Let’s discuss conflicts-of-laws—privilege style. I know you want to.
Here is the scenario—NY client emails her SC-based attorney—which state’s privilege law applies? In Wellin v. Wellin, 211 F. Supp. 3d 793 (D.S.C. 2016), the USDC SC provided an informative analysis of the often-ignored conflict-of-privilege-law issue, and applied the Second Restatement’s paradigm in holding that SC privilege law applied. You may read the opinion here. Now, let’s break it down.
The Wellin case involves multiple lawsuits over the distribution of the substantial assets of Keith Wellin, a former Wall Street executive who died in 2014. Read his obituary here. Wellin’s eight grandchildren, non-parties to the litigation but contingent beneficiaries of one of Wellin’s Irrevocable Trusts, lawyered up with South Carolina counsel.
One of the grandchildren, Ann Plum, a New York-based otolaryngologist, sought a protective order to prevent deposition questions about communications she had with her South Carolina-based attorneys, her brother, cousins, and mother, and her mother’s attorney.
To determine the privilege issues, the court had to decide whether NY or SC law applied to the putatively privileged communications. In this diversity action, the court looked to FRE 501, which provides that “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” FRE 501, however, does not answer which state’s privilege law applies—the forum state or some other state.