McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Chapter: 59.5

Case Name: Cazorla v. Koch Foods of Miss., LLC, Civ. A. No. 3:10-cv-00135-DPJ-FKB, 2018 U.S. Dist. LEXIS 48665 (S.D. Miss. March 20, 2018)

(holding that a deposition witness answering written questions without the presence of the adversary's lawyer must provide answers even if they would disclose privileged communications – which will be later reviewed by the court; "To the extent that the deposition questions may implicate information covered by attorney-client privilege, or any other applicable privilege, Plaintiffs may assert that privilege. However, the claimants must fully answer all questions at the time of the deposition, regardless of any applicable privilege claimed. Should Plaintiffs wish to assert a privilege, they may do so by redacting the deposition transcript before delivering it to Defendant, and by providing an accompanying privilege log. Plaintiffs' counsel shall maintain an unredacted version of the transcript suitable for in camera review by the Court, should Defendant challenge any assertion of privilege.")

Case Date	Jurisdiction	State	Cite Checked
2018-03-20	Federal	MS

Comment:

key case

Chapter: 59.5

Case Name: 866 East 164th Street, LLC v. Union Mutual Fire Ins. Co., 16-CV-03678 (SN), 2016 U.S. Dist. LEXIS 162703 (S.D.N.Y. Nov. 23, 2016)

("Each party selected documents from the defendant's privilege log for the Court's in camera review. Upon review of the parties' letters, the exemplars, and case law concerning attorney-client privilege and work product privilege, the Court holds that: (1) any legal invoices reflecting claims-handling activities performed by Mr. Gold or another attorney, as illustrated by the five representative documents submitted by the defendant, are not privileged; (2) communications reflecting only the individual reserve figures and not any underlying methodology or analysis, as illustrated in UNION0011, are not privileged or otherwise protected; (3) communications demonstrating Mr. Gold's involvement in routine insurance business activity surrounding the defendant's decision to pay or deny the claim at issue are to be produced in their entirety; and (4) communications containing a naked question of law directed to Mr. Gold and his corresponding advice may be redacted with the remaining document produced.")

Case Date	Jurisdiction	State	Cite Checked
2016-11-23	Federal	NY

Chapter: 59.5

**Case Name: Summerville v. Moran, No. 1:14-cv-02099-WTL-TAB, 2016 U.S. Dist. LEXIS 6384, at 16, 17 (S.D. Ind. Jan. 20, 2016)**

(finding that an inadequate log did not result in a waiver; "If consent is not obtained, Leaberry [defendant's lawyer] shall provide Summerville with a 'quick peek' of a selection of twelve documents from the privilege log for review. Within twenty-one days of receiving Leaberry's notice that consent was not obtained, Summerville will select and advise Leaberry in writing of the twelve documents he wishes to review. Leaberry will then produce the documents to Summerville within twenty-one days of receiving the request. Once Summerville has reviewed the documents, the parties shall meet and confer, then file a status report advising the Court whether Summerville wishes to pursue disclosure of more documents listed in the privilege log and whether the parties can come to an agreement on production. This arrangement will allow Leaberry to produce some documents for review while avoiding the excessive costs of a full privilege review and without waiving privilege."; "If the parties have gone through all these steps and still cannot come to an agreement on what documents to produce, upon request, the Court will make an in camera review of a sampling of the documents to determine the applicability of the attorney-client privilege. The Court will then order Leaberry to produce additional documents if the assertion of privilege is not found to be wholly appropriate.")

Case Date	Jurisdiction	State	Cite Checked
2016-01-20	Federal	IN	B 7/16

Chapter: 59.5

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

("Shipyard advised the Court that a large number of documents were being withheld by Hoboken on various privilege grounds -- i.e., the attorney-client privilege; the work product doctrine; the common interest doctrine; and the deliberative process privilege -- which it claimed was improper. The Court authorized informal briefs to be submitted and for Shipyard to select representative samples from Hoboken's privilege log for in camera review."; "The concept was that the Court would review the samples and make 'representative' rulings, which could then be applied to any similar documents being withheld -- a technique that this a other courts have used when there are large numbers of privileged documents in dispute.")

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

Chapter: 59.5

Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)

(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Since providing its initial log, Mechel has re-designated certain documents as non-responsive. Those documents will be produced. By listing the documents initially on the log, Mechel's counsel represented that they were responsive. The re-designation of the documents as non-responsive is too convenient.")

Case Date	Jurisdiction	State	Cite Checked
2014-12-12	State	DE

Chapter: 59.5

Case Name: Jo Ann Howard & Assoc., P.C. v. Cassity, Case No. 4:09CV01252 ERW, 2014 U.S. Dist. LEXIS 167761 (E.D. Mo. Dec. 3, 2014)

(after an in camera review describing privilege holdings using repetitive boilerplate descriptions withholdings)

Case Date	Jurisdiction	State	Cite Checked
2014-12-03	Federal	MO

Chapter: 59.5

**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 173162, at *4-5 (S.D.N.Y. Dec. 6, 2013)**

("Unfortunately, it is not clear from the parties' submissions whether any of the withheld documents within this presumably limited universe are, indeed, discoverable. UBS shall therefore produce, within seven days of the date of this order, a random sample of 50 documents for my review in camera. The sample shall be taken from those documents included within categories 4, 5, and 7 of the JCIII Privilege Log.")

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

Chapter: 59.5

**Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *6-7 (E.D. Wis. July 10, 2013)**

("[T]he government indicates that some of Magistrate Judge Gorence's determinations are inconsistent -- a few documents appear to be listed on multiple privilege logs but on one log are ruled privileged and on another log are ruled not privileged. . . . To the extent that this has occurred, such documents are not privileged. None of the defendants objected to any of the 'not privileged' rulings. Thus, those rulings stand and the documents must be disclosed regardless of whether they were found privileged on another log by Magistrate Judge Gorence (or even by this court in this opinion).")

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

Chapter: 59.5

**Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at 31, 31-32 (D. Ariz. Apr. 17, 2013)**

("To review all 176 documents listed in Exhibit A would be an undue burden, especially when many of the documents involve e-mail strings that include multiple documents. I recommend that SGD and Lockheed each identify ten documents to be submitted for in camera review."; "Lockheed should explain, by declaration, Sumitomo's role and why Lockheed maintains that documents sent to or through Sumitomo remain entitled to attorney-client privilege or work-product protection."; "I anticipate that the results of the in camera review will provide guidance on appropriate rulings (or recommendations) and whether further remedies (e.g., additional in camera review or evidentiary declarations from Lockheed) are needed.")

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

Chapter: 59.5

Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 112 (D.D.C. 2012)

("I will hold counsel for BIPI strictly to the obligation imposed by Rule 26(g) of the Federal Rules of Civil Procedure and expect the redactions it makes to be not a word more than is necessary to protect a privilege. If that is not done, I will sanction BIPI counsel and, at a minimum, BIPI will forfeit its privilege to that document. If I detect a pattern of a failure to comply with the obligations I am imposing, I will consider forfeiting the privilege as to all remaining documents.")

Case Date	Jurisdiction	State	Cite Checked
2012-01-01	Federal	DC	B 10/13

Chapter: 59.5

Case Name: Am. Nat'l Bank & Tr. Co. v. Equitable Life Assurance Soc'y, 406 F.3d 867, 870 n.1, 872, 873 (7th Cir. 2005)

(reversing a district court's order requiring defendant to produce privileged documents; noting that defendant had repeatedly revised its privilege log, but that disputes remained; explaining that the magistrate judge initially refused to review documents in camera; "[T]he magistrate judge said to Equitable: 'If you think I'm going to go through 1500 documents, read them all, and decide from this kind of stuff, you are mistaken . . . . I'm not going to allow somebody to put me in a position where I'm going to be reading documents in camera."; explaining that "the magistrate judge sua sponte formulated his own procedure to determine if he would impose the global-disclosure sanction: Emerald [plaintiff] would select twenty of the remaining documents on the fourth-amended log and then Equitable would submit those twenty for in camera review. This was not a random sample; every document that had not already been reviewed in camera was fair game. Then, if the magistrate judge found four or more of the twenty to contain non-privileged material, he would sanction Equitable by ordering a disclosure of every document remaining on the log. On the other hand, if he found three or fewer to contain non-privileged material, he would deny Emerald's motion."; noting that the magistrate judge apparently forgot the details of his own order; "After some more wrangling and two additional hearings, the magistrate judge announced his decision on the record on September 23, 2002. He first ruled that four documents were not protected by the attorney-client privilege but that the other sixteen were. Curiously, he then denied Emerald's motion, stating that he would not sanction Equitable because he believed that his August 14 ruling was that 'four and no more' equaled no sanction. . . . Emerald challenged the magistrate judge's recollection, accurately stating that the rule was, if there were four or more non-privileged documents, 'we get everything.' . . . After a recess, the magistrate judge corrected his error and included a fifth document on the list of the non-privileged. The magistrate judge thus reversed his earlier ruling and granted the motion, ruling that he could not 'rely on the integrity' of the log." (emphasis added); "This disclosure was to include thirty-three documents that the magistrate judge himself found to contain privileged material: eight from his March 20 ruling, ten from his June 5 ruling, and fifteen from his September 23 ruling.") (emphasis added).

