Maine Evidence and Electronic Discovery

New Maine Privilege Rules To Go Into Effect

So a year ago I reported on a new Maine Rule of Evidence 514, that codified a privilege for certain statements made during mediations, and then reported on the Maine Supreme Judicial Court's decision to withdraw the new rule for further study.

The court has again promulgated a new Rule 514, along with modifications to Maine Rule of Evidence 408, found here.  The changes go into effect on January 1, 2010.

The changes to Rule 408, which addresses offers to compromise, clarify that statements made by party in the context of settlement discussions cannot be used "to impeach a witness through a prior inconsistent statement or contradiction."  Me. R. Ev. 408(a).  The rule also has been amended to provide that statement made by a party or mediator in any court-ordered mediation, or in any mediation in which the parties and mediator have agreed in writing to confidentiality, is inadmissible except in instances of fraud and the like.  Me. R. Ev. 408(b).  Previously Rule 408(b) was limited to court ordered domestic relations mediations.

The commentary to Rule 408 provides that the rule "is designed to encourage parties to speak openly and freely in mediation by assuring them that their statements will not be usable against them in the case being mediated or in any other case between the same parties with the same subject matter."  Interestingly, the comments also state that the new Rule 408(b) is not intended to "insulate statements in mediation from civil discovery."  Arguably, then, the drafters may be envisioning a situation where a party can conduct discovery into what was said in another mediation, although whether such statements are admissible is a separate question.

The new Rule 514 adopts a new mediator's privilege.  The new rule provides that "All memoranda and other work product ... prepared by a mediator shall be confidential and not subject to disclosure in any subsequent judicial or administrative proceeding involving any of the parties to any mediation in which the materials are generated; nor shall a mediator be compelled to testify in any subsequent judicial or administrative proceeding concerning a mediation or to any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation."  Me. R. Ev. 514(b).  There are exceptions in instances of misconduct, or in order to prove that the parties actually reached a settlement agreement at the mediation, or in stances of criminal activity and such. 

The commentary makes clear that the "privilege only applies to mediation proceedings conducted by a neutral mediator.  Thus, when a party’s lawyer, a guardian ad litem, or other person with a particular point of view to represent attempts to function as 'mediator' in settlement or other discussions, the privilege is not applicable.  The privilege also does not apply to conferences with “settlement judges” or other judicial officials who may be acting in a meditative capacity because of the importance of transparency of public justice institutions."

Notably, the "privilege belongs to mediators, not mediating parties," so the rule "does not empower a party to prevent a mediator from testifying if the mediator chooses to do so."

Justice Alexander issued a separate statement of non-concurrence, based on the comments provided by the Maine Attorney General, who requested additional privilege exceptions to allow testimony about threats or statements of intention to inflict other types of harm beyond bodily injury, and to permit the use of testimony about events occurring at mediations in protection from abuse proceedings.  It is unclear why the Attorney General's requests were not acted upon by the majority of the court.

Supreme Court Issues Decision on Interlocutory Appealability of Discovery Orders Compelling Production of Privileged Materials

The Supreme Court has issued its decision in Mohawk Industries, Inc. v. Carpenter, No. 08-678, discussed in my posts of September 25th and October 9th.

In Mohawk, the Court addressed a circuit split on whether the collateral order doctrine permits an immediate appeal of a discovery order permitting discovery based on a finding of a waiver of the attorney-client privilege.

At issue in the case was information concerning an interview that a former employee of Mohawk had with Mohawk's outside counsel while he was still employed by Mohawk.  Mohawk argued that the interview and any documents related to it were privileged, but the district court ruled that Mohawk had waived the privilege previously and so the materials were discoverable.  The court of appeals declined to accept an interlocutory appeal, holding that the collateral order doctrine did not apply because the discovery order would not be “unreviewable” on appeal from the district court’s final judgment.

The Supreme Court upheld the Eleventh Circuit's ruling in a decision issued December 8th, rejecting decisions in the Third, Ninth and D.C. Circuits that had permitted interlocutory appeals of discovery-related orders compelling production of arguably privileged materials under the collateral order doctrine. 

The Court recognized that its stringent standards for immediate appeals "may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment," but that "has never sufficed."  Slip op. at 5 (internal quotation omitted).  As the Court framed the issue, the "crucial question, however, is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders."  Slip op. at 7.  The Court concluded that "postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney client privilege.  Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence."  Slip op. at 8. 

