Though the Fourth Circuit has not decided the issue, most federal courts reject a selective-waiver doctrine, meaning that waiver to one is waiver to all. But one company under a federal criminal investigation permitted an in-house lawyer to disclose privileged information to U.S. Attorneys after the DOJ agreed to a non-waiver contract.
Did the contract prevent privilege waiver? The Fourth Circuit said yes, and precluded the DOJ from calling the in-house counsel to repeat the previously disclosed privileged information before a federal grand jury. In re: Grand Jury 16-3817 (16-4) United States of America, 2018 WL 3156935 (CA4 June 27, 2018) (available here). Let’s discuss the nuances of this interesting opinion. More…
We often hear of an employee downloading trade secrets and other proprietary information when he leaves a company, but what happens when the employee downloads privileged emails between himself and in-house counsel? Can the pilfering employee keep his communications even though it is the company’s privilege? Should the court disqualify the employee’s counsel for reading and not returning the privileged emails? The court’s opinion in Sanchez v. Maquet Getinge Group, 2018 WL 2324679 (N.J. Super. Ct. App. Div. May 23, 2018), provides lessons on these issues. You may read it here, and I discuss it below.
Oscar Sanchez worked as a compliance officer (yes, compliance officer) for Maquet, a pharmaceutical company that designs, manufactures, and distributes medical devices. Sanchez received a disciplinary warning, and then downloaded two Maquet executives’ hard drives and a “binder full of emails” that included emails between him and Maquet’s in-house lawyer regarding FDA compliance issues.
Sanchez took the privileged emails even though he signed a “Confidential Information, Invention Assignment, and Non-Compete Agreement” with Maquet prohibiting him from disclosing confidential information and requiring him to return company documents upon termination. Maquet learned of Sanchez’s possession of its privileged communications when he produced them in discovery, and immediately demanded their return.
Privilege is Threshold Issue
Sanchez first argued that the privilege did not apply because the in-house lawyer was only copied on emails or did not respond to the emails and, consequently, did not provide legal advice. The appellate court upheld the trial court’s privilege finding, noting that Sanchez labeled the emails “ATTORNEY CLIENT PRIVILEGE.” Looks like an easy call there. More…
We’ve heard this mantra from many judges: simply copying an in-house lawyer on an email does not render the email privileged. Need proof? Read these cases: EEOC v. BDO USA, LLP, 2017 WL 5494237 (CA5 Nov. 16, 2017); Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 FRD 609, 633 (M.D. Pa. 1997); United States v. Chevron Texaco Corp., 241 F. Supp. 2d 1065, 1076 (N.D. Cal. 2002).
But one case reveals that this truism is not always, well, true. In Morgan v. Butler, 85 N.E.3d 1188 (Ohio Ct. App. 2017), available here, the court ruled that the attorney–client privilege protected three emails sent from an Ohio EPA supervisor to non-lawyer EPA employees with copies to EPA in-house lawyers. And the story of how the EPA achieved this privilege victory is instructive for the rest of us. More…