Privilege

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The New York Court of Appeals recently clarified and reinforced the attorney-client privilege, explaining that certain internal training materials reflecting legal analysis of statutory, regulatory, and decisional law constituted attorney-client communications “prepared for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,” and rejected numerous arguments to the contrary.

A three-way circuit split has long plagued the realm of attorney-client privilege on how to treat communications that implicate both legal and non-legal concerns (known as “dual-purpose communications”). Namely, if a lawyer communicates with their client, simultaneously providing legal advice and business advice, is the entire communication protected by the attorney-client privilege? How substantial must the legal advice be for the communication to be privileged? The Supreme Court recently had the opportunity to resolve this split, but in a strange turn of events, dismissed the previously granted writ of certiorari as improvidently granted two weeks after hearing oral argument. Before delving into the oral argument and subsequent dismissal by the Supreme Court, it is worth reviewing a brief history of the existing circuit split.

What began as a trademark infringement dispute concerning electronic cigarettes has evolved into a never-ending series of discovery issues, and lessons about the limits of Federal Rule of Evidence 502 and privilege waivers. DR Distributors, LLC filed its initial complaint against 21 Century Smoking, Inc and its owner, Brent Duke, in September 2012 alleging trademark violations. The defendants filed their counterclaim also alleging trademark violations about a month later. Though fact discovery was supposed to have ended in 2015, the parties continued to assert problems with discovery seven years later. The latest issue presented before the U.S. District Court in the Northern District of Illinois in this case was whether the defendants waived the marital communications privilege by disclosing certain communications during discovery. In its decision finding that the privilege had been waived, the Court described the limited application of Rule 502 and warned against the dangers of arguing that a disclosure was “inadvertent” without providing any explanation of how the privilege review was performed.

In the recent case of Kyla Shipping Co Ltd v Freight Trading Ltd [2022] EWHC 376 (Comm) the English Commercial Court rejected a claim to litigation privilege over preliminary investigations conducted by a party appointed expert on the basis that litigation in respect of the matter being investigated was not in reasonable prospect at the relevant time. However, the court also held that there was no waiver (or a wider collateral waiver) of privilege in respect of documents relating to how the mispricing claim was discovered (including the expert’s investigations) by the claimant’s solicitor having referred to them in a witness statement.

Litigation privilege applies to confidential documents or communications where at the time the communication or document was created litigation was in reasonable prospect; and it was created for the dominant purpose of the litigation.

Citing new deposition testimony, actor Justin Theroux in a recent motion asked the New York Supreme Court to reconsider its December 2020 denial of Theroux’s motion to compel production of emails that his neighbor, Norman Resnicow, a law firm partner, sent to his personal lawyer about the parties’ quarrel (related to the New York City co-op where they both reside) using his law firm email account. 

The prosecution of Elizabeth Holmes, founder of the infamous healthcare and life sciences company, Theranos, Inc., has sparked media attention around the country. With just a few months before trial is slated to begin, Holmes recently lost her pretrial battle over whether the attorney-client privilege precludes the introduction of certain emails with counsel.  While the emails at issue remain sealed from public view, related filings and hearings indicate Holmes and lawyers at Boies Schiller Flexner LLP (“BSF”) attempted to prevent the Wall Street Journal from exposing the startup’s impending collapse.

As we previously reported, the Magistrate Judge in In re: Capital One Customer Data Security Breach Litigation, found that a forensic report that Capital One had claimed was protected by the privilege and work product doctrines needed to be produced because Capital One had not met its burden under the dual-purpose doctrine to show that the report was protected. In re: Capital One Customer Data Sec. Breach Litig. (“Magistrate’s Order”). The forensic report at issue (the “Report”) related to a 2019 data breach where a hacker purportedly accessed and stole highly sensitive customer information from Capital One’s online cloud environment (the “Breach”). Capital One hired outside counsel to investigate the Breach and to help the company prepare for anticipated litigation and regulatory inquiries. To assist counsel’s investigation, outside counsel engaged a cybersecurity consultant (“Consultant”). As developed in the Magistrate’s Order, Capital One had used this same Consultant prior to the Breach in the normal course of its business.

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.