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.
Privilege issues always arise after some event triggers litigation, and here it was Hurricane Ike, More…
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” constituted More…
If an insurance company may have to pay a claim, it typically sets aside a sum of money—the reserve—to fund that claim if and when payment becomes necessary. And if the company’s in-house claims counsel decides the reserve amount, the question arises whether the attorney–client privilege or work-product doctrine protects that decision from discovery.
The Arizona federal court, applying federal law, rejected a surety company’s privilege and work-product arguments, and ordered it to disclose its reserve amount to its adversary. The court made this ruling even though the company’s Senior Claims Counsel “solely” set the amount “in his capacity as legal counsel.” Western Surety Co. v. United States, 2018 WL 6788665 (D. Ariz. Dec. 26, 2018). You may read the decision here. More…