Gimme Back My (Privileged) Mediation Statement!

Now this is interesting.  A plaintiff sues a product distributor in California claiming product-related injuries.  She learns of a different plaintiff with a similar claim in New Jersey against the same distributor.  She subpoenas the distributor’s New Jersey mediation statement and, guess what—they produced it.  Yes, really.

So what happened?  The distributor sought to claw-back the mediation statement claiming the mediation privilege protected it.  And the court agreed, essentially blocking any waiver argument and chastising the plaintiff for even trying!  Lakes v. Bath & Body Works LLC, 2018 WL 2318106 (E.D. Cal. May 22, 2018).  You may read it here.

Yes, Really

Crystal Lakes sued Bath & Body Works alleging that she suffered burns when one of BBW’s candles “flared” and “exploded.”   Lakes learned of similar flaring litigation in New Jersey, and subpoenaed the “litigation records” from the NJ plaintiff’s counsel and BBW’s NJ counsel.  Both lawyers produced BBW’s “brief submitted in the mediation or settlement proceedings.”

BBW then filed a motion to claw-back its mediation statement from Lakes’ clutched hands, and Lakes countered with a motion to compel.  BBW argued that the mediation privilege required the statement’s return, but Lakes countered that BBW waived the privilege by producing it or, alternatively, that the court should impose a crime–fraud exception to the privilege. More…

Hole-in-One Leads to GC’s Deposition. Here’s How.

The Greenbrier Classic, the annual PGA Tour event in West Virginia, operated by Old White Charities, Inc., has a unique fan experience.  Each spectator receives $100 if a Tour player sinks a hole-in-one on the course’s par-3 18th hole, $500 if a second player aces the hole, and $1,000 if a third accomplishes the feat.

During the 2015 tournament, Greg McNeill sank a hole-in-one, providing the spectators with an instant $18,900 in cash.  Later that day, Justin Thomas used his pitching wedge to ace the 137 yard hole, giving the spectators another $173,500!  Alas, there was no third ace, but the spectators left the tournament with a collective payout of $192,400.  Read the ESPN article chronicling the feat here.

Insurance Coverage?

Surely the Classic’s operator, Old White, had insurance for such an unlikely yet expensive accomplishment?  Well, it thought so, but the insurance company denied coverage because the policy contained a hole-length-limitation clause requiring the shot to be at least 150 yards for coverage to apply.  With the PGA’s pin placement that day, the length from tee box to hole was only 137 yards—13 yards shy of the insurance company’s mandate.

No Way!

Old White sued its insurance agency, Bankers Insurance, alleging negligence for failing to procure coverage without a hole-length limitation.  During discovery, Old White moved to compel the deposition of Melvin Tull, Bankers Insurance’s General Counsel.  Bankers, which did not have the opportunity to file a written response, argued that, because Tull is a GC, “there is no way [a deposition] would not violate the attorney–client privilege.”

Yes, Way!

The court ruled that, regardless of the attorney–client privilege, Old White could depose the General Counsel.  The court noted that More…

Monthly Privilege Roundup: Giuliani, Greitens, and Schneiderman

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 2018.

→As profiled in this post, the Special Master reviewing Michael Cohen’s files to identify potentially privileged information has many issues to consider.  One thing she will not consider is whether the privilege covers Michael Gleason’s emails to Cohen regarding alleged sexual-abuse victims of former NY Attorney General Eric Schneiderman.  Judge Kimba Wood easily ruled that the common–interest doctrine offers no protection. You may read Gleason’s request here and Judge Wood’s ruling here.

→Speaking of the common–interest doctrine, attorney Larry Saylor published an excellent article on the subject in the May 2018 issue of the Michigan Bar Journal.  It’s worth a read, which you may do here.

→Cynthia Baldwin, former PA Supreme Court Justice and Penn State General Counsel, is facing potential disciplinary action for, among other things, violating the attorney–client privilege when she disclosed communications from Penn State officials.  You may read my post about Baldwin’s handling of the situation here, and an article from the Pittsburgh Post-Gazette on the disciplinary hearing here.

→In Arkansas, a local judge ordered Arkansas’ Attorney General to testify in a lawsuit claiming she acted in bad faith by refusing to insert language on a ballot initiative.  The court rejected the AG’s claim that the deliberative-process protects her discussions.  Apparently, Arkansas has no deliberative-process privilege.  You may read the story from UA Little Rock Public Radio here.

→In Stephanie Clifford’s currently stayed LA case against Michael Cohen, Clifford’s lawyer claims that he will depose Mayor Giuliani about his comments that President Trump More…