In-House Counsel Fails to Prove Privilege, Loses Quest to Seal Emails & Notes

Situations arise where a party files privileged communications to support a dispositive motion.  But filing privileged documents raises waiver concerns, so the filing party seeks to seal those documents to prevent third-party access.  The question arises whether policies underlying the attorney–client privilege overcome citizens’ common-law and First Amendment rights of access to publicly filed documents.

In Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., 2017 WL 1653608 (NDNY Apr. 26, 2017), available here, the USDC NDNY indicated that the privilege is a “higher value” that may rebut the common-law and FA presumption of access.  So, the court sealed the privileged communications, right? More…

Penn. Adopts Garner Privilege Exception for Shareholder Derivative Actions

A common yet often unresolved question in shareholder derivative actions is whether the company may assert the attorney–client privilege against its own plaintiff–shareholders.  Under federal law, the leading case is Garner v. Wolfinbarger, 430 F.2d 1093 (CA5 1970), where the 5th Circuit created a privilege exception if the shareholders could show good cause for not invoking it.

Now, Pennsylvania has adopted the Garner exception, holding that trial courts should evaluate certain criteria to determine whether “good cause” exists to not apply the attorney–client privilege to plaintiffs in derivative actions.  Pittsburgh History & Landmark Found., 2017 WL 1422894 (Pa. Commonw. Ct. Apr. 21, 2017).  You may read the decision here. More…

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.