We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is my Monthly Privilege Roundup of interesting privilege issues for December 2017.
âThe Google/Uber trade-secrets litigation has produced several privilege-related issues, as I profiled here and hereâbut nothing like this. The court delayed the trial after the ND Cal. U.S. Attorney revealed a letter (available here) from a former Uber employee claiming that a former Uber in-house attorney instructed employees to mark emails as âprivilegedâ even if they were not seeking legal advice.  See Jennifer Williamsâ article on the issue, which quotes yours truly, for more information.
âA lawyer for the Trump Transition Team sent a letter, available here, informing House and Senate leaders that the Special Counselâs Office (Mueller) âunlawfullyâ received privileged information from the General Services Administration. Muellerâs office denies the allegations. Read the CNN story here. Katie Phang, MSNBC legal analyst (and an excellent trial lawyer) opines that the Transition Teamâs privilege concern is a âlegal nothingburger.â See Katieâs commentary here.
âPresident Trump tweeted that he fired General Mike Flynn âbecause he lied to the Vice President and the FBI.â This statement, of course, contradicts the Presidentâs earlier statements that he fired Flynn solely for lying to the VP, and calls into question whether and when the President knew that Flynn lied to the FBI. Trumpâs lawyer, John Dowd, then claimed he wrote the tweet and made a mistake in the factual narrative. Did Dowd waive the attorneyâclient privilege by revealing information behind the tweet? One article claims yes!
âNebraska prison officials have refused a public-records request to identify the supplier of lethal-injection drugs, claiming that the attorneyâclient privilege protects this information. The ACLU claims that the government asserted the privilege in âbad faith,â while Governor Ricketts stated that the corrections department cited a âlegitimate reasonâ for withholding the records. Read the Omaha World-Herald story here. The ACLU has now filed suit. Story here.
âIn 2016, the Federal Circuit adopted an evidentiary privilege protecting from discovery communications between non-attorney patent agents and their clients.  In re Queenâs University at Kingston, 2016 WL 860311 (Fed. Cir. Mar. 7, 2016). Read my discussion here. The USPTO issued a new rule, effective December 7, 2017, following the Queenâs decision and creating a regulation-based privilege for these communications. See 37 CFR § 47.52.
âHamilton County, Ohio and the Cincinnati Bengals are in a dispute over (what else) money. The Countyâs lease with the Bengals for Paul Brown Stadium provides that the Countyâs reimbursement of game-day expenses increases 5% through 2026. The County apparently obtained a legal opinion that the provision is invalid, but will not release the opinion due to the attorneyâclient privilege. The Bengals disagree. Story here.
âImran Awan, a former IT and advisory aide to Rep. Debbie Wasserman Schultz who is currently defending bank-fraud charges, is asserting the attorneyâclient privilege over a notebook and laptop found in a backpack he left in a phone booth. Wasserman Schultz wants the laptop returned to her. Read Awanâs request regarding the privilege here, and The Daily Callerâs article here.
âWell, it looks like more law-enforcement officials have recorded jailhouse conversations between criminal defendants and their lawyers. In the Cliven Bundy case, prosecutors shared recorded conversations between a former co-defendant, Blaine Cooper, and his attorney, Krista Shipsey. Shipsey called the revelations âextremely concerning.â Story here.
The link to the former Uber employee’s letter refers to the Langhoffer letter. (“langhofer-letter1.pdf” vs. “langhofer-letter.pdf”)
Corrected the link. Thanks for the heads-up.