We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is my Monthly Privilege Roundup of interesting privilege issues for December 2017.
→The Google/Uber trade-secrets litigation has produced several privilege-related issues, as I profiled here and here—but nothing like this. The court delayed the trial after the ND Cal. U.S. Attorney revealed a letter (available here) from a former Uber employee claiming that a former Uber in-house attorney instructed employees to mark emails as “privileged” even if they were not seeking legal advice. See Jennifer Williams’ article on the issue, which quotes yours truly, for more information.
→A lawyer for the Trump Transition Team sent a letter, available here, informing House and Senate leaders that the Special Counsel’s Office (Mueller) “unlawfully” received privileged information from the General Services Administration. Mueller’s office denies the allegations. Read the CNN story here. Katie Phang, MSNBC legal analyst (and an excellent trial lawyer) opines that the Transition Team’s privilege concern is a “legal nothingburger.” See Katie’s commentary here.
→President Trump tweeted that he fired General Mike Flynn “because he lied to the Vice President and the FBI.” This statement, of course, contradicts the President’s earlier statements More…
In a colorful and refreshingly thorough opinion by Judge Iain D. Johnston, the USDC NDIL—Western Division—refused to adopt the self-critical analysis privilege under federal common law. While a handful of federal courts recognize the privilege, most either reject the privilege or determine that, “without deciding whether the privilege exists,” it does not apply to the facts of that particular case.
Judge Johnston’s opinion addresses the privilege head-on, and I recommend his opinion as the starting place for any lawyer’s research on (1) the legal analysis for recognizing new federal common-law privileges and (2) the national status of the self-critical analysis privilege. Lund v. City of Rockford, Case No. 3-17-cv-50035 (N.D. Ill. Nov. 29, 2017). You may read the decision here.
The Rockford (Ill.) Police Dep’t arrested William Lund, but state prosecutors later dismissed the charges. Lund filed an Internal Discipline Complaint over the incident, and the RPD investigated the arrest and prepared an 88-page report.
During discovery in Lund’s subsequent § 1983 civil action against the City of Rockford, the City produced a redacted version of the report. Lund moved to compel an unredacted copy, and the City asserted that the self-critical analysis privilege protected the full report from discovery.
What is the Self-Critical Analysis Privilege?
The self-critical analysis privilege (SCAP), sometimes called the self-evaluative or self-investigation privilege, generally protects confidential assessments, evaluations, investigations, or audits designed to improve a company’s processes. The concept is that, More…
Donald Trump, Jr.’s attorney–client privilege assertion over discussions with President Trump—in the presence of lawyers—has generated significant commentary on television news shows, and in news articles and opinion columns. Some claim the privilege assertion was “brazen” and “unequivocally” wrong, while others see merit in the privilege argument or take a wait-and-see approach.
This is political—not legal—theater.
Many have expressed an interest in my analysis. So, here it is—my objective, non-political, legal analysis of the Trump Jr.’s privilege claim based on what we know. Those seeking blind support of the privilege assertion or a conclusory, hyperbolic denouncement should look elsewhere. More…