Latest Publications


The Trouble with Drafts: Part II

Last week's Privilege Point discussed a decision holding that the privilege did not protect in-progress drafts of documents whose final version will be disclosed to third parties. In re Sygenta AG MIR 162 Corn Litig., MDL...more

The Trouble with Drafts: Part I

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final...more

Drawing the Line Between Waiver and Non-Waiver: Part II

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

Drawing the Line Between Waiver and Non-Waiver: Part I

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

Court Addresses Waiver Implications of a Target's Due Diligence Disclosures to its Ultimate Acquirer

Acquiring companies predictably seek information from their acquisition targets, such as descriptions of the targets' ongoing litigation. During their due diligence, the acquirer may demand the target's documents or...more

Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part II

Last week's Privilege Point explained that Cadwalader Wickersham & Taft's client Washington Metropolitan Transit Authority (WMATA) lost a work product claim for 51 witness interviews the firm prepared during its internal...more

Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part I

Cadwalader Wickersham & Taft lawyers conducted an internal corporate investigation into allegations of self-dealing at Washington Metropolitan Area Transit Authority (WMATA). When a private plaintiff sued WMATA and several...more

Can a Litigant Ever Use at Trial Privileged Documents Withheld from Discovery?

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

Can the Privilege Protect Communications in a Public Place?

If clients and their lawyers engage in otherwise privileged communications in the presence of third parties, the privilege rarely if ever protects the communications. But what if the communications occur in a public place...more

In-House Lawyers Should Avoid Being Employment Decision-Makers

In-house lawyers obviously can play an important role when their corporate clients decide whether to terminate employees. But they should avoid being the ultimate decision-makers, or playing a business role in any termination...more

Reading Inadvertently Disclosed Privileged Documents Risks Disqualification

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

What Type of "Common Interest" Satisfies the Common Interest Doctrine?

Some lawyers incorrectly assume they can contractually assure that disclosing privileged communications to third parties does not waive the privilege – by entering into a "common interest" agreement. But nearly every month...more

Court Offers Rare Good News and a Helpful Hint about Effective Privilege Logs

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

Who Can Waive Corporations' Privilege Protection?

In Upjohn states, corporations' privilege can protect (1) communications in which corporate employees at any hierarchical level give the company's lawyer facts she needs, and (2) such lawyer's advice given to any employees...more

Court Affirms the Comforting Bevill Backstop

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

Privilege Implications of an Explicit or Implicit "Advice of Counsel" Defense: Part II

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

Privilege Implications of an Explicit or Implicit "Advice of Counsel" Defense: Part I

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

Court Explains Who Can Make Privilege Rulings in Administrative Law Contexts

Among administrative law judges, magistrate judges, and Article III judges involved in administrative issues, who can make privilege calls? In NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138...more

5/4/2017  /  ALJ , NLRB , Privilege Logs

Can Inactive Lawyers Claim Privilege Protection for their Communications?

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

Can the Attorney-Client Privilege Protect Corporate Executives' Notes of Their Conversations with a Lawyer?

The attorney-client privilege protects communications between lawyers and their clients, primarily motivated by the latter's need for legal advice. Some corporations' adversaries challenge privilege protection for withheld...more

Illogical and Frightening "Need to Know" Doctrine

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

Texas State Court Adopts an Expansive Privilege Standard

In 2014, the D.C. Circuit Court broke new ground by holding that attorney-client privilege protection could extend to communications when "legal advice was one of the significant purposes" for the communication -- even if it...more

Circuit Court Affirms Key Difference Between Privilege and Work Product Protections

Disclosing privileged communications to third parties generally waives that fragile protection, even if the third parties are friendly. In contrast, disclosing work product to third parties waives that more robust protection...more

Court Uses an "In Camera" Review for Purposes Other than Privilege or Work Product Assessment

Adversaries challenging litigants' privilege or work product assertions necessarily "shadow box" with the litigants -- because the adversaries cannot see the withheld documents. Courts often review such withheld documents in...more

Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large "Town Hall" Meetings

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work...more

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