ABA Journal Blawg 100 Nominations 1

Dear Readers:

Thank you for subscribing to or simply reading my posts on Presnell on Privileges. I am grateful that thousands of readers visit my blog each month, and that several of you have provided favorable feedback and shared mPoP Logoy posts via LinkedIn, Twitter, and Facebook.

The ABA is soliciting nominations of legal blogs for inclusion in its 8th Annual ABA Journal Blawg 100. I respectfully ask that you consider nominating Presnell on Privileges for this distinction.

You may complete the short nomination form here. The nomination process ends at 5:00 p.m. EDT on Friday, August 8, 2014.

The ABA seeks not only the blog’s name, but a short (500 characters max) commentary on what you appreciate about the blog. Does the blog provide complete coverage in an area (evidentiary privileges) that few others discuss in detail? Identify and describe timely case law updates on significant privilege decisions? Provide independent analysis on court decisions and offer practical tips on privilege-related issues? If so, please let the ABA know.

And of course feel free to nominate other blogs as I am doing. I am prohibited from nominating my own blog—and would not do so even if permissible—so I will appreciate your nomination.

Thank you for your consideration and for following my blog.

Todd Presnell

Significant D.C. Circuit Decision for Attorney–Client Privilege and Internal Investigations Reply

The D.C. Circuit Court of Appeals issued a significant decision upholding the attorney–client privilege for internal investigations conducted at in-house counsel’s direction.  The Court ruled that the privilege applied even where governmentConfidential Report Blue Tone Brochure regulations required the investigation and non-attorneys conducted the employee interviews. And in a move that will please in-house counsel, the Court rejected a narrow view of the primary purpose test for dual-purpose communications. In re Kellogg, Brown & Root, Inc., 2014 WL 2895939 (D.C. Cir. June 27, 2014).  You may read the opinion here.

An employee of Kellogg, Brown & Root, Inc., a Department of Defense contractor, filed a qui tam action asserting that KBR defrauded the government by inflating its DoD invoices and receiving improper kickbacks.  DoD regulations require defense contractors to maintain policies triggering internal investigations when misconduct claims arise.

When apprised of the potential wrongdoing, KBR’s in-house counsel directed an internal investigation pursuant to KBR’s Code of Business Conduct.  Non-attorneys working under the in-house lawyer’s direction conducted the employee interviews, and KBR required its employees to sign confidentiality agreements—but these agreements did not mention the attorney–client privilege.

The employee later sought production of the internal investigation report.  The district court rejected KBR’s privilege argument after finding that KBR conducted the internal investigation because of its corporate policy and DoD regulatory requirements, and not for the “primary purpose” of providing legal advice.  The district court held that the primary purpose test shielded internal investigation reports only where the company would not have conducted the investigation “but for” the purpose of seeking legal advice.

The D.C. Circuit reversed.  And in ruling that the attorney–client privilege protected KBR’s internal investigation, the Court made three critical holdings.

First, the Court rejected the notion that the privilege did not apply because non-attorneys conducted the employee interviews.  The Court held that the privilege applies so long as the company’s legal department directed the investigation, stating that “communications made by and to non-attorneys serving as agents of attorneys in internal investigations are routinely protected by the attorney–client privilege.”

Second, the Court held that the privilege applied even though KBR did not inform its employees of the interview’s purpose and that the confidentiality agreement signed by the employee did not mention that the discussions were privileged.  The Court refused to require companies to “use magic words to its employees in order to gain the benefit of the privilege for an internal investigation,” and held that KBR satisfied its burden by telling the employees that the interviews were highly confidential and not to discuss the matter without authorization from KBR’s General Counsel.

Third, the Court rejected a narrow interpretation of the primary purpose test for dual-purpose communications and adopted a new, broader standard. Noting “evident confusion” about this test and stating that the district court’s “but for” test was “not appropriate for attorney–client privilege analysis,” the Court followed the Restatement (Third) of the LawDC Circuit Governing Lawyers § 72, and articulated this test: “Was obtaining or providing legal advice a primary purpose of the communication, meaning one of the significant purposes of the communication?”

In other words, the Court rejected the sole causation test in favor of a broader test that, “sensibly and properly applied, … boils down to whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.”

