Commercial Litigation and Arbitration

Attorney-Client Privilege — No Adverse Inference from, Evidence of or Argument Concerning Assertion of Privilege Permitted

In re GM LLC Ignition Switch Litig., 2015 U.S. Dist. LEXIS 163255 (S.D.N.Y. Dec. 3, 2015):

In its Ninth Motion in Limine, New GM asks the Court to rule that evidence or argument regarding [*383]  New GM's privilege assertions is inadmissible, and to enter an order governing privilege issues at trial. Plaintiff concedes -- as he must, see, e.g., Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 226 (2d Cir. 1999), abrogated on other grounds by Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S. Ct. 1115, 155 L. Ed. 2d 1 (2003) -- that he may not invoke New GM's privilege assertions in this MDL to encourage the jury to draw an adverse inference from those assertions, so the motion is GRANTED as unopposed to that extent. (See Pls.' Mem. Law Opp'n New GM's Mot. In Limine No. 9 (Docket No. 1704) ("Pl.'s Ninth Opp'n") 1-2). And while Plaintiff does argue that he should be entitled to offer evidence concerning New GM's invocation of the privilege in the Melton litigation in Georgia state court, that argument is foreclosed by the Court's rulings on the MDL Plaintiffs' crime-fraud motion to compel, see In re Gen. Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 159721, 2015 WL 7574460 (S.D.N.Y. Nov. 25, 2015) ("Crime-Fraud Opinion"), and New GM's Tenth Motion in Limine below. Accordingly, New GM's motion is GRANTED to the extent that it seeks to preclude any evidence or argument concerning its invocations of the attorney-client privilege (or related protections, such as the work product doctrine), in this litigation or elsewhere. Relatedly, Plaintiff may not introduce evidence or make [*384]  arguments concerning the crime-fraud allegations made in the motion to compel or the Court's findings, except to the extent permitted by the Court's ruling on New GM's Fifth Motion. (See Docket No. 1770; see also Pl.'s Ninth Opp'n 3).

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