous Enterprises, L.L.C. v. Pacific National Capital, Case No. 16-1432-JTM, 2017 U.S. Dist. LEXIS 176194 (D. Kansas Oct. 24, 2017)
("A person seeking to assert the attorney-client privilege as a bar to discovery has the burden of establishing that it applies. A claim of privilege fails upon a failure of proof as to any element.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal KS

Chapter: 57.702
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"; finding that attorney-client privilege and the work product doctrine protected documents related to the investigation, and that Jones Day did not waive either protection by disclosing protected documents to the government, pursuant to an agreement under which DOJ agreed to keep the documents confidential except if it decided in its "sole discretion" that it could disclose the documents to discharge its duties; "The Court next attempts to address whether attorney-client privilege applies to the document requests at issue here. In tension here are the fact that Applicants' request is beyond broad and that Jones Day's assertion of privilege is also all encompassing. Ordinarily, the party asserting privilege has the burden of proving that privilege. . . . However in this case, Applicants request practically a universe of documents, making it next to impossible for Jones Day to assert privilege with any particularity. At this time, it is impossible for the Court to determine whether particular communications are covered by attorney-client privilege. The Court does hold, however, that there is an attorney-client relationship between Volkswagen and Jones Day."; "Volkswagen retained Jones Day in anticipation of proceedings before United States authorities. Accordingly, the work-product doctrine may be applicable here. However, as with attorney-client privilege, the document requests and the assertions of privilege are both overly broad. To the extent that documents requested contain the mental impressions of Jones Day attorneys, they would be covered by the work-product document. Jones Day will need to assert more specifically such protection upon a narrowing of the document requests.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal NY

Chapter: 57.702
Case Name: Theidon v. Harvard Univ., Civ. A. No. 15-cv-10809-LTS, 2017 U.S. Dist. LEXIS 82085 (D. Mass. May 30, 2017)
(analyzing a former Harvard professor's lawsuit against Harvard; noting that the plaintiff claimed to have prepared notes of a meeting with another professor to discuss tenure, but that she no longer possessed the original notes – instead having incorporated the notes into a memorandum to her lawyer; holding that Harvard could overcome any work product protection for the notes because they were near-contemporaneous, but ordering an in camera review to assess any privilege protection; "'Theidon's filing conflates work product protection with attorney-client privilege. The work product privilege protects the document Theidon created for her counsel, Fed. R. Civ. P. 26(b)(3), while the attorney-client privilege protects the communication with counsel. Of course, the information -- what happened at the meeting with Dominguez -- is not privileged at all. To the extent that Theidon is claiming attorney-client privilege over the notes, the Court rejects her argument. The burden to show that the privilege applies is on Theidon and she has not met that burden.'")

Case Date Jurisdiction State Cite Checked
2017-05-30 Federal MA

Chapter: 57.702
Case Name: Banneker Ventures, LLC v. Graham, Civ. A. No. 13-391 (RMC), 2017 U.S. Dist. LEXIS 74155 (D.D.C. May 16, 2017)
(holding that neither the work product protection nor the attorney-client privilege protected from discovery the one witness interview memoranda prepared by the Cadwalader law firm during its internal investigation of self-dealing at the Washington Metropolitan Area Transit Authority; including that the work product doctrine did not apply because the investigation was undertaken for business rather than litigation purposes, and that the privilege did not apply because WMATA disclosed the interview excerpts when it publicly revealed the Cadwalader report, and also relied on the report to defend itself in the litigation; "The D.C. Circuit's strict definition of privilege carries over to the waiver of privilege, placing the burden of protecting privileged communications squarely on the proponent of the privilege.")

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

Chapter: 57.702
Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
("The party asserting a privilege has the initial burden of establishing that the communication was related to legal matters.")

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN

Chapter: 57.702
Case Name: N.J. Manufacturers Ins. Co. v. Brady, Civ. A. No. 3:15-CV-02236, 2017 U.S. Dist. LEXIS 8268 (M.D. Pa. Jan. 20, 2017)
("In general, a privilege log typically must 'identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.' The party asserting the privilege has the burden of showing that the elements of the privilege are met.")

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

Chapter: 57.702
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)
(finding that plaintiff could not establish that defendant's documents were privileged; "The existence of the attorney-client privilege usually must be established by the party asserting it. . . . In this instance, the normal roles are reversed. Plaintiffs claim that the title cards are privileged, while Defendants claim the opposite. Plaintiffs, therefore, bear the burden of showing that the privilege applies."; "Plaintiffs have not carried this burden. The cards are not labelled as privileged, are not addressed to anyone, and appear to be an information-tracking system. Plaintiffs provide no evidence that the cards were created or maintained in confidence. Deposition testimony provided by Union Pacific states simply that the cards were maintained in the 'real estate file room.'"; "Plaintiffs quote deposition testimony stating that the cards contain 'a very rough opinion as to the nature of title associated with the parcel' . . . but cite no authority to show that documents created by attorneys for a tracking system constitute privileged communications. Such documents may be attorney work product if litigation is anticipated, Fed. R. Civ. P. 26(b)(3), but Plaintiffs do not suggest that the cards were created in anticipation of litigation."; "On this record, Plaintiffs have not shown that the cards contain privileged information being used selectively by Defendants. The Court therefore cannot conclude that Defendants are 'intentionally put[ting] protected information into the litigation in a selective, misleading and unfair manner.' Fed. R. Evid. 502(a) advisory committee note (11/28/2007). Plaintiffs may raise this issue again if they develop other evidence.")

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

Chapter: 57.702
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)
("In determining whether the attorney-client privilege applies, California law employs a shifting burden approach. Initially, the party claiming the privilege must establish "'the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.'"; "Once the party claiming the attorney-client privilege makes the prima facie showing described above, "'the communication is presumed to have been made in confidence.'. . . Then, "'the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.'")

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

Chapter: 57.702
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: 57.702
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: 57.702
Case Name: Durand v. The Hanover Ins. Group, Inc., Civ. A. No. 3:07-CV-00130-HBB, 2016 U.S. Dist. LEXIS 143064 (W.D. Ky. Oct. 17, 2016)
("The Court notes that the burden of establishing the protection of the attorney-client privilege rests with the person or entity asserting it."; "The protection afforded work product is not a privilege as the term is used in the Federal Rules of Civil Procedure or the law of evidence.")

Case Date Jurisdiction State Cite Checked
2016-10-17 Federal KY

Chapter: 57.702
Case Name: Durand v. The Hanover Ins. Group, Inc., Civ. A. No. 3:07-CV-00130-HBB, 2016 U.S. Dist. LEXIS 143064 (W.D. Ky. Oct. 17, 2016)
("The Court notes that the burden of establishing the protection of the attorney-client privilege rests with the person or entity asserting it."; "The Court is aware that when a party asserts the crime-fraud exception to the attorney-client privilege he or she bears the burden of demonstrating the applicability of that exception. . . . This makes sense because the crime-fraud exception defeats or strips away the privilege when the communications between lawyer and client are "'made for the purpose of getting advice for the commission of a fraud' or crime.'. . . The Court notes that in the context of ERISA, the fiduciary exception is something of a misnomer because it does not vitiate the attorney-client privilege like the crime-fraud exception. Instead, it sets forth a general proposition that, at least as to advice regarding plan administration, the beneficiaries are the real client, and, thus, the trustee 'never enjoyed the privilege in the first place.'. . . When '[u]nderstood in this fashion, the fiduciary exception is not really an 'exception' to the attorney-client privilege at all.' Id. Because of this substantial distinction, case law regarding the crime-fraud exception is not an appropriate source for guidance on the question of burden."; "While no court appears to have expressly ruled on the question of burden, the majority of courts addressing the fiduciary exception, in the context of ERISA, appear to have reasoned the employer/administrator/trustee has the burden of demonstrating the communications withheld on claim of privilege are not subject to the fiduciary exception. . . . in the context of ERISA, the majority view appears to be the employer/administrator has the burden of demonstrating counsel's communications concerned non-administrative/non-fiduciary matters or personal representation in potential or pending litigation.")

Case Date Jurisdiction State Cite Checked
2016-10-17 Federal KY

Chapter: 57.702
Case Name: In re Grand Jury Subpoena, No. 2013R00691-009, Dkt. 3:16-mc-00079-FDW-DCK, 2016 U.S. Dist. LEXIS 110274 (W.D.N.C. Aug. 16, 2016)
("As with attorney-client privilege, the party invoking the protection of the work product doctrine bears the burden of demonstrating its applicability.")

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

Chapter: 57.702
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 burden of establishing that certain documents are privileged and protected from discovery is on the party asserting the privilege, and the protection claimed must be narrowly construed.")

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

Chapter: 57.702
Case Name: Town of Ledyard v. WMS Gaming, Inc., CV085007839, 2016 Conn. Super. LEXIS 822 (Conn. Sup. Ct. April 19, 2016)
(finding that a non-party who had not been added to the litigation did not participate in a common interest arrangement; "The burden of proving each element of the privilege, by a fair preponderance of the evidence, rests with the party seeking to assert the privilege.")

Case Date Jurisdiction State Cite Checked
2016-04-19 Federal CT

Chapter: 57.702
Case Name: U.S. Bank Nat'l Ass'n v. PHL Variable Ins. Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *5 (D. Minn. Mar. 30, 2016)
("Under both Connecticut and Minnesota law, the party asserting the privilege bears the burden of establishing that it applies." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN B 8/16

Chapter: 57.702
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, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
("Under South Carolina law, the burden of proof falls to the party asserting the privilege.")

Case Date Jurisdiction State Cite Checked
2015-12-04 Federal SC

Chapter: 57.702
Case Name: Sun v. Ikea US West, Inc., Case No. 15-cv-01146-MEJ, 2015 U.S. Dist. LEXIS 150544 (N.D. Cal. Nov. 4, 2015)
(denying privilege and work product protection for an investigation of a injury in which a plaintiff was struck by a cart in a store; "Defendant's Incident Reporting System indicates the report was prepared in the normal course of business, within the scope of the employee's responsibilities to the company. Thus, Defendant's purpose in creating these incident reports determines whether the privilege applies."; "Defendant offers no such evidence, such as a redacted copy of the report showing it is labeled 'confidential,' or a declaration from someone with personal knowledge that the report was intended to be confidential, or a declaration from the employee stating that he knew the report was confidential at the time it was made. . . . Without more evidentiary support, the Court finds Defendant has failed to meet its burden of establishing the incident report was a confidential communication made in the course of an attorney-client relationship."; also denying work product protection).

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

Chapter: 57.702
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)
("A party cannot bypass its obligation under Rule 26 to produce a privilege log merely by claiming that the common interest exception applies. That assumes that a document is privileged without first demonstrating the reason for it. The party asserting a privilege always bears the burden of proof on such matters.")

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

Chapter: 57.702
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)
("As the party asserting the privilege, the Trustee bears the burden of demonstrating the applicability of the privilege to the documents withheld on those grounds.")

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

Chapter: 57.702
Case Name: Indianapolis Airport Authority v. Travelers Property Casualty Co. of Am., No. 1:13-cv-01316-JMS-TAB, 2014 U.S. Dist. LEXIS 176607 (S.D. Ind. Dec. 23, 2014)
(analyzing protections in a first party insurance case; "The party asserting this privilege has the burden to prove the applicability of the privilege as to each and every document.")

Case Date Jurisdiction State Cite Checked
2014-12-23 Federal IN

Chapter: 57.702
Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("'There is no indication as to who authored this document. Although it does concern antitrust issues, it could have been written by anyone within RockTenn's management. As the proponent of the privilege, RockTenn bears the burden of establishing that the document at issue is indeed attorney-client material.'")

Case Date Jurisdiction State Cite Checked
2014-11-12 Federal IL

Chapter: 57.702
Case Name: United States v. Veolia Environnement N.A. Operations, Inc., Civ. No. 13-mc-03-LPS, 2014 U.S. Dist. LEXIS 154717 (D. Del. Oct. 31, 2014)
("The burden of demonstrating the applicability of the attorney-client privilege thus rests on the party asserting the privilege.")

Case Date Jurisdiction State Cite Checked
2014-10-31 Federal DE

Chapter: 57.702
Case Name: East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civil No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272, at *4-5 (D.N.H. Sept. 16, 2014)
("Under federal law, the party claiming a privilege bears the burden of showing that a document is privileged and that the privilege has not been waived.")

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

Chapter: 57.702
Case Name: Safety Text & Equip. Co. Inc. v. Am. Safety Util. Corp., 13 CVS 1037, 2014 NCBC 40, at *17 (N.C. Super. Ct. Sept. 2, 2014)
("Each party has submitted facts which it contends support its position. The facts are diametrically opposed. Where the weight of the evidence is equal, the adverse ruling must be against the party with the ultimate burden of proof. Even so, weighing all of the evidence in this particular case, the court concludes that the evidence supports an affirmative finding that Defendants waived the attorney-client privilege. Defendants are then directed to produce an unredacted copy of the May 15 Letter.")

Case Date Jurisdiction State Cite Checked
2014-09-02 State NC

Chapter: 57.702
Case Name: United States v. Juan, Crim. No. 3:14cr25-2, 2014 U.S. Dist. LEXIS 121258 (E.D. Va. Aug. 29, 2014)
("The proponent carries the burden of establishing the existence of the attorney-client relationship, the applicability of the privilege to the specific communication at issue, and the absence of waiver.")

Case Date Jurisdiction State Cite Checked
2014-08-29 Federal VA

Chapter: 57.702
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)
("'[T]he proponent [of the privilege] has the burden to establish that . . . The communications under consideration are privileged . . . .")

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

Chapter: 57.702
Case Name: Williams v. Duke Energy Corp., Civ. A. 1:08-cv-00046, 2014 U.S. Dist. LEXIS 109835 (S.D. Ohio Aug. 8, 2014)
("The party asserting the privilege has the burden of proving each element of the claim. The claim of privilege must be made question-by-question and document-by-document.")

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

Chapter: 57.702
Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civil Action No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *3 (W.D. Va. July 9, 2014)
("Under Virginia law, the proponent of the privilege has the burden to establish that the attorney-client privilege existed, that the communication under consideration is privileged and that the privilege was not waived.")

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

Chapter: 57.702
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 burden of sustaining a claim of attorney-client privilege falls on the party asserting the privilege.")

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

Chapter: 57.702
Case Name: Teal Bay Alliances, Inc. v. Southbound One, Inc., Case No. MJG-13-2180, 2014 U.S. Dist. LEXIS 55378 (D. Md. April 21, 2014)
("The burden is on the proponent of the attorney-client privilege to demonstrate its applicability.")

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

Chapter: 57.702
Case Name: Kephart v. ABB, Inc., Civ. A. No. 2:12-668, 2014 U.S. Dist. 51411 (W.D. Pa. April 14, 2014)
("Under both the attorney-client privilege and the work-product doctrine, the party asserting the privilege and resisting discovery here, the Defendant bears the burden of demonstrating that the privilege acts as a bar to discovery.")

Case Date Jurisdiction State Cite Checked
2014-04-14 Federal PA

Chapter: 57.702
Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 615 (D. Kan. 2014)
("A party's failure to meet the required showing when the trial court is asked to rule upon the existence of the privilege is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made.")

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

Chapter: 57.702
Case Name: Charter Oak Fire Ins. Co. v. Am. Capital, Ltd., Civ. A. No. DKC 09-0100, 2013 U.S. Dist. LEXIS 180504, at *24 (D. Md. Dec. 24, 2013)
(holding that a litigant withholding documents must present evidence supporting its position if the adversary challenges the inclusion on a privilege log of the withheld documents; "When a party refuses to produce documents during discovery on the basis that they are privileged or protected, it has the burden of providing an evidentiary basis for that claim.")

Case Date Jurisdiction State Cite Checked
2013-12-24 Federal MD B 5/14

Chapter: 57.702
Case Name: Skepnek v. Roper & Twardowsky, LLC, Case No. 11-4102-KHV, 2013 U.S. Dist. LEXIS 163475, at *4-5, *5-6 (D. Kan. Nov. 18, 2013)
("The duty to raise the issue of privilege in response to plaintiffs' motion to compel rested with defendants, not plaintiffs. If defendants intended to rely upon objections of privilege, defendants had the burden to assert those objections and support them in opposing the motion to compel. Their failure precludes them from now relying upon the objections. They abandoned them."; "To carry that burden, defendants had to make a 'clear showing' that the asserted objection applies, 'describe in detail the documents or information to be protected, and provide precise reasons for the objection to discovery.' The detailed and specific showing required under Fed. R. Civ. P. 26(b)(5) is typically presented in the form of a privilege log." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-11-18 Federal KS B 5/14

Chapter: 57.702
Case Name: Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 U.S. Dist. LEXIS 159498, at *10 (N.D. Ill. Nov. 7, 2013)
("Under Illinois law, the party asserting the attorney-client privilege bears the burden of showing its applicability.")

Case Date Jurisdiction State Cite Checked
2013-11-07 Federal IL B 5/14

Chapter: 57.702
Case Name: Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 U.S. Dist. LEXIS 159498, at *11 (N.D. Ill. Nov. 7, 2013)
("As a consequence of Plaintiffs' invocation of Rule 26(b)(5)(B), it became Defendants' obligation to challenge Plaintiffs' claim of privilege. Now that Defendants have finally done so, the burden shifts to Plaintiffs to demonstrate the elements of the privilege they claim applies to each of the emails at issue.")

Case Date Jurisdiction State Cite Checked
2013-11-07 Federal IL B 5/14

Chapter: 57.702
Case Name: United States v. Veolia Envt'l N. Am. Operations, Inc., Civ. No. 12-mc-03-LPS, 2013 U.S. Dist. LEXIS 153245, at *11 (D. Del. Oct. 25, 2013)
("The burden of demonstrating the applicability of the attorney-client privilege rests on the party asserting the privilege.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal DE B 5/14

Chapter: 57.702
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 party asserting the attorney-client privilege has the burden of proving the attorney-client privilege applies.")

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

Chapter: 57.702
Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *6 (N.D. Ohio Aug. 8, 2013)
("The burden of establishing attorney-client privilege rests with the party asserting it.")

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

Chapter: 57.702
Case Name: McAirlaids, Inc. v. Kimberly-Clark Corp., No. 7:12-CV-00578, slip op. at 4 (W.D. Va. May 31, 2013)
A party asserting that a communication is protected by the attorney-client privilege has the burden of showing that it applies. [Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 (W.D. Va. 2005)] (citing In re Grand Jury Subpoena, 341 F.3d 331, 336 (4th Cir. 2003).")

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

Chapter: 57.702
Case Name: Kearney Partners Fund, LLC v. United States, Case No. 2:10-cv-153-FtM-SPC, 2013 U.S. Dist. LEXIS 67797, at *28 & n.8 (M.D. Fla. May 10, 2013)
("The Court is unable to glean whether Ms. Spiegel conducted factual and legal analysis as counsel to the revenue agents or as one of the revenue agents. As the proponent of the privilege, Defendant bears the burden of but has failed to identify 'the underlying facts demonstrating the existence of the privilege.'"; "'[T]he IRS may not invoke the attorney-client privilege simply because an attorney was involved in evaluating Plaintiffs' tax returns and assessing their tax obligations.'")

