News & Analysis as of

Attorney-Client Privilege Work-Product Doctrine

First Department Finds Work-Product Protection Not Waived by Storage of Documents on Company Laptop

On June 6, 2017, the First Department had an opportunity to apply—and reaffirm—last month’s decision in Peerenboom v. Marvel Entm’t, LLC, where the Court held that use of a company email system for personal purposes “does...more

Court Applies Work Product Protection to Breach Investigation Reports

One of the most significant questions in data security law is whether reports created by forensic firms investigating data breaches at the direction of counsel are protected from discovery in civil class action lawsuits. ...more

Are Your Internal Investigation Memos Protected as Privileged or Work Product?

by Bryan Cave on

A recent decision by Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia is a stark reminder that neither the attorney-client privilege nor the work product doctrine automatically protects...more

Emails With An Environmental Consultant Are Not Protected by the Attorney-Client Privilege, But May Be Protected Under the...

by Freeborn & Peters LLP on

A federal district court in Indiana recently ruled on whether email communications with environmental contractors hired by an attorney are protected from discovery. In Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No....more

Court Holds Forensic Investigator’s Report is Protected from Disclosure

by Alston & Bird on

Third-party forensic investigations performed at the direction of counsel are part-and-parcel of virtually every data breach. There has been little case law, however, directly addressing the extent to which the...more

5th Circuit Discusses Privilege Logs In Connection With EEOC Investigation

Company records and communications are typically subject to disclosure in government investigations. They may be protected from disclosure if they are protected by the attorney client privilege or attorney-work product...more

District Court Confirms Work-Product Doctrine Privilege Covers Only Certain Documents Exchanged With Third Party Consultants

On April 14, a U.S. Magistrate serving with the U.S. District Court for the Northern District of Indiana issued a ruling in a matter involving the attorney-client and attorney work product privileges. The case is Valley Forge...more

Your Divorce Is Not a Community Event

by Fox Rothschild LLP on

We live in an age of instant information where there is constant temptation to share what one is doing and thinking. We are used to sharing our experiences and thoughts freely. The temptation becomes even greater when we are...more

Privilege Waiver: Is Your File-Sharing Site a Public Park Bench?

While courts and the Federal Rules of Evidence take an increasingly pragmatic approach to the question of when inadvertent disclosure of privileged information results in waiver, a recent federal magistrate’s ruling serves as...more

Court Applies the Sporck Doctrine

by McGuireWoods LLP on

The work product doctrine involves many more varied and practical aspects than the attorney-client privilege. Among other things, heightened opinion work product protection can sometimes protect lawyers' selection of...more

District Court Orders Production of Attorney-Client Communications Between Opinion Counsel and Trial Counsel Based on Advice of...

Plaintiff Krausz Industries Ltd. ("Krausz") filed a motion for an order compelling Defendants Smith-Blair, Inc. and Sensus USA, Inc. (collectively "Smith-Blair") to allow discovery into various attorney-client communications...more

Court Nixes Privilege Protection for Former Employee Interviews – Is This a Big Deal?: Part III

by McGuireWoods LLP on

The last two Privilege Points described the Washington Supreme Court's 5-4 rejection of privilege protection for communications with former corporate employees (Newman v. Highland School Dist., 186 Wash. 2d 769, 381 P.3d 1188...more

Maximizing Work Product Protection After an Ordinary Course Internal Investigation Uncovers Serious Problems that Could Trigger...

by McGuireWoods LLP on

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

Whistleblower’s Attorney’s Communications with Regulators Found to be Protected by Work Product Doctrine

A California Magistrate Judge in BofI Federal Bank v. Erhart ruled that a whistleblower’s attorney’s communications sent to federal regulators were protected by the attorney work product doctrine. No. 15-cv-2353 (S.D. Cal....more

Court Points to Several Factors in Denying Work Product Protection: Part II

by McGuireWoods LLP on

Last week's Privilege Point described a court's rejection of a work product claim based, in part, on an in-house lawyer's lack of involvement in creating the withheld documents. Phoenix Technologies Ltd. v. VMware, Inc., Case...more

Court Points to Several Factors in Denying Work Product Protection: Part I

by McGuireWoods LLP on

Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the...more

What Is "Litigation" for Work Product Protection Purposes?

by McGuireWoods LLP on

Fed. R. Civ. P. 26(b)(3) and its state counterparts protect from discovery "documents and tangible things that are prepared in anticipation of litigation." This obviously includes civil litigation. But what about other forms...more

Protect the Privilege: Considerations in Employment Investigations

Employers can take many steps to help maximize the likelihood that attorney-client privileged information and work product will be protected in the context of employment-related investigations. In the recent case of City...more

Privilege Considerations in Cyber Incident Response

by Locke Lord LLP on

As with other types of crisis situations, a cyber security incident can generate not only operational issues, but also significant legal exposure. Affected companies should think through the associated privilege issues,...more

E Pluribus Unum Is for eDiscovery Too

by Conduent on

The proliferation of data to the point of excess is a common refrain and problem for many organizations today. The scale to which data has grown recently has a direct correlation to eDiscovery – as organizations struggle to...more

I Spy the Relevant Data: Using Analytics to Accelerate eDiscovery for Second Requests

by Conduent on

Pikachu, Wartortle, Ivysaur, Rattata—can you catch ‘em all? With Pokémon Go, the current augmented reality app craze, your goal is to search for and capture these virtual monsters that pop up in various places using your...more

The First Appellate District Confirms that the Attorney-Client Privilege and the Attorney Work Product Doctrine Apply to...

In City of Petaluma, the former employee filed a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) alleging sexual harassment and retaliation during her employment with the City of Petaluma (“City”). The...more

Personnel Investigation By Outside Attorney Protected From Disclosure In Discovery

by Seyfarth Shaw LLP on

Seyfarth Synopsis: California Court of Appeal holds that (1) an outside attorney’s investigation can be privileged even though the attorney simply investigated facts, and (2) the employer does not waive the privilege simply...more

California Court of Appeal Finds Fact Investigation by Outside Counsel is Privileged

by FordHarrison on

In City of Petaluma v. Superior Court (Andrea Waters), the California Court of Appeal recently held that outside counsel's fact investigation of an employee's harassment and discrimination claims conducted prior to litigation...more

Court Finds Bracewell & Guiliani Report Unprotected by the Privilege or the Work Product Doctrine

by McGuireWoods LLP on

Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other...more

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