We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is my Monthly Privilege Roundup of interesting privilege issues for December 2017.
→The Google/Uber trade-secrets litigation has produced several privilege-related issues, as I profiled here and here—but nothing like this. The court delayed the trial after the ND Cal. U.S. Attorney revealed a letter (available here) from a former Uber employee claiming that a former Uber in-house attorney instructed employees to mark emails as “privileged” even if they were not seeking legal advice. See Jennifer Williams’ article on the issue, which quotes yours truly, for more information.
→A lawyer for the Trump Transition Team sent a letter, available here, informing House and Senate leaders that the Special Counsel’s Office (Mueller) “unlawfully” received privileged information from the General Services Administration. Mueller’s office denies the allegations. Read the CNN story here. Katie Phang, MSNBC legal analyst (and an excellent trial lawyer) opines that the Transition Team’s privilege concern is a “legal nothingburger.” See Katie’s commentary here.
→President Trump tweeted that he fired General Mike Flynn “because he lied to the Vice President and the FBI.” This statement, of course, contradicts the President’s earlier statements More…
Okay, it was a DC steakhouse, not a bar, and this is no joke.
Two of President Trump’s personal lawyers—Ty Cobb and John Dowd—ate lunch at BLT Steak on a recent Tuesday and discussed differing legal strategies for responding to Director Mueller’s Russian-related document requests. They dined and debated with no knowledge that New York Times reporter Ken Vogel sat at an adjacent table secretly taking notes of the lawyers’ conversation.
Photo: @kenvogel Twitter
What does this episode mean for President Trump’s potential invocation of executive privilege? What lessons can all lawyers derive from this inside-the-beltway faux pas? Let’s discuss.
“Every Washington Reporter’s Dream”
In a recent NYT article, ‘Isn’t that the Trump Lawyer?’: A Reporter’s Accidental Scoop, Vogel provided a blow-by-blow account of his encounter with the two Trump lawyers. He met a source at BLT Steak for lunch and, shortly after ordering, the restaurant seated Messrs. Dowd and Cobb at a table directly behind Vogel. More…