Case Date Jurisdiction State Cite Checked
2013-05-10 Federal FL B 3/14

Chapter: 57.702
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *6 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Astellas [defendant], as the party invoking attorney-client privilege and work product protection, bears the burden of showing that either applies.")

Case Date Jurisdiction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 57.702
Case Name: Moore v. Dan Holdings, Inc., No. 1:12CV503, 2013 U.S. Dist. LEXIS 61378, at *7-8 (M.D.N.C. Apr. 30, 2013)
("The burden rests on the party resisting discovery to demonstrate the applicability of either the attorney-client privilege or the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal NC B 7/13

Chapter: 57.702
Case Name: United States v. Finazzo, No. 10-CR-457 (RRM) (RML), 2013 U.S. Dist. LEXIS 22479, at *18 (E.D.N.Y. Feb. 19, 2013)
("Because 'maintaining confidentiality is an element of the privilege itself,' the burden is on the party seeking to assert it." (citation omitted))

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

Chapter: 57.702
Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 137 (D.D.C. 2013)
("The party asserting the privilege bears the burden of proving that the communications at issue are protected.")

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

Chapter: 57.702
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 583 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "The burden of demonstrating that a privilege applies to a particular communication, i.e., that the confidentiality of the communication is more important than the public interest in transparency, is on the proponent of the privilege.")

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

Chapter: 57.702
Case Name: Under Seal 1 v. United States (In re Grand Jury Subpoena), 542 F. App'x 252, 253 (4th Cir. 2013)
(finding it unnecessary to decide if the attorney-client privilege protected communications between a government lawyer and a government official, because the two emails at issue did not relate to legal advice and therefore did not deserve privilege protection; "This court has held, '[t]he burden is on the proponent of the attorney-client privilege to demonstrate its applicability. The proponent must establish not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' In re: Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003).")

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

Chapter: 57.702
Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *18 (E.D. Va. Dec. 3, 2012)
("[T]he burden is on Moazzeni to demonstrate that any document is privileged. Solis v. Food Emplrs. Labor Relations Ass'n, 644 F.3d 221, 232 (4th Cir. 2011) (citing In re Grand Jury Proceedings, 33 F.3d 342, 353 (4th Cir. 1994)).")

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

Chapter: 57.702
Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159-KS-MTP, 2012 U.S. Dist. LEXIS 165558, at *5, *6-7 (S.D. Miss. Nov. 20, 2012)
("[T]he court finds that MPC has failed to meet its burden in demonstrating that the root case analysis report is protected by the work-product doctrine. The party asserting the privilege bears the burden of proving that the information requested is privileged."; "Based on the limited information provided by MPC, the court is unable to determine whether the root cause analysis, or any other document withheld solely on the basis of work-product, was prepared primarily in anticipation of litigation or whether such documents were prepared in the ordinary course of business, and would have been prepared whether litigation was anticipated or not. Accordingly, any documents withheld on the basis of the work-product doctrine alone, including the root cause analysis, should be produced." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-11-20 Federal MS B 7/13

Chapter: 57.702
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *3 (E.D. Va. July 12, 2012)
("The party asserting a privilege has the burden of showing that it applies. Id. [Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D. Va. 2004)] (citing United States v. Under Seal, 341 F.3d 331, 335 (4th Cir. 2003)).")

Case Date Jurisdiction State Cite Checked
2012-07-12 Federal VA

Chapter: 57.702
Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *4 (W.D. Va. June 28, 2012)
("The party objecting to discovery on the basis of any privilege has the burden of establishing the existence and application of that privilege. See Spell v. McDaniel, 591 F. Supp. 1090, 1116 (E.D.N.C. 1984).")

Case Date Jurisdiction State Cite Checked
2012-06-28 Federal VA

Chapter: 57.702
Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *6-7 (W.D. Va. June 28, 2012)
("'The proponent has the burden to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' [Commonwealst v.] Edwards, 370 S.E.2d [296,] 301 [Va. 1988)] (citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)).")

Case Date Jurisdiction State Cite Checked
2012-06-28 Federal VA B 5/16

Chapter: 57.702
Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *24 (W.D. Va. June 20, 2012)
("Because DRHA is the party asserting the attorney-client privilege, DRHA has the burden of establishing its applicability.")

Case Date Jurisdiction State Cite Checked
2012-06-20 Federal VA B 12/12

Chapter: 57.702
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 251 (E.D. Va. 2012)
("A party asserting a privilege has the burden of showing that it applies.")

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

Chapter: 57.702
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("The burden is on the proponent of the privilege 'to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' Edwards, 370 S.E.2d at 301; see also United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 57.702
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("'The proponent of the privilege must establish not only that an attorney-client relationship existed, but also that the specific communications at issue are privileged and the privilege was not waived.' Zeus Enters. V. Alphin Aircraft, Inc., 190 F.3d 238, 244 (4th Cir. 1999).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 57.702
Case Name: Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376 (Pa. Super. Ct. 2012)
("Pennsylvania law imposes a shifting burden of proof in disputes over disclosure of communications allegedly protected by attorney-client privilege. The party invoking a privilege must initially 'set forth facts showing that the privilege has been properly invoked; then the burden shifts to the party seeking disclosure to set forth facts showing that disclosure will not violate the attorney-client privilege, e.g., because the privilege has been waived or because some exception applies.'")

Case Date Jurisdiction State Cite Checked
2012-01-01 State PA B 1/13

Chapter: 57.702
Case Name: In re McDowell, 483 B.R. 472, 482 (Bankr. S.D. Tex. 2012)
(finding that a bankruptcy lawyer's questionnaires to debtors deserved privilege and work product protection; and the lawyer's related notes deserved privilege protection but not work product protection; "The party invoking the privilege bears the burden of proving that his or her communications are privileged and, therefore, protected from disclosure.")

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

Chapter: 57.702
Case Name: Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 370 (Pa. Super. Ct. 2012)
("Sherwin-Williams has not presented an affidavit, statement or testimony by Tamburino [Sherwin-Williams lawyer] to clarify whether he requested Schreck [Sherwin-Williams marketing representative] produce the memoranda at issue or for what purpose he requested the documents. In fact, Sherwin-Williams attempts to place the burden on Custom Designs to produce evidence that the memoranda were created for a purpose other than to secure legal advice.")

Case Date Jurisdiction State Cite Checked
2012-01-01 State PA B 1/13

Chapter: 57.702
Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *7 (W.D. Va. Oct. 6, 2011)
("The communications 'do not explicitly ask for legal advice, opinions, or oversight,' or otherwise suggest that the purpose of the documents is to obtain or provide 'an opinion on law, legal services, or . . . assistance in some legal context.' Scott & Stringfellow, 2011 U.S. Dist. LEXIS 51028, at *10. While the table of contents in one of the exhibit binders indicates that the exhibit contains 'counterclaim analysis,' the actual documents, consisting of spreadsheets prepared by WGI, were generated months before SNC filed the instant action in December of 2010. The same is true with all of the other documents, which were drafted between March and September of that year. Because neither the documents themselves nor any other evidence proffered by ATK establishes that the documents were 'made for the purpose of facilitating the rendition of legal services,' In re Grand Jury Proceedings, 947 F.2d at 1191, the court concludes that ATK has failed to meet its burden of demonstrating that the attorney-client privilege immunizes the documents from disclosure.")

Case Date Jurisdiction State Cite Checked
2011-10-06 Federal VA

Chapter: 57.702
Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *5-7 (W.D. Va. Oct. 6, 2011)
("The burden is on the proponent of the privilege "to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' Edwards, 370 S.E.2d at 301. . . ."; "[T]he party withholding the document must specifically and factually support its claim of privilege 'by way of evidence, not just argument.' Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust, 230 F.R.D. 398, 410 (D. Md. 2005)."; "Applying these principles, and having reviewed each of the documents withheld from production, the court concludes that ATK has failed to demonstrate that the documents are protected by the attorney client privilege. The documents were prepared by employees of WGI and ATK, and include no communications from ATK's legal counsel. While ATK has submitted emails indicating that each of the documents was intended to be shared with legal counsel, neither the documents themselves, nor any other evidence presented by ATK, establishes that the documents were 'prepared primarily in a legal capacity,' as opposed to a 'business capacity.' Henson, 118 F.R.D. at 588.").

Case Date Jurisdiction State Cite Checked
2011-10-06 Federal VA

Chapter: 57.702
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *11 (W.D. Va. June 15, 2011)
("A party asserting the attorney-client privilege has the burden of proving its existence")

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

Chapter: 57.702
Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *7 (E.D. Va. May 12, 2011)
("Of course, the party asserting attorney-client privilege has the burden of demonstrating that the privilege is applicable.")

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

Chapter: 57.702
Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir. 2011)
("A party asserting privilege has the burden of demonstrating its applicability. See United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (per curiam)."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

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

Chapter: 57.702
Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 233 (4th Cir. 2011)
("[B]ecause of the way the Funds have chosen to litigate this action by failing to provide privilege logs or identify the litigation for which specific documents were prepared we see no reason to reach the issue of whether the work product doctrine is subject to the fiduciary exception. As the party claiming privilege, the Funds bear the burden of demonstrating the applicability of the privilege to specific documents. In re Grand Jury, 33 F.3d at 353. Because the Funds have failed to carry their burden to demonstrate the applicability of the work product doctrine, we have no reason to disturb the district court's judgment.")

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

Chapter: 57.702
Case Name: Peterson v. Commonwealth of Va., 82 Va. Cir. 497, 497-98 (Va. Cir. Ct. 2011)
("T]he general rule is that confidential communications between a lawyer and his or her client are privileged and not to be disclosed. The burden of establishing that the privilege existed, that the communication is privileged, and the privilege has not been waived lies with the proponent of the privilege.")

Case Date Jurisdiction State Cite Checked
2011-01-01 State VA B 5/16

Chapter: 57.702
Case Name: Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv00030, 2010 U.S. Dist. LEXIS 95668, at *6 (W.D. Va. Sept. 14, 2010)
("The burden of demonstrating a communication is protected by the attorney-client privilege lies with the proponent of the privilege. Hawkins, 148 F.3d at 383 (citing Jones, 696 F.2d at 1072).")

Case Date Jurisdiction State Cite Checked
2010-09-14 Federal VA

Chapter: 57.702
Case Name: King Pharms., Inc. v. Purdue Pharma L.P., Case No. 1:08CV00050, 2010 U.S. Dist. LEXIS 54407, at *4 (W.D. Va. June 2, 2010)
(holding that under Federal Rule of Evidence 502 a litigant's inadvertent disclosure did not result in a waiver; "Of course, the burden of showing that the privilege applies lies upon the proponent, Purdue. United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisdiction State Cite Checked
2010-06-02 Federal VA

Chapter: 57.702
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 605 (E.D. Va. 2010)
("The party asserting privilege must show that it applies. [E.I. Du Pont de Nemours and Co. v. Kolon Industries, Inc., No. 3:09CV58, 2010 U.S. Dist. LEXIS 36530, 2010 WL 1489966 (E.D. Va. Apr. 13, 2010)]")

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

Chapter: 57.702
Case Name: Batt v. Manchester Oaks Homeowners Ass'n, 80 Va. Cir. 502, 504 (Va. Cir. Ct. 2010)
("The burden is on the proponent to establish that an attorney client relationship existed, the sought communications are privileged, and that the client has not waived the privilege. Id. [Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988).]")

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

Chapter: 57.702
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549-50 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; "The proponent of the privilege has the burden to establish that the attorney client relationship existed, that the communication under consideration is privileged, and that the privilege was not waived. Edwards, 235 Va. at 509, 370 S.E.2d at 301; United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

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

Chapter: 57.702
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 *16 (W.D. Va. Apr. 16, 2009)
("The burden is on the proponent 'to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' Edwards, 235 Va. at 509, 370 S.E.2d at 301 (citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisdiction State Cite Checked
2009-04-16 Federal VA

Chapter: 57.702
Case Name: Cappetta v. GC Servs. Ltd. P'ship, Civ. A. No. 3:08CV288, 2008 U.S. Dist. LEXIS 103902, at *12 (E.D. Va. Dec. 24, 2008)
("It is well-established that the parry [sic] asserting the privilege has the burden of proving its existence, and must 'supply opposing counsel with sufficient information to assess the applicability of the privilege or protection, without revealing information which is privileged or protected.' Burns, 164 F.R.D. at 593 [Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589 (W.D.N.Y. 1996)].)")

Case Date Jurisdiction State Cite Checked
2008-12-24 Federal VA

Chapter: 57.702
Case Name: Cappetta v. GC Servs. Ltd. P'ship, Civ. A No. 3:08CV288, 2008 U.S. Dist. LEXIS 103902 (E.D. Va. Dec. 24, 2008)
(holding that the party asserting the attorney client privilege has the burden of proof)

Case Date Jurisdiction State Cite Checked
2008-12-24 Federal VA B 5/09

Chapter: 57.702
Case Name: The Flexible Benefits Council v. Feldman, 1:08cv371 (JCC), 2008 U.S. Dist. LEXIS 79226, at *10 (E.D. Va. Oct. 8, 2008)
("The burden of establishing the privilege is on its proponent. Id. [Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)]")

Case Date Jurisdiction State Cite Checked
2008-10-08 Federal VA

Chapter: 57.702
Case Name: United States v. Smith, Crim. A. No. 3:07CR433, 2008 U.S. Dist. LEXIS 64174, at *5 (E.D. Va. Aug. 21, 2008)
("[T]he burden of proving the applicability of the attorney-client privilege resides with the party asserting the privilege. Jones, 696 F.2d at 1072.")

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

Chapter: 57.702
Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, *13 (W.D. Va. Apr. 15, 2008)
("For the attorney client privilege to apply, the burden is on the party asserting the privilege to establish its applicability.")

Case Date Jurisdiction State Cite Checked
2008-04-15 Federal VA B 5/09

Chapter: 57.702
Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *10 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "Sunrise has the burden to establish that the communications under consideration are privileged.") [Woolridge, J.]

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

Chapter: 57.702
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 235 (Va. Cir. Ct. 2008)
("The party withholding material they believe to be protected must state the claim expressly; and bears the burden of providing sufficient information about the documents to support the claim.")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA

Chapter: 57.702
Case Name: United States v. Under Seal# 4 (In re Grand Jury Subpoena #06-1), 274 Fed. App'x 306, 308 (4th Cir. 2008) (unpublished opinion)
(assessing the crime-fraud exception; "We have consistently held that '[t]he burden is on the proponent of the attorney client privilege to demonstrate its applicability.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal B 5/09

Chapter: 57.702
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 750 (E.D. Va. 2007)
("The proponent of the attorney client privilege has the burden to demonstrate its applicability.")

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

Chapter: 57.702
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 750 (E.D. Va. 2007)
("[T]he proponent must establish 'not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003).")

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal VA B 3/16

Chapter: 57.702
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 827 (E.D. Va. 2005)
("And importantly, the burden is on the proponent of the attorney-client privilege to demonstrate its applicability. Specifically, the proponent must establish 'not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003)." (footnotes omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

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

Chapter: 57.702
Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 (W.D. Va. 2005)
("'The burden is on the proponent of the attorney-client privilege to demonstrate its applicability. The proponent must establish not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' Id. [United States v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 336 (4th Cir. 2003)]")

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

Chapter: 57.702
Case Name: Under Seal v. United States (In re Grand Jury Subpoena Under Seal), 415 F.3d 333, 338-39 (4th Cir. 2005)
("'The burden is on the proponent of the attorney-client privilege to demonstrate its applicability.' Jones, 696 F.2d at 1072."), cert. denied, 126 S. Ct. 1114 (2006)

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

Chapter: 57.702
Case Name: Via v. Commonwealth, 590 S.E.2d 583, 595 (Va. Ct. App. 2004)
("'[T]he party seeking to assert the attorney-client privilege bears the burden of persuasion on the issue.' Id. at 509, 370 S.E.2d at 301. [Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988)]")

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

Chapter: 57.702
Case Name: Sevachko v. Commonwealth, 35 Va. App. 346 (Va. Ct. App. 2001)
(noting that the proponent of the attorney client privilege bears the burden to establish the protection)

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

Chapter: 57.702
Case Name: VEPCO v. Westmoreland-LG&E Partners, 259 Va. 319, 325 (2000)
("The party seeking to assert the attorney-client privilege bears the burden of persuasion on the issue. Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (1988).")

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

Chapter: 57.702
Case Name: Patel v. Allison, 54 Va. Cir. 155, 159 (Va. Cir. Ct. 2000)
("[t]he burden of showing that the privilege applies is upon the party who asserts it") [Weckstein, J.]

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA nsvb 2/23/04

Chapter: 57.702
Case Name: Zeus Enters., Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 244 (4th Cir. 1999)
(upholding denial of a party's request for attorney fees under a contract, based on the party's refusal to allow testimony about "what factual investigation and legal research" the party's law firm conducted; the court "[does] not understand why Zeus could not have allowed its law firm to disclose some information about the nature and extent of its work, without entrenching upon the attorney-client privilege. In any event, the burden of establishing the applicability of the attorney-client privilege rests on the proponent of the privilege. The privilege does not protect all aspects of the attorney-client relationship; it only protects confidential communications between lawyer and client. The proponent of the privilege must establish not only that an attorney-client existed, but also that the specific communications at issue are privileged and that the privilege was not waived. Here, Zeus made a blanket assertion of privilege to Alphin's questions to Shaw Pittman about the scope of that firm's work for Zeus in connection with the NTSB proceeding. Zeus offered nothing to satisfy its burden to establish that the information sought by Alphin was protected by the attorney-client privilege. Accordingly, the district court did not err in striking Zeus's request to recover attorneys' fees paid to Shaw Pittman for its work in the administrative proceeding.")

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

Chapter: 57.702
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 61, 70-71 (E.D. Va. 1998)
("Recall that CBN has the burden of proving every element applicable to the attorney-client privilege. Nowhere in the Halliday Declaration or in any other submission by CBN does CBN identify the author of those handwritten marginal notes on Document 53. There is no indication that these notes were written by an attorney or by a client within the requirements of the attorney-client test of United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)." (citation omitted; footnote omitted); rejecting attorney-client privilege claim and ordering production of documents), 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: 57.702
Case Name: McCullough v. Standard Pressing Machs. Co., 39 Va. Cir. 191, 192 (Va. Cir. Ct. 1996)
(addressing work product protection for material created by an insurance company in the third party insurance context; ultimately finding that the materials deserved work product protection; "[T]he proponent of a privilege generally has the burden of establishing that a document or communication is subject to the privilege claimed.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 57.702
Case Name: S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 242-43 (Va. Cir. Ct. 1993)
("As in most other jurisdictions, the proponent of a claim that certain documents are privileged has the burden of establishing that the privilege exists.") [Peatross, J.]

