Case File
6451-35A
Name
Paul Jarney
Case Overview
Paul Jarney broke into the Native Roots Dispensary in Colorado Springs, grabbed as much marijuana as they could carry and fled the store. Unfortunately for the robber, he grabbed all of the “marijuana” in display cases, but what he thought was marijuana was actually oregano; the real stuff was kept in the back of the store in a locked “bud room.” Police were able to track down the thief using surveillance footage and he was charged with burglary.
Scenario
Jarney’s cousin recommends an attorney. Jarney visits the attorney for an initial consultation. After discussing the case for about 15 minutes, the attorney says “I’m sorry, I’m licensed to practice only in Utah. You’re being charged in Colorado, so you need a Colorado attorney.”
Is Jarney’s discussion with the Utah lawyer privileged?
Scenario Solution
Correct!
Is Jarney’s discussion with the Utah lawyer privileged?
Answer: Yes
- Privilege protects discussion with any attorney, including one licensed by another jurisdiction. Don’t have to worry about Jarney’s reasonable belief.
- Privilege covers initial consultation. No requirement of pay.
Case File
8921-35B
Name
Amanda
Case Overview
iLife sues Nintendo for infringement of patent on its motion-sensing technology. iLife claims that Nintendo's Wii and Wii U controllers use accelerometers to track how a player is moving their hands relative to their environment, which is a system iLife says it invented and patented for use in medical monitors that would automatically call an ambulance if an elderly person fell or if a baby was at risk of dying from sudden infant death syndrome.
After she learns about the lawsuit, Amanda (a team leader in Nintendo’s development department) writes to the company’s lawyer.
The letter discusses how team developed the motion-sensing technology - including some facts that suggest the team stole idea from iLife.
Scenario
Is this letter from Amanda privileged?
Scenario Solution
Correct!
Probably yes under Upjohn.
- Under federal law, an employee doesn’t have to be CEO, board member, or other high ranking official to qualify for the attorney-client privilege.
- It seems that Amanda acted on her own initiative in writing, rather than at her boss’s direction, but that’s only one factor under Upjohn.
- Looking at all Upjohn factors, this probably is privileged.
- Factors pp. 836. Key factor is scope of EEs duties. If EE speaks about matters within scope and satisfies other standard parts of test (speaks confidentially to companies lawyer to obtain legal advice) it’s probably privileged.
Scenario
In that letter, Amanda discusses a memo she received from a technician on her team. That memo acknowledges that the team copied iLife’s technology.
- Amanda attaches this memo to her letter.
- And in the letter, she summarizes a conversation she had with the technician about the ease of copying iLife’s patent.
During discovery, iLife requests Nintendo to disclose all memos related to the motion-sensing technology. And during Amanda’s deposition, iLife asks her to recount any conversations she had with team members about the technology.
Does Amanda have to disclose the memo? Or the content of her discussion with the technician?
Scenario Solution
Correct!
Both of these. The memo and conversation are pre-existing evidence; Amanda can’t shield these by scenarioing them to the company’s lawyer. Her discussions with the lawyer about these events are privileged, but the memo and earlier conversation are not.
Remember that Amanda’s memory of her conversation with the team member is evidence. Witnesses have to respond honestly about conversations.
Scenario
Amanda’s letter to the lawyer, of course, is still privileged. That’s the one in which she confessed some facts that might incriminate her and the team members. But suppose the CEO decides to waive the privilege and disclose the letter. He’s going to let Amanda and her team take the fall for Nintendo.
Can the CEO do that?
Scenario Solution
Correct!
Yes. Under Upjohn, a middle manager like Amanda may count as the “client” when communicating with the attorney. Privilege will shield those communications.
But CEO (or board of directors) controls waiver of privilege. CEO is the client for those purposes. Can waive without getting consent of other affected employees. The CEO might get board of directors’ consent, but that’s usually easy.
Certainly, don’t need lawyer’s consent.
Employees in situation like this, where there’s potential civil or criminal liability, are advised to retain their own lawyers. That would be smart, but it’s expensive and many can’t.
Scenario
Let’s have a more honorable CEO, who sticks by Amanda and the rest of the team. After iLife files its lawsuit, Amanda writes a memo to the CEO summarizing her team’s actions as they relate to the lawsuit. iLife sends a discovery request for “any and all documents related to development of Nintendo’s motion-sensing technology.”
Does the company have to disclose this memo?
Scenario Solution
Correct!
No, it’s work product.
It’s NOT protected by att’y-client privilege, because it’s not a communication with a lawyer.
