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.
In a FCRA putative class action, a Washington federal court quashed a deposition notice for a defendant–company’s litigation support specialist based in the legal department. The court treated her as the General Counsel’s agent for privilege purposes, and used the Shelton doctrine to preclude her deposition testimony. Broyles v. Convergent Outsourcing, Inc., 2017 WL 2256773 (W.D. Wash. May 23, 2017). You may read the decision here.
What is a Litigation Support Specialist?
I suppose the duties of a Litigation Support Specialist vary from company to company, but likely include general paralegal duties and/or e-discovery duties. In Broyles, Alisia Stephens worked as a Litigation Support Specialist for Convergent Outsourcing, a collection agency, under the direction of Convergent’s General Counsel. Her duties included reviewing complaints, investigating the complaint’s allegations, and engaging in settlement-related communications with plaintiffs’ counsel before retaining outside counsel.
After Plaintiff Broyles filed her complaint, Stephens communicated with Broyles’ counsel regarding a potential settlement. She also submitted a sworn declaration discussing Broyles’ prior bankruptcy filings and stating, simply, that Convergent’s collection inquiries “were permissible under the FCRA.” Ok, if you say so.
The Deposition More…
A significant privilege affray is unfolding over Baylor University’s retention of the Pepper Hamilton law firm to investigate Baylor’s handling of sexual-assault complaints.
The question before the USDC in Waco is whether the attorney–client privilege protects from discovery Pepper Hamilton’s witness interviews and documents reviewed. The court’s upcoming decision may offer important lessons to organizations conducting internal investigations, including how to handle a post-investigation release of information.
You will recall that, following Pepper Hamilton’s investigation, Baylor fired its football coach, Art Briles, and demoted its president, Judge Kenneth Starr. And while Pepper Hamilton prepared a list of “Recommendations,” available here, it did not deliver a formal written report of its investigation. You may read more about the so-called “lack of a paper trail” in this New York Times article.
The plaintiffs in Jane Doe v. Baylor University, No. 6:16-cv-173-RP-JCM (USDC WD Tex.), a Title IX case, filed a motion to compel Baylor to “produce all materials provided to or produced by Pepper Hamilton.” In essence, the plaintiffs seek a ruling that the attorney–client privilege does not protect the law firm’s investigation materials, and assert two arguments in support. More…