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
Litigation adversaries often trigger privilege and work product disputes when they seek each other’s documents. But what if your client’s adversary subpoenas a third party holding your client’s privileged documents — whose...more
Litigators frequently interview fact witnesses in pending or anticipated litigation settings. Their interview notes normally deserve fact work product protection, but that can be overcome if the witnesses disappear or their...more
Last week’s Privilege Point described a court’s initial rejection but later acceptance of a county’s claim of privilege and work product protection for internal employee training. Hipschman v. Cnty. of San Diego, Case No....more
In the aftermath of the soap opera-like ethical scandal over an undisclosed romantic relationship between a Jackson Walker partner and a Texas bankruptcy judge, an Oregon federal court dealt with discovery of a renowned...more
Companies facing ongoing or threatened litigation must sometimes estimate their likely or possible financial exposure — for internal purposes, reporting to auditors or other reasons. Depending on the circumstances, one would...more
Last week’s Privilege Point noted that some federal courts erroneously apply their host state’s substantive privilege law rather than properly applying their host state’s choice of law rules — which might result in another...more
One glaring disagreement among state courts involves former corporate directors' right to access documents they possessed when they served as directors. Common sense might lead one to think that directors enjoyed access when...more
Last week's Privilege Point described courts' varied approaches to losing litigants' efforts to discover the winning lawyers' billing entries when the winners seek recovery of their attorney's fees....more
Last week's Privilege Point summarized a California federal court decision confirming that California recognizes its privilege in a statute, but then inexplicitly acknowledging that courts can themselves create exceptions....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
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
Many of us (especially the older generation) like to deal with hard-copy printouts of electronic communications. But inattention to the printout process can have disastrous results....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
Last week’s Privilege Point addressed an Illinois federal court’s holding that the attorney-client privilege protected a company executive’s relaying of legal advice to another executive, as well as the former’s email about...more
A frequent privilege issue arising in federal and state courts involves communications that do not come from or go to a lawyer. Such communications may clearly deserve privilege protection, under certain limited...more
Most courts apply a "primary " or "predominant" purpose standard when assessing privilege protection for communications serving both business and legal purposes. While on the D.C. Circuit, Judge Kavanaugh articulated a much...more
Because the attorney-client privilege ultimately rests on clients' request for legal advice about facts they give their lawyers, most courts extend privilege protection to those communications and to lawyers' specific legal...more
Courts analyzing the attorney-client privilege's ownership rights necessarily determine the privileged documents' physical possession, as well as authority to assert and waive the privilege. Not surprisingly, such dispositive...more
Most client agents/consultants stand outside privilege protection. This means that: (1) communications with them do not deserve privilege protection; (2) their presence during otherwise privileged communications aborts that...more
Despite litigants' and bar groups' valiant efforts to expand common interest doctrine protection to transactional settings, most courts limit that doctrine's protection to ongoing or anticipated litigation contexts. However,...more
Because privilege logs generally list the authors and recipients of withheld communications, corporations' adversaries frequently cite such logs in challenging the corporations' privilege claims when a log shows that no...more
Although most jurisdictions agree on many basic privilege issues, some important variations remain. The most important involves a few states' rejection of the majority Upjohn v. United States, 449 U.S. 383 (1981) rule...more
Last week's Privilege Point highlighted the difficulty of establishing that client agents/consultants are inside privilege protection. In contrast, lawyer’s agents/consultants can deserve privilege protection – but only if...more