Wednesday, March 24, 2021

Remand In Facebook Privilege Litigation

An opinion of the Massachusetts Supreme Judicial Court

In this case we address the applicability of the attorney-client privilege and the work product doctrine to an internal investigation conducted by the respondent, Facebook, Inc. (Facebook). After public reporting revealed potential widespread misuse of Facebook user data by third-party applications (apps), Facebook hired a law firm, Gibson, Dunn & Crutcher LLP (Gibson Dunn), to conduct a far-reaching investigation to identify the extent to which apps had misused user data and advise Facebook on potential resulting legal liabilities. This investigation is known as the app developer investigation (ADI). Around the same time, the Attorney General opened an investigation into Facebook under G. L. c. 93A, focusing on whether Facebook misrepresented the extent to which it protected or misused user data.

As part of that investigation, the Attorney General served Facebook with several civil investigative demands (demands). At issue are six requests contained within these demands that sought the identities of the apps and developers that Facebook reviewed at various stages of the ADI, other information associated with the review of the identified apps, and internal  communications about those apps. Facebook asserted that both the attorney-client privilege and the work product doctrine protected this information. The Attorney General filed a petition in the Superior Court seeking an order compelling Facebook to comply with the disputed requests. A judge concluded that most of the information is neither privileged nor work product, as it was not prepared in anticipation of litigation, and that even if it was prepared in anticipation of litigation, it is all factual information.

We conclude that the Attorney General's targeted requests allow Facebook to tailor its responses to the first five of the six requests to avoid disclosure of communications protected by the attorney-client privilege. We also conclude, however, that the documents sought by the first five requests were prepared in anticipation of litigation and therefore are covered by the work product doctrine. We further conclude that a remand is required to separate "opinion" work product from "fact" work product for at least some of these documents. To the extent the work product is fact work product, we conclude that the Attorney General has satisfied the heavy burden of demonstrating a substantial need for the information. Finally, as for the sixth request, seeking internal communications about the apps, we have determined that this request encompasses both privileged and nonprivileged communications, and therefore requires preparation of a privilege log and further review as determined by the judge.

The investigation arose from the Cambridge Analytica reportage

The 2018 reporting of this incident sparked a wave of litigation against and investigations into Facebook. By the end of 2018, Facebook faced at least five securities class actions, eight derivative actions, three books and records actions, and thirty-nine consumer-based suits, most of which also were class  actions. This number swelled to at least sixty-five litigations before the end of 2019. Facebook is also being investigated by a number of State, Federal, and foreign regulators.

Gibson Dunn led an app developer investigation ("ADI") team

Shortly after the media coverage of the Cambridge Analytica incident in March 2018, the Attorney General began investigating Facebook under G. L. c. 93A, § 6. The purpose of the investigation is to identify any other apps that misused user data and assess whether Facebook followed its policies and commitments to its users regarding user data. Over the course of the investigation, the Attorney General has issued three demands.

The first demand was issued in April 2018. The second demand, issued in June 2018, sought information on the apps that Facebook had suspended and information on Facebook's internal policies and procedures surrounding apps. As part of its response, Facebook provided the Attorney General with detailed information on how it has conducted the ADI.

The third demand, issued on November 5, 2018, is the subject of this dispute. In this demand, the Attorney General sought the identities of and information regarding the apps and developers that Facebook identified and reviewed as part of the ADI. Specifically, the Attorney General took the detailed descriptions of the ADI that Facebook provided and used that language in her requests. In response, Facebook provided updated information on suspended apps but refused to comply with several of the requests.

The court noted Facebook's extensive voluntary production and public statements concerning the ADI.

The first five requests do not require the production of any communications between Facebook and counsel during the ADI process.13 Rather, these requests only seek documents "sufficient to identify" the apps that fall within the five categories of requested documents identified  supra or lists of the apps themselves, and other information associated with those apps. While this certainly requires the production of factual information relevant to the Attorney General's investigation, and such factual information has almost certainly been contained in attorney-client communications, it does not require the production of the attorney-client communications themselves. This is a crucial distinction...

The sixth request broadly seeks "[a]ll of Facebook's internal communications and internal correspondence concerning" several categories of apps sought in the other requests. Facebook refused to comply with this request and asserted that it called for the production of privileged communications. The judge below ordered Facebook to produce a detailed privilege log identifying any documents it was withholding on the basis of the privilege. While this case proceeded on appeal, Facebook provided the Attorney General with at least two privilege logs responsive to this request.

...We...agree with the judge below that the appropriate course of action is for Facebook to prepare a detailed privilege log so that the Attorney General can challenge any assertions of privilege.

Work product

we conclude that the app information required to be produced is clearly covered by the work product doctrine. We also conclude that if this app information is not opinion work product, Facebook must disclose that information, because the Attorney General has demonstrated a substantial need for the information and could not obtain it without undue hardship. The difficult issue is separating fact from opinion work product in the first five requests. We set out the mode of analysis here but remand to the judge its application to the specific requests.

....In sum, we conclude the Attorney General has demonstrated both substantial need and undue hardship for the fact work product about the apps.

(Mike Frisch)

March 24, 2021 in Privilege | Permalink | Comments (0)

Thursday, October 29, 2020

Flagpoles And Privilege Waiver

The Mississippi Supreme Court has held that an insurer had waived attorney-client privilege in communications with in-house counsel. 

This is an interlocutory appeal of a bad-faith failure-to-pay claim. The trial court found that the insurance company waived the attorney-client privilege and was required to produce written communications between its in-house counsel and its claims handler and to produce its in-house counsel for a deposition. We agree and affirm.

The claim involved damage over $2,000 caused to a flagpole by an unidentified driver

Travelers denied Renaissance’s claim. Travelers’ claims handler, Charlene Duncan, determined there was no coverage under the UM policy because the flagpole was not a covered “auto.”

Editor's note: This position makes a certain amount of intuitive sense, as the dissent notes. 

Renaissance's counsel made an argument for coverage

On February 19, 2016, Renaissance’s attorney, Rick Wise, sent an email to Duncan that set forth Renaissance’s legal arguments as to why coverage should be afforded under Mississippi’s UM statute.

...Before responding, Duncan sought legal advice from Travelers’ then in-house counsel, Jim Harris. Duncan is not an attorney. Duncan sent a letter, dated March 2, 2016, that again advised Renaissance that its claim was denied under its UM policy because the policy required damage to a covered auto.

In the ensuing litigation

Renaissance took Duncan’s deposition and asked that she explain both the denial letter and the reasons Travelers denied the claim.

That litigation

Renaissance commenced this claim on August 25, 2016. In the complaint, Renaissance asserted a claim for coverage under the UM policy and a claim for bad-faith denial of the claim. In an effort to resolve the matter, Travelers paid the full amount for damage to the flagpole. Renaissance, however, continued to litigate its bad-faith claim.

As to the advice

After in camera review, the trial court found that “Travelers ha[d] waived the attorney-client privilege as it relates to attorney Jim Harris.” The trial court ordered Travelers to produce the emails and to produce Harris for a deposition. Travelers filed a petition for interlocutory appeal, which this Court granted.


Travelers sent the denial letter to Renaissance in an effort to explain its arguable and legitimate basis to deny the claim. The letter was signed by Duncan; but based on her deposition testimony, it clearly was prepared by someone other than
Duncan, most likely Harris. If so, Harris did not act as legal counsel and give advice to Duncan to include in the denial letter. Instead, the denial letter contained Harris’s reasons to deny the claim. Duncan’s signature was simply an effort to hide the fact that Harris, not Duncan, had the personal knowledge of Travelers’ reasons to deny the claim and to use the attorney-client privilege as a sword to prevent Renaissance from discovering the reasons from the person who had personal knowledge of the basis to deny the claim.

..Renaissance is entitled to depose the individual with personal knowledge of the basis for the denial of coverage as set forth in the denial letter. That person is Harris.

There is a dissent from Justice Ishee joined by Justice Coleman 

The majority concludes that the legal arguments contained in Duncan’s denial letter were probably the product of her consultation with Harris. That is almost certainly the case, but the majority then goes on to conclude that since Duncan, the claims handler, could not explain the legal arguments, the letter “clearly was prepared by someone other than Duncan, most likely Harris” and that “Duncan’s signature was simply an effort to hide the fact that Harris, not Duncan, had personal knowledge of Travelers’ reasons to deny the claim.” Maj. Op. ¶ 18. Thus, the majority reasons, Travelers has waived the attorney-client privilege, and Renaissance is entitled to depose the attorney, Harris, and to discovery of the correspondences between the claims handler and the attorney.

With all due respect to the majority, I disagree with its underlying premise. Duncan clearly understood the reason for denying the claim, which was the same reason stated in her initial denial letter: the express language of the policy precluded coverage. Duncan faltered only when asked to respond to Renaissance’s legal arguments concerning questions of statutory interpretation that might have overridden the express policy language. The majority thus appears to impose a requirement that in order to preserve the privilege, a claims handler must be able to explain legal arguments at her deposition—the same legal issues for which she sought advice in the first place. I can find no authority to support this proposition, and I fear it is an unreasonable standard that will have deleterious and chilling effects on the exercise of the attorney-client relationship. “[A]n insurance company should be free to seek legal advice in cases where coverage is unclear without fearing that the communications necessary to obtain that advice will later become available to an insured who is dissatisfied with a decision to deny coverage.” Aetna Cas. & Sur. Co. v. Superior Ct., 200 Cal. Rptr. 471, 475 (Cal. Ct. App. 1984).

Dissent concludes

The underlying facts of the claim here were not disputed: an unidentified motorist struck and damaged Renaissance’s flagpole. Travelers’ attorney’s participation was limited to evaluating legal arguments presented by Renaissance’s attorney in a demand letter after the initial denial of coverage. The communications between Travelers’ claim handler and its attorney are protected by the attorney-client privilege, and I cannot find the privilege to have been waived by the mere involvement of the attorney in evaluating the legal arguments  presented in Renaissance’s demand letter. I respectfully dissent.

October 29, 2020 in Privilege | Permalink | Comments (0)

Thursday, August 13, 2020

It Happened At The World Bank

The District of Columbia Court of Appeals applied absolute immunity under the judicial proceedings privilege to affirm the dismissal of a defamation action.

