State Overhauls Criminal Discovery Rules

• Author: Laura W. Givens
• Pages: 24-25

Published in Litigation News Volume 45, Number 3, Winte r 2020. © 2020 by the Ame rican Bar Associati on. Reproduced with p ermission. All rights r eserved. This in formation or any por tion thereof may no t be copied or disseminate d in any

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24 | SECTION OF LITIGATION

NEWS & ANALYSIS THE LATEST DEVELOPMENTS IN LITIGATION

provide more than on e way of report-

ing, he advise s.

Second, employers should train

employees on the po licy periodically

and have them sign o on s uch train-

ing, McCal lum says. The content of the

training shoul d cover all types of ha-

rassment, whether by employees, cli-

ents, customers, or other nonemploy-

ees, he notes .

Finally, if there is a comp laint, the

employer must take “prompt and ef-

fective remedia l action,” McCallum ad-

vises. “The t ype of workplace and en-

vironment will di ctate what steps are

going to be reason able for the em-

ployer to take to end the har assment,”

he explains.

“This is a time whe re people are

much more aware of the ir rights, so

employers have to be much m ore

aware of their obliga tions,” Forman

concludes. Trainin g for both manage-

ment and empl oyees is key to guard-

ing against pote ntial liability for ha-

rassment claims like these.

Privilege Waived

for Email Copied

to Unrepresented

Third Party

By Peter J. Murphy, Litigatio n News

Contributing Editor

Common interes t agreements allow

separate parti es pursuing a common

legal interest to sh are information pro-

tected by the attorney- client privilege

without waiving tha t privilege. But a

common legal i nterest requires that

both parties be re presented by counsel

at the time of the comm unication, ac-

cording to the U.S . District Court for

the Southern Di strict of California. A

common busin ess or commercial inter-

est is not sucie nt to protect other-

wise privilege d communication from

disclosure.

It is well settled tha t attorney-cli-

ent privileged communications that

are disclosed to third p arties are no

longer privil eged. A narrow exception

to that rule is the “comm on interest”

doctrine. B ut, according to the court

in Regents of Un iversity of California

v. Aymetrix, Inc ., a party seeking to

protect communications made under

a purported co mmon interest agree-

ment must demonstrate that there

was “a common lega l, as opposed

to commercial, interest” between

the parties, and the communications

were “designed to fu rther that

legal eort.”

In Regents, one company’s scie n-

tist sent an email s eeking legal advice

to the company’s in- house attorneys.

The scientist copied another scien-

tist, who was empl oyed by a second

company, on the email . At the time,

the f‌irst compa ny was using the se c-

ond company to design and man-

ufacture products, and the parties

were negotiating a li cense and supply

agreement.

A competitor subsequently sued

the f‌irst compa ny and sought d isclo-

sure of this email. T he f‌irst company

argued that the e mail was protected

from disclosure by th e common in-

terest exception. Th e competitor ar-

gued there was no evi dence that the

second company wa s represented by

counsel or that th ere was a common

legal interest b etween the parties at

that time.

The Regents court identif‌i ed no

Ninth Circuit precedent requiring both

parties to be repr esented by coun-

sel for the commo n interest excep-

tion to apply or exten ding the ex-

ception to an unrepre sented third

party. Neverth eless, the court iden-

tif‌ied several non binding authorities,

including the R estatement (Third) of

Law Governing Lawye rs, which sug-

gest that unrep resented parties can-

not participa te in a common interest

agreement.

According to the cour t, these au-

thorities were per suasive because the

whole intent of the com mon interest

exception is “to perm it attorneys to de-

velop a joint legal s trategy; the devel-

opment of lega l strategy requires the

participatio n of lawyers.” The court re-

fused to apply the exce ption because

there was no eviden ce that the second

company was repres ented by counsel

at the time of the emai l, or that there

was an actual, n onspeculative com-

mon legal intere st between the parties

at that time.

This decision c auses concern be-

cause of its impa ct on how lawyers

treat their client p rivileges. “Courts

appear to be erod ing the attorney-

client privileg e in various ways in the

discovery proces s, f‌inding more rea-

sons to disclose wha t otherwise is

clearly an attorney-client communi-

cation, which is h aving a chilling ef-

fect on lawyers a nd clients alike in

communicatin g in candor for fear of

later disclosure ,” observes Robert J.

Will, St. Louis , MO, a division direc-

tor in the ABA Secti on of Litigation

and immediate p ast cochair of the

Section of Litigati on’s Pretrial Practice

& Discovery Comm ittee.

Although the com mon interest

privilege is pre mised on a communi-

cation between a c lient and an attor-

ney, courts might “ try to f‌ind a way

to include a pro se par ty within the

circle of privileg e,” hopes Edna Selan

Epstein, Chic ago, IL, member of the

Section’s Attorney-Client Privilege

Task Force. The Regents court cited

a case f‌inding a n email between two

parties, with out counsel being cop-

ied, to be protected by a co mmon in-

terest agreeme nt, which was incon-

sistent with its hold ing, notes Epstein.

Clarity and cli ent instruction are

important keys to en suring that ap-

propriate privileges are preserved.

“Attorneys must make sure that a ll

privileged communications are clear-

ly and conspicuously marked and

train employees an d agents that they

should never sen d privileged commu-

nications out side of the organization

without f‌irst cle aring such disclosures

with counsel,” ad vises Will.

State Overhauls

Criminal Discovery

Rules

By Laura W. Givens, L itigation News

Contributing Editor

The New York State Senate pass ed

new discovery laws that wi ll require

prosecutors to turn over cr itical evi-

dence to the accuse d at earlier stag-

es of the criminal p rocess. Bill S1716

is expected to be sign ed by Governor

Andrew Cuomo an d will take eect

90 days thereaf ter. ABA Section of