Finally, the Court noted that in extreme circumstances, a disgruntled litigant still retains limited options for seeking an interlocutory appeal of a privilege-related discovery order.  The party could ask the district court to certify, and the appellate court to accept, an immediate appeal under 28 U.S.C. § 1292(b); the party could petition for mandamus review; the party could "defy a disclosure order and incur court-imposed sanctions"; or the party could invite the district court to hold it in contempt for disobeying the court's disclosure order, from which the "party can then appeal directly from that ruling, at least when the contempt citation can be characterized as a criminal punishment."  Slip op. at 9-10.

Justice Thomas issued a concurring opinion, essentially asserting that the Court's collateral order case law has created a mess that should be avoided altogether in favor of a clear, predictable application of the appellate jurisdiction statute, which effectively would abolish the collateral order doctrine altogether.

In reality, those appellate options are extremely narrow and difficult to obtain, and most parties may be unwilling to risk sanctions or contempt, meaning that most litigants who believe they've been ordered to turn over materials they think are privileged will have little recourse until an eventual appeal post-judgment.  And by that point, the ability to effectively raise the discovery ruling in the context of whatever other substantive legal issues are on appeal may be minimal.

No Reasonable Expectation of Privacy in Email Sent Through Employer's Server

A Florida court recently issued another reminder to employees to be careful what they send through their employer's email systems, because depending on the company's policies there may be no reasonable expectation of privacy sufficient to maintain the attorney-client privilege.

In Leor Exploration & Prod., LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009) (click here), the court was asked to consider the applicability of the attorney-client privilege for an email sent from counsel for the defendant (who previously was employed by plaintiff), summarizing a prior conference call that took place when defendant was still an employee of plaintiff.

The defendant argued that, during his employment with plaintiff, the in-house lawyer served in some capacity as defendant's "personal advisor," although not as his personal attorney.  As a result, the defendant asserted that the email was a privileged communication between his lawyer and his “personal advisor and agent.”  The court first addressed whether the relationship between defendant and plaintiff's in-house counsel was such that the privilege could even attach to the communication at all, then moved on to consider whether, regardless of the nature of that relationship, defendant could have had any reasonable expectation of privacy in a personal email communication sent through his then-employer's server.

The court concluded that the defendant did “not establish the intent to maintain [the email] confidential.”  As support, the court observed that at the time he sent the email, defendant's lawyer knew that the recipient was an in-house lawyer working for plaintiff, and that he was sending the email through plaintiff's server to the in-house lawyer's work email account.  The court discussed four factors to be considered in determining whether an employee has a reasonable expectation of privacy in work-related email:

(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee's computer or email, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Slip op. at 9.  According to the court, all four of the factors was present, in large part because the plaintiff's company manual provided that the plaintiff "owns all electronic communications and that individuals using the [plaintiff's] email system have no expectation of privacy."  Id.  The manual further provided that plaintiff "may access and monitor the use of its systems and equipment from time to time and that employees should not use [plaintiff's] electronic ... communications systems to communicate, receive, or store information that they wish to keep personal or private.”  Id.

The court rejected defendant's argument that his "personal advisor" relationship with the in-house counsel should be sufficient to create a reasonable expectation of privacy, in spite of the "generic" employee manual to the contrary.  "There is no evidence that anyone at [plaintiff] made assurances to [defendant] that he could disregard [plaintiff's] email policy so long as [in-house counsel] was acting as [defendant's] personal advisor.  To the contrary, the record establishes that both [in-house counsel] and [defendant], as employees of [plaintiff], were subject to the email policy."  Id. at 10.

The court therefore held that the email was not protected by the attorney-client privilege because there was no reasonable expectation of privacy inherent in sending a personal email through the defendant's then-employer's email system.

Update on Mohawk Industries Case

As an update to my post of September 25th, regarding the upcoming oral argument before the Supreme Court in Mohawk Industries Inc. v. Carpenter, addressing the appealability of discovery orders implicating the attorney-client privilege, the Court held its argument on October 5th, the first day of its regular Fall term.

According to reports, several of the justices seemed skeptical about providing additional protection for the attorney-client privilege not allowed for other privileges.  The link to the oral argument transcript is here.

We will have to wait and see what the outcome is.

Supreme Court Set to Resolve Dispute About Appealability of Discovery Orders Finding Waiver of Attorney-Client Privilege

The Supreme Court is set to hear oral arguments next month in an interesting matter that will resolve a split on whether a district court's order allowing discovery over an attorney-client privilege objection is immediately appealable under an exception to the finality requirements that normally govern appeals.

