Court Says Company Has “Duty” to Provide Privilege Log in Response to Gov’t Subpoena. Is Waiver Next? Reply

FRCP 26(b)(5)(A) requires litigation parties to submit a privilege log describing privilege-related objections to discovery requests.  And FRCP 45(e)(2)(A) imposes the same privilege-log requirement on third-parties responding to subpoenas.  But what are the privilege-log requirements for entities responding to an administrative agency’s subpoena?  Will the failure to produce a privilege log at the agency level result in privilege waiver?

The federal court in Memphis has ruled that an employer must produce a privilege log when withholding documents in response to a NLRB subpoena.  This requirement arises even though the court acknowledged that only Article III judges, not ALJs, have authority to rule on privilege claims.  NLRB v. NPC Int’l, Inc., 2017 WL 634713 (W.D. Tenn. Feb. 16, 2017).  You may read the decision here. More…

Minister’s Testimony Violates Clergy–Communicant Privilege—but No Prejudicial Error, Court Rules Reply

The clergy–communicant privilege, historically known as the priest–penitent privilege, protects from discovery and trial evidence communications between an individual and a clergy member. And for good policy reasons—the privilege encourages individuals to seek spiritual guidance without fear that clergy members will later reveal these confidential confessions.

Whenever I read about the clergy–communicant privilege, I’m reminded of the Seinfeld confessional scene where Jerry, who is Jewish, consults a Catholic priest to complain about a dentist’s conversion to Judaism.  You may see that hilarious scene is this clip:

But the situation involving Lonny Mays and Rudy Romdall is no laughing matter.  Mays shot and killed Romdall while Romdall and his dog sat in a pickup truck in the Sky Village retirement community where they both resided.  Mays immediately went to see a neighbor and retired Pentecostal minister Joseph Rhodes. More…

Privilege Covers Investigation Originated–but Delegated–by In-House Lawyer

Need a few pointers on how to help secure privilege protection for internal investigations? Then take a quick look at Celanese Corporation’s 21818294 - investigationconduct when investigating a horrific on-the-job injury.

While a Texas trial court held that the attorney–client privilege did not apply to Celanese’s investigation materials, an appellate court granted a writ of mandamus and reversed.  In re: Fairway Methanol LLC and Celanese Ltd., 2017 WL 422006 (Tex. Ct. App. Jan. 31, 2017).  You may read the decision here.

Post-Injury Investigation

On Nov. 19, 2014, Jose Salazar, a Celanese-employed electrician in Pasadena, Texas, was injured when he tripped and fell into charged electrical equipment.  The next day, Nov. 20, Gary Rowen, a Celanese in-house lawyer, perceived a worker’s compensation or personal injury lawsuit and immediately created an investigative team to provide accident-related information to the Celanese legal department.

In subsequent litigation, Salazar requested “any and all incident, accident, or investigation reports” pertaining to his incident.  The trial court conducted an in camera review of the putatively privileged documents and overruled Celanese’s privilege objection.  You may read the trial court’s order here.

In-House Lawyer’s Affidavit Prevails More…