Peer-Review Privilege Not Preempted by Regulations Governing Institutional Review Boards Reply

In a case of first impression, an Alabama federal court ruled that federal statutes and regulations governing Institutional Review Boards do not preempt Alabama’s peer-review privilege. The court also ruled, in another first-impression issue IRB, that a University of Alabama-Birmingham IRB fell within the scope of the peer-review privilege. Looney v. Moore, 2014 WL 1877596 (N.D. Ala. May 12, 2014). You may review the decision here.

Institutional Review Boards

An Institutional Review Board is a committee established by a medical entity that approves, oversees, and reviews biomedical and behavioral research involving humans. IRBs essentially serve as ethical review boards overseeing clinical trials regarding, for example, new pharmaceuticals or medical devices. The HHS Secretary mandates that entities conducting biomedical or behavioral health studies implement an IRB. See 42 USC § 289.

IRB and Peer-Review Privilege

It may not appear that IRBs fall within the scope of a traditional peer-review privilege because it does not provide quality-assurance reviews of adverse medical-treatment events. Some courts have found that state peer-review privileges do not cover IRBs. See PJ v. Utah, 247 FRD 664 (D. Utah 2007); Esdale v. Am. Cmty. Mut. Ins. Co., 1995 WL 263479 (N.D. Ill. May 3, 1995); Konrady v. Oesterling, 149 FRD 592 (D. Minn. 1999).

Other courts have found the opposite–that state peer-review privileges cover IRBs. See, e.g., KD v. US, 715 F. Supp. 2d 587 (D. Del. 2010).

Alabama Peer-Review Privilege Covers IRBs

The Alabama federal court reviewed Alabama’s peer-review privilege, found at Alabama Code 22-21-8. The privilege covers confidential materials prepared by a “hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency.”

At issue in the Looney case was whether UAB’s IRB failed to obtain patient consent to a clinical research trial performed on premature infants with low birth weights. The court determined that UAB’s IRB qualified as a “quality assurance agency,” and, as such, the peer-review privilege covered the requested IRB documents.

No Preemption

The plaintiffs, however, argued that interpretation of the peer-review privilege’s scope was irrelevant because federal statutes and regulations governing IRBs preempted the privilege’s application. See 45 CFR Part 46.  In a matter of first impression in the 11th Circuit, the court reviewed the applicable federal statutes and regulations, and found no intent to preempt state peer-review privileges. Noting that “congressional and regulatory silence usually defeats a claim of preemption,” the court ruled that federal statutes and regulations do not preempt state peer-review privileges.

Who’s the Client? Former CEO Not Entitled to Company’s Privileged Documents Reply

In a case involving a terminated CEO’s surreptitious removal of privileged communications, the Nevada Supreme Court ruled that the CEO was not the client and had no legal basis  to keep and use the privileged information.  In so ruling, the Court rejected the collective-corporate-client exception to the attorney-client privilege.  Las Vegas Sands Corp. v. Eighth Judicial Dist. Ct., 2014 WL 3887779 (Nev. Aug. 7, 2014).  You may access the opinion here.

CEO Downloads Privileged Information

Las Vegas Sands Corporation, a Sheldon Adelson company, fired Steven C. Jacobs as its president and CEO.  On the day of termination, Jacobs downloaded approximately 40 gigabytes of emails and other communications, including communications protected by the attorney-client privilege.

privileged computerJacobs later filed a breach-of-employment-contract lawsuit against Sands and during discovery revealed his possession of the downloaded communications.  Sands filed a motion to compel the return of the privileged information, but the trial court ruled that Jacobs was in a “class of persons” to whom the collective-corporate-client exception applied.

Court Rejects Collective-Corporate-Client Exception

The corporate attorney-client privilege belongs to the corporation, and only the corporation’s officers and directors may waive the privilege.  Some courts, however, have recognized a so-called collective-corporate-client exception to the privilege.