Case Date	Jurisdiction	State	Cite Checked
2005-01-01	Federal		B 3/17

Chapter: 59.6

Case Name: West Bend Mutual Ins. Co. v. Zurich American Ins. Company, No. 17 C 2598, 2018 U.S. Dist. LEXIS 61016 (N.D. Ill. April 11, 2018)

(explaining that the litigants' "meet and confer" must have been perfunctory, and requiring them to be more detailed next time; "One further point needs to be made. The parties claim that they complied with the dictates of Local Rule 37.2 by having two discussion on January 10 and 11, 2018 about these issues. It is troubling, then, that after those discussions, counsel for West Bend filed a motion to compel that seemingly flies in the fact of applicable law on at-issue waiver and counsel for Zurich, in the wake of the motion and upon direction from the court, apprised themselves of applicable caselaw and slashed Zurich's privilege claims by 80%. Local Rule 37.2 mandates, not discussions, but 'good faith' discussions. Chatting for a bit about a dispute and maintaining an untenable position at worst or a tenuous position at best, is not engaging in a good faith meet and confer."; "[A]ny future discovery motion must contain a detailed, joint statement of the parties' efforts to resolve their disputes over each of the document requests at issue, along with their final positions, supported by pertinent authority, on each request that remains in dispute.")

Case Date	Jurisdiction	State	Cite Checked
2018-04-11	Federal	IL

Chapter: 59.6

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)

("On May 5, 2017, the undersigned U.S. Magistrate Judge, James P. O'Hara, issued an order rejecting Syngenta's arguments that plaintiffs lost the ability to challenge the privilege assertions (by either the passage of time or by agreement). The court directed the parties to confer and try to reach an agreement whereby the court would review in camera a sample of the documents 'from each category over which plaintiffs have expressed concern, such that the parties may extrapolate the court's privilege rulings on the subset of reviewed documents to all documents in the withheld categories.' The parties agreed to submit -- and did submit -- 44 documents, falling into five categories, as a representative sample for the court's in camera review. Having carefully reviewed those documents, the undersigned sustains in part and overrules in part Syngenta's privilege assertions.")

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

Chapter: 59.6

Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)

("Plaintiffs were free to select as their five exemplars those documents that were on Wells Fargo's privilege log and for which it has exercised its claw back rights. In addition, the Protective Order allows for a party to submit disputed material under seal for a privilege determination by the Court. See Royal Park Inv. SA/NV v. Wells Fargo Bank, N.A., No. 14 Civ. 9764 (KPF)(SN), Amended Stipulation and Agreed Protective Order, ¶ 14(d) (ECF No. 52). Accordingly, plaintiffs' conduct was proper.")

Case Date	Jurisdiction	State	Cite Checked
2017-03-09	Federal	NY

Chapter: 59.6

Case Name: Loop AI Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2017 U.S. Dist. LEXIS 4254 (N.D. Cal. Jan. 11, 2017)

(after reviewing documents in camera and concluding that they deserved privilege protection, assuring a litigant that the documents did not conflict with earlier deposition testimony; "At the December 10, 2015 hearing, the undersigned ruled that Plaintiff was not entitled to privileged Orrick documents for the purpose of 'double-checking' the truthfulness of Sternberg's [then-Orrick Herrington lawyer] statement. . . . The court noted that, through the process of in camera privilege review, it would have the opportunity to examine the Orrick documents to determine whether they contradicted Sternberg's representation about his knowledge of Gatti's employment with Loop. . . . In the course of its review, the court did not find any communications that contradicted Sternberg's statement. Nothing in the documents reviewed in camera by the court indicates that Sternberg gave his client advice about the 'implications arising from Anna Gatti's employment' with Loop.")

Case Date	Jurisdiction	State	Cite Checked
2017-01-11	Federal	CA

Chapter: 59.6

Case Name: Apple Inc. v. Samsung Electronics Co. Ltd., Case No. 11-CV-01846-LHK, 2015 U.S. Dist. LEXIS 80954 (N.D. Cal. June 19, 2015)

(holding that Quinn Emanuel caused an at issue waiver by relying on privileged communications to defend itself from sanctions after having erroneously transmitted to its client Samsung protected Apple communications subject to a protective order; explaining the context; "On November 15, 2013, Samsung submitted an ex parte in camera brief in support of its claims that the eleven disputed documents were protected by the attorney-client privilege and work-product doctrine. . . . Apple and Nokia immediately moved to strike Samsung's brief and supporting declarations as improper ex parte submissions. . . . On November 18, 2013, Judge Grewal agreed with Apple and Nokia, held that Samsung's ex parte brief regarding privilege was an improper ex parte communication, and ordered Samsung to file by November 19, 2013, Samsung's November 15, 2013 brief with redactions only for attorney-client, work-product, or mediation privileges.")

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

Chapter: 59.6

Case Name: Burnett v. Ford Motor Co., Case No. 3:13-cv-14207, 2015 U.S. Dist. LEXIS 49305 (S.D.W. Va. April 15, 2015)

(entering a seal order to avoid disclosure of an inadvertently produced document; "In light of the undersigned's finding that ECF No. 278-1 is a privileged communication between attorney and client, and the privilege remains intact, good cause exists to keep the document sealed from public access. The importance of preserving the attorney-client privilege cannot be overvalued. 'The attorney-client privilege is one of the oldest recognized privileges for confidential communications.'. . . The interest served by maintaining the confidentiality of the attorney-client communication in this case plainly outweighs any countervailing interest the public might have in reviewing the document.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-15	Federal	WV

Chapter: 59.6

**Case Name: Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2013 Del. Ch. LEXIS 23, at *43-44 (Del. Ch. Sept. 18, 2013)**

(analyzing the scope of an implied waiver caused by defendant trust company's assertion of an advice of counsel defense in a lawsuit brought by beneficiaries; "Wilmington Trust contended that I should postpone ruling on the scope of Wilmington Trust's at-issue waiver until the Beneficiaries have challenged the assertion of privilege as to specific documents on the Privilege Log, and the challenged documents have been reviewed in camera. Wilmington Trust seems to largely abandon that argument in its reply brief, but I will address it for the sake of completeness. In a nutshell, although that would be one method for resolving the scope of the waiver, it is not the only method, nor does it promise to be the most efficient method given the advanced state of the parties' briefing on this topic, the expedited nature of the litigation, and the length of time Wilmington Trust took to produce a privilege log that contained, in the end, only 49 entries.")

Case Date	Jurisdiction	State	Cite Checked
2013-09-18	State	DE	B 4/14

Chapter: 59.6

**Case Name: Adair v. EQT Prod. Co., Case Nos. 1:10CV00037 & 41, 2012 U.S. Dist. LEXIS 90250, at *15-16 n.8 (W.D. Va. June 29, 2012)**

("The parties must understand that certain e-discovery expenses may be recoverable as costs to the prevailing party. See CBT Flint Partners, LLC v. Return Path, Inc., 676 F. Supp. 2d 1376, 1381 (N.D. Ga. 2009) ('The enormous burden and expense of electronic discovery are well known. Taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demands for electronic discovery.')

Case Date	Jurisdiction	State	Cite Checked
2012-06-29	Federal	VA

Chapter: 59.6

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498-99 (4th Cir. 2011)

("In most cases, an ALJ's rulings on privilege do not require court enforcement, because the parties either comply voluntarily with the ALJ's rulings, see, e.g., Patrick Cudahy, Inc., 288 N.L.R.B. 968, 968-69 (1988); see also Horizon Corp. v. FTC, No. 76-2031, 1976 U.S. Dist. LEXIS 12222, *2-7 (D.D.C. Nov. 18, 1976), or the ALJ's rulings are made without the need for inspection of the underlying documents, see, e.g., Taylor Lumber, 326 N.L.R.B. at 1299-1300. If enforcement becomes necessary, however, the parties must then turn to the district courts to obtain it. At that time, only the district court determines whether to enforce the subpoena and, in making that determination, evaluates the claims of privilege and, if necessary, conducts an in camera review. Moreover, in carrying out this judicial function, the court cannot delegate its task of conducting an in camera review to an ALJ. This reservation of authority to Article III courts protects against abuse of the subpoena power. While judicial scrutiny of administrative subpoenas is, to be sure, limited, see EEOC v. City of Norfolk Police Dept., 45 F.3d 80, 82 (4th Cir. 1995), courts do not simply order the enforcement of subpoenas as a matter of course, and certainly not blindly, see Penfield Co. v. SEC, 330 U.S. 585, 604, 67 S. Ct. 918, 91 L. Ed. 1117 (1947) (Frankfurter, J., dissenting)."; 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: 59.6

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 499 (4th Cir. 2011)

("Accordingly, before a court commands a party to comply with a subpoena, it must first determine that the subpoena 'is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.' United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S. Ct. 357, 94 L. Ed. 401, 46 F.T.C. 1436 (1950). In short, on an application of an administrative agency for the enforcement of a subpoena in court, the respondent is guaranteed an opportunity to contest the subpoena's validity through any appropriate defense. See Penfield, 330 U.S. at 604 (enumerating several grounds on which '[a]n administrative subpoena may be contested'); NLRB v. Cable Car Advertisers, Inc., 319 F. Supp. 2d 991, 996 (N.D. Cal. 2004) ('[A] party [to] . . . a subpoena enforcement proceeding may raise appropriate defenses once in district court'). In addition to guarding against over breadth or a lack of specificity, the right to raise appropriate defenses includes the right to vindicate claims that a subpoena improperly calls for records protected by the attorney-client or work-product privileges. See, e.g., Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1306-07, 326 U.S. App. D.C. 332 (D.C. Cir. 1997); NLRB v. Harvey, 349 F.2d 900, 907 (4th Cir. 1965). Because a respondent's claim of privilege is the basis for its refusing to produce documents in response to a subpoena, it is inherent in carrying out the judicial function of deciding whether to enforce the subpoena to resolve the respondent's challenge to the subpoena. See NLRB v. Int'l Medication Sys., Ltd., 640 F.2d 1110, 1115-16 (9th Cir. 1981); Harvey, 349 F.2d at 907 (holding that the district court was required to conduct 'a full evidentiary hearing' before enforcing a Board subpoena challenged on privilege grounds). Thus, in this case, ALJ Clark had authority, on the basis of the privilege log and the Board's response to it, to sustain the claim of privilege or to order the production of documents for in camera review. But when Interbake refused to comply with that order, the ALJ lacked the power to enforce it. To obtain enforcement, the Board had to apply to the district court for a judicial order of enforcement, in accordance with the established division of powers between agencies and courts. We do not say that an ALJ does not have authority to rule on a claim of privilege. He can make such a ruling just as he could rule on any issue of evidence presented to him during the course of a hearing. But the ALJ has no power to require the production of documents for in camera review or for admission into evidence when a person or party refuses to produce them. That would require Article III power, which the ALJ does not have."; 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: 59.7