The facts

Appellant Shinok Park worked under appellee Milan Brahmbhatt at the World Bank (the Bank). Ms. Park reported Mr. Brahmbhatt to the Bank’s Office of Ethics and Business Conduct (the EBC), alleging that he sexually assaulted and harassed her. The EBC investigated her allegations and, when doing so, afforded Mr. Brahmbhatt multiple opportunities to respond. Mr. Brahmbhatt retained appellee Peter Hansen as counsel during the Bank’s investigation. Through counsel, Mr. Brahmbhatt submitted two memoranda to the EBC, in which he claimed he had a consensual sexual relationship with Ms. Park and accused her of blackmailing and extorting him for employment opportunities at the Bank. According to Ms. Park, the memoranda also implied that she was a prostitute. The EBC sent a report to the Bank’s Vice President of Human Resources, attaching the two memoranda. In the report, the EBC recommended that the Vice President sanction Mr. Brahmbhatt for violating Bank rules by failing to resolve a de facto conflict of interest, but not to sanction him for sexual assault or harassment. The Vice President adopted the EBC’s  recommendation. Mr. Brahmbhatt appealed his sanction to the World Bank Administrative Tribunal (the WBAT), which affirmed the Vice President’s decision.

Ms. Park later was terminated from her employment at the Bank. She sued Mr. Brahmbhatt and Mr. Hansen in Superior Court for defamation, claiming the two memoranda they submitted to the EBC defamed her and resulted in her termination.

The memoranda were uncovered through discovery in a parallel proceeding.

The privilege on these facts

we have applied the judicial-proceedings privilege to statements made preliminary to judicial proceedings so long as “an attorney [made the statements] while performing his function as such,” there is “a reasonable nexus between the publication in question and the litigation under consideration,” and the statements had a genuine “relationship to potential litigation” and were not made as a “mere afterthought or [with a] sham rationale.” These requirements have been met in instances where an attorney solicited shareholders of a corporation to participate in a class action lawsuit against the corporation; an attorney questioned an adversary’s competency in the English language while waiting in a hearing room of the Rental Accommodations Office prior to commencement of a proceeding;  and an attorney responded to a threat of a lawsuit against the attorney’s client. 

In this case, Mr. Hansen submitted the memoranda to the EBC on behalf of Mr. Brahmbhatt as preliminary submissions to the WBAT. First, Mr. Hansen submitted the memoranda is his capacity as an attorney. Both memoranda bore his law firm’s letterhead in the top center, “LAW OFFICES OF PETER C. HANSEN, LLC,” and specified that he was “[c]ounsel to Mr. Brahmbhatt.” Second, the memoranda had a “reasonable nexus” to future WBAT proceedings. Both memoranda contested facts and cited WBAT case law to argue that Ms. Park’s allegations did not meet the requisite standard of proof because other evidence indicated she was lying, and that the EBC’s findings of  fact and conclusions of “law” in its draft report were erroneous based on WBAT precedent. Third, Mr. Hansen’s submissions indicate that he intended, in part, to establish a record for future WBAT proceedings; those proceedings, in other words, were not a mere afterthought. It was crucial that Mr. Hansen establish a record early on, as the WBAT historically has not heard oral arguments or held evidentiary hearings.

The statements

 The allegedly defamatory statements in this case were relevant to future WBAT proceedings. Ms. Park claimed Mr. Brahmbhatt sexually harassed and assaulted her, and Mr. Brahmbhatt defended himself on factual grounds, specifically, that he was the victim, not Ms. Park, something that if true would certainly have aided Mr. Brahmbhatt’s defense. The question is not whether Mr.  Hansen executed a sound or sensible argument, but whether a reasonable person might construe the statements he made as relevant.

Other safeguards exist

And although the specific requirements of the privilege have been met here, “the consequent immunity from a defamation suit does not mean that the attorney may not be sanctioned for misconduct."  An overly “bumptious and unrestrained” attorney who makes defamatory statements without regard for their truth or relevance, we predict, will render service counterproductive to his client’s interests and may be liable for malpractice in a given case. That attorney, too, may be subject to professional discipline.

It is worth noting that the Bank seeks to account for the interests of the complainant—here, Ms. Park—by imposing a duty on the EBC, witnesses, and staff members to keep confidential all information related to an investigation of a complaint. The WBAT, as well, sought to protect Ms. Park’s identity by referring to her as “Ms. R.” Although Ms. Park claims that the statements in the memoranda were somehow leaked and led to her termination, she has offered us no evidence that leaks are a general problem at the Bank. And we presume that the Bank does its best to honor its rules regarding confidentiality, a presumption Ms. Park has not rebutted.

Associate Judge Glickman authored the opinion joined by Associate Judges Fisher and Thompson. (Mike Frisch)

August 13, 2020 in Privilege | Permalink | Comments (0)

Tuesday, June 30, 2020

Third Party Presence Waives Privilege

The Tennessee Court of Appeals affirmed a finding that the presence of a third party in communications with a client's divorce attorney waived the attorney-client privilege.

The client had been advised that the situation would waive privilege but nonetheless proceeded. 

[The client] filed a complaint for divorce against Timothy J. Pagliara (“Husband”). At that time, Wife was represented by an attorney, Marlene Moses. While the divorce action was pending, Wife consulted with her attorney, Ms. Moses, in the presence of Wife’s friend, Adela Ferrell, concerning, in part, whether Wife should report to law enforcement certain actions by Husband. Ms. Moses correctly had informed Wife that their communications would not be protected by attorney-client privilege with Ms. Ferrell present, but Wife insisted Ms. Ferrell remain in the room. Husband’s counter complaint alleged that upon Wife’s request for legal advice as to whether she should report Husband’s actions to law enforcement, Ms. Moses responded to Wife that reporting his conduct was the only way for Wife to gain an advantage in the divorce proceeding.

Ms. Moses then referred Wife to her son-in-law, Ben Russ, an attorney practicing criminal law. Ms. Ferrell drove Wife to her meeting with Mr. Russ and was present during this meeting. Mr. Russ also informed Wife that their conversations would not be privileged with Ms. Ferrell present in the meeting, but Wife insisted that Ms. Ferrell be present. Ms. Ferrell, therefore, was present for this meeting with Mr. Russ wherein they discussed reporting Husband’s actions to law enforcement.

Wife subsequently reported Husband’s actions to the Franklin Police Department.

The husband sued for intentional and negligent infliction of emotional distress and sought discovery of these communications.

Because Wife was in the best place to have the knowledge necessary to prove the existence of attorney-client privilege, the burden of proof was with Wife to show that the communications between her and her lawyer were protected by attorney-client privilege. See Culbertson, 393 S.W.3d at 684; State ex rel. Flowers., 209 S.W.3d at 616. Wife did not present evidence demonstrating that the attorney-client privilege applied to any specific one or more of the meetings with her attorneys and agreed with the Trial Court’s finding that she could not identify which meetings Ms. Ferrell was present for. Our acceptance of Wife’s position would mean that because neither Wife nor Ms. Ferrell could identify which meetings Ms. Ferrell was present, the attorney-client privilege would apply whether Ms. Ferrell was present or not. That is not the law in Tennessee. Wife has not met her burden of proof to establish that the attorney-client privilege protected these communications. As such, we affirm the Trial Court’s ruling that the attorney-client privilege does not protect these communications between Wife and Ms. Moses and Wife and Mr. Russ because Wife has not met her burden of proof to establish that the privilege applies to any specific communication at issue.

(Mike Frisch)

June 30, 2020 in Privilege | Permalink | Comments (0)

Tuesday, June 16, 2020

Third Party Disclosure Waives Privilege

The Delaware Court of Chancery has held that a party waived its attorney-client privilege by submitting the documents at issue to the Federal Communication Commission.

The Plaintiffs seek thirty-one (31) documents previously produced by Defendant IDT Corporation (“IDT”) to the Federal Communications Commission (“FCC”) in 2016 in connection with an investigation pertinent to this Action.

The court distinguished an earlier decision

But here, I find, IDT did not have an analogous expectation of privacy because the documents were not produced to the FCC under a confidentiality agreement. Instead, IDT merely requested that the documents remain confidential. IDT had no non-disclosure agreements with the FCC, and the Requests cited by IDT are insufficient to show that IDT reasonably believed that the documents would not be revealed to other adversaries. In other words, IDT found it advantageous to disclose the privileged documents to a third party, the FCC, despite knowing that they could be disseminated. IDT did not have a commitment, let alone an enforceable agreement, with the FCC to keep the documents confidential. In that situation, IDT manifested its intent to waive any privilege by disclosing the documents to a third party. I assume that IDT desired that the thirty-one documents remain confidential, but such desire does not amount to the reasonable expectation required to avoid a waiver under Saito, which is an exception to the general rubric that outside disclosure vitiates the privilege.

IDT has also cited cases that decline to find a waiver of privilege where privileged documents were inadvertently produced. However, nothing in the record indicates that IDT inadvertently produced the documents, instead IDT has imply asserted that “[i]ts inclusion of a small number of privileged documents in its voluminous production to the FCC does not waive privilege.” I find the cases cited by IDT inapposite as to whether privilege was waived by IDT’s purposeful production.

(Mike Frisch)

June 16, 2020 in Privilege | Permalink | Comments (0)

Saturday, May 30, 2020

No Spousal Privilege In Alleged Crime Against Child

The Louisiana Supreme Court has held that the spousal privilege is trumped by statutes that protect children from abuse.

On January 30, 2018, the target of the grand jury investigation was charged by Bill of Information with one count of molestation of a juvenile, a violation of La. R.S. 14:81.2, arising from an incident in 2003 in which he allegedly molested his children’s babysitter. The target was subsequently arrested and pled not guilty. Following the District Attorney’s voluntary recusal, the Attorney General stepped in as District Attorney ad hoc and dismissed the charges, choosing to proceed by seeking a grand jury indictment. In conjunction with the grand jury proceeding, the state issued a subpoena to Jane Opperman, the target’s wife, to appear before the grand jury. Mrs. Opperman filed an “Affidavit of Spouse” wherein she asserted “her lawful privilege to refuse to give evidence in any criminal proceeding against her husband, pursuant to Louisiana Code of Evidence article 505.” The state subsequently filed a “Motion to Determine Applicability of Spousal Privileges,” arguing the privilege does not apply when a spouse is charged with a crime against the person of a child.