PoP Analysis

The KBR decision represents a significant victory for in-house lawyers overseeing internal investigations.  With more governmental regulations mandating corporate investigations and more corporations implementing mandatory investigation policies, it seems short-sighted that these events would vitiate, rather than strengthen, the attorney–client privilege.

And the Court’s rejection of the narrow “but for” primary purpose test runs contrary to several recent decisions concerning dual purpose communications.  In one decision, a state court adopted a heightened burden for in-house counsel—for a dual-purpose communication containing an equal amount of legal and business advice, the in-house lawyer has to “clearly show” that the legal purpose outweighs the business purpose for the privilege to apply.  See my blog post, GC’s “Talking Points” Memo to CEO Not Privileged—Leads to a Punitive Damages Verdict, for further discussion of this case. And for a discussion of how other courts apply the “because-of” and “primary purpose” standards in these situations, see my prior post titled Dual-Purpose Emails to In-House Counsel: Are They Privileged?

SAR Privilege Protects U.S. Bank’s Internal Investigation Policies and Procedures Reply

In a broad interpretation of the Suspicious Activity Report (SAR) privilege, a Washington state appellate court ruled that the privilege precludes disclosures of a bank’s policies and procedures for investigating suspicious activity and its specific internal investigations into wrongful conduct. Norton v. U.S. Bank Nat’l Ass’n, 324 P.3d 693 (WaSAR Reportsh. Ct. App. 2014). You may read the opinion here.

A U.S. Bank employee left to start an investment company, which later turned out to be a Ponzi scheme using several accounts at U.S. Bank. The plaintiffs invested in the Ponzi scheme, lost $11 million, and later sued U.S. Bank for breaches of fiduciary duty, fraud, and several other causes of action.

In discovery, the plaintiffs sought all documents related to U.S. Bank’s internal investigation and documents, including policies, generally related to U.S. Bank’s internal monitoring and investigations to detect money laundering. U.S. Bank resisted the discovery on grounds that the SAR privilege protects general and specific internal investigation documents from civil discovery. The Washington appellate court agreed and reversed the trial court’s denial of the privilege.

The SAR privilege arises from the Bank Secrecy Act, 31 U.S.C. § 5318, and its implementing regulations. The confidentiality provisions of 12 CFR § 21.11(k) constitute an “unqualified discovery and evidentiary privilege.” The SAR privilege covers not only the Suspicious Activity Report, but also any information that would reveal whether such a report exists.

In Norton, the state appellate court held that simply redacting explicit references to the existence of a SAR is insufficient to enforce the privilege. The court interpreted the SAR privilege broadly, finding that federal statutes require banks to establish internal policies, procedures, and controls to detect and report money laundering, and that these policies are intertwined with banks’ obligation to report suspicious activity. As such, the court ruled that “discovery into these matters will produce documents suggesting” that the bank either filed or considered filing a Suspicious Activity Report.

The court held that U.S. Bank was not required to produce its internal investigation policies and procedures generally or with specific reference to the Ponzi scheme perpetrated by its former employee. According to the court, “internal reports and methods used to investigate suspicious activity are precisely the type” of supporting documentation that the SAR privilege covers.

Selective Waiver Doctrine Rejected in FCA Case: K–Mart Must Disclose Work Product Data to Relator Reply

In a case that should teach us all a lesson, the USDC for the S.D. of Illinois ruled that K–Mart waived its work product protections over attorney-created data when it disclosed the data to HHS investigators. The Court rejected K–Mart’s selective waiver argument and compelled it to produce the data in a False Claim Act civil action. United States v. Kmart Corp., 2014 WL 2218758 (S.D. Ill. May 29, 2014).Cooperation and privilege You may read the opinion here.

Risky Decision?

In 2009, the OIG for the Dep’t of Health and Human Services conducted an investigation into K–Mart’s alleged improper Medicare claims. In response to an OIG subpoena, K–Mart produced a substantial amount of documents culled from 25 custodians, and its legal team also created and produced a subset of transaction data in a simpler format.  K-Mart and HHS entered into a confidentiality agreement prior to the production, but the agreement did not specifically address attorney–client privilege or work-product concerns.

