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.

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.