Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Fifth Circuit Confirms that Documents Listed on a Privilege Log Are Not Per-Se Privileged

If one party in a lawsuit merely identifies documents on a privilege log without detail, does the other party bear the burden of showing that the withheld materials were not privileged, in order get access to those documents? The Fifth Circuit unanimously says no. In EEOC v. BDO USA, LLP, the Fifth Circuit held that records and communications with legal counsel are not automatically protected from disclosure just by virtue of their being identified in a privilege log.  Continue Reading

Encrypting Emails: ABA Issues New Guidance Addressing Security Concerns over Attorney-Client Communications

In May, the American Bar Association (“ABA”) released a Formal Opinion 477, providing guidance on attorney use of emails in communication with clients. In doing so, the ABA has promulgated a new standard when considering the level of protections necessary while using technology to converse about a legal representation. According to the ABA, a lawyer generally may transmit information relating to the representation of a client over the Internet when the lawyer has undertaken “reasonable efforts” to prevent inadvertent or unauthorized access to information relating to the representation. Under this reasonable-efforts standard, however, the ABA explicitly warns that a lawyer may be required to take special security precautions, like the use of encrypted emails, when the information warrants a higher degree of security. Continue Reading

The Inadvertent Settlement Agreement (and How to Avoid it)

The recent case of Jarvis v. BMW of North America, LLC is an important reminder to attorneys to avoid inadvertently reaching a settlement agreement that is unacceptable to the client, or equally problematic, one that is missing critical (but not legally “essential”) terms and conditions. In Jarvis, the District Court for the Middle District of Florida granted the defendant’s motion to enforce a settlement agreement that had been negotiated by the parties through their respective counsel – even though the plaintiffs refused to sign the agreement. Continue Reading

Can Purchasing Efficiencies Save Mega-Mergers? The D.C. Circuit Says “No”

The D.C. Circuit recently blocked a proposed merger between two of the nation’s three largest health care insurers – Anthem and Cigna, raising doubts about the viability of the efficiencies defense in merger cases despite such a defense having been explicitly recognized in the 2010 FTC and DOJ Horizontal Merger Guidelines.

Click here to read the full client alert.

Florida’s Fiduciary Lawyer-Client Privilege is on the Books, But is it Good Law?

In 2011, Florida’s legislature enacted section 90.5021, Fla. Stat., which provides for application of the lawyer-client privilege – even when the client is a fiduciary.

Specifically, the statute protects communications between a lawyer, on the one hand, and a client who is a trustee, personal representative or executor, or guardian, on the other hand. The privilege applies to the same extent as if the client were not acting as a fiduciary.

Why the need for a specialized statute? Isn’t the standard lawyer-client privilege statute good enough to protect communications between a lawyer and a fiduciary? Continue Reading

NY Commercial Division Requires Supporting Papers to Accompany Notice of TRO

We previously covered a proposed amendment to the New York Commercial Division Rule 20 that aimed to require moving parties seeking a temporary restraining order (“TRO”) to, absent significant prejudice, provide opposing parties with copies of all supporting papers as well as notice before any TRO could be issued.  Continue Reading

Arbitration Clauses Extending to Non-Signatory Affiliates: Are They Enforceable?

A recent decision of the New Jersey Appellate Division considered the enforceability of arbitration agreements by non-signatories. In Foti v. Toyota Motor Sales, U.S.A., Inc., the plaintiff filed a putative class action complaint against defendant alleging violations of New Jersey’s Truth-In-Consumer Contract, Warranty and Notice Act (“TCCWNA”), as well as the state’s Lemon Law (N.J.S.A. 56:12-29 to -49). The panel determined, among other things, that by signing a lease agreement, plaintiff agreed to arbitrate her dispute not only with the underlying signatories of the lease, but with any of its affiliates. Continue Reading

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