Faced with a damaging market-analyst report and a plummeting stock price, BlackBerry’s CLO entered crisis-management mode. He directed a fact investigation into the report and worked with PR consultants to publish an immediate press-release rebuke.

But in a subsequent securities-fraud class action, a court rejected the CLO’s privilege claims over these activities. The ruling came despite the CLO’s declaration that his efforts were to advise BlackBerry about various “legal avenues.” Pearlstein v. BlackBerry Ltd., 2019 WL 1259382 (SDNY Mar. 19, 2019).

This opinion, available here, contains valuable lessons for corporate legal counsel and those seeking to pierce privilege claims related to crisis-management efforts. So, let’s explore it.

Illegal Data, Damaging Report, and a Press Release

Not long after BlackBerry launched its Z10 smartphone in 2013, Detwiler Fenton & Co. issued a market-research report on April 11, 2013, stating that customer returns of the Z10 phones were exceptionally high. Read the WSJ report, available here, for the key language.

As it turns out, Detwiler based its report on information received from James Dunham, the former COO of Wireless Zone, which operates several Verizon Wireless outlets. Dunham later pled guilty to wire fraud. You may read more about this story here.

BlackBerry’s stock immediately declined, and BlackBerry went into crisis-management mode. The CLO directed his in-house legal team Keep Reading this POP Post

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Eighty years after Rhett Butler rejected Scarlett O’Hara’s plea for reconciliation, a court has rejected Scarlett Palm’s plea to drastically alter the concept of at-issue waiver.

We know that, for the most part, a party waives the privilege, such as the attorney–client privilege or psychiatrist–patient privilege, by basing a claim or defense on the privileged subject, like legal advice or one’s mental health. But can a party to a civil lawsuit affirmatively put the opposing party’s privileged subject at issue and then pierce the privilege by claiming at-issue waiver?

Scarlett (of Illinois, not Tara) presented this novel argument, but in an issue of first impression, the Illinois Supreme Court ruled that only the privilege holder—not an adversary—controls when the at-issue waiver doctrine applies. Palm v. Holocker, 2018 IL 123152 (Ill. Feb. 28, 2019). You may read the opinion here. Let’s explore this interesting and little-addressed privilege topic.Keep Reading this POP Post

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Many times your best testifying subject-matter expert is right under your nose—your corporate client’s own employee. If properly handled, the attorney–client privilege protects from discovery in-house and outside counsel’s communications with the client’s employees. But if you turn an employee into a testifying expert, does the privilege evaporate?

Federal Rule of Civil Procedure 26(b)(4)(C), at least since 2010 and subject to minor exceptions, expressly protects lawyer–expert communications, whether an employee or third-party. But many state civil-procedure rules do not follow the federal model, and the issue remains subject to a mixture of evidence rules, civil-procedure rules, and common-law interpretations.

Texas has now spoken. The Texas Supreme Court held that the attorney–client privilege covers a lawyer’s communications with an employee–expert, including the lawyer’s revisions to the expert’s affidavit. In re City of Dickinson, 2019 WL 638555 (Tex. Feb. 15, 2019). You may read the opinion here.

Let’s discuss the Court’s reasoning, and how it may affect other states where the issue remains unanswered.

Hurricane Ike

Privilege issues always arise after some event triggers litigation, and here it was Hurricane Ike, Keep Reading this POP Post

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It’s one of the first steps. Upon learning of an event—an accident, a breach—that makes one contemplate litigation, a party’s lawyer or the lawyer’s investigator interviews nonparties with relevant knowledge. These interviews produce facts, of course, but also could contain, directly or indirectly, the lawyer’s mental impressions or legal strategies about important things such as the strength of a potential claim, liability exposure, or damages.

The interview results come in different forms. Some lawyers audio- or video-tape a question-and-answer session with the potential witness; others translate the witness’s comments into a sworn declaration; while still others memorialize the interview in a lawyer-prepared memorandum. And when litigation erupts and the adversary moves to compel the recorded interview, the declaration, or the memorandum, the party’s lawyer chuckles while asserting the work-product doctrine.

The chuckling stops, however, when the lawyer sees how courts have ruled in a seemingly complex maze of fact work-product and opinion work-product. Isn’t a recorded interview simply a recitation of facts devoid of an attorney’s mental impressions? Same goes for a signed witness statement, right? “Facts aren’t privileged” is a familiar if inapposite refrain. “Just redact the lawyer’s comments and produce the facts” is another.

Maybe one court has answered these questions and solved the nationwide inconsistency. Let’s discuss.Keep Reading this POP Post

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Although subject to heightened scrutiny in most privilege analyses, in-house lawyers still have more than a puncher’s chance to secure privilege protection—so long as they prove the requisite privilege elements. But, as adidas America recently learned, companies cannot rely on conclusory statements or ipse dixit arguments to persuade a federal court that the privilege protects an in-house lawyer’s emails from discovery. LPD New York, LLC v. adidas America, Inc., 2018 WL 6437078 (EDNY Dec. 7, 2018). You may read the opinion, which offers a bevy of lessons for in-house counsel, here.

Procedure and No Substance

In this breach-of-contract and IP-related lawsuit over development of “Classic Tees” for certain NCAA blue-blood basketball programs, LPD New York, a fashion designer, sought production of adidas’ in-house lawyers’ emails involving adidas employees. Read LPD’s letter motion here.

Some of the emails LPD sought were from adidas employees to an in-house lawyer, other emails referenced adidas’ in-house lawyers, and other emails were between non-lawyer employees that copied an in-house lawyer. Yet, adidas’ primary arguments against production were procedural, not substantive. If the procedural arguments failed, then adidas simply argued that LPD’s motion was otherwise “unsupported by the law.”

That’s it. Read adidas’ response here.

Conclusory Statements Insufficient to Sustain Privilege Objection

In rejecting adidas’ privilege defenses, the court noted that, other than saying that LPD’s privilege position was “unsupported by the law,” adidas “provide[d] no further explanation, evidentiary showing, or legal analysis.” The court found that this “perfunctory assertion” constitutedKeep Reading this POP Post

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