Courts Apply Privilege Choice Of Law Principles: Part II

Last week's Privilege Point explained that federal common law privilege principles govern federal question cases, and that analyzing choice of law issues in bankruptcy matters can be more subtle.

Federal courts sitting in diversity should rely on their host jurisdiction's choice of law rules in selecting the proper privilege law. However, most federal courts inexplicably short-circuit this process — automatically applying the host jurisdiction's privilege law rather than its choice of law principles. See, e.g., Camico Mut. Ins. Co. v. Heffler, Radetich & Saitta, LLP, Civ. A. No. 11-4753, 2013 U.S. Dist. LEXIS 10832 (E.D. Pa. Jan. 28, 2013). Courts undertaking the proper analysis sometimes reach surprising results. In Skepnek v. Roper & Twardowsky, LLC, the court handling a diversity case properly looked to Kansas choice of law rules — almost apologetically explaining that Kansas follows the "older, minority approach" of the Restatement (First) of Conflict of Laws