Parent Corp.’s GC Leads Investigation into Subsidiary’s Incident—Privileged?

A Connecticut trial court held that the attorney–client privilege covers a defendant company’s investigation-related documents created at the direction of an in-house lawyer.  The court rendered the decision even though the in-house lawyer worked for the company’s parent corporation rather than the defendant company itself.  Blake v. Harvest New England, LLC, 2017 WL 1334287 (Conn. Super. Ct. Mar. 17, 2017).  You may read the decision here.

Corporate Structure

Harvest New England, LLC, a Delaware entity with its principal place of business in Connecticut, is a wholly owned subsidiary of Harvest Power, Inc., a Delaware corporation with its principal place of business in Massachusetts.  Matthew Vittiglio, licensed in Massachusetts, was “Vice President, Corporate Counsel,” or General Counsel, for Harvest Power—not the subsidiary.

Post-Accident Investigation

Following an automobile accident in Connecticut involving a driver–employee of the Connecticut LLC, the Massachusetts corporation’s General Counsel, Vittiglio, directed an investigation that led to the creation of two primary documents that would later become the subject of a privilege dispute. More…

Federal PSQIA Privilege Preempts State Peer-Review Privilege

In an area where there is “a dearth of case law,” the New Mexico USDC has ruled that the peer-review privilege contained in the federal Patient Safety and Quality Improvement Act preempts any state peer-review privilege. The preemption is limited to “patient safety work product” submitted to a certified Patient Safety Organization that a state peer-review privilege does not otherwise protect.  Quimbey v. Cmty. Health Sys. Prof’l Servs. Corp., 2016 WL 8716224 (D.N.M. Oct. 20, 2016).  You may read the decision here.

PSQIA

The Patient Safety and Quality Improvement Act, “a federal overlay to state peer-review statutes,” creates a voluntary reporting system for healthcare providers to share information on adverse medical events to a certified Patient Safety Organization (PSO).  The goal, of course, is to improve the quality of patient care.

The Act, codified at 42 U.S.C. §§ 299b–21 to 299b–26 and available here, creates an evidentiary privilege for “patient safety work product,” which is information that a provider develops for and reports to a PSO.  42 U.S.C. § 299b–21(7)(A).  The privilege prevents disclosure of patient safety work product in any federal, state, or administrative proceeding.  Id. § 299b–22. More…

No Privilege for CEO Despite Fact Dispute over Upjohn Warning

The New Jersey USDC ruled that a company’s former CEO did not have waiver power over putatively privileged communications with the company’s counsel.  The court issued this ruling even though the former CEO claimed to have never received an Upjohn warning.

Despite a dispute over Upjohn warnings, the court found that the CEO’s conversations pertained to company—not personal—matters and held it was the company’s privilege to waive.  United States v. Blumberg, 2017 WL 1170851 (D.N.J. Mar. 27, 2017).  You may read the decision here.

Criminal Charges 

The U.S. Government filed criminal charges against Anthony Blumberg, former CEO of a global business unit for ConvergEx, alleging that he defrauded institutional investors with hidden investment fees.  You may read about the indictment in this SEC press release.

The government served a third-party subpoena on ConvergEx which covered information, including attorneys’ notes, arising from two pre-indictment meetings Blumberg held with Bracewell LLP—ConvergEx’s counsel.

Blumberg moved for a protective order claiming that (1) Bracewell represented him and ConvergEx, (2) the attorney–client privilege belonged to Blumberg, and (3) he had not waived it. More…