May 2019


It is not uncommon for parties entering into an agreement to transfer an asset to seek the input of an independent, third-party appraiser. Plainly, the parties to any such transaction desire an appraiser who will be unbiased and will not have any conflicts of interest. Further, one would assume that if such an appraiser’s company had a relationship with the opposing party, a court would step in to invalidate the appraisal. That assumption is not always correct, however­–especially if the appraisal agreement does not specify what will disqualify the appraiser. Indeed, a Massachusetts Supreme Judicial Court judge recently confirmed this in Buffalo-Water 1, LLC v. Fidelity Real Estate Company, LLC.

In Buffalo-Water, an Appraisal Agreement only required the individual appraiser to disclose any prior appraisal services he rendered for either of the parties. The appraiser’s employer, Cushman & Wakefield, was not required to make any such disclosure, nor was it required to disclose conflicts of interest or relationships that could deem it to be biased. Further, and unbeknownst to Buffalo-Water, Cushman had previously been engaged by Fidelity to represent it in connection with a national contract.

Once Buffalo-Water became aware of the Fidelity-appraiser relationship, it filed suit, seeking … Keep reading


While the attorney-client privilege only protects confidential communications between an attorney and client that are for the purpose of giving or receiving legal advice, the work product doctrine, as codified in Fed. R. Civ. P. 26(b)(3),  is much broader:

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) ….

Further, given that the work product privilege is designed to protect an attorney’s mental impressions, federal common law has extended work product protections to verbal communications even if they are not memorialized in documents and/or in other tangible ways. Having said that, however, as the Northern District of California recently discussed in Schenwick v. Twitter, assuming that the work product privilege will protect your attorney’s communications with a non-party can be a risky proposition.

In Schenwick, the plaintiff’s representative interviewed several “confidential” witnesses prior to filing suit, and the defendants sought to discover what was said in those interviews. Defendants objected based on the work product privilege, and the Norther District of California made three underlying rulings … Keep reading