[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Fond-du-Lac Band of Lake Superior Chippewa v. Cummins, 2025 WL 26046 (Jan. 3, 2025), the court addressed privilege among two jointly related companies.
Plaintiff, the “Band,” sought judicial review of a land exchange between the U.S. Forest Service and a mining company, “PolyMet.” PolyMet sought review of the U.S. Magistrate Judge’s decision that it failed to meet the burden of showing that approximately 500 documents were privileged. “PolyMet Corp.” was PolyMet’s former corporate parent.
“PolyMet contends that [U.S. Magistrate] Judge Brisbois erred by failing to recognize that communications including PolyMet Corp. remain privileged because the two companies were jointly represented by the attorneys on PolyMet’s privilege log.”
While much of the decision turns on privilege log issues and whether PolyMet had properly presented its position to the Magistrate Judge, the District Court wrote:
PolyMet seems to imply that, when the joint clients are a parent company and its wholly owned subsidiary, none of this analysis is necessary because the companies automatically share each other’s legal interests. Although there is some authority to this effect, … this does not appear to be a universal rule…. Given these conflicting authorities, it is at least arguable whether, as a matter of law, a parent and its wholly owned subsidiary always and automatically share all legal interests in common. In any event, PolyMet could not have expected Judge Brisbois to decide this issue—or any other issue related to application of the joint-representation rule—without briefing and argument on the matter.
For these reasons, PolyMet’s objection is overruled, and Judge Brisbois’s order is affirmed.
Id. (citations omitted; emphasis added).
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