Attorney-Client Privilege Work Product Privilege

News & Analysis as of

The Crime-Fraud Exception Can Apply to Innocent Lawyers' Communications

The crime-fraud exception can strip away privilege protection from communications in which lawyers further their clients' future wrongful conduct. Under the majority approach, the adversary must (1) first meet a fairly low...more

E-Discovery Nightmares: 5 Experts Share Tales of Redactions, Huge Data Sets, and Things That Go Bump in the Night

Now that the days are growing short, and the summer sun gone, leaving us with overcast skies and wind driven mists clinging to the rain-soaked hills, the mood is set for telling stories of ghouls, goblins, and other specters...more

"The E-Discovery Digest - October 2016"

The fifth edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney client privilege and work-product doctrine, spoliation, and discovery responses. Please see...more

Recurring Issues in Accounting for Litigation Contingencies

Certain questions seem to recur when it comes to outside counsel’s communications with a company’s auditors about potential exposures as a result of litigation or regulatory/enforcement matters and the underlying accounting...more

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

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

Missed Opportunity by The Supreme Court to Address the Erosion of Hospital Self-Review Privileges

In Tibbs v. Bunnell, the U.S. Supreme Court recently denied a hospital’s petition for certiorari to review the scope of the patient safety work product privilege. The hospital appealed from a Kentucky Supreme Court decision...more

Accidental Disclosure Of Public Records Does Not Waive The Attorney-Client And Attorney Work Product Privileges

On March 17, 2016, the California Supreme Court resolved an important case regarding the California Public Records Act, ruling unanimously that the inadvertent release of confidential documents does not waive the...more

Privilege Considerations in Cyber Incident Response

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

Courts Explore Wrongful Conduct's Effect on Privilege and Work Product Protection

Apart from the crime-fraud exception, lawyer and client misconduct might affect privilege and work product claims in more subtle ways. In Scranton Products, Inc. v. Bobrick Washroom Equipment, Inc., No. 3:14-CV-00853,...more

After Defendant Seeks to Claw Back Attorney-Client Privileged Documents, District Court Determines Privileged Waived (Including...

The defendants produced documents in response to plaintiffs' first set of requests for production and included in the production were five documents that the defendants were later claim were subject to attorney-client...more

ANDA Update - Volume 2, Number 2

180-Day Notice Period for Biosimilar Approval Is Always Mandatory and Enforceable by Injunction - Amgen Inc., v. Apotex Inc., (Fed. Cir. July 5, 2016) - A year after analyzing the patent dance and notice...more

Choice of Law Principles in Cross-Border Privilege Disputes: Whose Law Applies?

The Attorney-Client Privilege and Work Product Doctrine in the United States and Abroad - The attorney-client privilege and work product doctrine are important and well-known concepts to nearly every lawyer in the...more

"The E-Discovery Digest - June 2016"

The fourth edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney-client privilege and work-product doctrine, spoliation, cost shifting and other e-discovery...more

Legal Advice Or PR Plan? A Pertinent Privilege Conundrum

The ever-expanding scope of what constitutes the “press” creates new issues for companies and their counsel dealing with disputes that either are in or will develop into litigation. Routine corporate disputes that received no...more

Litigation Funder Communications Protected by the Attorney-Client Privilege and Work Product Doctrine

Addressing a novel issue in In re: International Oil Trading Company, LLC, 548 B.R. 825 (Bankr. S.D. Fla. 2016), the United States Bankruptcy Court for the Southern District of Florida recently denied in part an involuntary...more

The Tennessee Business Court Tackles Privilege Claims

The Tennessee Business Court has provided additional guidance to commercial litigators concerning internecine legal battles between members of limited liability companies. The Court has determined the fiduciary duties of...more

E-Discovery — Are custodial collections none of your business?

The party receiving discovery requests in litigation has the job of trying to understand the locations of potentially responsive data and documents; determining the identity of key custodians; and determining the most...more

Mine Accident Investigation Facts Not Subject to Attorney Privileges, ALJ Rules

According to at least one administrative law judge, neither the work product privilege nor the attorney-client privilege allows an Arizona metal producer and its contractor to withhold factual information gathered during the...more

Will Discovery Unlock Your Claim File? Federal or State Court Jurisdiction Could Make The Difference

Differences between federal court and state court procedure can be important for insurers that find themselves involved in “bad faith” litigation. If a lawsuit alleging extracontractual claims is filed in federal court, or...more

Some Courts Misapply the Common Interest Doctrine

The common interest doctrine can allow separately represented clients to share attorney-client privileged communications without waiving that very fragile protection. In contrast to privilege-protected documents, work product...more

Are Your HR Investigation Notes Protected Against Disclosure? Maybe, Maybe Not.

Just last month, two federal district courts reached different conclusions, further contributing to the confusion as to whether notes taken during a Human Resources department investigation of a discrimination or harassment...more

California Supreme Court Holds that Inadvertent Disclosure In Response to a Public Records Act Request Does Not Waive The...

In a unanimous opinion addressing a legal issue of statewide importance, the California Supreme Court resolved a split of authority and held that a governmental entity’s inadvertent release of privileged documents under the...more

How Far Does the "Functional Equivalent" Standard Extend?

Many previous Privilege Points have addressed the corporate-friendly "functional equivalent" doctrine, under which non-employees who essentially act as employees are inside privilege protection. An equal number of Privilege...more

California Supreme Court Finds that a Public Agency Cannot Inadvertently Waive Attorney-Client and Work Product Privileges

Last year, I wrote about the Second Appellate District case of Ardon v. City of Los Angeles. In Ardon, the appellate court found that a public agency can waive statutory privileges that it otherwise would have if it produces...more

Distinguishing Between "Facts" and Lawyers' "Opinions"

Although the attorney-client privilege does not protect historical facts, any facts "created" during or in anticipation of litigation can present a difficult analysis. In Gilead Sciences, Inc. v. Merck & Co., Case No....more

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