Because the spousal witness privilege was created solely by the legislature, it can also be modified or withdrawn. See Bellard, 533 So. 2d at 965 (citing State v. Smith, 489 So. 2d 255 (La. App. 5th Cir. 1986) and State v. Fuller, 454 So. 2d 119 (La. 1984)). The legislature has provided for such abrogation in La. R.S. 14:403(B). Based on the facts of this case, we hold that under La. R.S. 14:403(B), Mrs. Opperman is not entitled to assert the spousal witness privilege at a grand jury proceeding targeting her husband.

Background on the controversy is described by WBRZ 2 

Small town scandal became dirtier in the last few days when the ex-wife of the West Feliciana district attorney filed suit against her former divorce attorney in a fight over airing dirty laundry.

In court filings obtained by WBRZ, Kelly Ballard, the now ex-wife of District Attorney Sam D’Aquilla, wrote her lawyer broke her trust and attorney-client privilege. Ballard believes the divorce attorney, David Opperman, used her divorce as leverage.

Ballard said Opperman exposed her torrid relationship with her ex-husband when he discussed allegations of abuse, “sexual affairs and planting of evidence” by D’Aquilla.

Opperman accused D’Aquilla of having a sexual relationship with the former coroner, destroying evidence in other criminal cases and of being under investigation by federal authorities.

“The D’Aquillas are the gift that keeps on giving,” Opperman said in a statement to WBRZ’s Investigative Unit. Opperman said, “you just can’t escape these people.” In a phone call with Chief Investigator Chris Nakamoto Tuesday, Opperman denied the allegations in the lawsuit.

Ballard’s marital issues were revealed in court documents highlighted in a previous WBRZ report where Opperman asked that D’Aquilla be recused from prosecuting him in a separate criminal case.

D’Aquilla and Opperman, have been political adversaries – Opperman accusing the D.A. of wrongdoing as D’Aquilla attempted to prosecute a 15-year-old abuse case against Opperman.

Opperman was arrested in December 2017, accused of molesting a teenage girl in 2003. He has denied the allegations.

The Louisiana Attorney General dismissed the charges in November but said a grand jury will convene to hear evidence in the case presented by state attorneys.

The dismissed charges were from D’Aquilla’s attempt at prosecution. He recused himself from the case, moving it to the attorney general.

In the latest court wrinkle, Ballard, the D.A.’s ex-wife, also accused Opperman of malpractice.

Opperman ran for district attorney against D’Aquilla in 2014 and lost.

Baton Rouge attorney Jill Craft is representing Ballard, the ex-wife.

The alleged molestation took place in 2003. (Mike Frisch)

May 30, 2020 in Privilege | Permalink | Comments (0)

Sunday, March 1, 2020

Malpractice Suit Waives Attorney-Client Privilege For Third Party Counsel In Same Transaction

The Georgia Supreme Court holds that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation

Under longstanding Georgia law, when a client sues his former attorney for legal malpractice, the client impliedly waives the attorney-client privilege with respect to the underlying matter or matters to the extent necessary for the attorney to defend against the legal malpractice claim. The issue presented in this appeal is whether the implied waiver extends to the client’s communications with other attorneys who represented the client with respect to the same underlying matter, but whom the client chose not to sue. The trial court held that the waiver does extend to such other counsel and therefore denied a motion for a protective order in this legal malpractice case. The Court of Appeals reversed, see Moody v. Hill, Kertscher & Wharton, LLP, 346 Ga. App. 129 (813 SE2d 790) (2018), and we granted certiorari to decide this issue of first impression. We hold that when a client sues his former attorney for legal malpractice, the implied waiver of the attorney-client privilege extends to the client’s communications with other attorneys who represented the client with respect to the same underlying transaction or litigation. For the reasons described below, we reverse in part and vacate in part the Court of Appeals’ judgment, and we remand the case with direction.

The client (Moody and two of his business entities) had invested in a California aerospace company. The law firm provided advice that included termination of the company president

Despite Moody’s specific requests, HKW failed to assert certain defenses properly, including that the California court lacked personal jurisdiction over Moody. HKW did not disclose or obtain written waivers of any potential or actual conflicts of interest resulting from prior or ongoing representation of Leucadia Group and Miller. Miller filed a motion in the Fulton County lawsuit to disqualify HKW, which was granted, and HKW then withdrew from the California lawsuit. The California court ultimately ruled that Moody’s appointment to Leucadia Group’s board of directors, Leucadia Group’s issuance of shares to LIH, and Miller’s termination as president of Leucadia Group were all void.

In the resulting legal malpractice suit, the law firm sought discovery

HKW requested, among other things: (1) Holland & Knight’s file for any corporate work performed for Plaintiffs regarding Leucadia Group, Miller, another named individual, and another named company; (2) Holland & Knight’s litigation file for the Fulton County lawsuit; (3) Holland & Knight’s litigation file for the California lawsuit; and (4) all correspondence related to that corporate work and the Fulton County and California lawsuits, including communications between Plaintiffs and Holland & Knight.

Both Plaintiff and Holland & Knight asserted privilege and sought a protective order

the trial court denied Plaintiffs’ motion for a protective order. The trial court found that it was undisputed that Holland & Knight together with HKW represented Moody in connection with the matters that are the subject of the legal malpractice complaint and held that Plaintiffs therefore had “waived the attorney-client privilege and work product protection concerning Holland & Knight . . . by asserting the present legal malpractice claims.”

The court here reviewed state law on attorney-client privilege and implied waiver

A similar rationale requires recognition that the implied waiver of the attorney-client privilege extends to other attorneys who represented the plaintiff-client in the same underlying matter. To succeed on a claim of legal malpractice, the plaintiff-client must prove three elements: “(1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.” Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 265 Ga. 374, 375 (453 SE2d 719) (1995) (citation and punctuation omitted). Thus, by suing HKW for legal malpractice, Plaintiffs have put at issue questions of proximate causation, reliance, and damages, all of which may have been affected by other attorneys who represented Plaintiffs in the same matters underlying Plaintiffs’ malpractice complaint.

The Court of Appeals should have affirmed the trial court’s ruling that Plaintiffs  were not entitled to a protective order based on attorney-client privilege.

The Court of Appeals opinion is linked here. 

The court's remand recognized that the work-product doctrine must be considered. (Mike Frisch)

March 1, 2020 in Privilege | Permalink | Comments (0)

Saturday, August 31, 2019

No Privilege

The Kentucky Supreme Court affirmed and remanded in part in a matter of attorney-client privilege involving a denied promotion at the University of Louisville School of Medicine’s Division of Gynecologic Oncology.

On October 23, 2009, Dr. Helm initiated a faculty grievance procedure against two of his supervisors, Dr. Christine Cook and Dr. Lynn Parker. Appellant Ruby Fenton (Fenton) had served as an attorney for the University prior to the grievance proceedings, and she was retained to represent Dr. Cook and Dr. Parker in the grievance proceedings. Her attorney fees were paid by the University; fees for Dr. Helm’s attorney were not. Under the applicable personnel rules, the University was designated as a neutral arbiter in the faculty grievance process. Thus, Dr. Cook and Dr. Parker were represented by an attorney who had an ongoing attorney-client relationship with the University, the neutral arbiter in the process.

On May 17, 2010, the University’s grievance hearing panel unanimously found that Dr. Helm had been placed on leave in a manner totally contrary to the University’s written policies. The panel recommended that the University comply with Dr. Helm’s contract through its conclusion on July 31, 2010, and that Dr. Helm be allowed to re-submit his application for full professorship.

On June 18, 2010, Dean Halperin refused to accept the panel’s recommendation that Dr. Helm be allowed to re-submit his application, stating it was moot because Dr. Helm’s contract would expire on July 31, 2010. Dean Halperin had notified Dr. Helm in February of that year that his faculty appointment would not be renewed. As Dr. Helm had been advised, the University did not renew his faculty appointment, and his last day at the University was July 31, 2010.

Dr. Helm sued and sought discovery of extensive communications between the attorney and a host of University employees

During discovery, Dr. Helm served a subpoena upon Fenton seeking all written communications and notes reflecting communications between Fenton and any person associated with the University relating to the faculty grievance proceedings. The University and Fenton refused to produce the communications and asserted that the requested information was protected by the attorney-client privilege and the work-product privilege.

The trial court initially sided with the University but changed its view and ordered the discovery.

Here the University appealed and sought mandamus

if a trial court orders the production of communications protected by the attorney-client privilege, the aggrieved party is entitled to a writ halting the production of the such communications.

Reviewing the conclusion of the Court of Appeals

...apparently accepting in full the trial court’s findings of fact, the Court of Appeals denied the writ, stating that “[b]ased upon our review of the record, this Court cannot conclude that the trial court abused its discretion by finding that the University failed to carry its burden of demonstrating the applicability of the attorney client privilege.” This appeal by the University and Fenton followed.

The court here agreed that no attorney-client relationship was proven but remanded

The Court of Appeals, however, did not rule upon the University and Fenton’s request for protection of the subject communications based upon the work-product privilege. Thus, we remand to the Court of Appeals for its ruling on that issue.

(Mike Frisch)

August 31, 2019 in Privilege | Permalink | Comments (0)

Thursday, May 23, 2019

Work Product In Washington State

The Washington State Supreme Court affirmed a Court of Appeals remand for violation of the work product protection in connection with a PIP claim. 

Washington law extends work product protection to statements made by an insured to an insurer following an accident in light of the specific parties involved and the expectations of those parties. We must decide if that protection applies here, where the insured has gained the status of insured by statute, rather than by contract. We hold it does. We affirm the Court of Appeals and remand to the trial court for a new trial.

The case involves a child on a bicycle injured in an accident. The police report was not based on first-hand observations and contradicted the child's recollection. The child's mother adopted the report in seeking PIP benefits.

In the lawsuit

In addition to seeking PIP coverage, [mother] Diaz also sued Prieto on behalf of [child] Brayan. The significant difference between the PIP form and Brayan's testimony became a central issue at trial. Prieto's counsel stressed the differences between Diaz's and Brayan's testimony and the PIP form; Diaz's counsel stressed that the PIP form was based on accounts from people who did not see the accident.

