The Southern District of New York (Magistrate Judge Gorenstein) issued an extensive privilege decision with several favorable analyses in a high-profile corporate sexual harassment case. In Parneros v. Barnes & Noble, Inc.,...more
As a recent Privilege Point noted, the attorney-client privilege can protect employee-to-employee communications: (1) if the employees are gathering facts or formulating questions to inform a lawyer or pose those questions to...more
Fortunately for litigants hoping to successfully assert, and not lose, privilege protection, common law and federal rule developments now generally limit subject matter waivers to a litigant's intentional reliance on...more
The attorney-client privilege started in Roman times, developed in England, and came to America with the English common law. Each state has adopted attorney-client privilege protection – but memorializes it in different...more
Unlike the attorney-client privilege, the work product doctrine comes in two varieties. Fact work product protection can cover purely factual documents, photographs, test results, etc. Opinion work product can protect...more
Deceased individuals' privilege protection survives their death, and bankrupt companies can also claim privilege protection under certain circumstances (although it may be owned by a trustee). But as the court in Affiniti...more
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
Lawyers should always consider both attorney-client privilege and work product doctrine protections for their clients' and their own documents and communications. The former affords absolute protection, but is fragile. The...more
The attorney-client privilege protects communications, not facts, past actions or future intended actions. But it can be difficult to draw the line between such non-protected facts or acts and protected motivations, thought...more
Every court agrees that litigants asserting their attorney-client privilege or work product protection must prove those protections' applicability. But as in so many other areas, courts recognize differences in determining...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
Delaware law very generously provides for corporate directors' access to privileged communications. However, in some situations directors lose their access attempts.
In Gilmore v. Turvo, Inc., C.A. No. 2019-0472-JRS, 2019...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
Although appellate courts understandably do not like piecemeal reviews before a final judgment, privilege issues seem particularly well-suited for interlocutory appeals. Once a court orders production of protected documents...more
Every court agrees that when a lawyer represents a corporation, the entity owns the privilege as the "client." But that analysis can be difficult in closely held corporations.
In Morristown Heart Consultants, PLLC v....more
Corporations can expressly waive their privilege when responsible loyal employees disclose privileged communications, and they can impliedly waive their privilege by relying on a lawyer's advice to gain some advantage in...more
Last week's Privilege Point described a decision holding that a litigant waived its work product protection by disclosing work product to a third party witness who had not agreed to keep it confidential. City of Almaty v....more
All or nearly all courts agree that disclosing work product to a non-adverse third party does not waive that robust protection – in contrast to the fragile attorney-client privilege. But what if that third party discloses the...more
Last week's Privilege Point described a Northern District of Illinois decision which applied the favorable "one of the significant purposes" privilege standard for assessing mixed business-legal communications, instead of the...more
Most courts apply a "primary " or "predominant" purpose standard when assessing privilege protection for communications serving both business and legal purposes. While on the D.C. Circuit, Judge Kavanaugh articulated a much...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
Privilege holders can waive their privilege protection without disclosing any privileged communications — for instance, by relying on an "advice of counsel" defense. But all or most courts wisely reject adversaries' attempts...more
Under certain conditions, the common interest doctrine can avoid what would otherwise be a waiver when separately represented clients share privileged communications to support a common legal strategy. As tempting as it would...more
Clients and their lawyers often work with consultants. If such consultants are found to be outside privilege protection: (1) communications with them do not deserve privilege protection; (2) their participation in otherwise...more
The attorney-client privilege protects clients' communication of facts to their lawyers and requests for legal advice about those facts. Not surprisingly, busy courts dealing with the mounting volume of withheld documents...more