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Defendant, as the party invoking the privilege, has the burden of showing that the requirements of the privilege are met. See, e.g., United States v. Landof. 591 F.2d 36 (9th Cir. 1978)
In this litigation, Defendant Bausch & Lomb has refused to produce a number of otherwise responsive documents on the ground that they are protected by the attorney-client privilege or the work product doctrine. This order involves the "first wave" of documents that Bausch & Lomb claims are so protected.
Did Bausch & Lomb have the burden of showing that the requirements of the privilege are met?
In evaluating the privilege claims, the court applied four fundamental legal principles: 1) Defendant, as the party invoking the privilege, has the burden of showing that the requirements of the privilege are met; 2) Intra-corporate communications to counsel may fall within the privilege if the predominant intent is to seek legal advice; 3) Intra-corporate communications to and from counsel can retain a privilege if disclosure is limited to those who have a "need to know" the advice of counsel; the company's burden "is to show that it limited its dissemination of the documents in keeping with their asserted confidentiality, not to justify each determination that a particular employee should have access to the information therein"; 4) As this case is in diversity, the applicable privilege law is state law. And of course state privilege law applies to the actions in New York state court. Choice of law principles appear to point to New York privilege law as determinative, as that is the location of defendant's principal place of business. Federal courts have recognized that the New York law of privilege is substantially similar to federal common law. This statement is helpful when the federal common law is itself clear and undisputed. But a difficulty arises where the federal courts are in dispute about the federal common law, and there appears to be no clear state law on the subject. Where such a situation arises, the court has chosen the result that appears most consistent with the approach to privilege questions undertaken by the New York Court of Appeals; that approach is to use a utilitarian analysis to provide protection to communications to and from counsel that would not be made in absence of the privilege. Based on the above-mentioned principles, the court either sustained or denied the privilege claims of Bausch & Lomb.