The trial court rejected the claim of privilege with respect to the PIP form and allowed defense counsel to cross-examine with a redacted version of the form.


The jury returned a defense verdict. The Court of Appeals reversed, holding the PIP application was work product and its admission was prejudicial, requiring a new trial. Barriga Figueroa v. Prieto Mariscal, 3 Wn. App. 2d 139, 414 P.3d 590 (2018). We granted Prieto's petition for review and denied the issues raised by Diaz. Barriga Figueroa V. Prieto Mariscal, 191 Wn.2d 1004, 424 P.3d 1214 (2018). Washington State Association for Justice Foundation filed an amicus brief.

PIP and the claimant

We hold that an insurer owes a pedestrian PIP insured the same quasifiduciary duties that it owes a named insured who purchases a policy. Specifically, the '"insurer must deal fairly with an insured, giving equal consideration in all matters to the insured's interests.'" See Van Noy, 142 Wn.2d at 794-95 (emphasis omitted) (quoting Tank, 105 Wn.2d at 386). This approach is consistent with our common law and the plain language of RCW 48.01.030, which requires insurers to act in "good faith, abstain from deception, and practice honesty and equity in all insurance matters." (Emphasis added.) With this quasi-fiduciary relationship in mind, we turn to the work product issue. Brayan's parent and natural guardian, Diaz went to a law firm for legal assistance. As part of providing that legal assistance, the law firm sent a PIP application form to the parties' shared insurance company. Diaz did not fill out the forms herself, and it cannot be seriously contended that she sought legal assistance merely to have help filling out forms—Prieto ran over her eight-year-old son's leg, seriously injuring him. That no lawsuit had been filed when Diaz prepared Brayan's PIP application is of no consequence; Diaz plainly signed the form in anticipation of litigation, in a lawyer's office, with assistance from the law firm ultimately suing Prieto. Indeed, in Heidebrink, we stated that had the statements been "made directly to the [insurance company's] selected attorney, it would obviously have been made in anticipation of litigation." 104 Wn.2d at 400. The statements were made in anticipation of litigation. Thus, we hold work product protections apply.

The court noted the extensive defense use of the document in evaluating prejudice

when Prieto's counsel used the PIP form, he almost always emphasized the fact that it was signed by Diaz, thereby attributing the statements to her. Diaz did not make these statements; the legal assistant filled out the PIP form based on the police report. Crucially, the speculative statements in the police report were hearsay and the police report was inadmissible at trial for this reason.

JOHNSON, J. (dissenting)

The work product doctrine is meant to serve as a narrow exception to otherwise broad discovery and is confined to materials that are prepared in anticipation of litigation. Our cases have established that in the insurance context, a determination of whether this protection applies requires that the court conduct a fact-specific inquiry looking at the "specific parties involved and the expectations of those parties." Heidebrink v. Moriwaki, 104 Wn.2d 392, 400, 706 P.2d 212 (1985). We reiterated this factual analysis in Harris v. Drake, where the relationship between the insurer and insured was of particular importance, and we observed that the relationship "requires close examination, evaluating the specific positions of the insurer and insured in each instance." 152 Wn.2d 480, 489, 99 P.3d 872 (2004). The majority acknowledges the fact-specific nature of this inquiry but then ignores it and proceeds to apply work product protection to a personal injury protection (PIP) application form where no factual basis exists to support doing so. Furthermore, even assuming the trial court committed error by admitting the application form, the form was not material to the jury's determination or prejudicial to the plaintiff, and only by selectively mischaracterizing the record does the majority conclude otherwise...

The record simply does not indicate that Diaz anticipated litigation when she signed the PIP application; it indicates only that she employed an attorney who assisted her with filing a PIP claim. By extending work product protections to this application, the majority seemingly, but without expressly stating so, abandons our fact-specific analysis in favor of broad protection for any materials prepared in the insurance context. If we properly apply what our prior cases established and recognize the underlying policy of CR 26(b)(4) favoring broad discovery, work product protections do not apply here.

No prejudice per the dissent

Despite all of the evidence and testimony, the majority never explains, and cannot explain, how the de minimis use of the prior inconsistent statement in the PIP application form, made by a nonwitness to the accident, could have possibly had a material effect on the jury's decision.

(Mike Frisch)

May 23, 2019 in Privilege | Permalink | Comments (0)

Friday, January 25, 2019

Tennessee Extends Privilege

From the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has held that the attorney-client privilege protects communications between a business’s attorneys and a third party when the third party acts as the functional equivalent of an employee and when the communications relate to the attorney’s representation of the business and were intended to be confidential.

The Supreme Court issued this ruling in a business dispute appealed from the Davidson County Circuit Court. In this case, Dialysis Clinic, Inc. sued to evict tenants from commercial properties in Nashville that the Dialysis Clinic had purchased. The tenants subpoenaed documents from XMi Commercial Real Estate, a property management company hired by Dialysis Clinic to manage the properties. Dialysis Clinic and XMi objected to producing emails between Dialysis Clinic’s attorneys and XMi, arguing that they were protected by attorney-client privilege.  The trial court ruled that XMi did not have to produce the emails because they were covered by attorney-client privilege. The Court of Appeals denied the tenants’ request for review of the trial court’s decision. The Supreme Court agreed to hear the case.

In a unanimous opinion, authored by Justice Sharon G. Lee, the Supreme Court noted that it is increasingly common for businesses to use outside consultants and other independent contractors. These third parties often operate in the same manner as employees of the business and have information needed by the business’s attorneys that no employee of the business has. For that reason, many courts across the country have extended the attorney-client privilege to cover communications between those third parties and the business’s attorneys, when certain conditions are met.

Here, based on existing Tennessee law and cases from other jurisdictions, the Supreme Court ruled that the attorney-client privilege applies to communications between a business’s attorneys and a third party when the third party acts as the functional equivalent of an employee and when the communications relate to the attorney’s representation of the business and were intended to be confidential. Applying this legal framework, the Supreme Court held that XMi was the functional equivalent of a Dialysis Clinic employee and that the emails between XMi and Dialysis Clinic’s attorneys were protected by attorney-client privilege. The Supreme Court affirmed the trial court’s decision and sent the case back to the trial court for further proceedings.

To read the unanimous opinion of the Supreme Court in Dialysis Clinic, Inc. v. Kevin Medley, authored by Justice Sharon G. Lee, please visit the Opinions section of Oral arguments for this case were video recorded and are available on under Supreme Court and Oral Argument Videos.

(Mike Frisch)

January 25, 2019 in Privilege | Permalink | Comments (0)

Friday, December 14, 2018

A Question Of Privilege

The Tennessee Supreme Court has videos of oral arguments available on line.

A recent case

Dialysis Clinic, Inc. v. Kevin Medley, et al M2017-01352-SC-R11-CV 

This case considers whether the attorney-client privilege applies to communications between an attorney and a corporate client’s third-party agent.  The trial court in this case denied the defendant’s motion to compel the production of roughly 200 emails based on attorney-client privilege.  The defendants argue that the trial court denied them their procedural due process rights and that there is an absence of law regarding the standards for determining third-party agency privilege in Tennessee.  In response, the plaintiff argues that the trial court properly held that communications by and between plaintiff’s counsel and the third party were protected by the attorney-client privilege.  The plaintiff also argues that the Tennessee Supreme Court already has determined attorney-client privilege as it pertains to a third-party agent.

(Mike Frisch)

December 14, 2018 in Privilege | Permalink | Comments (0)

Wednesday, November 28, 2018

A Burning Issue Of Privilege

A fire that destroyed the historic Masonic Temple in Quincy has resulted in a privilege issue remanded by the Massachusetts Supreme Judicial Court.

WBZ4NBC covered the fire

A raging fire has destroyed an iconic Quincy landmark.

The Masonic Temple on Hancock street is now just a shell, after flames tore through the building Monday. Firefighters tried to get inside to douse the flames, but were driven back.

“It’s really sad,” said Jim Bennette, a local Mason, “because this building meant so much to so many people and not just because of the art-deco architecture. At its peak, it was home to 4,000 masons.”

The Masons had arranged to sell the building to a trust

Pursuant to a rider to the purchase and sale agreement, the agreement could not be assigned by the trustee without the prior written consent of the Masons. In a separate agreement executed in April 2013, the trustee assigned the rights to the property under the purchase and sale agreement to Jay Patel in return for $100,000; Patel intended to develop a hotel on the property.

The fire intervened.

Shortly thereafter, the Masons claimed that they had never consented to the assignment, refused to recognize it, and received over $6 million from an insurance claim arising from the fire.

Patel sued the trustees, claiming damages from the failure to secure the consent.

During the course of discovery, the developer plaintiffs noticed the deposition of David Levin, the attorney who represented the Masons with respect to the sale of the property and who had also routinely represented the trust defendants on real estate legal matters for over twenty years. The trust defendants moved for a protective order to bar Levin from disclosing his confidential attorney-client communications with them, claiming that Levin represented them as well as the Masons in the real estate transaction concerning the property, even though Levin took the position that he had represented only the Masons.

After an evidentiary hearing, the motion judge found that there was an attorney-client relationship between Levin and the trust defendants after the fire regarding insurance claims and third-party claims arising from the fire, but that, with respect to the purchase and sale of the property, Levin represented the Masons, not the trust defendants. He therefore ruled that communications between Levin and the trust defendants before the fire were not protected by the attorney-client privilege.

The trust defendants appealed. 

The court considered the matter a discovery dispute and unlike an order disqualifying counsel for appeal purposes

We...conclude that orders requiring the disclosure of privileged material, such as the order in this case, are not categorically irremediable, and therefore are not appealable under the doctrine of present execution...

Ultimately, the doctrine of present execution represents a balancing act that weighs the harm to cost-effective litigation arising from piecemeal interlocutory appeals against the harm that a litigant may suffer from a trial court order that is irremediable on post judgment appeal. We conclude that the sheer volume of potential appeals that would be permitted by including privilege-related discovery orders within the doctrine of present execution, and the inevitable adverse impact on judicial efficiency, outweighs the intrinsic harm that potentially might be suffered by an aggrieved party who is denied an immediate right to appeal.