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA B 12/09

Chapter: 57.702
Case Name: In re Bryant, 27 Va. Cir. 414, 418 (Va. Cir. Ct. 1992)
("the burden is placed upon the person asserting the privilege . . . to demonstrate that the privilege is validly asserted")

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

Chapter: 57.702
Case Name: X Corp v. Doe, 805 F. Supp. 1298, 1306 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "The party seeking to invoke the privilege bears the burden of establishing that the attorney-client relationship existed, that the particular communications at issue are privileged, and that the privilege has not been waived."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA N 12/12

Chapter: 57.702
Case Name: Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (Va. 1988)
("The proponent has the burden to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived."; affirming the trial court's rulings on attorney-client privilege and work product doctrine issued after an in camera review of documents sought by the state government in a Medicaid investigation of a nursing home)

Case Date Jurisdiction State Cite Checked
1988-01-01 State VA

Chapter: 57.702
Case Name: Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 695-96 (E.D. Va. 1987)
("Under this burden, the 'proponent must establish not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege has not been waived.'")

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

Chapter: 57.702
Case Name: Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 695 (E.D. Va. 1987)
("The proponent of the attorney-client privilege bears the burden of demonstrating its applicability.")

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

Chapter: 57.703
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 protects legal advice only; it does not shield business advice. . . . Where business and legal advice cannot be separated in a given communication, 'the communication will be considered privileged only if the legal aspects predominate.' On the other hand, where business and legal advice can be easily segregated, the communication 'must be produced with the legal-related portions redacted.' And if 'it is too difficult to determine if the legal issues predominate in a given communication,' 'the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced.'")

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

Chapter: 57.703
Case Name: FTC v. Innovative Designs, Inc., Civ. A. No. 16-1669, 2017 U.S. Dist. LEXIS 162222 (W.D. Pa. Sept. 28, 2017)
("The burden of establishing the privilege, by a preponderance of the evidence, rests with the party seeking its protection.")

Case Date Jurisdiction State Cite Checked
2017-09-28 Federal PA

Chapter: 57.703
Case Name: United States v. Microsoft Corporation, Case No. C15-102RSM, 2017 U.S. Dist. LEXIS 69223 (W.D. Wash. May 5, 2017)
(holding that Microsoft could reasonably have anticipated litigation based on various factors; and ordering an in camera review of withheld documents; "Besides these privilege logs, the declarations of Mr. Sample and Mr. Boyle also indicate these documents were intended to remain confidential, they were stored securely, and the attorney-client privilege was not waived. . . . Considering the information provided by these twelve privilege log entries, along with Mr. Sample's and Mr. Boyle's declarations, the Court finds Microsoft has made a prima facie showing that these twelve documents are protected by the attorney-client privilege.")

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

Chapter: 57.703
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("[W]e hold that BDO did not prove its prima facie case of attorney-client privilege as to all of the log entries.")

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

Chapter: 57.703
Case Name: Town of Ledyard v. WMS Gaming, Inc., CV085007839, 2016 Conn. Super. LEXIS 822 (Conn. Sup. Ct. April 19, 2016)
(finding that a non-party who had not been added to the litigation did not participate in a common interest arrangement; "The burden of proving each element of the privilege, by a fair preponderance of the evidence, rests with the party seeking to assert the privilege.")

Case Date Jurisdiction State Cite Checked
2016-04-19 Federal CT

Chapter: 57.703
Case Name: Rembrandt Patent Innovations, LLC v. Apple Inc., Nos. C 14-05094 -05093 WHA, 2016 U.S. Dist. LEXIS 13749, at *13 (N.D. Cal. Feb. 4, 2016)
("Once a party has made a prima facie showing that a document is privileged, a party challenging privilege must 'show a factual basis sufficient to support a reasonable, good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2016-02-04 Federal CA B 8/16

Chapter: 57.703
Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
("[T]he burden of sustaining a claim of privilege is a 'heavy' one.")

Case Date Jurisdiction State Cite Checked
2014-11-05 Federal GA

Chapter: 57.703
Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 615 (D. Kan. 2014)
("As the party asserting work-product protection and attorney-client privilege, B&V bears the burden of establishing that either or both apply. To carry that burden, B&V must make a 'clear showing' and 'describe in detail' the documents or information to be protected and provide 'precise reasons' for the objection to discovery." (citation and footnote omitted))

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

Chapter: 57.703
Case Name: Skepnek v. Roper & Twardowsky, LLC, Case No. 11-4102-KHV, 2013 U.S. Dist. LEXIS 163475, at *4-5, *5-6 (D. Kan. Nov. 18, 2013)
("The duty to raise the issue of privilege in response to plaintiffs' motion to compel rested with defendants, not plaintiffs. If defendants intended to rely upon objections of privilege, defendants had the burden to assert those objections and support them in opposing the motion to compel. Their failure precludes them from now relying upon the objections. They abandoned them."; "To carry that burden, defendants had to make a 'clear showing' that the asserted objection applies, 'describe in detail the documents or information to be protected, and provide precise reasons for the objection to discovery.' The detailed and specific showing required under Fed. R. Civ. P. 26(b)(5) is typically presented in the form of a privilege log." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-11-18 Federal KS B 5/14

Chapter: 57.703
Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *4-5 (S.D. Ind. June 3, 2013)
("The party invoking attorney-client privilege must make a prima facie showing of these elements. . . . Once the seeking party has established those elements, the burden shifts to the party seeking discovery to show that the communications are not protected due to confidentiality either being waived or nullified.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 57.703
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 868-69 (Tex. Ct. App. 2013)
("The prima facie standard requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. . . . Once the party resisting discovery establishes a prima facie case that the documents are privileged, the burden shifts to the discovering party to refute the privilege claim.")

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

Chapter: 57.703
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 627 (D. Nev. 2013)
("There is no dispute that the party asserting the privilege must make a prima facie showing that the privilege protects the information the party intends to withhold.")

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

Chapter: 57.703
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 584 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "The proponent must establish the existence of the privilege by a preponderance of the evidence.")

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

Chapter: 57.703
Case Name: Feld v. Fireman's Fund Ins. Co., 292 F.R.D. 129, 137 (D.D.C. 2013)
("Feld must 'clearly show' that each assertedly privileged item meets all the elements of the attorney-client privilege." (citation omitted))

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

Chapter: 57.703
Case Name: Ferguson v. United of Omaha Life Ins. Co., Civ. Case No. ELH-12-1035, 2012 U.S. Dist. LEXIS 179182, at *10 (D. Md. Dec. 18, 2012)
(holding that the party challenging the privilege claim had the burden of showing application of the fiduciary exception; "When a party makes a prima facie showing of privilege, 'the party asserting an exception to the privilege bears the burden of establishing that the exception applies.'" (citation omitted))

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

Chapter: 57.703
Case Name: In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 96 (Tex. Ct. App. 2012)
("An affidavit has been held to be sufficient to make a prima facie showing of attorney-client privilege.")

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

Chapter: 57.703
Case Name: In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 96 (Tex. Ct. App. 2012)
("The prima facie standard requires only the 'minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.'" (citation omitted))

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

Chapter: 57.703
Case Name: In re USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 96 (Tex. Ct. App. 2012)
("To meet its burden, the party seeking to assert a privilege must make a prima facie showing of the applicability of the privilege and produce evidence to support the privilege.")

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

Chapter: 57.704
Case Name: FTC v. Adept Management, Civ. No. 1:16-cv-00720-CL, 2018 U.S. Dist. LEXIS 111673 (D. Ore. July 3, 2018)
("Once the attorney-client privilege has been invoked, a party challenging the privilege must show by that it has been abused.")

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

Chapter: 57.704
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("'The proponent has the burden to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.'")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 57.704
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)
("Defendants, as proponents, have the burden of establishing the applicability of the attorney-client privilege and the nonwaiver of it.")

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

Chapter: 57.704
Case Name: Watchous Enterprises, L.L.C. v. Pacific National Capital, Case No. 16-1432-JTM, 2017 U.S. Dist. LEXIS 176194 (D. Kansas Oct. 24, 2017)
("Because absence of waiver is an element, the burden of proving the privilege has not been waived remains with the person asserting the privilege.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal KS

Chapter: 57.704
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 burden of showing the privilege has not been waived remains with the party claiming the privilege.")

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

Chapter: 57.704
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 44192 (D. Kansas March 24, 2017)
(in an opinion by Special Master, finding that a former Monsanto lawyer and business person did not resist discovery after being designated by defendant as a testifying expert; "The burden of showing that the privilege has not been waived remains with the party claiming the privilege.")

Case Date Jurisdiction State Cite Checked
2017-03-24 Federal KS

Chapter: 57.704
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; "Certain aspects of the common interest doctrine are subject to wide-ranging interpretations across the Country. However, this Court is bound to apply New Jersey privilege law in this case, and New Jersey law favors an extremely expansive view of the doctrine. Indeed, O'Boyle [O'Boyle, 218 N.J. at 198] has made clear that disclosure may occur prior to the commencement of litigation; may involve communications between counsel for one party and a representative of another party; that the shared interest need not be strictly legal but also may be commercial; and that the parties' shared interests need not be identical -- a 'common purpose' will suffice. Id. at 199. The burden to show the privilege has not been waived, and thus, that the doctrine applies, rests with the party resisting disclosure.")

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

Chapter: 57.704
Case Name: In re Syngenta AG Mir 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 11749 (D. Kan. Jan. 27, 2017)
("[I]t bears mentioning that under the eighth element, absence of waiver, the party claiming the privilege must demonstrate that 'the substance of an otherwise privileged communication' is not revealed to a third party. The burden of showing that the privilege has not been waived remains with the party claiming the privilege.")

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

Chapter: 57.704
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: 57.704
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: 57.704
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)
("[I]n the case at bar, defendant must establish that the attorney-client privilege was properly invoked with respect to the draft Marketing Agreement. The burden of proof then shifts to plaintiffs to establish that the attorney-client privilege has been waived with respect to that document, or that an exception to the privilege applies.")

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

Chapter: 57.704
Case Name: Rasby v. Pillen, 8:15CV226, 2016 U.S. Dist. LEXIS 127231 (D. Neb. Sept. 19, 2016)
("The party asserting a privilege has the burden of proving its existence, which includes showing waiver did not occur.")

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

Chapter: 57.704
Case Name: Howard v. John Moore, L.P., Civ. A. H-13-1672, 2016 U.S. Dist. LEXIS 36760, at *3 (S.D. Tex. Mar. 22, 2016)
("The party asserting the privilege also bears the burden of establishing that the privilege has not been waived.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal TX B 8/16

Chapter: 57.704
Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114 (E.D.N.Y. Sept. 18, 2015)
("Just as the party asserting privilege has the burden of establishing it, that party 'also bears the burden of demonstrating that it has not been waived.'").

Case Date Jurisdiction State Cite Checked
2015-09-18 Federal NY

Chapter: 57.704
Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
("A party asserting waiver of the privilege bears the burden of proving the waiver.")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal PA

Chapter: 57.704
Case Name: United States v. von Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139 (E.D.N.C. March 25, 2015)
("The burden is on the proponent of the attorney-client privilege to demonstrate 'not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.'")

Case Date Jurisdiction State Cite Checked
2015-03-25 Federal NC

Chapter: 57.704
Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("The burden is on the claimant of the privilege 'to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.'").

Case Date Jurisdiction State Cite Checked
2015-01-01 State VA

Chapter: 57.704
Case Name: Davis v. Drake, Case No. 3:14 CV 113, 2014 U.S. Dist. LEXIS 157313 (N.D. Ohio Nov. 6, 2014)
("The party claiming an attorney-client privilege not only bears the burden of proving that the privilege applies, but must also show that the privilege has not been waived.")

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

Chapter: 57.704
Case Name: East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civil No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272, at *4-5 (D.N.H. Sept. 16, 2014)
("Under federal law, the party claiming a privilege bears the burden of showing that a document is privileged and that the privilege has not been waived.")

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

Chapter: 57.704
Case Name: Safety Text & Equip. Co. Inc. v. Am. Safety Util. Corp., 13 CVS 1037, 2014 NCBC 40, at *12 (N.C. Super. Ct. Sept. 2, 2014)
("Though the elements of privilege are settled, North Carolina case law has not clearly considered whether the party claiming privilege has an initial burden to prove the negative of a waiver or whether the privilege proponent need only prove absence of waiver in response to an adequately supported challenge.")

Case Date Jurisdiction State Cite Checked
2014-09-02 State NC

Chapter: 57.704
Case Name: Safety Text & Equip. Co. Inc. v. Am. Safety Util. Corp., 13 CVS 1037, 2014 NCBC 40, at *14, *15 (N.C. Super. Ct. Sept. 2, 2014)
("Some courts expressly presume that there has been no waiver until a party opposing privilege demonstrates a factual predicate for claiming waiver."; "Other courts, including the Fourth Circuit, implicitly presume the absence of waiver absent contrary evidence."; "The court concludes that this burden-shifting approach is consistent with North Carolina precedent and should be followed here. The approach prevents placing an initial heavy and unrealistic burden on the privilege holder to account for and disprove every possibility of waiver.")

Case Date Jurisdiction State Cite Checked
2014-09-02 State NC

Chapter: 57.704
Case Name: United States v. Juan, Crim. No. 3:14cr25-2, 2014 U.S. Dist. LEXIS 121258 (E.D. Va. Aug. 29, 2014)
("The proponent carries the burden of establishing the existence of the attorney-client relationship, the applicability of the privilege to the specific communication at issue, and the absence of waiver.")

Case Date Jurisdiction State Cite Checked
2014-08-29 Federal VA

Chapter: 57.704
Case Name: Knox Energy, LLC v. Gasco Drilling, Inc., Civ. Action No. 1:12-cv-00046, 2014 U.S. Dist. LEXIS 92817, at *3 (W.D. Va. July 9, 2014)
("Under Virginia law, the proponent of the privilege has the burden to establish that the attorney-client privilege existed, that the communication under consideration is privileged and that the privilege was not waived.")

Case Date Jurisdiction State Cite Checked
2014-07-09 Federal VA B 33/16

Chapter: 57.704
Case Name: Rank Group Ltd. v. ALCOA, Inc., 12 Civ. 3769 (VSB) (RLE), 2014 U.S. Dist. LEXIS 64508 (S.D.N.Y. May 9, 2014)
("The party asserting the privilege carries the burden of proving its applicability . . . and that it has not been waived.")

Case Date Jurisdiction State Cite Checked
2014-05-09 Federal NY

Chapter: 57.704
Case Name: Shire LLC v. Amneal Pharmaceuticals LLC, Civ. A. No. 2:11-cv-03781 (SRC) (CLW) (Consolidated), 2014 U.S. Dist. LEXIS 45075 (D.N.J. April 1, 2014)
(apparently finding that the absence of a written common interest agreement made the protection unavailable; "The burden to show the privilege has not been waived, and thus, that the doctrine applies, rests with the party resisting disclosure.")

Case Date Jurisdiction State Cite Checked
2014-04-01 Federal NJ

Chapter: 57.704
Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Case Nos. 11-2684-, -2685-, & -2686-JWL, 2014 U.S. Dist. LEXIS 16938, at *15 (D. Kan. Feb. 11, 2014)
("The burden of showing that the attorney-client privilege has not been waived remains with Sprint, the party claiming the privilege.")

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

Chapter: 57.704
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 *7 (D. Colo. Oct. 23, 2013)
("The burden of proving waiver of the attorney-client privilege is on the party seeking to overcome it.")

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

Chapter: 57.704
Case Name: Guidiville Rancheria of Cal. v. United States, Case No. 12-cv-1326 YGR (KAW), 2013 U.S. Dist. LEXIS 120509, at *8, *8-9, *10 (N.D. Cal. Aug. 23, 2013)
(analyzing the government's effort to claw-back a document it claimed was inadvertently disclosed; "Defendants admit that the document was not marked 'privileged' or 'confidential.'"; "Defendants have failed to submit evidence showing that it did not voluntarily disclose the contents of the draft memo. Nor have they explained what steps, if any, were taken to protect the privileged nature of the document, whom the document was provided to, or how it or its contents were released to a newspaper. Nor have Defendants attempted to explain the statement in the letter from a member of Stand Up for California to the Acting Director of the Office of Indian Gaming that, 'as we discussed on Friday, we both know that the memo exists.' The implication of this statement is that the Director of the Office of Indian Gaming had discussed the existence and relevant contents of the draft memo with the representative of Stand Up California. If this is true, the disclosure was voluntary and the attorney-client privilege was waived."; "Defendants have not met their burden of showing non-waiver, as they have submitted no evidence to the Court attesting to how the draft memo was kept confidential.")

Case Date Jurisdiction State Cite Checked
2013-08-23 Federal CA B 4/14

Chapter: 57.704
Case Name: Guidiville Rancheria of Cal. v. United States, Case No. 12-cv-1326 YGR (KAW), 2013 U.S. Dist. LEXIS 120509, at *4 (N.D. Cal. Aug. 23, 2013)
("[T]he attorney-client privilege is strictly construed, and it is Defendants' burden to prove every element, including that the privilege was not waived.")

Case Date Jurisdiction State Cite Checked
2013-08-23 Federal CA B 4/14

Chapter: 57.704
Case Name: Hollis v. O'Driscoll, No. 13 Civ. 01955 (AJN), 2013 U.S. Dist. LEXIS 83885, at *2 (S.D.N.Y. June 11, 2013)
(holding that a pro se respondent waived the possible privilege protection for an attachment to her answer, which was a timeline created after she spoke with a lawyer she ultimately did not hire; rejecting the pro se respondent's privilege claim after she hired a lawyer; "The party claiming privilege also carries the burden of showing that it has not been waived.")

Case Date Jurisdiction State Cite Checked
2013-06-11 Federal NY B 4/14

Chapter: 57.704
Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *5 (N.D. Cal. June 10, 2013)
("Because lack of waiver is an element of the attorney-client privilege, the party asserting privilege bears the burden of proving that there was no waiver.")

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

Chapter: 57.704
Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *4-5 (S.D. Ind. June 3, 2013)
("The party invoking attorney-client privilege must make a prima facie showing of these elements. . . . Once the seeking party has established those elements, the burden shifts to the party seeking discovery to show that the communications are not protected due to confidentiality either being waived or nullified.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 57.704
Case Name: Theranos, Inc. v. Fuisz Techs., Ltd., Case No. C 11-5236 PSG, 2013 U.S. Dist. LEXIS 70564, at *3 (N.D. Cal. May 16, 2013)
("The party asserting the attorney-client privilege bears the burden of showing that it applies. Also, it must prove that privilege has not been waived.")

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

Chapter: 57.704
Case Name: Wi-Lan, Inc. v. LG Elecs., Inc., Case No. C 10-80254 JF (PSG), 2013 U.S. Dist. LEXIS 26336, at *6 (N.D. Cal. Feb. 25, 2013)
("The party asserting the attorney-client privilege bears the burden of showing that it applies. Also, it must prove that the privilege has not been waived.")