This exception holds that the privilege belongs to the “collective corporate client,” meaning to the corporation and its officers and directors. Under this theory, the collective-corporate-client exception precludes a corporation from asserting its attorney-client privilege against a former officer or director.  This exception is analogous to the joint-client doctrine, which precludes clients of the same lawyer from asserting the privilege against each other.  For cases applying this exception, see Gottlieb v. Wiles, 143 FRD 241 (D. Colo. 1992); Kirby v. Kirby, 1987 WL 14862 (Del. Ch. July 29, 1987).

Jacobs asserted this exception, arguing that, as CEO, he authored or participated in several emails over which Sands now claims the privilege.  But the Nevada Supreme Court rejected the collective-corporate-client exception, finding that “[a]llowing a former fiduciary of a corporation to access and  use privileged information after he or she becomes adverse to the corporation solely based on his or her former fiduciary role is entirely inconsistent with the purpose of the attorney-client privilege.”

The Court found that allowing Jacobs to keep and use the privileged information “would have a perverse chilling effect on candid communications between corporate managers and counsel.”

PoP Analysis

The Nevada Supreme Court followed the “modern trend” of disallowing former officers or directors from using privileged information during litigation with their former employer.  See Commodity Futures Trading Comm’n v. Weintraub, 471 US 343 (1985); Milroy v. Hanson, 875 F. Supp. 646 (D. Neb. 1995), and Montgomery v. eTreppid Techs., LLC, 548 F. Supp. 2d 1175 (D. Nev. 2008).  And this trend makes sense–corporations own the privilege and decide when and whether to waive it.  Corporations may only act through their current officers and directors, and distinctive caselaw, including the US Supreme Court’s Weintraub decision, supports this concept.

NY Legislature Overturns “Thompson Rule”—Permits (Privilege) Objections at Third-Party Depositions Reply

In 2010, a New York Appellate Court issued a decision prohibiting lawyers for non-party witnesses from participating in, and lodging objections, including privilege objections, at depositions.  A PoP post discussed this case, Thompson v. NY state capitolMather, and its progeny, which you may read here.

The so-called Thompson Rule made little practical sense, and left third-party witnesses unprotected from asserting evidentiary privilege objections to a lawyer’s questions.  And, of course, disclosing privileged information in a deposition setting constitutes privilege waiver that compounds the problem.

Due to the work of several bar organizations, the New York State Assembly passed a Senate Bill (S5077) allowing third-party witnesses to assert objections during their depositions.  Governor Cuomo signed the legislation into law on September 23, 2014.  The statute provides:

Examination and cross-examination of deponents shall proceed as permitted in the trial of actions  in open  court, EXCEPT THAT A NON-PARTY DEPONENT’S COUNSEL MAY PARTICIPATE IN THE DEPOSITION AND MAKE OBJECTIONS ON BEHALF OF HIS OR HER CLIENT  IN THE  SAME MANNER AS COUNSEL FOR A PARTY.  When the deposition of a party is taken at the instance of an adverse party, the deponent may be cross-examined by his OR HER own attorney. Cross-examination need not be limited to the subject matter of the examination in chief.

The statute takes effect immediately, and now third-party witnesses in New York will not have to deal with the nonsensical Thompson Rule.

Attorney–Client Privilege Does Not Protect Secret Recording of Class–Counsel’s Client-Recruitment Meeting Reply

In a FLSA collective action case, a Tennessee federal court ruled that the attorney–client privilege did not protect a secret recording of class-counsel’s recruitment meeting. The privilege did not apply even though each attendee signed a registration sheet declaring that, “[b]y signing in, you acknowledge that you are here to seek legal advice concerning your right to overtime pay.”  Pierce v. Wyndham Vacation Resorts, Inc., 2014 WL 4748309 (E.D. Tenn. Sept. 23, 2014).  Youcamera_spying_big_brother_4265 may read the court’s opinion here.

Pre-suit Meeting & Registration

Class-action plaintiffs’ counsel represented two sales representatives of Wyndham Vacation Resorts.  Before filing a FLSA collective action, plaintiffs’ counsel held a meeting with approximately 40 other Wyndham sales representatives in an effort to recruit them to the putative class.