In Mohawk Industries, Inc. v. Carpenter, No. 08-678, argument is scheduled for October 5, 2009.  The appeal is from a decision of the Eleventh Circuit in August 2008, dismissing an appeal from Mowhawk arising from the district court's order allowing discovery over Mowhawk's assertion of the attorney-client privilege. 

The case arose after Carpenter reported to Mohawk that several temporary employees actually were illegal aliens. In the course of its investigation, Mohawk required Carpenter to talk to Mohawk's outside counsel.  Mohawk later terminated Carpenter, causing Carpenter to file this lawsuit in which he alleged that he had been terminated in connection with his refusal to withdraw his report about illegal aliens.

During the litigation, Carpenter sought to obtain through discovery information about his interview with Mohawk’s outside counsel that had occurred at Mowhawk's insistence.  Mohawk declined to provide any information, arguing that the interview and entire investigation were protected by the attorney-client privilege.  The district court ruled that Mohawk had waived the privilege by putting the communications themselves in play during a separate class action lawsuit that was pending at the same time. 

Mohawk appealed to the Eleventh Circuit, asserting that the district court's order allowing the discovery was immediately appealable under the collateral order doctrine providing an exception to the finality requirement of 28 U.S.C. § 1291.  The Eleventh Circuit dismissed the appeal, rejecting Mowhak's argument that the collateral order doctrine applied, holding that the discovery order would not be “unreviewable” on appeal from the district court’s final judgment.  See Carpenter v. Mowhawk Indus., Inc., 541 F.3d 1048 (11th Cir. 2008).

The Supreme Court court granted certiorari to resolve a circuit split on whether the collateral order doctrine permits an immediate appeal of a discovery order permitting discovery based on a finding of a waiver of the attorney-client privilege.

This will be an interesting one to see resolved.

Be Reasonable and Specific in Objecting to ESI Production

Another recent decision highlights the importance of providing specific evidence to the court on the burdens of electronic production, if you hope to have the court cut back on what the other side is requesting.

In Speiker v. Quest Cherokee, LLC, Docket No. 07-1225-EFM (D. Kan. July 21, 2009) (click here), the class action plaintiffs sued the defendant for unpaid royalties related to oil and gas leases.  The plaintiffs filed an initial motion to compel production of ESI, which was denied by the court without prejudice, based on the defendant's estimated compliance costs of between $82,000 and $375,000, with an estimated cost for privilege reviews of $250,000.  See id. at 2-3.  The parties were directed to confer in an attempt to reach an agreeable resolution, but were unable to do so.  The plaintiffs renewed their motion to compel.

The court did not elaborate on the specific nature of the ESI requests, but generally found that the discovery requests (which presumably covered both hard copy documents and ESI) were relevant.  See id.at 4.  In addressing the costs for ESI production, the defendant offered estimates from Kroll Ontrack that it would cost "approximately $82,500 to process the volume of requested email files and an additional $38,000 charge to copy the ESI information in TIFF format."  Id.at 5.  The estimated $250,000 for privilege review was on top of those amounts.  The defendant argued that it could not have in-house IT staff utilize recently installed computer software to run searches on its own, without involving Kroll, because "the new software is untested and in-house IT staff have no internal experience in producing ESI in litigation," and "this process would need to be completed on nights and weekends.”  Id. at 6. 

The court dismissed the defendant's "pessimistic arguments concerning its ability to generate the requested ESI," finding the arguments "not persuasive."  The court specifically found that the "defendant’s assertions that its IT employees have no experience producing discovery in litigation carries no weight. This court is aware of no case where a party has been excused from producing discovery because its employees have not previously been asked to search for and/or produce discovery materials."  Id. 

The court also found that the defendant's $250,000 privilege review estimate was excessive and over-stated.  The court agreed that the defendant could not simply produce all ESI materials without conducting any review, as "turning over the ESI material without taking any steps to preserve privileged materials would not satisfy Rule 502(b)," resulting in potential privilege waiver.  Id. at 7.  But the court noted that the "defendant is the party most familiar with its own records and responsible for preparing search requests that gather information responsive to plaintiffs’ discovery requests," and so was in the best position to suggest a more reasonable approach.  Id. at 7-8.  Because the defendant had not revised its estimate at all since the filing of the original motion to compel, the court found it unpersuasive and rejected it out of hand.  The court therefore granted the motion to compel.

The lessons here are once again that if a party fails to adequately support its cost arguments, or appears to be offering inflated assessments that are not perceived as reflecting reality, the party runs the risk of the court ordering full production instead of a lesser production if the party had appeared more willing to compromise.

