Most privilege and work product waivers involve the intentional or accidental disclosure of protected communications to third parties. But under an “at issue” waiver, a litigant can forfeit both protections without disclosing...more
Last week’s Privilege Point described a Southern District of New York magistrate judge’s application of the “touch base” privilege test to a German company’s application to conduct discovery of a U.S. private equity company’s...more
Litigants in overseas proceedings can apply for a U.S. court’s permission to seek discovery in the United States under 28 U.S.C. § 1782. In In re B&C KB Holding GmbH, No. 22-mc-00180 (LAK) (VF), 2025 U.S. Dist. LEXIS 124466...more
The attorney-client privilege protects (1) clients’ communications of facts to lawyers, (2) clients’ requests for legal advice from lawyers, (3) lawyers’ request for facts from clients and (4) lawyers’ legal advice to...more
Courts sometimes appoint guardians ad litem to assist minors or others. In DeSpain v. DeSpain, Consol. Case No. WD87182, 2025 Mo. App. LEXIS 398 (Mo. Ct. App. June 17, 2025), the court dealt with a lower court’s holding that...more
Since lawyers draft their own ethics rules, they unsurprisingly include provisions allowing them to disclose client confidences to defend themselves from clients’ (and even third parties’) attacks. A paradigmatic example...more
Last week’s Privilege Point described the Missouri Supreme Court’s understandable conclusion that a railroad employee did not have a personal attorney-client relationship with railroad lawyers who interviewed her about an...more
In all but a handful of states, corporations can claim privilege protection for their lawyers’ communications with their employees of any level — as long as the lawyers (1) are gathering facts they need to advise the client...more
A recent Privilege Point described a New York federal court’s rejection of the “functional equivalent” doctrine — under which a nonemployee can be treated as an employee for privilege purposes. More recently, a New York State...more
The common-interest doctrine sometimes protects as privileged communications between separately represented clients sharing an identical legal interest in ongoing or anticipated litigation. It differs dramatically from a...more
Under the aptly named “testamentary exception,” a beneficiary taking under a will can sometimes access communications between the testator and the testator’s lawyer. This exception rests on the understandable concept that the...more
Unlike the fragile attorney-client privilege that can be waived even upon disclosure to family members, the work product doctrine is much more robust. A recurring corporate scenario confirms this important distinction....more
Last week’s Privilege Point described generally accepted principles under which the attorney-client privilege can protect intra-corporate communications without a lawyer’s involvement. To some lawyers’ surprise, the...more
The very term “attorney-client privilege” would seem to necessitate a lawyer’s involvement in any communications deserving that evidentiary protection. But in some critical intra-corporate situations, the protection covers...more
Under Fed. R. Evid 502(d), a federal court can assure that an inadvertent disclosure of privileged documents in the case before it will not allow litigants in subsequent cases to argue that such disclosure triggered a...more
The attorney-client privilege is so fragile that even disclosing protected communications to family members normally waives it. An Arizona appellate court recently took a forgiving view, but a concurring judge sounded the...more
Lawyers frequently represent multiple clients on the same matter. Absent some contractual arrangements to the contrary, those lawyers must share all confidential information with all the jointly represented clients and, of...more
Aggressive litigation adversaries sometimes try to make a discovery sideshow into the main event. A party’s search for responsive documents occasionally triggers such an effort....more
Internal human resources investigations often generate numerous privilege and waiver issues. One recent case assessed a common scenario — raising a scary possibility, but then coming to the right conclusion....more
Last week’s Privilege Point described S.D.N.Y. Judge Lewis Liman’s conclusion that a company waived privilege protection for legal advice it received from its counsel by disclosing the advice to its financial advisor China...more
Companies that retain financial advisors to assist in transactions necessarily share intimate confidential corporate information with them. But can they safely share legal advice with such advisors without risking a privilege...more
The common interest doctrine can sometimes protect as privileged communications between separately represented clients. But litigants seeking the doctrine’s protection face many hurdles and often fail....more
Discovery rules and court orders normally require litigants to list people with possible claims or potentially responsive information. But as in many other contexts, the “intensely practical” work product doctrine can apply...more
Last week’s Privilege Point emphasized the difficulty of successfully asserting the common interest doctrine’s application. But in the right circumstances, even litigation adversaries can successfully protect some of their...more
The common interest doctrine can sometimes protect as privileged communications between separately represented clients who share an identical legal interest in litigation, or in anticipation of litigation. But satisfying this...more