Courts Short-Circuit Privilege Choice of Laws Issue

May 18, 2011

State courts and federal courts sitting in diversity must determine which state’s attorney-client privilege law to apply. They naturally look to the forum state’s choice of laws rules when doing so. In some situations, that analysis results in application of the privilege law from another state (for instance, where the communications occurred).

However, some federal courts sitting in diversity seem to short-circuit this process, and automatically apply the forum state’s privilege law without even mentioning its choice of laws rules. For instance, in Tindall v. H & S Homes, LLC, Civ. A. No. 5:10-cv-044(CAR), 2011 U.S. Dist. LEXIS 29380, at *3 (M.D. Ga. Mar. 22, 2011), the Middle District of Georgia sitting in diversity simply stated that “Georgia [privilege] law controls in this instance.” On the same day, the District of South Dakota sitting in diversity concluded that “[b]ecause this is a civil case based on South Dakota substantive law, South Dakota’s privilege rules apply.” Wellenstein v. Capocci, No. CIV. 10-4078-KES, 2011 U.S. Dist. LEXIS 29553, at *11 (D.S.D. Mar. 22, 2011).

If these federal courts had applied the forum states’ choice of laws rules, they might have reached the same conclusion about the applicable privilege law – but it appears that they did not undertake such an analysis.