Judge Caproni recently held in the context of a SEC enforcement action that communications with an outside compliance firm were not privileged.  The communications at issue contained advice from a compliance consulting firm which, though staffed by attorneys, provided advice pursuant to a consulting agreement that specifically disclaimed the attorney-client relationship.

Continue Reading Judge Caproni: Compliance Communications Prepared Outside of Attorney-Client Relationship Are Not Privileged

In an opinion this week, Magistrate Judge Gorenstein ruled that sharing attorney-client privileged communications with an outside public relations firm resulted in a waiver of the attorney-client privilege.  The plaintiff, Universal Standard, a manufacturer of “size-inclusive” clothing, filed a complaint against Target alleging trademark infringement.  After discovery, Target filed a motion asking the court to find that certain emails involving the plaintiff and its outside public relations firm, BrandLink, had been inappropriately listed on the plaintiff’s privilege log.

The court held that none of the exceptions for applying the attorney-client privilege to third-party communications were appropriate.  First, the court held that the communications with the PR firm were not “necessary” for outside’s counsel representation:
Continue Reading Magistrate Judge Gorenstein: Attorney-Client Communications That Include Outside PR Firm Are Not Privileged

In an opinion yesterday, Judge Castel denied in part a motion to compel certain drafts of sales and marketing documents withheld as privileged in an antitrust case.  The plaintiff argued that the attorneys were not providing legal advice but, instead, “‘scrubbing’ or ‘vetting’ these documents ‘to avoid having a jury see the unvarnished truth.”  Judge Castel disagreed, and emphasized that it is perfectly appropriate for lawyers to review documents before any wider circulation:
Continue Reading Judge Castel:  Attorney Review of Draft Corporate Documents Is “Prudent,” Not “Subterfuge” to Evade Discovery

Yesterday, Judge Cote declined a defendant’s request to disqualify the SEC’s entire trial team on the eve of trial after the SEC received allegedly privileged communications between the defendants and their counsel.  The documents were seized by federal agents during the execution of a search warrant and provided to federal prosecutors, who in turn provided

In the latest chapter of the saga over Uber’s background investigations into an antitrust plaintiff and his counsel (see coverage here), Judge Rakoff has ordered Uber and its investigative firm, Ergo, to cease their background investigations and has enjoined Uber from using any information found during the investigation in the antitrust proceeding.  Uber had hired Ergo to investigate the plaintiff and plaintiff’s counsel, an Ergo allegedly made various misrepresentations to gain information from friends and colleagues of the plaintiff and plaintiff’s counsel.

Judge Rakoff did not reach the issue of monetary sanctions, as defendants “have reached an agreement to pay plaintiff a reasonable (though publicly undisclosed) sum in reimbursement of plaintiff’s attorneys’ fees and expenses incurred in conjunction with these matters.”  Judge Rakoff described the proceedings as a “sad day” and noted that:
Continue Reading Judge Rakoff Orders Uber Investigative Firm to Stop “Arguably Criminal Conduct,” Uber Will Pay Plaintiff’s Fees

A memorandum order released today reveals that, in an antitrust case against Uber’s CEO (covered here), Judge Rakoff became concerned over improper investigative techniques that Uber (or its agents) employed.  Specifically, Uber hired an firm called Ergo to investigate the plaintiff and plaintiff’s counsel, and, in doing so, Ergo’s investigator allegedly made various misrepresentations to gain information, such as claiming that he was a reporter writing a profile of plaintiff’s counsel.

At a hearing (the transcript of which remains nonpublic), Judge Rakoff ordered broad discovery from Uber — including from an Uber in-house attorney — and from Ergo concerning the investigation.  In the order released today, Judge Rakoff denied Uber’s motion to reconsider a portion of his ruling calling for in camera review of privileged material as possibly falling within the “crime-fraud” exception to the privilege:
Continue Reading Judge Rakoff Authorizes Discovery from Uber Counsel to Probe Potentially Improper Investigation of Adversary and Opposing Counsel

In an opinion Friday, Judge Forrest rejected claims by a group of defendants (referred to as the “Town Defendants”) and their public relations firm that their communications were in all circumstances privileged, because no one had done the necessary work to show, on a communication-by-communication basis, that the privilege would apply:
Continue Reading Judge Forrest Rejects Blanket Privilege Claims for Communications With PR Firm

In an opinion today the GM ignition switch MDL (prior coverage here), Judge Furman rejected the plaintiffs’ attempt to force GM and its lawyers at King & Spalding to produce, under the “crime-fraud” exception to attorney-client privilege, documents relating to King & Spalding’s advice on earlier ignition switch cases that were settled confidentially.

GM had earlier produced a substantial portion of the documents voluntarily (such as case evaluations sent to GM) but the plaintiffs sought additional documents – primarily internal King & Spalding correspondence.  Judge Furman concluded that the plaintiffs had failed to show, as required for the “crime-fraud” exception, that these internal communications were made with the intent to further a crime or fraud, as opposed to merely relating to an evaluation of the legal risks of the cases that were settled:
Continue Reading Judge Furman Allows GM to Withhold Attorney Documents in Ignition Switch MDL, Rejects “Crime-Fraud” Exception

In a decision last week in the government’s FIRREA action against Wells Fargo (previous coverage here), Judge Furman ruled that, at least in civil cases, an individual cannot force his former employer to waive privilege so the employee can assert an advice-of-counsel defense.  Judge Furman found that allowing a forced waiver in these circumstances would make the privilege “intolerably uncertain”:
Continue Reading Judge Furman: Employee Cannot Assert Advice-of-Counsel Defense When Employer Refuses to Waive Privilege