Loose Lips Sink Privilege Ships

• Pages: 16-17
• Date: 01 October 2022
• Subject Matter: Civil Law

Loose Lips Sink

Privilege Ships

How easily is attorney-client privilege

waived? Presnell on Privileges’s To dd

Presnell covers the U.S. District Court for

the District of Kansas’s decision in No Spill,

LLC v. Scepter Canada, Inc. In this patent in-

fringement case, the patent owner served

at various times as the president and vice

president of the plainti company, No Spill. When the

defendant, Scepter, sought testimony from No Spill’s patent counsel after the ocer tes-

tif‌ied his counsel would know the answer to certain questions, No Spill moved to quash

the subpoena based on privilege. In response, Scepter identif‌ied emails from the ocer

to a third party that arguably disclosed some of the patent lawyer’s legal conclusions.

The court f‌irst noted established American jurisprudence requiring narrow construction

of any privilege waiver, specifying that waiver occurs only when the client “discloses the

substance” of the privileged information. Disclosure of general topics of discussion or

of facts does not waive privilege. The court therefore found the ocer had not waived

privilege in one email when he wrote, “My patent counsel advised me not to let it out of

the bag yet.” However, the court found the ocer went too far in a second email when

he wrote, “After inspection both I and my patent counsel believe your FMD design in-

fringes our patents in many ways.” By revealing what his patent counsel believed about

a design issue, the ocer had disclosed substantive legal advice and therefore waived

the privilege, subjecting his lawyer to deposition. As even a “seemingly innocuous slip of

the tongue” can result in privilege waiver, Presnell recommends advising clients to “keep

lawyers’ opinions out of their third-party conversations.”

Abortion as Cause for Termination

The Pregnancy Discrimination Act (PDA) prohibits emp loy-

ers from takin g adverse employment ac tions “because

of or on the basis of pre gnancy, childbirth , or related

medical cond itions.” In a pre-Dobbs world, fede ral courts

routinely held e mployers that f‌ired women for having or

contemplating ab ortions violated the PDA. The Employer

Handbook’s Eric B. Meyer examine s what might change

following the U. S. Supreme Cour t’s conclusion that no

constitutional r ight to abortion exists . According to

Meyer, it may be a matter of geog raphy. An employer

that f‌ires a woman who wo rks and has an abortion in New

Jersey, where abor tions are legal, violates the PDA and

state antidiscrim ination laws. Likewise, a Texas employer

that f‌ires a remote em ployee based in New Jersey wou ld

still violate the PDA by f‌irin g the employee because s he

© Getty Image s

obtained the ab ortion legally. However, an employer that

f‌ires an employee wh o obtained an abortion illeg ally

may be in the clear. Accordin g to Meyer, most states

have relaxed rules gover ning employer use of crimin al

records to make employment decisions. The employer

could therefore a rgue the illegal actio n, rather than the

gender or pre gnancy status of the em ployee, motivated

the termination . The employee could argue de fac to dis-

crimination, h owever, because th e employer would only

f‌ire women for get ting abortions, an d treating pregnant

women adversely based on their gender/pregnancy

status violates th e law. Who wins? According to Meyer,

probably the lawyers.

FALL 2022 • VOL. 4 8 NO. 1

16 | ABA LITIGATION SECTIO N

Published in Litigation News Volume 48, Number 1, Fall 2022 . © 2022 by the American B ar Association. Repr oduced with permis sion. All rights rese rved. This informa tion or any portion th ereof may not be cop ied or disseminated in any for m

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