Tag Archives: Privilege

Judge Cote Won’t Disqualify SEC Trial Team For Receiving Privileged Documents Via DOJ’s Search Warrant

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 them to the … Continue Reading

Judge Rakoff Orders Uber Investigative Firm to Stop “Arguably Criminal Conduct,” Uber Will Pay Plaintiff’s Fees

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 … Continue Reading

Judge Rakoff Authorizes Discovery from Uber Counsel to Probe Potentially Improper Investigation of Adversary and Opposing Counsel

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 … Continue Reading

Judge Forrest Rejects Blanket Privilege Claims for Communications With PR Firm

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 Furman Allows GM to Withhold Attorney Documents in Ignition Switch MDL, Rejects “Crime-Fraud” Exception

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 … Continue Reading

Judge Furman: Employee Cannot Assert Advice-of-Counsel Defense When Employer Refuses to Waive Privilege

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 Allows GM to Withhold Jenner & Block Interview Notes Underlying Public Report on Ignition Switch Issues

In an opinion today, Judge Furman upheld GM’s decision to withhold, on privilege and work product grounds, interview notes underlying a publicly-released report prepared by GM’s attorneys at Jenner & Block regarding GM’s recall of around 800,000 vehicles that may have had defective ignition switches. The plaintiffs argued (among other things) that the interviews were … Continue Reading

Judge Kaplan Allows Privilege Clawback; Notes Reviewers Can Err From “Too Many Hours in Front of a Computer”

In a discovery order dated yesterday, Judge Kaplan ruled (among other things) that Bank of New York Mellon could claw back a privileged email that it had inadvertently produced.  The order acknowledges the realities of large-scale document productions in which mistakes will be made “more often than desirable”: The fact that the document as originally … Continue Reading

Judge Gardephe Orders Gibson Dunn to Produce Notes of Interviews of Witnesses Whose Statements It Revealed to SEC

In an opinion today, Judge Gardephe rejected Gibson Dunn’s attempt, in a civil defamation suit, to prevent disclosure of interview notes from witnesses whose statements were shared with the SEC. Judge Gardephe had earlier ruled that any privilege was waived, but Gibson Dunn argued that, apart from any waiver, the firm had its own internal … Continue Reading

Judge Scheindlin Rejects Privilege for Unlicensed In-House Counsel Claimed to Be “Functional Equivalent” of Attorneys in China

In an opinion today, Judge Scheindlin ruled that Bank of China must produce certain withheld documents in a case accusing the bank of aiding and abetting a 2006 suicide bombing in Israel.  Judge Scheindlin rejected Bank of China’s argument that communications involving unlicensed Chinese in house counsel, who need not be licensed under Chinese law … Continue Reading
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