At the Intersection of Privilege and E-Discovery

ESI: Tennessee

Watch these stricter requirements for government agencies and corporations when asserting attorney-client privilege

Let's face it, in complex civil litigation, a defendant public agency or private corporation is left swimming in a pool of e-mails and attachments to be reviewed for privilege. Even in class action lawsuits, it is rare for plaintiffs to be subject to large-scale privilege review of thousands or millions of plaintiff documents, to include print-outs of e-mails, attachments and other forms of electronically stored information (ESI). Realizing that many defendant government agencies and corporations will be reluctant to agree to "clawback" or "quick-peek" agreements as permitted under the new federal rules,[1] these entities would be well served to pull their electronic discovery (e-discovery) teams together and adopt best practices within the organization to avoid voluntary waiver of the attorney-client privilege.

Recent case law indicates that the bar may be raised with respect to the burden for asserting attorney-client privilege to any document, especially e-mail messages.

Although In re Vioxx Products Liability Litigation is an example of a multi-district litigation (MDL) as opposed to a non-MDL lawsuit, it indicates a possible trend for discovery disputes in federal courts.[2] Where the court is confronted with the task of reviewing thousands of claims for attorney-client privilege, In re Vioxx could indicate that federal district court judges may be willing, with greater frequency, to appoint Special Masters who are experienced in the area of attorney-client privilege. Government agencies and corporations may well be required to develop policies on the preservation of confidentiality and restrictions on the secondary circulation of confidential communications both within and without the corporate structure. Courts may also require government agencies and corporations produce directories of corporate personnel, which describe job titles and permit the analysis of, and proper distribution of documents within an organization. This issue is imminent for government agencies and corporations alike that are seeing an increase in the number of class action lawsuits filed in federal and state courts.

This article will offer for the government attorney in particular, and the corporate lawyer as well, the following: 1) an overview of the attorney-client privilege as it applies to government practice and e-discovery; 2) a discussion on the key elements of the attorney-client privilege that are hot areas of dispute; 3) best practices to decrease instances of voluntary waiver in a very litigious climate for public and corporate entities; and 4) new challenges for government agencies and corporations involved in e-discovery disputes over privilege. A take-home message to decrease instances of voluntary waiver by a governmental entity or corporate client is to educate and expose the employees of your organization to a few best practices (see infra) to better manage privileged electronic communication.

Overview of the Attorney-Client Privilege

In state court, state law on privilege governs, but in federal court, Federal Rule of Evidence 501 provides guidance for the determination of whether federal or state law on privilege law will apply. Tennessee Rule of Evidence 501 sets forth the circumstances under which a privilege is, or is not, recognized.[3] At times, state law on privilege may apply even when a case is pending in federal court because the substantive, governing law is what determines privilege in federal court according to FRE 501. FRE 501 states:

[T]he privilege of a witness, person, government, State, or political subdivision thereof, shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.[4]


The attorney-client privilege protects communications between the lawyer and the client. The party attempting to assert attorney-client privilege must always establish each of the essential elements listed below. Under federal common law, a party asserting the privilege must establish the following:

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.[5]


Tenn. Code Ann.  §23-3-105 and 107,[6] codifies the common law attorney-client privilege in Tennessee, which govern, nondisclosure of communications between a client and his or her attorney. Case law in Tennessee states that "[t]he communication must involve the subject matter of the representation and must be made with the intention that the communication will be kept confidential."[7]

It is well established that the attorney-client privilege may be invoked in the corporate setting.[8] Communications, including memoranda or notes on such communications by corporate employees to corporate and outside counsel, are covered by the attorney-client privilege.[9] As the U.S. Supreme Court has observed regarding the corporate privilege, "[b]oth for corporations and individuals, the attorney-client privilege serves the function of promoting full and frank communications between attorneys and their clients. It thereby encourages observance of the law and aids in the administration of justice."[10] However, the attorney-client privilege will be narrowly construed because it reduces the amount of information discoverable during the course of a lawsuit.[11]