The court nonetheless considered the merits

we conclude that the motion judge's order cannot stand based on the limited findings that he made. We therefore vacate his order and remand the matter to the motion judge for further factual findings and reconsideration of the motion in light of those additional findings. We express no view as to how the motion should ultimately be decided.

If and when the case returns

A judge's ultimate conclusion as to whether an attorney-client relationship existed is a mixed question of law and fact, which we review de novo.

While Levin represented the trustees in many real estate matters, here the Masons were is client but

The trust defendants and Levin agreed that, because he was representing the Masons as the sellers, the trust defendants would identify Miriam Marcus as their attorney of record in the agreement. Levin admitted that he never communicated with Miriam Marcus, and instead communicated directly with the trust defendants because he knew that Martin always negotiated real estate transactions personally. Levin sent draft documents to the trust defendants for review, prepared a power of attorney form for Martin so that he could sign the purchase and sale agreement on behalf of the Grossman Munroe Trust, and acknowledged having "many conversations" with Martin concerning the transaction after the agreement was signed in September 2012, particularly about deadlines in the agreement and seeking an extension to perform due diligence obligations.  Levin also testified that he discussed with the trust defendants their concerns about financing, construction, and permits related to the division of condominium units on the property; those issues were incorporated into a rider to the purchase and sale agreement. Levin billed the Masons and the trust defendants each one-half of his fee in connection with the purchase and sale transaction.

While Levin denied he also represented the trustees

The trust defendants disputed Levin's testimony. Seymour Marcus testified that Levin had explicitly told him that Levin was going to represent both sides, and that Levin had represented opposing parties to a transaction with them before, in the context of lenders and borrowers and also buyers and sellers. Marcus stated that Levin offered particularized legal advice in meetings -- without the Masons present -- on permitting and construction issues regarding the property and on what "[his] liabilities are to the Masons." He said that Levin instructed them to list Miriam Marcus as their attorney solely as a formality.

No wonder Levin denied it.

the judge first found that there was an attorney-client relationship between Levin and the trust defendants after the fire. With respect to the matters involving the purchase and sale agreement before the fire, the judge found that the Masons and the trust defendants shared a common interest in the sale, transfer, and development of the property, but not a common interest in the sense "that their interests were aligned with regard to this transaction."


The judge...found that there was no attorney-client relationship between the trust defendants and Levin with respect to the purchase and sale transaction before the fire.


The judge's findings raise issues both of law and of fact, none of which can be resolved without remand to the motion judge for further findings. The issue of law is that the judge, after finding that the interests of the buyer and seller in this purchase and sale transaction were "antagonistic" to each other, stated that "in a transaction of this complexity, it seems  impossible that a single attorney could represent both sides in a very complex and sophisticated real estate transaction." It is not clear from the record precisely what the judge meant by this statement, especially where the judge found that Levin represented both the trust defendants and the Masons after the fire, when their interests remained adverse.

It is not ethically impossible for an attorney to represent clients with adverse interests.

...Where we cannot be sure what the motion judge meant by his finding that it seems "impossible" for Levin, who was already representing the Masons with respect to the sale of its property, also to represent the trust defendants with respect to that transaction, we believe it prudent to remand the matter to the judge for clarifying findings on this issue.


Importantly, the judge did not address the undisputed fact that Levin billed both the Masons and the trust defendants for his legal work regarding this transaction, splitting his fee equally between them. Where, as here, an attorney bills an existing client for legal services, and where the client pays for those services, it is reasonable to infer that they had an attorney-client relationship with regard to those services.

The court also noted that an attorney-client relationship can be implied. (Mike Frisch)

November 28, 2018 in Privilege | Permalink | Comments (0)

Tuesday, June 19, 2018

It's A Privilege

The United States Court of Appeals for the District of Columbia Circuit upheld a corporate attorney-client privilege claim

In 2008, a patent negotiation occurred between Boehringer (the name brand with the patent) and Barr (the generic seeking to challenge the patent). Ultimately, the parties reached a reverse payment settlement.

The Federal Trade Commission pays close attention to reverse payment settlements to ensure that they do not run afoul of antitrust law. In 2009, the Commission began investigating the Boehringer-Barr settlement. During the investigation, the Commission subpoenaed documents from Boehringer. Boehringer claimed that the subpoenaed documents were created by Boehringer employees for Boehringer’s general counsel, Marla Persky, at her request. The documents allowed Persky to analyze and navigate the treacherous antitrust issues surrounding reverse payment settlements. Other documents reflected communications between Persky and Boehringer executives regarding the possible settlement. Boehringer asserted attorney-client privilege over the documents.

The court analyzed the purpose of the communication

In this case, the question therefore is whether obtaining or providing legal advice was one of the significant purposes of the communications at issue. The answer is yes.

The relevant communications consist primarily of the transmission of factual information from Boehringer’s employees to the general counsel, at the general counsel’s request, for the purpose of assisting the general counsel in formulating her legal advice regarding a possible settlement. Other communications were between the general counsel and the corporation’s executives regarding the settlement. All of those communications are protected by the attorney-client privilege because one of the significant purposes of the communications was “obtaining or providing legal advice” – namely, settlement and antitrust advice.

As to business purpose

To be sure, the communications at issue here also served a business purpose. The decision whether and at what price to settle ultimately was a business decision as well as a legal
decision for Boehringer. But as we stated in Kellogg, what matters is whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communications. Here, as the District Court correctly concluded, one of the significant purposes of these communications was to obtain or provide legal advice. It follows that Boehringer’s general counsel was acting as an attorney and that the communications are privileged.

Circuit Judge (and my former Georgetown neighbor) Pillard concurs with a warning

I agree with the opinion of the court as far as it goes. I write separately to emphasize why the spare elegance of the court’s opinion should not be mistaken for an expansion of the attorney-client privilege recognized in our prior precedents: In short, the district court engaged extensively with the disputed documents and the bases for the privilege claims, and followed certain truncated procedures only with the parties’ consent.

(Mike Frisch)

June 19, 2018 in Privilege | Permalink | Comments (0)

Thursday, April 26, 2018

Attorney Not Compelled To Give Evidence Against Bail Jumping Client

The Montana Supreme Court granted a writ to prevent an attorney from providing testimony in a bail jumping case

Petitioner seeks a writ of supervisory control concerning the Third Judicial District Court’s order granting the State’s motion in limine that compels Shannon Sweeney (Sweeney), an attorney, to testify against her client, Dakota James McClanahan (McClanahan), on a bail jumping charge.

The story

In May 2016, Sweeney was appointed to represent McClanahan, who was charged with possession of dangerous drugs with intent to distribute. McClanahan pled not guilty and was ultimately released after he signed the District Court’s Release Order and Conditions of Release. McClanahan did not show up to the final pretrial conference on November 16, 2016, and was subsequently charged with bail jumping.

Ed Sheehy was appointed to represent McClanahan on the bail jumping charge, and he moved to dismiss. Sheehy argued McClanahan did not have notice of the November 16, 2016 hearing. Knowledge of the final pretrial conference is a necessary element of the bail jumping charge. The District Court denied McClanahan’s motion to dismiss, concluding that the State should be allowed to introduce evidence at trial as to what, if anything, Sweeney told McClanahan about appearing at the final pretrial conference on November 16, 2016. Shortly thereafter, Sweeney sent a letter notifying the State that she would assert attorney-client privilege for any line of questioning about communications with McClanahan and the preparation of his defense.

The State filed a motion in limine and the District Court determined that Sweeney would have to testify as to whether she told McClanahan about the final pretrial conference. The State issued a subpoena directing Sweeney to appear and testify at trial. Sweeney made a motion to quash the subpoena, which was denied by the District Court.

The attorney appealed and the court held

Regardless of whether the subject statements from counsel to client in this case constituted “advice given” for purposes of § 26-1-803(1), MCA, compelling counsel to testify under these circumstances would violate her duty of undivided loyalty to McClanahan.

Given that advising a client of a hearing date in a criminal case is inseparably intertwined with the concept of legal advice and that compelled inquiry of counsel to distinguish between advice and non-advice would vitiate counsel’s duty of undivided loyalty to the client, we hold that the District Court erred when it denied the motion to quash the subpoena compelling Sweeney to submit to examination on whether she advised her client of the fate of his final pretrial conference. Furthermore, § 26-1-803(1), MCA, prohibits the District Court from compelling Sweeney to testify about communications made with McClanahan without his consent when her testimony would prove the elements of a new charge against McClanahan. We expressly limit this holding to the unique facts and circumstances of this case.

Concurring opinion

My concern in this case is the statute’s prohibition on examination of an attorney about “the advice given to the client.” During oral argument, the State indicated that it wanted to ask Sweeney two questions. The first question was whether she had communicated the date of the final pretrial conference to McClanahan. I do not believe this to be legal advice. Our judicial system requires lawyers, as part of their duty of representation, to convey notice of court proceedings to their clients. If courts could not depend on this, service of notice would be required to be made personally upon all clients for all matters in every case. Consequently, it would be appropriate to ask McClanahan whether she had fulfilled this judicial function. Thus, I disagree with the Court’s conclusion that all the “statements from counsel to client in this case constituted ‘advice given’ for purposes of § 26-1-803(1), MCA.” Opinion, ¶ 14. In my view, this was a permissible inquiry.

However, at oral argument the State indicated it wanted to go further, and ask a second question—whether Sweeney had told McClanahan that he needed to attend the final pre-trial conference. An attorney’s communication about a client’s attendance at a proceeding, including whether, for whatever reason, the client should risk violating a release condition, falls into the realm of legal advice. For that reason, I believe the State’s proposed inquiry here was prohibited by the statute.

And a dissent from Justice McKinnon

I agree with the rationale employed by those courts and would hold that an attorney conveying the date of a hearing to her client is not “advice” protected by the attorney-client privilege. It is common practice for the court to notify counsel of a hearing and expect counsel to, in turn, notify her client of the proceeding. The date of a hearing is publicly available information that the attorney receives from the court, a third party. The date of a hearing does not encompass a client’s confidential information or an attorney’s advice in response thereto. Prohibiting disclosure of such information by precluding an attorney from ever being “examined” is contrary to the plain language of § 26-1-803(1), MCA...

