In a significant ruling that may exacerbate the continuing fallout from Baylor University’s sexual-assault scandal—and provide lessons for those conducting internal investigations—the USDC WDTX rejected Baylor’s “unsupported and unconvincing” privilege argument and ordered it to produce “all materials, communications, and information” provided to its investigating law firm.
The court held that Baylor’s intentional release of the law firm’s factual findings and recommendations necessarily disclosed attorney–client communications and constituted privilege waiver. Doe v. Baylor Univ., No. 16–CV–173–RP (W.D. Tex. Aug. 11, 2017). You may read the opinion here.
In an earlier post titled Baylor Univ. in Major Battle over Law Firm’s Investigation Documents, I set the stage for the Title IX plaintiffs’ motion to compel Baylor to produce documents provided to Pepper Hamilton, which it retained to conduct an “independent and external review of Baylor University’s institutional responses to Title IX and related compliance issues.” More…
In-House lawyers often assemble a team of specialists to handle knotty disputes that have the potential to spiral out of control. The team almost certainly includes outside counsel, but also forensic investigators, accountants, other consulting experts, or public-relations professionals.
As the dispute evolves, email communications among this team increase. And even where the emails involve in-house and outside counsel, the potential for privilege waiver also increases. In a long-running dispute involving the business of healthcare, a recent court decision illustrates the corporate attorney–client privilege’s fragility when a team’s lawyers share legal advice with the team’s non-lawyers. More…
In the ongoing trade-secrets litigation between Waymo and Uber over the alleged theft of self-driving car technology, a federal court rejected Uber’s claim that the attorney–client privilege and/or common–interest doctrine protected an investigator’s due diligence report. I discussed the Uber–Ottomotto acquisition backstory and the court’s privilege ruling in a prior post: Uber Loses Crucial Privilege Battle in Driverless Car Trade-Secrets Case.
In this piece, I discuss common–interest doctrine in more detail and explain court’s additional ruling that the work-product doctrine did not protect the due diligence report from disclosure to Waymo. Waymo LLC v. Uber Techs., Inc., 2017 WL 2694191 (N.D. Cal. June 21, 2017). You may read the magistrate judge’s opinion here, and the district court’s affirming order here.
Disclosure to Adversary Equals Waiver
Recall that Uber and Otto entered into a Term Sheet that described a process through which Uber may acquire Otto, and that the Term Sheet required Uber and Otto to jointly retain an investigation firm (Stroz Friedberg) to conduct due diligence into potential trade-secrets misappropriation. You may read Stroz’s engagement letter here. More…