MPR: Michigan State, a Novel, and a Trump-Cohen Update

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 2018.

→ After much outrage and a presidential proclamation that the attorney-client privilege was dead (see my rebuttal here) after the FBI removed thousands of documents from Michael Cohen’s office, the matter is whimpering through June.  After reviewing 229,000+ documents, the Special Master designated only 161 as privileged.   See Judge Wood’s Order here.  Perhaps the Special Master had trouble finding that the privilege applied given the many privilege hurdles discussed here.

Michigan State University’s Board of Trustees asked the Michigan AG to investigate the University’s handling of the scandal involving Larry Nassar, the former physician who abused several athletes over a 20-year period. The AG issued a search warrant specifically seeking the University’s privileged communications.  Wow.  The University filed a motion to nullify the search warrant.  This developing story is one to watch.  Read the Lansing State Journal story here. More…

Privilege, Joint Clients, and Corporate-Formation Lawyer’s Deposition

Two well-intentioned gentlemen, Stuart and Eric, want to open a restaurant, and need to form a business entity to do so.  Eric says that his lawyer, Adam, can set up an LLC and draft the operating agreement.  Stuart agrees, perhaps because Adam’s law firm represents him on other matters, and meets Lawyer Adam to sign the operating agreement.

You can guess what happens next.  Stuart becomes unhappy with the restaurant’s business operations, and sues Eric and the LLC for breach of contract, breach of fiduciary duty, and an accounting.  Stuart wants to depose Lawyer Adam, but Adam, citing the attorney–client privilege, refuses to testify about his communications with Eric regarding preparation of the operating agreement.

Several issues arise.  Who is Lawyer Adam’s client—Eric? Stuart? The LLC? All of the above? Does the privilege for Adam’s communications with Eric preclude disclosure to Stuart? What level of proof is necessary to establish the privilege elements?  The court’s decision in Hinerman v. The Grill on Twenty-First, LLC, 2018 WL 2230763 (Ohio Ct. App. May 11, 2018), available here, answers these questions.  Let’s dissect the opinion, and heed its lessons. More…

Straight Outta Kentucky: Boilerplate Objections Waive Privilege

Remember R&B artist Prince Phillip Mitchell?  The Louisville native is a long-time singer-songwriter who reached his height of popularity in the 1970s.  He wrote and recorded several songs, including Star in the Ghetto, which appeared on his 1978 album Make it Good.

Fast forward ten years to 1988, when rap group N.W.A. released its debut album, Straight Outta Compton, produced in large part by Andre Romelle Young—known to us as Dr. Dre.  This album contained Dr. Dre’s rap tune, If It Ain’t Ruff.

Fast forward thirty years to 2018, where Mitchell claims in a Kentucky federal court that, in writing, producing, and publishing If It Ain’t Ruff, Dr. Dre “unlawfully and intentionally sampled the distinctive and important elements” from Star in the Ghetto, and therefore infringed on his copyright.  You may read the complaint here, and Insider Louisville’s story about the case here.

Let’s get to the privilege issue; after all, this is a privileges blog and not a 1970s R&B blog (through that would be more fun). More…