Communications Between a Trade Association’s In-House Counsel and Its Members—Privileged? Reply

Trade associations’ in-house lawyers often consult with the associations’ members and members’ counsel on legal issues.  The question arises whether the attorney–client privilege protects these communications from discovery.  A Texas appellate court recently said “no” and ordered a trade association’s lawyer to answer deposition questions about her conversations with a member’s lawyer.  In re Baytown Nissan, Inc., 2014 WL 6388414 (Tex. Ct. App. Nov. 7, 2014).  You may review the decisio31998746_sn here.

Background

A Nissan dealer sought to sell its assets to the plaintiff, BSAG, Inc., but Nissan North America exercised its right-of-first-refusal to purchase the assets.  During the negotiations, the dealer’s lawyer communicated with the Texas Automobile Dealer Association’s General Counsel.  BSAG deposed the dealer’s lawyer and TADA’s in-house counsel during subsequent litigation, and inquired about those communications.

The dealer argued that the attorney–client privilege protected these communications from discovery, but the trial court disagreed forcing the dealer to seek a writ of mandamus.

No Blanket Privilege

Despite recognizing that a trade association’s counsel regularly consults with the association’s members, the appellate court declined to adopt a “blanket rule of privilege” between the two. Instead, the court preferred a case-by-case analysis to determine whether an attorney–client relationship actually existed between the member (or its counsel) and the association’s counsel.

No Attorney–Client Relationship

The court of appeals found that Texas’s attorney–client privilege statute, Tex. R. Evid. 503, requires an actual attorney–client relationship between TADA’s attorney and its member. Because TADA’s general counsel was not the dealer’s lawyer, the court refused the dealer’s argument that the TADA lawyer’s status as an attorney—even if not the member’s attorney—met the statutory requirement.

Implied Relationship?

A court may imply an attorney–client relationship, based on the parties’ conduct, even without an express agreement.  Here, the dealer argued that an implied attorney–client relationship existed because TADA’s general counsel provides legal services to TADA’s membership.

With no per se privilege between an association’s counsel and its members, the court reviewed “objective evidence” to determine whether an implied attorney–client relationship existed.  The court found no relationship, largely due to the absence of several factors:

(1) the dealer’s counsel did not ask TADA’s counsel to provide legal services to the dealer; (2) no engagement letter existed; (3) the dealer’s attorney did not express belief that TADA’s counsel was also acting as counsel to the dealer; (4) neither lawyer provided assurances that the conversation was confidential and privileged; and (5) TADA’s counsel did not run a conflicts check.

For these reasons, the court rejected the implied attorney–client relationship argument and, correspondingly, the existence of a privilege protecting the lawyers’ communications.

Work-Product Doctrine?

Despite the lack of a privilege, the dealer’s counsel successfully invoked the work-product doctrine.  The court found that the dealer’s counsel engaged in the conversation with TADA’s general counsel as part of his investigation into Nissan’s right-of-first-refusal and the overall asset sale.  And because the deposition questions called for counsel’s thoughts and mental impressions, the work-product doctrine precluded any further deposition questioning.

But the work-product doctrine did not prevent TADA’s counsel from testifying about the conversation.  The court ruled that the doctrine was inapplicable due to the lack of any type of relationship beyond the association–member context.  The deposition of TADA’s counsel, therefore, moved forward.

PoP Analysis

It appears that the dealer’s counsel and TADA’s counsel were not on the same page.  Dealer’s counsel believed the privilege covered the conversation, but TADA’s counsel contradicted that belief, stating that dealer’s counsel never asked her to enter into an attorney–client relationship or for assurance that the conversation was confidential and privileged.  You may read the TADA lawyer’s affidavit here.

Trade associations and their members should take heed of this case, particularly the “no blanket privilege” ruling.  Lawyers for trade associations and their members must take certain steps to improve the chances of successfully invoking the privilege.

These steps include formalizing an attorney–client relationship in writing, if appropriate.  Even if the engagement is an uncompensated one, formalizing the relationship will show a reviewing court of the parties’ intent.

