Think Privilege Attaches? Think Again

AuthorLindsay Sestile
Pages16-17
Published in Litigation News Volume 47, Number 3, Spring 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any
form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.
Think Privilege
Attaches?
Think Again
Companies’ public relations dep artments often send press rel eases to legal before publication
to ensure nothing in the release will cause future legal h arm. But at least one cour t has held this
type of run-it-by-the-lawyer communication is insucient to secure privileg e protection in a sub-
sequent legal action. P resnell Privileges ’s Todd Presnell reviews the U.S. District Court for the
Eastern District of Louisiana’s decision in Slocum v. International Paper Co . In this class action, an
explosion in a paper mill coated a local town in black liquid. Within h ours, the local communic a-
tions manager sent a draft st atement via email to the company’s communications leade rs and two
in-house counsel, inser ting “PRIVILEGED ATTY CLI ENT COMMUNIC ATION” in the email’s subject
line. One of the in-house coun sel responded that the edits “loo k good.” Later facing a motion to
compel, the communications ma nager f‌iled a declaration, at testing the email to counsel sought
advice on potential legal implications of the draft s tatement. The court compelle d production, not-
ing modern corporate counsel have become involved in all facets of the enterprise and a re cop-
ied on every communication that might be see n as having some legal signif‌icance, reg ardless of
whether it is ripe for legal analysis. The cou rt also took issue with the simultaneous com munication
to both lawyers and nonlawyers, f‌inding that the p rimary purpose of the communic ation was not
for legal advice because it ser ved both business and legal purpose s. Presnell advises companies to
be aware that courts view in-house lawyers’ com munications skeptically, especially when nonlaw-
yers are also on the communication. How could the result h ave been dierent? Presnell suggests
a separate email to in-house counsel, a sp ecif‌ic request for legal advice in the e mail’s content in
addition to the privilege designation in the subject lin e, and in response to the motion to compel, a
declaration from in-house counse l explaining the early need for legal advice .
http://bit.ly/LN473-pn1
Remanding ADA Cases to State Cour t
California’s Un ruh Act imposes automatic state law li abil-
ity and additio nal damages for violations of the f ederal
Americans wit h Disabilities Act (ADA). To discourage serial
f‌ilers, the C alifornia legislature enacte d reforms, includ-
ing higher fee s and additional procedural re quirements,
which resulted in pl aintis moving their cases to fede ral
courts. U nderstanding the ADA’s William Gore n covers the
U.S. Cou rt of Appeals for the Ninth Circuit ’s examination of
supplement al jurisdiction over Unruh Act cla ims in Arroyo
v. Rosa s. In Arroyo, the district co urt granted the serial
plainti’s un opposed summary judgm ent motion on the
ADA claim but declin ed jurisdiction of the Unruh Ac t claim.
The Ninth Circuit co ncluded that retention of supplem ental
jurisdiction over A DA-based Unru h Act claims threatens to
undermine C alifornia’s reforms and deprives s tate courts of
© Getty Image s
their critical rol e. However, given the late date at which the
district cour t declined jurisdiction, t he Ninth Circuit held it
had abused its d iscretion in dismissing the plai nti’s Unruh
Act claim. The l ower court had al ready resolved the merits
of the ADA claim—imp licating automatic liability un der the
Unruh Act—leaving o nly the ministerial task of enterin g
judgment on th e state law claim. For federal litigan ts in
states with anti-discrimination statutes, particula rly those
with heightened pleading requirements, Goren advises
defense counse l immediately remand at least th e state law
claim to state court . While defendants typic ally prefer fed-
eral court, h e suggests they may be better serve d in such
cases by removing the e ntire case to state court through
supplemental jurisdiction over the federal claim.
http://bit.ly/LN473-pn2
16 | LITIGATION SECTI ON
POSTED& NOTED
SIGHTINGS FROM TH E BLOGOSPHERE

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