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
Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and...more
Lawyers familiar with abstract and even case-specific substantive privilege and work product-related principles must keep something else in mind. Many if not most courts have also adopted local rules that might affect the...more
The attorney-client privilege protects confidential communications between clients and their lawyers. Corporate client consultants may also deserve this protection if they act as the "functional equivalent" of corporate...more
Litigants obviously must identify all witnesses with potentially relevant knowledge about litigated issues. But can litigants claim work product protection for the identity of the subset of those witnesses that their lawyers...more
Electronic communications exacerbate judges' already difficult task of determining if employees copying lawyers on their communications with fellow employees are implicitly seeking legal advice – and thus deserve privilege...more
Last week's Privilege Point highlighted the difficulty of establishing that client agents/consultants are inside privilege protection. In contrast, lawyer’s agents/consultants can deserve privilege protection – but only if...more
Content is king in the privilege world, in contrast to the work product protection – which largely depends on context. For this reason, the privilege rarely if ever protects the facts and circumstances of (1) the...more
In nearly every situation, courts understandably refuse to allow litigants to use any privileged communications at trial that they withheld from discovery. Is there any situation in which litigants can avoid such a...more
Plaintiffs suing document-laden corporate defendants often try to make privilege log mistakes into a destructive side show.
In Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D....more
Lawyers representing corporations should in nearly every circumstance provide an Upjohn warning to avoid accidentally creating attorney-client relationships with company employees. Upjohn v. United States, 449 US 383 (1981)....more
Some lawyers deliberately or inadvertently let their licenses lapse, but still give advice to clients and prepare related documents. What privilege implications come from such a scenario?
In John Ernst Lucken...more
In a 4-3 vote, the Washington Supreme Court held that an institution's lawyers' communications with former employees did not deserve privilege protection. Newman v. Highland Sch. Dist., No. 90194-5, 2016 Wash. LEXIS 1135...more
An intentional express disclosure of privileged communications normally triggers an irreversible waiver, although the disclosure might or might not cause a subject matter waiver. The waiver implications of implied waivers...more
Courts sometimes wrestle with common interest agreements' discoverability.
In GeoMetWatch Corp. v. Hall, the court noted that "[c]ases that have addressed whether joint-defense agreements are discoverable or protected...more
An "at issue" waiver can occur without the client disclosing, relying on or even referring to privileged communications. Instead, such a waiver can result from the client's affirmative assertion of some position that...more
Many previous Privilege Points have addressed the corporate-friendly "functional equivalent" doctrine, under which non-employees who essentially act as employees are inside privilege protection. An equal number of Privilege...more
The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege. This distinction affects the impact of...more
The attorney-client privilege normally does not protect pre-existing historical documents, even if clients convey those to their lawyers. In the work product context, lawyers' selection of certain intrinsically unprotected...more
The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log,...more