In the False Claim Act action, K–Mart produced the custodial documents, but refused to produce the subset of data on grounds that the work-product doctrine protected this attorney-created subset from production.

Selective Waiver?                                                 

K–Mart urged the Court to apply the selective waiver doctrine, arguing that it encourages corporations to cooperate with government investigators. While finding cooperation laudable, the Court “most pointedly” reminded K–Mart that “the attorney client privilege and work product doctrines do not exist to foster full and frank conversation with the government.”

The Court noted that the majority of federal circuits reject the selective waiver doctrine, and found that K–Mart should have known that producing the attorney-created data to the government waived any work-product protections. In fairly strong language, the Court said that “it is incumbent upon attorneys anticipating or involved in litigation to take appropriate steps to closely guard confidential information” and that “K–Mart should not be permitted to ‘pick and choose’ to which adversary it waives work product protection and which adversary does not.”

The Court commented that “disclosure of protected attorney work product is a strategic litigation decision” and found that K–Mart made a strategic calculation that the benefit of appearing cooperative with a government investigation outweighed the risk of waiver.

Would a Confidentiality Agreement Work?

The Court noted one federal-court decision, Lawrence E. Jaffee Pension Plan v. Household Int’l, Inc., 244 FRD 412 (N.D. Ill. 2006), held that the defendant did not waive work-product protections upon disclosure to the SEC because it had a confidentiality agreement with the SEC stating that disclosure did not waive the privilege and work-product protections.

But the K–mart case is different. While K–Mart secured a confidentiality agreement with HHS, it did not mention privilege or work-product protections. And the Court indicated that, even if the agreement mentioned those protections, the agreement would not affect its decision.

PoP Analysis

This case illustrates the peril companies under investigation face when responding to government subpoenas or document requests. While some federal statutes provide selective waiver protections in financial services investigations, the majority view under federal common law is that there is no selective waiver doctrine—disclosure of documents to an investigative body waives the privilege in existing or subsequent civil actions. And while it is certainly better to have a confidentiality agreement with the government agency, those agreements may not withstand the waiver tide.

Outside Counsel Forwards Privileged Email to Adversary—Court Finds No Waiver Reply

The USDC SDNY issued an instructive roadmap in ruling that an outside lawyer’s forwarding a privileged email to adversary counsel did not constitute privilege waiver. Andmistake concepts, with oops message on keyboard. the ruling avoided a potentially larger disaster—disclosure of other privileged documents under the subject-matter waiver doctrine. Rank Group Ltd. v. Alcoa, Inc., 2014 WL 1883505 (SDNY May 9, 2014). You may read the opinion here.


Rank Group purchased Alcoa’s Chilean-based consumer packaging business, and later sued Alcoa seeking indemnification for a $10M tax liability from the Chilean government. During the transaction process, one of Rank’s outside lawyers forwarded a privileged email to Alcoa’s outside lawyer regarding the Chilean tax authority’s treatment of a loan repayment.

In the post-transaction litigation, Alcoa claimed that, by voluntarily sending the email to Alcoa counsel, Rank’s lawyer waived the privilege, and it sought production of all communications between Rank and its lawyers regarding the loan repayment and associated tax consequences.

No Authority to Waive

Rank sprang to damage-control action, and argued that its outside lawyer had no authority to unilaterally waive the company’s privilege. In support, Rank submitted affidavits from the outside lawyer’s partner and the company’s regional financial controller. Both Rank representatives stated that Rank never authorized its outside counsel to share the privileged email with Alcoa and that it considered confidential all communications between Rank and its outside lawyer.


The Court, applying New York law, stated that the party asserting the corporate attorney-client privilege has the burden of demonstrating the privilege’s application, including that the communication (1) was between client and its counsel, (2) was and remained confidential, and (3) was made for purposes of rendering legal advice.

The burden also requires the party to show a lack of privilege waiver. The non-waiver burden means that the party asserting the privilege

 must show that [its] disclosure was unauthorized and therefore did not result in waiver of the attorney-client privilege.

The Court held that Rank met its non-waiver burden. Both its outside counsel and internal controller verified that its lawyer’s forwarding the privilege email was “unauthorized and inadvertent.” The Court found that these self-serving affirmations “are enough to carry the burden of showing that the disclosure was unauthorized.” And because of this non-waiver finding, the Court did not invoke the subject-matter waiver doctrine.

