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.
In a fraudulent-transfer lawsuit arising out of a bankruptcy action, a Florida bankruptcy court ruled that a defendant-bank’s assertion of a good-faith defense waived the attorney–client privilege over emails between bank employees and its counsel. The court, however, limited the waiver to documents evidencing the bank’s state-of-mind during the period of the alleged improper transfers. In re: Mongelluzzi, 2017 WL 1843049 (Bankr. M.D. Fla. May 8, 2017). You may read the decision here.
Frank Mongelluzzi owned and operated several companies, and he and his business entities maintained 61 accounts at a regional bank. After Mongelluzzi and his companies filed bankruptcy, the bankruptcy trustees filed various complaints against the bank seeking to avoid allegedly fraudulent transfers under 11 U.S.C. § 548.
The trustees claimed that Mongelluzzi and his companies had engaged in a check-kiting scheme, that the bank had knowledge of this scheme, and that the bank devised a controlled exit strategy to reduce its financial exposure from $25M to $3M.
Good-Faith Defense and At-Issue Waiver More…
Let’s discuss conflicts-of-laws—privilege style. I know you want to.
Here is the scenario—NY client emails her SC-based attorney—which state’s privilege law applies? In Wellin v. Wellin, 211 F. Supp. 3d 793 (D.S.C. 2016), the USDC SC provided an informative analysis of the often-ignored conflict-of-privilege-law issue, and applied the Second Restatement’s paradigm in holding that SC privilege law applied. You may read the opinion here. Now, let’s break it down.
The Wellin case involves multiple lawsuits over the distribution of the substantial assets of Keith Wellin, a former Wall Street executive who died in 2014. Read his obituary here. Wellin’s eight grandchildren, non-parties to the litigation but contingent beneficiaries of one of Wellin’s Irrevocable Trusts, lawyered up with South Carolina counsel.
One of the grandchildren, Ann Plum, a New York-based otolaryngologist, sought a protective order to prevent deposition questions about communications she had with her South Carolina-based attorneys, her brother, cousins, and mother, and her mother’s attorney.
To determine the privilege issues, the court had to decide whether NY or SC law applied to the putatively privileged communications. In this diversity action, the court looked to FRE 501, which provides that “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” FRE 501, however, does not answer which state’s privilege law applies—the forum state or some other state. More…