Case Name: Tex. Brine Co., LLC v. Occidental Chem. Corp., No. 17-6075, No. 17-6076, 2018 U.S. App. LEXIS 1286 (10th Cir. Jan. 19, 2018)

(dismissing an appeal because the privilege protection issue was not yet ripe, since there was no log created in connection with Rule 45 discovery; "Assessing a claim of attorney-client privilege, or even a claim of work product doctrine, when a person withholds subpoenaed information, however, necessarily requires a sufficient factual record. 'Only when the district court has been exposed to the contested documents and the specific facts . . . can it make a principled determination as to whether the attorney-client privilege in fact applies. Any attempt to make this type of determination without this factual foundation amounts to nothing more than a waste of judicial time and resources.'. . . This is why Fed. R. Civ. P. 45(e)(2)(A) requires a person or entity withholding information under a claim of privilege or work product to 'describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.' Without knowing the nature of the documents, neither the requesting party nor the court can possibly assess the claim. In this case, Fed. R. Civ. P. 45(e)(2)(A) required the production of a privilege log. . . . Prior to appealing, Texas Brine did not produce a privilege log regarding the documents Frontier withheld."; "While the district court could have ruled otherwise, the court gratuitously allowed Texas Brine a second chance to produce a privilege log regarding the withheld documents. Texas Brine instead appealed, effectively arguing it should not have to produce any documents or a privilege log. Why Texas Brine believes it can assert a blanket claim of privilege over its communications with Frontier without complying with Fed. R. Civ. P. 45(e)(2)(A) or Fed. R. Civ. P. 26(b)(5)(A) is beyond us. The panel pressed Texas Brine on this subject at oral argument. Texas Brine responded that other courts have granted a blanket privilege over communications between a client and public relations firm without the benefit of a privilege log or viewing the documents in camera. . . . Without the benefit of a privilege log or inspection of documents, we are left with an insufficient factual record -- the exact problem Fed. R. Civ. P. 45(e)(2)(A) aims to prevent. Texas Brine has only itself to blame for the predicament in which it finds itself. Without the facts necessary to assess Texas Brine's claims of attorney-client privilege and work product, this dispute is not fit for appellate review.")

Case Date	Jurisdiction	State	Cite Checked
2018-01-19	Federal

Chapter: 59.7

Case Name: Gruss v. Zwirn, 296 F.R.D. 224, 231 (S.D.N.Y. 2013)

("In camera review allows the Court to determine whether an alleged 'work product concern is real, or only speculative,' and establishes a record for appellate review." (citation omitted))

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

Chapter: 59.7

Case Name: JMB/Urban 900 Dev. Partners, Ltd. v. Hazan, 2013 IL App. (1st) 113714-U, ¶23

("We initially find that defendants have forfeited their challenge to Rappaport's [defendants' former lawyer] testimony. Although defendants objected to Rappaport being allowed to testify prior to the evidentiary hearing, the trial court told defense counsel that its decision to allow Rappaport to testify was 'interlocutory' and was subject to the court's 'obligation as Mr. Rappaport testifies to reconsider any rulings with respect to this.' Despite this statement by the court, defendants did not object to any specific testimony that Rappaport gave at the evidentiary hearing. By failing to do so, defendants deprived the trial court of the opportunity to make a ruling as to whether any specific communication was covered by the attorney-client privilege before Rappaport testified to that communication and deprived the court of the chance to make specific findings that this court could review on appeal.")

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

Chapter: 59.8

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)

("[W]e conclude that the district court was within its discretion to reject the Board's proffered reasons for doubting Interbake's preliminary showing of privilege. Once a prima facie showing of a privilege has been made, an opposing party can justify in camera inspection of the documents by advancing '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.' In re Grand Jury Investigation, 974 F.2d 1068, 1074 (9th Cir. 1992); see also G.D. v. Monarch Plastic Surgery, 239 F.R.D. 641, 650 (D. Kan. 2007) (requiring a 'cogent basis' to justify in camera review). The Board claims that it met this standard by showing a conflict between Jill Slaughter's testimony that the earliest she communicated with anyone about the Missy Jones investigation was 'around February 13,' 2009, and Interbake's privilege log, which identifies two e-mails that Slaughter sent on February 9, 2009 regarding the 'Missy Jones Investigation.' The fact that Slaughter may have testified incorrectly regarding the dates of her communications (intentionally or otherwise) does not compel an inference that her February 9 e-mails were not privileged. Especially in light of the heightened standard of review on such matters, we find this argument insufficient to justify reversal."; 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: 59.301

Case Name: NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)

May 3, 2017 (PRIVILEGE POINT)

"Court Explains Who Can Make Privilege Rulings in Administrative Law Contexts"

Among administrative law judges, magistrate judges, and Article III judges involved in administrative issues, who can make privilege calls?

In NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017), the United States magistrate judge ordered defendant to produce documents pursuant to an NLRB subpoena. The Article III judge followed other decisions in holding that magistrate judges' order are "dispositive," because they "dispose[] of the entire matter at issue." Id. at *7. The court therefore construed the magistrate judge's decision "as a recommendation which will be reviewed de novo and [to which the court] will apply the clearly erroneous or contrary to law standard." Id. at *8. The judge then turned to the difference between its power under Article III and the NLRB's administrative law judge's power. While criticizing defendant for failing to prepare a privilege log for the administrative law judge, the court acknowledged that it rather than the ALJ had "authority to make an ultimate determination on these issues" – and then overturned the magistrate judge's recommendation that the defendant waived its protections by not preparing a log. Id. at *20.

In those murky administrative areas where administrative, magistrate, and Article III judges exercise their power, corporations and their lawyers should keep track of which judge can decide which privilege issues.

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

Comment:

key case

Chapter: 59.302

Case Name: In re Morning Song Bird Food Litig., No. 1:17-mc-00078-JMS-TAB, 2018 U.S. Dist. LEXIS 69393 (S.D. Ind. April 25, 2018)

(in connection with Rule 45 discovery, transferring a privilege issue from the court where the discovery was sought to the California handling the underlying case)

Case Date	Jurisdiction	State	Cite Checked
2018-04-25	Federal	IN

Chapter: 59.302

**Case Name: United States v. All Assets Held at Bank Julius Baer & Co., Civ. A. No. 04-798 (PLF/GMH), 2017 U.S. Dist. LEXIS 147894, at *11 (D.D.C. Sept. 13, 2017)**

December 13, 2017 (PRIVILEGE POINT)

"Does the Work Product Doctrine Protect the Identity of Witnesses a Lawyer Chooses to Interview?"

Litigants obviously must identify all witnesses with potentially relevant knowledge about litigated issues. But can litigants claim work product protection for the identity of the subset of those witnesses that their lawyers choose to interview?

As with so many other work product issues, courts disagree. In United States v. All Assets Held at Bank Julius Baer & Co., the court ultimately held that the work product doctrine protected such interviewees' identities, because forcing disclosure of their identities would reveal how the litigant and his lawyer "choose to prepare their case." Civ. A. No. 04-798 (PLF/GMH), 2017 U.S. Dist. LEXIS 147894, at *11 (D.D.C. Sept. 13, 2017) (citation omitted). The court acknowledged that the question "remains unsettled." Id. at *7. And in a refreshing moment of candor, the court explained that "[i]ndeed, in this Court alone, there is a partial split among its members over whether the names of individuals that a party has interviewed in preparation for litigation [are] protected under work-product privilege." Id. at *7-8.

Corporate litigants may not know how the work product doctrine will apply to their lawyers' activities until they know what court will handle their case – and even what judge will hear their case.

Case Date	Jurisdiction	State	Cite Checked
2017-09-13	Federal	DC

Comment:

key case

Chapter: 59.302

Case Name: United States v. Micro Cap Ky Ins. Co., Inc., Civil Case No. 5:16-cv-278-JMH-REW, Civil Case No. 5:16-cv-279-JMH-REW, 2017 U.S. Dist. LEXIS 44261 (E.D. Ky. March 27, 2017)

(holding that asserting a "reasonable cause" argument in tax court might trigger an implied waiver; "Pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), a district court judge may refer dispositive matters to a magistrate judge for the preparation of a report and recommendation. The magistrate judge must conduct the necessary proceedings and enter a recommended disposition in a timely manner. Fed. R. Civ. P. 72(b)(1). If a party files objections to that recommended disposition, the district court judge must review the contested portions de novo and 'accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.' Fed. R. Civ. P. 72(c)."; "Although the Sixth Circuit has not squarely addressed this issue, it has 'indicated that a party's failure to raise an argument before the magistrate judge constitutes a waiver.'")

