Courts Apply Privilege Choice Of Law Principles: Part I

Although both federal and state courts apply their own rules (including the work product rule), they normally must undertake a choice of law analysis when assessing attorney-client privilege claims. This usually results in fairly predictable conclusions — but not always.

Federal courts handling federal question cases apply federal common law privilege principles. East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., Civ. No. 12-cv-517-LM, 2014 U.S. Dist. LEXIS 129272 (D.N.H. Sept. 16, 2014) (not for publication) (28 U.S.C. § 1338 patent infringement case). Bankruptcy cases can involve more subtle issues. In Litigation Trust for Trust Beneficiaries of SNTL Corp. v. JP Morgan Chase (In re Superior National Insurance GR), an insurance company and several subsidiaries filed for Chapter 11 relief. Ch. 11 Case No. 1:00-bk-14099-GM, Adv. No.: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885 (Bankr. C.D. Cal. Sept. 11, 2014). A litigation trust for the debtors' trust