Court Orders Production of Allegedly Privileged Documents After In Camera Review

Posted on June 10, 2009 by R. David Donoghue

 

Heriot v. Byrne, No. 08 C 2272, Slip Op. (N.D. Ill., Apr. 9, 2008) (Ashman, Mag. J.).

Judge Ashman issued this Order finding that certain of defendants' allegedly privileged documents were privileged and ordering that others be produced.  The Court did not discuss specific documents or the analysis that went into the decisions.  But the Court  did provide the following list of general explanations for why some documents asserted to be privileged were in fact not privileged and had to be produced:

 

  • not confidential;
     
  • did not reveal privileged communications, directly or indirectly; or
     
  • the advice was that of accountants, not lawyers, and was not used to assist the lawyers in giving legal advice.

Both young lawyers preparing privilege logs and senior lawyers reviewing them for exchange would do well to read this list.  It covers most of the common reasons documents are erroneously withheld as privileged.

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FRE 502 Applies in Case Pending on 502's Effective Date

Posted on June 1, 2009 by R. David Donoghue

Heriot v. Byrne, No. 08 C 2272, Slip Op. (N.D. Ill., Mar. 20, 2008) (Ashman, Mag. J.).

 
Judge Ashman denied in part and granted in part Defendants' discovery motion seeking certain allegedly privileged documents, and denied in part and withheld ruling on the remainder of plaintiffs discovery motion regarding allegedly privileged documents.  Of particular interest, the Court held that new Fed. R. Evid. 502 governing inadvertent disclosure of privileged documents applied in this case although it was not filed after the rule took effect because the case was pending at that time and because defendants, who opposed application of the rule, identified no reason that its application in this case would be unjust.  Having decided that Fed. R. Evid. 502(b) applied to allegedly inadvertent disclosures, the Court identified the test to determine whether the disclosure was a waiver of privilege as follows:  1) determine whether the disclosed material was privileged; 2) determine whether all three Fed. R. Evid. 502(b) factors are met, including inadvertence.  The Court also noted that in analyzing the three factors courtss were free to consider any of the five factors from Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371 (7th Cir. 2008).

 

 

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Abstention Not Appropriate Because Foreign Action Does Not Address All US Issues

Posted on August 27, 2008 by R. David Donoghue

Heriot v. Byrne, No. 08 C 2272, Slip Op. (N.D. Ill., Jul. 21, 2008) (Conlon, J.).

Judge Conlon denied defendants’ motion to dismiss plaintiffs’ copyright and related state law claims based upon forum non conveniens, Colorado River abstention, and for lack of standing. Plaintiffs alleged that they were co-owners of defendants’ copyrights in the popular books and movies associated with The Secret, a self-help program. Defendants previously filed a suit in Australia seeking a declaratory judgment that defendants owned the copyright in The Secret.

 

Forum Non Conveniens

 

The Court held that the Australian Court would not be able to resolve US copyright ownership, and, therefore, was not an adequate forum. Furthermore, much of the evidence for plaintiffs’ unjust enrichment and equitable accounting claims was located in the US, as were the key witnesses. 

 

Colorado River Abstention

 

Although both suits focused on the same works, the Australian case did not include and would not resolve plaintiffs’ equitable claims for unjust enrichment and the equitable accounting. Because the Australian case would not resolve all issues in the US case, abstention was no appropriate.

 

Standing

 

The Court held that plaintiffs had standing to make its copyright claims because plaintiffs alleged copyright ownership in their complaint.

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