Case Date	Jurisdiction	State	Cite Checked
2017-03-27	Federal	KY

Chapter: 59.302

Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)

(analyzing the review standard for an Article III judge's review of a magistrate judge's ruling, and the relationship between an administrative law judge and an Article III judge; "As an initial matter, NPC asserts that the magistrate judge exceeded his authority by entering an order regarding enforcement of the subpoena, rather than a report and recommendation. To resolve this issue, the Court must determine whether an application to enforce a subpoena duces tecum is dispositive. Many courts who have considered this question have answered in the affirmative. Those courts reasoned that, although a motion to quash a subpoena is often a non-dispositive matter, where a court's decision disposes of the entire matter at issue, it is more properly characterized as dispositive and therefore subject to de novo review. . . . The Court finds this reasoning persuasive. Once an order is entered in this matter, the entirety of the dispute that is before this Court will be resolved. Therefore, the application to enforce the subpoena is dispositive, and the magistrate judge only had authority to render a report and recommendation. In accordance with the standards of review outlined below, the Court will construe Judge Bryant's decision relating to the subpoena enforcement application as a recommendation which will be reviewed de novo and will apply the clearly erroneous or contrary to law standard with respect to its denial of the motion to strike."; "Although NPC is correct that the ultimate authority to assess claims of privilege in the context of a subpoena enforcement action lies with the district court, in this Court's view, its reading of Detroit Newspapers [N.L.R.B. v. Detroit Newspapers, 185 F.3d 602 (6th Cir. 1999)] is overly broad. Respondent posits that it had no responsibility to produce a privilege log before the Board. Thus, reasons NPC, it cannot have waived its right to seek protection based on attorney-client privilege and work-product doctrine in district court for failure to exhaust the issue at the administrative level."; "While the district court does maintain exclusive authority to enforce a subpoena, and to render a binding decision regarding privilege, had Respondent cooperated at the Board level, the Court's review of this matter might not have been necessary."; "[T]he Court does not condone NPC's complete failure to comply with reasonable requests from the Board to explain its basis for not producing documents it claims are protected by the attorney-client privilege or work-product doctrine. Nevertheless, given this Court's authority to make an ultimate determination on these issues, Respondent's reliance on these protections will not be treated as waived for failure to submit a privilege log to the Board.")

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

Chapter: 59.302

Case Name: NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)

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

Comment:

key case

Chapter: 59.302

Case Name: In re Syngenta AG Mir 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 11749 (D. Kan. Jan. 27, 2017)

("Here, the subpoena served on Mr. Carrato required compliance in San Francisco, California. Because compliance is not required in the District of Kansas, this court cannot quash the subpoena or otherwise provide the relief requested by Monsanto. Although it is true, as Monsanto points out, that a motion to quash a subpoena may, in exceptional circumstances, be transferred to the court from which the subpoena was issued, only 'the court where compliance is required' may determine whether such circumstances exists and make the transfer. Because this court is without power to quash the subpoena or transfer the motion to itself, the motion is denied without prejudice to refiling in the Northern District of California. Should Monsanto re-file its motion in that court, and further, should that court transfer the motion to this court, the following briefing deadlines will apply: any response to the motion shall be filed within two days of the entry of the order of transfer; any reply shall be filed within one day of the response.")

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

Chapter: 59.302

Case Name: AKH Company, Inc. v. Universal Underwriters Ins. Co., Case No. 13-2003-JAR-KGG, 2016 U.S. Dist. LEXIS 178005 (D. Kansas Dec. 22, 2016)

("The Central District of California 'determined that it was necessary to review the documents in camera to determine whether they qualified for protection.'. . . That Court ultimately determined that the District of Kansas and the undersigned Magistrate Judge were 'best suited to conduct the [requested] document review' as "'[h]e had been overseeing the discovery in [this] case since February 2013.'. . . Further, the undersigned Magistrate Judge has previously reviewed thousands of pages -- and has ordered the production of hundreds of pages -- of otherwise privileged or protected documents in this case on the basis of the crime-fraud exception, the same issue on which the present motion hinges.")

Case Date	Jurisdiction	State	Cite Checked
2016-12-22	Federal	KS

Chapter: 59.302

Case Name: Costco Wholesale Corporation v. Crane, Case No. 16-mc-80189-JSC, 2016 U.S. Dist. LEXIS 132778 (N.D. Cal. Sept. 27, 2016)

(transferring a privilege dispute back to the Southern District of California, where the main case was pending; "Rule 45 requires that subpoenas be issued from the court where the action is pending. See Fed. R. Civ. P. 45(a)(2). 'When the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.' Fed. R. Civ. P. 45(f)."; "The Court finds that exceptional circumstances exist because the issues raised by Costco's motion to compel either have been ruled on by or are currently pending before Judge Brooks in the Southern District of California.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-27	Federal	CA

Chapter: 59.302

Case Name: NLRB v. D. Bailey Management Co., No. 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. Apr. 25, 2016)

June 1, 2016 (PRIVILEGE POINT)

"Courts Deal with Litigants' Tardy or Inadequate Privilege Logs"

Courts frequently deal with litigants' tardy or inadequate privilege logs. Among other things, they must decide the standard of review for a magistrate judge's initial determination; who has jurisdiction to impose sanctions; and the obvious issue of a late or inadequate log's implications. Three decisions decided in the same month highlight these issues.

In United States SEC v. Commonwealth Advisors, Inc., the court extensively analyzed the proper standard for reviewing a magistrate judge's decision that a litigant waived its privilege protection by including "factually incorrect entries" in an amended log (following the magistrate judge's conclusion that the first log was inadequate). Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *4 (M.D. La. Apr. 6, 2016). The court applied a "clearly erroneous" standard in upholding the magistrate judge's harsh sanction. Id. At *6. A few weeks later, in NLRB v. D. Bailey Management Co., No. 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. Apr. 25, 2016), the court first held that an administrative law judge lacked the power to sanction a litigant's tardy log by finding a waiver — but then itself found that the defendant waived its privilege by failing to log withheld documents for nearly a year. Three days after that, the court in Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. Apr. 28, 2016), followed the more generous approach many courts take — finding a litigant's logs inadequate, but giving it a second chance.

The SEC v. Commonwealth Advisors court recognized that "[d]iscovery has become the preeminent battleground in modern litigation, perhaps eclipsing the rare trial." 2016 U.S. Dist. LEXIS 46438, at *2 n.1. That battleground often includes skirmishes over privilege logs' timing and adequacy.

Case Date	Jurisdiction	State	Cite Checked
2016-04-25	Federal	CA

Comment:

key case

Chapter: 59.302

Case Name: National Labor Relations Board v. D. Bailey Mgmt. Co., 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. April 25, 2016)

("[T]he Court finds that the ALJ lacked the authority to issue a binding order finding that respondent has waived the attorney-client privilege. That question rests solely in the hands of the district courts.")

Case Date	Jurisdiction	State	Cite Checked
2016-04-25	Federal	CA

Chapter: 59.302

Case Name: Stevens v. Corelogic, Inc., Case No. 14cv1158 BAS (JLB), 2016 U.S. Dist. LEXIS 12420 (S.D. Cal. Feb. 2, 2016)

("[T]he Court's Civil Chambers Rules do not require counsel to call Chambers when a privilege dispute arises during a deposition. The parties may call Chambers, but they are not required to do so.")

Case Date	Jurisdiction	State	Cite Checked
2016-02-02	Federal	CA

Chapter: 59.302

**Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *4 (E.D. Wis. July 10, 2013)**

("A magistrate judge is authorized to decide nondispositive motions such as those involving attorney-client or work product privilege.")

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

Chapter: 59.302

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)

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

Chapter: 59.302

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 495 (4th Cir. 2011)

("[W]e also hold that an ALJ's order imposed in the course of an administrative hearing, even when ruling on evidence, can only be enforced by an Article III court. When refusal to comply with a subpoena and the Board's order to produce documents is based on the attorney client or work product privilege, the Board's recourse is to apply to the district court for an order enforcing the subpoena. In deciding whether to enforce the subpoena, the court must then assess the legitimacy of the claimed privilege. Thus, while we do not preclude any administrative assessment of claims of privilege, we do conclude that when an assessment of those claims is necessary to a court's determination of whether to enforce the subpoena, the assessment must be conducted by the court."; 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: 59.302

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 498-99 (4th Cir. 2011)

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

Chapter: 59.302

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 499 (4th Cir. 2011)

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

Chapter: 59.302

Case Name: In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 613-14 (E.D. Va. 2008)

("The Rigsbys contend that their personal e-mail accounts likely contain communications with their attorneys related to pending litigation where the Rigsbys are parties or witnesses, including the McIntosh litigation in the Southern District of Mississippi. Because State Farm's subpoena requests information relevant to the claims or defenses available to the parties in McIntosh, the district court in Mississippi is better posed to evaluate the Rigsbys' privilege claim. Whereas State Farm's subpoena at issue here is the only pending litigation involving the parties in the Eastern District of Virginia. While acknowledging State Farm's argument that the Rigsbys did not allege sufficient facts or provide a privilege log to support an assertion of privilege, this Court declines to reach the merits of the privilege claim because the Mississippi district court in which the action is pending is better suited to decide whether the information relevant to McIntosh is privileged based on their familiarity with the underlying litigation. Thus, Magistrate Judge Poretz did not clearly err when he declined to evaluate the Rigsbys' privilege claim on the merits because the Southern District of Mississippi is better posed to determine whether the Rigsbys' information requested by State Farm's subpoena is privileged as it pertains to claims and defenses associated with pending litigation in that jurisdiction." (footnote omitted))

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

Chapter: 59.303

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

(proving use of a government "filter" process for a privilege review of seized documents; "The Court held an evidentiary hearing to determine whether the screening process for emails that contain privileged attorney client communications was flawed as claimed by Mr. Snyder [Criminal defendant]. While Mr. Snyder asks the Court to infer that Special Agent Eric Field must have reviewed privileged emails because Google sent all the files to him directly, the Court finds that he did not do so. The Court credits his testimony that he merely passed the files over to BIDMAS at the FBI headquarters and did not review them. Mr. Snyder is correct that it would have been better had the files been sent to a person behind 'the Chinese Wall' as that would have added credibility to the screening process, but in this case, there was no harm sending the files directly to Field."; "The Court finds that, as carried out in this case, the filter process worked sufficiently, even if the process itself has inherent flaws (it has s semblance of the fox guarding the hen house). That is, there's no evidence, or even suggestion, that persons behind 'the Chinese Wall' passed on privileged information to the prosecution team or that releasing the QuickBooks files and two Dogan emails to the prosecution team was done with the intention that the privileged documents be used to prosecute Mr. Snyder.")

