Although subject to heightened scrutiny in most privilege analyses, in-house lawyers still have more than a puncher’s chance to secure privilege protection—so long as they prove the requisite privilege elements. But, as adidas America recently learned, companies cannot rely on conclusory statements or ipse dixit arguments to persuade a federal court that the privilege protects an in-house lawyer’s emails from discovery. LPD New York, LLC v. adidas America, Inc., 2018 WL 6437078 (EDNY Dec. 7, 2018). You may read the opinion, which offers a bevy of lessons for in-house counsel, here.
Procedure and No Substance
In this breach-of-contract and IP-related lawsuit over development of “Classic Tees” for certain NCAA blue-blood basketball programs, LPD New York, a fashion designer, sought production of adidas’ in-house lawyers’ emails involving adidas employees. Read LPD’s letter motion here.
Some of the emails LPD sought were from adidas employees to an in-house lawyer, other emails referenced adidas’ in-house lawyers, and other emails were between non-lawyer employees that copied an in-house lawyer. Yet, adidas’ primary arguments against production were procedural, not substantive. If the procedural arguments failed, then adidas simply argued that LPD’s motion was otherwise “unsupported by the law.”
That’s it. Read adidas’ response here.
Conclusory Statements Insufficient to Sustain Privilege Objection
In rejecting adidas’ privilege defenses, the court noted that, other than saying that LPD’s privilege position was “unsupported by the law,” adidas “provide[d] no further explanation, evidentiary showing, or legal analysis.” The court found that this “perfunctory assertion” constituted More…
Citing inherent disclosure of privileged information, in-house lawyers routinely fight adversaries’ attempts to depose them. And most lead with the Shelton doctrine, which permits opposing lawyers’ depositions in limited circumstances—where the information sought is relevant, non-privileged, crucial to the case, and unavailable from other sources.
But the USDC for the SD of Florida added a different basis—that a company’s VP & General Counsel is a “high-ranking corporate officer” further protected from a deposition under the Apex doctrine. Tillman v. Advanced Public Safety, Inc., 2017 WL 679980 (S.D. Fla. Feb. 16, 2017). You may read the decision here. More…
Need a few pointers on how to help secure privilege protection for internal investigations? Then take a quick look at Celanese Corporation’s conduct when investigating a horrific on-the-job injury.
While a Texas trial court held that the attorney–client privilege did not apply to Celanese’s investigation materials, an appellate court granted a writ of mandamus and reversed. In re: Fairway Methanol LLC and Celanese Ltd., 2017 WL 422006 (Tex. Ct. App. Jan. 31, 2017). You may read the decision here.
On Nov. 19, 2014, Jose Salazar, a Celanese-employed electrician in Pasadena, Texas, was injured when he tripped and fell into charged electrical equipment. The next day, Nov. 20, Gary Rowen, a Celanese in-house lawyer, perceived a worker’s compensation or personal injury lawsuit and immediately created an investigative team to provide accident-related information to the Celanese legal department.
In subsequent litigation, Salazar requested “any and all incident, accident, or investigation reports” pertaining to his incident. The trial court conducted an in camera review of the putatively privileged documents and overruled Celanese’s privilege objection. You may read the trial court’s order here.
In-House Lawyer’s Affidavit Prevails More…