Case Date Jurisdiction State Cite Checked
2013-02-25 Federal CA B 3/14

Chapter: 57.704
Case Name: In re Park Cities Bank, 409 S.W.3d 859, 869 (Tex. Ct. App. 2013)
("The party seeking discovery of an otherwise privileged communication bears the burden of proving the exception.")

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

Chapter: 57.704
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 584 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "A party seeking to pierce the privilege need only establish a prima facie case that the client's privilege was waived. If a waiver has been sufficiently alleged, the party seeking the benefit of the privilege must establish -- by a preponderance of the evidence -- that the privilege was not waived, as the burden always rests in the final analysis with the party seeking the protection of the privilege." (footnote omitted))

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

Chapter: 57.704
Case Name: Adobe Sys. Inc. v. Wowza Media Sys., Case No. 11-2243 CW (JSC), 2012 U.S. Dist. LEXIS 177567, at *5 n.1 (N.D. Cal. Dec. 14, 2012)
(holding an invalidity defense did not privilege communications at issue; "'The parties do not address which party bears the burden regarding waiver. Some courts hold that the party asserting waiver bears the burden . . . while others hold the party asserting privilege bears the burden of proving non-waiver. . . . The Court's ruling would be the same regardless of which party bears the burden.")

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

Chapter: 57.704
Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *6-7 (W.D. Va. June 28, 2012)
("'The proponent has the burden to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' [Commonwealth v. ]Edwards, 370 S.E.2d [296,] 301 [(Va. 1988)] (citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)).")

Case Date Jurisdiction State Cite Checked
2012-06-28 Federal VA B 3/16

Chapter: 57.704
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("'The proponent of the privilege must establish not only that an attorney-client relationship existed, but also that the specific communications at issue are privileged and the privilege was not waived.' Zeus Enters. V. Alphin Aircraft, Inc., 190 F.3d 238, 244 (4th Cir. 1999).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 57.704
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("The burden is on the proponent of the privilege 'to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' Edwards, 370 S.E.2d at 301; see also United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 57.704
Case Name: Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376 (Pa. Super. Ct. 2012)
("Pennsylvania law imposes a shifting burden of proof in disputes over disclosure of communications allegedly protected by attorney-client privilege. The party invoking a privilege must initially 'set forth facts showing that the privilege has been properly invoked; then the burden shifts to the party seeking disclosure to set forth facts showing that disclosure will not violate the attorney-client privilege, e.g., because the privilege has been waived or because some exception applies.'")

Case Date Jurisdiction State Cite Checked
2012-01-01 State PA B 1/13

Chapter: 57.704
Case Name: SNC Lavalin Am., Inc. v. Alliant Techsystems, Inc., Civ. A. No. 7:10CV00540, 2011 U.S. Dist. LEXIS 115535, at *5-7 (W.D. Va. Oct. 6, 2011)
("The burden is on the proponent of the privilege "to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' Edwards, 370 S.E.2d at 301. . . ."; "[T]he party withholding the document must specifically and factually support its claim of privilege 'by way of evidence, not just argument.' Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust, 230 F.R.D. 398, 410 (D. Md. 2005)."; "Applying these principles, and having reviewed each of the documents withheld from production, the court concludes that ATK has failed to demonstrate that the documents are protected by the attorney client privilege. The documents were prepared by employees of WGI and ATK, and include no communications from ATK's legal counsel. While ATK has submitted emails indicating that each of the documents was intended to be shared with legal counsel, neither the documents themselves, nor any other evidence presented by ATK, establishes that the documents were 'prepared primarily in a legal capacity,' as opposed to a 'business capacity.' Henson, 118 F.R.D. at 588.").

Case Date Jurisdiction State Cite Checked
2011-10-06 Federal VA

Chapter: 57.704
Case Name: Peterson v. Commonwealth of Va., 82 Va. Cir. 497, 497-98 (Va. Cir. Ct. 2011)
("T]he general rule is that confidential communications between a lawyer and his or her client are privileged and not to be disclosed. The burden of establishing that the privilege existed, that the communication is privileged, and the privilege has not been waived lies with the proponent of the privilege.")

Case Date Jurisdiction State Cite Checked
2011-01-01 State VA B 3/16

Chapter: 57.704
Case Name: Walton v. Mid Atlantic Spine Specialists, P.C., 694 S.E.2d 545, 549-50 (Va. 2010)
(analyzing a situation in which a doctor inadvertently provided a privileged letter to his lawyer when responding to a subpoena in a worker's compensation case brought by plaintiff; also noting that in June 2006 the plaintiff answered an interrogatory in a medical malpractice claim against the defendants in which the plaintiff referred to the letter -- but that the defendants did not file a motion for protective order seeking return of the document until November 2007; "The proponent of the privilege has the burden to establish that the attorney client relationship existed, that the communication under consideration is privileged, and that the privilege was not waived. [Commonwealth v.] Edwards, 235 Va. [499,] 509, 370 S.E.2d [290,] 301 [(Va. 1988)]; United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA B 3/16; B 5/16

Chapter: 57.704
Case Name: Batt v. Manchester Oaks Homeowners Ass'n, 80 Va. Cir. 502, 504 (Va. Cir. Ct. 2010)
("The burden is on the proponent to establish that an attorney client relationship existed, the sought communications are privileged, and that the client has not waived the privilege. [Commonwealth v. Edwards, 235 Va. 499, 509 (1988).]")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA B 3/16

Chapter: 57.704
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 *16 (W.D. Va. Apr. 16, 2009)
("The burden is on the proponent 'to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' Edwards, 235 Va. at 509, 370 S.E.2d at 301 (citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisdiction State Cite Checked
2009-04-16 Federal VA

Chapter: 57.704
Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, *13 (W.D. Va. Apr. 15, 2008)
("'The proponent must establish not only that an attorney-client relationship existed, but also that the particular Communications at issue are privileged and that the privilege was not waived.'" quoting United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).)

Case Date Jurisdiction State Cite Checked
2008-04-15 Federal VA

Chapter: 57.704
Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 750 (E.D. Va. 2007)
("[T]he proponent must establish 'not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003).")

Case Date Jurisdiction State Cite Checked
2007-01-01 Federal VA

Chapter: 57.704
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; "The burden is on Defendant MTF to establish nonwaiver.")

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

Chapter: 57.704
Case Name: United States v. Lentz, 419 F. Supp. 2d 820, 827 (E.D. Va. 2005)
("And importantly, the burden is on the proponent of the attorney-client privilege to demonstrate its applicability. Specifically, the proponent must establish 'not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003)." (footnotes omitted)), aff'd, 524 F.3d 501 (4th Cir.), cert. denied, 129 S. Ct. 303 (2008)

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

Chapter: 57.704
Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 (W.D. Va. 2005)
("'The burden is on the proponent of the attorney-client privilege to demonstrate its applicability. The proponent must establish not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' Id. [United States v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 336 (4th Cir. 2003)]")

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

Chapter: 57.704
Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("The proponent of the privilege has the burden of establishing the existence of the attorney-client relationship, the privileged nature of the communications, and non-waiver of the privilege. See id. Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296, 301, 4 Va. Law Rep. 3003 (1988)] (citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)).")

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

Chapter: 57.704
Case Name: Wells v. Liddy, 37 F. App'x 53, 65 (4th Cir. 2002)
("Liddy, as the proponent of the attorney-client and work-product privileges, has the burden of establishing that he has not waived them.")

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

Chapter: 57.704
Case Name: Wells v. Liddy, 37 F. App'x. 53 (4th Cir. 2002)
(finding that the proponent of the attorney-client and work-product privileges has the burden of establishing that he or she has not waived them)

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

Chapter: 57.704
Case Name: Commonwealth of Va. v. Evans, 55 Va. Cir. 237, 243 (Va. Cir. Ct. 2001)
("The proponent of the privilege has the burden to establish that the client did not waive the privilege. Id. [Commonwealth v. Edwards, 235 Va. 499, 508-510, 370 S.E.2d 296, 301 (1988) (quoting Grant v. Harris, 116 Va. 642, 648, 82 S.E. 718, 719 (1914)]")

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

Chapter: 57.704
Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 188 (Va. Cir. Ct. 2000)
("The proponent of the privilege has the burden to show that it was not waived. Id. [Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296 (1988)] (citing United States v. Jones, 696 F.2d 1069 (4th Cir. 1982)).")

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

Chapter: 57.704
Case Name: Gordon v. Newspaper Assoc. of Am., 51 Va. Cir. 183, 193 (Va. Cir. Ct. 2000)
("A court may find waiver where the proponent of the privilege does not meet his burden to prove the privilege was not waived. See Id. [Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296 (1988)] (citing United States v. Jones, 696 F.2d 1069, 1072 (1982)). Where the waiver is arguably made by implication, 'regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and constancy.' Id. Considering fairness to both parties, the court has discretion to find the privilege was not waived where the disclosure was not made in order to gain an unfair advantage in litigation. See Jones, 696 F.2d at 1072 (citing In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982)).")

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

Chapter: 57.704
Case Name: Zeus Enters., Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 244 (4th Cir. 1999)
(upholding denial of a party's request for attorney fees under a contract, based on the party's refusal to allow testimony about "what factual investigation and legal research" the party's law firm conducted; the court "[does] not understand why Zeus could not have allowed its law firm to disclose some information about the nature and extent of its work, without entrenching upon the attorney-client privilege. In any event, the burden of establishing the applicability of the attorney-client privilege rests on the proponent of the privilege. The privilege does not protect all aspects of the attorney-client relationship; it only protects confidential communications between lawyer and client. The proponent of the privilege must establish not only that an attorney-client existed, but also that the specific communications at issue are privileged and that the privilege was not waived. Here, Zeus made a blanket assertion of privilege to Alphin's questions to Shaw Pittman about the scope of that firm's work for Zeus in connection with the NTSB proceeding. Zeus offered nothing to satisfy its burden to establish that the information sought by Alphin was protected by the attorney-client privilege. Accordingly, the district court did not err in striking Zeus's request to recover attorneys' fees paid to Shaw Pittman for its work in the administrative proceeding.")

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

Chapter: 57.704
Case Name: X Corp v. Doe, 805 F. Supp. 1298, 1306 (E.D. Va. 1992)
(analyzing a lawsuit in which an in-house lawyer alleged wrongful termination; "The party seeking to invoke the privilege bears the burden of establishing that the attorney-client relationship existed, that the particular communications at issue are privileged, and that the privilege has not been waived."; ultimately concluding that the employee was entitled to a preliminary injunction preventing the in-house lawyer plaintiff from disclosing confidential information beyond his own lawyer, but refusing to order the plaintiff to return documents that he had taken when he left his employment; the Fourth Circuit ultimately upheld a permanent injunction prohibiting the in-house lawyer from disclosing confidential communication, Under Seal v. Under Seal, No. 93-1495, 1994 U.S. App. LEXIS 3143, 17 F.3d 1435 (4th Cir. Feb. 23, 1994) (unpublished opinion))

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal VA N 12/12

Chapter: 57.704
Case Name: Commonwealth v. Edwards, 235 Va. 499, 509, 370 S.E.2d 296, 301 (Va. 1988)
("The proponent has the burden to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived."; affirming the trial court's rulings on attorney-client privilege and work product doctrine issued after an in camera review of documents sought by the state government in a Medicaid investigation of a nursing home)

Case Date Jurisdiction State Cite Checked
1988-01-01 State VA

Chapter: 57.704
Case Name: Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 695-96 (E.D. Va. 1987)
("Under this burden, the 'proponent must establish not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege has not been waived.'")

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

Chapter: 57.705
Case Name: Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2018 U.S. Dist. LEXIS 164159 (D. Ore. Sept. 25, 2018)
(finding the crime-fraud exception applicable; inexplicably ordering production of a category of documents rather than analyzing the documents one at a time; "The burden of proof by a party in a civil case seeking disclosure under the crime-fraud exception of documents protected by attorney-client privilege or the work-product doctrine is preponderance of the evidence.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal OR

Chapter: 57.705
Case Name: Peters v. Aetna Inc., Civ. Case No. 1:15-cv-00109-MR, 2018 U.S. Dist. LEXIS 126108 (W.D.N.C. July 27, 2018)
(analyzing the fiduciary exception in an ERISA case; "While the Solis [Solis v. Food Employers Labor Relations Association, 644 F.3d 221, 226 (4th Cir. 2011)] Court did not explicitly state who bears the burden of proving the applicability of the fiduciary exception, the Fourth Circuit has held with respect to other exceptions to the attorney-client privilege that the party seeking to overcome the attorney-client privilege bears the burden of establishing that an exception applies."; "The Plaintiff argues that, in light of their purported roles as fiduciaries, the Defendants bear the burden of demonstrating that the fiduciary exception does not apply to the challenged documents. It makes no sense, however, to require a party -- in this case, the Defendants -- to bear the burden of demonstrating that the attorney-client privilege applies and then require the same party to prove a negative, that is, that an exception to that privilege does not apply. This latter burden rightly falls on the shoulders of the Plaintiff.")

Case Date Jurisdiction State Cite Checked
2018-07-27 Federal NC

Chapter: 57.705
Case Name: FTC v. Adept Management, Civ. No. 1:16-cv-00720-CL, 2018 U.S. Dist. LEXIS 111673 (D. Ore. July 3, 2018)
("Once the attorney-client privilege has been invoked, a party challenging the privilege must show by that it has been abused.")

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

Chapter: 57.705
Case Name: Peerless Indemnity Ins. Co. v. Sushi Avenue, Inc., Civ. No. 15-4112 ADM/LIB, 2017 U.S. Dist. LEXIS 22436 (D. Minn. Feb. 15, 2017)
("Peerless thus recognized that in establishing privilege, it had the burden to convince Judge Brisbois that the communications at issue were not disseminated beyond those persons who needed to know their contents. Peerless did not explain the corporate role of any individuals other than the four identified for purposes of the second element, electing instead to broadly assert the conclusion that the communications were not shared beyond those who needed to know their contents."; "In viewing the disputed communications in camera, Judge Brisbois discovered that many of the communications were copied to individuals whose identity and role Peerless did not explain.")

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

Chapter: 57.705
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)
("It is the burden of the party asserting the privilege to establish that all requirements are satisfied.")

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

Chapter: 57.705
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("In determining whether the attorney-client privilege applies, California law employs a shifting burden approach. Initially, the party claiming the privilege must establish "'the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.'"; "Once the party claiming the attorney-client privilege makes the prima facie showing described above, "'the communication is presumed to have been made in confidence.'. . . Then, "'the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.'")

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

Chapter: 57.705
Case Name: Durand v. The Hanover Ins. Group, Inc., Civ. A. No. 3:07-CV-00130-HBB, 2016 U.S. Dist. LEXIS 143064 (W.D. Ky. Oct. 17, 2016)
("The Court notes that the burden of establishing the protection of the attorney-client privilege rests with the person or entity asserting it."; "The Court is aware that when a party asserts the crime-fraud exception to the attorney-client privilege he or she bears the burden of demonstrating the applicability of that exception. . . . This makes sense because the crime-fraud exception defeats or strips away the privilege when the communications between lawyer and client are "'made for the purpose of getting advice for the commission of a fraud' or crime.'. . . The Court notes that in the context of ERISA, the fiduciary exception is something of a misnomer because it does not vitiate the attorney-client privilege like the crime-fraud exception. Instead, it sets forth a general proposition that, at least as to advice regarding plan administration, the beneficiaries are the real client, and, thus, the trustee 'never enjoyed the privilege in the first place.'. . . When '[u]nderstood in this fashion, the fiduciary exception is not really an 'exception' to the attorney-client privilege at all.' Id. Because of this substantial distinction, case law regarding the crime-fraud exception is not an appropriate source for guidance on the question of burden."; "While no court appears to have expressly ruled on the question of burden, the majority of courts addressing the fiduciary exception, in the context of ERISA, appear to have reasoned the employer/administrator/trustee has the burden of demonstrating the communications withheld on claim of privilege are not subject to the fiduciary exception. . . . in the context of ERISA, the majority view appears to be the employer/administrator has the burden of demonstrating counsel's communications concerned non-administrative/non-fiduciary matters or personal representation in potential or pending litigation.")

Case Date Jurisdiction State Cite Checked
2016-10-17 Federal KY

Chapter: 57.705
Case Name: Motion Industries, Inc. v. Superior Derrick Services, LLC, Civ. A. No. 15-1958 Section: "H"(5), 2016 U.S. Dist. LEXIS 23826 (E.D. La. Feb. 26, 2016)
(analyzing an internal corporate investigation into possibly improper transactions; holding that in the Fifth Circuit litigation need not be imminent to trigger the work product doctrine protection; finding plaintiff's brief provided inadequate supporting protection internal corporate investigation documents; "In the present case, there is literally nothing in the record, including the documents themselves, that would allow this Court to undertake the inquiry necessary to find these documents to be privileged. As for what the 'primary motivating purpose behind the creation of the document' might have been, the Court can only guess. This is the sum total information provided by the Plaintiff in brief to explain the documents' genesis: 'An employee contacted Movant's human resources department in July 2013 and as a result of that contact, an investigation was initiated. Movant retained Asset Protection as a contractor to assist in the process of the investigation.'"; "As a statement in support of a privilege claim, this one leaves much to be desired, as it creates far more questions than it provides answers. Who was the employee that contacted human resources and why? An 'investigation was initiated' by whom and why? What is 'Asset Protection?' Where are the privilege logs referenced in the brief? Who are the six employees identified? Are any of them attorneys? Were any attorneys involved in this investigation? Why, if at all, did anyone anticipate litigation resulting from this human resources 'contact?'"; "It should be noted that the documents themselves do not in any way help the Court answer any of these questions. The mere statement by counsel in brief that '[t]he motivation for the investigation and the preparation of the documents in relation to the investigation was an anticipation of litigation' is woefully insufficient to carry Plaintiff's burden in the absence of any supporting evidence in the record.")

Case Date Jurisdiction State Cite Checked
2016-02-26 Federal LA

Chapter: 57.705
Case Name: In re Subpoena to Testify Before Grand Jury, Case No. 15-mc-80207-JSC, 2015 U.S. Dist. LEXIS 122305 (N.D. Cal. Sept. 14, 2015)
("A party seeking disclosure of attorney-client communications or attorney work product under the crime-fraud exception bears the burden of demonstrating that the privilege does not apply. Specifically, '[a] party seeking to vitiate the attorney-client privilege [or work product doctrine] under the crime-fraud exception must satisfy a two-part test.'. . . First, the party must show that 'the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme.'. . . 'Second, it must demonstrate that the attorney-client communications for which production is sought are 'sufficiently related to' and were made 'in furtherance of [the] intended, or present, continuing illegality.'").

Case Date Jurisdiction State Cite Checked
2015-09-14 Federal CA

Chapter: 57.705
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: 57.705
Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("The burden is on the claimant of the privilege 'to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.'").

