Let’s discuss conflicts-of-laws—privilege style. I know you want to.
Here is the scenario—NY client emails her SC-based attorney—which state’s privilege law applies? In Wellin v. Wellin, 211 F. Supp. 3d 793 (D.S.C. 2016), the USDC SC provided an informative analysis of the often-ignored conflict-of-privilege-law issue, and applied the Second Restatement’s paradigm in holding that SC privilege law applied. You may read the opinion here. Now, let’s break it down.
The Wellin case involves multiple lawsuits over the distribution of the substantial assets of Keith Wellin, a former Wall Street executive who died in 2014. Read his obituary here. Wellin’s eight grandchildren, non-parties to the litigation but contingent beneficiaries of one of Wellin’s Irrevocable Trusts, lawyered up with South Carolina counsel.
One of the grandchildren, Ann Plum, a New York-based otolaryngologist, sought a protective order to prevent deposition questions about communications she had with her South Carolina-based attorneys, her brother, cousins, and mother, and her mother’s attorney.
To determine the privilege issues, the court had to decide whether NY or SC law applied to the putatively privileged communications. In this diversity action, the court looked to FRE 501, which provides that “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” FRE 501, however, does not answer which state’s privilege law applies—the forum state or some other state. More…
It is not uncommon for a single lawyer to represent two or more plaintiffs in separate lawsuits against one defendant. If these plaintiffs–clients confer jointly with their lawyer, does the attorney–client privilege protect these discussions from discovery?
In a decision that properly distinguishes the joint–client doctrine and the common–interest doctrine, the USDC for Connecticut held—yes. Supreme Forest Prods., Inc. v. Kennedy, 2017 WL 120644 (D. Conn. Jan. 12, 2017). You may read the decision here.
Two Plaintiffs. One Lawyer.
Michael Kennedy and Ferrell Welch retained attorney Michael Reilly to sue their employer, Supreme Forest, for wrongful discharge. Mr. Reilly filed separate lawsuits on Kennedy and Welch’s behalf. During these lawsuits, Kennedy and Welch jointly participated in meetings with Reilly.
Supreme Forest later filed a separate action against Kennedy and Welch alleging the Kennedy and Welch’s secret tape-recordings of Supreme Forest employees gave rise to several state-law causes of action. In discovery, Supreme Forest sought communications from Kennedy and Welch’s joint meetings with attorney Reilly. More…
The USDC SDNY ruled that the attorney–client privilege and common–interest doctrine do not protect from discovery an Asset Purchase Agreement between two parties that later became co-plaintiffs in a patent-infringement suit. The court issued this ruling even though the APA contained a provision outlining the sharing of settlement or judgment proceeds, allocation of decisional authority, and distribution of costs in an anticipated patent-infringement action. AU New Haven, LLC v. YKK Corp., 2016 WL 6820383 (SDNY Nov. 18, 2016). You may read the decision here.
Common–Interest Doctrine: Identical Legal Interest Required?
The court reviewed current law on the scope and application of the common–interest doctrine, correctly noting that it is an exception to privilege waiver. The doctrine applies when the More…