The attorney-client privilege provides absolute protection, but is very fragile. Work product doctrine protection does not provide absolute protection (fact work product protection can be overcome), but is robust. Of course,...more
Not surprisingly, Delaware state courts frequently address privilege issues triggered by corporate board disputes. Those often guide other states' courts' analyses of similar scenarios....more
Under old English trust law, courts gave trust beneficiaries access to otherwise privileged communications between the trust fiduciary and its lawyer advising him or her on trust administration matters. The main case bringing...more
Just about the time that extensive pre-trial discovery started, the Supreme Court recognized a new evidentiary protection – extending beyond the attorney-client privilege, and motivated by the understandable requirement that...more
Litigants and even some lawyers occasionally forget how courts address attorney-client privilege (and sometimes work product protection) assertions. Privilege protection focuses primarily on a communication's content — ...more
The common interest doctrine can sometimes protect communications between separately represented clients that would otherwise trigger a waiver – if those clients share an identical (or nearly identical, in some courts) legal...more
Lawyers should always consider every possible evidentiary protection their clients might legitimately assert. To put it in basic terms, the ancient attorney-client privilege has the advantage of providing absolute protection...more
Attorney-client privilege protection focuses on communications' content, but those communications' context can shed light on their primary purpose, possible inapplicability because of third parties' presence, etc. So...more
Most courts hold that a litigant does not automatically waive privilege protection by listing a former lawyer as a witness – because that lawyer might testify about non-privileged facts. But not surprisingly, such a step can...more
Some court rules explicitly prohibit communications between a deposition witness and her lawyer during a deposition break, except to discuss whether to assert a privilege objection to a pending question. See, e.g., Local Civ....more
In all cases, determining what privilege law applies should be near the top of every lawyer's to-do list. In federal question cases, federal courts apply federal privilege common law (essentially generic textbook privilege...more
Actor Robert De Niro's feud with a former production company manager has generated several opinions by Southern District of New York Magistrate Judge Katharine Parker.
In Robinson v. De Niro, No. 19-CV-9156 (LJL) (KHP),...more
Last week's Privilege Point addressed a D.C. federal court's application of the Illinois "control group" privilege standard in a transferred case. In South Capitol Bridgebuilders v. Lexington Insurance Co., Case No....more
All but a handful of states apply what is called the Upjohn privilege standard – under which the attorney-client privilege can protect a corporation's lawyer's communication with any corporate employee who has information the...more
Essentially all courts apply a "primary purpose" test when assessing privilege protection. But while on the D.C. Circuit Court, Judge Kavannaugh articulated a far more corporate-friendly standard in analyzing an internal...more
Most if not all United States courts apply what is called the "touch base" test when assessing privilege claims for foreign communications (to or from the U.S., or even totally overseas). That standard normally results in...more
Last week's Privilege Point described a court's careful delineation between the logistics (time, place, etc.) of a privileged communication and such communications' explicit or implicit privileged content. The stakes...more
In all or nearly all circumstances, historical facts do not deserve privilege protection – something either happened or it didn't happen. The privilege can protect communications about those historical facts. To make matters...more
Last week's Privilege Point described a New York state court's unsurprising articulation of the nearly universally-applied "primary purpose" standard, and listing of the usual type of documents that fail to satisfy that...more
Every lawyer knows that attorney-client privilege protection depends on a communication’s "primary" or "predominant" purpose. A handful of courts have been inching toward a more expansive view (which will be the subject of a...more
Because privilege logs necessarily contain logistical but not content-based information about withheld documents, adversaries sometimes challenge privilege protection because no lawyer sent or received a withheld document....more
Lawyers sometimes represent institutions governed by multimember boards. Those members frequently receive privileged communications from the institution's lawyers. Under the majority rule, an institution's upper and even...more
The widely misunderstood common interest doctrine occasionally allows separately represented clients to avoid the normal disastrous waiver implications of sharing privileged communications. Among other requirements, most...more
Disclosing attorney-client privileged communications can trigger a subject matter waiver if made in a judicial setting to gain some advantage. This subject matter waiver danger reflects the classic "sword-shield" analogy with...more
Based on two United States Supreme Court decisions, defendants sometimes may assert what is known as a "Faragher-Ellerth" affirmative defense to discrimination and harassment claims. To successfully assert that affirmative...more