MPR: Falwell, Jr., Uber, and a Personal Lawyer for Trump?

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is my Monthly Privilege Roundup of interesting privilege issues for May 2017.

  • Remember the internal investigation into Baylor University’s sexual assault scandal? A former Baylor student pursuing Title IX claims against the university sought the deposition of Jerry Falwell, Jr. because Baylor’s Regents told Falwell “everything the investigating law firm had to say about what happened.”  The student argued privilege waiver for the investigation results, but the court tabled Falwell’s deposition for now, but may allow it later.  Stay tuned to this developing issue, and read the current opinion here.
  • In the pending trade-secrets case where Waymo alleges that Uber stole its technology to develop self-driving vehicles, there is a brewing privilege battle over Uber’s due diligence document associated with its acquisition of Otto, the self-driving truck start-up.  Read BuzzFeed’s story here.
  • The Fifth Circuit issued an instructive opinion regarding the adequacy of privilege logs and the necessity of trial courts conducting in camera reviews. Read the Bloomberg BNA’s article on the decision, which quotes yours truly, here.
  • To secure attorney-client privilege protection, does President Trump need a personal lawyer for the investigation into his campaign’s ties to Russia, or may he claim privilege over his discussions with lawyers in the office of Counsel to the President?  This article and this one discuss the issue.
  • The Indiana Supreme Court refused to review a lower court ruling that the attorney-client privilege protects former Governor and now VP Mike Pence’s emails from disclosure under a public-records request.  Story here.
  • A UK court recently permitted the country’s Serious Fraud Office to breach the attorney-client privilege and obtain access to a company’s internal investigation.  Interesting ruling that the company will appeal.  Story here.
  • South Dakota’s Attorney General is compelling a journalist to testify about her observations on tour of a local Tribe’s marijuana fields. Is that permissible, or does the journalist privilege prevent this?  Read the story here.
  • Shook Hardy & Bacon LLP published a blog post, available here, discussing a recent California decision applying the work-product doctrine to a forensic firm’s report following a data-breach investigation.

MPR: Giuliani, O’Reilly, and the False Claims Act

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is my Monthly Privilege Roundup of interesting privilege issues for April 2017.

  • Bill O’Reilly’s attorneys “mistakenly” sent emails between them and the former Fox News commentator.  The attorney-client privilege almost certainly protected these emails, but to the extent they become relevant in any subsequent litigation, there is a strong waiver argument.  Read the story here.


  • Former NY Mayor Rudy Giuliani and former U.S. Attorney Michael Mukasey are involved in seeking “a diplomatic solution” to end the case of a Turkish trader accused of violating US sanctions against Iran.  The trader’s lawyer will not reveal the substance of the diplomatic help, asserting the attorney-client privilege.  See the NY Post story here.


  • In a public-records case, a Hawaii state judge ruled that the attorney-client privilege covers an investigation of the state auditor by the Highway Department of the Attorney General’s office.   The requestor’s attorney called the ruling an “overly broad interpretation of the attorney-client privilege.”  Read the story here.


  • A South Carolina court recently held that defendants waive any attorney-client privilege assertions in FCA cases when they assert and advice-of-counsel defense.  BloombergBNA has a story about the decision here.


  • Wright State University, under criticism for mishandling research monies, refused to release portions of the independent audit investigation, citing the attorney-client privilege.  The University’s redactions sparked more criticism for lack of transparency.  Story here.


  • Sweden is considering imposing new disclosure obligations on tax advisors, but some in the Swedish bar believe this will conflict with the attorney-client privilege. Story from Bloomberg BNA here.

MPR: Trump & Yates, Baseball, and America’s Sheriff

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is my Monthly Privilege Roundup of interesting privilege issues for March 2017.

  • The Washington Post reports that that Trump administration, citing the attorney-client privilege and presidential communications privilege, sought to prevent former DAG Sally Yates from testifying in Congress’s probe into connections between the Trump campaign and Russian officials.  Story here.
  • Former Maricopa County Sheriff Joe Arpaio, known as “America’s Sheriff,” asserts that the attorney-client privilege precludes his former attorney from testifying in the Sheriff’s trial for criminal contempt charges.  Story from Arizona here.
  • Well, it is baseball season.  Law360 reports that, in a suit over failed expansion of the independent Frontier League, the Rockford Aviators’ CEO claims that the Washington (PA) Wild Things’ CEO improperly withheld documents under the attorney-client privilege.  Law360 has the details here.
  • The Global Legal Post reports on a British decision that purportedly “causes concern over privilege for internal investigations.”  Read the report here.
  • In a common-sense ruling, a West Virginia federal court ruled that transmitting privileged document via a file sharing site–without making it password-protected, waived the privilege.  Interesting factual situation led to this decision, and you may read about it here.
  • The Belmont Law Review published a Note discussing how the attorney-client privilege applies to a company’s former employees.  You may recall that the Washington Supreme Court recently held that the privilege does not apply to former employees–an opinion that I discussed in this post.  This law review article provides a good overview of the issue and is worth the read.  Heath Henley, The Attorney-Client Privilege and Former Employees: History, Principle, and Precedent, 3 Belmont L. Rev. 229 (2016).