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Legal Memorandum: Attorney-Client Privilege during Discovery

Issue: In state law nationwide, must a client be joined in an action in order for a judge to rule on the applicability of the attorney-client privilege during discovery?

Area of Law: Uncategorized
Keywords: Attorney-client privilege action; Client to be joined; Discovery
Jurisdiction: Federal
Cited Cases: 625 N.W.2d 876; 767 N.Y.S.2d 228
Cited Statutes: None
Date: 05/01/2005

No cases specifically suggest the client must be joined as a party or brought in under a subpoena in such circumstances.  Several cases demonstrate that a judge may rule on the attorney-client privilege although the client is not a party.

  • Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 767 N.Y.S.2d 228 (App. Div. 1st Dep’t 2003) (Judge ruled on the applicability of the attorney-client privilege between defendant law firm and nonparty clients.)
  • Crawford v. Care Concepts, Inc., 625 N.W.2d 876 (Wis. 2001) (Court had jurisdiction to rule on the applicability of the physician-patient privilege concerning nonparty’s medical records.)
  • In Re Estate of Miller, 649 N.Y.S.2d 709 (App. Div. 1st Dep’t 1996) (Court had jurisdiction to rule on the attorney-client privilege concerning statements made by decedent (who obviously couldn’t be joined or subpoenaed) to his counsel.)

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