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As in other areas, a privilege analysis should always start with a choice of law assessment. In federal courts, federal common law governs federal question cases privilege issues. In diversity cases, many federal courts reflexively apply their host jurisdiction s privilege law. This is wrong.
In
Parimal v. Manitex International, Inc., the court refreshingly recognized that in resolving [whether Connecticut or Illinois privilege law applied] the Court must apply Connecticut choice of law principles. Civ. No. 3:19CV01910 (MPS), 2021 U.S. Dist. LEXIS 20429, at 6 (D. Conn. Feb. 3, 2021). After carefully describing both states privilege laws, the court dealt with the most obvious difference Connecticut generally provides greater protection to corporate communications, because Illinois is one of the few states rejecting the
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Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a sword while simultaneously asserting the privilege as a shield to prevent discovery of related communications. As with many privilege concepts, applying the subject matter waiver doctrine can involve subtle analyses.
In
Strand v. USANA Health Sciences, Inc., Case No. 2:17-cv-00925-HCN-JCB, 2020 U.S. Dist. LEXIS 232348, at 4 (D. Utah Dec. 9, 2020), plaintiff intentionally produced privileged documents disclos[ing] facts that are favorable . . . while redacting facts that may be of value to defendant. Rejecting plaintiff’s husband s effort to resist production of the unredacted version of the documents, the court ordered plaintiff to produce all of the pertinent documents in their unredacted form.