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
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
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
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
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
Because litigants frequently take an aggressive approach when withholding documents on privilege grounds, courts’ in camera reviews often result in a loss for them. But sometimes courts agree with a litigant’s privilege...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
Last week’s Privilege Point described a court’s review of a lawyer’s conversation with a witness and its conclusion that none of the conversation deserved the heightened opinion work product protection. LaBudde v. Phoenix...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
Unlike the absolute attorney-client privilege (and the absolute or nearly absolute opinion work product doctrine protection), a litigant can overcome the adversary’s fact work product protection if it “shows that it has...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
Several courts have adopted a nonsensical principle that, as one court put it, “[w]hen documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity.”...more
Numerous Privilege Points have described cases concluding that advertising agencies are outside privilege protection but inside work product protection (although they normally cannot themselves create protected work product)....more
The differing waiver rules governing the fragile attorney-client privilege and the robust work product doctrine protection predictably create stark differences when family members communicate with each other. This type of...more
Some readers have asked why Privilege Points have only rarely focused on work product issues in the insurance context. In addition to the sometimes dramatic differences between states’ handling of this issue, a recent case...more
With the growth of litigation funding as a mechanism for financing litigation, companies interviewing and ultimately selecting a funder inevitably share work product with them. In such circumstances, courts must assess (1)...more
Although lawyers understandably focus mostly on the privilege that they enjoy when communicating with their clients, other professionals (psychiatrists, clergy) also have privilege protection of one degree or another. Does...more