Last week’s Privilege Point described a Southern District of New York magistrate judge’s application of the “touch base” privilege test to a German company’s application to conduct discovery of a U.S. private equity company’s...more
The common-interest doctrine sometimes protects as privileged communications between separately represented clients sharing an identical legal interest in ongoing or anticipated litigation. It differs dramatically from a...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
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
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
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
When negotiating their respective privilege claims, litigants sometimes face the temptation to agree among themselves that producing some arguably protected withheld documents will not trigger a subject matter waiver...more