Both the Sixth and Second Circuits acknowledge that there is little case law specifically referring to the application of the attorney-client privilege in the government setting and have established that a governmental agency can invoke the attorney-client privilege.[12] As we begin to see an increase in the number of class action and similar complex lawsuits filed in federal and state courts against public agencies and corporations, courts will undoubtedly find it necessary to address extensive discovery disputes relating to attorney-client privilege.[13] It is impractical to exclude the corporate attorney from this discussion because a government agency's claim to the attorney-client privilege is on equal footing with the corporate privilege.[14] Although the Second Circuit referred to the government attorney-client privilege as having a "special force" in the criminal/grand jury context, I shudder to think that it is a stronger privilege when juxtaposed with the privilege in the civil context. Fundamental principles of constitutional law (Fourth Amendment) protect the citizenry from intrusions by the government; therefore it would be illogical for the privilege to carry greater weight in the criminal context thereby preventing the public from access to discoverable communications within a potentially intrusive government.[15] As a result, the law and the courts are continuing to evolve by including detailed analysis about e-mail as it relates to discovery disputes over attorney-client privilege.

Hot Spots for Attorney-Client Privilege Disputes

E-discovery, particularly with respect to the assertion of privilege for e-mails, has created its own space within the discussion concerning the elements of the attorney-client privilege. The amendments to the Federal Rules of Civil Procedure on discovery now apply to ESI, including individual e-mails, e-mail strings or strands, and soft copy attachments. E-discovery, in its broadest sense, is not a new topic for federal courts, which had been adjudicating matters that involved ESI even before the changes to the 2006 amendments to the Federal Rules of Civil Procedure.[16] Here are a few hot spots for attorney-client privilege disputes in the government and corporate context which also involve e-mails:

Element 2(b) " the person to whom the communication was made is acting as a lawyer
A federal court's application and analysis of the attorney-client privilege in the governmental setting practically mirrors that of the corporate setting with some minor differences when courts determine whether the person to whom the communication was made is acting as a lawyer. If a person is not acting in the capacity of an attorney when an inquiry is made by the client, then the communication will not be privileged. Professor Paul Rice[17] makes a very simple yet profound observation when he notes how today's lawyers are engaged in all facets of a corporate enterprise. This statement should apply equally in the government setting. Government attorneys often are included in almost all aspects of the agency's functions " from operations to weighing in on policymaking decisions. In the corporate context, the biggest problem faced by some in-house counsel is the "dual role" conflict. Government attorneys can and do serve in dual roles at times,[18] but it is not as common at all levels of government (municipal, state or federal) when compared with attorneys in the corporate setting, who may serve as both vice president/secretary and in-house counsel. In any event, this is an issue that opposing counsel will often cite as an objection to a government agency's or corporation's assertion of attorney-client privilege.

Element (3) " the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers [Confidentiality] (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services [Predominant Purpose and Inextricably Intertwined]
Courts may look at "the predominant purpose" of a communication to determine whether the communication was for the purpose of securing primarily legal advice or services. In the context of the government attorney-client privilege, the Second Circuit looked at an issue of first impression: whether the attorney's response to a government official's inquiry was designed to achieve compliance with the law or reduce legal risk, which would be privileged, or whether the recommendations or responses were made for other reasons, which would not be privileged. In Pritchard v. County of Erie (In re County of Erie),[19] Plaintiffs filed a class action challenging the constitutionality of strip searches by the County of Erie and its correctional facility. At the heart of the discovery battle are 10 disputed e-mails that the County of Erie (defendants) withheld as attorney-client privileged communications. Although the discovery dispute was subsequently remanded and decided based on the implied or "at issue" waiver doctrine, the Second Circuit "conclude[d] that each of the 10 disputed e-mails was sent for the predominant purpose of soliciting or rendering legal advice." The rule of law suggests that when a government lawyer has been asked to assess a public agency's compliance with a legal obligation, the lawyer's recommendation of a policy that complies with, advocates, promotes and oversees implementation of such compliance is in fact legal advice. The Second Circuit's language may carry weight and serve as a sword for public agencies asserting privilege over e-mails or other communication involving legal issues associated with policymaking.

