Privilege Can’t Be Used as Both a Sword and a Shield
Another Decision on Forensic Imaging of an Opponent’s Cell Phone
May 10, 2026What is a “Shotgun” Pleading?
May 12, 2026In Pfeffer v. Bank of America Corp., 2026 WL 1235426, at n. 2 (W.D. N. Car. May 5, 2026), the court wrote:
A party uses privilege as a shield when it refuses to disclose attorney-client communications and uses privilege as a sword when it affirmatively relies on those same communications to support a claim or defense. Courts consistently hold that you cannot do both because it is unfair to use privileged communications as proof while blocking the other side from examining them…. A party uses the attorney-client privilege as both a sword and a shield when asserting a claim that in fairness requires examination of protected communications. [cleaned up; citations, quotations, and brackets omitted].
In connection with the “clearly erroneous” standard of review, the court described it as not being “just maybe or probably wrong; it must … strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009) (quoting Bellsouth Telesensor v. Info. Sys. & Networks Corp., 1995 WL 520978, *5 n. 6 (4th Cir. 1995)). It must be “dead wrong.” Id.
