Last week's Privilege Point described a court's understandable decision not to address an attorney-client privilege claim when a defendant had successfully claimed work product protection that the plaintiff could not...more
Given privilege logs' listings of withheld documents' authors and recipients, it should come as no surprise that adversaries frequently challenge privilege protection for documents not sent by or to companies' lawyers. In...more
Unlike the absolute attorney-client privilege, adversaries can obtain a litigant's work product if they have "substantial need" for the work product, and cannot obtain its "substantial equivalent" without "undue hardship."...more
Many lawyers fear that disclosing attorney-client privileged communications might trigger a subject matter waiver – requiring disclosure of additional related privileged communications. Fortunately, that risk has diminished...more
The work product doctrine sometimes involves clients' primarily business motivation "morphing" into litigation-related motivation – thus entitling the clients to work product protection....more
Although the federal and most if not all state rules do not explicitly require privilege logs, all or nearly all courts demand that parties withholding protected documents describe them with specificity in a log. And all...more
The attorney-client privilege's and the work product doctrine's holders must assert those protections as early as possible in the discovery process. But they also must remember the ramifications of such assertions....more
The work product doctrine can protect documents primarily motivated by litigation or anticipated litigation, rather than prepared in the ordinary course of business or motivated by some other non-litigation purpose. But...more
Last week's Privilege Point discussed a New York federal court's and a New York state court's opposite positions on a key work product issue.
Courts also disagree about whether the work product doctrine can extend to...more
Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection?
In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063...more
Most courts recognize a doctrine first articulated in Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), which protects as opinion work product lawyers' selection of intrinsically unprotected documents, witnesses, etc. – if that...more
When a privilege owner shares protected documents with third parties without waiving the protections, who must or can protect those documents from adversaries' discovery? Can the third parties who possess the protected...more
Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and...more
Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and...more
Corporations claiming attorney-client privilege protection for their emails must prove that the emails were primarily motivated by their need for legal advice. Simply adding lawyers' names as direct or copy recipients does...more
Corporations creating documents in the "ordinary course of business" normally cannot claim work product protection, because they were not motivated by anticipated litigation. But the work product doctrine actually requires a...more
Some courts seem to ignore the plain language of the federal work product rule or state parallels by requiring lawyers' involvement.
In Rafferty v. KeyPoint Government Solutions, Inc., the court correctly quoted the...more
Lawyers familiar with abstract and even case-specific substantive privilege and work product-related principles must keep something else in mind. Many if not most courts have also adopted local rules that might affect the...more
Nearly every court protects as work product personal injury defense lawyers' secret surveillance videotapes of plaintiffs engaging in activities that belie their injury claims. Not surprisingly, those courts normally require...more
In the corporate world, the attorney-client privilege does not protect communications to or from corporate lawyers acting in a business role. An analogous principle can deprive governments of their attorney-client privilege...more
The last two Privilege Points have addressed courts' troubling disagreements about the meaning of two federal rule sentences articulating the important work product doctrine protection. Surprisingly, courts cannot even agree...more
Wise lawyers always consider both attorney-client privilege and work product protection when withholding a document or testimony. Privilege protection is absolute but fragile. Work product protection is qualified but...more
Last week's Privilege Point discussed a decision holding that the privilege did not protect in-progress drafts of documents whose final version will be disclosed to third parties. In re Sygenta AG MIR 162 Corn Litig., MDL...more
In nearly every situation, courts understandably refuse to allow litigants to use any privileged communications at trial that they withheld from discovery. Is there any situation in which litigants can avoid such a...more
The work product doctrine involves many more varied and practical aspects than the attorney-client privilege. Among other things, heightened opinion work product protection can sometimes protect lawyers' selection of...more