Actor Robert De Niro's feud with a former production company manager has generated several opinions by Southern District of New York Magistrate Judge Katharine Parker.
In Robinson v. De Niro, No. 19-CV-9156 (LJL) (KHP),...more
Last week's Privilege Point addressed a D.C. federal court's application of the Illinois "control group" privilege standard in a transferred case. In South Capitol Bridgebuilders v. Lexington Insurance Co., Case No....more
All but a handful of states apply what is called the Upjohn privilege standard – under which the attorney-client privilege can protect a corporation's lawyer's communication with any corporate employee who has information the...more
Essentially all courts apply a "primary purpose" test when assessing privilege protection. But while on the D.C. Circuit Court, Judge Kavannaugh articulated a far more corporate-friendly standard in analyzing an internal...more
Most if not all United States courts apply what is called the "touch base" test when assessing privilege claims for foreign communications (to or from the U.S., or even totally overseas). That standard normally results in...more
Last week's Privilege Point described a court's careful delineation between the logistics (time, place, etc.) of a privileged communication and such communications' explicit or implicit privileged content. The stakes...more
In all or nearly all circumstances, historical facts do not deserve privilege protection – something either happened or it didn't happen. The privilege can protect communications about those historical facts. To make matters...more
Last week's Privilege Point described a New York state court's unsurprising articulation of the nearly universally-applied "primary purpose" standard, and listing of the usual type of documents that fail to satisfy that...more
Every lawyer knows that attorney-client privilege protection depends on a communication’s "primary" or "predominant" purpose. A handful of courts have been inching toward a more expansive view (which will be the subject of a...more
Because privilege logs necessarily contain logistical but not content-based information about withheld documents, adversaries sometimes challenge privilege protection because no lawyer sent or received a withheld document....more
Lawyers sometimes represent institutions governed by multimember boards. Those members frequently receive privileged communications from the institution's lawyers. Under the majority rule, an institution's upper and even...more
The widely misunderstood common interest doctrine occasionally allows separately represented clients to avoid the normal disastrous waiver implications of sharing privileged communications. Among other requirements, most...more
Disclosing attorney-client privileged communications can trigger a subject matter waiver if made in a judicial setting to gain some advantage. This subject matter waiver danger reflects the classic "sword-shield" analogy with...more
Based on two United States Supreme Court decisions, defendants sometimes may assert what is known as a "Faragher-Ellerth" affirmative defense to discrimination and harassment claims. To successfully assert that affirmative...more
Last week's Privilege Point addressed litigants' need to identify the exact moment when they first anticipated litigation. Another work product issue involves the degree of protection afforded opinion work product....more
Because work product protection applies only when the creator is in or reasonably anticipates litigation, a litigant asserting that protection must know exactly when that occurred. In other words, as of one moment the...more
Nearly every court requires that litigants analyze possible privilege and work product protection for each attachment included in a withheld email or other document. This understandable approach raises an obvious question...more
Courts frequently face a common scenario: an in-house lawyer investigates alleged employee misconduct, and prepares a report that the company relies on in firing the employee. Do such reports deserve privilege protection, and...more
Lawyers who practice law "systematically and continuously" or even temporarily in states where they are not licensed confront unauthorized practice of law and multijurisdictional statutes and rules. Does attorney-client...more
Most states have adopted some variation of what is called the "spousal privilege" or "marital privilege." Those usually appear in statutes or rules, and dramatically vary from state to state. For obvious reasons, spouses'...more
One key distinction between attorney-client privilege protection and work product doctrine protection is their fragility. Disclosure to non-adverse third parties normally waives the former, but not the latter.
In Breuder...more
While lawyers should familiarize themselves with the sometimes counter-intuitive and nuanced privilege law, they should never lose sight of the nitty-gritty of courts' application of that law. The attorney-client privilege...more
Last week's Privilege Point addressed courts' differing interpretations of the work product rule's "anticipation" element. Fed. R. Civ. P. (26)(b)(3)'s and parallel state rules' "litigation" element also requires courts'...more
Fed. R. Civ. P. 26(b)(3)'s and parallel state work product rules apply to documents and tangible things prepared "in anticipation of litigation or for trial." But the Rule does not specify the degree of required...more
Under what is called the "fiduciary exception," a fiduciary's beneficiary sometimes may access otherwise privileged communications between the fiduciary and its lawyer – based on the law's artificial identification of the...more