Corporate parents' in-house lawyers' joint representations of the parent and its wholly-owned subsidiaries should cinch their communications' attorney-client privilege protection. Additional grounds for such privilege...more
The unpredictable and frequently rejected common interest doctrine can sometimes avoid what would otherwise be a waiver when separately represented litigants share privileged communications or documents. Many clients and even...more
Although the federal work product rule and parallel state work product rules extend only to "documents and tangible things," most courts also protect intangible work product such as oral communications – at least to the...more
Just as some clients think that copying a lawyer cinches privilege protection, even sophisticated clients relying on well-known law firms might erroneously believe that having those law firms hire a public relations...more
The unpredictable "at issue" waiver doctrine can strip away privilege protection without any disclosure of, or explicit reliance on, privileged communications. But state courts and even federal courts take widely varying...more
In December 2020, a New York court noted that A-list actor Justin Theroux and his downstairs neighbors "do not get along, to put it mildly." Theroux v. Resnicow, 2020 N.Y. Slip Op. 51489(U), at *2 (N.Y. Sup. Ct. Dec. 16,...more
Last week's Privilege Point described a court's curt rejection of attorney-client privilege protection for a plaintiff's communications with her mom – and noted the court's surprising failure to address an obvious work...more
Somewhat counter-intuitively, attorney client privilege protection is so fragile that even a family member often falls outside privilege protection (unless that family member was necessary to facilitate communications between...more
Not surprisingly, joint clients do not waive their privilege protection when they communicate with their joint lawyer or (in some situations) with each other. But what if a lawyer improperly represents joint clients whose...more
The frighteningly unpredictable "at issue" waiver doctrine can strip away attorney-client privilege protection when the client seeks some legal advantage by putting "at issue" its knowledge, ignorance, conduct, etc. This type...more
Most if not all courts recite the tenet that corporations can lose their privilege protection for privileged documents circulated within the corporation to employees beyond those with a "need to know." One might think that...more
As Privilege Points have periodically mentioned, some courts inexplicably limit work product protection to documents lawyers prepare or order to be prepared – in the face of Fed. R Civ. P 26(b)(3)(A)'s requirement only that...more
Lawyers preparing their clients and others for deposition or trial testimony frequently show them documents. Courts disagree about whether such lawyers can withhold from the adversary those documents' identity. The majority...more
It should come as no surprise that litigants normally seek discovery about their adversaries' legal contentions and factual support. On the other hand, litigants' lawyers understandably consider their trial strategy and their...more
Wise employment lawyers know that they should never be the decision makers when a client terminates an employee. Instead, those lawyers should be one of many inputs into the business person's decision to terminate....more
An acquiring corporation normally conducts due diligence before acquiring an acquisition target. Not surprisingly, the acquiring corporation might seek privileged or work product protected documents or communications during...more
In first-party insurance scenarios, an insured seeks coverage directly from its insurance company for its losses (in contrast to third-party insurance, in which an insured seeks its insurance company’s help defending and...more
The ancient attorney-client privilege: (1) protects communications primarily motivated by clients' request for legal advice, regardless of any litigation on the horizon; and (2) protects such communications absolutely. The...more
Lawyers representing insurance companies and others sometimes seek evidence that plaintiffs claiming injuries, disability, etc., are faking it. And of course nothing could be as dramatic as a surveillance video of a plaintiff...more
Every lawyer knows the incredible scope and strength of their ethics confidentiality duty. More than any other profession, lawyers must maintain the absolute secrecy of nearly all information relating to their clients. But...more
Last week's Privilege Point described a wise Connecticut court's recognition that federal courts sitting in diversity should not automatically apply their host jurisdiction's privilege law — but instead apply their host...more
As in other areas, a privilege analysis should always start with a choice of law assessment. In federal courts, federal common law governs federal question cases' privilege issues. In diversity cases, many federal courts...more
Lawyers should remind their clients that copying a lawyer on an email does not automatically render the email privileged. But the story doesn't end there.
In Dejewski v. National Beverage Corp., the court recited the...more
The attorney-client privilege protects communications between clients and their lawyers. But in certain admittedly limited circumstances, the protection can apply to documents created by someone who has not yet hired a...more
Last week's Privilege Point described a Louisville, Kentucky, restaurant's loss of privilege protection because it could not prove that the managers providing information after a slip and fall knew the "investigation notes'"...more