Plaintiffs’ counsel required each attendee to sign a registration sheet, and this sheet contained the following declaration: “By signing in, you acknowledge that you are here to seek legal advice concerning your right to overtime pay from Wyndham.”  Counsel also claimed that they opened the meeting by stating their understanding that all attendees were seeking legal advice and, if not, they should leave.  No one left.  For counsel’s full description of the meeting, you may read his affidavit here.

Secret Recording

Counsel considered that an attendee may record the meeting, telling the crowd that this was an “attorney–client meeting” and that everything said is “confidential.”  Counsel jokingly stated that, if anyone was recording the meeting, he will later find that person and “beat you to within an inch of your life.”

One of the attendees, however, secretly recorded the meeting.  Class counsel exerted confidence in their legal ability, stating, amidst applause, that their firm has over 300 lawyers and is “ready for whatever the Defendants might bring to bear.”  Counsel claimed they had “done a lot of these cases” and did not “remember ever losing one.”

Privilege Ruling

The question was whether the attorney–client privilege protects the recording.  As the court had federal question (FLSA) jurisdiction, federal common law supplied the rule of decision.  After listening to the recordings, the court ruled that plaintiffs’ counsel failed to show that the recording contained client communications made for purposes of rendering legal advice.  The recording revealed simply that class counsel discussed their own qualifications, the lawsuit in general, and the FLSA opt-in procedure.  The attendees responded with “applause, laughter, and an occasional wisecrack.”

And the registration sheet—declaring the meeting was for purposes of rendering legal advice—did not persuade the court otherwise.  The court found this “sign-in sheet statement” neither controlling nor instructive on the privilege question.  The court noted that a client’s privilege acknowledgement is no substitute for actually establishing the attorney–client’s essential elements, and determined that it was “inappropriate to so rule in this case.”

Does Counsel’s Coverage Denial Letter to Insured Waive Privilege for Underlying Coverage Opinion? Reply

The West Virginia Supreme Court of Appeals confronted an interesting issue—whether an insurer’s lawyer waives the attorney–client privilege for his coverage opinion by sending a coverage denial letter directly to the insured.  The Court answered with an emphatic “No.”  Montpelier U.S. Ins. Co. v. Bloom, 757 S.E.2d 788 (W. Va. 2014).  You may read the decision here.

A property owner sued B&B Transit alleging that it caused a landslide that damaged their property.  B&B notified its insurer of the claim, and the insurer retained coverage counsel to determine whether the policy provided coverage for the landslide allegations.

Coverage counsel then prepared a coverage opinion letter to the insurer.  Counsel later explained, in writing, the coverage decision to the insured without enclosing the coverage opinion.  Counsel stated—using coverage lingo—that the policy had a subsidence exclusion that did not cover property damage “arising out of or aggravated by the subsidence of land as a result of a landslide.”

In a subsequent bad-faith claim, B&B sought disclosure of counsel’s coverage opinion, arguing that counsel’s letter explaining the coverage decision resulted in waiver of the attorney–clieWVA Courtnt privilege for the coverage opinion.

The W. Va. Supreme Court found this argument “novel,” noting that B&B did not cite to, “nor have we found, any case in the country that has held that the attorney–client privilege does not apply to a coverage opinion letter when an insurer communicates the gist of the recommendation contained in the letter to the insured.”

The Court analogized this novel issue to cases where insureds sought coverage opinion letters as part of the insurer’s claims file.  And it distinguished cases where an attorney acted as a claims adjustor on the initial claim determination.

The Court concluded that the attorney–client privilege protects from disclosure coverage counsel’s coverage opinion letter and that counsel’s communication of the coverage decision to the insured does not constitute privilege waiver.  Insurance coverage counsel facing this type of discovery dispute now have support from the West Virginia Supreme Court.

Engineer’s Investigative Report—Sent to Outside Counsel—Not Privileged Reply

The Nevada Supreme Court ruled that the attorney–client privilege did not protect from disclosure a post-accident investigative report by a manufacturer’s engineer.  The Court issued the ruling even though the investigator sent the report to the manufactureconfidential document flush awayr’s outside counsel.  Mega Manufacturing, Inc. v. Eighth Judicial District Court, 2014 WL 2527226 (Nev. May 30, 2014).  You may read the decision here.

