Last week’s Privilege Point addressed an Illinois federal court’s holding that the attorney-client privilege protected a company executive’s relaying of legal advice to another executive, as well as the former’s email about...more
A frequent privilege issue arising in federal and state courts involves communications that do not come from or go to a lawyer. Such communications may clearly deserve privilege protection, under certain limited...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
The attorney-client privilege rests on a grand societal purpose — encouraging clients to safely share with their lawyers all the pertinent facts, so lawyers can guide them in a lawful direction. This is the same societal...more
Attorney-client privilege protection normally involves a client and a lawyer. Must the “lawyer” side of that dialogue always be a fully authorized lawyer?...more
Nearly every court protects as privileged only those communications or documents whose “primary purpose” was for the clients to request legal advice or the lawyers to provide the requested legal advice. A few courts have...more
All ethics and privilege issues in the corporate context start with a basic question -- who is the lawyer’s client? The default answer is that lawyers represent the incorporeal entity, acting through its “duly authorized”...more
Last week’s Privilege Point described a case applying the generally-accepted view that accountants assisting clients rather than the clients’ lawyers are outside privilege protection -- so copying them on privileged emails...more
Accountants can help clients and clients’ lawyers – in ordinary business transactions, in explaining complex issues to lawyers who are giving legal advice, and in litigation. These differing roles at different times can...more
Ironically, federal courts interpreting a single sentence from a federal rule take dramatically differing approaches to the work product doctrine. And a handful of states have not adopted that federal work product rule....more
Historical facts do not deserve privilege protection – something either happened or it didn't happen. The attorney-client privilege protects communications about those facts. But surprisingly few courts have dealt with what...more
Last week's Privilege Point described a court's finding that the work product doctrine protected a corporation's investigation of a gender and age discrimination claim -- because the investigation was neither "routine nor...more
The work product doctrine can protect documents primarily motivated by a corporation's involvement in or reasonable anticipation of litigation. Documents created in the corporation's ordinary course of business normally will...more
The common interest doctrine can sometimes avoid the normal waiver implications of separately represented clients sharing privileged communications -- if they do so in pursuit of a common legal strategy. Some states do not...more
Last week's Privilege Point discussed Illinois federal court and Illinois state court decisions issued just ten days apart -- disagreeing about whether litigants asserting attorney-client privilege or work product protection...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
Last week's Privilege Point described an Alabama Supreme Court decision applying a narrow "at issue" waiver approach. The "at issue" doctrine can trigger a privilege waiver even if the privilege's owner does not disclose,...more
The "at issue" doctrine can strip away privilege when a litigant relies on her ignorance, knowledge, action, inaction, etc. in an effort to gain some litigation advantage – if in fairness the adversary should be given access...more
When former employees turn on their former employer, they sometimes seek access (through discovery) of privileged communications that were in their possession when they worked at the company. At first blush, that might seem...more
Many if not most corporate and other institutions have established whistleblower "hotlines" or otherwise encouraged whistleblowers to come forward with complaints. Depending on the complaint, work product protection...more
Last week's Privilege Point described a court's somewhat surprisingly narrow view of when counterparties reasonably anticipate litigation. Lawson v. Spirit AeroSystems, Inc., Case No. 18-1100-EFM-ADM, 2019 U.S. Dist. LEXIS...more
Work product protection depends on the creator's involvement in or anticipation of litigation. Courts generally look at what might be called "trigger events" – events that satisfy the work product doctrine's "anticipation"...more
The last three Privilege Points described six favorable analyses from a Southern District of New York decision (Judge Gorenstein) assessing defendant Barnes & Noble's privilege assertions covering its investigation and later...more
The last two Privilege Points described four favorable analyses from a Southern District of New York decision (Judge Gorenstein) assessing defendant Barnes & Noble’s privilege assertions covering its investigation and later...more
Last week’s Privilege Point described two favorable analyses from a Southern District of New York decision (Judge Gorenstein) assessing defendant Barnes & Noble’s privilege assertions covering its investigation and later...more