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
An attorney-client privilege protection owner may waive that protection: (1) expressly, by disclosing privileged communications, or (2) impliedly, by relying on the existence of such privileged communications to gain some...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It should go without saying that sending pre-existing historical documents to a lawyer does not automatically immunize them from discovery as privileged.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
The common interest doctrine can allow separately represented clients to avoid the normal privilege waiver implications of sharing privileged communications. But the doctrine is unpredictable and therefore risky....more
Corporate clients and their lawyers must look ahead to assess the privilege implications of their litigation positions.
In Global Textile Alliance, Inc. v. TDI Worldwide, LLC, 847 S.E.2d 30, 33 (N.C. 2020), defendants...more
Courts analyzing privilege assertions for email threads often look for some indicia of that protection on the face of those emails.
In Anderson v. Trustees of Dartmouth College, Case No. 19-cv-109-SM, 2020 U.S. LEXIS...more
Although the Federal Rules do not explicitly require privilege logs, every court seems to do so. Most courts require such logs to include predictable data, but some courts require logs to provide data that seem largely...more
One of the most dangerous misperceptions among corporate clients is that disclosing privileged communications to such friendly outsiders as public relations consultants does not waive privilege protection as long as there is...more
The common interest doctrine sometimes allows separately represented parties to avoid the normal waiver implications of sharing privileged communications -- but some courts do not recognize the doctrine, and other courts take...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
Several previous Privilege Points have summarized often-complicated judicial holdings on who owns privilege protection after corporate stock or asset transactions. It should come as no surprise that the privilege ownership...more
Last week’s Privilege Point described a husband’s probable loss of attorney-client privilege protection when using his employer’s email system for communications with his personal lawyer. Because he had only raised the...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
Federal common law governs federal question case privilege issues. Federal courts sitting in diversity should look to their host jurisdiction’s choice of law rules when deciding which state’s privilege law applies. But what...more
As if waiving privilege protection (either intentionally or inadvertently) was not frightening enough, the sinister subject matter waiver doctrine might force disclosure of additional privileged documents on the same topic....more
Last week’s Privilege Point described a Delaware Chancery Court’s analysis of pre-closing privileged transactional documents in: (1) a stock sale (in which the statutory “default” position is that the buyer acquires those...more
Corporate stock and asset sale transactions necessarily implicate ownership of: (1) ordinary day-to-day privileged communications about environmental matters, labor matters, etc., and (2) privileged communications about the...more
Many courts have dealt with corporate and other organizational entities’ constituents’ ability to waive those entities’ privilege protection. In the corporate context, most courts hold that any constituent (even middle...more
The attorney-client privilege protects communications between clients and their lawyers, not historical facts. Some courts misunderstand the real-world application of this basic principle, but other courts get it right....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
Lawyers should always clearly and consistently identify their “client” if there is any question about whom they represent – because every ethical duty and privilege protection ownership flows from that relationship. Lawyers...more
Last week’s Privilege Point described a favorable Delaware state court decision finding that a post-reorganization trust and its largest stakeholder could rely on the common interest doctrine to protect their communications –...more
The common interest doctrine occasionally allows separately represented clients to share privileged communications without waiving that fragile protection. Nearly all courts require that the common interest doctrine...more
Companies dealing with the pandemic (and finding themselves in pandemic-triggered future litigation) may seek public relations consultants’ assistance. Companies and their lawyers should remember that most courts reject...more