When a Parent (Corporation) Talks With its “Child” (Corporation) is it Privileged?

E-Discovery LLC - When a Parent (Corporation) Talks With its “Child” (Corporation) is it Privileged? by Michael Berman
Image: Holley Robinson, EDRM.

[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.”

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.

Fond-du-Lac Band of Lake Superior Chippewa v. Cummins, 2025 WL 26046 (Jan. 3, 2025) (emphasis added).

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).

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.

Author

  • Miichael Berman's headshot

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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