Essentially all courts apply a "primary purpose" test when assessing privilege protection. But while on the D.C. Circuit Court, Judge Kavannaugh articulated a far more corporate-friendly standard in analyzing an internal...more
Last week's Privilege Point described a court's finding that the work product doctrine protected a corporation's investigation of a gender and age discrimination claim -- because the investigation was neither "routine nor...more
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
Corporations’ investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by...more
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 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
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
The work product doctrine only protects internal corporate investigations initiated by the corporation's anticipation of litigation. Thus, the protection normally does not extend to investigations required by some external or...more
Companies' lawyers frequently interview third-party witnesses. Companies' adversaries often seek the resulting interview transcripts, notes, summaries, reports, statements or affidavits — which can generate disputes over fact...more
Last week's Privilege Point discussed a court's rejection of a work product claim for a routine post-accident incident report. That defendant did not establish that the report was different from reports following accidents...more
Companies frequently investigate accidents and other unfortunate incidents. If they do so in the ordinary course of their business, the work product doctrine normally does not apply. How do companies establish that a...more
Last week's Privilege Point described two cases rejecting defendant's protection claims for internal investigations. In each case, the court held that the defendant undertook its investigation in the ordinary course of its...more
Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both...more
Last week's Privilege Point discussed the D.C. Circuit's refusal to order disclosure of privileged communications a Rule 30(b)(6) deponent reviewed before testifying. In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S....more
In 2014, the D.C. Circuit adopted a very favorable privilege standard — protecting communications if "one significant . . . purpose[]" was corporations' need for legal advice, even if that was not the communications' "primary...more
Some companies begin internal investigations or audits for business reasons, but later try to cloak related communications and documents with work product privilege protection. ...more