Monthly Privilege Roundup: Ted Bundy, Dr. King’s Lawyer, and More Hillary Clinton Reply

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is a roundup of interesting privilege issues for September 2016.

→The New Republic reviews John Henry Browne’s new book about defending Ted Bundy and other criminal defendants, and correctly notes that the attorney-client privilege survives the client’s death, even Bundy’s, and wonders aloud that while a court cannot force a lawyer to reveal a deceased client’s communications, apparently the lawyer can voluntarily do so at his own risk.  Best quote from the article: “Attorney-client privilege is more binding than marriage, and in some ways more intimate.”  Story here.

→The City of Memphis and the State of Tennessee lost a terrific lawyer when David Caywood passed away this month.  Mr. Caywood, who was Dr. Martin Luther King’s legal team during the 1968 sanitation workers’ strike and just before Dr. King’s assassination, later testified for the prosecution in the murder trial of former FedEx pilot Mike Mullins and revealed what his client, Holly Mullins, told him before her death.  The Commercial Appeal‘s article, accessible here, states that the attorney-client privilege does not exist after death which permitted Mr. Caywood to testify.  This is not technically true–see the story about Mr. Browne’s book above–but Mr. Caywood likely had a waiver in any event.  RIP to a fantastic Tennessee lawyer. More…

Legal Advice or PR Plan? A Pertinent Privilege Conundrum Reply

Originally published by Law360, New York (June 9, 2016, 11:40 AM ET) — The ever-expanding scope of what constitutes the “press” creates new issues for companies and their counsel dealing 9628788 - public relations blue puzzle pieces assembledwith disputes that either are in or will develop into litigation. Routine corporate disputes that received no media interest are now the subject of nontraditional media outlets such as blogs, internet news sites, social media posts, and homegrown, community websites. And the traditional media, whether newspapers, radio or local television stations, mine these sites for content and contact companies seeking comments, interviews and information about otherwise insipid disputes.

As a result, companies are increasingly turning to their in-house and outside corporate counsel to craft a media strategy as part of the litigation strategy. They ask lawyers to draft press releases, prepare employees for media interviews, and work with internal or external public relations professionals. Communications associated with these tasks often contain information the company wishes to protect from disclosure, and the question arises whether the attorney-client privilege or work-product doctrine serve that protective role. More…

Court Rejects Privilege for In-House Lawyer’s Handwritten Notations Reply

In a ruling that may puzzle in-house legal departments, the Arizona USDC ruled that the attorney–client privilege did not cover in-house attorneys’ handwritten notations on non-privileged documents.  The court’s primary reason was that the notations “were [n]ever communicated to anyone.”  Greyhound Lines, Inc. v. Viad Corp., 2016 WL 4703340 (D. Ariz. Sept. 8, 2016).  You may read the decision here.

Discovery Issue

In this federal-question case, Greyhound claims that Viad is responsible for environmental clean-up costs on properties that Viad sold to Greyhound.  During discovery, Viad produced a set of non-privileged documents, but redacted notations on these documents made by one or more of its in-house lawyers. More…