A communication in an e-mail that contains both legal and business matters may be construed as serving the purpose of securing legal advice if the legal and business concerns are "inextricably intertwined."[20] At least one court, in Kimberly-Clark Corp., et al. v. Tyco Healthcare Retail Group, interpreted In re OM Group Securities as extending the attorney-client privilege to memoranda and working papers prepared by an accountant at an attorney's request to assist the attorney in giving legal advice to the client.[21] The rule taken from In re OM Group Securities is limited in application, but could be extended by courts in the future to other third parties, and not just accountants when addressing e-discovery issues. This rule could extend the attorney-client privilege to any third party that provides professional services to a client to assist an attorney.[22] But of great concern is the fact that in Pritchard v. County of Erie, there were only 10 e-mails in dispute. Watch out for future civil lawsuits between government agencies and private litigants involving several hundreds or thousands of e-mails that are disputed with respect to attorney-client privilege.

Element (4) " the privilege has been (a) claimed and (b) not waived by the client
As a caveat, Professor Paul R. Rice has already noted that the term "client" is not applicable when analyzing the elements of attorney-client privilege in the corporate context because in-house counsel personifies the corporation in the same way that the employee/agent personifies the corporation. As a result, the analysis of whether legal advice is being sought by the client, the holder of the privilege, cannot be client-focused. We must determine the purpose behind both the seeking of the assistance from counsel and the responsive services rendered by counsel.[23]

A test used by federal courts to determine whether the dissemination of privileged communications to corporate employees has waived the privileged is as follows: Did the recipient "need to know" the content of the communication in order to perform his or her job effectively or to make informed decisions concerning, or affected by, the subject matter of the communication?[24] The principle behind this test for when waiver has occurred in the corporate context is universal; however, the language may vary across jurisdictional lines.[25]

In federal and state courts in Tennessee, the attorney-client privilege is waived by voluntarily disclosing private communications to third parties.[26] While there are three main categories or types of waiver: 1) express (voluntary or inadvertent disclosure); 2) implied (or "at issue"); and 3) subject matter, this article will highlight voluntary waiver.

Inadvertent disclosure occurs when otherwise privileged information is mistakenly or accidentally disclosed to an opposing or other third party. Inadvertent disclosure is an entirely separate discussion to save for another day. The reality is that voluntary waiver occurs quite often in both government and corporate settings primarily because an employee will disclose confidential communications to an outside third party. Government and corporate attorneys advise several individual employees or agents of an organization who may often interact with third party contractors and vendors on a daily basis. The list below shows a few best practices that any agency or corporation can apply to better manage, educate and prevent employees from waiving otherwise privileged e-mail communications.

Best Practices for Decreasing Instances of Waiver in Government and Corporate Practice

1) Make sure employees understand that merely copying counsel on an e-mail will not automatically render a communication to counsel privileged.[27]

2) If an employee desires to e-mail and inform legal counsel about a matter that is also copied to several other government employees within an agency, the sender should send a separate e-mail to legal counsel. At minimum, that particular e-mail will likely be considered attorney-client privileged, even if the other e-mails are discoverable. This is critical, especially if the sender desires to ask counsel a few legal questions in addition to sending the original content previously disseminated to the other non-legal employees.[28]

3) When appropriate and feasible, lawyers should send return e-mails in response to legal inquiries only to the appropriate high-ranking or managing employee and lower-level employees on a "need to know" basis. As counsel for a public agency or other private entity, you may often receive legal inquiries from several employees in a single e-mail that is forwarded to you. Make a point to designate a contact person for the group of concerned employees. Don't become a slave to your "Favorites" or "Frequent Contacts" folder by copying several employees who may mistakenly believe that everyone within the agency or corporation is entitled to know the response to a specific legal inquiry.

4) If you provide legal advice through e-mail as counsel, be sure to mark the document as confidential and/or attorney-client privileged communication and include a statement such as, "in response to your legal inquiry concerning ..." or something to that effect. "Do not forward without legal counsel's consent."

5) Limit as much as possible the use of electronic mail for the purpose of providing legal advice. This may sound impractical in today's world, but in this electronic age, we probably use this mode of communication out of habit as opposed to necessity when providing legal advice to our clients.

6) Understand that the courts generally will inquire as to whether a document is for business or legal advice.

Where are we headed? We know that applying the attorney-client privilege in the corporate/government context is challenging, but the appropriate application of the privilege to e-mail and e-mail strings further adds to the complexity of this exercise for practitioners and the court.

