Supreme Court Review: Court Preserves the Privileges of the Dead


Linda S Mullenix

National Law Journal


Commentary and analysis of the Supreme Court’s procedural decisions handed down during the 1997-98 Term. The article discusses the Court 6-3 decision in Swidler & Berlin v. United States, in which a majority of the Court upheld the sanctity of the attorney-client privilege even after the client was deceased. In a short decision, the Court upheld the longstanding posthumous application of the attorney-client privilege, and all nine Justices agreed that even the dead may retain a personal, reputational and economic interest in maintaining the confidentiality of discussion with their attorneys. In another decision, the Court in Baker v. General Motors Corp. held that full faith and credit under the Constitution does not mean that enforcement measures must travel with the sister state judgment as preclusive effects do; such measures remain subject to the even-handed control of forum law. In an opinion relating to appellate review of trial court’s Daubert decisions – General Elec. Co. v. Joiner – a unanimous Court held that an abuse of discretion standard governs appellate review of a district judge’s determination to allow or exclude scientific testimony. Finally, in Lexecon Inc. V. Milberg Weiss Bershad Hynes & Lerach, a unanimous Court held that the multidistrict litigation statute (28 U.S.C. § 1407) literally requires that cases transferred to an MDL forum for coordinated pretrial proceedings must be remanded back to their original courts upon completion of those pretrial proceedings. This article discusses the background to these cases as well as the Supreme Court’s decision in each appeal.

Full Citation

Linda S. Mullenix, Supreme Court Review: Court Preserves the Privileges of the Dead, National Law Journal, Aug. 10, 1998, at B13.