Case Date Jurisdiction State Cite Checked
2015-01-01 State VA

Chapter: 57.705
Case Name: McCullough v. Fraternal Order of Police Chicago Lodge 7, No. 12 C 9359, 2014 U.S. Dist. LEXIS 69498 (N.D. Ill. May 21, 2014)
(analyzing joint representation and common interest agreement issues in connection with two plaintiffs suing defendant Fraternal Order of Police; explaining that they shared a common lawyer for some time, but explaining that the lawyer withdrew from representing one of the clients, who was then unrepresented; including that the two plaintiffs did not have a common interest although they were suing the same defendant, so that the privilege only protected their communications while they were jointly represented; "[A]s the party claiming privilege, it was the plaintiff's burden to prove the dates of the joint representation.")

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

Chapter: 57.705
Case Name: Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 U.S. Dist. LEXIS 159498, at *14-15 (N.D. Ill. Nov. 7, 2013)
(finding that an agent for a musical band was outside the privilege protection; "[T]he issue of whether an agency relationship exists and the scope of the purported agent's authority are questions of fact. . . . The party claiming agency must prove such a relationship by a preponderance of the evidence.")

Case Date Jurisdiction State Cite Checked
2013-11-07 Federal IL B 5/14

Chapter: 57.705
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *9 (E.D. Wis. July 10, 2013)
("Flynn and Perry appear to have been employees of IOS [company where the criminal defendants worked] at the time of the communications at issue, and the Furr defendants include them on their joint defense list . . . . But the Furr defendants have not shown that they were part of any joint defense group. An employee's cooperation in an internal investigation conducted by the company's attorney is not equivalent to the employee seeking personal representation. . . . [I]t appears that Perry and Flynn were IOS employees responding to their company's internal inquiries. The burden is on the defendants to demonstrate the existence of a joint defense agreement that precludes disclosure of documents and communications.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 57.705
Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *4-5 (S.D. Ind. June 3, 2013)
("The party invoking attorney-client privilege must make a prima facie showing of these elements. . . . Once the seeking party has established those elements, the burden shifts to the party seeking discovery to show that the communications are not protected due to confidentiality either being waived or nullified.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 57.705
Case Name: Glenwood Halsted LLC v. Vill. of Glenwood, No. 11-CV-6772, 2013 U.S. Dist. LEXIS 4471, at *4-5 (N.D. Ill. Jan. 11, 2013)
("The burden of establishing the essential elements of the attorney-client privilege, including the fact that the document was not disclosed to non-privileged recipients, rests with Defendants, as the party asserting the privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal IL B 7/13

Chapter: 57.705
Case Name: Sutherland v. Jagdmann, Civ. A. No. 3:05CV042-JRS, 2005 U.S. Dist. LEXIS 25878, at *3-4 (E.D. Va. Oct. 31, 2005)
(finding that a supposed client had not established the existence of an attorney-client relationship, and therefore could not disqualify defendant's counsel; "The party seeking protection under the attorney-client privilege bears the burden of proving that he or she is a client and 'affirmatively sought to become a client.' In re Grand Jury Subpoena: Under Seal, 415 F.3d 333, 339 (4th Cir. 2005). The existence of an attorney-client relationship '"hinges upon the client's belief that he [or she] is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice."' Id. (quoting United States v. Evans, 113 F.3d 1457, 1465 (7th Cir. 1997)). The supposed client 'must show that his [or her] subjective belief that an attorney-client relationship existed was reasonable under the circumstances.' Id. Ms. Sutherland's memoranda accompanying this Motion offer this Court little more than personal narratives containing factual assertions unsupported by the record. The Court cannot assume the existence of facts giving rise to an attorney-client relationship. See Aielli v. Port Auth. of N.Y. & N.J., 1996 U.S. Dist. LEXIS 3847, at *5-6 (S.D.N.Y. Mar. 29, 1996) (denying a Motion for Disqualification based partly on the movant's failure to provide affidavits to substantiate the factual assertions she made). Furthermore, even if the Court were to take as true Ms. Sutherland's accounts of the conversations she claims to have had with Mr. Beales, the facts alleged do not support the creation or existence of an attorney-client relationship. Ms. Sutherland did not allege sufficient facts to establish that she contacted Mr. Beales to seek professional legal advice from him in his capacity as a professional legal adviser. As such, none of the information flowing from these conversations can be deemed privileged.")

Case Date Jurisdiction State Cite Checked
2005-10-31 Federal VA

Chapter: 57.705
Case Name: Sony Computer Entm't Am., Inc. v. Great Am. Ins Co., 229 F.R.D. 632, 633, 634 & n.1 (N.D. Cal. 2005)
("[T]he parties clarified that the only third party at issue is Mr. O'Neil, the insurance broker for SCEA"; "Where a third party is present, no presumption of confidentiality obtains, and the usual allocation of burden of proof, resting with the proponent of the privilege, applies in determining whether confidentiality was preserved under § 952."); "It is appropriate that the proponent of the privilege has the burden of proving that a third party was present to further the interest of the proponent because, in this situation, where the privilege turns on the nature of the relationship and content of communications with the third party in question, the proponent is in the better posture to come forward with specific evidence explaining why confidentiality was not broken."; "Here, SCEA provided no evidentiary support for its claim that Mr. O'Neil was present to further the interest of SCEA in the consultation or someone to whom disclosure was reasonably necessary to accomplish the purpose for which the lawyer was consulted. Although there was a great deal of discussion at the hearing as to whether Mr. O'Neil was present as a claims advocate to assist SCEA and its attorney or as a potential adversary to SCEA, no admissible evidence was presented to the Court as part of the parties' submissions in support of or in opposition to the motion to compel. SCEA did not, for example, provide a declaration from Mr. O'Neil or even from Ms. Liu [plaintiff's director of legan & business affairs] regarding Mr. O'Neil's role with respect to SCEA's insurance claim. Thus, SCEA failed to carry its burden of proving the privilege." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2005-01-01 Federal CA B 8/13

Chapter: 57.705
Case Name: United States v. Regan, 281 F. Supp. 2d 795, 803 (E.D. Va. 2002)
("[T]he Government must overcome the attorney work product privilege, which protects work done in preparation for litigation, before it may successfully assert the crime-fraud exception. See Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947); In re Grand Jury Proceedings, 33 F.3d 342.")

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

Chapter: 57.705
Case Name: United States v. Regan, 281 F. Supp. 2d 795, 804 (E.D. Va. 2002)
("The Fourth Circuit has also recognized that the crime-fraud exception can be invoked to vitiate the attorney work-product privilege. See In re John Doe, 662 F.2d 1073, 1079 (4th Cir. 1981), cert. denied, 455 U.S. 1000, 71 L. Ed. 2d 867, 102 S. Ct. 1632 (1982). However, the burden of overcoming the privilege is on the party opposing the privilege to show a 'substantial need' for the attorney's work product. The Government must make the same prima facie showing to overcome the work product privilege as is required to overcome the attorney-client privilege")

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

Chapter: 57.705
Case Name: Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 696 n.6 (E.D. Va. 1987)
(noting that, because of the "failure to indicate on the face of the memorandum that the document was confidential or contained attorney-client privileged information, coupled with the fact that the memorandum was distributed to six (6) employees, this court has serious doubts as to whether [the party] has met its burden of demonstrating that the document was intended to be confidential")

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

Chapter: 57.802
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)
(analyzing work product and common interest issues in connection with an investigation into possible trademark infringement; "As the claimant of the privilege, the burden is on Rubie's to show that the information it claims is protected was not prepared in the ordinary course of business or would not have come into existence in essentially the same manner irrespective of the litigation. That is, Plaintiffs must establish that Aziz's investigation and the communications which were part of that investigation came into existence 'because of' prospective or actual litigation. . . . Plaintiffs have made no such showing, nor have they affirmatively asserted that Aziz's investigation and the communications arising from it would have taken place and been produced in the absence of actual or anticipated litigation. Consequently, Plaintiffs have failed to show that they are entitled to the protection of the work product privilege.")

Case Date Jurisdiction State Cite Checked
2018-09-28 Federal NY
Comment:

Key Case


Chapter: 57.802
Case Name: Buchanan v. Sterling Construction Co., Civ. A. No. 4:16-cv-3429 JURY, 2018 U.S. Dist. LEXIS 39792 (S.D. Tex. March 12, 2018)
(analyzing privilege issues in connection with a corporate investigation (although without explaining what the investigation focused on); "[D]efendants have refused to produce emails authored by or received by plaintiffs when they were employed by defendants because they were under the 'umbrella' of defendants' privilege. Defendants insist the emails are privileged attorney communications and/or attorney work product. The burden is on defendants to show the attorney client privilege or the work product protection is applicable. . . . Defendants have pointed to no authority to support their insistence that a party cannot obtain copies of emails he himself authored or received merely because that communication involved an attorney.")

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

Chapter: 57.802
Case Name: Goff v. United Rentals, Case No. 2:16-cv-608, 2017 U.S. Dist. LEXIS 46588 (E.D. Va. March 28, 2017)
(after an in camera review, concluding that documents held as work product were created in the ordinary course of business after a workplace injury; "The party claiming the protection bears the burden of demonstrating the applicability of the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-03-28 Federal VA

Chapter: 57.802
Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "'[T]he party claiming the protection bears the burden of demonstrating the applicability of the work product doctrine.'")

Case Date Jurisdiction State Cite Checked
2016-10-25 Federal VA
Comment:

key case


Chapter: 57.802
Case Name: Johnston v. Dow Emps.' Pension Plan, Case No. 14-cv-10427, 2016 U.S. Dist. LEXIS 36825, at *17 (E.D. Mich. Mar. 22, 2016)
("The party asserting work-product protection has the burden of establishing that protection.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal MI B 8/16

Chapter: 57.802
Case Name: Breslow v. Am. Sec. Ins. Co., Case No. 14-62834-CIV-GOODMAN, 2016 U.S. Dist. LEXIS 21133, at *16 (S.D. Fla. Feb. 19, 2016
("[T]he party claiming work product immunity has the burden to establish the claimed protection.")

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

Chapter: 57.802
Case Name: Beverly v. Watson, No. 14 C 4970, 2015 U.S. Dist. LEXIS 114146 (N.D. Ill. Aug. 28, 2015)
("As with the attorney-client privilege, the party asserting the work product doctrine bears the burden of showing that it applies.")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal IL

Chapter: 57.802
Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
("If the party resisting discovery makes the required showing to the court that the work-product privilege applies, 'the burden then shifts to the party seeking discovery to show, as to each document, substantial need and undue hardship.'")

Case Date Jurisdiction State Cite Checked
2015-06-25 Federal NC

Chapter: 57.802
Case Name: Johnson v. Gross, No. 14-12248 Non-Argument Calendar, 2015 U.S. App. LEXIS 7315 (11th Cir. App. May 4, 2015)
("The party invoking the work-product privilege bears the burden of establishing that the privilege applies.")

Case Date Jurisdiction State Cite Checked
2015-05-04 Federal

Chapter: 57.802
Case Name: L-3 Communications Corp. v. Sparton Corp, Case No. 6:13-cv-1481-Orl-TBS, 2014 U.S. Dist. LEXIS 86426, at *5-6 (M.D. Fla. June 25, 2014)
("Plaintiff, as the party asserting work-product, bears the burden of showing that the information it seeks to protect was prepared or obtained in anticipation of litigation. . . . 'This is considered to be a heavy burden and cannot be discharged by mere conclusory or ipse dixit assertions.'")

Case Date Jurisdiction State Cite Checked
2014-06-25 Federal FL

Chapter: 57.802
Case Name: Kephart v. ABB, Inc., Civ. A. No. 2:12-668, 2014 U.S. Dist. 51411 (W.D. Pa. April 14, 2014)
("Under both the attorney-client privilege and the work-product doctrine, the party asserting the privilege and resisting discovery here, the Defendant bears the burden of demonstrating that the privilege acts as a bar to discovery.")

Case Date Jurisdiction State Cite Checked
2014-04-14 Federal PA

Chapter: 57.802
Case Name: Skynet Elec. Co., Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372, at *5-6 (N.D. Cal. Dec. 16, 2013)
("Where a party asserts work-product immunity over a piece of evidence, the proponent of the privilege bears the burden of establishing its applicability to the present circumstances.")

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

Chapter: 57.802
Case Name: US Bank Nat'l Ass'n v. PHL Variable Ins. Co., Nos. 12 Civ. 6811 & 13 Civ. 1580 (CM) (JCF), 2013 U.S. Dist. LEXIS 143398, at *23 (S.D.N.Y. Oct. 3, 2013)
("The burden of establishing any right to work product protection is on the party asserting it.")

Case Date Jurisdiction State Cite Checked
2013-10-03 Federal NY B 5/14

Chapter: 57.802
Case Name: Wells Fargo & Co. v. United States, Misc. Nos. 10-57 & 10-95 (JRT/JJG), 2013 U.S. Dist. LEXIS 79814, at *95 (D. Minn. June 4, 2013)
("The party seeking discovery bears the burden of showing a substantial need and undue hardship.")

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

Chapter: 57.802
Case Name: In re Prograf Antitrust Litig., No. 1:11-md-02242-RWZ, 2013 U.S. Dist. LEXIS 63594, at *6 (D. Mass. May 3, 2013)
(adopting a set of rules to govern privilege and work product determinations; ultimately concluding that disclosure to a public relations agency waived the attorney-client privilege but not the work product doctrine and that agency-created documents did not deserve work product protection; "Astellas [defendant], as the party invoking attorney-client privilege and work product protection, bears the burden of showing that either applies.")

Case Date Jurisdiction State Cite Checked
2013-05-03 Federal MA B 8/13

Chapter: 57.802
Case Name: Moore v. Dan Holdings, Inc., No. 1:12CV503, 2013 U.S. Dist. LEXIS 61378, at *7-8 (M.D.N.C. Apr. 30, 2013)
("The burden rests on the party resisting discovery to demonstrate the applicability of either the attorney-client privilege or the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal NC B 7/13

Chapter: 57.802
Case Name: Adair v. EQT Prod. Co., 294 F.R.D. 1, 3 (W.D. Va. 2013)
("The party opposing discovery bears the burden of showing that information or materials withheld from discovery meet these three criteria and, thus, are protected by the work-product doctrine.")

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

Chapter: 57.802
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 634 (D. Nev. 2013)
("As in the case of the attorney-client privilege, the party claiming the protection bears the burden of demonstrating the applicability of the work product doctrine.")

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

Chapter: 57.802
Case Name: Hercules Liftboat Co., L.L.C. v. Rice, Civ. A. No. 6:11-cv-02111, 2012 U.S. Dist. LEXIS 141904, at *5 (W.D. La. Sept. 26, 2012)
("The burden of proving waiver of work-product protection falls on the party seeking the production not on the party claiming the privilege.")

Case Date Jurisdiction State Cite Checked
2012-09-26 Federal LA B 12/13

Chapter: 57.802
Case Name: Woodmen of the World Life Ins. Soc'y v. U.S. Bank Nat'l Ass'n, No. 8:09CV407, 2012 U.S. Dist. LEXIS 12462 (D. Neb. Feb. 2, 2012)
(rejecting privilege and work product assertions by defendant U.S. Bank for documents created during an investigation conducted by Goodwin Procter and Deloitte into U.S. Bank's possible misrepresentations related to mortgage-backed securities; among other things, finding unpersuasive a declaration filed by a bank subsidiary's general counsel Manzoni; "U.S Bank has failed to demonstrate a reasonable anticipation of litigation existed when FAF Advisors retained Goodwin Procter to conduct an independent investigation in early April 2008. The court finds Manzoni's December 22, 2011, declaration to the contrary self-serving in the fact of Woodmen's challenge to U.S. Bank's assertion of the work-product doctrine and not supported by the deposition testimony of Lui.") (emphases added)

Case Date Jurisdiction State Cite Checked
2012-02-02 Federal NE

Chapter: 57.802
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 382 (W.D. Va. 2012)
("The party asserting the work-product doctrine bears the burden to establish that it applies to the document at issue. See Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 536, 542 (N.D.W.Va. 2000) (citing Sandberg v. Va. Bankshares, Inc., 979 F.2d 332, 355 (4th Cir. 1992)).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 57.802
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Lawson must meet its initial burden of showing that the documents are work product by establishing that they were prepared 'in anticipation of litigation' at the direction of an attorney. It has not done so.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 57.802
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *10 (E.D. Va. July 18, 2011)
("The burden of overcoming the work product privilege is on the party seeking discovery. United States v. Regan, 281 F. Supp. 2d 795, 804 (E.D. Va. 2002).")

Case Date Jurisdiction State Cite Checked
2011-07-18 Federal VA

Chapter: 57.802
Case Name: Solis v. Food Emp'rs Labor Relations Ass'n, 644 F.3d 221, 232 (4th Cir. 2011)
("As in the case of attorney-client privilege, the party claiming the protection bears the burden of demonstrating the applicability of the work product doctrine. In re Grand Jury, 33 F.3d at 353.")

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

Chapter: 57.802
Case Name: Dudley v. Cash, 82 Va. Cir. 1, 17 (Va. Cir. Ct. 2010)
("The general rule (although not one announced either by the Court of Appeals or the Virginia Supreme Court) is that the party asserting work product protection bears the burden of proof of establishing entitlement to the privilege.")

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

Chapter: 57.802
Case Name: Lowe v. Norfolk S. Ry. Co., 81 Va. Cir. 221, 222 (Va. Cir. Ct. 2010)
("'The burden to show the work product doctrine applies rests upon the party asserting the work product/trial preparation privilege.' Wilson v. Norfolk & Portsmouth Belt Line RR., 69 Va. Cir. 153, 165 (Portsmouth 2005).")

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

Chapter: 57.802
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; explaining that the party asserting the work product doctrine had the burden of proof)

Case Date Jurisdiction State Cite Checked
2009-07-31 Federal VA N 3/10

Chapter: 57.802
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; explaining that the party asserting the work product doctrine had the burden of proof)

Case Date Jurisdiction State Cite Checked
2009-07-31 Federal VA N 3/10

Chapter: 57.802
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234 (Va. Cir. Ct. 2008)
(explaining that the party asserting the work product production must carry the burden of proof)

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA B 9/10

Chapter: 57.802
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 165 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "The burden to show the work product doctrine applies rests upon the party asserting the work product/trial preparation privilege. McDonald v. Sentara Medical Group, 64 Va.Cir. 30, 35 (Norf. 2004).") [Davis, J.]

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

Chapter: 57.802
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 165 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "The burden of overcoming work product protection, by proving such substantial need and undue hardship, is on the party seeking the materials.")

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

Chapter: 57.802
Case Name: Brown v. Laboratory Corp. of Am., 67 Va. Cir. 232, 235 (Va. Cir. Ct. 2005)
(assessing work product protection for medical incident reports after an infant died; concluding that the work product doctrine did not apply;"In addition, defendant bears the burden of establishing that the documents are subject to the work product privilege.")