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

Chapter: 59.303

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

(appointing a Special Master to review privileged documents the government seized from a criminal defendant's law firm, rather than allowing a government "filter team" to review the documents for privilege; "The parties agree that the items seized from Defendant's law office must be reviewed for privilege and responsiveness to the search warrant, but they disagree as to who should conduct the review. Defendant asks the Court to order that the review be conducted by his law office or by a Special Master. . . . The Government argues that the review should be conducted by a walled-off Government filter team in accordance with procedures developed by the United States Attorneys' Office for the Western District of Texas ('USAO-WDTX') in consultation with the Department of Justice's Office of Enforcement Operations. . . . According to the Government, the use of a filter team -- also known as a taint team -- is a common, accepted, and approved practice that is consistent with the guidance provided by the United States Attorneys' Manual ('USAM')."; "The Court rejects Defendant's proposal to allow his law office to review the seized materials for privilege and responsiveness, as Defendant has not identified adequate support for the proposal. Accordingly, the issue before the Court is whether the review should be conducted by a Government taint team or by a Special Master. Both of these review procedures are contemplated by the USAM, which provides non-binding guidance for searches of offices of attorneys who are suspects, subjects, or targets of criminal investigations. . . . In addition, both of these review procedures have been approved and authorized by courts."; "Although use of taint teams has been approved in limited factual scenarios, federal courts have generally 'taken a skeptical view of the Government's use of 'taint teams' as an appropriate method for determining whether seized or subpoenaed records are protected by the attorney-client privilege.'. . . '[T]aint teams present inevitable, and reasonably foreseeable, risks to privilege.'. . . The Government's taint team may 'have a more restrictive view of privilege' than the defense."; "Furthermore, the Government has not identified any cases approving use of taint teams in situations like the one presented here, where materials -- including active case files -- have been seized from the law office of a criminal defense attorney. '[A] search of the law offices of a criminal defense attorney raises Sixth Amendment concerns not otherwise present in the search of the offices of a civil litigation attorney.'"; "In the present case, the seized materials do not relate to clients of attorneys other than Defendant, but they do likely contain privileged materials pertaining to unrelated clients of Defendant."; "In light of the fact that the materials at issue were seized from a criminal defense attorney's office, and given the importance of protecting both the interests and appearance of fairness and justice, the Court finds that exceptional circumstances warrant the appointment of a Special Master to review the items seized from Defendant's law office for privilege and responsiveness to the search warrant. See Fed. R. Civ. P. 53(a). The Court has reviewed the parties' proposed candidates for appointment. However, instead of hand-picking a candidate, the Court finds that the interests of fairness and justice would best be served by appointing the magistrate judge who was randomly assigned to this case, Judge Bernardo P. Velasco, as Special Master.")

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

Chapter: 59.303

**Case Name: Winfield v. City of New York, No. 15-cv-05236 (LTS) (KHP), 2018 U.S. Dist. LEXIS 79281, at *25 (S.D.N.Y. May 10, 2018)**

August 1, 2018 (PRIVILEGE POINT)

"Courts Sometimes Use Special Masters to Assess Privilege and Work Product Claims"

The judge handling the criminal case against President Trump's former lawyer Michael Cohen appointed a special master to review for privilege or work product protection documents the government seized from Cohen's office. The media covered this as newsworthy, but special masters frequently play such a role.

In Winfield v. City of New York, Judge Parker appointed respected retired Judge Frank Maas as a special master to review defendant City's withheld documents – noting that the "task of reviewing 3,300 documents is enormous and one that this Court cannot complete before the end of fact discovery." No. 15-cv-05236 (LTS) (KHP), 2018 U.S. Dist. LEXIS 79281, at *25 (S.D.N.Y. May 10, 2018).

Corporate litigants should carefully consider suggesting that courts appoint such special masters. Billing by the hour, special masters frequently spend more time analyzing privilege and work product assertions. This sometimes contrasts with overworked judges, who often look primarily (if not exclusively) on the face of withheld documents for clients' explicit requests or legal advice or lawyers' explicit legal advice in response.

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

Comment:

key case

Chapter: 59.303

Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)

(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "'On remand, under the district court's order, the special master will perform an in camera review of certain categories of documents that C&S and Collingsworth contend are protected by the attorney client privilege or work product protection. To conclude that the crime-fraud exception applies to require disclosure of any specific document, the special master must find that the document either (1) reflects a communication used to further a crime or fraud or was closely related to it or (2) was created to further a crime or fraud or was closely related to it.'")

Case Date	Jurisdiction	State	Cite Checked
2018-03-23	Federal

Chapter: 59.303

Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)

(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "After determining that the crime-fraud exception may apply, the district court ordered a special master to review in camera the documents that Collingsworth and C&S claimed were privileged or protected as attorney work product to determine whether each individual document was in furtherance of or closely related to a fraud on the court or crime and therefore should be produced to Drummond. The court also set forth a procedure for the special master to assess a witness's assertion or attorney-client privilege or attorney work product protection in a deposition. The court directed that when necessary a witness should give in camera testimony, potentially ex parte, so that the special master could appropriately assess any privilege issues while limiting disclosure only to information used or created in furtherance of the crime or fraud.")

Case Date	Jurisdiction	State	Cite Checked
2018-03-23	Federal

Comment:

key case

Chapter: 59.303

Case Name: Siras Partners LLC v. Activity Kuafu Hudson Yards LLC, 650868/2015, 2017 N.Y. Misc. LEXIS 2224 (N.Y. Sup. Ct. June 5, 2017)

(acknowledging a possible fiduciary exception, and referring the matter to a Special Referee; "Regarding the fiduciary duty exception, 'in the corporate context, where a shareholder (or, as here, an investor in a company) brings suit against corporate management-for breach of fiduciary duty or similar wrongdding [sic], courts have carved out a 'fiduciary exception' to the privilege that otherwise attaches to communications between management and, corporate counsel.'"; "I am referring this matter to a Special Referee for an item-by-item in camera review to determine whether the 'real client' involved in the communications is Kuafu, as defendants claim, or Bifrost. To the extent the Special Referee determines that the 'real client' is Bifrost plaintiffs are entitled to pierce the attorney-client privilege as to those communications upon a showing of 'good cause.'")

Case Date	Jurisdiction	State	Cite Checked
2017-06-05	State	NY

Chapter: 59.303

Case Name: In re HH Liquidation, LLC v. Comvest Group Holdings, LLC, Ch. 11, Case No. 15-11874 (KG), (Jointly Administered), Adv. No. 16-51204 (KG), 2017 Bankr. LEXIS 1258 (D. Del. May 8, 2017)

(holding that an unsecured creditors committee was not entitle to access debtors privileged documents; "The Court is not satisfied from its review of the privilege logs that the documents the Debtors withheld were prepared in anticipation of litigation. The withheld documents appear to the Court to be general corporate documents prepared in connection with a transaction. The Court therefore concludes that these are not work product documents. Accordingly, the Court will order Debtors to produce their work product documents unless they can provide the Court with proof that they prepared the withheld documents in anticipation of litigation. The Court will then review the documents in camera or, if necessary, the Court will appoint a mediator to review the documents to determine if they are protected by the work product doctrine."; "The Court has found that Weintraub does not apply to the Committee but only to chapter 7 trustees; that Garner affords relief but only on a finding of insolvency; and that it is Teleglobe which requires insolvency without which there is no fiduciary duty owed to creditors. The documents withheld on the basis of the work product doctrine shall be produced, subject to the Debtors proving that they prepared the withheld documents in anticipation of litigation. The Court will therefore deny the Motion in part and grant it in part.")

Case Date	Jurisdiction	State	Cite Checked
2017-05-08	Federal	DE

Chapter: 59.303

Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)

(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "The Court does not believe that a special master is necessary in this case. Having reviewed the sample documents, the Court does not believe that there has been a systemic problem with over-designating documents and communications as privileged, with the exception of the Weekly Updates. Although there certainly were instances where SharkNinja improperly claimed privilege, it appears to the Court that this is simply the type of human error that will necessarily occur when a large document review and production is undertaken. The issue of attorney-client privilege is discretionary, and reasonable minds may disagree over what is or is not deserving of the privilege. In any given privilege log there will likely be several documents that have been inappropriately withheld, and this log appears to be no different to the Court. As such, the Court does not believe a special master is necessary.")

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

Chapter: 59.303

Case Name: U.S. Bank Nat'l Ass'n v. Lightstone Holdings LLC, No. 651951/2010, 2016 NY Slip Op 30644(U), at 10 (N.Y. Sup. Ct. Apr. 12, 2016)

("[T]his matter shall he [sic] referred to a special referee to hear and report whether the additional documents should be produced under the theory of subject matter waiver.")