PoP Analysis

Rank and its counsel avoided a potentially serious consequence arising from the subject-matter waiver doctrine. When a party voluntarily discloses a privileged communication, the subject-matter waiver doctrine extends this waiver to all other communications pertaining to the same subject matter. The doctrine’s purpose is to prevent a party from selectively disclosing favorable information while simultaneously withholding unfavorable information under the cloak of privilege.

The Court’s decision provides a roadmap that companies should follow when someone inadvertently discloses its privileged communications to third parties. The corporate attorney-client privilege belongs to the company, not its executives or its outside lawyers, and only those authorized to waive the privilege may do so. Here, Rank proved—through two affidavits—that its outside lawyer had no authority to waive the privilege. Lawyers faced with an inadvertent privilege disclosure should follow Rank’s lead.

Federal Privilege Law Governs Mediation Evidence for Federal & State Claims against “America’s Toughest Sheriff” Reply

Do federal courts apply federal or state privilege law in cases involving federal and supplemental state-law claims? The 9th Circuit ruled that federal privilege law governs even where the privileged matter relates to both federal and state claims. Wilcox v. Arpaio, 2014 WL 2442531 (CTA9 June 2, 2014). You may read the opinion here.

But thearpaio Court sidestepped two important issues. Does the 9th Circuit recognize a federal common law mediation privilege? And does federal privilege law apply in federal-question cases where the privileged evidence relates solely to the state-law claim?

America’s Toughest Sheriff Settles

The plaintiffs, Maricopa County (Arizona) supervisors, brought federal (42 U.S.C. § 1983) and state-law claims against “America’s Toughest Sheriff,” Joe Arpaio, and the County. As the plaintiffs were two of several plaintiffs with similar claims, the County established an alternative dispute resolution program and appointed retired judge Christopher Skelly to help resolve the claims.

Following mediation, Judge Skelly sent an email to plaintiffs’ counsel confirming a $975,000 settlement “subject to any further approvals deemed necessary by the parties.” You may read the confirming email here. When the County argued there was no settlement, the plaintiffs moved to enforce and the district court, following an evidentiary hearing, granted the motion.

9th Circuit Rules

On appeal, the County argued that the district court erred by admitting Judge Skelly’s email, claiming that Arizona’s mediation privilege precluded the email’s admissibility. The 9th Circuit noted that state contract law governs the issue whether the parties reached a settlement, but that, where the privilege question relates both to federal and state claims, federal rather than state privilege law applies.

This decision comports with the almost universal treatment of this conflict-of-privilege-law issue. Federal privilege law applies where a court entertains a case under federal-question jurisdiction, even with the presence of supplemental state-law claims.

Unanswered Questions

The Court expressly refused to answer “whether, in federal question cases, state or federal privilege law governs the admissibility of evidence that relates exclusively to state law claims.” The answer is likely that federal common law applies, and you can read more about this conflict-of-privilege-law issue in my article The Application of Conflict of Laws to Evidentiary Privileges.

The Court also ruled that the County waived the mediation privilege by not asserting it at the lower-court level, and therefore declined to “determine whether a mediation privilege should be recognized under federal common law and, if so, the scope of such a privilege.”  See my posts Court Takes Broad View of Mediation Privilege and Is Mediation Privilege Absolute or Qualified? for a discussion of some of these issues.  The Court’s ruling is unfortunate, as the federal common law mediation privilege, prevalent in some but not nearly all federal district courts, needs circuit-court attention and refinement.

Alas, we must await another day for these answers.

My thanks to Phoenix lawyer Patrick Gorman of the Jones, Skelton & Hochuli firm for alerting me to this opinion.

Is There a Parent-Child Privilege? Reply

State and federal law recognizes some form of a spousal privilege that precludes spouses from revealing communications between the two.  The spousal privilege’s purpose is to foster the marital relationshipteacher woman mother teenager girl consoling discussion  in silh that would surely deteriorate if one spouse revealed the other’s confidential communications.  But what about an evidentiary privilege that precludes discovery or testimony about a child’s confidential communications with a parent?  Would the same purpose–promoting the parent-child relationship–not apply?