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

Chapter: 57.802
Case Name: McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 35 (Va. Cir. Ct. (2004)
(holding that the work product doctrine protected documents prepared by a hospital after the plaintiff slipped and fell on the premises; "The burden to show the work product doctrine applies to the present case rests on Sentara, the party asserting the privilege. Leigh B. Middleditch, Jr., and Kent Sinclair, Virginia Civil Procedure, § 12.4 (1992).")

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

Chapter: 57.802
Case Name: Smathers v. GBA Assocs. Ltd. P'ship, 55 Va. Cir. 73, 77-78 (Va. Cir. Ct. 2001)
("GBA, as the proponent of the privilege, has the burden of establishing that the challenged documents were in fact prepared in anticipation of litigation."; finding that GBA had met its burden by providing an affidavit from a lawyer in a firm that had represented GBA, which stated that "all of the documents listed on GBA's privilege log were prepared in anticipation of, and in hopes of avoiding, imminent litigation")

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

Chapter: 57.802
Case Name: McCormick v. White, No. 4:97CV44, slip op. at 8 (E.D. Va. Aug. 14, 1997)
("[T]here is a two step inquiry. First, the party claiming the qualified privilege for attorney work product bears the burden of demonstrating that the materials were prepared in anticipation of litigation. Second, the party seeking the discovery bears the burden of demonstrating substantial need for the material and undue hardship in obtaining its equivalent by other means." (citations omitted))

Case Date Jurisdiction State Cite Checked
1997-08-14 Federal VA

Chapter: 57.802
Case Name: Larson v. McGuire, 42 Va. Cir. 40 (Va. Cir. Ct. 1997)
(explaining that the party asserting the work product doctrine has the burden of proof) [Horne, J.]

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA B 12/09

Chapter: 57.802
Case Name: Ring v. Mikrin, Inc., 40 Va. Cir. 533 n.2 (Va. Cir. Ct. 1996)
("The party asserting work product protection bears the burden of proof of establishing entitlement to the privilege.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 57.802
Case Name: Covington v. Calvin, 40 Va. Cir. 489, 493 (Va. Cir. Ct. 1996)
(refusing to "hold that the burden is on [the insurance company] to establish that the materials were prepared in anticipation of litigation simply because an adversary asserts, without evidence, that their preparation predated commencement of this suit")

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

Chapter: 57.802
Case Name: Collins v. Mullins, 170 F.R.D. 132, 134 (W.D. Va. 1996)
("The party asserting work product protection bears the burden of proof of establishing entitlement to it.")

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

Chapter: 57.802
Case Name: S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 243 (Va. Cir. Ct. 1993)
("As with the attorney-client privilege, the party asserting the [work product] privilege bears the burden of showing that it applies.")

Case Date Jurisdiction State Cite Checked
1993-01-01 State VA B 12/09

Chapter: 57.802
Case Name: State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984)
("Once the courts determine that the documents are within the scope of discovery, the second step is deciding whether they were compiled in anticipation of trial. After the party shows that the documents were put together in preparation of litigation, the burden shifts to the party seeking discovery to show the substantial need and undue hardship." (relying upon Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 410 (E.D. Va. 1975)))

Case Date Jurisdiction State Cite Checked
1984-01-01 Federal VA

Chapter: 57.803
Case Name: Weinrib v. Winthrop-Univ. Hosp., No. CV 14-953 (JFB) (AKT), 2016 U.S. Dist. LEXIS 37102, at *16, *17 (E.D.N.Y. Mar. 22, 2016)
(holding that a hospital's complaint file did not deserve work product protection; "'Because the work product protection arises only for materials "prepared in anticipation of litigation," the doctrine is not satisfied merely by a showing that the material was prepared at the behest of a lawyer or was provided to a lawyer. Rather the materials must result from the conduct of "investigative or analytical tasks to aid counsel in preparing for litigation."'" Wultz v. Bank of China Ltd., 304 F.R.D. 384, 393-94 (S.D.N.Y. 2015) (quoting Costabile v. Westchester, N.Y., 254 F.R.D. 160, 164 (S.D.N.Y. 2008))."; "In the instant case, Winthrop has failed to meet its 'heavy burden' of establishing the applicability of the work product privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal NY B 8/16

Chapter: 57.803
Case Name: Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, No. 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192, at *3, *14-15, *16 (S.D.N.Y. Mar. 18, 2016)
(finding that defendant town had not presented sufficient evidence to support privilege or work product protection for a communications between the town and West End, described as "a public relations and communications strategy firm"; "[T]he Town Defendants, relying solely on Mr. Holland's vague and highly generalized declaration, have failed to present the Court with adequate competent evidence to meet their affirmative burden to prove the applicability of either the attorney-client or work-product privileges. They have not submitted a privilege log, provided or offered to provide copies of any of the documents or communications in dispute for in camera review (based on the Town Defendants' representations, it appears that no subset of documents has even been gathered together in a manner that would allow this to occur easily), or even described with any particularity exemplars of any of the documents or communications that may be in West End's possession."; "In short, the Town Defendants have failed to conduct the basic work that is a prerequisite to allowing this Court to understand the documents and communications at issue such that it can find in their favor. It was the Town Defendants' burden to make a compelling case that the privilege is applicable here. They have failed to meet it.")

Case Date Jurisdiction State Cite Checked
2016-03-18 Federal NY B 8/16

Chapter: 57.803
Case Name: Krys v. Paul, Weiss, Rifkind, Wharton, & Garrison LLP (In re China Med. Techs., Inc.), 539 B.R. 643 (S.D.N.Y. 2015)
(apply the "touch base" test in concluding that U.S. law applied to communications involving a Cayman company whose Audit Committee hired Paul Weiss to conduct an internal investigation; "[A]n argument that the dispositive issues in this case are corporate ones, to which the Bankruptcy Court should have applied the internal affairs doctrine -- and thus Cayman law. This argument is unpersuasive. It is inconsistent with existing precedent in this district, as well as the Supreme Court's own approach to questions of privilege. The Bankruptcy Court properly determined that the issue of ownership of the Privileges is governed by the United States law of privilege, and that this case does not implicate issues of corporate law for which a separate choice of law analysis is required."; "'Even if Appellant were right that corporate law is dispositive here, it remains unclear whether the internal affairs doctrine ['a choice of law rule pursuant to which questions regarding the internal affairs of corporations are decided under the substantive law of the place of incorporation'] would even apply, as it is traditionally a feature of state, not federal, choice of law norms -- a rule applied by Federal courts sitting in diversity, but not otherwise.'"; "Weintraub and Upjohn, neither of which engaged in a choice of law analysis or otherwise treated analogous issues of corporate law as distinct. Instead, as Weintraub and Upjohn both suggest, and as the court found in Fitzpatrick, the doctrine of attorney-client privilege necessarily encompasses adjacent issues of corporate law as part of the functional calculus concerning who and what falls within the scope of its protections."; "Under the 'touch base' doctrine, where 'privileged communications took place in a foreign country or involved foreign attorneys or proceedings,' courts defer to the 'law of the country that has the 'predominant' or 'the most direct and compelling interest' in whether those communications should remain confidential, unless that foreign law is contrary to the public policy of this forum.'"; "In determining which jurisdiction has the predominant interest, the Bankruptcy Court found that the 'Audit Committee retained Paul Weiss . . . To examine [CMED's] compliance with U.S. securities law under engagement letters governed by U.S. law'; that '[n]one of the activities relating to [Appellees'] engagements had anything to do with the Cayman Islands'; that the 'documents said to be protected by the Privileges are located in the U.S.'; and that the 'allegedly privileged relationship was entered into in the U.S. . . . [and] was centered in the U.S. at the time the communication was sent.'. . . The Bankruptcy Court recognized that 'Cayman has its own interest in consideration of the Privileges because of its underlying liquidation proceeding,' but otherwise determined that 'the communications or attorney mental impressions underlying the Privileges claims [did not involve] Cayman law in any way.'. . . Accordingly, it concluded that the 'U.S. has by far the predominant interests' and that United States privilege law therefore governs.").

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

Chapter: 57.803
Case Name: L-3 Communications Corp. v. Sparton Corp, Case No. 6:13-cv-1481-Orl-TBS, 2014 U.S. Dist. LEXIS 86426, at *5-6 (M.D. Fla. June 25, 2014)
("Plaintiff, as the party asserting work-product, bears the burden of showing that the information it seeks to protect was prepared or obtained in anticipation of litigation. . . . 'This is considered to be a heavy burden and cannot be discharged by mere conclusory or ipse dixit assertions.'")

Case Date Jurisdiction State Cite Checked
2014-06-25 Federal FL

Chapter: 57.803
Case Name: Orchestrate HR, Inc. v. Trombetta, No. 3:13-cv-2110-P, 2014 U.S. Dist. LEXIS 28483, at *7 (N.D. Tex. Feb. 27, 2014)
("A general allegation of work product protection is insufficient to meet this burden. . . . '[A] clear showing must be made which sets forth the items or categories objected to and the reasons for that objection.'" (citation omitted))

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

Chapter: 57.803
Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 615 (D. Kan. 2014)
("As the party asserting work-product protection and attorney-client privilege, B&V bears the burden of establishing that either or both apply. To carry that burden, B&V must make a 'clear showing' and 'describe in detail' the documents or information to be protected and provide 'precise reasons' for the objection to discovery." (citation and footnote omitted))

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

Chapter: 57.803
Case Name: In re Behr Dayton Thermal Prods., LLC, Case No. 3:08-cv-326, 2013 U.S. Dist. LEXIS 81069, at *10-11 (S.D. Ohio June 10, 2013)
(holding that a litigant claiming work product protection had to specify the exact date on which it first anticipated litigation; rejecting defendant Aramark's claim that it anticipated litigation at the date the plaintiff alleged Aramark knew of contamination, because Aramark denied the allegations; "Rather than submitting an affidavit attesting to when it subjectively anticipated litigation, Aramark relies on two allegations in Plaintiffs' Second Master Amended Complaint.")

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

Chapter: 57.803
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 235 (Va. Cir. Ct. 2008)
("The burden of proving that the document or thing to be protected was prepared in anticipation of litigation or trial lies with the party seeking to withhold it.")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA

Chapter: 57.804
Case Name: SEC v. Herrera, Case No. 17-20301-CIV/LENARD/GOODMAN, 2017 U.S. Dist. LEXIS 200142 (S.D. Fla. Dec. 5, 2017)
("Although the party seeking work-product protection bears the initial burden for establishing that the documents are entitled to such protection, after that initial burden is met, the burden shifts to the party asserting waiver to show that the party claiming the privilege has waived its right to do so.")

Case Date Jurisdiction State Cite Checked
2017-12-05 Federal FL

Chapter: 57.804
Case Name: B.M.I. Interior Yacht Refinishing, Inc. v. M/Y Claire, Case No. 13-62676-CIV-Williams/SIMONTON, 2015 U.S. Dist. LEXIS 91903 (S.D. Fla. July 15, 2015)
("[A]lthough the party seeking work product protection bears the initial burden for establishing that the documents are entitled to such protection, after that initial burden is met, the burden shifts to the party asserting waiver, to show that the party claiming the privilege has waived its right to do so.")

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

Chapter: 57.804
Case Name: Wells v. Liddy, 37 F. App'x. 53 (4th Cir. 2002)
(finding that the proponent of the attorney-client and work-product privileges has the burden of establishing that he or she has not waived them)

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

Chapter: 57.804
Case Name: McCormick v. White, No. 4:97CV44, slip op. at 8 (E.D. Va. Aug. 14, 1997)
("[T]here is a two step inquiry. First, the party claiming the qualified privilege for attorney work product bears the burden of demonstrating that the materials were prepared in anticipation of litigation. Second, the party seeking the discovery bears the burden of demonstrating substantial need for the material and undue hardship in obtaining its equivalent by other means." (citations omitted))

Case Date Jurisdiction State Cite Checked
1997-08-14 Federal VA

Chapter: 57.805
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; "As with the attorney-client privilege, once the party requesting access to another party's work product demonstrates its relevance, the party claiming the protection of the work-product doctrine bears the burden of establishing that the doctrine applies.")

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

Chapter: 57.805
Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *15-16 (N.D. Ohio Aug. 8, 2013)
("A burden shifting structure is employed to determine if documents are protected by the work product doctrine and, if protected, whether they are discoverable regardless of the protection. First, the party seeking discovery must show that the materials are relevant to the litigation and are not privileged. . . . Second, once this burden is met, the objecting party must show that the material was prepared in anticipation of litigation. . . . Finally, once that burden is met, the burden shifts back to the requesting party to establish a substantial need for the materials and to show that the party is unable absent undue hardship to obtain its substantial equivalent of the materials by other means.")

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

Chapter: 57.805
Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 684, 686 n.3 (N.D. Ga. 2012)
(analyzing the type of exceptional circumstances that would justify discovery of a non-testifying expert; "As the party asserting the work product privilege, Plaintiff bears the burden of establishing that the documents it seeks to protect were prepared in anticipation of litigation. . . . The work product privilege 'must be specifically raised and demonstrated rather than asserted in a blanket fashion.'. . . This burden may be satisfied through a detailed privilege log and affidavits from counsel, the party, or the expert, and also by any of the traditional ways in which proof is produced in pretrial proceedings. . . . Once Plaintiff has shown the application of the work product privilege, the burden shifts to Defendant to demonstrate the existence of exceptional circumstances for the discovery of otherwise privileged documents. . . . Defendant, as the party seeking to show exceptional circumstances under Rule 26(b)(4)(B)[,] carries a heavy burden."; "Courts have recognized four interests weighing against allowing an opposing party to depose or call at trial a consultative, non-testifying expert witness: (1) an 'important interest in allowing counsel to obtain the expert advice they need in order properly to evaluate and present their clients' position without fear that every consultation with an expert may yield grist for the adversary's mill,' which the court found underlies Fed.R.Civ.P.26(b)(4)(B)'s limitation on discovery of consultative, as opposed to testifying[,] experts; (2) unfairness of allowing an opposing party to benefit from a party's effort and expense incurred in preparing its case; (3) fear of restraint on the willingness of experts to serve as consultants if their testimony could be compelled; and (4) the substantial risk of 'explosive' prejudice stemming from the fact of the prior retention of any expert by the opposing party." (citation omitted))

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

Chapter: 57.805
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "A party claiming 'substantial need' for access to non-opinion work-product has the burden to demonstrate substantial need. Fed.R.Civ.P.26(b)(3)(A)(ii).")

Case Date Jurisdiction State Cite Checked
2009-07-31 Federal VA

Chapter: 57.805
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484, at *8 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "A party claiming 'substantial need' for access to non-opinion work-product has the burden to demonstrate substantial need. Fed.R.Civ.P.26(b)(3)(A)(ii).")

Case Date Jurisdiction State Cite Checked
2009-07-31 Federal VA

Chapter: 57.805
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 *16 (W.D. Va. Apr. 16, 2009)
("The burden is on the proponent 'to establish that the attorney-client relationship existed, that the communications under consideration are privileged, and that the privilege was not waived.' Edwards, 235 Va. at 509, 370 S.E.2d at 301 (citing United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).")

Case Date Jurisdiction State Cite Checked
2009-04-16 Federal VA

Chapter: 57.805
Case Name: McDonald v. Sentara Medical Group, 64 Va. Cir. 30, 38 (Va. Cir. Ct. (2004)
(holding that the work product doctrine protected documents prepared by a hospital after the plaintiff slipped and fell on the premises; "McDonald now has the burden of showing a substantial need for these documents, which are listed in Sentara's privilege log, sufficient to overcome the work product doctrine.")

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

Chapter: 57.805
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 205-206 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "The burden of overcoming work product protection, by proving substantial need and undue hardship is on the party seeking the materials. State Farm v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984) (relying upon Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 410 (E.D. Va.1975)); Covington, 40 Va. Cir. at 493. The substantial need prong examines: 1) whether the information is an essential element in the requesting party's case, and 2) whether the party requesting discovery can obtain the facts from an alternate source.' Fletcher v. Union Pacific R.R. Co., 194 F.R.D. 666, 671 (S.D. Cal. 2000) (quoting 6 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 26.70[5][C], at 26-221 to 26-222 (3d ed. 1999)). See also Nat'l Union Fire Ins. v. Murray Sheet Metal, 967 F.2d 980, 984-985 (4th Cir. 1992)")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 57.805
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 456, 465 (E.D. Va. 1998)
("This Court agrees that just as the burden of establishing that document is privileged is on the party asserting the privilege, the burden of showing a 'substantial need' for a document is on the party seeking to overcome the privilege")

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

Chapter: 57.805
Case Name: State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984)
(analyzing privilege and work product issues in a first party insurance case; "Once the courts determine that the documents are within the scope of discovery, the second step is deciding whether they were compiled in anticipation of trial. After the party shows that the documents were put together in preparation of litigation, the burden shifts to the party seeking discovery to show the substantial need and undue hardship. Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 410 (E.D. Va. 1975).")

Case Date Jurisdiction State Cite Checked
1984-06-14 Federal VA B 7/16

Chapter: 57.805
Case Name: State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984)
("Once the courts determine that the documents are within the scope of discovery, the second step is deciding whether they were compiled in anticipation of trial. After the party shows that the documents were put together in preparation of litigation, the burden shifts to the party seeking discovery to show the substantial need and undue hardship." (relying upon Virginia Elec. & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 410 (E.D. Va. 1975)))

Case Date Jurisdiction State Cite Checked
1984-01-01 Federal VA

Chapter: 57.902
Case Name: Crawford v. Corizon Health, Inc., Civ. A. No. 17-113, 2018 U.S. Dist. LEXIS 113828 (W.D. Pa. July 10, 2018)
("[T]he 'Summary of Care' document related to John Doe 4 and to Plaintiff is stamped "ATTORNEY CLIENT PRIVILEGED/ATTORNEY WORK PRODUCT.' As an initial matter, the Court notes that this stamp will not create a privilege or protection where one would otherwise not exist.")

Case Date Jurisdiction State Cite Checked
2018-07-10 Federal PA

Chapter: 57.902
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
(overruling a Magistrate Judge, and quashing plaintiff's motion to compel production of documents related to a teacher's employment discrimination claim against a school board; "All of Mullins' [School Board lawyer] emails contain a notice that they are a 'confidential and privileged communication,' and in some instances the subject line of the email contains similar language. Three of the emails were copied to Brenda Greene, who is represented to be a paralegal in Mullins' office.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 57.902
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
("A loose, general concern for protecting 'confidentiality' will not justify some tacit application or expansion of the attorney-client privilege or the recognition of the privilege when improperly asserted. Consequently simply labeling a document 'confidential' or 'privileged' will not result in the document being protected from disclosure by the attorney-client privilege. Labels do not control; substance does.")