And the lawyers should conduct their interactions in a way that shows intent to establish and maintain the privilege.  Written communications should include “confidential & privileged” designations, contain legal-related comments, and be kept confidential.  For more tips, see my article, A Higher Standard–Claiming Attorney-Client Privilege is Tougher for In-House Counsel.

Will You (Quickly) Marry Me? Jailhouse Marriage Proposal to Secure Spousal Privilege is Relevant Evidence Reply

The marital communications privilege protects from disclosure information privately disclosed between a married couple in confidence of the marital Wedding-Prison-Jail-1-300x199relationship.  A key phrase in this definition is “married couple” or a state-law equivalent, and one criminal’s attempt to silence his girlfriend through a jailhouse marriage proposal backfired in a major way.

The FBI arrested Donald J. Peel after he took a disabled female minor on a five-state sojourn that included illegal drugs and sex.  The government recorded Peel’s conversations with Nicole Gorski, his so-called girlfriend, conducted while Peel was in jail awaiting trial for transporting a minor with intent to engage in sexual activity.

In these conversations, Peel told Gorski that “you might have the right to marital privilege” and urged her to seek a lawyer about securing a Domestic Partnership Declaration under California Family Code § 297-297.5.  Peel needed Gorski to fall within the martial communications privilege so that she could refuse to provide trial testimony, because, as Peel said, “without you they ain’t got nothin’.”

Peel’s counsel moved under FRE 403 to exclude Peel’s conversations with Gorski about invoking the marital communications privilege.  The court, however, rejected this preclusion attempt, ruling that Peel’s effort to orchestrate the suppression of Gorski’s testimony was relevant to the government’s “consciousness of guilt” proposition.

While courts may exclude evidence of one spouse urging the other spouse to invoke the marital communications privilege, in this case Peel was asking his girlfriend “to marry him to create a privilege that did not already exist.”  The court rejected Peel’s arguments and admitted into evidence all of Peel’s conversations.

And without the marital communications privilege, Gorski’s testimony helped lead to a guilty verdict.   You may read the court’s opinion hereUnited States v. Peel, 2014 WL 5817259 (E.D. Cal. Nov. 7, 2014).

No word whether Gorski would have accepted the proposal, but she will now have 10+ years to think about it.

Does Assertion of § 260 Good-Faith Defense in FLSA Action Waive the Attorney-Client Privilege? Reply

In a FLSA collective action against PetSmart, a Delaware federal magistrate judge ruled that PetSmart’s assertion of the good-faith affirmative defense, authorized by 29 USC § 260, did not constitute waiver of the attorney-client privilege.  The judge drew a distinction between PetSmart’s state-of-mind and advice-of-counsel assertions, and issued the ruling even though PetSmart’s decision-maker
flipboard_discussion_text_10528made the exemption decision after “conversations with the legal department.”  McKee v. PetSmart, Inc., 2014 WL 5293703 (D. Del. Oct. 15, 2014). You may read the court’s decision here.

FLSA and the Good-Faith Defense

In a FLSA, wage-and-hour action, the plaintiffs may recover liquidated damages if the employer willfully misclassified employees as exempt from overtime wages.  29  USC § 216.  An employer may avoid these damages, however, if it proves that it had a reasonable basis for making the decision, even if the decision proved inaccurate. Employers routinely assert this good-faith defense in FLSA actions.

Privilege Waiver?

In McKee, the plaintiffs (operations managers at PetSmart) took the deposition of PetSmart’s director of compensation and asked him the bases for his exemption decision.  The director testified that he relied on store visits and conversations with various PetSmart employees, including its legal department.  But PetSmart’s counsel objected on privilege grounds and instructed the director not to answer questions regarding communications with the legal department about his exemption decision.

Plaintiffs’ counsel specifically asked the director the basis for PetSmart’s good-faith defense, and the director stated that he relied on his due diligence, which included discussions with operations managers and field managers.  The director never said he relied on advice of PetSmart’s in-house lawyers.  You may read the director’s testimony and counsel’s objections here.

State-of-Mind v. Advice-of-Counsel

The magistrate judge denied plaintiffs’ attempt to compel the director to divulge his conversations with the legal department.   The court drew a fine-line distinction between the director’s state-of-mind in making the exemption decision and his (lack of) reliance on advice-of-counsel.  Citing Third Circuit precedent, the court noted that PetSmart did not lose the privilege’s protection simply because its director of compensation’s state-of-mind was at issue.  See Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 864 (CTA3 1994).

