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Whaley: 'Multi-jurisdictional' cases complicate attorney-client privilege analysis

April 23, 2014
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By Alan Whaley

whaley Whaley

Litigators in discovery practice are certainly used to wrestling with attorney-client privilege decisions, which are interesting and challenging enough even when the case involves parties and a court that all share the same “citizenship.” But how is the analysis affected when the parties, the court and perhaps the source of the requested information (such as a non-party) are in different states? What about when there are many plaintiffs from different states in a single consolidated case, as often happens in multidistrict litigation?

Choice of law analysis

Cases that cross jurisdictional lines frequently add a layer or two of complexity to attorney-client privilege decisions, in that they require some choice of law analysis. An example is Wolpin v. Philip Morris, Inc., 189 F.R.D. 418 (C.D. Cal. 1999), which involved a plaintiff who sued a cigarette manufacturer in Florida, alleging injuries due to secondhand smoke. The plaintiff relied in part on an epidemiological study that focused on whether exposure to secondhand smoke increased the risk of lung cancer in nonsmoking women. The study was conducted by five institutions, one of which was the University of Southern California. The defendant served a subpoena on USC seeking production of raw data that had been collected for the study. USC resisted the subpoena, and a motion to compel followed.

In resolving this discovery dispute, the District Court first noted it had to decide which law governed. In federal cases, attorney-client privilege analysis starts with Federal Rule of Evidence 501, which states that, generally, federal common law governs – except that in civil cases, if a claim or defense is to be resolved under state law, then “state law governs privilege.” But which state’s law – California’s? Florida’s?

Several authorities, including the Wolpin court (and the 7th Circuit – see Roberts v. Carrier Corp., 107 F.R.D. 678 (N.D. Ind. 1985), citing Palmer v. Fisher, 228 F.2d 603 (7th Cir. 1955), cert. denied, 351 U.S. 965 (1956), abrogated on other grounds, Carter Products, Inc. v. Eversharp, Inc., 360 F.2d 868 (7th Cir. 1966)), hold that the court hearing the discovery dispute should apply its state’s law. This starts by applying the forum state’s choice of law rules to determine what state’s substantive privilege law governs.

Government interest analysis

In Wolpin, that meant starting with California’s choice of law rules, which require courts to apply a “government interest analysis,” examining the interests of the competing jurisdictions and applying the substantive law of the state with the more compelling interest. The Wolpin court concluded that California’s interest in the study data was stronger than Florida’s. For instance, most of the study’s subjects were California residents, none were from Florida, and the California Department of Health Services participated in collecting and storing the data. Therefore, the substantive privilege law of California should govern. Under Florida’s choice of law rules, the court reasoned that the conclusion would be the same. This was because Florida applies the Restatement (Second) of Conflict of Laws, Section 139, which focuses on the state with the “most significant relationship with the communication” – generally the state where the communication took place. So even using Florida conflict of law rules would result in California privilege law being applied.

Turning to California privilege analysis, the court assessed USC’s claims of privilege under the California Health and Safety Code and the California Constitution, and concluded that while privileges applied, they were not absolute. Rather, they were outweighed by the requesting party’s need for highly relevant information and the fact that personally identifiable information about the study participants would not be revealed.

Multidistrict litigation cases

As illustrated by Wolpin, cases that involve several jurisdictional factors – different citizenship, different court locations, etc. – require the parties to do the choice of law analysis first, because it will drive what substantive privilege principles are applied. This reality is even more vivid in multidistrict litigation cases, where it is common to have parties from many states in one consolidated proceeding.

What should the approach be, for example, when a Delaware corporate defendant in a Colorado MDL product liability case is responding to discovery requests from a group of plaintiffs who come from a dozen different states? Some courts have simply applied federal common law privilege principles across the board, but this approach ignores Federal Rule of Evidence 501’s requirement that state privilege law applies for claims or defenses that are governed by state law.

A thorough and thoughtful decision by the U.S. District Court for the Southern District of Illinois, In re Yasmin and Yaz (Drospirenone)Marketing, Sales Practices and Products Liability Litigation, 2011 WL 1375011 (S.D. Ill. April 12, 2011), describes one plausible approach.

The court first considered but rejected the plaintiffs’ argument that Illinois choice of law principles should apply to all the consolidated cases simply because Illinois was the forum state. Instead, the court concluded that Illinois choice of law rules should apply to cases that originated in Illinois, pursuant to 7th Circuit authority. For cases that had been filed in other districts but were transferred to the MDL, the law of the originating state would apply. Finally, for cases that originated in other districts (that is, they involved a non-Illinois plaintiff) but were directly filed in the Illinois MDL, the Yasmin court noted that there was District Court authority for both the forum-state approach and the originating-state approach, but concluded that the originating-state approach was more fair.

In essence, the Yasmin court recognized that it would have been easier to apply federal privilege law comprehensively, or apply Illinois choice of law rules no matter where a case originated, but those blanket approaches are hard to justify for any reason other than convenience. Still, the approach the court chose seems daunting because it anticipates examining the choice of law rules, and perhaps the privilege law, of dozens of states.

The most significant relationship to the communication

The Yasmin court undertook that challenge, though, and canvassed the law of all 50 states. It concluded that it was likely that most states would apply the privilege law of the state with the most significant relationship to the communication, which is the test used under the Second Restatement, Section 139. The court noted that 13 states, the District of Columbia, and Puerto Rico have adopted Section 139 or cited it with approval. Another 23 states, which have not yet specifically considered Section 139, nevertheless apply the Second Restatement in other situations. Six more states (including Indiana) apply an interest analysis similar to the Second Restatement’s when addressing conflict of law issues. The remaining eight states adhere to the traditional analysis found in the First Restatement – typically lex loci delicti in tort cases. However, the Yasmin court also found that a “special circumstance” (a Second Restatement concept) warranted application of the most significant relationship test even in cases originating in states following the First Restatement approach, because fairness to the expectations of the parties to a privileged communication militated in favor of applying the rules of the state with the most significant relationship to the communication.

Thus, while the Yasmin court’s approach required extensive analysis, it arrived at a conclusion that offers a streamlined and practical solution for the parties to MDL cases, because applying the most significant relationship test will often result in one state’s substantive privilege law (the state where the communication took place) being applied, rather than the privilege law of several states. This approach also helps avoid the complications that would arise if one tried to apply different states’ inconsistent privilege laws to the same communication.•

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Alan (Skip) Whaley is a partner in the litigation and appellate practices of Ice Miller LLP. His practice focuses on health care and product liability cases, e-discovery, confidentiality and privacy issues, regulatory and licensing matters, and risk management. He can be contacted at 317-236-2362 and whaley@icemiller.com. The opinions expressed are those of the author.
 

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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