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

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 not done for the “primary purpose” of  providing legal advice, but were instead conducted “to identify and correct the problems that resulted in the delayed recalls and to address a public relations fiasco by reassuring investors and the public that it takes safety seriously.”  Judge Furman disagreed:
Continue Reading Judge Furman Allows GM to Withhold Jenner & Block Interview Notes Underlying Public Report on Ignition Switch Issues

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

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 interest in protecting the notes:
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 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 yet often give legal advice, should be protected since they are the “functional equivalent” of attorneys:
Continue Reading Judge Scheindlin Rejects Privilege for Unlicensed In-House Counsel Claimed to Be “Functional Equivalent” of Attorneys in China