The judge, however, seemed willing to find waiver if the evidence showed that the director relied on advice-of-counsel, stating that such evidence would “create a path to disclosure of privileged communications, which plaintiffs find vital to their case on the issue of willfulness.”  In this regard, the court ordered PetSmart to produce a PowerPoint presentation on exempt status that the director reviewed.

But the judge did not mention that the director testified in a prior deposition that PetSmart did rely on the advice of its in-house lawyers in determining the employees’ exempt status.  You may read this testimony here and determine whether you agree with the judge’s conclusions whether PetSmart relied on the advice of its counsel in making the exemption decision.

District Court Review

On October 29, 2014, the plaintiffs filed objections to the magistrate judge’s opinion, taking issue with the judge’s factual and legal support for the decision.  You may read the objections here.

PoP Analysis

As it currently stands, the McKee case provides guidance for counsel seeking to penetrate or defend the attorney-client privilege when the § 260 good-faith defense is at issue in a FLSA case.  If the exemption decision-maker testifies that he relied on legal counsel in making the decision, the the advice-of-counsel waiver will allow disclosure of privileged communications.  On the other hand, if the decision-maker does not rely on counsel’s advice, even if he communicated with counsel, then his state-of-mind is all that is at issue, and, according to the magistrate judge, there is no state-of-mind privilege waiver in the Third Circuit.

We await the district court’s decision.

Antitrust Compliance Policy Not Privileged Reply

In a matter of first impression in the Third Circuit, amidst a dearth of cases elsewhere, a court ruled that the attorney-client privilege did not protect from disclosure a company’scompliance training antitrust compliance
policy.  This ruling came even though in-house and outside counsel drafted the policy, the policy discussed legal compliance, the company did not distribute the policy outside of corporate employees.  In re Domestic Drywall Antitrust Litigation, 2014 WL 5090032 (E.D. Pa. Oct. 9, 2014). You may access the ruling here.

In this antitrust MDL case, the plaintiff sought production of CertainTeed Gypsum, Inc.’s antitrust compliance policy.  CertainTeed refused, arguing with some confidence that the policy represented communications between lawyer (outside/in-house counsel) and client (employees), and that the company kept the policy confidential by distributing it only to company employees.

Business Policy or Legal Policy?

But the court construed the privilege narrowly, limiting it to legal advice that resulted in a company decision.  The court noted that CertainTeed’s antitrust compliance policy did not contain any specific legal advice (just general legal compliance) and was “primarily a business policy” “more akin to a reference or instructional guide.”

Confidential?

CertainTeed argued that it maintained the policy’s confidentiality because it did not distribute the policy outside the company, but only to 120 of its employees.  The court, however, found this “wide distribution” antonymous to confidentiality.  And, importantly, the court noted that CertainTeed did not label the policy confidential or privileged, and did not instruct its employees of these edicts.

In short, the court found that the antitrust compliance policy was a business document that CertainTeed failed to keep confidential.  The privilege, therefore, did not cover the document.

Critical Distinction

Without much elaboration, the court recognized that the attorney-client privilege covers communications between “CertainTeed’s lawyers and its executives leading up to the adoption of its compliance policy.”  So, according to the court, the privilege covers lawyer-client interactions regarding the drafting and creation of the policy, but not the final product.

And not to stray from the central case point, but the federal common-law attorney-client privilege covers communications between corporate lawyers and corporate employees, and is not limited to lawyer-executive communications as the court’s language suggests.  As the court did not further discuss this point, which is dicta in any event, courts and practitioners should not consider the reference to “lawyers and executives” as limiting the privilege’s scope.

Use of Privileged Documents to Refresh Witness’s Recollection Before Deposition Waives the Privilege, Court Rules Reply

A lawyer preparing a witness for her deposition should proceed cautiously when using privileged documents to refresh the witness’s memory.  In two separate cases, the Nevada Supreme Court ruled that state evidence rules require production of privileged documents—at trials and depositions—when used to refresh a witness’s recollection, whether before or at the hearing or deposition.