U.S. v. Textron: The First Circuit Arguably Defines a Narrower Scope for Work Product Protection

The First Circuit issued an important decision recently that defines the scope of work product protection under Fed. R. Civ. P. 26(b)(3).  In United States v. Textron, Inc., 560 F.3d 513 (1st Cir. 2009) (click here) all five active duty judges sat en banc to consider whether the work product doctrine protects “tax accrual workpapers,” consisting of schedules and supporting documentation behind a company’s reserve for contingent tax liabilities, from discovery by the IRS.  By a divided 3-2 vote, the en bank court reversed course from the prior panel's decision that had held that such materials were protected by the work product doctrine.  See United Statesv. Textron, Inc., 553 F.3d 87 (1st Cir. 2009).

The evidence before the district court showed that, in the past, Textron on occasion "had litigated disputed tax issues in federal court" with the IRS, and that "the estimates for tax reserves and the supporting work papers were generated within its Tax Department but that tax lawyers in that department were centrally involved in their preparation and that Textron Financial also used an outside counsel to advise it on tax reserve requirements."  Slip op. at 8.  The workpapers in question, among other things, included assessments of the likelihood that the IRS would prevail if it challenged the reserve figures. 

Both sides agreed that "the immediate purpose of the work papers was to establish and support the tax reserve figures for the audited financial statements," not for immediate litigation.  However, Textron maintained that "litigation over specific items was always a possibility," while the IRS claimed that "this was often unlikely."  Id.

The en banc court rejected Textron's position, holding that the "work papers were independently required by statutory and audit requirements and that the work product privilege does not apply."  Id. at 11.  The court began by noting that Rule 26(b)(3) protects documents that "are prepared in anticipation of litigation or for trial."  Id. at 13.  The court found that "the purpose of the work papers was to make book entries, prepare financial statements and obtain a clean audit."  Id. at 14.  Adopting what the dissent characterized as the "I know it when I see it" test used in obscenity cases, the majority opined that "Any experienced litigator would describe the tax accrual work papers as tax documents and not as case preparation materials."  Id. at 17.  As the majority continued, "Every lawyer who tries cases knows the touch and feel of materials prepared for a current or possible (i.e., 'in anticipation of') law suit."  Id. at 20.

The court stated that it "is not enough to trigger work product protection that the subject matter of a document relates to a subject that might conceivably be litigated," or that "the materials were prepared by lawyers or represent legal thinking."  Id.at 19-20.  Rather, the materials themselves must have been prepared in anticipation of litigation, not ot further a business purpose.  Here, Textron had "in substance a legal obligation to prepare such papers: the tax audit work papers ... have to be prepared by exchange-listed companies to comply with the securities laws and accounting principles for certified financial statements."  Id. at 22.

In the end, the court seemed influenced at least in part by public policy concerns.  The court observed that "[u]nderpaying taxes threatens the essential public interest in revenue collection," and the "practical problems confronting the IRS in discovering under-reporting of corporate taxes, which is likely endemic, are serious."  Id.at 23.  In sum, the court concluded that "Textron's work papers were prepared to support financial filings and gain auditor approval," not for litigation purposes, and that "IRS access serves the legitimate, and important, function of detecting and disallowing abusive tax shelters," and accordingly the materials were not protected as work product.  Id. at 24.

The dissenting judges offered a fairly stinging response, complaining that the majority "ignores decades of controlling precedent" in effectively abandoning prior First Circuit precedent that applied a more generous "because of" test for work product protection for a much narrower "prepared for" test that appears to focus solely on whether the documents were "prepared for use in possible litigation."  Id.at 26, 31.  As the dissent continued, "Lower courts deserve more guidance than a simple reassurance that a bare majority of the en banc court knows work product when it sees it."  Id.at 32.  As the dissent saw it, these tax materials were protected under the governing "because of" test in the First Circuit, as correctly applied by the district court and the initial First Circuit panel.  The dissenters concluded that because "this is an en banc proceeding, the majority is free to create a new rule for the circuit - though it would be better if it admitted that it was doing so.  But our new circuit rule is not even a good rule."  Id. at 32.

So where does this leave us?  Undoubtedly the Textron holding will be tested in areas beyond the realm of tax reserves.  Presumably in any context in which documents have been prepared with a dual purpose, both to fulfill some business or regulatory purpose and possibly also with an eye toward the chance of future litigation, parties seeking to obtain such materials will have a new argument for expanding discovery and shrinking the scope of work product protection under Rule 26(b)(3).