I am mindful of the Court’s concern that the State is utilizing Sweeney, McClanahan’s attorney in the drug charge, to prove an essential element of the bail-jumping charge. Opinion, ¶¶ 14-15. I do not commend the practice of calling a defendant’s prior counsel as a witness in a bail-jumping trial. The State should make all attempts to avoid the need for such testimony. However, I can find no authority supporting the Court’s conclusion that requiring Sweeney to testify would violate her duty of loyalty to her client, and therefore cannot agree.

There seems to be a problem with the link. The case is Sweeney v. 3rd Judicial District.  (Mike Frisch)

April 26, 2018 in Privilege | Permalink | Comments (0)

Monday, January 22, 2018

Privilege Resolved On Question- By-Question Basis

The Rhode Island Supreme Court remanded a matter  involving attorney-client privilege

Viner was a North Kingstown High School chemistry teacher. It is undisputed that, during the summer following the 2014-2015 school year, one of Viner’s female students complained to her mother, who informed the school administration, about alleged inappropriate behavior by Viner. In an affidavit submitted to the Superior Court, Attorney Mary Ann Carroll, as legal counsel to the school committee, explained, that upon learning of the allegations, her law firm launched an investigation. She further explained that Attorney Aubrey Lombardo assisted in the investigation by interviewing five high school students and preparing a report based on those interviews, which was submitted to the superintendent of the North Kingstown School Department and the principal of North Kingstown High School.

After a pre-suspension hearing

In response, Viner requested a full evidentiary hearing before the school committee, which took place on December 7, 2015. At the conclusion of the full evidentiary hearing, the school committee again voted to suspend Viner without pay for the remainder of the school year and then terminate his employment at the close of the year. In turn, Viner appealed the school committee’s decision to the commissioner of elementary and secondary education within the Rhode Island Department of Elementary and Secondary Education (RIDE). At Viner’s request, the RIDE hearing officer issued three subpoenas pursuant to G.L. 1956 § 16-39-8: witness subpoenas addressed to Attorneys Carroll and Lombardo and a subpoena duces tecum to the North Kingstown School Department.

On appeal

Based on the foregoing, therefore, we remand this case to the Superior Court to follow the procedure described above. At the discretion of the hearing justice, the two attorneys may either be deposed or testify at a hearing. The hearing justice may then make an attorney-client privilege determination on a question-by-question basis, bearing in mind that the burden of persuasion rests upon the party seeking to assert the privilege. See State v. von Bulow, 475 A.2d 995, 1005 (R.I. 1984). We expect that the council on elementary and secondary education will refrain from proceeding further on this matter until the issue is resolved by the hearing justice.  Following the hearing justice’s privilege determination, any party in interest may request the RIDE hearing officer to reopen the evidence to receive any testimony from the attorneys that has been deemed to be nonprivileged by the hearing justice. In the event that the administrative proceedings result in a final judgment under the APA, an aggrieved party may claim the hearing justice’s decision on the attorney-client privilege as error in a petition for a writ of certiorari under G.L. 1956 § 42-35-16.

A dissent would find the issue non-ripe.

I must respectfully dissent from the majority’s opinion because I believe that the issue before the Court is not ripe due to the fact that an appeal to the Council on Elementary and Secondary Education remains pending; and, if James Viner prevails in that appeal, it would render the instant case entirely moot. Indeed, the majority itself concedes that “the school committee’s petition to quash may not have been ripe for review” and that review of such interlocutory rulings of administrative agencies should be “sparingly exercise[d] * * *.” (Internal quotation marks omitted.) It is my definite belief that, in the instant case, this Court should follow “our usual policy of not opining with respect to issues about which we need not opine * * *.” Grady v. Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009)

The decision of the Commissioner of Education is linked here. 

It may well be that, as the Principal told the School Committee, she and her “new administrative staff” had “erred on the side of caution” and “asked the attorneys to come in and make sure we were doing something that was totally hands off so it could be a very fair investigation.” See ¶ 30, supra. Yet, the evidentiary record indicates that this “totally hands off” approach was taken to an inappropriate extreme. Indeed, it appears from the record that everybody in charge – the private attorneys that were hired, the Principal and the Superintendent– just assumed that the various sometimes contradictory allegations made by the five students whose interviews were contained in the Viner Report were accurate, and failed to draw their own conclusions based upon competent evidence. Indeed, as noted, the author of the Report did not herself come to any of her own conclusions as to the credibility of those students who were interviewed, and did not even speak with many of the students who testified before the undersigned, or even to Mr. Viner.

Thus, as noted, the School Committee based its decision to suspend and dismiss a teacher who served without incident for twenty-two years without prior warning or gradual discipline based largely, if not entirely, upon the bare, contradictory allegations of five students, without the benefit of any meaningful evaluation as to their credibility or follow-up by the adults charged with doing so. By contrast, the undersigned did not find the students making the material allegations against Mr. Viner, i.e., R.J. and H.D., any more or less credible than the far greater number of students who testified that Mr. Viner was an “excellent teacher” who never used “vulgar language,” “sexual comments” or “sexual innuendo” in front of them. See ¶¶ 48-49 and notes 20-21, supra.

In addition, contrary to the School Committee’s inference that Mr. Viner’s decision not to testify at its December 7, 2015 evidentiary hearing should be held against him, see School Committee’s Supp. Mem. at 3-4, the decision, rather than evidencing any consciousness of guilt, was more likely a tactical response to the School Committee’s failure to more specifically identify the charges and evidence against him. And little time need be spent addressing the allegation in the Statement of Cause that Mr. Viner “encourage[d] students to cheat on exams,” see Petitioner’s Ex. 1 at 3, as: (a) Mr. Viner’s testimony flatly denying the allegation, see ¶ 52(b), supra, was not rebutted; and (b) the Principal made clear that there was “no link” between the alleged cheating on exams and the alleged sexual harassment. See June 10 Tr. at 119

The order suspending and terminating the teacher is attached at the beginning of the link. (Mike Frisch)

January 22, 2018 in Privilege | Permalink | Comments (0)

Tuesday, January 2, 2018

Implied Waiver Of Attorney-Client Privilege

The Tennessee Court of Appeals affirmed an order compelling disclosure of privileged communications on an implied waiver theory.

This interlocutory appeal arises out of an action in which two companies brought suit against their former attorney for legal malpractice. The attorney moved for summary judgment as to one client’s claim, contending that the claim was barred by the statute of limitations; the client responded that it learned of its cause of action within one year of the assertion of the claim. The attorney then sought through discovery to have the former client produce communications from the client’s new counsel; the client declined to produce the communications, taking the position that they were protected by the attorney client privilege. The attorney moved the trial court to compel the client to produce the communications, and the court granted the motion, holding that the client impliedly waived attorney-client privilege in asserting that the client discovered the cause of action within the year preceding the assertion of the claim. Discerning no error, we affirm the trial court’s holding.

On implied waiver

Relative to the three conditions for determining whether BNL impliedly waived the attorney-client privilege, the trial court held:

This Court concludes Plaintiffs’ assertion of the discovery rule ultimately led to Plaintiffs’ assertion that the relevant documents are protected by attorney-client privilege. Although statute of limitations is an affirmative defense under Tennessee law, and Defendants bear the burden of proof, it was Plaintiffs’ assertion of the discovery rule in response that ultimately put Plaintiffs’ knowledge, and thereby Plaintiffs’ privileged communications, at issue in the current dispute.

The Court concludes that Plaintiffs put their privileged information at issue by pleading the discovery rule. . . . by pleading ignorance of its cause of action against Defendants, Plaintiffs have made “what Plaintiffs knew and when Plaintiffs knew it” the dispositive issue of this case.

In addition, Defendants have no other way to obtain information vital to its defense. Defendants assert Plaintiffs claim was time-barred, because Plaintiffs complaint was filed more than one year after Plaintiffs became aware of Defendants behavior giving rise to the cause of action. Plaintiffs’ assertion of the discovery rule—Plaintiffs did not know and could not have reasonably known its cause of action against Defendants—makes Plaintiffs’ actual or constructive knowledge vital to Defendants’ argument that Plaintiffs did know of its claim more than a year in advance of Plaintiffs’ filing.

The court

Upon our review, we do not discern any error in the portion of trial court’s holding that “Plaintiffs’ actual or constructive knowledge [is] vital to Defendants’ argument that Plaintiffs did know of its claim more than a year in advance of Plaintiffs’ filing.”

(Mike Frisch)

January 2, 2018 in Clients, Privilege | Permalink | Comments (0)

Thursday, April 13, 2017

Referral Relationship Between Plaintiff's Counsel And Treating Doctor Protected by Privilege

A divided Florida Supreme Court held that the attorney-privilege protects from disclosure the referral relationship between a law firm and treating doctors in a personal injury claim.

We have for review the decision of the Fifth District Court of Appeal in Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 163 So. 3d 1240 (Fla. 5th DCA 2015), in which the district court certified conflict with Burt v. Government Employees Ins. Co., 603 So. 2d 125 (Fla. 2d DCA 1992), regarding whether the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we conclude that the question implicates a confidential communication between the attorney and the client and is therefore protected. Accordingly, we quash the decision of the Fifth District and approve the decision of the Second District Court of Appeal. 

The case involves a slip-and-fall

During discovery of this “relatively routine trip-and fall case,” Central Florida Young Men’s Christian Association, Inc. (YMCA), repeatedly attempted to discover the relationship between Worley’s law firm, Morgan & Morgan, and her treating physicians.


The issue before this Court is whether the attorney-client privilege protects a plaintiff from disclosing that an attorney referred him or her to a doctor for treatment, or a law firm from producing documents related to a possible referral relationship between the firm and its client’s treating physicians. However, resolution of this issue will require us to first consider another issue: whether the financial relationship between a plaintiff’s law firm and the plaintiff’s treating physician is discoverable. In its decision approving the order, the Fifth District relied on district court decisions that have held that the financial relationship between a law firm and a plaintiff’s treating physician is discoverable, pursuant to our decision in Boecher, if evidence of a referral relationship can be shown...

Allowing further discovery into a possible relationship between the physician and the plaintiff’s law firm would only serve to uncover evidence that, even if relevant, would require the production of communications and materials that are protected by attorney-client privilege. As mentioned previously, courts that have allowed this type of discovery have first required evidence of a referral relationship between the law firm and the treating physician...

