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…
A young adult, injured and likely nervous, takes her parents to an initial meeting with her personal-injury lawyer. Does the privilege protect this discussion from discovery? In a case of first impression, the Colorado Supreme Court rejected the privilege because the parents’ presence breached the confidentiality element of the attorney–client privilege. Fox v. Alfini, 2018 WL 6441601 (Colo. Dec. 3, 2018). You may read the decision, including the concurring and dissenting opinions, here.
How Did This Happen?
Kayla Fox, in her early 30s, suffered a stroke after receiving treatment from chiropractor William Alfini. Wondering if she had a professional-negligence claim against Alfini, Fox met with a lawyer. Fox’s parents accompanied her and participated in the lawyer meeting. Remarkably, the lawyer recorded the meeting.
Learning of the meeting, the recording, and the parents’ attendance, Alfini’s lawyers moved to compel the recording’s production. Fox, of course, claimed that the attorney–client privilege protected the recording from discovery, but Alfini argued that the parents’ presence eliminated the confidentiality element and, thus, the privilege.
And this dispute set up a Supreme Court clash. More…
In a personal-injury case, the plaintiff generally waives any privilege protecting communications with her health-care providers regarding the injuries for which she seeks damages. Privilege Waiver 101, right?
Not in Oregon. The state’s supreme court ruled that the physician–patient privilege precludes discovery of the plaintiff’s communications with her physician even where her medical treatment is at issue. The court’s opinion is so draconian that it prohibits a defense lawyer from asking deposition questions as routine as “what injury did you receive?”
The court’s decision offered a potential—but unanswered—waiver argument (discussed below), but otherwise allows Oregon plaintiffs to use the physician–patient privilege as a sword and a shield in personal-injury cases. Hodges v. Oak Tree Realtors, Inc., 426 P.3d 82 (Ore. 2018). You may read the decision here.
Oregon’s Physician–Patient Privilege
Oregon Evid. Code 40.325, or Rule 504-1, provides a patient, in a civil action, a privilege to refuse to disclose confidential communications with her physician. The rule contains a “nonexclusive list” (remember this phrase) of three exceptions for communications made to a physician during a:
(1) commitment-related examination (Rule 504-1(4)(c))
(2) court-ordered physical examination (Rule 504-1(4)(a); and
(3) court-ordered examination “performed under” Ore. R. Civ. P. 44 (Rule 504-1(4)(b)).
Do the last two exceptions sound redundant to you?
Issues and Ruling