Accident Investigation

Following an injury involving a press brake machine, the press brake manufacturer’s chief engineer conducted an investigation and sent his investigation report to the manufacturer’s outside counsel.  The engineer discussed the investigation with outside counsel before conducting the investigation.

The injured plaintiff sued and sought production of the investigation report.  The manufacturer objected, asserting the work-product doctrine and the attorney–client privilege.  The trial court rejected both objections.

Attorney–Client Privilege

One may question the court’s rejection of the attorney–client privilege.  The court applied Nevada’s privilege, which protects confidential communications between the “client’s representative and the client’s lawyer.”  While there was a factual issue whether the manufacturer or an affiliate company actually employed the engineer, there was no dispute that the engineer was the manufacturer’s representative while conducting the investigation.

Yet, the court relied upon federal common law in making its decision and noted that the Supreme Court’s Upjohn decision “largely turns on the issue of employment.”  The Nevada court therefore held the privilege inapplicable because there was some dispute whether the press brake manufacturer employed the engineer.

The court did not address several decisions finding that the privilege applied to consultants and others considered functional equivalent of employees.  See my post regarding a Google case applying the functional equivalent of employee test.

Work-Product Doctrine

The court similarly rejected the work-product doctrine because there was a factual issue whether the engineer prepared the report in anticipation of litigation.  The engineer testified that he spoke with the manufacturer’s outside counsel before conducting the investigation and sent the final report to him. But the court found this factual evidence insufficient to prove the anticipation-of-litigation element.

Other Privileges

The manufacturer also asserted the self-critical analysis privilege, but the court gave this privilege virtually no attention, stating simply that it “considered [the manufacturer’s] other arguments and conclude they lack merit.”

PoP Analysis

The court’s decision lacks a thorough analysis, but, fortunately, the court decided not to publish the opinion, meaning it has no precedential value.  Yet, the case is constructive for lawyers and corporations conducting post-accident investigations.  The evidence in this case appeared equivocal—but what if the manufacturer’s counsel had directed, in writing, that the engineer conduct the investigation because the company anticipated litigation?  And what if the engineer began his investigative report with a statement that he prepared it at the direction of counsel, on behalf of the manufacturer, and for purposes of the manufacturer’s counsel providing legal advice.  I suspect the court would have reached a different outcome.

Out-of-State Subpoenas: Which State Decides Privilege Objections? Reply

Two privilege-related questions arise when an out-of-state subpoena requests production of putatively Mapprivileged information: (1) which state’s privilege law applies? and (2) which court—the home-state court or the foreign-state court—decides the issue? In a split decision, with a well reasoned dissent, on a matter of first impression, the Arizona Court of Appeals ruled that the foreign-state court decides the privilege issue under foreign-state law. Johnson v. O’Connor, 2014 WL 2557700 (Ariz. Ct. App. June 6, 2014). You may access the opinion here.


A Wisconsin criminal court issued a certification pursuant to the Uniform Act to Secure Attendance of Witnesses From Without a State in Criminal Proceedings (Uniform Act) asking an Arizona state court to subpoena psychological records from Arizona-based Psychological Counseling Services, Ltd for use in the Wisconsin criminal trial. PSC claimed that the Arizona psychologist–patient privilege protected the records from disclosure, but the Arizona trial court refused to decide the objection, ruling that the requesting state should resolve “matters of professional privileges.”

Majority Decision

The issue on appeal was whether the trial court should have considered PCS’s privilege objections under Arizona law before requiring PCS to produce the records. In a 2 to 1 decision, the majority interpreted the Uniform Act as requiring the Wisconsin state court—where the criminal proceeding was pending—to decide the privilege issue under Wisconsin law.

The appellate court held that the Arizona Supreme Court case of Tracy v. Superior Court, 810 P.2d 1030 (Ariz. 1991), controlled, but offered other reasons for its decision: (1) the decision furthers the Uniform Act’s purposes because allowing the foreign state to rule on privilege issues reduces procedural hurdles and increases cooperation among the states; and (2) the decision is consistent with the Restatement (Second) of Conflict of Laws § 139(2), which provides that the foreign state’s privilege law decides the issue rather than the state with the most significant relationship.