It's Usually Not a Good Idea to Attach Potentially Privileged Documents to Court FIlings

The Maine Supreme Judicial Court issued an interesting opinion recently concerning the propriety of quoting from an arguably privileged document in a complaint, and then filing the same potentially privileged document with the court as an exhibit, all before receiving confirmation from either the court or bar authorities that the document was not, in fact, privileged.

In Fiber Materials, Inc. v. Subilia, 2009 ME 71, the plaintiff company sued the defendant, the company's former president, alleging that the defendant had improperly competed with plaintiff and stolen business away from plaintiff while he was still its president.  The defendant had been prosecuted by federal authorities for violating export control laws in a separate matter, and he was convicted and fined $250,000.  The plaintiff reimbursed the defendant for that fine, classifying that payment as ordinary income subjected to significant tax liability.  The defendant pondered whether the company owed him additional reimbursement for the tax liability, and obtained a written memo from a law firm discussing the pros and cons of defendant's indemnification claim against plaintiff.  The memo was stamped on each page, "ATTORNEY/CLIENT PRIVILEGE CONFIDENTIAL WORK PRODUCT." 

The legal memo was emailed to defendant (while he was still employed by plaintiff) at his work email address, and he saved a copy on his work laptop.  After he subsequently resigned (while under another federal investigation, this time for allegedly bribing Army officials),  his laptop was returned to the company.  An in-house lawyer for plaintiff accessed the laptop and found the legal memo regarding the indemnification issue, "and read it at least twice."  Id. ¶ 7.  The in-house lawyer "considered it to be privileged."  Id. p.8.  Despite that initial inclination, the lawyer chose to follow a rather unusual course:

In deciding what to do next, she contacted the ABA Ethics Search Service and spoke to an attorney, who sent [in-house counsel] materials to review. [In-house counsel] also consulted the Maine Bar Rules and spoke to an Assistant Bar Counsel, who said she would get back to [counsel]. [In-house counsel] eventually concluded that there was no ethical prohibition against turning the memo over to FMI officials.  Before obtaining an opinion from the Bar Counsel’s Office, she took the laptop containing the memo to Massachusetts and turned it over to [plaintiff's chairman] and another FMI attorney.  [The lawyer] testified that after she turned the laptop over to FMI officials, she received a message the same day from the Assistant Bar Counsel she had spoken to previously, saying “Call me back.”  [The lawyer] did not return the call.

Id.  In other words, despite initially having concerns that the document was privileged (perhaps after having chosen to read it twice nevertheless), and after contacting bar counsel for guidance, the lawyer decided to disclose the memo to company officials without waiting to receive that guidance from bar authorities.

After the lawyer disclosed the memo to company officials, the plaintiff company eventually filed a complaint against defendant.  In the complaint, the plaintiff quoted from the memo in question.  The defendant moved to strike those paragraphs from the complaint and to disqualify plaintiff's counsel, on the ground that "they had gained an incurable tactical advantage from reviewing privileged information."  Id.¶ 10.  In response to the motion to disqualify, the plaintiff "attached the full text of the disputed memo as an exhibit."  Id.  At defendant's insistence, the attached memo was sealed by the court a week later.

The trial court held a hearing on defendant's motions and concluded that the memo was not confidential under the unique circumstances, and that plaintiff's counsel therefore need not be disqualified.  In so ruling, the trial court made the following observation:

[T]he court would like to address the manner in which the issue of the Attorney-Client privilege was presented to this court—specifically, the decision by plaintiff’s counsel to include information and quotes from the legal opinion in the complaint even though the outcome of the confidentiality issue was not yet certain and in spite of the importance of the privilege that was at stake. Although the court has concluded that the opinion was not a privileged communication, its inclusion in the court record was not necessary to sustain the allegations of the complaint. Rather, its inclusion appears more to be an unnecessary act of brinksmanship regarding traditionally guarded communications in a highly revered relationship.

Id. ¶ 28. 

The defendant sought an immediate interlocutory appeal of the denial of his motions.  The Law Court dismissed the appeal, finding that no exception to the final judgment rule applied.  The court could have stopped there, but instead felt it was compelled "to address the treatment of the ... memo by FMI’s in-house counsel and current attorneys."  Id. ¶ 27.  The court noted that the issue of whether the memo remained privileged under the circumstances in which it was maintained and found raised "obvious and important ethical issue in this uncharted area of the law in Maine," such that the in-house lawyer "was right to seek guidance from all possible sources before deciding what to do with a memo from a law firm stamped 'ATTORNEY/CLIENT PRIVILEGE.'"  Id. ¶ 29.

