Court Takes the Easy Path in Analyzing Privilege Choice of Laws Issue

December 23, 2009

A recent “Privilege Point” highlighted jurisdictions’ differing formulations of privilege doctrines. Some courts understandably seek to avoid the complicated choice of laws analysis that sometimes arises.

In Elvig v. Nintendo of America, Inc., Civ. A. No. 08-cv-02616-MSK-MEH, 2009 U.S. Dist. LEXIS 91901 (D. Colo. Sept. 22, 2009), the court noted defendant’s argument that the three plaintiffs’ allegedly privileged communications must be analyzed under their home states’ laws — Colorado, California and Florida. The court concluded that it could “choose to apply the law of the state in which it sits” — and ultimately did so in “the interests of judicial economy and because neither party objects.” Id. at *5.

It should come as no surprise that courts would try to avoid complicated choice of law analyses, but lawyers should be looking to serve their clients by seeking application of the most favorable privilege law.