New Challenges at the Intersection

Federal and state courts in Tennessee will closely scrutinize claims of privilege via in-camera review to determine the content and substance of various forms of communications such as documents, memorandums, e-mails and electronic attachments. Courts in general will analyze whether government officials or corporate officers are seeking legal advice from counsel. Similar to Federal Rule of Civil Procedure 26(b)(5), Tennessee Rules of Civil Procedure 26.02(5) requires that a party must make a privilege claim expressly and must describe the nature of the documents, communications, or things not produced without revealing the information itself in a manner that will enable other parties to assess the applicability of the privilege protection. Prior to this amendment to the Tennessee Rules of Civil Procedure, a litigant was not required to provide a privilege log to a judge for in camera inspection regarding issues of privilege. Rule 103(b) of the Tennessee Rules of Evidence states that where "an issue arises concerning the privileged nature of a communication, the trial court may require the communication be reduced to writing for in camera review." If the communication is deemed privileged, the trial court shall seal and attach it to the record for appellate review.

To be effective in federal litigation, it behooves counsel either to be extremely detailed with logging e-mails or simply agree to various "clawback" or "quick peek" agreements during the Rule 26(f) "meet and confer" meetings with opposing counsel on privilege matters and other issues related to ESI. However, this may not be a viable option for many attorneys within government agencies and corporations. One would be hard pressed to find an attorney who is comfortable with turning over potentially privileged information prior to review under any conditions. Don't forget that the amended federal rules are simply rules of procedure and do not govern whether the attorney-client privilege has been waived by the production.

As a result of this phenomenon, courts have been grappling with this issue to address how e-mail chains should be disclosed on privilege logs. "Only a few reported opinions have addressed, either directly or implicitly, the issue of how e-mail chains should be disclosed on a privilege log."[29] Legal practitioners might list in the privilege log only the most recent e-mail of an entire e-mail strand, which may contain individual e-mail messages that are both privileged and non-privileged, but there's no way for the reader of the log to know this fact without viewing the documents. The practice of logging e-mail strings as single documents makes it difficult for opposing counsel to make an informed objection to the withheld entry. The court in Universal Service Fund held that this practice violated Rule 26(b)(5) of the Federal Rules of Civil Procedure.[30]

As a result, guidance from federal courts instruct the proponent to provide each element of the claimed privilege for each e-mail, whether the e-mail is included in an entire e-mail string, or only exists as a single [or stand-alone] e-mail. In other words, for every e-mail communication where privilege will be asserted, make sure that the privilege log includes the following: 1) the e-mail is identified (assign a bates number); 2) the purpose for preparing or creating the e-mail; 3) describe the individuals who were parties to or copied on the e-mail; and 4) provide sufficient detail to permit a judgment as to whether the document is at least partially protected from disclosure.[31] However, logging an e-mail strand or string as a single entry may be sufficient if an e-mail, created for the purpose of seeking legal advice, is copied to an identifiable and distinct group of individuals who are all clearly within the attorney-client relationship. Id. Affidavits or deposition testimony are typically provided to establish the relationship between individuals not normally covered by the privilege.

In an effort to reduce the strain on judicial time and resources, all of the foregoing explains why courts may appoint Special Masters who have the expertise and experience in this subject matter to assist the court in making attorney-client privilege determinations on a more frequent basis.

In re Vioxx Products Liability Litigation
Although the Vioxx case is a multi-district litigation (MDL), it may be a model of what is to come in the context of government and corporate practice when privilege is disputed at the intersection of attorney-client privilege and e-discovery. In the Vioxx case, the district court actually culled through approximately 30,000 documents (81 boxes or nearly 500,000 pages) " document by document. Most of the withheld documents for privilege were print-outs of electronic communications, primarily internal company e-mails and attachments. Government agencies and corporations " get ready because the burden for privilege log submission may become extremely onerous.

In order to address confidentiality (see Element 3(b) above " Hot Spots for Attorney-Client Privilege Disputes), the Special Master and Special Counsel requested that Defendant Merck provide the following:

1. All company policies on the preservation of confidentiality and restrictions on the secondary circulation of confidential communications both within and without the corporate structure; and an affidavit from a knowledgeable individual who could attest to the fact that those guidelines had been made known to corporate employees and followed by them; and

2. Directories of corporate personnel, both alphabetical and by job titles, with descriptions of each position so that proper distribution of documents within the corporation could be evaluated.[32]


To assist with the determination of whether in-house lawyers were primarily involved in rendering legal advice (Element 3(c) above " Hot Spots for Attorney-Client Privilege Disputes), Defendant Merck provided a list of employees in its Legal Department with job descriptions for each position, the credentials of each individual and a listing of additional titles and responsibilities of each lawyer.

