Monthly Privilege Roundup: Mueller, PepsiCo, and Strip Clubs

After skipping an August update due to trial preparation, here is my Monthly Privilege Roundup of interesting privilege issues for August and September 2017.

  • The SEC is investigating whether PepsiCo fired its former General Counsel, Maura Smith, over her internal investigation into PepsiCo’s business practices related to an acquisition of a Russian company. How do we know?  A PepsiCo outside counsel mistakenly emailed a Wall Street Journal reporter who then wrote a story about it.  Read about the privilege-waiving email here, and the WSJ’s article here.
  • Another privilege battle is brewing over a law firm’s investigation into sexual assault claims against a school. You will recall a Texas federal court’s privilege-waiver ruling on Baylor’s investigation (read about it here); now, the school is Ooletwah High School outside of Chattanooga, Tennessee.  The Chattanooga Times-Free Press has a good write-up about the impending privilege ruling. Read it here.
  • Have you heard about the controversial ATF sting operation in Albuquerque, which allegedly led to disproportionate arrests of black and Hispanic individuals? The former U.S. Attorney for the District of New Mexico provided an interview about the operation, but declined to answer several questions, citing the attorney–client and deliberative-process privileges.  Read the story, complete with video of the interview, here.
  • A Reno City Attorney cited the attorney–client privilege in refusing to release an investigator’s report into Reno’s strip-club industry. But the City Manager, citing transparency goals, overruled the city attorney, waived the privilege, and produced the report.  You may read the story here, and view the report here.
  • Although an Iowa statute provides an Ombudsman with authority to review governmental agencies’ private sessions, the Iowa Public Information Board refused to permit an Ombudsman review, citing the attorney–client privilege. This interesting battle is one worth watching.  Story here.
  • Special Investigator Mueller has demanded significant communications and documents from the Trump Administration, and a decision looms whether to produce the documents or claim executive privilege. Recall, of course, the overheard discussion between Trump lawyers Ty Cobb and John Dowd, profiled in this post.  Good article from The Hill available here.
  • Charlottesville citizens appear upset at the City’s internal investigation into the handling of the white supremacist events this past summer.  One citizen anticipates the City will “hide” the investigation report under the attorney–client privilege because the investigator is a former U.S Attorney.  This is an interesting, developing story.  Read about it here.


MPR: Gitmo, Litigation Reports, and a Researcher-Participant Privilege?

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

  • Following a military judicial order, available here, that military prosecutors stop listening to conversations between Guantanamo Bay detainees and their military attorneys, a military defense lawyer renewed complaints that such attorney-client privilege breaches continue.  Read the defense lawyer’s letter here.  Military prosecutors respond that any listening is inadvertent.  Read the Miami Herald story here.
  • Ever heard of the researcher-participant privilege?  Karen Drake and Richard Maundrell published a thorough article discussing whether, under Canadian law, researchers who obtain research participants’ confidential information must disclose this information when subpoenaed.  You may read the article, published in the McGill Journal of Law & Health, here.
  • Will the Shelby County (Memphis) Board of Commissioners take some action against Board member Justin Ford following his “Alford” plea to a domestic-violence charge? The Board met in Executive Session to discuss, but the attorney-client privilege purportedly protects those discussions.  Story from the Commercial Appeal here.
  • Apparently thinking that it received too little in litigation updates, the Wilmington (DE) City Council recently passed an ordinance that requires the City Law Department to provide the Council and other “city officials” with bimonthly reports on pending litigation.  And others could obtain the reports through a public-records request. But would these reports reveal attorney-client privileged information? Read the story here.
  • Elizabeth L. Robinson recently published a nice piece in the North Carolina Law Review discussing whether strengthening the federal reporter’s privilege is moot given that governmental agencies may obtain confidential-source information “outside the subpoena process.” Read the article here.

MPR: HB2, Robert Hurst, and Fireworks!

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

  • The Idaho Attorney General released an opinion declaring that it is illegal to sell aerial fireworks to the public. The AG’s opinion came at the request of a state legislator, but the AG did not release it citing attorney–client privilege.    The legislator released the opinion, and now local law-enforcement authorities must decide how to enforce the “privileged opinion.”  Story here.
  • Interesting privilege issue bubbling in Utah, where the AG refused to release an opinion on whether Governor Herbert had the authority to set up a special election for an open U.S. House seat. Story here.
  • Remember North Carolina’s HB2 bill? The Charlotte Observer now seeks HB2-related emails from state legislators, but they refuse to produce on grounds that the “legislative privilege” protects them.  Story here.
  • A lawyer and former high-school classmate of eccentric millionaire Robert Hurst, featured in the HBO series “The Jinx: The Life and Deaths of Robert Durst,” is trying to escape testifying in a pretrial hearing in Durst’s criminal prosecution over the death of his former girlfriend. The friend claims that the attorney–client privilege protects some of his testimony.  Story here.
  • Remember the story about prison guards allegedly listening to inmates’ conversations with their attorneys at the Leavenworth Detention Center? A federal judge ordered an investigation into the matter.  Now, two inmates have filed a class-action lawsuit claiming that the guards’ actions violated the inmates’ attorney–client privilege and Sixth Amendment rights.  You may read the lawsuit here, and the news story here.
  • In the criminal-contempt trial of “America’s Sheriff” Joe Arpaio, Arpaio’s former attorney testified about why he withdrew from his representation. He would not go further, however, citing privilege grounds.  Story here.
  • In the criminal case involving South Carolina state representative Rick Quinn, a judge rejected Quinn’s argument that the prosecutor acted improperly by seizing documents and computers from the office of Richard Quinn & Associates. They claimed the prosecutor did not properly protect against the review of privileged documents. The judge disagreed. Story here.