Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Indiana |
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(United States)
Firm
Faegre Drinker Biddle & Reath LLP
Contributors Updated 18 Mar 2020 |
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| Is the ACP recognized in your jurisdiction? | Yes. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Indiana courts follow the Upjohn approach to determine who may communicate on behalf of the corporate client (and on behalf of an attorney) for the purposes of the ACP. See, e.g., In re Witham Memorial Hospital, 706 N.E.2d 1087, 1091 (Ind. Ct. App. 1999) (applying Upjohn to communications between hospital employees and an investigator employed by an attorney). |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No. The elements are the same, but as a practical matter, courts consider the likelihood that communications with in-house counsel may concern business operations, not legal advice. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes |
| Is the common interest doctrine recognized in your jurisdiction? | Yes |
| How is the doctrine articulated in your jurisdiction? | The doctrine is an exception to the rule that disclosure of materials to a third-party generally waives a privilege. If parties have coinciding legal interests, they may share privileged materials among themselves and their lawyers and all will be treated as a single attorney-client unit. Price v. Charles Brown Charitable Remainder Unitrust Trust, 27 N.E.3d 1168 (Ind. Ct. App. 2015). |
| Must a common interest agreement be in writing? | No, but a writing is encouraged because disputes often arise as to the terms and scope of a joint defense or similar nondisclosure agreements. See Price v. Charles Brown Charitable Remainder Unitrust Trust, 27 N.E.3d 1168, n.3 (Ind. Ct. App. 2015); Groth v. Pence, 67 N.E. 3d 1104 (Ind. Ct. App. 2017), transfer denied, 86 N.E.3d 172 (Ind. 2017) (holding that common interest privilege protected legal white paper from disclosure despite absence of joint defense or other nondisclosure agreement between Indiana governor and Texas governor elect). |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Neither the Indiana courts nor the Indiana Supreme Court Disciplinary Commission have addressed litigation funding issues in published decisions or advisory opinions. Official Comment 5 to Rule 1.5 of the Indiana Rules of Professional Conduct prohibits use of any fee agreement whose terms might induce the lawyer to improperly curtail services or perform them in a way contrary to the client’s interest. The comment then states that a fee cap in an agreement would be impermissible if more extensive services probably will be required to complete the engagement, unless the cap is adequately explained to the client. Other provisions of the Indiana Rules of Professional Conduct may apply to litigation funding agreement |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Green v. State, 274 N.E. 2d 267, 273 (Ind. 1971) (holding that a client and attorney may not conspire to break the law and a fraudulent intent or criminal purpose will defeat application of the privilege); Lahr v. State, 731 N.E.2d 479, 482-83 (Ind. Ct. App. 2000) (holding that if prima facie evidence of a crime and a relationship between the communication and the criminal violation are established, the privilege will not apply). |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes. (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) Rule 26(B)(3) of the Indiana Rules of Trial Procedure. |
| What are the elements of the protection in your jurisdiction? | Indiana Trial Rule 26(B)(3) is analogous to its federal counterpart. The rule applies to documents or things prepared or obtained in anticipation of litigation or for trial by a party or its representative. The items must continue to be treated as confidential to preserve work product protection. Such items may be discovered only upon a showing that the party seeking discovery has substantial need of the materials in preparation of his case and is unable without undue hardship to obtain the substantial equivalent by other means. No substantial need showing is required to obtain a party’s prior statement about the case or its subject matter. |
| Does your jurisdiction recognize an accountant-client privilege? | Yes. See Ind. Code § 25-2.1-14-1 |
| Does your jurisdiction recognize a mediation privilege? | Yes. Mediation sessions are confidential. Confidentiality may not be waived, and mediators cannot be compelled to testify except under extraordinary circumstances. See Ind. Alternative Dispute Resolution Rule 2.11; Horner v. Carter, 981 N.E.2d 1210 (Ind. 2013). |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, but only to the same extent as the federal rule. See Ind. R. |
Lex Mundi Global Attorney-Client Privilege Guide
USA, Indiana
(United States) Firm Faegre Drinker Biddle & Reath LLPContributors
Updated 18 Mar 2020Yes.
N/A
No
Indiana courts follow the Upjohn approach to determine who may communicate on behalf of the corporate client (and on behalf of an attorney) for the purposes of the ACP. See, e.g., In re Witham Memorial Hospital, 706 N.E.2d 1087, 1091 (Ind. Ct. App. 1999) (applying Upjohn to communications between hospital employees and an investigator employed by an attorney).
No. The elements are the same, but as a practical matter, courts consider the likelihood that communications with in-house counsel may concern business operations, not legal advice.
Yes
Yes
Yes
The doctrine is an exception to the rule that disclosure of materials to a third-party generally waives a privilege. If parties have coinciding legal interests, they may share privileged materials among themselves and their lawyers and all will be treated as a single attorney-client unit. Price v. Charles Brown Charitable Remainder Unitrust Trust, 27 N.E.3d 1168 (Ind. Ct. App. 2015).
No, but a writing is encouraged because disputes often arise as to the terms and scope of a joint defense or similar nondisclosure agreements. See Price v. Charles Brown Charitable Remainder Unitrust Trust, 27 N.E.3d 1168, n.3 (Ind. Ct. App. 2015); Groth v. Pence, 67 N.E. 3d 1104 (Ind. Ct. App. 2017), transfer denied, 86 N.E.3d 172 (Ind. 2017) (holding that common interest privilege protected legal white paper from disclosure despite absence of joint defense or other nondisclosure agreement between Indiana governor and Texas governor elect).
Neither the Indiana courts nor the Indiana Supreme Court Disciplinary Commission have addressed litigation funding issues in published decisions or advisory opinions.
Official Comment 5 to Rule 1.5 of the Indiana Rules of Professional Conduct prohibits use of any fee agreement whose terms might induce the lawyer to improperly curtail services or perform them in a way contrary to the client’s interest. The comment then states that a fee cap in an agreement would be impermissible if more extensive services probably will be required to complete the engagement, unless the cap is adequately explained to the client. Other provisions of the Indiana Rules of Professional Conduct may apply to litigation funding agreement
No
Yes
Green v. State, 274 N.E. 2d 267, 273 (Ind. 1971) (holding that a client and attorney may not conspire to break the law and a fraudulent intent or criminal purpose will defeat application of the privilege); Lahr v. State, 731 N.E.2d 479, 482-83 (Ind. Ct. App. 2000) (holding that if prima facie evidence of a crime and a relationship between the communication and the criminal violation are established, the privilege will not apply).
Yes. (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) Rule 26(B)(3) of the Indiana Rules of Trial Procedure.
Indiana Trial Rule 26(B)(3) is analogous to its federal counterpart. The rule applies to documents or things prepared or obtained in anticipation of litigation or for trial by a party or its representative. The items must continue to be treated as confidential to preserve work product protection. Such items may be discovered only upon a showing that the party seeking discovery has substantial need of the materials in preparation of his case and is unable without undue hardship to obtain the substantial equivalent by other means. No substantial need showing is required to obtain a party’s prior statement about the case or its subject matter.
Yes. See Ind. Code § 25-2.1-14-1
Yes. Mediation sessions are confidential. Confidentiality may not be waived, and mediators cannot be compelled to testify except under extraordinary circumstances. See Ind. Alternative Dispute Resolution Rule 2.11; Horner v. Carter, 981 N.E.2d 1210 (Ind. 2013).
Yes, but only to the same extent as the federal rule. See Ind. R.