Conclusion

Government agencies and corporations must consider whether it is necessary to develop and implement the specific types of policies requested in the Vioxx case. Creating, gathering and organizing such a large amount of information in the middle of litigation would definitely not be a good time to address such issues initially. The numbers of documents to which privilege is asserted by government agencies will continue to grow as government agencies continue to confront litigation filed by aggrieved plaintiffs. Not only must government and corporate counsel have a thorough understanding of the new Federal Rules of Civil Procedure regarding e-discovery in general, but must also obtain a hands-on approach to grappling with concepts related to attorney-client privilege, privilege logs and e-mails. E-mail has become one of the primary means of communication with clients, especially for government attorneys, in-house and outside counsel.

Notes

  1. Federal Rule of Civil Procedure 26(b)(5)(B).
  2. 501 F.Supp.2d 789 (E.D.La. 2007).
  3. See Tennessee Rule of Evidence 501 (several references are made to the Tennessee Code Annotated with respect to various state privileges). "TRE 501. Privileges recognized only as provided. - Except as otherwise provided by constitution, statute, common law, or by these or other rules promulgated by the Tennessee Supreme Court, no person has a privilege to: (1) Refuse to be a witness; (2) Refuse to disclose any matter; (3) Refuse to produce any object or writing; or (4) Prevent another from being a witness or disclosing any matter or producing any object or writing."
  4. See Hopson v. Mayor of Baltimore, 232 F.R.D. 228, 240 (D. Md. 2005).
  5. Humphreys, Hutchenson & Moseley v. Donovan, 568 F.Supp. 161, 175 (M.D.Tenn.1983)(citing United States v. United Shoe Machinery Corporation, 89 F.Supp. 357, 358-59 (D.Mass.1950) (classic case on the attorney-client privilege), aff'd, 755 F2d 1211 (6th Cir. 1968)).
  6. Tenn. Code Ann.  §23-3-107 codifies the criminal liability associated with the disclosing of attorney-client privileged communication. An attorney offering to give testimony related to attorney-client privileged information commits a class C misdemeanor and risks being stricken from the roll if a practicing attorney.
  7. State ex rel. Flowers v. Tennessee Trucking Association Self Insurance Group Trust, et al., 209 S.W.3d 602, 616 (Tenn.Ct.App., 2006)(citing Bryan v. State, 848 S.W.2d 72, 80 (Tenn.Crim.App. 1992)).
  8. Upjohn Company v. United States, 449 U.S. 383 (1981).
  9. Id., at 391.
  10. Ross v. City of Memphis, 423 F.3d 596, 602 (6th Cir. 2005)(citing Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 348 (1985)).
  11. Id. at 600.
  12. E.E.O.C. v. Texas Hydraulics, 246 F.R.D. 548 (E.D.Tenn. 2007)(citing Ross v. City of Memphis, 423 F.3d 596, 602 (6th Cir. 2006)); see In re Grand Jury Investigation, 399 F3d 527, 530 (2d Cir. 2005).
  13. In re County of Erie, 473 F.3d 413, 417 (2d Cir. 2007)(citing In re Grand Jury Investigation, 399 F.3d 527, 530 (2d Cir. 2005) and Ross v. City of Memphis, 423 F.3d 596, 601 (6th Cir. 2005)).
  14. Id., at 419.
  15. In an effort to prevent spoliation of evidence by both governmental and corporate entities, the increased prevalence of issues related to privilege and E-discovery are likely a direct result of the evolving law surrounding the application of "litigation holds" and the fact that any employee of an organization can be designated as a key custodian in a lawsuit where emails and email strings may contain the "smoking gun."
  16. See Zubulake v. UBS Warburg LLC("Zubulake I"), 217 F.R.D. 309(S.D.N.Y. 2003).
  17. Professor Paul Rice is a professor at American University's Washington College of Law. He is widely recognized as a leading scholar on attorney-client privilege.
