By Amanda M. Collura

The attorney-client privilege ranks among the oldest and most established evidentiary privileges known to our law. This privilege allows clients to communicate freely with legal counsel without worry of disclosure through discovery or at trial. Moreover, the joint defense privilege has been recognized as an extension of the attorney- client privilege which gives attorneys and clients alike additional room to share privileged information to third parties without creating a waiver. However, since its recognition, use of the joint defense privilege has created questions in the legal community regarding the discoverability of such information for use against a party to the joint defense in litigation.

In general, the joint defense privilege “extends the attorney-client privilege to any third party made privy to privileged communications if that party ‘has a common legal interest with respect to the subject matter of the communication.’’’ Aiken v. Texas Farm Bureau Mutual Ins. Co., 151 F.R.D. 621, 624 (E.D. Tex. 1993) (citing In re Auclair, 961 F.2d 65, 69 (5th Cir. 1992)). Moreover, the joint defense privilege “encompasses shared communications between various co-defendants, actual or potential, and their attorneys, prompted by threatened or actual, civil or criminal proceedings, ‘to the extent that they concern common issues and are intended to facilitate representation in possible subsequent proceedings’ … ‘or whenever the communication was made in order to facilitate the rendition of legal services to each of the clients involved in the conference.’” Id. at 624.


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By Matthew C. Meiners

In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, the Delaware Court of Chancery held that in a merger under Delaware law, privilege over the absorbed corporation’s communications with its counsel, including those relating to acquisition by the surviving corporation, pass to the surviving corporation.

The case arose from a suit filed by Great Hill Equity Partners IV, LP, et al. (the “Buyer”), alleging that former shareholders and representatives of Plimus, Inc. (the “Seller”) fraudulently induced the Buyer to acquire Plimus, Inc. (“Plimus”). Plimus was the surviving corporation in the merger.

After the Buyer brought the suit, a full year after the merger, it notified the Seller that, among the files on the Plimus computer systems that the Buyer acquired in the merger, it had discovered certain communications between the Seller and Plimus’s then-legal counsel regarding the transaction. During that year, the Seller had done nothing to get these computer records back, and there was no evidence that the Seller took any steps to segregate these communications before the merger or excise them from the Plimus computer systems. Additionally, the merger agreement lacked any provision excluding pre-merger attorney-client communications from the assets of Plimus that were transferred to the Buyer. Nonetheless, the Seller asserted the attorney-client privilege over those communications on the ground that it, and not the surviving corporation, retained control of the attorney-client privilege that belonged to Plimus for communications regarding the negotiation of the merger agreement.


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By Matthew C. Meiners and Linda Perez Clark

The Supreme Court of Louisiana, in Ogea v. Merritt, 2013 WL 6439355 (La. 12/10/13), provided guidance regarding the personal liability of members of an LLC, reversing a lower court decision and finding a member of an LLC not personally liable for damages resulting from that member’s performance of a contract in the name of the LLC.

Travis Merritt, the sole member of Merritt Construction, LLC, signed a contract with Mary Ogea to build a home on an undeveloped parcel of land owned by Ms. Ogea. After problems with the foundation became apparent, Ms. Ogea filed suit against the LLC and against Mr. Merritt individually. Following trial, the district court rendered judgment against both Mr. Merritt, personally, and the LLC “in solido” for various items of damages. The district court found that Mr. Merritt personally performed some of the foundation work and failed to properly supervise the subcontractor who actually poured the concrete, providing grounds for Mr. Merritt’s personal liability. The court of appeal affirmed, but the Supreme Court then granted a writ to address the extent of the limitation of liability afforded to a member of an LLC.


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By Daniel B. Stanton

In its most recent decision regarding Longshore and Harbor Workers’ Compensation Act (LHWCA) coverage, namely New Orleans Depot Services, Inc. v. Director, Office of Workers’ Compensation Programs, 718 F.3d 384 (5th Cir. 2013) (en banc), the United States Fifth Circuit Court of Appeals defined “adjoining” as used in the LHWCA to mean “bordering on or contiguous with navigable waters.” In doing so, the Court expressly overruled its own precedent found in Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980) (en banc), and the Court adopted the interpretation of the statutory language proffered by the Fourth Circuit Court of Appeals in Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995).


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By Amanda M. Collura

In cases where punitive damages have been claimed and could potentially be awarded defendants should be aware of whether, and to what extent, their wealth and financial data is subject to discovery. Louisiana courts seem to be in agreement that when punitive or exemplary damages are claimed, a defendant’s financial status is discoverable since such information is relevant to the subject matter of the action. See Lacoste v. Crochet, 99-0602 (La. App. 4 Cir. 1/5/00), 751 So.2d 998, 1005. However, it is not clear as to the extent to which a party may conduct discovery into the wealth and financial matters of a defendant when dealing with a potentially viable punitive damages claim.


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By David P. Curtis

Through House Bill 589 of the 2013 Regular Session, the Louisiana legislature amended article 966 of the Code of Civil Procedure, which, as of August 1, 2013, requires additional legwork by practitioners who seek to obtain a ruling or dismissal by summary judgment. The new rule requires the moving party to formally admit its evidence into the record for the purposes of that particular summary judgment motion. Thus, unlike in years past, the practitioner may no longer rely upon evidence “on file” in the record or evidence simply attached to the motion itself. Even under the 2012 amendments with similar language to HB589, at least one circuit recently held that the movant must formally admit its evidence in support of the motion at the hearing on the motion.

Article 966(B)(2) now states in pertinent part:

(2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law (underlined language is added by HB589).


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The Medicare laws have undergone significant changes. With the relatively new reporting regulations and the focus on compliance, litigators must implement new procedures in their practice.  Many companies are establishing guidelines to obtain information needed to comply with the Medicare Secondary Payer Act (“MSP”) and the Medicare, Medicaid and SCHIP Extension Act of 2007 (“MMSEA”).

By Charles L. Patin, Jr.

The recent enactment of House Bills 974 and 976 may conflict with and/or impair or impede the ability of school systems in school desegregation cases to implement outstanding orders of the court.

Where orders are outstanding regarding the hiring of teachers, for example, the provisions of House Bill 974 may

By Esteban Herrera, Jr.

In the e-discovery world, you need to be ready to make your case for using your proposed keyword search terms.

In the case of Custom Hardware Engineering & Consulting, Inc. v. Dowell, 2012 WL 10496, a dispute between the parties as to what search terms were to be used by the