The year 2017 produced several interesting privilege issues. Some privilege-related subjects offer practical tips, others may highlight a new issue for you, while still others fall into the “I can’t believe that!” category.
The privilege highlights range from internal investigations to the Trump Administration to ethical violations. I cannot cover all of them, but here is a summary of thought-provoking privilege topics that arose in 2017. Hope these discussions prove helpful to you.
The Minnesota Supreme Court imposed a private reprimand for a lawyer who, after being fired, disclosed client communications to his adversary. The Indiana Supreme Court expressed “outrage” and imposed a four-year disbarment to a prosecutor who surreptitiously listened to jailhouse conversations between criminal defendants and their lawyers.
And a California appellate court upheld a law firm’s disqualification after one of the firm’s lawyers did not return an adversary’s inadvertently disclosed privileged email and, instead, used it offensively before obtaining court permission to do so.
The Trump presidency did not disappoint in providing several privilege-related discussion points. The issue of “executive privilege” arose when former FBI Director James Comey testified before the Senate Intelligence Committee. Attorney General Jeff Sessions (sorta) invoked executive privilege when he testified before the Senate Intelligence Committee.
Trump’s two personal lawyers, John Dowd and Ty Cobb, had lunch at BLT Steak in DC and openly discussed producing documents as part of Mueller’s Russia investigation—all while a NYT reporter sat at a nearby table listening to the entire conversation. Privilege waiver? I discussed it here. More…
We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is my Monthly Privilege Roundup of interesting privilege issues for December 2017.
→The Google/Uber trade-secrets litigation has produced several privilege-related issues, as I profiled here and here—but nothing like this. The court delayed the trial after the ND Cal. U.S. Attorney revealed a letter (available here) from a former Uber employee claiming that a former Uber in-house attorney instructed employees to mark emails as “privileged” even if they were not seeking legal advice. See Jennifer Williams’ article on the issue, which quotes yours truly, for more information.
→A lawyer for the Trump Transition Team sent a letter, available here, informing House and Senate leaders that the Special Counsel’s Office (Mueller) “unlawfully” received privileged information from the General Services Administration. Mueller’s office denies the allegations. Read the CNN story here. Katie Phang, MSNBC legal analyst (and an excellent trial lawyer) opines that the Transition Team’s privilege concern is a “legal nothingburger.” See Katie’s commentary here.
→President Trump tweeted that he fired General Mike Flynn “because he lied to the Vice President and the FBI.” This statement, of course, contradicts the President’s earlier statements More…
In a colorful and refreshingly thorough opinion by Judge Iain D. Johnston, the USDC NDIL—Western Division—refused to adopt the self-critical analysis privilege under federal common law. While a handful of federal courts recognize the privilege, most either reject the privilege or determine that, “without deciding whether the privilege exists,” it does not apply to the facts of that particular case.
Judge Johnston’s opinion addresses the privilege head-on, and I recommend his opinion as the starting place for any lawyer’s research on (1) the legal analysis for recognizing new federal common-law privileges and (2) the national status of the self-critical analysis privilege. Lund v. City of Rockford, Case No. 3-17-cv-50035 (N.D. Ill. Nov. 29, 2017). You may read the decision here.
The Rockford (Ill.) Police Dep’t arrested William Lund, but state prosecutors later dismissed the charges. Lund filed an Internal Discipline Complaint over the incident, and the RPD investigated the arrest and prepared an 88-page report.
During discovery in Lund’s subsequent § 1983 civil action against the City of Rockford, the City produced a redacted version of the report. Lund moved to compel an unredacted copy, and the City asserted that the self-critical analysis privilege protected the full report from discovery.
What is the Self-Critical Analysis Privilege?
The self-critical analysis privilege (SCAP), sometimes called the self-evaluative or self-investigation privilege, generally protects confidential assessments, evaluations, investigations, or audits designed to improve a company’s processes. The concept is that, More…