I"m afraid it's bad news....This ruling contrasts the federal evidence rule, which leaves the production question to the trial court’s discretion when a party uses privileged documents to refresh a witness’s memory before the hearing or deposition.  See Las Vegas Sands Corp. v. Eighth Judicial Dist., 319 P.3d 618 (Nev. 2014), available here, and Las Vegas Dev. Assocs., LLC, 325 P.3d 1259 (Nev. 2014), available here.

State and Federal Rules Compared

Federal Rule of Evidence 612 requires production of documents, including privileged documents, that a witness reviews— while testifying—to refresh her recollection.  The rule provides the trial judge with discretion, however, to require production if the witness reviews privileged documents to refresh recollection before testifying.

By contrast, Nevada’s counterpart evidence rule requires production—at a hearing—of privileged documents used to refresh a witness’s recollection, leaving the trial judge no discretion when the review occurs before the hearing. Nev. Rev. Stat. § 50.125.

Privilege Waiver

In Sands, the court faced the issue whether Nevada’s evidence rule required production of privileged documents used to refresh at a hearing—or in court. The court found significant the distinction between the federal and state rule (trial court’s discretion when documents reviewed before testifying), and held that the state rule “requires disclosure of any document used to refresh the witness’s recollection before or while testifying, regardless of privilege.”

The question before the Las Vegas Development court was whether the Sands ruling applies to depositions or just in-court hearings.  Finding that Fed. R. Civ. P. 30(c) and its Nevada counterpart provide that “examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence,” the court held that the production rule applies to “depositions and deposition testimony as well as to in-court hearings.”  The court concluded:

When a witness uses a privileged document to refresh his or her recollection prior to giving testimony at a deposition, an adverse party is entitled to have the writing produced at the deposition.

Limitations

Importantly, the Nevada Supreme Court was quick to note that Federal Rule 612 and Nevada Rule 50.125 were rules of evidence, not rules of discovery.  The rules’ sole purpose is to test the witness’s credibility at the hearing or deposition, not to create a new line of discovery.

And fearful that permitting post-deposition discovery of privileged documents used to refresh the witness’s memory converts the rule “into a discovery tool that has no relation to testing any witness’s credibility,” the court disallowed production of the privileged documents after the hearing or deposition, requiring only that the witness produce the documents at the hearing or deposition.

The Political-Vote Privilege: Where Does Your State Stand? Reply

Each political season brings inevitable election contests, whether at the local, state, or federal level. These challenges often require determining whether illegal votes were cast and, in these instances, election challengers likely need voters to testify for whom they voted.  But with ballot secrecy a prominent tenet of American democracy, the question arises whether voters may refuse to disclose their ballots on grounds of a political-vote privilege.

The political-vote privilege protects from compelled disclosure a voter’s selection in a public election. This privilege is well-established in American law, but opinions differ over whether the privilege derives from the common law or from a constitutional basis. Regardless of the privilege’s foundation, the political-vote privilege ensures that a voter’s choice is kept secret, which is considered essential to keeping democratic elections free from coercion, oppression, and retaliation.

Historically, the political-vote privilege was recognized under American common law and by the U.S. House of Representatives in the years immediately following adoption of the United States Constitution. Courts and commentators agree that the political-vote privilege was first recognized in the 1795 South Carolina decision Johnston v. Corporation of Charleston, 1 S.C.L. (1 Bay) 441 (S.C. Ct. Com. Pl. & Gen. Sess. Jan. 1795), available at 1795 WL 376. In this election-contest case over the city warden position, the court refused to compel voters to reveal the candidate for whom they voted.

This refusal to compel voters to reveal the substance of their ballots gradually became the rule in several states. For example, five years later, in 1800, the Pennsylvania Supreme Court declared that the criminal charge of election-influencing may not depend on proving how an individual voted, for “no citizen is compellable to declare how he has given his suffrage.” Respublica v. Ray, 3 Yeates 65 (Pa. 1800), available at 1800 WL 2544, at *2.

