Baylor Univ. in Major Privilege Battle over Law Firm’s Investigation Documents Reply

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

A significant privilege affray is unfolding over Baylor University’s retention of the Pepper Hamilton law firm to investigate Baylor’s handling of sexual-assault complaints.

The question before the USDC in Waco is whether the attorney–client privilege protects from discovery Pepper Hamilton’s witness interviews and documents reviewed. The court’s upcoming decision may offer important lessons to organizations conducting internal investigations, including how to handle a post-investigation release of information.

You will recall that, following Pepper Hamilton’s investigation, Baylor fired its football coach, Art Briles, and demoted its president, Judge Kenneth Starr.  And while Pepper Hamilton prepared a list of “Recommendations,” available here, it did not deliver a formal written report of its investigation.  You may read more about the so-called “lack of a paper trail” in this New York Times article.

The plaintiffs in Jane Doe v. Baylor University, No. 6:16-cv-173-RP-JCM (USDC WD Tex.), a Title IX case, filed a motion to compel Baylor to “produce all materials provided to or produced by Pepper Hamilton.”  In essence, the plaintiffs seek a ruling that the attorney–client privilege does not protect the law firm’s investigation materials, and assert two arguments in support. More…

General Sessions and Executive Privilege Reply

Chief-Executive Communications Privilege, Executive Privilege, Waiver • Tags: , , , ,

Over the last 24 hours, senators, reporters, and political pundits have generated lots of commentary over Attorney General Jeff Sessions’ refusal to reveal his communications with President Trump during testimony before the Senate Intelligence Committee.  Mr. Sessions cited, but did not invoke, the executive privilege as grounds for refusing to testify.

The Washington Post published this analysis quoting lawyers and law professors’ views on executive privilege.  In this online article, CNN reported on Mr. Sessions’ specific testimony and identified two 1982 DOJ memoranda from President Reagan’s administration as support.  The Wall Street Journal had this brief report on Mr. Sessions’ privilege assertion, and the L.A. Times, in this article, reported on Mr. Sessions’ exchanges with Senators Heinrich and King.

You may see Attorney General Sessions’ privilege assertion in response to Senator Heinrich’s questioning in this video clip from PBS NewsHour.

And you may see his explanation for refusing to reveal his communications with President Trump in this video clip from PBS NewsHour.

Mr. Sessions essentially stated that, although President Trump has not specifically invoked executive privilege, he was not at liberty to answer questions until the President had an opportunity to consider the question and then determine whether to invoke the privilege.

Commentators have raised several questions about the executive privilege’s application to Sessions’ testimony, stating that the requested testimony did not involve national security issues or pertain to an ongoing investigation.  And they question whether the Attorney General may refuse to answer questions when the President has not invoked the privilege.

So, let’s examine these issues from a legal, not political, perspective.

First, as explained in my recent post titled Trump, Comey, and Executive Privilege, the “executive privilege” is a broad phrase that encompasses various subcategories of privilege covering military secrets, grand-jury testimony, law-enforcement investigations, agencies’ deliberative processes, and presidential communications.

As with Director Comey’s testimony, Mr. Sessions’ potential testimony revealing his conversations with President Trump fall within the presidential communications privilege.  The presidential-communications privilege protects from disclosure communications that the President and/or his top advisors made in the performance of the President’s responsibilities.  The privilege is qualified and may be overcome by upon a sufficient demonstration of need and that this evidence is not available from alternative sources.

Second, the President holds the presidential communications privilege and only he can waive it. Think of the attorney–client privilege analogy: the client, not the lawyer, holds the privilege and only the client can waive it.  If one asks a lawyer to reveal what her client said in a private meeting, the lawyer would state that she cannot answer unless her client authorizes disclosure.

Here, while Mr. Sessions does not hold the privilege and cannot officially invoke it, he cannot reveal his conversations with the President unless authorized to do so—meaning that the President has decided to waive the privilege.  According to Mr. Sessions, the President has not broadly invoked the presidential communications privilege regarding the testimony, but also has not considered the privilege with respect to the specific questions raised during the hearing.

Third, what is the process for procuring Mr. Sessions’ testimony now that he has refused to answer?  The Senate Intelligence Committee could (1) work with the Trump administration to determine whether he plans to invoke the privilege and, if not, bring Sessions back to answer the questions; or (2) challenge Sessions’ refusal to testify in court and seek a ruling on whether the privilege even applies.

As noted in my earlier post, and my Law360 article, the latter option presents a long, time-intensive process with no quick resolution.  Commentators who claim that a court will not uphold the privilege may be right, or they may be wrong.  The truth is that we will not know until the matter is actually litigated.

Law Firm DQ’d for Use of Inadvertently Disclosed Privileged Email Reply

Attorney-Client Privilege, Inadvertent Disclosure, Waiver • Tags: , ,

In a 2–1 decision, a California appellate court upheld a trial court’s disqualification of a law firm after one of its lawyers decided not to return an adversary’s privileged email and to use it offensively before obtaining a court order allowing him to do so.  The court issued the ruling even though the lawyer received the privileged email from his client—not opposing counsel—and it facially appeared that the opposing party had waived the privilege by forwarding to a third-party.  McDermott Will & Emery LLP v. Superior Court, 217 Cal. Rptr. 3d 47 (Ct. App. 2017).  You may read this lengthy—but instructive—opinion here.

Client Sends Privileged Email to Third-Party

The facts are a bit convoluted, so I’ll try to simplify.  Dick Hausman, the 80 year-old son-in-law of Allergan Pharmaceuticals’ founder, was the president of a holding company that managed the family’s investment portfolio.  The McDermott firm represented the holding company.  Mr. Hausman’s son, Rick Hausman, later became president and “a struggle for control” of the holding company ensued.  Dick Hausman retained lawyer Mark Blaskey to represent him in these disagreements. More…