Sometimes, it’s about making the most of a second chance. The SD of Ohio found that Proctor & Gamble completely failed to prove that the attorney–client privilege or work-product doctrine protected certain documents from discovery.
Yet, the Court gave P&G a mulligan. And in its second chance, P&G submitted “competent evidence” to prove privilege protection—including over emails that did not include attorneys. McCall v. The Proctor & Gamble Co., 2019 WL 3997375 (SD Ohio Aug. 22, 2019). You may read the opinion here.
You Lose, but ….
World-renowed photographer, Annette Navarro and her LLC sued P&G and Wal-Mart for copyright infringement over their alleged improper use of Navarro’s images on Olay products. You may read the news story in this Cincinnati Business Courier article.
P&G withheld a variety of communications from discovery on privilege grounds, including several emails “in which an attorney does not appear in the ‘to,’ from,’ or ‘cc’ fields.” When Navarro moved to compel them for lack of privilege protection, P&G filed a response, available here, arguing the privilege applied but without any evidence to support the argument.
The Court, in its opinion available here, noted that