Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the...more
Historical facts never deserve privilege protection. Something either happened or it didn't happen. But some litigants erroneously point to this axiom in seeking to discover factual portions of clients' privileged...more
Because privilege logs generally require withholding litigants to identify emails' senders and recipients, the absence of a lawyer's name often triggers discovery skirmishes. Not surprisingly, the withholding litigants'...more
An "at issue" waiver can occur without the client disclosing, relying on or even referring to privileged communications. Instead, such a waiver can result from the client's affirmative assertion of some position that...more
Many courts extend opinion work product protection to a lawyer's selection of intrinsically unprotected documents used to prepare a deponent, the identity of witnesses important enough to interview, etc. This approach is...more
Although the attorney-client privilege does not protect historical facts, any facts "created" during or in anticipation of litigation can present a difficult analysis.
In Gilead Sciences, Inc. v. Merck & Co., Case No....more
Last week's Privilege Point addressed the decreasing subject matter waiver risk of corporations' pretrial disclosure of arguably privileged communications, or even their passing reference to legal advice in pretrial filings....more
Under the Federal Rules and parallel state rules, litigants may use what are called "contention interrogatories" to explore adversaries' factual support for their legal contentions. Courts normally regulate the timing of...more
The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log,...more