Confidentiality


Dennis Burke is the well-known surgeon who blew the whistle on a surgical practice at the Massachusetts General Hospital known as “concurrent surgery” or “double booking.” After Dr. Burke publicized that practice, MGH engaged attorney Donald Stern to investigate the matter, which led to the Stern Report. MGH also terminated Dr. Burke, who then sued the hospital, claiming that he was fired in retaliation for publicizing its concurrent surgery practices. As part of his discovery in that case, Dr. Burke sought the contents of the Stern Report, and the hospital resisted, claiming, among other things, that the Stern Report was protected from disclosure by the attorney-client privilege. The Superior Court ultimately disagreed, however, and, although the case settled while that decision was on appeal, the Superior Court’s analysis (available at 2019 WL 6197040) provides a variety of points that should be of interest to any in-house counsel who is concerned about keeping internal investigations (and other communications) confidential.

First, while MGH asserted that the Stern Report was privileged, the Court focused on two factors to repudiate that assertion: (i) the engagement letter with Attorney Stern did not indicate that any report authored by Attorney Stern would be imbued with … Keep reading


This morning, the In-House Advisor convened a video conference of 15 General Counsel and Corporate Counsel to discuss how their businesses are dealing with the COVID-19 crisis. The in-house counsel represented were from entities ranging from small, local companies, to large, multi-national enterprises. As a lead-in to the roundtable discussion, a brief presentation was given by two crises management experts, T.J. Winck and Dan Cence, of Solomon, McCown and Cence. Some of the key takeaways from the presentation and roundtable discussion were as follows:

Communications

  • One of the best ways to keep people in your organization calm is to repeatedly and consistently send out messages to everyone. You are better off saying too much than too little. Among other things, the in-house counsel attending said that their businesses are:
    • Sending out daily emails that goes out to everyone with an update.
    • Having “town hall” meetings with questions and answers once per week.
    • Maintaining an intranet page with updated Covid information.

Crisis Management

  • Be sure to have at least one member of your Crisis Management Team constantly monitoring the CDC and WHO, as new information is constantly coming out.
  • While everyone would like to think that the situation
… Keep reading


Over the years, I have written a lot of blog posts on the attorney-client privilege, and they cover a wide variety of issues. One issue that comes up very frequently (whether in-house counsel realize it or not) is what happens when a communication with an attorney intertwines legal and business advice? As Marriott Vacations Worldwide found out last year, the answer is not always crystal clear and, more importantly, may create issues for in-house counsel and the client.

As part of Marriott’s discovery responses in RCHFU v. Marriott Vacations Worldwide, the company objected to producing a strategic plan memorandum to the Corporate Growth Committee (the “CGC”) based on the attorney-client privilege. The plaintiff challenged Marriott’s objection, which left Marriott with the burden of proving that the CGC memorandum was privileged. In analyzing the issue, the Court began by recounting a few overarching principles:

Business communications are not protected merely because they are directed to an attorney, and communications at meetings attended or directed by attorneys are not automatically privileged as a result of the attorney’s presence. The corporation must clearly demonstrate that the communication in question was made for the express purpose of securing legal not business

… Keep reading


While most parties and their counsel are vigilant in keeping their communications confidential, so as to avoid any chance that the attorney-client privilege can be invaded, there are some situations in which a party makes a tactical decision to waive that privilege. When this happens, courts generally agree that such a waiver will extend to all communications on the same “subject matter” as the disclosed communications. Having said that, however, there do not appear to be any general guidelines or bright-line tests to determine what is meant by the subject matter of a communication. Rather, such analyses are done on a case-by-case basis.

While trying to determine what a court will define as the scope of the subject matter of a particular communication can be a bit like reading tea leaves, a related area that is even more fraught with peril is where a party decides to have counsel undertake an investigation and then publicizes some or all of a report generated from that investigation. Indeed, this is the exact, and unfortunate, position in which the Hamilton County (Tennessee) Board of Education found itself earlier this year.

In 2015, three members of a high school basketball team located in … Keep reading


It is not unusual for business people and/or in-house counsel to consult with accountants or other non-party experts when contemplating a potential business transaction. As the defendants in The C Company, Inc. v. Hackel recently learned, however, trying to protect such communications from disclosure based on the attorney-client privilege can be difficult, if not impossible.

In The C Company, attorney Todd Goldberg represented Michael Hackel and Dining-In, Inc. in connection with a 2008 transaction with The C Company and Nicholas Cercone. During negotiations, an employee of The C Company emailed a draft agreement to the company’s outside accountant, and asked him to evaluate the tax implications of the contemplated transaction. The accountant provided that advice, after which Attorney Goldberg and the accountant exchanged their own emails so that Attorney Goldberg could better understand the accountant’s viewpoint. After litigation related to the transaction was filed by The C Company and Cercone, they sought to discover all of the foregoing communications, and the defendants took the position that such communications were protected by the attorney-client privilege. In analyzing the matter, the Superior Court Judge began by stating that:

Massachusetts recognized the so-called “derivative” attorney-client privilege. Under this doctrine, the attorney-client

… Keep reading


While companies, like people, are entitled to protect privileged communications with their counsel, companies only can act through individuals. So what happens when the former CEO wants to disclose a privileged communication he had with his company’s corporate counsel? As SEC v. Present highlights, if the company does not want that communication disclosed, the former CEO may be barred from making such a disclosure.… Keep reading

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trade secrets


whistle blower trade secretsThe new Defend Trade Secrets Act (“DTSA”) allows owners of trade secrets to now bring a civil action in federal court to protect their trade secrets and confidential information. Further, under the DTSA, a trade secret owner may be awarded actual damages, injunctive relief, restitution, the extraordinary relief of ex parte seizure orders and, if there is willful or malicious misappropriation, exemplary damages (up to double damages) and attorneys’ fees. Although the DTSA is a big win for employers seeking to protect their trade secrets and confidential information, employers may be precluded from being awarded exemplary damages and attorneys’ fees if the employee’s confidentiality agreement does not contain an express exception for disclosures related to whistleblowing.… Keep reading

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I’ve been involved in many cases where it is alleged that someone violated his or her non-compete agreement or misappropriated the company’s confidential information or trade secrets. Often, the key issue has been not what the former employee did, but what the company did not do to protect the information it contends is proprietary. The issue of failing to protect one’s confidential information and trade secrets was highlighted recently in the Appeals Court decision of Head Over Heels Gymnastics, Inc. v. Ware.… Keep reading

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