Print PDF Ninth Circuit’s Reversal of Evidence Exclusion in Broadcom Case Does Not Alter Lessons Learned Regarding Upjohn Warnings

By Shari A. Brandt and James Q. Walker
October 7, 2009

In United States v. Ruehle, Slip. Op. (9th Cir. Sept. 30, 2009), the Ninth Circuit reversed the suppression order issued in United States v. Nicholas, 606 F.Supp.2d 1109 (C.D.Ca. Apr. 2009) based on the lower court’s application of the wrong privilege standard, but left intact that portion of the Nicholas opinion suggesting that attorneys need to provide and document complete Upjohn warnings and avoid dual representations absent a written conflict waiver. Shari Brandt and James Walker have written a short memorandum examining the important distinction drawn in Ruehle between application of federal and state privilege rules, and the Ninth Circuit’s reinforcement of the lessons learned from Nicholas.

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