As in other areas, a privilege analysis should always start with a choice of law assessment. In federal courts, federal common law governs federal question cases' privilege issues. In diversity cases, many federal courts reflexively apply their host jurisdiction's privilege law. This is wrong.
In Parimal v. Manitex International, Inc., the court refreshingly recognized that in "resolving [whether Connecticut or Illinois privilege law applied] the Court must apply Connecticut choice of law principles." Civ. No. 3:19CV01910 (MPS), 2021 U.S. Dist. LEXIS 20429, at *6 (D. Conn. Feb. 3, 2021). After carefully describing both states' privilege laws, the court dealt with the most obvious difference — "Connecticut generally provides greater protection to corporate communications," because Illinois is one of the few states rejecting the Upjohn standard and instead applying the old "control group" standard. Id. at *13. But the court correctly found that "any conflict between Illinois and Connecticut law is illusory because each of the communications at issue was between a member of defendant's control group . . . and its claimed attorney." Id. at *13-14. The court then recognized another difference: "by employing the 'primary purpose' test, Connecticut appears to afford greater protection to communications that implicate both legal and business advice . . . . By contrast, Illinois takes a stricter approach." Id. at *15. So the court had to choose one or the other.
Although the Upjohn vs. "control group" distinction represents the greatest difference among states' privilege laws, companies and their lawyers should always be looking for more possibly applicable advantageous privilege law. Next week's Privilege Point will describe the court's final answer.