The dissent took issue with the majority’s reasoning, stating that “communications that take place in Arizona are subject to Arizona law, and Arizona courts should apply that law before ordering the release of privileged or confidential documents for use in a prosecution in another jurisdiction.” The dissent distinguished the Tracy decision, which did not address the production of privileged records.

The dissent viewed the question as: “does the law of the state in which the communications took place govern whether the communications are privileged or confidential, and if so, which state should determine how to apply that law?” The dissent answered that the “site of the communication is dispositive” and requires that the law of the jurisdiction in which the communication occurred controls the privilege issue. It therefore flows that, “because the law of the jurisdiction where the communications took place governs, courts from that jurisdiction are best situated to address whether the communications are privileged.”

The dissent argued that leaving the privilege analysis to another jurisdiction would lead to inconsistent interpretations and applications of the home-state’s privilege law. And allowing a foreign jurisdiction to decide Arizona privilege law places Arizona patients and treating professionals in an untenable position in which there is uncertainty as to what types of communications the psychologist–patient privilege protects from disclosure.

PoP Analysis

This case highlights the split of authority on conflict-of-privilege-law issues for out-of-state subpoenas. Some states reserve the issue to the home state while others defer to the foreign state. The Johnson dissent, though, has the better reasoned argument, particularly with the majority’s questionable reliance on the Restatement provision. Many commentators are critical of this provision, as you can see in this article and my post highlighting an in-depth review of the provision. In short, this case adds to the uncertainty, and the issue needs further development.

Privilege-Log Designations: Categorical or Document-by-Document? Reply

Courts are increasingly ruling on the adequacy of parties’ privilege-log designations. As discussed in a prior post, Roger Clemens learned the hard way that failure to submit a privilege log results in privilege waiver. My article, Ignoring Privilege Log Obligations May Prove Costly, also details issues arising from inadequate privilege-log designations.

But does an adequate privilege log necessarily require a party to list each document? Or, may parties identify privileged documents by categories or topics? And does a party have to identifypointing_at_chalkboard_text_10562 documents where the identification will itself disclose privileged information? The Court’s decision in Manufacturers Collection Co. v. Precision Airmotive, LLC, 2014 WL 2558888 (N.D. Tex. June 6, 2014), provides helpful guidance on these topics. You may access the opinion here.

FRCP 26(b)(5) requires a privilege-invoking party to expressly make the privilege claim, and “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” In Manufacturers Collection, the third-party plaintiff argued that the third-party defendant violated this rule by simply identifying a category of documents as privileged.

The Court, however, rejected the argument that FRCP 26(b)(5) always requires a document-by-document privilege designation. Citing SEC v. Thrasher, 1996 WL 125661 (SDNY Mar. 20, 1996) and heeding the Advisory Committee’s qualification that “courts retain some discretion to permit less detailed disclosure in appropriate cases,” the Court described two circumstances where a document-by-document approach was inappropriate:

  1. Where a detailed disclosure would, in effect, reveal the putatively privileged information; and

  2. Where a document-by-document listing would be unduly burdensome and the additional information to be gleaned from a more detailed log would be of no material benefit to the discovering party in assessing the privilege claim.

Under these standards, the Court permitted the third-party defendant to identify withheld documents by category. But this approach did not relieve the party of identifying all of the senders and recipients of communications (even if not by a particular document reference) so that the objecting party could determine whether privilege waiver existed.

Nor did the categorical approach permit the party to identify general categories, as the Court required it to breakdown the categories into subcategories, such as date range and type of authors and recipients, and break out each type of claimed protection, such as the attorney–client privilege and the work-product doctrine.

Even with the subcategories admonition, the Manufacturers Collection decision serves as good authority for those parties faced with crafting a privilege log for voluminous information and where providing a document-by-document listing would itself reveal privileged information. Practitioners should keep this decision handy.

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?