Sweeping Privilege Loss—Baylor Must Produce Documents From Sexual-Assault Investigation Reply

Attorney-Client Privilege, internal investigations, Waiver, Work Product Doctrine • Tags: , , , , , ,

In a significant ruling that may exacerbate the continuing fallout from Baylor University’s sexual-assault scandal—and provide lessons for those conducting internal investigations—the USDC WDTX rejected Baylor’s “unsupported and unconvincing” privilege argument and ordered it to produce “all materials, communications, and information” provided to its investigating law firm.

The court held that Baylor’s intentional release of the law firm’s factual findings and recommendations necessarily disclosed attorney–client communications and constituted privilege waiver.  Doe v. Baylor Univ., No. 16–CV–173–RP (W.D. Tex. Aug. 11, 2017).  You may read the opinion here.

The Huddle

In an earlier post titled Baylor Univ. in Major Battle over Law Firm’s Investigation Documents, I set the stage for the Title IX plaintiffs’ motion to compel Baylor to produce documents provided to Pepper Hamilton, which it retained to conduct an “independent and external review of Baylor University’s institutional responses to Title IX and related compliance issues.” More…

Court Rejects Joint–Prosecution Privilege Between Company and USAO

Common Interest Doctrine, In-House Counsel, Joint Defense Privilege, Waiver, Work Product Doctrine • Tags: , , ,

As in-house counsel or outside corporate counsel, how would you handle this situation?  Two employees download your corporate client’s proprietary information about Product X, join a competitor, and—surprise—a similar Product X from the competitor hits the market just a few months later.

Your client conducts a forensic investigation and discovers irrefutable evidence of the employees’ theft.  Sure, you may file a civil action for trade-secrets misappropriation, but your client wants the employees criminally prosecuted.

Should you disclose the investigator’s report to the U.S. Attorney’s Office to aid the prosecution? Would that limited disclosure result in privilege waiver in the parallel civil case?  Isn’t there some type of privilege-sharing doctrine, such as a so-called joint–prosecution privilege, or even the common–interest doctrine that would prevent privilege waiver? More…

MPR: Gitmo, Litigation Reports, and a Researcher-Participant Privilege?

Monthly Privilege Roundup

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is my Monthly Privilege Roundup of interesting privilege issues for July 2017.

  • Following a military judicial order, available here, that military prosecutors stop listening to conversations between Guantanamo Bay detainees and their military attorneys, a military defense lawyer renewed complaints that such attorney-client privilege breaches continue.  Read the defense lawyer’s letter here.  Military prosecutors respond that any listening is inadvertent.  Read the Miami Herald story here.
  • Ever heard of the researcher-participant privilege?  Karen Drake and Richard Maundrell published a thorough article discussing whether, under Canadian law, researchers who obtain research participants’ confidential information must disclose this information when subpoenaed.  You may read the article, published in the McGill Journal of Law & Health, here.
  • Will the Shelby County (Memphis) Board of Commissioners take some action against Board member Justin Ford following his “Alford” plea to a domestic-violence charge? The Board met in Executive Session to discuss, but the attorney-client privilege purportedly protects those discussions.  Story from the Commercial Appeal here.
  • Apparently thinking that it received too little in litigation updates, the Wilmington (DE) City Council recently passed an ordinance that requires the City Law Department to provide the Council and other “city officials” with bimonthly reports on pending litigation.  And others could obtain the reports through a public-records request. But would these reports reveal attorney-client privileged information? Read the story here.
  • Elizabeth L. Robinson recently published a nice piece in the North Carolina Law Review discussing whether strengthening the federal reporter’s privilege is moot given that governmental agencies may obtain confidential-source information “outside the subpoena process.” Read the article here.