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Grieco v.
Fresenius Medical Care Holdings, Inc., 2008 WL 516539
(Mass. Super. Feb. 20, 2008) (Neel, J.). |
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In an employment compensation dispute
between Fresenius Medical Care Holdings, Inc. (“FMC”)
and two of its former in-house counsel, Plaintiffs moved
to compel a variety of documents withheld on the basis
of the attorney-client privilege and work product
doctrine. The court concluded that FMC could not
withhold documents from the Plaintiffs, where they had
either written or received the documents while acting as
FMC’s in-house counsel. The court noted that this did
not necessarily mean that the documents would be
admissible to prove the Plaintiffs’ claims.
This decision is also interesting because
it accepts the contention that communications among
corporate officers |
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that “memorialize or transmit
communications from [the company’s] attorneys” are
protected from discovery by the attorney-client
privilege.
The opinion also addresses a number of
other typical attorney-client privilege disputes, such
as whether: (1) communications between non-attorneys on
which an attorney is copied enjoy the privilege; (2) the
privilege has been waived by voluntary disclosure; (3)
the communication seeks legal advice; and (4) the
in-house lawyer is acting as a business person rather
than an attorney. In general with regard to these
issues, the court ordered FMC to provide additional
information on its privilege log to carry its burden to
establish the application of the privilege.
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