Mardi Gras is Over: NOLA Court Rejects Privilege for GC’s Post-Accident Form

Mardi Gras ended early for one New Orleans agency.  Just days before Fat Tuesday, the USDC for EDLA ruled that the attorney–client privilege did not protect a public entity’s “Executive Summary” of a post-accident review.  The Court issued the ruling even though the entity’s GC created the Executive Summary form and the summary contained information to put the GC “on notice of a potential lawsuit and so that [she could] assess legal liability.”  O’Malley v. Public Belt RR Comm’n for the City of New Orleans, 2018 WL 814190 (ED LA Feb. 9, 2018).  You may read the decision here.

I [Can’t] Hear that Train a Comin’

Unlike the Folsom Prison inmate, Bryan O’Malley could not hear a moving locomotive and suffered injuries when it struck him while he was working for NOLA’s Public Belt Railroad Commission.  The Commission conducted a post-incident meeting and created an Executive Summary that included sections discussing the incident’s “primary cause” and “contributing cause.”

In a subsequent lawsuit, the Commission produced the Executive Summary with the “cause” sections redacted. O’Malley wanted an unredacted version, and moved to compel it.

A Good Deposition

O’Malley’s lawyer deposed the Commission’s Safety Manager, and gained valuable admissions.  Under direct questioning, the Manager effectively testified that the Commission managers’ “general procedure” is to meet after every accident and prepare an Executive Summary.  The Safety Manager never testified that the managers prepared the Summary so that lawyers can render legal advice to the Commission.  You may read the Manager’s testimony here.

GC Saves the Day?

Perhaps sensing trouble, the Commission’s General Counsel submitted a declaration stating that she prepared the Executive Summary form after becoming GC in 2014.  More…

Penn State Loses Privilege Clash over Internal Investigation, and the Reason May Surprise You

In the continuing fallout from the reprehensible Jerry Sandusky scandal, a PA appellate court rejected Penn State’s attorney–client privilege claim over documents that Louis Freeh’s law firm generated during its internal investigation.  The reason?

The court found that there was no attorney–client relationship between Penn State and Freeh’s law firm, and, without this relationship, the privilege did not cover communications between Penn State Board of Trustees and Freeh’s firm.  The court made this finding even though the Board Chair signed the engagement letter and the Board paid Freeh’s fees.  Estate of Paterno v. NCAA, 168 A.3d 187 (Pa. Super. Ct. 2017).  You may read the decision here.

The Forgotten Privilege Element

Regular readers of this blog know that the party asserting the attorney–client privilege must show three primary elements: a (1) confidential (2) communication made for (3) legal-advice purposes.  We too often, though, presume—and forget about—a threshold element: a lawyer–client relationship. More…

Internal-Investigation Emails between Non-Attorney Employees–Privileged? 2

If handled correctly, in-house counsel may delegate an internal investigation to a non-legal department.  The question arises whether the attorney–client privilege applies to investigation-related emails between non-attorney employees.  These type of emails often appear business-related and far removed from the company’s legal department.

In Crabtree v. Experian Info. Solutions, Inc., 2017 WL 4740662 (ND Ill. Oct. 20, 2017), the USDC for Illinois’ Northern District held that the corporate attorney–client privilege applies to emails between non-attorney employees so long as a lawyer has “some relationship to the communication” and the email would reveal the “substance of a confidential attorney–client communication.”

This case, available here, provides a short but good read on this tricky internal-investigation privilege issue.

In-House Counsel Delegates Internal Investigation

After receiving confidential information about one of its users, Experian’s in-house counsel asked its compliance division to conduct an internal investigation and report back to the legal department.  The investigation included emails between non-attorney employees, and the plaintiff in a subsequent putative FCRA class action moved to compel these communications. More…