Under Fed. R. Evid. 501, federal courts sitting in diversity
apply their host jurisdiction's choice of law principles in
determining which state's privilege law applies. This contrasts
with federal courts' application of (1) federal common law of
privilege in federal question cases, and (2) the Fed. R. Civ. P.
26(b)(3) work product rule when addressing work product claims.
Some courts seem to short-circuit the process – simply
applying their host state's privilege law without undertaking
or even mentioning a choice of law analysis. Other courts properly
recognize that "[t]o determine which state law is applicable,
'the federal court applies the choice-of-law rules of the forum
state,'" and carefully analyze its host state's
principles. Swortwood v. Tenedora de Empresas, S.A. de
C.V., Case No. 13cv362-BTM (BLM), 2014 U.S. Dist. LEXIS 29247,
at *28 (S.D. Cal. Mar. 6, 2014) (citation omitted). The
Swortwood court dealt with a privilege claim by a company
incorporated in
