MPR: Uber, Bengals, and a “Legal Nothingburger”?

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.

→The Google/Uber trade-secrets litigation has produced several privilege-related issues, as I profiled here and here—but 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 “privileged” even if they were not seeking legal advice.  See Jennifer Williams’ article on the issue, which quotes yours truly, for more information.

→A lawyer for the Trump Transition Team sent a letter, available here, informing House and Senate leaders that the Special Counsel’s Office (Mueller) “unlawfully” received privileged information from the General Services Administration.  Mueller’s office denies the allegations.  Read the CNN story here.  Katie Phang, MSNBC legal analyst (and an excellent trial lawyer) opines that the Transition Team’s privilege concern is a “legal nothingburger.”  See Katie’s commentary here.

→President Trump tweeted that he fired General Mike Flynn “because he lied to the Vice President and the FBI.”  This statement, of course, contradicts the President’s 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.  Trump’s lawyer, John Dowd, then claimed he wrote the tweet and made a mistake in the factual narrative.  Did Dowd waive the attorney–client privilege by revealing information behind the tweet?  One article claims yes!

→Nebraska prison officials have refused a public-records request to identify the supplier of lethal-injection drugs, claiming that the attorney–client privilege protects this information.  The ACLU claims that the government asserted the privilege in “bad faith,” while Governor Ricketts stated that the corrections department cited a “legitimate reason” for withholding the records.  Read the Omaha World-Herald story here.  The ACLU has now filed suit. Story here.

→In 2016, the Federal Circuit adopted an evidentiary privilege protecting from discovery communications between non-attorney patent agents and their clients.  In re Queen’s 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 Queen’s decision and creating a regulation-based privilege for these communications.  See 37 CFR § 47.52.

→Hamilton County, Ohio and the Cincinnati Bengals are in a dispute over (what else) money.  The County’s lease with the Bengals for Paul Brown Stadium provides that the County’s 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 attorney–client privilege.  The Bengals disagree. Story here.

→Imran Awan, a former IT and advisory aide to Rep. Debbie Wasserman Schultz who is currently defending bank-fraud charges, is asserting the attorney–client 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 Awan’s request regarding the privilege here, and The Daily Caller’s article here.

→Well, 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 “extremely concerning.”  Story here.