Unlike the fragile attorney-client privilege that can be waived even upon disclosure to family members, the work product doctrine is much more robust. A recurring corporate scenario confirms this important distinction....more
Internal human resources investigations often generate numerous privilege and waiver issues. One recent case assessed a common scenario — raising a scary possibility, but then coming to the right conclusion....more
Last week’s Privilege Point described S.D.N.Y. Judge Lewis Liman’s conclusion that a company waived privilege protection for legal advice it received from its counsel by disclosing the advice to its financial advisor China...more
Companies that retain financial advisors to assist in transactions necessarily share intimate confidential corporate information with them. But can they safely share legal advice with such advisors without risking a privilege...more
The common interest doctrine can sometimes protect as privileged communications between separately represented clients. But litigants seeking the doctrine’s protection face many hurdles and often fail....more
The differing waiver rules governing the fragile attorney-client privilege and the robust work product doctrine protection predictably create stark differences when family members communicate with each other. This type of...more
Although lawyers understandably focus mostly on the privilege that they enjoy when communicating with their clients, other professionals (psychiatrists, clergy) also have privilege protection of one degree or another. Does...more
All lawyers worry that waiving privilege protection for some communications might trigger a damaging subject matter waiver requiring disclosure of related communications. Such a subject matter waiver risk normally does not...more
Starting about 50 years ago in the case of Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), some courts recognized a broad “at issue” waiver that could strip away privilege without the holder’s disclosure of or even reference...more
Last week’s Privilege Point described a Nevada federal court ruling that a lawyer’s testimony about non-privileged matters did not waive that fragile protection. Snow Covered Capital, LLC v. v. Fonfa, Case No....more
For obvious reasons, lawyers rarely testify at trial. The ethics rules normally prevent a lawyer from trying a case if she is “likely to be a necessary witness.” ABA Model Rule 3.7. And any lawyer’s testimony presents...more
Separately represented clients sometimes may avoid the normal waiver implications of sharing privileged communications by entering into a common interest agreement — but such contractual arrangements frequently do not work....more
Under the widely recognized common interest doctrine, separately represented clients may sometimes contractually avoid the otherwise inevitable privilege waiver when sharing privileged communications. As explained previously...more
Under the common interest doctrine, separately represented clients may sometimes contractually avoid the normal waiver impact of disclosing privileged communications to each other. But federal and state courts take widely...more
Last week's Privilege Point described a court's refreshingly correct acknowledgment that disclosing work product to friendly third parties does not waive that robust protection — in contrast to the more fragile privilege...more
Courts take differing positions on the "client's" identity in the government setting. Among other things, such differing positions might affect the waiver implications of one government agency disclosing its privileged...more
Under some arrangements, major shareholders appoint directors to companies those shareholders partially own. Does such a company waive its privilege by disclosing its privileged documents to a designating shareholder's...more
The common interest doctrine sometimes prevents what would be a waiver when separately represented clients disclose privileged communications to each other. But the doctrine normally requires an identical legal interest, not...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
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
The unpredictable "at issue" waiver doctrine can strip away privilege protection without any disclosure of, or explicit reliance on, privileged communications. But state courts and even federal courts take widely varying...more
The frighteningly unpredictable "at issue" waiver doctrine can strip away attorney-client privilege protection when the client seeks some legal advantage by putting "at issue" its knowledge, ignorance, conduct, etc. This type...more
Under general common law doctrine and Federal Rule of Evidence 502, courts normally hold that disclosing privileged communications only triggers a subject matter waiver if the disclosure seeks some advantage in court. But...more
Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a "sword" while simultaneously asserting the privilege as a...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