Monthly Privilege Roundup: Sessions & Pence, Switzerland, and Jodi Arias’ Lawyer Reply

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  After skipping an October roundup due to a trial, here is a roundup of interesting privilege issues for November 2016.

  • With Senator Sessions’ likely appointment as Attorney General, many are asking whether the Yates Memorandum and its stance on seeking privilege waiver for cooperation credit will change. Jeff Wood’s article in InsideCounsel addresses the issue, and the National Law Journal has comments from Deputy Attorney General Sally Yates.
  • For a refresher on the Yates Memorandum’s effect on the attorney–client privilege, see my article titled Protecting Privilege in a Post-Yates Memorandum World.
  • Vice President–Elect Mike Pence is asserting, in part, the attorney–client privilege as the legal basis to withhold communications with other governors regarding a potential legal challenge to President Obama’s immigration executive order. Story here.
  • A Switzerland federal court issued an opinion that the attorney–client privilege did not protect a company’s outside counsel’s internal investigation report from disclosure to the Switzerland Attorney General.   Story here.
  • The New Mexico Public Defender’s office is defending a former luxury home builder against fraud and embezzlement charges, but, citing the attorney–client privilege, refuses to identify the costs to do so in response to a public-records request. Not sure this will turn out well for the Public Defender’s office.  An editorial in the Albuquerque Journal is here.
  • Remember Jodi Arias, the Arizona woman who spent 18 days on the witness stand and was convicted of brutally killing her boyfriend? Arizona disbarred her former attorney, Kirk Nurmi, for publishing a book about the case that revealed communications in violation of the attorney–client privilege.  Arias’ new lawyer stated that the privilege “follows you to the grave.”  Interesting choice of words.  Story here.
  • A Texas federal judge issued an injunction prohibiting enforcement of the Department of Labor’s so-called “persuader rule” that would have required violation of the attorney–client privilege.  Story here, and my blog post about the persuader rule is here.

Court Rules that Party Waived Privilege Despite a 502(d) Order 1

The USDC for the EDNY ruled that a party cannot “claw back” privileged documents, disclosed without a privilege review, because it failed to waiverproperly object when opposing counsel questioned a deponent about them.  This waiver ruling came despite the party having previously secured a FRE 502(d) protective order providing that the party does not waive any privilege claim by disclosing information later identified as privileged.  Certain Underwriters at Lloyd’s, London v. Nat’l R.R. Passenger Corp., 2016 WL 6875968 (E.D.N.Y. Nov. 17, 2016).  You may read the decision here.

502(d) Orders

Fed. R. Evid. 502(d) permits federal courts to enter an order precluding privilege waiver “by disclosure connected with the litigation pending before the court.”  The Advisory Committee’s notes explain that the rule allows “parties to conduct and respond to discovery expeditiously, without the need for exhaustive pre-production privilege reviews.”  The rule is not a selective-waiver doctrine, and does not alter common-law privilege waiver “resulting from having acquiesced in the use of otherwise privileged information.”

U.S. Magistrate Judge Andrew Peck of the SDNY has a succinct sample 502(d) order that you may review here.

Order and Disclosures

In Certain Underwriters, the court entered a 502(d) protective order, which you may review here, providing that the parties do not waive privilege by disclosing information that is later identified as privileged.  The non-waiver provision’s purpose was to “streamline and expedite” the initial document production without taking a document-by-document review or a privilege review of any kind.

The defendant, Amtrak, produced thousands of documents under this order.  At a subsequent deposition of an Amtrak employee, plaintiff’s counsel pulled two of these documents and questioned the deponent about them.  Amtrak noted one document contained a “work product” designation and “reserved its rights” to object.  For the second, Amtrak did not make a privilege objection but refused to permit the deponent to answer questions about communications with an in-house lawyer mentioned in the document.

The next day, Amtrak sent a letter asserting privilege over and “clawing back” both documents under the 502(d) order.


In response to plaintiff’s motion to compel, the court held that its 502(d) order may prevent privilege waiver where a party discloses privileged information, but the subsequent use of that information during a deposition can waive the privilege.  The court specifically found that Amtrak waived the privilege for the two documents “by failing to seek to preclude their introduction and use at the [employee] deposition.”

PoP Analysis

This case highlights the very real difference between simply disclosing privileged information under a 502(d) protective order and allowing the ultimate use of that privileged information.  One could try to incorporate non-waiver language in the 502(d) order for inadvertent use of privilege information, but that likely draws an objection and is arguably outside 502(d)’s scope—which mentions only “disclosure.”

The ultimate lesson, then, is that lawyers cannot rely on 502(d) orders to support a non-waiver argument if they permit the document’s use at a deposition or in motion practice.  Lawyers must remain diligent to object to their use and seek further court protection before continuing with any deposition or motion hearing.

Don’t Want to Reveal Your Clinton or Trump Vote? There’s a Privilege for That Reply

With the Republican and Democratic presidential nominees’ favorability ratings at unprecedented lows, many voters will likely emerge from their polling stations embarrassed to admit that they voted for Trump, or for Clinton.   News reports also suggest that the polls are skewed because those contacted by pollsters do not want to admit they prefer one or the other.

Certainly you have no obligation to reveal your vote to family, friends, or pollsters, but may a court ever compel you to reveal your ballot selection?  The answer is no—the political-vote privilege, recognized by most states, protects your vote from compelled disclosure, except in limited situations.


Federal Law

The Proposed Federal Rules of Evidence 507 contained a political-vote privilege which provided that “[e]very person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot unless the vote was cast illegally.”  Congress rejected this and other enumerated privileges, leaving privilege development to the evolution of common law.  Since then, only a few courts have recognized a political-vote privilege. See, e.g., In re Dinnan, 661 F.2d 426, 431–32 (5th Cir. 1981); D’Aurizio v. Borough of Palisades Park, 899 F. Supp. 1352 (D.N.J. 1995).  No court has rejected the privilege.

State Law

The majority of states recognize a political-vote privilege.  Some follow either the Model Code of Evidence or the Uniform Rules of Evidence and include a political-vote privilege in their rules of evidence.  Other states follow the federal model and leave the issue to common-law development, and most of these states have adopted the privilege.  The map above shows where all states stand.

The only exception to the privilege arises where there is a finding that a person cast his or her vote illegally.  Otherwise, the political-vote privilege should shield a court from compelling you to identify whether you voted for Clinton, Trump, or anyone else.

Outside the courtroom, the privilege also serves as a handy answer when quizzed about your ballot selection at cocktails parties and Thanksgiving gatherings.  It’s your privilege—use it as you wish.