Attorney-Client Privilege

News & Analysis as of

Legal Alert: The Tax Court Approves the Use of Predictive Coding

On September 17, the U.S. Tax Court, in Dynamo Holdings LP v. Commissioner, 143 T.C. No. 9 (Sept. 17, 2014), held that a taxpayer could use predictive coding, over the objection of the Internal Revenue Service (IRS), to...more

Iowa Decision Underscores the Danger of Sharing Privileged Material with Reinsurers

Last month, a federal court in Iowa handed down a decision holding that neither work product nor attorney-client nor the common interest doctrine shield legal advice and analysis from production in discovery once it has been...more

New Jersey Supreme Court Recognizes Broad Common Interest Privilege

On July 21, 2014, the New Jersey Supreme Court issued its opinion in O'Boyle v. Borough of Longport, 94 A.3d 299 (N.J. 2014), adopting a broad application of the common interest doctrine for communications covered by both the...more

Accountant and Attorney Liability Newsbrief - Fall 2014

In This Issue: - Attorneys’ E-mails to Client’s Independent Contractor May Be Protected by Attorney-Client Privilege - New York Appeals Court Decision Allows Predecessor Counsel to Place Equal Blame on Successor...more

D.C. Circuit Court Expands Privilege in Internal Corporate Investigations

There are numerous federal regulations requiring investigations into possible fraud, related to both mandatory disclosure and simply performing some fact gathering while seeking legal advice. The U.S. Court of Appeals for the...more

What Does Delaware’s Wal-Mart Decision Mean for Attorney-Client Privilege and Internal Investigations?

The Delaware Supreme Court recently came to a decision in Wal-Mart Stores Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW to uphold the order given by the Delaware Court of Chancery to require Wal-Mart to give the...more

When Does an Insurance Co. Waive Atty-Client Privilege?

If an insurance company alleges it lawfully denied a claim, is that an implied waiver of the attorney-client privilege as to its consultation with coverage counsel? When a policyholder sues an insurer for bad faith,...more

Loose Lips Sink Ships: The Limits of the Attorney-Client Privilege and the Dangers of “Public” Reliance Upon Your Attorney’s...

Public agencies often secure opinions from legal counsel to guide their actions. However, these agencies should be aware that what they say in public about the advice given may jeopardize the confidentiality of the legal...more

Delaware Supreme Court Rules That Privileged Documents Must Be Produced To Shareholders Investigating Corporate Misconduct

The Delaware Supreme Court recently held that, in certain circumstances, shareholders may be able to obtain access to privileged, internal documents in order to investigate potential breaches of fiduciary duty. In Wal-Mart...more

Court Rejects Claims Of Privilege, Work Product, And The Common Interest Doctrine To Reinsurance Information

In a discovery dispute between insurer Progressive and the FDIC, as receiver of the insured bank, a federal district court has rejected all claims of attorney-client privilege and work product protection to reinsurance...more

Protecting Internal Investigations from Disclosure: Suggested Best Practices

A recent case out of the D.C. Circuit highlights some best practices that can boost the odds that the attorney-client and work product protections will shield internal investigation records. Although not precedential outside...more

Is In-House Counsel Your Attorney?

Here’s the obvious: to invoke the attorney-client privilege, the communication must be made to, or in the presence of, the client’s attorney. But things become murky when you have to decide whether that attorney is actually...more

Attorney-Client privilege In M&A Transactions

The title of this recent law review article frames the problem well, At the Whim of Your Adversaries: California’s Hazards in Sell-Side Representation and Waiver of Attorney-Client Privilege, 54 Santa Clara L. Rev. 651...more

Who Bears The Burden Of Proving Waiver Of Attorney-Client Privilege?

This week, in an Opinion in Safety Test & Equipment Co. v. American Safety Utility Corp., 2014 NCBC 40, Judge Gale made a significant ruling on which party bears the burden of proof in showing a waiver of the attorney-client...more

What Does Delaware’s Wal-Mart Decision Mean for the Attorney-Client Privilege and Internal Investigations?

The Delaware Supreme Court’s decision in Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, No. 614, 2014 Del. LEXIS 336, 2014 WL 3638848 (July 23, 2014), a Section 220 “books and records” case...more

The fiduciary exception to the attorney-client privilege: A recent development

In a suit by the beneficiary against the trustee, is the trustee entitled to assert the attorney-client privilege against the beneficiary, or is there a fiduciary exception to the attorney-client privilege? As to...more

Delaware’s Adoption of Garner — and Practical Ways to Respond

On July 23, 2014, the Delaware Supreme Court in Wal-Mart Stores Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW held that plaintiff stockholders, who make a showing of good cause, can inspect documents concerning a...more

Why Keeping Corporate Lawyers Quiet Is Good For Us All

In a recent post in The New York Times DealBook, Berkeley Law School Professor Steven Davidoff Solomon argues that keeping corporate lawyers silent “can shelter wrongdoing”. I completely agree that the attorney-client...more

Start Spreading the News: With National Union v. TransCanada, New York Prepares to Broadcast Communications with Coverage...

This is the third and final article about the decision of a New York appellate court in National Union Fire Ins. Co. of Pittsburgh v. TransCanada Energy USA, Inc., 119 A.D.3d 492 (1st Dep’t 2014). The first article discussed...more

Start Spreading the News: With National Union v. TransCanada, New York Prepares to Broadcast Communications with Coverage...

The final opinion of a New York appellate court in National Union Fire Ins. Co. of Pittsburgh v. TransCanada Energy USA, Inc., 119 A.D.3d 492 (2014), is only three paragraphs long, but it raises a host of questions about how,...more

Court Broadens Confidentiality of Investigations - D.C. Circuit extends privilege in internal corporate probes, but inconsistent...

You are counsel to a government contractor that is conducting an internal investigation into possible fraud. Federal mandatory disclosure obligations require an investigation, as does the need to gather facts to seek legal...more

Delaware Supreme Court Permits Stockholders to Overcome Corporation’s Attorney-Client Privilege for “Good Cause”

On July 23, 2014, the Delaware Supreme Court in Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW held that plaintiff stockholders, who make a showing of good cause, can inspect documents concerning a...more

New Jersey Supreme Court Officially Adopts Common Interest Doctrine - This Opinion Is Consistent with Those in Other States and...

The New Jersey Supreme Court recently issued an opinion that, for the first time in New Jersey, expressly adopted the "common interest doctrine." The July 21, 2014, opinion provided confidentiality protections for...more

New York Court Erodes Privilege for Attorney-Insurer Communications

On July 31, 2014, the New York Supreme Court, Appellate Division, First Department chipped away at the privilege protections available to insurers. In National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. TransCanada...more

The Crime-Fraud Exception: Open Questions for the Supreme Court

In Zolin, the Supreme Court determined that a party invoking the crime-fraud exception must make a threshold showing before a district court may review documented attorney-client communications in camera. The Court settled on...more

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