But this is part of preparation for litigation. Preparation by client alone or attorney alone qualifies.
Case File
6451-35A
Name
Daniel
Case Overview
This is a recent story out of New York. Three men broke into a Build-A-Burger restaurant and stole a cash register, the stores surveillance equipment, and a large bowl of macaroni salad. When police arrived at the restaurant, they noticed a trail of macaroni salad littering the street outside of the restaurant. The suspects had been eating the macaroni salad as they escaped from the robbery.
Police arrested the thieves nearby, but let’s pretend they followed the macaroni salad a bit longer until the trail ended at the front door of one of the thieves homes. We’ll focus on this one thief, Daniel. Daniel returned home, shaved his beard, and changed his clothes. When police knocked on the door at the end of the macaroni trail they found the stolen cash register and arrested him.
The man was married and his wife saw him dash into the house, shave and change clothes.
Scenario
Suppose the state prosecutes the man for burglary. At trial, the prosecutor asks the wife to describe what she saw. The two are still married. Does the wife have to respond?
Scenario Solution
Correct!
Answer: No, the testimonial privilege applies.
Criminal case and they are married. She can’t be forced to provide any testimony against her husband.
The confidences privilege doesn’t apply, because the husband didn’t confide anything; she witnessed his acts.
Scenario
Can the wife answer if she wants to do so?
Scenario Solution
Correct!
Yes. The witness spouse holds this privilege. So she can choose to testify.
Scenario
What if the marriage ends before trial. Can the wife refuse to testify?
Scenario Solution
Correct!
No. The testimonial privilege no longer applies, because marriage has ended.
And this was not a confidential communication (it was an observation) so the confidences privilege doesn’t apply
Scenario
Suppose that, while shaving, the husband says to his wife: “Honey, can you clean up that macaroni salad in the front entryway? I grabbed it because I was stoned and very hungry.”
- The police see marijuana when they arrive at the house to arrest Daniel and also prosecute the husband for possession.
- He claims that he didn’t know the marijuana was in the house.
- Wife is so appalled by everything that she leaves her husband. Marriage is over by time of trial.
The prosecutor calls the former wife as a witness at trial and asks her what her ex-husband said about being stoned. Does she have to respond?
Scenario Solution
Correct!
No. The testimonial privilege no longer applies, but the confidences one does.
Protects this confidential statement.
It’s not hearsay, because it’s a party-opponent statement (i.e., it would be introduced against the husband).
Scenario
If the wife wants to testify, can the husband stop her?
Scenario Solution
Correct!
Yes. Either spouse can prevent waiver. I.e., if husband wants to keep communication confidential he can.
Still not hearsay: statement by party opponent.
The communications privilege survives divorce
Case File
3651-35F
Name
Ryan Burke
Case Overview
A fraternity hosted a hazing incident that required pledges to consume large amounts of alcohol. One pledge was brought unconscious to the ER. He survived without much permanent damage, but the state charged members of the fraternity with hazing.
Ryan Burke, president of the fraternity, was one of the defendants.
Suppose at Burke’s trial, the prosecutor calls Paul Parker, another frat member, to provide evidence. Parker participated in hazing and saw Burke’s actions.
Parker invokes the privilege against self-incrimination and refuses to testify.
But he previously gave sworn statement to the police that described both his involvement and Burke’s
Scenario
Let’s think about whether the prosecutor can use this statement to convict Burke. There are both hearsay and privilege problems here, so let’s attack them step by step.
First, is the statement admissible as a prior statement? We have Parker as a witness on the stand. Can prosecutor introduce the police statement under 801(d)(1)?
Scenario Solution
Correct!
No. Parker isn’t subject to cross-examination. He’s claiming a privilege and refusing to testify. The rule requires a witness to be subject to cross-exam for this exception to apply. Privilege means not subject to cross.
Introducing this statement would also violate the 6th amendment, but we don’t need to reach that issue.
Scenario
What about 804(b)(1) (former testimony – previous statement under penalty of perjury and during trial, hearing, depo, with similar motive to develop testimony)?
Scenario Solution
Correct!
Again, no. Testimony must have been part of a proceeding at which the opponent had an opportunity to cross examine. That’s not true of a police statement.
Again, this would violate the sixth amendment, but we don’t have to reach that issue.
Scenario
801(d)(2)(E) (co-conspirator)? A hazing ritual is the type of joint venture that would qualify; assume that we can show a conspiracy between Parker and Burke.
Scenario Solution
Correct!
No again—this statement was not in furtherance of the conspiracy.
If the statement did qualify, there would be no sixth amendment problem. This is like party’s own admission.