A number of claims of privilege can arise in the antitrust context. The
Fifth Amendment privilege against self-incrimination, which has
particular application, is discussed in Chapter Four. But there are many
other privileges that apply in antitrust cases, such as the attorney-client
privilege (including the common interest or joint defense privilege), the
attorney work product doctrine, the physician-patient privilege, and
various governmental privileges.
In all cases, the party claiming a privilege has the burden of proving that
the privilege applies. See, e.g., Shaffer v. Am. Med. Ass'n, 662 F.3d 439,
446 (7th Cir. 2011); Weil v. Investment/Indicators, Research & Mgmt.,
Inc., 647 F.2d 18, 25 (9th Cir. 1981); Acosta v. Target Cor p., 281 F.R.D.
314, 321 (N.D. Ill. 2012); In re Human Tissue Products Liability Litig.,
255 F.R.D. 151, 157 (D. N.J. 2008); Newport Pac., Inc. v. County of San
Diego, 200 F.R.D. 628, 632 (S.D. Cal. 2001).
When enacting the Federal Rules of Evidence, Congress chose to
eliminate all specific rules on privileges. See, e.g., H.R. Rep. No. 93-650,
93d Cong., 1st Sess. (1974). Federal Rule of Evidence 501 provides that
privileges shall be governed by the principles of the common law. In
antitrust cases, privileges are usually governed by federal common law
because a federal statute is involved. See, e.g., Wm. T. Thompson Co. v.
Gen. Nutrition Corp., 671 F.2d 100, 103 (3d Cir. 1982); United States v.
Landof, 591 F.2d 36, 38 (9th Cir. 1978); Callahan v. A.E.V. Inc., 947 F.
Supp. 175, 178 (W.D. Pa. 1996); cf. D’Oench, Duhme & Co. v. Fed.
Dep. Ins. Corp., 315 U.S. 447 (1942). If federal and state common law
conflict with respect to privileges, the weight of authority is that federal
law will prevail even if supplemental state claims are involved. See
Robinson v. Magovern, 83 F.R.D. 79, 84-85 (W.D. Pa. 1979) (federal
common law governs privilege issues); Perr ignon v. Bergen Brunswig
Corp., 77 F.R.D. 455, 458-59 (N.D. Cal. 1978) (federal common law of
privileges governed in federal question case); cf. Waterloov Gutter
Protection Systs. Co., v. Absolute Gutter P rotection, L.L.C., 64 F. Supp.
2d 398, 411 (D.N.J. 1999) (applying state law when state privilege did
not interfere with federal law and was therefore not preempted). Under
principles of comity governing federal-state relations, federal courts may
recognize state privileges. See P udlo v. Adamski, No. 91 C 7474, 1992
78 Antitrust Evidence Handbook
WL 27002, at *1 (N.D. Ill. Feb. 12, 1992); Magovern, 83 F.R.D. at 87;
Lora v. Bd. of Educ., 74 F.R.D. 565, 576 (E.D.N.Y. 1977).
The following Federal Rules of Evidence are relevant to claims of
Federal Rule of Evidence 501. General Rule
The common lawas interpreted by United States courts in
the light of reason and experiencegoverns a claim of
privilege unle ss any of the following provides otherwise: the
United States Con stitution; a feder al statute; or rules
prescribed by the Supreme Court. But in a civil case, state law
governs privilege regarding a claim or defense for which state
law supplies the rule of decision.
Federal Rule of Evidence 1101. Applicability of Rules
(c) The rule with respect to privileges [FED. R. EVID.
501] applies at all stages of all actions, cases and proceedings.
A. Attorney-Client Privilege in the Antitrust Context
1. Overview of the Privilege
The attorney-client privilege protects confidential communications
between lawyer and client. See, e.g., 1 CHARLES MCCORMICK,
MCCORMICK ON EVIDENCE ¶¶ 87-97 (3d ed. 1987) (hereinafter
99 (McNaughton rev. 1961); 2 WEINSTEINS EVIDENCE, ¶ 503[2] (2d ed.
2. Scope of the Privilege
a. Corpora tions. Where corporations are involved, as is often the
situation in antitrust cases, communications between counsel and
corporate employees may be privileged where the communications
were made as a part of the process of securing legal advice. See
Upjohn Co. v. United States, 449 U.S. 383 (1981). The attorney-
client privilege, however, protects only communications with a
lawyer acting in a legal capacity. Business communications are not
protected. See, e.g., In re Domestic Drywall Antitrust Litig., MDL
No. 2437, 2014 WL 5090032 (E.D. Pa. Oct. 9, 2014) (no privilege
for antitrust compliance manuals and instructional devices); In re
Plasma-Derivative Protein Therapies Antitrust Litig., 2013 U.S.
Dist. LEXIS 29624 (N.D. Ill. Mar. 4, 2013) (no privilege where in-
house lawyer acting in business capacity); see generally Stuart J.
Privileges 79
Baskin, Cor porate Governance, Compliance and Accountability:
Performing the Investigation, Caremark and Year 2000 Issues, 1070
PLI/Corp 261, 265-66 (1998).
b. Former Employees of Cor porations. The privilege often applies to
protect communications between the lawyer and former employees.
See In re Allen, 106 F.3d 582, 605-06 (4th Cir. 1997) (counsel’s
communications with ex-employee protected by attorney-client
privilege); United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996)
(same); Hanover Ins. Co. v. Plaquemines Parish Gov’t, 304 F.R.D.
494 (E.D. La. 2015); In re General Motors LLC Ignition Switch
Litig., No. 14-md-2543 (JMF), 2015 WL 221057, at *9 (Jan. 15,
2015) (attorney-client privilege applies to “communications between
current and former . . . employees and agents and outside counsel”);
In re Flona se Antitrust Litig., 723 F. Supp. 2d 761 (E.D. Pa. 2010).
c. Ex Par te Communications with Employees. Under some
circumstances, ex parte communications by opposing counsel with
corporate employees or former employees may violate the privilege.
Compare Zachair, Ltd. v. Driggs, 965 F. Supp. 741, 754 (D. Md.
1997) (ex parte contact with former in-house counsel to defendant
improper), aff’d mem., 141 F.3d 1162 (4th Cir. 1998), Cram v.
Lamson & Sessions Co., 148 F.R.D. 259, 266 (S.D. Iowa 1993)
(while opposing counsel can interview former employees, counsel
may not inquire into matters covered by the attorney-client privilege;
only the organization may waive the privilege), with
ChampionsWorld, LLC v. U.S. Soccer Federa tion, 276 F.R.D. 577,
590 (N.D. Ill. 2011) (ex parte interview of executive that played role
in both underlying facts and litigation strategy allowed where
interview focused only on underlying facts); Sharpe v. Leonard
Stulman Enters. LP, 12 F. Supp. 2d 502, 504 (D. Md. 1998) (ex parte
communications with former employees allowed where former
employees lacked privileged information and where their statements
could not be imputed to their former employer).
d. Voluntary Waiver by New Mana gers. New managers of a
corporation, through merger, acquisition, or succession, may waive
the privilege as to communications by former officers and directors.
Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343,
349 (1985); In re Grand Jur y Subpoena, 274 F.3d 563 (1st Cir.
2001); United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996);
see also In re Behr Dayton Thermal Pr oducts, LLC, 298 F.R.D. 536,
541 (S.D. Ohio 2014); MacKenzie-Childs LLC v. MacKenzie-Childs,

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