Case Date	Jurisdiction	State	Cite Checked
2016-04-12	Federal	NY	B 8/16

Chapter: 59.303

**Case Name: Fosbre v. Las Vegas Sands Corp., Case No. 2:10-cv-00765- c/w 2:10-cv-01210-APG-GWF, 2016 U.S. Dist. LEXIS 5422, at *37-38 (D. Nev. Jan. 14, 2016)**

("If in camera review of the foregoing documents indicates that Defendants improperly asserted the attorney-privilege in a manner that calls into question the reasonableness of their assertion of attorney-client privilege to the remaining documents, then the Court will consider granting additional in camera review which may include the appointment of a special master in the manner done in Applied Medical Resources Corp. v. Ethicon, Inc., 2005 U.S. Dist. LEXIS 41199, 2005 WL 6567355, at *3 [(C.D. Cal. May 23, 2005)].")

Case Date	Jurisdiction	State	Cite Checked
2016-01-14	Federal	NV	B 7/16

Chapter: 59.303

Case Name: NAMA Holdings, LLC v. Greenberg Traurig LLP, 601054/08, 2015 N.Y. App. Div. LEXIS 7289 (N.Y. Sup. Oct. 8, 2015)

(applying the fiduciary exception; holding that an investor which on seventy percent of an LLC did not automatically deserve access to the LLC's privileged documents, and remanding for an in camera review; "[I]t is uncontested that the special referee did not review a single document in camera, despite being instructed by the motion court to conduct an item-by-item review. Therefore, we cannot affirm an order directing the production of more than 3,000 purportedly privileged communications without a single one of those communications having been reviewed.").

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

Chapter: 59.303

Case Name: Harbinger F&G, LLC v. OM Grp. (UK), No. 12-CV-5315 (RA) (AJP), 2013 U.S. Dist. LEXIS 132009 (S.D.N.Y. Aug. 22, 2013)

(in a report by a Special Master to a United States Magistrate Judge, holding that plaintiff's disclosure of some privileged document did not cause a subject matter waiver)

Case Date	Jurisdiction	State	Cite Checked
2013-08-22	Federal	NY	B 4/14

Chapter: 59.303

Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 573 (S.D.N.Y. 2013)

("The Order appointing Special Master Warner states that: '[t]he Court will set aside a ruling [of the Special Master] on a procedural matter only where it is clearly erroneous or contrary to law.' 'Discovery rulings, including those regarding privilege issues, are nondispositive matters subject to [the] standard of review [applicable to procedural matters].'" (citations omitted))

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

Chapter: 59.303

**Case Name: Wang v. Hearst Corp., No. 12 CV 793 (HB), 2012 U.S. Dist. LEXIS 179609, at *8-9 (S.D.N.Y. Dec. 19, 2012)**

("Defendant will produce a privilege log, and I will review the documents in camera, unless, of course, there are too many. In the latter case, I will appoint a special master at the expense of the parties. The material should all be produced by year's end. Should this create a major problem, the parties should schedule a telephone conference this week.")

Case Date	Jurisdiction	State	Cite Checked
2012-12-19	Federal	NY	B 9/13

Chapter: 59.303

**Case Name: Rush v. Sunrise Senior Living, Inc., CL-07-11322, 2008 Va. Cir. LEXIS 12, *14-15 (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; "I decline to apply the work product doctrine in this case to documents Mr. Rush received, authored or reasonably had access to during his tenure as CFO, and order that Sunrise immediately produce to Mr. Rush all such documents, subject to the attorney client privilege ruling above. All other documents responsible to the discovery requests that Sunrise continues to maintain are work product must be reviewed in camera by Mr. Birken [Special Commissioner]. He shall determine whether the documents in Sunrise's privilege log were or were not 'created in anticipation of litigation' (as opposed to, for example, created in the regular course of business in responding to SEC investigations and/or to its concerned shareholders)."; also directing the Special Commissioner to analyze whether the former CFO could overcome the work product protection)

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

Chapter: 59.303

Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12 (Va. Cir. Ct. Feb. 12, 2008)

Case Date	Jurisdiction	State	Cite Checked
2008-02-12	State	VA

Chapter: 59.401

**Case Name: Charter Oak Fire Ins. Co. v. Am. Capital, Ltd., Civ. A. No. DKC 09-0100, 2013 U.S. Dist. LEXIS 180504, at *23 (D. Md. Dec. 24, 2013)**

("Judge Schulze acted within her discretion in deciding whether to conduct an in camera review of Paul Janaskie's [plaintiff's lawyer) declaration before ruling on Defendants' motion to compel.")

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

Chapter: 59.402

Case Name: Cooper v. Richland County Recreation Comm., Civ. A. No. 3:16-cv-1606-MGL-TER, 2018 U.S. Dist. LEXIS 163788 (D.S.C. Sept. 25, 2018)

(advising work product protection for an investigation into sexual harassment allegations; "Plaintiff requests that the court review the documents in camera. The Court may engage in an in camera review of documents that are claimed to be privileged in order to determine whether an exception to such privilege applies. . . . However, before the Court may engage in such a review, the movant must present 'a factual basis adequate to support a good faith belief by a reasonable person . . . that in camera review of the materials may reveal evidence to establish the claim that the . . . exception applies.'. . . Once that threshold showing is made, the determination of whether to engage in an in camera review is a matter of the Court's discretion. . . . Plaintiff has failed to make the threshold showing.")

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

Chapter: 59.402

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: 59.402

Case Name: Knopick v. Dennis Boyle & Boyle Litigation, No. 99 MDA 2017, 2018 Pa. Super. LEXIS 552 (Pa. Super. May 30, 2018)

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

Chapter: 59.402

Case Name: In re Andrew Silver, No. 16-0682, 2018 Tex. LEXIS 171 (Tex. Sup. Feb. 23, 2018)

(finding that patent agents were inside privilege protection, because they counted as "lawyers" under Texas evidence rules; "A trial court can review documents in camera if necessary to determine whether a privilege applies. Tex. R. Civ. P. 193.4(a). When such a review is critical to the determination of a privilege claim, the trial court abuses its discretion when it fails to conduct an adequate in camera inspection. . . . Because the privilege here could apply to some of the documents at issue, we conclude that the trial court abused its discretion by not conducting an in camera review.")

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

Chapter: 59.402

Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733 (S.D. Ohio Sept. 26, 2017)

(finding that a California law requiring the court to conduct an in camera review did not apply in federal court; "OneBeacon argues that Ohio law 'requires a court deciding issues of privilege to conduct an in camera inspection to determine the extent to which the privilege applies or has been waived before ordering a party to produce information that is claimed to be privileged.'. . . To the extent OneBeacon argues that an in camera review is mandatory, the Court rejects its argument as unsupported."; "First, OneBeacon has not cited any cases to show that Ohio's in camera review requirements are binding on federal courts. Further, the holdings of the cases OneBeacon cites do not support its position that an Ohio court must conduct an in camera review whenever an attorney-client privilege is asserted. Instead, the holdings of the cases OneBeacon cites are more limited than this broad proposition."; "The Court declines to revisit its prior decision and will not conduct an in camera review of the third-party documents it previously held were not entitled to protection under the attorney-client privilege.")

Case Date	Jurisdiction	State	Cite Checked
2017-09-26	Federal	OH

Comment:

key case

Chapter: 59.402

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

("Denying in camera review 'reflects an appropriate balancing of benefits and detrimental effects' of piercing attorney-client privilege. . . . Although relevant to bias, these Documents are cumulative to other evidence that Plaintiffs already have. Plaintiffs have redeposed the witnesses about the payments and have served interrogatories. . . . Plaintiffs have the records of payments made to those witnesses. . . . If the witnesses gave inconsistent testimony or got paid by Defendants, Plaintiffs already know. The Documents' marginal probative value justifies neither expending the Court's resources on in camera review nor 'chilling . . . frank communication between lawyers and clients.'")

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

Chapter: 59.402

Case Name: Team System International, LLC v. Haozous, No. 16-6277, 2017 U.S. App. LEXIS 16087 (10th Cir. App. Aug. 23, 2017)

("In camera review enables protection of privileged material . . . and courts have reviewed unredacted billing records and time sheets in camera to protect privilege in making attorney fee awards."; "This court has held that a court reviewing a fee request did not abuse its discretion in denying the responding party access to the itemized time records and conducting in camera review of those records.")

Case Date	Jurisdiction	State	Cite Checked
2017-08-23	Federal

Chapter: 59.402

Case Name: Leadership Studies, Inc. v. Blanchard Training and Development, Inc., Case No. 15cv1831-WQH (KSC), 2017 U.S. Dist. LEXIS 100435 (S.D. Cal. June 28, 2017)

("In camera review is not a routine procedure that is available upon request."; "Nor is there anything in the record as presented to indicate there is a factual basis to justify the expenditure of the Court's limited resources to conduct an in camera review of a large number of documents just to verify that they are indeed privileged. Finally, for the reasons outlined above in previous sections, the confidential or privileged Korn/Ferry documents do not appear to be particularly important to resolving the matters at issue in the case. Therefore, even if plaintiff made a timely request for in camera review, the Court would have denied the request for failure to make the required showing of need.")

Case Date	Jurisdiction	State	Cite Checked
2017-06-28	Federal	CA

Chapter: 59.402

Case Name: In re NC Swine Farm Nuisance Litig.: Anderson v. Murphy-Brown, LLC, Master Case No. 5:15-CV-13-BR, 2017 U.S. Dist. LEXIS 81572 (E.D.N.C. May 26, 2017)

(finding that defendants had properly logged and withheld documents, and that no in camera review is necessary; "[T]he privilege log sufficiently demonstrates that counsel were included on the email for the purpose of receiving information to provide a legal opinion and mere speculation that the purpose was business and not legal does not justify in camera review.")

