Law Firm DQ’d for Use of Inadvertently Disclosed Privileged Email

In a 2–1 decision, a California appellate court upheld a trial court’s disqualification of a law firm after one of its lawyers decided not to return an adversary’s privileged email and to use it offensively before obtaining a court order allowing him to do so.  The court issued the ruling even though the lawyer received the privileged email from his client—not opposing counsel—and it facially appeared that the opposing party had waived the privilege by forwarding to a third-party.  McDermott Will & Emery LLP v. Superior Court, 217 Cal. Rptr. 3d 47 (Ct. App. 2017).  You may read this lengthy—but instructive—opinion here.

Client Sends Privileged Email to Third-Party

The facts are a bit convoluted, so I’ll try to simplify.  Dick Hausman, the 80 year-old son-in-law of Allergan Pharmaceuticals’ founder, was the president of a holding company that managed the family’s investment portfolio.  The McDermott firm represented the holding company.  Mr. Hausman’s son, Rick Hausman, later became president and “a struggle for control” of the holding company ensued.  Dick Hausman retained lawyer Mark Blaskey to represent him in these disagreements. More…

MPR: Falwell, Jr., Uber, and a Personal Lawyer for Trump?

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is my Monthly Privilege Roundup of interesting privilege issues for May 2017.

  • Remember the internal investigation into Baylor University’s sexual assault scandal? A former Baylor student pursuing Title IX claims against the university sought the deposition of Jerry Falwell, Jr. because Baylor’s Regents told Falwell “everything the investigating law firm had to say about what happened.”  The student argued privilege waiver for the investigation results, but the court tabled Falwell’s deposition for now, but may allow it later.  Stay tuned to this developing issue, and read the current opinion here.
  • In the pending trade-secrets case where Waymo alleges that Uber stole its technology to develop self-driving vehicles, there is a brewing privilege battle over Uber’s due diligence document associated with its acquisition of Otto, the self-driving truck start-up.  Read BuzzFeed’s story here.
  • The Fifth Circuit issued an instructive opinion regarding the adequacy of privilege logs and the necessity of trial courts conducting in camera reviews. Read the Bloomberg BNA’s article on the decision, which quotes yours truly, here.
  • To secure attorney-client privilege protection, does President Trump need a personal lawyer for the investigation into his campaign’s ties to Russia, or may he claim privilege over his discussions with lawyers in the office of Counsel to the President?  This article and this one discuss the issue.
  • The Indiana Supreme Court refused to review a lower court ruling that the attorney-client privilege protects former Governor and now VP Mike Pence’s emails from disclosure under a public-records request.  Story here.
  • A UK court recently permitted the country’s Serious Fraud Office to breach the attorney-client privilege and obtain access to a company’s internal investigation.  Interesting ruling that the company will appeal.  Story here.
  • South Dakota’s Attorney General is compelling a journalist to testify about her observations on tour of a local Tribe’s marijuana fields. Is that permissible, or does the journalist privilege prevent this?  Read the story here.
  • Shook Hardy & Bacon LLP published a blog post, available here, discussing a recent California decision applying the work-product doctrine to a forensic firm’s report following a data-breach investigation.

Court Says Company Has “Duty” to Provide Privilege Log in Response to Gov’t Subpoena. Is Waiver Next?

FRCP 26(b)(5)(A) requires litigation parties to submit a privilege log describing privilege-related objections to discovery requests.  And FRCP 45(e)(2)(A) imposes the same privilege-log requirement on third-parties responding to subpoenas.  But what are the privilege-log requirements for entities responding to an administrative agency’s subpoena?  Will the failure to produce a privilege log at the agency level result in privilege waiver?

The federal court in Memphis has ruled that an employer must produce a privilege log when withholding documents in response to a NLRB subpoena.  This requirement arises even though the court acknowledged that only Article III judges, not ALJs, have authority to rule on privilege claims.  NLRB v. NPC Int’l, Inc., 2017 WL 634713 (W.D. Tenn. Feb. 16, 2017).  You may read the decision here. More…