Respondent argues that the lawyer’s act of referring a client to a treating physician is an underlying fact, not a communication. We disagree. That the plaintiff was treated by a particular doctor is an underlying fact. That the plaintiff received a referral to see a particular doctor is also an underlying fact. However, whether the plaintiff’s attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and attorney, and we resist any attempts to separate the contents of communications to distinguish “facts” from privileged information. To hold otherwise would severely undermine the purpose of the privilege, which is to encourage the free flow of information between attorneys and their clients.

Justice Polston dissented

The majority holds that Central Florida YMCA is shielded, based on attorney-client privilege, from discovering whether Worley’s lawyers, Morgan & Morgan, referred her to treating medical providers. The discovery is directed to the referral relationship between Morgan & Morgan and the providers, including how much money the providers received from the firm and its clients. The financial relationship between a law firm and medical provider, including number of referrals, frequency, and financial benefit, is admissible evidence regarding the bias of a testifying medical provider. Accordingly, this information is relevant and subject to discovery.

The trial court ordered Worley to produce billing agreements between Morgan & Morgan and her treating medical providers and information from cases in which her firm referred other clients. On appeal, the Fifth District Court of Appeal in Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 163 So. 3d 1240 (Fla. 5th DCA 2015), correctly allowed discovery of this information under the existing rules of discovery, as balanced with other interests. I would approve its excellent analysis.

A lawyer’s referral of a client to a treating medical provider is for the purpose of the client’s medical care, not in furtherance of legal services. Therefore, the referral itself is not protected as an attorney-client privileged communication. 

Justices Canady and Lawson joined the dissent. (Mike Frisch)

April 13, 2017 in Privilege | Permalink | Comments (0)

Wednesday, March 1, 2017

No Suit Where Attorney Uses Confidential Information To Defend Against Former Client's Claims

The Massachusetts Supreme Judicial Court has held an action following the settlement of a legal malpractice claim alleging violation of confidentiality in defending the malpractice action was not sustainable

Attorney H. Ernest Stone represented John Doe in a criminal case and a related tort action. In the course of that representation, Doe relayed certain information to Stone that all parties indisputably agree was subject to attorney-client privilege. After the tort action ended in a default judgment against Doe, Doe brought a legal malpractice action against Stone based on his handling of the tort case. The malpractice action concluded via a settlement agreement. Doe next filed a complaint in the Superior Court alleging that in defending the malpractice action, Stone misused the privileged information he received during his earlier representation of Doe. Doe named as defendants Stone; George Rockas, the attorney who represented Stone in the malpractice action; and American Guaranty and Liability Co. (American), Stone's legal malpractice insurer. The defendants filed motions to dismiss, raising a wide variety of defenses. See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). The judge allowed the motions and judgment entered dismissing the complaint. Doe appeals. Because we agree with the motion judge that in bringing the malpractice action, Doe waived the privilege that otherwise applied to the information at issue, we affirm. Resolving the case on that ground, we have no occasion to reach the defendants' other defenses.


 As a matter of law, the Foster 2 issues were relevant to the malpractice action, and they are not rendered irrelevant by Doe's conclusory suggestions that Foster 2's whereabouts would have remained unknown. It follows that by bringing the malpractice action, Doe waived his privilege with respect to information related to Foster 2. Accordingly, none of the defendants could be liable for their use of that information in defending the malpractice action, and their motions to dismiss were properly allowed.

(Mike Frisch) 

March 1, 2017 in Clients, Privilege | Permalink | Comments (0)

Monday, January 23, 2017

Discovery Of Work Done For Other Clients Permitted In Legal Malpractice Case

The Rhode Island Supreme Court decided a case where the court had granted review of the following question

“May a former client in a legal malpractice action against his former attorney properly compel discovery from his former attorney and law firm related to documents the attorney prepared for the attorney’s other clients in order to gain evidence to prove subsequent remedial measures in the legal malpractice action?”

The unhappy client sued and sought discovery

This case came before the Supreme Court on November 2, 2016, on certiorari from the Superior Court, seeking review of a discovery order entered on October 2, 2014, compelling production of any antenuptial or postnuptial agreements drafted, prepared, or negotiated by the defendant, Richard A. Boren (Attorney Boren), from 2005 through 2009 and in 2013, while he was employed at the defendant law firm, Visconti, Boren & Campbell, Ltd. (VBC), (collectively, defendants). Before this Court, the defendants contend that the documents sought exceed the scope of permissible discovery, as provided by Rule 26 of the Superior Court Rules of Civil Procedure, and are protected under the attorney-client privilege, the marital privilege, and the work product doctrine. For the reasons discussed herein, we affirm the discovery order in its entirety.

The story

In 2000, plaintiff, Sergio A. DeCurtis (plaintiff or DeCurtis), retained Attorney Boren to draft an antenuptial agreement. DeCurtis and his then-fiancée, Michelle Tondreault (Tondreault), executed the antenuptial agreement on March 22, 2000, and were married on March 28, 2000. They did not live happily ever after, and Tondreault filed for divorce in 2005.

The divorce petition was dismissed in a negotiated settlement that required DeCurtis and Tondreault to execute a postnuptial agreement. Attorney Boren drafted the postnuptial agreement for the couple, which was executed in November of 2005. The marriage nonetheless failed.

The plaintiff claims that the six antenuptial and postnuptial agreements drafted by Attorney Boren are discoverable under Rule 26(b)(1) because they are relevant to demonstrate if and when Attorney Boren undertook subsequent remedial measures in the drafting of antenuptial and postnuptial agreements. Unlike many other jurisdictions, subsequent remedial measures are admissible in Rhode Island to prove negligence “[w]hen, after an event, measures are taken which, if taken previously, would have made the event less likely to occur...

In the case before us, plaintiff initially retained Attorney Boren in 2000, and the antenuptial agreement between plaintiff and Tondreault was drafted in that same year. In 2005, Attorney Boren drafted a postnuptial agreement, which affirmed the terms stated in the prior agreement. The instant malpractice suit arises out of language that was included in both documents. As a result, we are of the opinion that the triggering “event” for purposes of Rule 407 is the drafting of the later document, the 2005 postnuptial agreement. Accordingly, any measures taken after 2005 would be relevant under Rule 407 and, therefore, discoverable under Rule 26(b)(1)

The attorney-client, work product and marital privileges did not prevent discovery

we are of the opinion that defendants do not have standing to assert the attorney-client privilege on behalf of their clients in this context. In this case, the documents are not confidential communications such that third parties were privy to the discussions surrounding the documents and their execution, thus vitiating the privilege. We conclude that the Superior Court justice amply placed safeguards on the order by requiring redaction and limiting the purpose for which the documents could be used. Adequate redaction will eliminate any sensitive or identifying information and prevent the disclosure of any confidential interests contained in the documents...

The defendants’ argument that the marital privilege applies in this context is unavailing. The parties to the six agreements are not testifying, and the production of executed contracts is not testimonial in any way. Furthermore, the parties were not married at the time the antenuptial agreements were executed. The marital privilege focuses on communications between a husband and wife, such that the communications must occur “during [the] marriage.”


In complying with this discovery order, the defendants are directed to adequately redact all confidential information and take any additional steps they deem reasonably necessary to ensure confidentiality, including contacting their clients should that be deemed necessary. To the extent that the clients wish to assert the attorney-client privilege, the Superior Court should welcome those motions and use our discussion herein as guidance in rendering a decision.

Finally, we anticipate that the trial justice will act as an additional gatekeeper and conduct an in camera review of the documents after adequate redaction by the defendants, in order to ensure that all confidential and identifying information has been removed.

The court thus affirmed the discovery order. (Mike Frisch)

January 23, 2017 in Clients, Current Affairs, Privilege | Permalink | Comments (0)

Wednesday, December 7, 2016

Privilege Assertion Subject To Immediate Appellate Review

Kathleen Maloney and Dan Trevas summarize another Ohio Supreme Court decision

A court order compelling the production of materials, which would allegedly breach the confidentiality guaranteed by attorney-client privilege, is a final, appealable order, which can be subject to immediate review by an appellate court, the Ohio Supreme Court ruled today.

The Court also drew the same conclusion today in a second case with similar discovery issues but involving grand jury proceedings rather than civil actions.

In the civil case, the Court determined that because the Cleveland Clinic and Cleveland Clinic Health System “plausibly alleged” that attorney-client privilege would be violated by the release of a hospital report about a 2012 slip-and-fall incident, the trial court’s decision compelling disclosure was a final, appealable order. Allowing an appeal only after the document is disclosed and the trial court issues final judgment in the case would not provide an adequate remedy, the lead opinion written by Justice Judith Ann Lanzinger stated.

However, claims during discovery asserting certain other protections – such as attorney work-product doctrine – may require more than a mere statement that materials are privileged and instead may require a showing that an adequate remedy is not available after a court’s final judgment, Justice Lanzinger wrote.

Justice Sharon L. Kennedy and two other justices concurred only in the Court’s judgment that the trial court’s order to provide the hospital incident report was final and appealable. In a concurring opinion, Justice Kennedy disagreed with the distinctions made in the lead opinion between attorney-client privilege and attorney work product. In her view, a court order requiring the release of allegedly privileged documents, whether believed to be protected by attorney-client privilege or by attorney work-product doctrine, is always a final, appealable order because the release of the document is an action that cannot be undone.

As the lone dissenter, Justice Paul E. Pfeifer countered that the Court has improperly characterized the hospital incident report a product of attorney-client privilege, when it was simply a business record.

Woman Sues After Fall in Hospital, Requests Report
In March 2014, Darlene Burnham filed a civil lawsuit against the clinic and some of its employees, alleging that she slipped and fell in July 2012 in her sister’s hospital room. Burnham claimed that a clinic employee poured liquid on the floor and did not alert her to the hazard.

Among other information, Burnham asked during discovery for the incident report the clinic had created after she fell. The clinic maintained the report was shielded from discovery based on various protections, including attorney-client privilege.

The trial court reviewed materials filed under seal, including the hospital report and briefs from both sides on the issue, and then ordered the clinic to provide the report to Burnham.

