MPR: Nashville, “Legal Dodgeball,” and a Large GC Verdict

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

  • Recall that VP Mike Pence secured an appellate-court victory claiming that the privilege precluded disclosure of certain documents under Indiana’s public-records act.  The requester has now sought review by the Indiana Supreme Court.  Story here.
  • Sticking with public-records requests, a  journalist with The Modesto Bee complains that the City of Modesto’s use of the attorney-client privilege to withhold documents is a “form of legal dodgeball.”  Are cities not allowed to receive confidential, privileged advice? Make up your own mind.  Op-ed column accessible here.
  • Nashville’s DA, Glenn Funk, sued a local TV station’s investigative reporter, Phil Williams, for libel after he published a story stating that Funk blackmailed a criminal defendant to drop a civil case in exchange for dismissing pending domestic-violence charges.  A Nashville judge recently ruled that Tennessee’s journalist privilege did not apply, and ordered the reporter to disclose his investigative documents.  Read the story by The Tennessean‘s  Stacey Barchenger here.

Despite Privilege, GC May Pursue Whistleblower Retaliation Suit under SOX and Dodd–Frank

California’s USDC–ND ruled that Bio-Rad Laboratories’ former General Counsel may use privileged communications to prove his retaliatory-discharge case prosecuted under Sarbanes–Oxley and Dodd–Frank’s whistleblower provisions.  The privilege belongs to Bio-Rad, of course, but no matter in this case.

This important ruling departs from state-court decisions and involves in-house lawyers’ ethical duties, SOX preemption, a SEC amicus brief, and privilege-waiver issues.  Wadler v. Bio-Rad Laboratories, Inc., 2016 WL 7369246 (N.D. Cal. Dec. 20, 216).  It is well worth the read, which you can do here.

Background

Bio-Rad manufactures and sells medical-related products and must comply with the Foreign Corrupt Practices Act.  Sanford Wadler served as Bio-Rad’s General Counsel from 1989 until Bio-Rad fired him in June 2013.

Bio-Rad claims that it terminated Wadler due to poor performance, but Wadler claims his termination occurred because he reported alleged FCPA violations to the company’s Audit Committee.  Wadler filed suit asserting retaliatory-discharge claims under SOX and Dodd–Frank. (Read the Complaint here). More…