Case Date	Jurisdiction	State	Cite Checked
2017-05-26	Federal	NC

Chapter: 59.402

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)

("Plaintiffs express concern that Fluidmaster was copying Carroll on communications to allow it to assert the attorney-client privilege in instances where the privilege would not otherwise apply. That is not the impression the Court gets from reviewing these document entries assuming the document descriptions are accurate. Plaintiffs' suspicions do not rise to the level of concrete facts that would justify the wholesale in camera review of all communications between Carroll and Fluidmaster employees about the settlement of claims which is ultimately what Plaintiffs want to accomplish here.")

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

Comment:

key case

Chapter: 59.402

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

("'The Court is giving Fluidmaster the option to submit the documents for in camera review but not requiring that it do so at this time. On the present record, it is not clear that the Court needs to review these documents in camera to determine whether they are covered by the attorney-client privilege. . . . Whether or not Fluidmaster is correct as to the Court's ability to compel it to submit documents being withheld on a claim of privilege for in camera review, the Court is giving Fluidmaster the opportunity to do so here if it wants and if it believes that would advance its cause. If Fluidmaster does not want to do so with respect to these particular documents, then it is not obligated to do so at this time. The Court, though, reserves the right to order that any documents that Fluidmaster is withholding must be produced for in camera review if it believes it needs to review any documents in camera to rule on Fluidmaster's request for a protective order and/or that Plaintiffs would be prejudiced without that review.'")

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

Chapter: 59.402

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 addition, Fluidmaster's description of these documents on its privilege log is unhelpfully vague. Its descriptions vary from 'Information prepared by counsel re: Aggregate data relating to product liability claims'. . . to 'Document prepared in anticipation of arbitration or litigation re: Aggregate data relating to product liability claims for litigation strategy from outside counsel at Howrey'. . . to 'Document prepared in anticipation of arbitration or litigation re: Work product presentation prepared by Joanne Lichtman (Outside Counsel) of Howrey providing status and summary of claims; Aggregate data relating to product liability claims for use in litigation strategy.'. . . Neither the Court nor Plaintiffs can draw an accurate picture of these documents or what they may contain based on these descriptions. Plaintiffs argue that these documents are nothing more than aggregate claims data that are not protected from production in any event. Fluidmaster, on the other hand, argues that even if the documents contain aggregate claims data, they still are protected by the attorney-client privilege and work product doctrine because of the way in which the documents were created and communicated to counsel. The Court does not have enough information on this record to determine which party has the better argument.'"; "Plaintiffs say the only way the Court can decide whether these documents should be produced is by reviewing them in camera. That very well may be true. A first step, though, is for Fluidmaster to provide the basic information that is missing from its privilege log in terms of who created the documents and to whom they were communicated, along with a better description of what the documents contain and the context in which the were created. As noted above, Fluidmaster also has the option of producing the documents for in camera review if it believes that would advance its cause. In the Court's view, however, production of a large stack of spreadsheets for the Court's review in camera without additional information about context that would assist the Court and Plaintiffs in evaluating the applicability of any claimed privilege would not be helpful in and of itself. It may be, however, that Plaintiffs are correct that the only way the Court properly can evaluate these documents is by reviewing them in camera and the Court can cross that bridge if and when necessary."; "Accordingly, if Fluidmaster can correct the deficiencies noted with respect to its privilege log, it should do so by November 22, 2016. If Fluidmaster wants to submit the documents for in camera review, it should do so within the same period of time.")

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

Chapter: 59.402

Case Name: Smith v. Washington, Case No. C14-5974 RBL-JRC, 2016 U.S. Dist. LEXIS 120938 (W.D. Wash. Sept. 7, 2016)

(using Zolin standard in a civil case, ultimately concluding that the court would not review withheld documents in camera; "Once a party asserting the privilege makes a prima facie showing of privilege, the Court must engage in the two-stage Zolin test prior to ordering in camera review. See United States v. Zolin, 491 U.S. 554, 572, 109 S. Ct. 2619, 105 L. Ed. 2d 469 (1989)."; "The Ninth Circuit explained in In re Grand Jury Investigation that the use of the Zolin process was appropriate for challenges to privileged materials in civil cases. In re Grand Jury Investigation, 974 F.2d 1068, 1074 (9th Cir. 1992)."; "Other than a generalized distrust of the state privilege log and redacted documents provided to them, plaintiffs have failed to meet their burden of showing that an in camera review of privileged documents is justified. Plaintiffs have not provided any relevant nonprivileged evidence in opposing the privilege asserted by defendants. The Court has reviewed the privilege log and redacted documents attached to defendants' response. . . . These documents do not reveal any attempt to assert privilege over non-privileged documents. Therefore, the Court, in its exercise of discretion, declines to conduct the requested in camera review.")

Case Date	Jurisdiction	State	Cite Checked
2016-09-07	Federal	WA

Chapter: 59.402

Case Name: Ferring Pharmaceuticals Inc. v. Braintree Laboratories, Inc., Civ. A. No. 13-12553-NMG, 2016 U.S. Dist. LEXIS 102545 (D. Mass. Aug. 3, 2016)

("Her decision to resolve the issues without first inspecting the disputed documents in camera is also not erroneous. Ferring's reliance upon Kerr v. United States Dist. Court for N. Dist. of Cal., 426 U.S. 394, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1978) is misplaced because that decision simply found that in camera review was a 'highly appropriate and useful' means of resolving claims of governmental privilege. 426 U.S. at 405-06. Kerr does not require in camera review as a mandatory means of adjudicating all claims of privilege in all cases.")

Case Date	Jurisdiction	State	Cite Checked
2016-08-03	Federal	MA

Chapter: 59.402

Case Name: Toyo Tire & Rubber Co., Ltd. v. Atturo Tire Corp., Case No. 14 C 206, 2016 U.S. Dist. LEXIS 72756 (N.D. Ill. June 3, 2016)

("As such, the communications were transmitted for the purpose of legal advice, and this Court need not engage in an in camera review of those materials to reach this conclusion.")

Case Date	Jurisdiction	State	Cite Checked
2016-06-03	Federal	IL

Chapter: 59.402

Case Name: DP Pham LLC v. Cheadle, 200 Cal. Rptr. 3d 937, 941, 941-42, 942 (Cal. Ct. App. 2016)

("After reviewing copies of the communications, the trial court concluded they were not privileged based on their content. A court, however, may not review the contents of a communication to determine whether the attorney-client privilege protects that communication. The attorney-client privilege is an absolute privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit. The privilege attaches to all confidential communications between an attorney and a client regardless of whether the information communicated is in fact privileged. Accordingly, it is neither necessary nor appropriate to review a communication to determine whether the attorney-client privilege protects it."; "Once the proponent makes a prima facie showing of a confidential attorney-client communication, it is presumed the communication is privileged and the burden shifts to the opponent to establish waiver, an exception, or that the privilege does not for some other reason apply. The opponent may not rely on the communication's content to make that showing."; "Here, the trial court relied exclusively on the content of the communications to conclude they were not privileged and Pham points to no other evidence to support the trial court's determination. The court also concluded the communications fell with certain statutory exceptions the Evidence Code establishes for the privilege. As explained below, we conclude the trial court erred in applying these statutory exceptions because to do so here would expand them well beyond their intended scope." (footnote omitted))

Case Date	Jurisdiction	State	Cite Checked
2016-04-15	Federal	CA	B 8/16

Chapter: 59.402

**Case Name: United States ex rel. Fisher v. Ocwen Loan Servicing, LLC, Case No. 4:12-CV-543, 2016 U.S. Dist. LEXIS 32967, at *10-11 (E.D. Tex. Mar. 15, 2016)**

("At this time, the Court will not grant an in camera inspection where, as in the present case, there are potentially hundreds of communications that would require review. To inspect the documents at issue would constitute a great and unnecessary expenditure of judicial resources. However, the Court will enforce the terms of Rule 26. Therefore, the Court orders Relators to revise their privilege log entries to include each element of a claimed privilege or protection so that the Court and Defendants are able to 'test the merits' of the privilege itself. Relators should reveal the identity and position of all senders/creators and addressees/recipients. Additionally, Relators should provide a description of each communication or document withheld with sufficient detail that Defendants can readily assess the claim of privilege." (footnote omitted))

Case Date	Jurisdiction	State	Cite Checked
2016-03-15	Federal	TX	B 8/16

Chapter: 59.402

**Case Name: United States ex rel. Fisher v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2016 U.S. Dist. LEXIS 32910, at *10-11 (E.D. Tex. Mar. 15, 2016)**

Case Date	Jurisdiction	State	Cite Checked
2016-03-15	Federal	TX	B 8/16

Chapter: 59.402

**Case Name: United States ex rel. Fisher v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2016 U.S. Dist. LEXIS 32910, at *10-11 (E.D. Tex. Mar. 15, 2016)**

Case Date	Jurisdiction	State	Cite Checked
2016-03-15	Federal	TX	B 8/16

Chapter: 59.402

**Case Name: 2002 Lawrence R. Buchalter Alaska Tr. v. Phil. Fin. Assurance Co., No. 12 Civ. 6808 (KMK) (PED), 2016 U.S. Dist. LEXIS 31771, at *8 n.3 (S.D.N.Y. Mar. 11, 2016)**

("The Court directed plaintiff to submit the subject e-mails to chambers to facilitate any in camera inspection deemed appropriate, and plaintiff complied. No party has requested in camera review, however, and the Court rules without reference to the documents provided.")