The U.S. House of Representatives Committee on Elections recognized the political-vote privilege in 1817. Chester H. Rowell, A Historical and Legal Digest of all the Contested Election Cases in the House of Representatives of the United States from the First to the Fifty-Sixth Congress, 1789–1901, at 68–69 (GPO 1901). This committee was charged with deciding an election dispute between Rufus Easton and John Scott for the nonvoting delegate seat for the MissouriTerritory. Easton, the incumbent, lost the election to Scott by fifteen votes and petitioned the U.S. House of Representatives to unseat Scott on the ground of illegal voting. During its review of voter qualifications, the committee determined that it could not compel voters to disclose for whom they voted because of a right to ballot secrecy. The House ultimately vacated the seat and ordered a new election.

The political-vote privilege developed further with several influential state-court decisions in the mid 1800s. In 1863, the N.Y. Court of Appeals, in People v. Pease, 27 N.Y. 45 (1863), declared that it could not require voters to disclose their ballots. And in the 1868 election contest for Wayne County Sheriff, the Michigan Supreme Court, in People v. Cicott, 16 Mich. 283 (1868), agreed, stating that it could not compel a qualified voter to disclose how he voted. Other states similarly adopted this privilege. See Williams v. Stein, 38 Ind. 89 (1871); State v. Hilmantel, 23 Wis. 422 (1868); State v. Olin, 23 Wis. 309 (1868).

An exception to the political-vote privilege developed, however, regarding legally unqualified voters, to whom the privilege was not applied. McDaniel’s Case, 3 Penn. L. J. 310 (Ct. Quarter Sess., Philadelphia 1844). A voter may also waive the privilege when he voluntarily consents to disclose the substance of his vote. Martin v. Wood, 4 N.Y. S. 208, 209 (Sup. Ct. 1888).

The political-vote privilege has received relatively little attention under federal common law. Although the U.S. Constitution does not specifically guarantee voting secrecy, Anderson v. Mills, 664 F.2d 600, 608 (6th Cir. 1981); Smith v. Dunn, 381 F. Supp. 822, 825 (M.D. Tenn. 1974), many courts have recognized that voting secrecy is a fundamental tenet of American democracy. United States v. Executive Comm. of the Democratic Party of Greene County, Ala., 254 F. Supp. 543, 546 (N.D. Ala. 1966). But no federal court has expressly recognized a political-vote privilege on federal constitutional grounds.

In 1975, the U.S. Supreme Court included a political-vote privilege as part of its proposed evidence rules, see 56 F.R.D. 183, 249 (1972), but Congress rejected all of the proposed privileges in favor of a general privilege rule permitting the development of privileges under common law. Since this rejection, only a few federal courts have recognized a political-vote privilege under common law. See, e.g., In re Dinnan, 661 F.2d 426, 431–32 (5th Cir. 1981); D’Aurizio v. Borough of Palisades Park, 899 F. Supp. 1352 (D.N.J. 1995).

In 1974, the National Conference on Uniform State Laws (NCUSL) published its second edition of the Uniform Rules of Evidence, which largely followed the proposed Federal Rules of Evidence. These uniform rules included a political-vote privilege that was identical to the proposed federal privilege, and read as follows:

(a) General Rule of Privilege.  An individual has a privilege to refuse to disclose the tenor of the individual’s vote at a political election conducted by secret ballot.

(b) Exceptions.  The privilege under subdivision (a) does not apply if the court finds that the vote was cast illegally or determines that disclosure should be compelled pursuant to the election laws of the State.

A large majority of states have adopted the evidentiary privileges contained in either the Uniform Rules or the proposed Federal Rules, and some have included the political-vote privilege, while others have not.  In other states, the privilege has common-law or state constitutional support, while other states remain silent on the issue.

So, where does your state fall?  The red-state/blue-state map in this post identifies the states that have adopted the political-vote privilege promulgated by the NCUSL, and those where the privilege has at least some common-law support.

In sum, whether by rule or common law, the political-vote privilege protects from compelled disclosure a legal voter’s selection in a public election.  The privilege does not apply where it is proven that the voter illegally cast a ballot.  The illegal voter may assert his Fifth Amendment privilege against self-incrimination to avoid revealing his vote, but the political-vote privilege will offer no protection.

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.”