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
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