Source And Choice Of Privilege Law In Diversity Cases — Part I

June 5, 2019

Not surprisingly, the federal rules govern all work product issues in all federal courts. But determining the correct attorney-client privilege law is much more complicated. The federal common law of privilege applies in federal question cases. In diversity cases, federal courts apply state privilege law. This requires such federal courts to: (1) find the source of state privilege law; and (2) determine which state’s privilege law applies.

In Canton Drop Forge, Inc. v. Travelers Casualty & Surety Co., the court properly acknowledged that federal courts apply state law “to resolve attorney-client claims.” Case No. 5:18-cv-01253, 2019 U.S. Dist. 41668, at *2-3 (N.D. Ohio Mar. 14, 2019) (citation omitted). The court then described its host state’s usual if not unique source of privilege law: “[t]he Supreme Court of Ohio has explained that the attorney-client privilege in Ohio is governed by statute . . . or, in cases not covered by the statute, by common law.” Id. at *3. Most states look to one or the other of those sources, but not both. To further complicate such a search, some states also deal with privilege in their court rules.

Finding the source of states’ privilege law can sometimes present a challenge for federal courts handling diversity cases. But determining which state’s law applies in diversity cases can be even more troublesome – and many courts seem to get it wrong. Next week’s Privilege Point will focus on that issue.