  18. In one case, an attorney seeking to invoke the privilege held the positions of Assistant to the President (non-legal) and Deputy White House Counsel (legal). In re Lindsey, 148 F.3d 1100 (C.A.D.C.,1998).
  19. 473 F.3d 413 (2nd Cir. 2007).
  20. In re OM Group Securities Litigation, 226 F.R.D. 579, 587 (N.D.Ohio 2005)(citing Picard Chemical Inc. Profit Sharing Plan v. Perrigo Co., 951 F.Supp. 679, 685-86 (W.D.Mich.1996) (Legal and business considerations may frequently be inextricably intertwined when legal advice is rendered in the corporate context, but the fact that business considerations are weighed in the rendering of legal advice will not vitiate the attorney-client privilege.)).
  21. 2007 WL 1246411 (E.D.Wis. April 27, 2007).
  22. In Alliance Const. Solutions Inc. v. Colorado State Department of Corrections, 54 P.3d 861, 866 (Colo. 2002) the Supreme Court of Colorado held that communications between the state Department of Corrections and its independent contractor were protected by attorney-client privilege. Rule made absolute.
  23. In re Vioxx Products Liability Litigation, 501 F.Supp.2d 789, 797 (E.D.La.,2007).
  24. Pritchard v. County of Erie, et al., 2007 WL 1703832, *4 (W.D.N.Y. June 12, 2007).
  25. See Barton v. Zimmer, Inc., 2008 WL 80647, at *4 (N.D.Ind. Jan. 7, 2008)(citing Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-92 (7th Cir. 1970); Muro v. Target Corp., 243 F.R.D. 301, 305-06 (N.D.Ill. 2007)).
  26. Humphreys, Hutcheson and Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985); Boyd v. Comdata Network Inc., 88 S.W.3d 203.
  27. Royal Surplus Lines Ins. v. Sofamor Danek Group, 190 F.R.D. 463, 475 (W.D.Tenn. 1999); Yurick ex rel. Yurick v. Liberty Mutual Ins. Co., 201 F.R.D. 465 (D.Ariz., 2001)(citing Cont'l Ill. Nat'l Bank and Trust Co. of Chicago v. Indemnity Ins. Co. of N. Am., 1989 WL 135203, at *3 (N.D.Ill. Nov. 1, 1989)(stating that a letter which merely assigned a carbon copy to an attorney fell beyond the scope of the attorney-client privilege because it was "not primarily directed to an attorney," did not seek legal advice, and merely served to keep the attorney informed of the contents of the letter)).
  28. See Barton v. Zimmer Inc., 2008 WL 80647(N.D.Ind. Jan. 7, 2008).
  29. Muro v. Target Corporation, 243 F.R.D. 301, 306 (N.D.Ill.2007)(citing In re Universal Service Fund Telephone Billing Practices Litigation, 232 F.R.D. 669, 672 (D. Kan. 2005)).
  30. In re Universal Service Fund Telephone Billing Practices Litigation, 232 F.R.D. 669 (D. Kan. 2005).
  31. Universal Service Fund Telephone Billing Practices Litigation, 232 F.R.D. 669, 673 (D. Kan. 2005); see Children First Foundation Inc. v. Martinez, 2007 WL 4344915, at *4 (N.D.N.Y. Dec. 10, 2007)(citing Trudeau v. New York State Consumer Prot. Bd., 237 F.R.D. 325, 334 (N.D.N.Y. 2006)(quoting United States v. Constr. Prod. Research Inc., 73 F3d 464, 473 & citing Strougo v. BEA Assoc., 199 F.R.D. 515, 519 (S.D.N.Y. 2001)).
  32. In re Vioxx Products Liability Litigation, 501 F.Supp.2d 789, 808 -809 (E.D.La.,2007).

M. JAMES THOMAS serves as assistant general counsel with The Bureau of TennCare. He practices in the areas of employment and personnel, ethics/conflicts of interest, and litigation (with an emphasis on electronic discovery and privilege issues). Thomas is also a Tennessee Supreme Court Rule 31 Listed General Civil Mediator and a member of the Nashville Conflict Resolution Center. After graduating from The University of Tennessee, College of Law and obtaining an LL.M. from The George Washington University Law School in Washington, D.C., he has acquired experience both in the public and private sectors as a government attorney and as an associate with a small law firm.