Having appropriately sought an advisory opinion from Bar Counsel, one of the best sources of ethical advice for Maine attorneys, prudence and good practice would strongly suggest obtaining an affirmative answer before embarking upon a potentially risky course of action. It seems equally evident that, having just delivered the memo to FMI officials, a reasonable attorney would return Bar Counsel’s phone call to get an expert opinion before a potential legal case progressed. Attorneys do not act more ethically by avoiding relevant but potentially unwelcome information.

Id. 

The court's view of plaintiff's litigation attorneys' conduct in quoting from the disputed memo in the complaint, and then filing the entire memo unsealed with the court attached to a brief, was no more charitable. 

Once the suit was filed, FMI’s current attorneys’ treatment of the disputed memo reflected a dismissiveattitude and preemptive approach to Subilia’s claim of privilege. As the trial court noted, at the point that FMI quoted portions of the memo in its complaint, and then attached the entire memo to its response to Subilia’s motions, thus making it a matter of public record, no party or attorney could know with certainty how a court would resolve what is a matter of first impression in this State. We agree with the court when it said that this issue was better resolved by a motion in limine, a request for in camera review, or by some other procedural mechanism that did not expose the memo to a wide audience prior to any opportunity for judicial review.

Id.¶ 30.  As the court concluded, "[n]othing in this Court’s dismissal of this appeal should be interpreted as suggesting that the Court endorses or otherwise condones the approach taken by FMI’s attorneys to the assertion of the privilege in these proceedings."  Id. ¶ 31.

This is a good example of what can go wrong if potentially privileged materials are not handled with extreme care.  At the very least, wait until you hear back from Bar Counsel before attaching things that you think might be privileged as exhibits filed in open court.

Corporate Waiver of Attorney-Client Privilege

Congress is again considering legislation to prohibit the practice that became common in recent years of federal prosecutors demanding, under Justice Department procedures, that corporations waive the attorney-client privilege as evidence of the corporation's cooperation in an investigation.

Senator Arlen Specter has reintroduced S.445, the Attorney-Client Privilege Protection Act of 2009, which would provide protection for the attorney-client privilege and the work-product doctrine as a matter of federal law across the spectrum of federal agencies.  Although the DOJ has pulled back some from the height of its waiver procedures in its most recent standards known as the Filip guidelines, Senator Specter's primary concern as stated in his introductory comments in the Congressional Record is that, "as evidenced by the numerous versions of the Justice Department's corporate prosecution guidelines over the past decade, the Filip reforms cannot be trusted to remain static. Moreover, unlike Federal law--which requires the assent of both houses and the President's signature or a super-majority in Congress--the Filip guidelines are subject to unilateral executive branch modification. Therefore, to avoid a recurrence of prosecutorial abuses and attorney-client privilege waiver demands, legislation is necessary."

The bill is intended to "protect the sanctity of the attorney-client relationship by statutorily prohibiting Federal prosecutors and investigators across the executive branch from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation of the attorney-client privilege, or agreement to a joint defense agreement."

The new attorney general, Eric Holder, has not endorsed the proposed legislation, instead adhering to the prior DOJ line in his written responses to Senator Specter's questions submitted in connection with his confirmation hearings that "the opportunity to institute appropriate prosecution policies should be extended before legislative action is considered."

Maine Supreme Judicial Court Puts Hold on New Evidence Rule 514

In my post of October 29, 2008, I reported on a new Me. R. Ev. 514 that had been adopted by the Maine Supreme Judicial Court, effective as of January 1, 2009.  The new Rule 514 would recognize a privilege for certain statements made during mediations.

Since then, the new Rule 514 has been the subject of some criticism and concerns about how it might interact (or even conflict) with existing Me. R. Ev. 408, which already provides protection for certain communications made in the context of offers to compromise.  See, e.g., Jonathan A. Reitman, ADR:  Bumps in the Road of Maine's New Rule of Evidence 514, Maine Lawyers Review, vol. 16, no. 22, at 16 (Nov. 20, 2008).

Perhaps heeding some of those concerns, the Supreme Judicial Court has now issued 2009 Me. Rules 3, effective as of December 12, 2008, which states simply that "the effective date of the rules amendment in 2009 Me. Rules 1, adding Rule 514 to the Maine Rules of Evidence, is stayed until June 1, 2009, to permit further review and consideration of Rule 514."

So we will have to see what changes are made to the proposed Rule 514 next spring.