As explained in previous Privilege Points, courts frequently must decide which state’s privilege law applies to communications involving several states. Fed. R. Evid. 501 states that federal courts should apply state law but gives no hint to how the federal courts should decide which state’s law applies.
In Lion Electric Co. v. Nikola Corp., No. CV-23-00372-PHX-DGC, 2024 U.S. Dist. LEXIS 165030 (D. Ariz. Sept. 13, 2024), the court had to choose between Delaware’s broad attorney-client privilege and Arizona’s narrower protection. The court first noted that the Restatement (Second) of Conflict of Laws § 139 cmt. e “suggests that the state where the communication was ‘received’ has the most significant relationship” and therefore may have primacy in the consideration. Id. at *4. But the court wisely noted that emails “usually go back and forth between the communicating parties several times in a single email string” — noting that the case before it involved “four emails over the course of three days among eight people in three states.” Id. at *4-5. After noting that the “significant relationship” analysis focuses on the communications at issue, not the transaction about which the communications dealt, the court ultimately applied Arizona law.
Although the court went through a complicated analysis before applying its own state’s law, this and similar cases cannot help but raise understandable suspicions that federal courts may put their thumbs on the scale a little so they can apply the privilege law with which they are most familiar.