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

Chapter: 57.902
Case Name: Erickson v. Hocking Technical College, Case No. 2:17-cv-360, 2018 U.S. Dist. LEXIS 50075 (S.D. Ohio Mar. 27, 2018)
May 30, 2018 (PRIVILEGE POINT)

"Federal Court Applies Privilege Axioms That Many Clients Misunderstand"

Some clients who have not been adequately advised by their lawyers think that writing "privileged" on a document makes it so, or that copying a lawyer will assure privilege protection. These and other similar misunderstandings can doom protection for damaging documents whose authors have jumped to conclusions, needlessly self-criticized or engaged in harmful hyperbole – because they erroneously thought the privilege would protect those documents' from adversaries' access.

In Erickson v. Hocking Technical College, Case No. 2:17-cv-360, 2018 U.S. Dist. LEXIS 50075 (S.D. Ohio Mar. 27, 2018), plaintiff sought to depose a lawyer who had acted as defendant's General Counsel, HR Director and Risk Management Vice President. Among other things, defendant claimed that the privilege protected communications during meetings that the lawyer attended. The court rejected defendant's privilege claim, noting that the privilege did not protect the communications simply because the lawyer "subjectively believed that she was at the meeting in her capacity as counsel to gather information." Id. at *7. The court bluntly concluded that "the record contains no evidence reflecting that [the lawyer] was asked to attend in her capacity as a legal advisor rather than in her [other capacities]" (id. at *9); or that she provided or "was asked to provide legal advice" at the key meeting. Id. at *10. The court also held that a meeting participant's "Attorney-Client Privileged Information" label on an email "drafted three days after the at-issue meeting . . . does not operate to retroactively render the earlier, otherwise-unprivileged discussions subject to the attorney-client privilege." Id. at *6, *8.

As with other widely held but erroneous misconceptions, lawyers should advise their clients that asking a lawyer to participate in meetings does not assure privilege protection. If such lawyers provide legal advice, all the related documents should clearly reflect that – in their substantive content, not merely with a header or label.

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal OH
Comment:

key case


Chapter: 57.902
Case Name: Valley Force Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, 2017 U.S. Dist. LEXIS 57370 (N.D. Ind. April 14, 2017)
(holding that the environmental consultant was outside privilege protection, but could create protected work product; "Hartford Iron claims that all of the withheld emails are protected by the attorney-client privilege, asserting that the emails were confidential communications, between its counsel and an agent hired by counsel, to aid counsel in providing legal advice to Hartford Iron. Valley Forge disagrees, contending that the primary purpose in retaining Keramida [Environmental contractor] and CH2M [Environmental contractor] was not to provide legal advice, but rather, to provide environmental remediation services -- that is, to design and construct a new stormwater control system."; "Here, although Dameron's [Plaintiff's counsel selected by plaintiff insurance company to represent Hartford Iron] firm initially retained Keramida and CH2M, 'retention or employment by the attorney alone is insufficient to bring the consultant within the scope of the attorney-client privilege.'"; "Keramida and CH2M -- like HydroTech and August Mack before them -- were hired to design, build, and install a stormwater remediation plan that would be acceptable to IDEM and the EPA. In doing so, they 'were not simply putting into usable form information obtained from the client.'. . . In fact, it is evident that the assistance rendered by Keramida and CH2M 'was based on factual and scientific evidence obtained through studies and observation of the physical condition of the [Hartford Iron] site, and not through client confidences.'"; "The provision of environmental consulting advice or services falls outside the attorney-client privilege, which is to be 'strictly confined within the narrowest possible limits.'"; "It is apparent that Dameron employed language at times in a deliberate effort to bring Keramida and CH2M within the privilege. . . . But labeling communications as 'privileged and confidential' or 'attorney-client work product' 'does not render the documents privileged when they contain no communication made or work done for the purpose of providing informed legal advice.'"; "In fact, at times, Dameron's role as defense counsel appeared to morph into that of an environmental consultant, most likely due to her extensive experience performing clean ups as an environmental consulting geologist prior to practicing law. . . . Ultimately, Dameron's initial retention of Keramida did not appear to be because she needed information translated into a useable form so that she could render legal advice; rather, Dameron quickly spotted problems with August Mack's stormwater collection system and urged Valley Forge and Hartford Iron to get a second opinion from another environmental contractor.")

Case Date Jurisdiction State Cite Checked
2017-04-14 Federal IN

Chapter: 57.902
Case Name: In re Fairway Methanol LLC and Celanese Ltd., No. 14-16-00884-CV, 2017 Tex. App. LEXIS 830 (Tex. App. 14d Jan. 31, 2017)
(protecting as privileged documents created by a company's in-house lawyer investigation; noting that Texas did not following the "primary purpose" test; but finding the work product doctrine applicable after noting that a company affidavit indicated that the departments role in the investigation was not ordinary; "According to Rowen [Celanese's corporation's in-house lawyer], the primary purpose for the investigation and creation of documents and communications therefrom was to aid Celanese in preparing to defend itself in anticipated litigation. As a secondary concern, the information communicated from the investigative team to the legal department was necessary for the legal department to provide Celanese with business and legal advice with respect to the potential termination of employees involved in the accident. The team members were immediately informed that the investigation was for the purpose of assisting counsel and that all communications and documents generated during their investigation must be kept confidential and marked as 'Privileged and Confidential' or 'Attorney-Client Privilege -- Attorney Work Product.' The investigative team conducted interviews and site inspections and communicated their findings to the Celanese Law Department. They prepared a root cause analysis which was necessary for the Celanese Law Department to evaluate liability and begin developing a strategy for defending itself in likely civil and regulatory litigation. Rowen states, 'All of the communications withheld by Celanese were communications between Celanese in-house and outside counsel and their representatives made for the purposes of providing and communicating legal advice or otherwise facilitating or providing professional legal services.'"; "Plaintiffs cite no Texas authority for their position that the communication must have been made for the primary purpose of soliciting legal, rather than business advice. And the federal decisions supporting Plaintiffs' position are not binding on our court. More important, the language of Rule 503(b) does not require that the primary purpose of the communication be to facilitate the rendition of legal services; it only requires that the communication be made to facilitate the rendition of legal services.")

Case Date Jurisdiction State Cite Checked
2017-01-31 Federal TX
Comment:

key case


Chapter: 57.902
Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("Although AbbVie contends that Vice President and in-house counsel Perry Siatis ('Siatis') and in-house counsel Joanne Lee ('Lee') and Jennifer Razor ('Razor') were 'involved' with these presentations, Siatis does not address these presentations in his declaration. AbbVie did not submit a declaration from Lee. Razor states by declaration that '[t]hese documents are draft presentations concerning the AndroGel promotional initiatives that were sent to me for my legal review and analysis.' Razor says that she reviewed and edited the drafts, but she does not identify the portions of the document which contain her comments and notes, let alone her legal advice. Neither Razor nor AbbVie explains why these presentations were created or the nature of Razor's legal advice. It is apparent from our in camera review that Landreck created these documents for some unspecified business purpose. Notably, one of the few identifiable comments on the presentations instructs Landreck to delete the statement 'Prepared at the request of legal counsel' because '[t]his statement isn't accurate. Please change to 'Privileged and Confidential.'")

Case Date Jurisdiction State Cite Checked
2016-08-25 Federal PA

Chapter: 57.902
Case Name: U.S. Bank Nat'l Ass'n v. PHL Variable Ins. Co., Civ. No. 12-877 (JRT/TNL), 2016 U.S. Dist. LEXIS 42670, at *5-6 (D. Minn. Mar. 30, 2016)
(finding that neither the attorney-client privilege nor the work product doctrine protected a risk analysis prepared by Bracewell & Guiliani; concluding after an in camera review the risk assessment involved business rather than legal concerns; "PHL contends that the Report should be presumed privileged because it was created by attorneys in response to PHL's request for legal advice. . . . However, a document is not automatically privileged merely because it involves an attorney and a client or because it is labeled privileged or confidential.")

Case Date Jurisdiction State Cite Checked
2016-03-30 Federal MN B 8/16

Chapter: 57.902
Case Name: Breslow v. Am. Sec. Ins. Co., Case No. 14-62834-CIV-GOODMAN, 2016 U.S. Dist. LEXIS 21133, at *7 (S.D. Fla. Feb. 19, 2016)
("Neither email contains any type of actual warning or a description consistent with the current privilege claim, such as 'work product' or 'sensitive and confidential' or 'do not disclose' or 'common interest material' or 'in anticipation of litigation.'")

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

Chapter: 57.902
Case Name: Certain Underwriters at Lloyd's v. AMTRAK, No. 14-CV-4717 (FB), 2016 U.S. Dist. LEXIS 27041, at *73 (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; "Moreover, the record contains no evidence whatsoever regarding the confidential treatment of the Attorney Reports or other communications through the London brokers, such as whether the Attorney Reports were stamped confidential or what precautions were taken to ensure that those communications remained confidential.")

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

Chapter: 57.902
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)
(analyzing protection for documents created in connection with the BP Gulf of Mexico oil spill; protecting as work product documents created by an expert who assisted in educating BP lawyers; "The documents provided for in camera review from Project 3 are less clearly covered by the attorney-client privilege and the work product doctrine. The documents include both legal and business considerations. BP's attorney Block became one of the three team leaders on Project 3 before any substantive work was done. He directed the drafting of the documents for confidential presentation to executive management. The materials are marked 'Privileged Attorney Work Product' with instructions not to disseminate them to anyone outside the project team.").

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

Chapter: 57.902
Case Name: Schaeffler v. United States, Dkt. No. 14-1965-cv, 2015 U.S. App. LEXIS 19617 (2nd Cir. Nov. 10, 2015)
(overturning Judge Gorenstein's order, and finding: (1) that the work product doctrine protects a taxpayer's documents involving the IRS's scrutiny into a deduction; (2) a taxpayer's disclosure of privileged communications to bank Consortium did not waive privilege, because the common interest doctrine applied despite the absence of ongoing litigation; noting that the IRS did not seek documents prepared by the taxpayer's law firm Dentons or shared only with lawyers and Ernst & Young, but sought "('EY Tax Memo') that identified potential U.S. tax consequences of the refinancing and restructuring, identified and analyzed possible IRS challenges to the Schaeffler Group's tax treatment of the transactions, and discussed in detail the relevant statutory provisions, U.S. Treasury regulations, judicial decisions, and IRS rulings."; "'When the Schaeffler Group and the Consortium agreed to share legal analyses, they signed an agreement, styled the 'Attorney Client Privilege Agreement.' Of course, the title of that agreement was not binding on the district court and is not binding on us. The Agreement is relevant, however, to the issues of whether the Schaeffler Group and the Consortium maintained confidentiality with regard to third parties and were pursuing a common legal interest.").

Case Date Jurisdiction State Cite Checked
2015-11-10 Federal NY

Chapter: 57.902
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)
("While Mr. Sawers reports a recent incident and asks for follow-up, he does not seek legal guidance. Not every communication involving a lawyer will meet the definition of a privileged communication. . . . Moreover, a communication does not become privileged simply by including a lawyer in an e-mail chain and noting the communication as 'a request for legal direction.'. . . Indeed, it appears that Mr. Sawers put the header -- indicating that the e-mail was a request for legal advice -- in his March e-mail primarily because the header had appeared on the earlier e-mails discussing similar subject matter.").

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

Chapter: 57.902
Case Name: Barba v. Shire US, Inc., Case No. 13-21158-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 65859 (S.D. Fla. May 20, 2015)
("Upon review, it is readily apparent that the document notes in-house counsel's presence at this meeting and predominantly outlines litigation timelines and potential outcomes. In addition, the notes themselves say 'priviledged (sic)/conf'd.' As such, the Undersigned accepts these notes as reflecting the communication of legal advice to Shire.")

Case Date Jurisdiction State Cite Checked
2015-05-20 Federal FL

Chapter: 57.902
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)
(finding that Dow's post-accident root cause analysis did not deserve privilege protection; noting Dow had already produced all witness statements and factual documents collected during the investigation, despite an in-house lawyer's involvement in the investigation; "Every page of the Root Cause Investigation report is marked 'attorney-client privileged.' The second page states that the report is an attorney-client communication that was prepared for the purpose of obtaining legal advice and notifies recipients that they may not disseminate it without permission from Dow Legal or Eddlemon. . . . The report contains no other references to law, legal advice or litigation. It includes factual analyses of the root causes that led to the accident and action items to address the identified causes. None of the action items are assigned to Eddlemon. The final page summarizes what has been learned and makes a few recommendations for what appear to be longer term actions."; "I find that Eddlemon's affidavit and the Root Cause Investigation report contain only conclusory and self-serving allegations about attorney-client privilege. Viewed in light of the overall content of the report, these allegations fail to carry Dow's burden to prove that the report was not prepared in the ordinary course of business of investigating an accident.")

Case Date Jurisdiction State Cite Checked
2015-03-05 Federal LA

Chapter: 57.902
Case Name: United States v. Halliburton Co., Case No. 1:05-CV-1276, 2014 U.S. Dist. LEXIS 162680 (D.D.C. Nov. 20, 2014)
("The cornerstone requirement of the attorney-client privilege is intent to keep the communication confidential. That is, '[t]he circumstances must indicate that the communicating persons reasonably believed that the communication would be confidential.' In the corporate context, this requires that internal corporate communications be shared no more widely than necessary to implement the lawyer's advice. Typically, this means that the attorney-client privilege only covers a lawyer's communications with officers and employees with the responsibility for acting on the lawyer's advice. Sharing of otherwise confidential information within a corporation even if the sharing is only with employees can result in loss of the privilege if the sharing goes beyond this 'need-to-know limitation.'"; "Crucially, the litigation hold notices at issue here were sent to large groups such as 'all KBR employees.' Furthermore, follow-up emails encouraged employees to share some of the litigation hold notices with other employees who may not have received or read the first notice. No warning was given that these notices should be disseminated no more widely than necessary. No directive was issued telling employees not to discuss the litigation hold notices outside the company. KBR has thus failed to demonstrate its intent to keep these communications confidential, and the attorneyclient privilege does not apply."; "'The notices did contain a header describing them as 'Privileged & Confidential.' This designation is not, however, controlling. This type of boilerplate labeling, without any more detailed instruction about the scope of the confidentiality, is not a concrete direction to employees to avoid disclosing the substance of the document. Moreover, follow-up emails encouraging employees to share the notice amongst themselves would destroy whatever confidentiality may have existed.'")

Case Date Jurisdiction State Cite Checked
2014-11-20 Federal DC

Chapter: 57.902
Case Name: Elbert v. C.R. Bard, Inc., Civ. A. No. 12-01253, 2014 U.S. Dist. LEXIS 57073 (E.D. Pa. April 24, 2014)
("'While I recognize that this labeling is not dispositive, it further bolsters the defendants' contention that the document was created 'in anticipation of the litigation' and not for some other business purpose.'")

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

Chapter: 57.902
Case Name: In the Matter of the Search of Advanced Pain Centers Poplar Bluff v. Ware, Case No. 4:13CV010408AG and Case No. 1:13CV00107 AGF, 2014 U.S. Dist. LEXIS 43177 (E.D. Mo. March 31, 2014)
(finding that a company's Incident Reports reports did not deserve work product protection; "Petitioners have not satisfied their burden to show that the documents were prepared by, or at the behest of, an attorney and in reasonable anticipation of litigation. Petitioners' practice of marking each incident report with the phrase 'Prepared in Anticipation of Litigation' does not magically convert the document to attorney work product. Indeed, many of the reports were completed many years ago, and Petitioners cannot show any reasonable basis for claiming any litigation is anticipated with respect to these matters."; "The record indicates that in the course of the operation of the APCs many different individuals including medical assistants, receptionists, compliance officers, and physicians filled out the forms in the wake of every day mishaps and incidents of many types. The very fact that the incident reports were used in so many different types of situations by personnel with varying qualifications strongly suggests that they were prepared as part of the day-to-day operation of the APCs and not in anticipation of litigation."; also finding the attorney-client privilege inapplicable)

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

Chapter: 57.902
Case Name: In the Matter of the Search of Advanced Pain Centers Poplar Bluff v. Ware, Case No. 4:13CV010408AG and Case No. 1:13CV00107 AGF, 2014 U.S. Dist. LEXIS 43177 (E.D. Mo. March 31, 2014)
(finding that a company's Incident Reports reports did not deserve attorney-client privilege protection; "[I]t is undisputed that prior to the execution of the search warrant neither the completed Adverse Incident Reports, nor their contents had ever been communicated to or reviewed by an attorney. Finally, Petitioners apparent argument that the labeling of some of the documents as 'Attorney-Client Privileged' renders those documents privileged is without merit."; "Petitioners do not contend, much less establish, that the forms were completed or reviewed by counsel. . . . Nor have Petitioners asserted that the information on the forms at issue was ever discussed with any attorney. In addition, it has long been established that the mere labeling of a document or the use of a form prepared by an attorney is not sufficient to convey the protection of the attorney-client privilege."; also finding the work product doctrine inapplicable)

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

Chapter: 57.902
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(finding that a company's report about alleged failures of a medical device did not deserve work product protection; "[T]he Court has scrutinized the Report itself. It does contain the words 'attorney work product' and 'privileged and confidential' across the top of each page. . . . However, nothing else in the Report hints at a litigation purpose. It makes no reference to any ongoing or anticipated claim or suit and contains no analysis of any particular set of facts. Rather, it relays the results of a study of incident reports contained in an FDA database and testing designed to gauge the performance of the Recovery Filter relative to its competitor devices.")

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 57.902
Case Name: Payne v. C.R. Bard, Inc.; Tillman v. C.R. Bard, Inc., Case No. 6:11-cv-1582-Orl-37GJK, Case No. 3:13-cv-222-J-34JBT, 2014 U.S. Dist. LEXIS 58202 (M.D. Fla. March 28, 2014)
(finding that a company's report about alleged failures of a medical device did not deserve work product protection; "Defendants' Motions rely primarily upon the Passero Affidavit, the November 2004 Contract, and excerpts from Dr. Lehmann's deposition, rather than on the contents of the Report itself. The Court will consider each item in turn and then address other record evidence."; "Although the Passero Affidavit supports Defendants' claim that the Lehmann Report is protected work product, it does so in a conclusory, vague, and unconvincing manner, generally employing labels rather than specific facts."; "The affidavit does not, however, describe how the report was used or intended to be used to aid Defendants in preparing for trial or anticipated litigation. Moreover, the affidavit fails to identify any specific case, claim, or incident, or the timing thereof."; "The November 2004 Contract is similarly conclusory and unpersuasive. Although it does show that the Report was prepared pursuant to this separate contract, it adds little to the Report itself. For example, like the Report, it contains no reference to any particular claim, anticipated or otherwise, or any particular set of facts that caused Defendants concern over potential litigation. Although the November 2004 Contract does affix the conclusory label '[i]n anticipation of litigation' in connection with the services to be provided, the Court finds nothing else in the contract to support this label."; also finding that the report did not deserve attorney-client privilege protection)

Case Date Jurisdiction State Cite Checked
2014-03-28 Federal FL

Chapter: 57.902
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2014 U.S. Dist. LEXIS 23195, at *16-17 (N.D. Cal. Feb. 21, 2014)
(finding that neither the attorney client privilege nor the work product doctrine protected guidelines prepared by defendant's parent Unilever because the guidelines were not motivated by the need for legal advice or by litigation, despite a Unilever in-house lawyer's affidavit; "Slides of the underlying document are stamped 'Confidential -- not to be shared outside Unilever,' but business confidentiality does not give rise to privilege without a request for legal advice or evidence that the document was prepared in anticipation of litigation, and neither is present here.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 57.902
Case Name: Astiana v. Ben & Jerry's Homemade, Inc., No. C-10-04387 PJH (EDL), 2013 U.S. Dist. LEXIS 177058, at *18 (N.D. Cal. Dec. 17, 2013)
(holding that documents prepared by Ben & Jerry's parent Unilever did not deserve privilege or work product protection, because they were prepared in the ordinary course of business, and there was no "actual litigation" anticipated; analyzing two documents; "Slides of the underlying document are stamped 'Confidential -- not to be shared outside Unilever,' but business confidentiality does not give rise to privilege without a request for legal advice or evidence that the document was prepared in anticipation of litigation, and neither is present here.")

