Privileges

• Pages: 83-130

83

CHAPTER III

PRIVILEGES

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. There are other

privileges, however, that have risen 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. 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); Iron Worker’s Local Union No. 17 Ind.

Fund v. Philip Morris, Inc., 35 F. Supp. 2d 582, 590 (N.D. Ohio 1999)

(same in RICO cases). 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); Perrignon v. Bergen Brunswig Corp.,

77 F.R.D. 455, 458-59 (N.D. Cal. 1978) (in federal question case, federal

common law of privileges governs); cf. Waterloov Gutter Protection

Systs. Co., v. Absolute Gutter Protection, L.L.C., 64 F. Supp. 2d 398, 411

(D.N.J. 1999) (apply state law when state privilege did not interfere with

federal law and was therefore not preempted). Under comity policies

governing federal-state relations, federal courts may recognize state

privileges. See Pudlo v. Adamski, 1992 WL 27002, *1 (N.D. Ill. 1992);

Magovern, 83 F.R.D. at 87; Lora v. Bd. of Educ., 74 F.R.D. 565, 576

(E.D.N.Y. 1977).

84 Antitrust Evidence Handbook

In all cases, the party claiming a privilege has the burden of

proving that the privilege applies. See, e.g., Weil v. Investment/

Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981);

Newport Pac., Inc. v. County of San Diego, 200 F.R.D. 628, 632 (S.D.

Cal. 2001); In re Milk Prods. Litig., 84 F. Supp. 2d 1016, 1028 (D. Minn.

1997); Wei v. Bodner, 127 F.R.D. 91, 94 (D.N.J. 1989).

The following Federal Rules of Evidence are relevant to claims

of privilege:

Federal Rule of Evidence 501. General Rule

Except as otherwise required by the Constitution of the United

States or provided by Act of Congress or in rules prescribed by the

Supreme Court pursuant to statutory authority, the privilege of a

witness, person, government, State, or political subdivision thereof

shall be governed by the principles of the common law as they may

be interpreted by the courts of the United States in the light of

reason and experience. However, in civil actions and proceedings,

with respect to an element of a claim or defense as to which State

law supplies the rule of decision, the privilege of a witness, person,

government, State, or political subdivision thereof shall be

determined in accordance with State law.

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., McCormick on Evidence ¶¶87-97;

8 John Wigmore, Evidence §§2291-99 (McNaughton rev. 1961); 2

Weinstein’s Evidence, ¶ 503[2].

2. Scope of the Privilege

a. Corporations. 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. Upjohn

Privileges 85

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., Georgia-Pac. Corp. v. GAF Roofing Mfg. Corp.,

1996 WL 29392 at *4-5 (S.D.N.Y. Jan. 25, 1996) (no privilege

where in-house lawyer was acting in a business capacity); see

generally Stuart J. Baskin, Corporate Governance, Compliance and

Accountability: Performing the Investigation, Caremark and Year

2000 Issues, 1070 PLI/Corp 261, 265-66 (1998).

b. Former employees of corporations. 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); In re Coordinated Pretrial Proceedings in Petroleum

Prods. Antitrust Litig., 658 F.2d 1355, 1361 n.7 (9th Cir. 1981)

(same); Peralta v. Cendant Corp., 190 F.R.D. 38, 40-41 (D. Conn.

1999) (privilege may extend to communications between corporate

counsel and a former employee where communications either (i)

concern knowledge obtained or conduct that occurred during the

course of the former employee’s employment with the corporation or

(ii) relate to communications that themselves were privileged and

that occurred during the employment relationship); United States v.

King, 536 F. Supp. 253, 259 (C.D. Cal. 1982) (same).

c. Ex parte 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 (D.Md. 1997),

aff’d mem., 141 F.3d 1162 (4th Cir. 1998) (ex parte contact with

former in-house counsel to defendant improper); and Mills Land &

Water Co. v. Golden West Ref. Co., 186 Cal. App. 3d 116, 126-32,

230 Cal. Rptr. 461, 465-69 (Cal. Ct. App. 1986) (ex parte contact

with director of opponent corporation can violate privilege and ethics

rules) with Sharpe v. Leonard Stulman Enter. LP, 12 F. Supp. 2d

502, 504 (D.Md. 1998) (ex parte communications with former

employees allowed where the former employees lacked privileged

information and where their statements could not be imputed to their

former employer); Cram v. Lamson & Sessions Co., 148 F.R.D. 259,

266 (S.D. Iowa 1993) (while opposing counsel can interview former