U.S. v. Ghailani

5 Citing cases

  1. Firefighters' Ret. Sys. v. Citco Grp. Ltd.

    CIVIL ACTION 13-373-SDD-EWD (M.D. La. Jan. 5, 2018)

    Plaintiffs also contend that "Citco cannot rely on the opinion of legal counsel in defending this lawsuit yet invoke the attorney-client privilege." R. Doc. 481-2, p. 6 (citing United States v. Glailani, 751 F.Supp.2d 498, 501 (S.D.N.Y. April 26, 2010) ("The fundamental proposition governing implied or 'at issue' waivers of attorney-client and other evidentiary privileges is that a party may not affirmatively rely on privileged communications to support a claim or defense and then shield those communications from discovery by its adversary."). See also, Forever Green Athletic Fields, Inc. v. Babcock Law Firm, LLC, Civil Action No. 11-633, 2014 WL 29451, at * 6 (M.D. La. Jan 3, 2014) (noting that under Louisiana law regarding attorney-client privilege, "when the privilege holder makes a confidential communication a material issue in litigation, 'fairness demands treating the defense [or claim] as a waiver of the privilege.'"). Plaintiffs do not provide any additional explanation for their apparent position that the privilege has been waived based on the Citco Defendants placing the opinion of legal counsel "at issue."

  2. Gruss v. Zwirn

    276 F.R.D. 115 (S.D.N.Y. 2011)   Cited 15 times

    " Rather, ‘ at issue’ waiver occurs ‘ when the party has asserted a claim or defense that he intends to prove by use of the privileged materials. ’ " Id. at 64, 837 N.Y.S.2d at 23 (emphasis added) (quoting North River Ins. Co. v. Columbia Cas. Co., 1995 WL 5792, at *6 (S.D.N.Y. Jan. 5, 1995)); accord,Aristocrat Leisure Limited v. Deutsche Bank Trust Co. Americas, 727 F.Supp.2d 256, 274 (S.D.N.Y.2010) (quoting United States v. Ghailani, 751 F.Supp.2d 498, 501 (S.D.N.Y.2010)). We will therefore apply the New York standard for at-issue waiver to defendants' claim of attorney-client privilege, and the Erie standard to their claim of work-product immunity.

  3. GLD3, LLC v. Albra

    21-cv-11058 (S.D.N.Y. Oct. 11, 2024)

    ” In re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (alterations omitted). “The fundamental proposition governing implied or ‘at issue' waivers of attorney-client and other evidentiary privileges is that a party may not affirmatively rely on privileged communications to support a claim or defense and then shield those communications from discovery by its adversary.” United States v. Ghailani, 751 F.Supp.2d 498, 501 (S.D.N.Y. 2010); see In re Grand Jury Procs., 219 F.3d at 182 (“[F]airness considerations arise when the party attempts to use the privilege both as ‘a shield and a sword.'”).Whether a party has impliedly waived attorney-client privilege raises questions of fairness and must be addressed “on a case-by-case basis, and depends

  4. Richards v. Kallish

    22-cv-9095 (CS) (VR) (S.D.N.Y. Nov. 22, 2023)   Cited 3 times

    C. Plaintiff has failed to establish an at-issue waiver. Attorney-client privilege may be waived by implication when a client testifies about portions of the attorney-client communication, “when a client places the attorney-client relationship directly at issue, and when a client asserts reliance on an attorney's advice as an element of a claim or defense.” In re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (alterations omitted). “The fundamental proposition governing implied or ‘at issue' waivers of attorney-client and other evidentiary privileges is that a party may not affirmatively rely on privileged communications to support a claim or defense and then shield those communications from discovery by its adversary.” United States v. Ghailani, 751 F.Supp.2d 498, 501 (S.D.N.Y. 2010); see In re Grand Jury Procs., 219 F.3d at 182 (“[F]airness considerations arise when the party attempts to use the privilege both as ‘a shield and a sword.'”). Whether a party has impliedly waived attorney-client privilege raises questions of fairness and must be addressed “on a case-by-case basis, and depends primarily on the specific context in which the privilege is asserted.” Erie, 546 F.3d at 229.

  5. Thai-Lao Lignite (Thai.) Co. v. Gov't of the Lao People's Democratic Republic

    945 F. Supp. 2d 431 (S.D.N.Y. 2013)

    After Erie, courts within this circuit have found that, where a party relies on privileged communications to explain the reason for its actions, it does not waive privilege as to communications that might indicate additional reasons. See Leviton Mfg. Co. v. Greenberg Traurig LLP, No. 09 Civ. 8083(GBD)(THK), 2010 WL 4983183, at *5–6 (S.D.N.Y. Dec. 6, 2010) (holding plaintiff's claim that defendant's faulty legal representation caused it to lose valuable potential patent did not forfeit privilegeas to communications regarding whether potential patent would have had limited economic value for other reasons), report and recommendation adopted by2011 WL 2946380 (July 14, 2011); U.S. v. Ghailani, 751 F.Supp.2d 498, 501 (S.D.N.Y.2010) (rejecting defendant's contention that privilege was waived as to “communications tending to undercut the government's stated justification for the delay” in bringing him to trial because, even though communications were “pertinent,” government did not seek to rely on communications in question). A “good faith defense,” further, is not simply any assertion that a party, in general, acted in good faith, but rather an assertion that the party acted with a “belief in the lawfulness of his own conduct.”