The clinic appealed to the Eighth District Court of Appeals, which dismissed the matter because it concluded it had no jurisdiction to review the appeal based on the 2015 Ohio Supreme Court decision Smith v. Chen. The Eighth District stated the appeal was not made from a final, appealable order because the clinic had not established that it would be harmed by the disclosure of the incident report in the manner stated in R.C. 2505.02(B)(4). The statute explains when orders are final and can be appealed.

The hospital filed an appeal with the Ohio Supreme Court, which agreed to consider the issues.

Court Clarifies Chen
Justice Lanzinger noted that the Court accepted this case in part to clarify Chen, in which the Court reviewed a provision in R.C. 2505.02(B)(4) to decide whether a discovery order involving a surveillance video described as attorney work product was final and appealable.

She reasoned that the Court’s ruling in Chen was limited because Chen did not meet the requirement of R.C. 2505.02(B)(4)(b), which states an appellant must establish that he “would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.”

“As some confusion seems to exist over the breadth of that decision, we limit it solely to its facts,” she wrote. “We see no need to overrule the case altogether despite the impassioned arguments within the lengthy concurring opinion.”

She explained that the Chen decision was not broad or expansive, but instead dealt only with the attorney work-product doctrine.

“We now clarify that Chen did not apply to the attorney-client privilege,” she stated.

Attorney-Client Privilege vs. Attorney Work-Product
Justice Lanzinger wrote that differences between the attorney-client privilege and the attorney work-product doctrine also explain why Chen does not control the outcome of this case. She explained that the main purpose of the attorney-client privilege is to promote open communication between attorneys and clients, while work-product protections “prevent an attorney from taking undue advantage of his adversary’s industry or efforts,” citing a court rule for discovery in civil cases.

Unless a waiver or exception applies, attorney-client privilege gives complete protection. However, based on judicial rules and common law, the work-product doctrine may provide protection from discovery, Justice Lanzinger wrote. Although the privilege and the doctrine could apply to the same material, the protections do not overlap fully, she noted.

“Exposure of the information that is to be protected by attorney-client privilege destroys the confidentiality of possibly highly personal or sensitive information that must be presumed to be unreachable,” she explained.

“But the same guarantee of confidentiality is not at risk with an attorney’s work product,” she continued. “[A]ny harm from disclosure would likely relate to the case being litigated, meaning that appellate review would more likely provide appropriate relief. … [I]t does not necessarily involve the inherent, extrajudicial harm involved with a breach of the attorney-client privilege.”

She added that trial courts should explain their reasons when ordering materials to be produced in discovery because parties may claim many types of privilege when arguing against disclosure.

In this case, “[b]ecause the [c]linic raised a colorable claim that its report was protected by the attorney-client privilege, the court’s order compelling disclosure of that report was a final, appealable order,” Justice Lanzinger wrote. The Court returned the case to the court of appeals, ordering it to evaluate whether the trial court’s decision to release the hospital incident report was made in error.

“Contrary to the dissent’s view, we are not characterizing the requested material as being covered by the attorney-client privilege, but are merely requiring appellate review of the trial court’s decision,” Justice Lanzinger noted.

Concurring Justices Dispute Work-Product Distinction
Justice Kennedy explained that she agrees that the trial court’s order to give Burnham the hospital report was a final, appealable order. However, she described the lead opinion’s analysis as “incomplete and disingenuous.”

The lead opinion “manufactures an artificial distinction” between the attorney-client and work-product privileges, then creates a new rule and distinguishes Chen to try to salvage that decision, she maintained.

Justice Kennedy stated that the lead opinion’s conclusion fails to “recognize the common-law origins of the work-product doctrine and that some of the protection provided by the work-product doctrine exceed the protection of [the Civil Rules]. The conclusion also elevates statutory privileges over the work-product doctrine set forth in [the Civil Rules], even though the Civil Rules are promulgated pursuant to the authority conferred upon the court by the Ohio Constitution.” 

She wrote that the myopic nature of the lead opinion has diminished the status of the work-product privilege, which is essential to protecting the attorney-client relationship.

“With this decision, the court opinion systematically declares that a document allegedly privileged under the work-product doctrine does not meet the standard established in R.C. 2505.02(B)(4)(b) unless some special showing is somehow made,” her concurring opinion stated. “Given that Civ.R. 26 provides protection to a broad class of documents and materials, the release of privileged documents necessarily puts the party protecting these materials into the category of those ‘not … afforded a meaningful or effective remedy by an appeal following final judgment.’ A released document never regains privileged status. The ‘proverbial bell cannot be unrung.’”

Justice Kennedy added, “Limiting Chen as applying only to an asserted privilege for work-product materials and not to materials covered by attorney-client privilege is without basis, and the folly of that exercise will been seen in the litigation that is sure to follow.”  Therefore, she stated that the Court should overrule Chen and restore the stability and predictability to the law as it existed before that ruling. 

Justices Terrence O’Donnell and Judith L. French joined Justice Kennedy’s opinion.

Dissent Maintains Report Was Not Privileged
In his dissent, Justice Pfeifer described this lawsuit as a “run-of-the-mill, wet-floor, slip-and-fall case.” He took issue with the Court’s elevation of the hospital’s incident report to a document protected by attorney-client privilege – “to protect the Cleveland Clinic from what exactly — the disclosure of its top-secret ratio of water to Mop & Glo?”

He noted that the trial court reviewed the report in camera and decided it was not privileged. Describing the report as a business record that involved no interaction between the hospital and its counsel, he concluded the trial court decision can be reviewed through the typical appeals process.

2015-1127. Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000.

Video camera icon View oral argument video of this case.

Court Also Addresses Grand Jury Orders

The Court also addressed the appealability of orders compelling document production in the context of grand jury proceedings.

In a separate opinion authored by Justice Lanzinger, the Court found that an order enforcing a grand jury subpoena and ordering the production of allegedly privileged information is a final order that can be appealed.

The decision resolves a conflict among a recent Eighth District Court of Appeals decision and opinions from 2002 and 2003 by the Fourth and Tenth District appellate courts. All the documents in the Eighth District case are sealed, and none of the parties are identified.

Company Seeks to Shield Documents from Grand Jury
A Cuyahoga County grand jury issued subpoenas to individuals associated with the appellants in the case. The recipients moved to quash the subpoenas, which sought documents and testimony, arguing the information was protected by attorney-client privilege, the “attorney work-product doctrine,” and the “common-interest doctrine.” The trial court overseeing the grand jury denied the motions, finding the materials were no longer or never were protected by a privilege.

The recipients appealed to the Eighth District, which declined to address the matter. The appellate court reasoned that grand jury proceedings are not “actions” under R.C. 2505.02(A)(3) and that an order requiring the production of privileged information is not a “provisional remedy” subject to appeal under R.C. 2505.02(B)(4). The Eighth District also certified its decision was in conflict with the Fourth and Tenth districts and the Supreme Court accepted the case to resolve the conflict.

Grand Jury Order Subject to Appeal 
Justice Lanzinger explained the term “action” is not defined in R.C. 2502.02. To determine the meaning of the term, the Eighth District turned to the definition of “action” in R.C. 2307.01, which defines it as a proceeding that ends with a judgment or decree. Because grand jury proceeding are investigatory with no judgment or decree, the Eighth District concluded they are not actions that can be appealed.

Justice Lanzinger noted R.C. 2307.01 pertains to civil cases and not criminal proceedings. She wrote the Fourth and Tenth districts took a different approach, finding the motion to quash a grand jury subpoena is an “ancillary action”that aids a grand jury. That reasoning implies that a grand jury proceeding is a “provisional remedy” under the law, which then subjects the proceedings to the test in R.C. 2505.02(B)(4) to determine if an affected party can appeal.

While the Ohio Supreme Court has never addressed whether grand jury proceedings are actions, Justice Lanzinger cited the Court’s 1980 Bernbaum v. Silverstein decision, which found grand jury proceedings are “ordinary proceedings” similar to the proceedings of criminal courts.

“The proceedings involve the regular process of our criminal procedure and end in the grand jury’s production of either a no bill decision or true bill decision, which will then result in a judgment for either the defendant or the state. Under the broader definition of ‘action’ supplied in Bernbaum, a grand jury proceeding constitutes an action,” she wrote.

Justice Lanzinger also noted the Court’s decision applies only to claims of documents protected by attorney-client privilege, and not to claims of work product or common-interest doctrine.

“Our conclusion that an order enforcing a grand jury subpoena and ordering of allegedly privileged information is final and appealable thus fits within the framework of our criminal procedure, for the only way to prevent grand juries from potentially violating a privilege and forcing parties to disclose privileged information is to allow those parties the opportunity to appeal before divulging that information,” she concluded.

Chief Justice O’Connor and Justices Pfeifer and O’Neill joined Justice Lanzinger’s opinion. Justice O’Donnell concurred in judgment only and noted that he concurred in the conclusion that the order enforcing a grand jury subpoena for the production of allegedly privileged information is a final order.

Concurring Justice Maintains Ruling Will Cause Confusion
Justice Kennedy issued a separate concurring opinion in judgment only, stating she agreed with the majority that the grand jury proceeding constitutes an action. However, she maintained the majority relies on the Burnham decision, which distorts the significance of the attorney work-product doctrine, and will cause confusion for trial courts and attorneys.

Justice Kennedy stated that the court’s opinion continues the disservice to the bar and bench begun in Chen: “As a result of this new legal architecture, trial courts must now consider materials protected by attorney-client privilege in a separate framework from those protected by work-product privilege, based on the source to the privilege.” 

She also wrote that the majority’s broad syllabus language raised many questions. For example, does a litigant merely need to allege that the material sought contains privileged information? Does a trial court need only determine whether the privilege was adequately “alleged”? 

In again concluding that Chen should be overruled, Justice Kennedy stated that “the parsing of the term ‘privilege’ in Burnham typifies the problem we have brought upon ourselves by failing to recognize that Chen was wrongly decided

Justice French joined Justice Kennedy’s opinion.

2015-1181 and 2015-1182. In re Grand Jury Proceeding of John Doe, Slip Opinion No. 2016-Ohio-8001.

Video camera icon View oral argument video of this case.

(Mike Frisch)

December 7, 2016 in Privilege | Permalink | Comments (0)