Known for his unmatched oratory skills, both in the U.S. Senate and before the U.S. Supreme Court, scholars regard Daniel Webster as one of America’s greatest lawyers. And while he possessed natural talent that “can’t be taught,” Webster knew that lawyers become great only with a disciplined work ethic and a willingness to do the grunt work. In fact, he gave us this famous, lasting quote:
If he would be a great lawyer, he must first consent to become a great drudge.
Richard L. Marcus, Reining in the American Litigator: The New Role of American Judges, 27 Hastings Int’l & Comp. L. Rev. 3, 10–11 (2003).
This quote, of course, is a good segue to a lesson in privilege log preparation.
Privilege Log Rule
FRCP 26(b)(5) and its state-law counterparts provide privilege-log requirements to parties withholding privilege-protected documents. Those parties must “describe the nature” of those documents “in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the claim.”
This rather non-specific rule belies lawyers’ monotonous and time-consuming task of privilege-log preparation. And one party’s two-time failure to provide a thorough privilege log, including the use of a software-generated log, drew a federal judge’s ire. LaVeglia v. TD Bank, 2020 WL 127745 (ED PA Jan. 10, 2020). You may read the opinion here.
Software-Generated Privilege Log
In an employment-discrimination case, the defendant-employer produced a privilege log that, according to the court, “did not provide any information to establish the foundation underlying a privilege claim.” The log identified
In a patent-infringement action, the question arose whether the attorney–client privilege protected documents discussing legal advice of the defendant’s Swedish predecessor. And then a second, threshold question arose: whether Swedish or U.S. law governed the privilege issue.
In a break from other federal courts, the Court for the ND ILL, “as a matter of comity,” applied a “functional approach” and determined that Swedish privilege law governed the discovery dispute. And applying Swedish privilege law, the Court found the documents unprotected. Baxter Int’l, Inc. v. Becton, Dickinson & Co., 2019 WL 6258490 (ND Ill. Nov. 22, 2019). You may read the opinion here.
U.S. or Swedish Law?
Becton Dickinson (BD) acquired Carmel Pharma, a Swedish company, in 2011. In its patent-infringement lawsuit against BD, Baxter International moved to compel documents “that purportedly reflect legal advice provided to Carmel Pharma … or its employees about patent-related issues.”
BD refused, arguing that, under the so-called “touch base” approach, U.S. privilege law applied. And that under In re Queen’s Univ. at Kingston, 820 F.3d 1287, 1295 (Fed. Cir. 2016), the attorney–client privilege covers a company’s communications with a foreign patent agent. For more information on this issue, read my post, Federal Circuit Adopts Patent–Agent Privilege.
The Touch Base Approach
The “touch base” approach is a choice-of-law doctrine. Under this doctrine, courts apply the privilege law of the country with the
It is “fairly clear” that, in a False Claims Act case, the common–interest doctrine protects the sharing of privileged information between the government and relator after the government intervenes. What is “less than clear” is whether the doctrine protects privilege-sharing prior to intervention.
The Minnesota federal court faced this pre-intervention privilege issue. It held that the government and relator failed to prove a common interest prior to the relator’s § 3730(b)(2) notice to the USAO of the filing of a complaint. United States v. Cameron-Ehlen Group, Inc., 2019 WL 6875354 (D. Minn. Dec. 17, 2019). You may read the Court’s initial opinion here, and its final decision here.
A whistleblower—and later the federal government—claimed that Minnesota-based Precision Lens induced physicians to purchase its intraocular lens “through expensive trips and other emoluments.” Precision Lens disputes the claims, as you can discern from this StarTribune article.
Timing is Everything
On April 25, 2013, the whistleblower-relator emailed an FBI agent informing her that “he had retained a law firm for a potential qui tam action.” The FBI agent responded that