Case Date Jurisdiction State Cite Checked
2013-12-17 Federal CA B 5/14

Chapter: 57.902
Case Name: Carlson v. Carmichael, Civ. A. No. 10-3579, 2013 U.S. Dist. LEXIS 101088, at *7 (E.D. Pa. July 19, 2013)
("Ms. Mark (the government attorney with initial responsibility for this case) failed to label her notes as 'confidential' or to identify herself as their author. . . . [T]he Defendants acknowledge that '[i]t is not known how the notes ended up in [the] folder' entitled 'Documents from Carmichael.'" (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal PA B 5/14

Chapter: 57.902
Case Name: Diodato v. Wells Fargo Ins. Servs. USA, Inc., Civ. No. 1:12-CV-2454, 2013 U.S. Dist. LEXIS 96920, at *8 (M.D. Pa. July 11, 2013)
("Guided by these legal benchmarks, we have little difficulty concluding that the attorney client privilege is properly invoked with respect to the withheld documents identified on the privilege log submitted to the court. Our review of these withheld documents reveals that these documents consists of e-mail communications between attorneys and their corporate clients discussing the legal implications of actions being considered by Wells Fargo. The e-mails typically carry disclaimers identifying them as confidential, and the content and context of the communications make it clear that legal advice is being sought by the participants in the e-mail exchanges. Thus, all of the requisites for the exercise of the privilege are present here.")

Case Date Jurisdiction State Cite Checked
2013-07-11 Federal PA B 4/14

Chapter: 57.902
Case Name: Bilyeu v. Johanson Berenson LLP, Civ. A. No. 1:08-2006, 2013 U.S. Dist. LEXIS 67226, at *4-5 (W.D. La. May 10, 2013)
(finding that the privilege did not protect a law firm's communications with shareholders with whom the law firm communicated in a marketing effort; "The reason the Johanson Defendants spoke to the corporations' shareholders was to encourage them to sell stock to their clients' ESOPs. It was not to gather information in anticipation of litigation as was the case in Upjohn [Upjohn v. United States, 449 U.S. 383 (1981)]. It wasn't to provide legal advice regarding strategic moves the corporation should make. Rather, it was a discussion regarding an investment opportunity. While the Johanson Defendants labeled the form memoranda provided to potential investors 'privileged and confidential' and cited to cases related to tax deferral strategies, the Johanson Defendants also clearly set forth on the memorandum and supplemental memorandum that neither was an opinion letter.")

Case Date Jurisdiction State Cite Checked
2013-05-10 Federal LA B 3/14

Chapter: 57.902
Case Name: Lesh v. EV3, Inc., C.A. No. 05C-05-218 CLS, 2013 Del. Super. LEXIS 221, at *1, *7-8 (Del. Apr. 16, 2013)
(denying plaintiffs' request for an adverse inference based on defendant's failure to preserve documents at a time when it anticipated litigation; finding that a defendant's "work product" label on some documents did not automatically mean that the company anticipated litigation; "Plaintiffs bring this motion for an adverse inference jury instruction on the grounds that ev3 has likely destroyed critical evidence by failing to suspend the auto-deletion of e-mails and documents of former employees until three years after its duty to preserve documents arose and eighteen months after it issued a legal hold. Plaintiffs assert that ev3 anticipated litigation as early as October 9, 2003 and, thus, ev3 was under a duty to preserve evidence at that time. ev3 argues that it was under no duty to preserve evidence until the suit was filed in May 2005 since no evidence has been [offered that] plaintiffs threatened litigation or that the circumstances suggested imminent threat of litigation."; "Plaintiffs' argument based on the slides labeled as 'Attorney Client Privileged-Protected Work Product,' dated October 29, 2003, is also unconvincing. The label presents the issue of whether the facts suggest that ev3 actually anticipated litigation on October 29, 2003, not whether the slides were actually prepared in anticipation of litigation and, as such, protected by the work-product privilege. Plaintiffs have proffered no legal support that the mere labeling of something as 'Work Product' indicates that a party had reason to anticipate litigation which would require that party to preserve evidence. In addition, there are insufficient facts presented at this time to show that ev3 was anticipating litigation at the time that the document was labeled.")

Case Date Jurisdiction State Cite Checked
2013-04-16 State DE B 4/14

Chapter: 57.902
Case Name: Skansgaard v. Bank of America, Case No. C11-0988 RJB, 2013 U.S. Dist. LEXIS 48176, at *5-6 (W.D. Wash. Mar. 6, 2013)
("The Defendants have established that the attorney-client privilege applies to the Business Presentation document. Art Lee, Assistant General Counsel to the Insurance Services Group of Bank of America, authored this document. The document is specifically labeled 'Attorney-Client Privileged -- Do Not Distribute.' The document was a presentation to the President of the Bank of America Home Loans regarding both the business and legal bases and risks associated with the change to the Defendant's flood insurance placement methodology.")

Case Date Jurisdiction State Cite Checked
2013-03-06 Federal WA B 3/14

Chapter: 57.902
Case Name: Random Ventures, Inc. v. Advanced Armament Corp., No. 12 Civ. 6792 (KBF), 2013 U.S. Dist. LEXIS 20513, at *3 (S.D.N.Y. Feb. 5, 2013)
("Also notable, but not dispositive, is the bold and large type-font statement on the first page of the document that it is a 'PRIVILEGED ATTORNEY CLIENT COMMUNICATION.'")

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

Chapter: 57.902
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 660 (D. Nev. 2013)
("The attachment forwarded to Mr. Altonaga [outside consultant] is clearly marked 'attorney client privileged, prepared at the request of counsel' and is also marked 'confidential-internal use only.' While these marks are not dispositive, they do indicate in this instance the desire to maintain the document's confidentiality and privileged nature. Coupled with the nature of the communication, the court concludes that Mr. Little's [Senior Manager, Marketing] action of forwarding the attorney-client communication to its agent did not defeat confidentiality.")

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

Chapter: 57.902
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *20 (M.D. Fla. Nov. 6, 2012)
(adopting the Vioxx [In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)] standard in finding the privilege inapplicable to many documents prepared by compliance department employees, even though they reported to the law department; "Each incident cover sheet is addressed to the attention of Mr. Davidson, General Counsel, and all pages are stamped 'Confidential Attorney-Client Privileged Information.' This is not dispositive of the privilege issue. A document is not privileged simply because the custodian wants it to be or because it is marked as such.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 57.902
Case Name: Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., Civ. A. No. 4:10CV00007, 2012 U.S. Dist. LEXIS 86283, at *26 (W.D. Va. June 20, 2012)
("The letter clearly indicates both in its heading and body that the information contained in the letter and the accompanying documents is confidential and that it should not be disseminated.")

Case Date Jurisdiction State Cite Checked
2012-06-20 Federal VA B 12/12

Chapter: 57.902
Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *8 (E.D. Va. May 12, 2011)
("On the face of Documents 9 and 10, attorney client privilege applies to protect the communications therein. Document 9 is written from in house counsel/AIG employee to in house counsel and carbon copies three AIG employees. The face of the document demonstrates that it is for the purpose of providing an attorney's opinion on a particular legal issue. The subject of the document, 'ATTORNEY WORK PRODUCT,' supports the legal nature of the communication between attorney and client, despite the author's signature as both an AIG employee and general counsel.")

Case Date Jurisdiction State Cite Checked
2011-05-12 Federal VA B 4/13

Chapter: 57.902
Case Name: Sandra T.E. v. S. Berwyn Sch. Dist. 100, No. 08-3344, 2009 U.S. App. LEXIS 28983 (7th Cir. App. Feb. 25, 2009)
(reversing the lower court's denial of privilege protection, and holding that Sidley Austin lawyers were hired as legal advisors to conduct an investigation into possible sexual abuse at the school – so their investigation-related documents deserved privilege and work product protection; "[T]he School Board retained the law firm of Sidley Austin LLP (then Sidley Austin Brown & Wood LLP) to conduct an internal investigation. The School Board wanted Sidley to review the criminal charges filed against Sperlik, investigate the actions of school administrators in response to the allegations of sexual abuse, examine whether any district employees had failed to comply with district policies or federal or state law, and analyze the effectiveness the effectiveness of the District's existing compliance procedures. According to the February 4, 2005 engagement letter between Sidley and the School Board, Sidley was to 'investigate the response of the school administration to allegations of sexual abuse of students' and to 'provide legal services in connection with' the investigation. Scott Lassar, a partner at Sidley and a former U.S. Attorney for the Northern District of Illinois, spearheaded the investigation."; "On the same day the engagement letter was issued, the School Board president and superintendent of schools sent a joint letter to parents announcing the District's retention of Lassar to conduct the investigation. Ten days later the superintendent sent another more detailed letter to parents explaining that the investigation had begun and would be completed as soon as possible. As the investigation proceeded, attorneys from Sidley interviewed many school-district employees, including current and former principles, social workers, administrative employees, and members of the School Board. Sidley also interviewed a handful of third parties who had never been employed by the School District. None of the interviews were recorded. Instead, the attorneys took notes of the witnesses' answers and later prepared written memoranda memorializing the interviews for future use in Sidley's legal advice to the Board. These notes and memoranda are the subject of the present discovery dispute."; "Lassar and a Sidley colleague delivered an oral report of the firm's findings at a closed executive session of the Board in April 2005, and later that month delivered a written 'Executive Summary' – marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product' – to the Board. This concluded Sidley's engagement; other lawyers have represented the defendants throughout this litigation."; "[T]he judge all but ignored the engagement letter, which should have been the most important piece of evidence. The engagement letter between Sidley and the School Board explained that Sidley had been hired to 'investigate the response of school administration to allegations of sexual abuse of students' and 'provide legal services in connection with the specific representation.' There is no indication that the judge actually considered the engagement letter when it was brought to the court's attention in these later proceedings; rather, the judge simply reiterated his earlier rulings that Sidley had been hired as an investigator and the privilege therefore did not apply."; "This oversight was a mistake; the engagement letter brings this case squarely within the Supreme Court's decision in Upjohn."; "Following Upjohn, other circuits have concluded that when an attorney conducts a factual investigation in connection with the provision of legal services, any notes or memoranda documenting client interviews or other client communications in the course of the investigation are fully protected by the attorney-client privilege."; "The same is true here. The engagement letter spells out that the Board retained Sidley to provide legal services in connection with developing the School Board's response to Sperlik's sexual abuse of his students. Sidley's investigation of the factual circumstances surrounding the abuse was an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond. . . . the conduct of Sidley attorneys during the investigation confirms that they were acting in their capacity as attorneys. During the confidential interviews with school-district employees, the attorneys provided so-called 'Upjohn warnings' emphasizing that Sidley represented the School Board and not the employee and that the School Board had control over whether the conversations remained privileged. No third parties attended the interviews, the School Board received Lassar's report of the firm's findings during an executive session not open to the public, and the written executive summary that Sidley turned over to the Board was marked 'Privileged and Confidential,' 'Attorney-Client Communication,' and 'Attorney Work Product.' If more were needed, affidavits submitted into the record by Lassar, his Sidley colleagues, and the School Board president emphasized that Sidley had been hired to provide legal advice in the context of the facts it uncovered during the internal investigation. Because the Sidley lawyers were hired in their capacity as lawyers to provide legal services – including a factual investigation – the attorney-client privilege applies to the communications made and documents generated during that investigation." (emphases added))

Case Date Jurisdiction State Cite Checked
2009-02-25 Federal
Comment:

key case


Chapter: 57.902
Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 237 (Va. Cir. Ct. 2008)
("Nor does the fact that Cintas' attorneys are carbon copied on the emails, nor do the various blanket 'privileged and confidential' labels attached without apparent regard to content.")

Case Date Jurisdiction State Cite Checked
2008-01-01 State VA

Chapter: 57.902
Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *18 (E.D. Va. June 10, 2004)
("Item 7 is a Capital One Diversity Recruiting presentation, created by in-house counsel, and marked confidential and attorney-client privileged. The presentation was designed to provide legal advice and apprise senior management about legal risks associated with diversity issues. The presentation was treated confidentially, and in fact, copies of the presentation were collected after the presentation was made. Item 7 was clearly a communication falling within the attorney-client privilege, and contrary to Plaintiff's arguments, the style of the item in no way detracts from its privileged nature.")

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

Chapter: 57.902
Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *18-19 (E.D. Va. June 10, 2004)
("Item 9 was clearly meant to be both protected by the attorney-client privilege and the work product doctrine. Item 9 is a memorandum from Capital One's in house attorney to Mr. Knowles and Melanie Lewis, created at the request of Ms. Lewis and Mr. Knowles for legal advice, and clearly marked attorney-client privilege / attorney work product. The memorandum provides legal advice relating to issues of supervision of Jannon Pierce, one of Plaintiff's Counsel's other clients. Plaintiff argues that Defendant somehow waived the privilege by sharing Item 9 with her during the scope of her employment. Plaintiff argues that she announced her belief that she was being discriminated against on the basis of her sex in October 2003. Plaintiff argues further that it was unreasonable for Defendant to believe that after her announcement, she would not share privileged information provided to her in the scope of her employment with her attorney. Plaintiff's assertion that Defendant waived its privilege by assuming that she would uphold her fiduciary duty to maintain her employer's confidences is unpersuasive. Item 9 falls within the attorney-client privilege and that privilege was not waived by Defendant.")

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

Chapter: 57.902
Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist LEXIS 26978, at *18 (E.D. Va. June 10, 2004)
("Item 7 is a Capital One Diversity Recruiting presentation, created by in-house counsel, and marked confidential and attorney-client privileged. The presentation was designed to provide legal advice and apprise senior management about legal risks associated with diversity issues. The presentation was treated confidentially, and in fact, copies of the presentation were collected after the presentation was made. Item 7 was clearly a communication falling within the attorney-client privilege, and contrary to Plaintiff's arguments, the style of the item in no way detracts from its privileged nature.")

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

Chapter: 57.902
Case Name: In re Grand Jury Proceedings, No. M-11-189, 2001 U.S. Dist. LEXIS 15646, at *100 n.51 &99 (S.D.N.Y. Oct. 3, 2001)
(upholding a privilege claim for materials created during an internal corporate investigation into alleged legal firearm sales; noting that the pertinent documents were circulated only among company executives with a need to know, and were labeled as protected; "The communications related to the corporate review were disseminated only among the employee members of the Doe Corp. Team, the individuals charged with acting upon counsel's advice. . . . A few documents created by the Doe Corp. Team submitted by Doe Corp. as privileged do not copy counsel. Those communications were shared between and among members of the Doe Corp. Team tasked with providing reports and recommendations to counsel. Because I find that those documents 'would not have been created had [the team] not needed the assistance of counsel,'. . . I find these documents to be privileged."; "'Further evidencing the privileged nature of these documents is that a majority of the communications are marked with a privilege legend.'") (emphases added)

Case Date Jurisdiction State Cite Checked
2001-10-03 Federal NY

Chapter: 57.902
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 456, 469 (E.D. Va. 1998)
("Similar to the notion that a party must do more than merely sending a document to his or her attorney in order to take advantage of the attorney client privilege, an attorney must do more than apply a certain label to a document to qualify for the opinion work product privilege. See, e.g., Ledgin v. Blue Cross & Blue Shield, 166 F.R.D. 496, 498-99 (D. Kan. 1996) (merely placing an attorney work product stamp on a document is not sufficient to show that a document was prepared in anticipation of litigation)")

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

Chapter: 57.903
Case Name: Smith v. Ergo Solutions, LLC, Civ. A. No. 14-382 (JDB), 2017 U.S. Dist. LEXIS 94337 (D.D.C. June 20, 2017)
(analyzing the waiver implications of an executive's deposition testimony about steps he took as a result of a years-earlier lawyer-run investigation into his sexual harassment; finding that the testimony waived the privilege protection because it disclosed the earlier report's recommendations, and finding a subject matter waiver; "In 2009, Ergo received complaints from two other female employees accusing Brownlee of sexual harassment and alleging claims similar to those alleged in this suit. In response, Ergo retained attorney Donald Hartman to conduct an investigation of the company and its management. As part of his investigation, Hartman created a written report of his findings and recommendations. Whether this report is discoverable is now at issue."; finding that the report deserved privilege protection; "Attorney-client privilege protects confidential communications between attorneys and clients, including internal investigation reports supplied by attorneys to their clients, when one of the significant purposes of communication is legal advice, rather than only business advice. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758-59, 410 U.S. App. D.C. 382 (D.C. Cir. 2014)."; "After reviewing the report in camera, the Court concludes that the report was confidential legal advice from an attorney to a client, and therefore is protected by attorney-client privilege. The Court presumes that outside counsel is retained for legal purposes. . . . Here, the presumption is borne out by the document itself. It includes legal conclusions as to the company's exposure to liability, legal recommendations for avoiding liability from these allegations and protecting against future misconduct that could lead to new allegations, and litigation strategies relating to the sexual harassment allegations at issue at the time of the report. Thus, a 'significant purpose' of the report was to provide legal advice. . . . There are also several indications that the document was intended to be a confidential communication between an attorney and his clients. The report is labeled 'Attorney-Client Privilege' and states that it is '[n]ot to be disseminated beyond ownership group,' with Ergo's owners listed by name underneath. Thus, because the report contains primarily legal advice and was a confidential communication between an attorney and his clients, the report is privileged.")

Case Date Jurisdiction State Cite Checked
2017-06-20 Federal DC
Comment:

key case


Chapter: 57.903
Case Name:


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

Chapter: 57.903
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; "The email is a message from the President of Hertz France to Hertz personnel, including the Hertz France Legal Director, forwarding a message from Nuns Moodliar [Lawyer] about DCC and the allegations in the case. The substance of the message includes the legal advice of Mr. Moodliar relating to DCC. Moreover, the intent appears to be to treat the communication as privileged, as the subject line states: "CPCC/US Class Action/Confidential.'")

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