Unlike the common law-dominated attorney-client privilege which developed organically in each state, work product protection comes from court rules. One might think that this would simplify courts' application of that...more
Because it is absolute and can hide important facts from easy discovery, the attorney-client privilege is hard to create, narrow, and fragile. Among other things, even friendly third parties' presence can abort privilege...more
Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final...more
If clients and their lawyers engage in otherwise privileged communications in the presence of third parties, the privilege rarely if ever protects the communications. But what if the communications occur in a public place...more
Last week's Privilege Point described a Maine case applying the narrow pre-Upjohn "control group" standard for corporate communications. Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, ---A.3d---. Illinois is by far the largest...more
Corporations and their lawyers frequently work with public relations consultants when facing ongoing or anticipated litigation. In the work product context, courts agree that disclosing preexisting work product to such...more
For decades, companies trying to cooperate with the government have hoped for a change in the general rule that disclosing privileged communications and/or work product to the government waives those protections. In nearly...more
Many courts hold that corporations might waive their privilege protection through purely internal circulation of privileged communications — beyond those employees with a "need to know." ...more