Hole-in-One Leads to GC’s Deposition. Here’s How.

The Greenbrier Classic, the annual PGA Tour event in West Virginia, operated by Old White Charities, Inc., has a unique fan experience.  Each spectator receives $100 if a Tour player sinks a hole-in-one on the course’s par-3 18th hole, $500 if a second player aces the hole, and $1,000 if a third accomplishes the feat.

During the 2015 tournament, Greg McNeill sank a hole-in-one, providing the spectators with an instant $18,900 in cash.  Later that day, Justin Thomas used his pitching wedge to ace the 137 yard hole, giving the spectators another $173,500!  Alas, there was no third ace, but the spectators left the tournament with a collective payout of $192,400.  Read the ESPN article chronicling the feat here.

Insurance Coverage?

Surely the Classic’s operator, Old White, had insurance for such an unlikely yet expensive accomplishment?  Well, it thought so, but the insurance company denied coverage because the policy contained a hole-length-limitation clause requiring the shot to be at least 150 yards for coverage to apply.  With the PGA’s pin placement that day, the length from tee box to hole was only 137 yards—13 yards shy of the insurance company’s mandate.

No Way!

Old White sued its insurance agency, Bankers Insurance, alleging negligence for failing to procure coverage without a hole-length limitation.  During discovery, Old White moved to compel the deposition of Melvin Tull, Bankers Insurance’s General Counsel.  Bankers, which did not have the opportunity to file a written response, argued that, because Tull is a GC, “there is no way [a deposition] would not violate the attorney–client privilege.”

Yes, Way!

The court ruled that, regardless of the attorney–client privilege, Old White could depose the General Counsel.  The court noted that More…

Touch Base–Court Applies U.S. Privilege Law to German Internal Investigation

Foreign corporations with a significant U.S. presence increasingly face this question—which country’s privilege law applies when their U.S. lawyers communicate with the companies’ foreign employees?  The SDNY confronted this choice-of-privilege-law issue where a “principally” U.S. law firm conducted an internal investigation for a German company. In re: Ex Parte Application of financialright GmbH, 2017 WL 2879696 (SDNY June 22, 2017).  You may read the decision here.  Let’s discuss. More…

NY Client. SC Atty. Which State’s Privilege Law Covers Their Calls & Emails?

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…