Commercial Litigation and Arbitration

Attorney-Client Privilege — Waiver by Diary

The plaintiff produced redacted diary entries in response to a document request served on her in Harper v. Brinke, 2007 U.S. Dist. LEXIS 64482 (E.D. Tenn. Aug. 30, 2007). The defendant moved to compel the redacted portions, claiming that plaintiff waived her attorney-client privilege by memorializing the privileged communications in her diary. Held by Magistrate Judge H. Bruce Guyton: No waiver effected; relying on United States v. Defonte, 441 F.3d 92, 95 (2d Cir. 2006) (‛[the diarist] claims, and we have reason to believe, that she never consented to the journal being taken from her possession. Furthermore, there is no evidence that she shared or intended to share those entries with any third party. Thus, absent a finding upon a further hearing that [the diarist] waived the privilege, her record of conversations with counsel are not subject to discovery“); Alexander v. FBI, 186 F.R.D. 154, 161 (D.D.C. 1999) ("the attorney client privilege applies to entries in a client's diaries that describe communications from attorneys or are based on such communications. This principle has been followed by each court to have addressed this matter.").

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