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…

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…

Yes, but … Court Limits Privileged Discussions between Healthcare LLC’s Lawyer and its Member-Physician

In a 2–1 decision, an Illinois appellate court ruled that, in a medical-malpractice action, a healthcare LLC’s lawyer may hold privileged, ex parte communications with a non-party LLC member who also served as the plaintiff’s treating physician.

The court imposed limitations on the discussion, however, disallowing privileged communications prior to the non-party physician’s damages deposition but allowing privileged communications before his liability deposition.  McChristian v. Brink, 2016 IL App 152674 (Ill. App. Ct. Sept. 30, 2016), corrected opinion issued December 22, 2016.  Read the decision here.

While not a complete victory for medical-malpractice defense lawyers, they must feel better than their Washington-state counterparts.  In 2014, the Washington Supreme Court, in Youngs v. Peacehealth, 316 P.3d 1035 (Wash. 2014), held that the State’s common-law prohibition of defense attorneys’ ex parte communications with a plaintiff-patient’s non-party physicians supersedes the corporation’s attorney–client privilege with its employed physicians.

Regarding Youngs, check out my blog post or my article in Medical Liability Monitor about the decision. More…