Case Date	Jurisdiction	State	Cite Checked
2016-03-11	Federal	NY	B 8/16

Chapter: 59.402

Case Name: United States ex rel. Hamrick v. Glaxosmithkline LLC, 814 F.3d 10, 16 (1st Cir. 2016)

("We review the district court's decision not to conduct an in camera review of the documents on GSK's privilege log for abuse of discretion.")

Case Date	Jurisdiction	State	Cite Checked
2016-02-17	Federal		B 8/16

Chapter: 59.402

Case Name: Ingenco Holdings, LLC v. Ace American Insurance Co., Case No. C13-543RAJ, 2014 U.S. Dist. LEXIS 170357 (W.D. Wash. Dec. 8, 2015)

("Ingenco's motion invokes Cedell v. Farmers Ins. Co., 176 Wn.2d 686, 295 P.3d 239 (Wash. 2013), to either compel production of every document in ACE's claim file for which it invoked the attorney-client privilege or work product doctrine, or to compel the court to review those documents in camera to determine which are discoverable."; "[T]hat every federal court to consider the issue has held that the in camera review mandate of Cedell does not apply in federal court.")

Case Date	Jurisdiction	State	Cite Checked
2015-12-08	Federal	WA

Chapter: 59.402

Case Name: Armouth International, Inc. v. Dollar General Corp., No. 3:14-0567, 2015 U.S. Dist. LEXIS 148784 (M.D. Tenn. Nov. 2, 2015)

(finding that the attorney-client privilege protected communications to and from a company's in-house lawyer also serving as its compliance director; "In Zolin [U.S. v. Zolin, 491 U.S. 554, 570-71, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989)], the Supreme Court delineated the standard for determining whether an assertion of attorney-client privilege warrants an in camera review by the presiding judge. While the Supreme Court applied this standard specifically to the crime-fraud exception, this Court finds that the standard is appropriate in this matter to evaluate whether the documents requested for in camera review may reveal evidence of business advice that is not shielded from discovery by the attorney-client privilege."; "[A]s Dollar General states in its response, the decision to release the hold was made by Mr. Stephenson precisely because it required the legal opinion of an attorney. . . . Furthermore, even if Mr. Stephenson had considered some aspects of business in making his decision, such consideration does not necessarily remove the coverage afforded by the attorney-client privilege. Dollar General correctly notes that district courts have held that the 'mere fact that business considerations are weighed in the rendering of legal advice does not vitiate the attorney-client privilege."; "The privilege log indicates that this email consisted of Mr. Vasos 'relaying Rob Stephenson's legal advice related to the non-conforming scrubs' to Mr. Gatta. . . . This appears to match the substance of the email's content prior to the redacted portion, which concludes with, 'now for the bad news. Their label does not match the product.'. . . It is logical that the remainder of the email would pertain to Mr. Stephenson's legal advice regarding the nonconforming goods."; "In camera review is not appropriate simply because a party objects to the assertions of privilege. Zolin, 491 U.S. at 571-72. Despite Armouth's conjecture regarding Mr. Stephenson's role in releasing the hold on Armouth's merchandise, the Court finds no evidence that warrants an in camera review of the emails withheld or redacted by Dollar General. Engaging in such a procedure 'would constitute. . . An expenditure of judicial resources that could be justified only by an implicit determination that the representations made by defense counsel are untrue.' Guy v. United Healthcare Corp., 154 F.R.D. 172, 176 (S.D. Ohio 1993). The Court finds no basis for any such determination in this matter."; "The Court agrees with Dollar General that Armouth's blanket request for review of the entire privilege log suggests a 'fishing expedition,' as opposed to a specific request to discover relevant information. The Court also notes that granting Armouth's motion, which broadly requests a review of all of Dollar General's emails withheld based on attorney-client privilege, would open the floodgates and allow any party to demand an in camera review of the opposing party's attorney-client communications so long as the former expressed an unfounded suspicion that counsel for the latter had misrepresented the basis for the privilege claim. For the these reasons, Armouth's motion is DENIED.")

Case Date	Jurisdiction	State	Cite Checked
2015-11-02	Federal	TN

Chapter: 59.402

Case Name: In re Grand Jury Proceedings, No. 15-1555, 2015 U.S. App. LEXIS 15911 (1st Cir. App. Sept. 4, 2015)

("Under those circumstances, there was no need for a privilege log to address that general question, and appellant's failure to provide a privilege log in opposition to the motion to compel did not deprive appellant of the right to contest the government's overall crime-fraud theory."; "The failure to produce a privilege log (or otherwise identify particular documents subject to the privilege) to support the need for in camera inspection waived appellant's right to seek in camera inspection."; "Neither appellant nor appellant's attorneys ever produced a privilege log in response to the motion to compel nor otherwise complied with the requirements of Rule 45. Under this court's cases, that constitutes a waiver of the request for in camera review.").

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

Chapter: 59.402

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

("'As the Court stated during the July 10, 2015 hearing on this motion, Homeward has not shown that it has a substantial need for the privileged [protected by the work product doctrine] disclosed statements, and therefore, the Court will not conduct an in camera review.'")

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

Chapter: 59.402

Case Name: Tate & Lyle Americas, LLC v. Gatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265 (C.D. Ill. July 31, 2015)

("As noted above, Plaintiff's Supplement argues that since its Motion (#60) was filed, Defendant has produced numerous additional documents previously withheld as privileged, and that the voluntary release of these unrelated documents suggests that Defendant has improperly labeled the numerous documents as privileged. Plaintiff asks the Court to perform a large scale in camera review of documents identified in Defendant's privilege log and require Defendant to pair each of the documents that have been disclosed with the description of each document from log or logs describing them."; "The Court declines Plaintiff's request to perform a large scale in camera review of the remaining documents."; "Further, Defendant's Response to the Supplement details the process Defendant took to pair the documents with the descriptions included in the initial and amended privilege logs. Therefore, there is no need for Defendants to repeat this action."; "Before seeking court action, Rule 37 of the Federal Rules of Procedure directs a party to show that it 'has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.' Fed. R. Civ. P. 37(a)(1). The Court has confidence that the parties can resolve any remaining discovery disputes concerning documents included in the second and third privilege logs without court intervention.")

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

Chapter: 59.402

Case Name: Stryker Corporation v. Ridgeway, Case No. 1:13-CV-1066, Case No. 1:14-CV-889, 2015 U.S. Dist. LEXIS 93741 (W.D. Mich. July 20, 2015)

(declining to conduct an in camera review; "A Magistrate Judge is not required to undertake an in camera inspection of items purportedly subject to the attorney-client privilege simply because such review has been requested.")

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

Chapter: 59.402

Case Name: Plaza Insurance Company v. Lester, Civ. A. No. 14-cv-01162-LTB-CBS, 2015 U.S. Dist. LEXIS 72438, 2015 U.S. Dist. LEXIS 72438 (D.D.C. June 4, 2015)

("'While in camera review may be warranted in some cases, it is a time-consuming exercise that diverts the court from other equally pressing matters. . . . Before asking the court to conduct an in camera review, parties and their counsel should take all reasonable steps to insure that the court's time is used efficiently by narrowing the in camera review to those documents that are truly at issue. Counsel can, in the first instance, achieve that goal by agreeing to procedures that will generate a privilege log that meets the requirements of Fed. R. Civ. P. 26(b)(5)(A), but is also reasonable and proportionate to the needs of the case.'")

Case Date	Jurisdiction	State	Cite Checked
2015-06-04	Federal	DC

Chapter: 59.402

Case Name: Howard v. Tepedino, Case No. 5D15-202, 2015 Fla. App. LEXIS 7288 (Fla. App. 5d May 15, 2015)

("Our review of the record before us reveals that there was no waiver of the attorney-client privilege. Because there was no waiver, there is no legitimate basis to order production of the documents protected by the attorney-client privilege for an in camera inspection. We, therefore, conclude that the trial court's order departs from the essential requirements of the law resulting in irreparable harm to the Petitioner. We quash the order under review and remand this case to the trial court for further proceedings.")

Case Date	Jurisdiction	State	Cite Checked
2015-05-15	State	FL

Chapter: 59.402

Case Name: Anderson v. Branch Banking and Trust Co, Case No. 13-CV-62381-BLOOM/VALLE, 2015 U.S. Dist. LEXIS 63312 (S.D. Fla. May 14, 2015)

("Nor will the Court grant Defendant's motion (or Plaintiffs' invitation) for an in camera review at this time. . . . Accordingly, Plaintiffs shall properly review the challenged Rappaport documents and provide Defendant with a revised privilege log that complies with this Order.")

Case Date	Jurisdiction	State	Cite Checked
2015-05-14	Federal	FL

Chapter: 59.402

Case Name: In re Lululemon Athletica Inc. 220 Litig., Consol. C.A. No. 9039-VCP, 2015 Del. Ch. LEXIS 127 (Del. Ct. Chan. April 30, 2015)

(analyzing the Garner doctrine and a common interest doctrine in connection with a retailer's investigation into the sale of its stock by the company's founder and CEO; "Plaintiffs urge me to review the Nicholas Email in camera. In camera review, however, is unnecessary here because the nature of the Nicholas Email and the related privilege log description of it do not give me a reason to doubt the privileged nature of that communication.")

Case Date	Jurisdiction	State	Cite Checked
2015-04-30	State	DE

Chapter: 59.402

**Case Name: Swoboda v. Manders, Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015)**

June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date	Jurisdiction	State	Cite Checked
2015-04-27	Federal	LA

Comment:

key case

Chapter: 59.402

**Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015)**

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

Comment:

key case

Chapter: 59.402

**Case Name: Apple Inc. v. Samsung Electronics Co., Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015)**

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

Comment:

key case