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
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
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
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
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
Under general common law doctrine and Federal Rule of Evidence 502, courts normally hold that disclosing privileged communications only triggers a subject matter waiver if the disclosure seeks some advantage in court. But...more
Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a "sword" while simultaneously asserting the privilege as a...more
Most other countries do not permit the type of intrusive discovery U.S. companies face. But occasionally discovery in U.S. litigation seeks communications to or from the U.S., or even purely overseas communications --...more
One widespread misperception about attorney-client privilege and work product doctrine assertions is that the Federal Rules require a privilege log. As one court bluntly put it, "no where in Fed. R. Civ. Pro. 26(b)(5) is it...more
Not surprisingly, attorney-client privilege protection evaporates once a client and her lawyer agree that a document can be disclosed to outsiders -- even before it is disclosed. But some courts have inexplicably applied this...more
Attorney-client privilege protection started in Roman times, evolved in the common law, developed organically in each jurisdiction, and differs somewhat from state to state. But ironically, there is a greater variation in...more
Based on the justifiable presumption that depositions in which a lawyer deposes the other side’s lawyer would inevitably cause hard feelings (or worse), many courts require lawyers seeking to take the adversary’s lawyer’s...more
It should go without saying that sending pre-existing historical documents to a lawyer does not automatically immunize them from discovery as privileged. If it did, clients could box up all of their files and send them to a...more
The work product doctrine requires: (1) litigation; (2) anticipation; and (3) motivation. And even though the work product doctrine rests on a single sentence in the Federal Rules, federal courts ironically take more varied...more
Courts assessing the waiver implications of a litigant accidentally producing privileged documents normally look at several factors: (1) Did the producing party adopt a reasonable protocol for identifying and withholding...more
The attorney-client privilege and the work product doctrine differ dramatically in their age, source, scope, strength and fragility. Lawyers must always consider both. But because clients, lawyers, and even courts usually use...more
On its face, Fed. R. Civ. P. 26(b)(3)(A)’s work product doctrine only protects “documents and tangible things.” But do courts apply the work product doctrine in that limited fashion?
In Kleiman v. Wright, No....more
With pandemic-triggered litigation predicted to increase, corporations’ lawyers undoubtedly will address the possible duty to impose “litigation holds,” which direct corporate employees to preserve pertinent documents....more
All courts agree that litigants asserting attorney-client privilege or work product protection must establish the protection's applicability. But courts take different positions on whether any presumptions guide their...more
3/27/2020
/ Adverse Inference Instructions ,
Attorney-Client Privilege ,
Bad Faith ,
Cost-Shifting ,
Discovery ,
Duty to Preserve ,
Electronically Stored Information ,
Motion to Compel ,
Privilege Waivers ,
Sanctions ,
Scope of Discovery Requests ,
State and Local Government ,
Work-Product Doctrine
The Southern District of New York (Magistrate Judge Gorenstein) issued an extensive privilege decision with several favorable analyses in a high-profile corporate sexual harassment case. In Parneros v. Barnes & Noble, Inc.,...more