In her excellent article, The Mother’s Day Column: Parent-Child Evidentiary Privilege in Montana?, Montana Lawyer, p. 13 (May 2014), Professor Cynthia Ford tells us that most state and federal courts reject a parent-child evidentiary privilege.  Professor Ford identifies a few federal district court opinions adopting the privilege, but notes that these are clearly in the minority.  And a practical issue may prevent this issue reaching decision points–even with no privilege, most lawyers choose not to call parents to testify against their children (or vice versa) because of the assumption that they will likely refuse to testify truthfully.

While the article limits its case review to Montana and the 9th Circuit, it is worth the read for lawyers supporting or opposing the privilege’s adoption.  My thanks to Professor Ford and the Montana Lawyer for granting permission to link the article in this post.

GC’s “Talking Points” Memo to CEO Not Privileged—Leads to a Punitive Damages Verdict 2

In a case of first impression, the New Mexico Court of Appeals upheld a lower court’s rejection of the attorney-client privilege for a “talking points” memorandum authored by a hospital corporation’sExplaining idea General Counsel. The memo contained legal and business advice concerning two physicians’ employment separations, and the court ruled that the legal/business advice balancing weighed in favor of business advice, vitiating the privilege.

The court adopted a heightened standard for in-house lawyers, admitted the memo into evidence, and rendered a compensatory and punitive-damages verdict against the hospital. Bhandari v. Artestia Gen. Hosp., 317 P.3d 856 (N.M. Ct. App. 2013). You may access the opinion here.

Mixture of Business and Legal Advice

Dr. Chitra Bhandari sued VHA Southwest Community Health Corp. for breach of her employment contract. The hospital decided to terminate Bhandari’s husband, also an employed physician, for violating his contract and hospital policies. But the hospital wanted both physicians gone, and its General Counsel authored a memo to the CEO containing talking points for a meeting with both physicians where they would permit Dr. Bhandari’s husband to resign (rather than firing him) if she also agreed to resign.

The GC, who also carried the title of Senior Vice President, began his memo with this declaration: “CONFIDENTIAL SUBJECT TO ATTORNEY-CLIENT PRIVILEGE.” The memo contained talking points for the termination interview with Bhandari and her husband, and included a mixed discussion of the reasons for the termination of Bhandari’s husband and the reasons for also wanting Bhandari’s employment to end.

The trial court reviewed the memo and determined that the GC’s comments regarding Bhandari’s husband constituted legal advice, but his comments regarding Dr. Bhandari constituted business advice. Did the court make the right call?  Read the GC’s memorandum here and judge for yourself.

Courts Applies a Higher Standard

New Mexico courts had not previously defined the attorney–client privilege’s scope when an in-house counsel offers business and legal advice in the same communication. For a discussion of how other courts apply the “because-of” and “primary purpose” standards in these situations, see my prior post titled Dual-Purpose Emails to In-House Counsel: Are They Privileged?

The N.M. court adopted the primary purpose standard, stating that the privilege does not apply “if the primary purpose of a communication is to solicit or render advice on non-legal matters,” and that “an in-house counsel’s communications regarding business matters, management decisions, and business advice, which neither solicit or predominantly deliver legal advice, are not privileged.”

But the court went further. Noting that it had no specific standards by which to judge dual-purpose communications, the court recognized that some courts presume that an in-house attorney’s communication provides business advice. And if the court cannot determine whether the communication is primarily legal- or business-related, then the court should tilt the balancing scales towards business advice—

A court faced with a situation where the primary purpose of a communication is not clearly legal or business advice should conclude the communication is for a business purpose, unless evidence clearly shows that the legal purpose outweighs the business purpose.

This newly adopted standard represents a heightened burden for in-house counsel—for a dual-purpose communication containing an equal amount of legal and business advice, the in-house lawyer has to “clearly show” that the legal purpose outweighs the business purpose for the privilege to apply.


Applying this heightened standard, the court found that the GC’s memo, despite containing the “confidential and privileged” moniker, was “essentially a script for securing Bhandari’s resignation” which “would be convenient for the hospital from a business standpoint.” The court tipped the scales in favor of business advice and ordered the memo produced. And the trial court used the memo as a basis, following a bench trial, for awarding punitive damages against the hospital.

