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
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
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
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
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
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
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
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
Disclosing privileged communications to gain some advantage can sometimes trigger a subject matter waiver, requiring disclosure of additional related communications. Courts agree that fairness dictates the existence and scope...more
Under the common interest doctrine, separately represented clients can avoid the normal waiver implications of disclosing privileged communications to third parties. Unfortunately, some courts do not recognize the doctrine,...more
Disclosing privileged communications to third parties normally waives that fragile protection. But even without disclosure, clients relying on privileged communications or placing such communications "at issue" can also...more
Because historical facts do not deserve privilege protection, disclosing those facts does not trigger a privilege waiver. Thus, disclosing historical facts to the government should not waive the disclosing client's privilege...more
Clients' agents/consultants are nearly always outside privilege protection. This generally means that their documents do not deserve privilege protection; their presence during otherwise privileged communications aborts that...more
Because it is absolute and can hide important facts from easy discovery, the attorney-client privilege is hard to create, narrow, and fragile. Among other things, even friendly third parties' presence can abort privilege...more
Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v....more
Clients describing their past or intended future actions obviously do not waive their privilege protection – even if the clients are following their lawyers' advice. But clients voluntarily disclosing privileged...more
Nearly every case focusing on inadvertently disclosed privileged communications (during document productions or at other times) focuses on the privilege waiver implications. However, the stakes can be much higher....more
Last week's Privilege Point described the normal broad subject matter waiver triggered by litigants' explicit defensive reliance on legal advice. Litigants' implicit reliance can have the same effect.
In Maar v. Beall's,...more
All lawyers know that pleading an "advice of counsel" affirmative defense waives privilege protection. But lawyers must remember such waivers' breadth.
In United States v. Trotter, defendant Trotter announced his intent...more
Corporations face two possible impediments when claiming privilege protection for purely internal communications. First, some courts see widespread intra-corporate circulation as tending to show that the communications...more
One might think that a corporation or government entity would always trigger a subject matter privilege waiver by disclosing an internal investigation report. But subject matter waiver risks have been receding.
In Hawa...more
Although corporations' in-house and outside lawyers should scrupulously avoid accidentally creating an attorney-client relationship with employees, they can also rely on what amounts to a favorable default rule — articulated...more
With litigants' increasing reliance on litigation funders, courts have had to wrestle with privilege and work product issues, including whether litigants and their litigation funders share a "common interest" allowing the...more