Privilege Protects CIA’s Bay of Pigs Study from Disclosure Reply

In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the deliberative process privilege protects from a FOIA request a 1973 CIA draft volume about the Bay of Pigs operation.  The draft, the last of a five-volume assessment by former CIA staff historian Dr. Jack Pfeiffer, detailed the author’s conclusions about the failed Cuban invasion. National Security Archives v. Central Intelligence Agency, 2014 WL 2053829 (D.C. Cir. May 20, 2014).  You may read the opinion here.

In April 1961,  President Kennedy authorized a CIA-led invasion of Cuba in an effort to diminish Cuba’s military in preparation for a hopeful democratic revolution and overthrow of Castro’s Communist regime.  The CIA provided air support while Cuban exiles launched from Guatemalan shores and landed on the banks of the Bay of Pigs.

The military operation failed and resulted in several casualties, including the lives of four American pilots.  President Kennedy addressed the pilots’ deaths, and the continued secrecy of their role in the operation, with these short remarks at a press conference.

In 1973, CIA staff historian Dr. Jack B. Pfeiffer drafted what became a five-volume treatise on the Bay of Pigs invasion.  The CIA later released Pfeiffer’s drafts of Volumes I through IV, but never released the fifth volume.  In connection with the 50th anniversary of the Bay of Pigs invasion, the non-profit group National Security Archives submitted a FOIA request for Pfeiffer’s fifth volume.  The CIA refused its production on grounds that the deliberative process privilege protected its disclosure, and defended that position when the requestor filed suit.

The issue reached the U.S. Court of Appeals.  In a 2-1 decision, the Court ruled that the deliberative process privilege covered Dr. Pfeiffer’s fifth-volume draft.  The deliberative process privilege, a branch of the general executive privilege, precludes from disclosure agency communications that are both predecisional and deliberative.  Noting a “concern that is as old as the Republic,” the Court recognized that the privilege permits agency employees to participate in the free, uninhibited exchange of ideas without fear that their discussions will later be disclosed.

The Court held that the deliberative process privilege protects all “draft” agency documents because they are necessarily predecisional and deliberative.  While drafts may become final versions released to the public, the drafts remain predecisional.  The Court rejected all of the requestor’s counterarguments, including that the privilege should not apply because there was no “final” fifth volume, the CIA released the other four volumes, the CIA identified no harm in the fifth volume’s release, and the passage of time (50 years) renders the privilege inapplicable.

With no final version of the last of his five-volume assessment, Dr. Pfeiffer’s draft will always remain a draft that the public will never see short of the CIA’s voluntary disclosure.

Article Argues for Adoption of Labor Relations Privilege Reply

Alaska recently adopted a “union relations privilege” in Peterson v. State, 280 P.3d 559 (Alaska 2012), but only a small minority of states recognize an evidentiary privilege precluding from discovery communications between an employee and her union representative.  Other courts, federal and state, reject a labor-relations privilege or cast uncertainty laborrelationsabout the privilege’s viability.

In his recent law review article, Bringing Jobs Back to the American People: The Need for a Recognized Labor Relations Privilege in the Aftermath of the Economic Recession, 31 Hofstra Labor & Employment Law Journal 237, Christopher M. Muniz seeks to remove the uncertainty by arguing for the legislative adoption of a labor-relations privilege.  You may read the article here.

Muniz notes that, because most employees pursue grievances with the assistance of non-attorney union representatives, the attorney-client privilege does not protect the employee-representative communications from discovery in subsequent litigation.  He argues:

If a labor relations privilege is not recognized, it could temper open and honest communication between employees and their union representatives and would fail to serve the public interest in promoting judicial economy.  A labor relations privilege promotes the deeply rooted public policy established in the NLRA to advance industrial harmony by allowing employees to freely organize, bargain collectively and engage in protected concerted activity.

Muniz’s article contains a draft statute outlining the scope and contours of a labor-relations privilege.  I recommend this thoughtful article to lawyers arguing for or against an evidentiary privilege in the labor relations context.  My thanks to Mr. Muniz and the Hofstra Labor & Employment Law Journal for permission to link this article in this post.