Attorney-Client Privilege Work Product Privilege

News & Analysis as of

Insurance Recovery Law - July 2015

In the Context of a Bad Faith Claim, Insurer’s Defense That Coverage Denial Was Reasonable Put at Issue Otherwise Protected Attorney-Client and Work Product Communications - Why it matters: Recognizing the “conflicting...more

Court Takes a Common Sense Approach to Rule 30(b)(6) Depositions

Rule 30(b)(6) of the Federal Rules of Civil Procedure allows corporations' adversaries to insist that the corporation select a spokesman to provide binding testimony about designated topics. These depositions almost...more

Claw Back of Privileged Documents Fails Where Defendants Had Used the Documents in Depositions, Expert Reports and in Briefs...

Defendants filed a motion to compel Adaptix to re-produce documents that Adaptix had clawed back on the grounds of privilege. Adaptix had early produced the documents in several productions. The Defendants argued in the...more

The Common Interest Privilege May Offer More Protection Than You Thought.

Consider for a moment a situation when an Owner and a General Contractor want to exchange confidential communications relating to a potential legal matter. When the Owner and Contractor are not both parties in a suit, what...more

The E-Discovery Digest - June 2015

In This Issue: - - Attorney-Client Privilege/Work Product Decisions: ..Decisions Protecting Against Disclosure ..Decisions Ordering Disclosure - Spoliation and Preservation Decisions: ..Sanctions...more

Tax Court Holds that Inadequate Privilege Log Subjects Putatively Privileged Documents to Disclosure

On May 26, 2015, the Tax Court issued its opinion in Pacific Management Group v. Commissioner, T.C. Memo. 2015-97, holding that a privilege log provided to the Internal Revenue Service (IRS) was inadequate to sustain claims...more

Accountants Can be Either Inside or Outside Privilege Protection

Lawyers and accountants have always had an uneasy relationship, and that tension extends to the attorney-client privilege context. Accountants can either be inside or outside privilege protection. ...more

Insurance Recovery Law - May 2015 #2

Recent Lawsuit Underscores Critical Lessons for Purchasers of Cyber Insurance - Why it matters: Columbia Casualty Company v. Cottage Health Systems was filed on May 7, 2015, in the Central District of California. Cottage...more

Challenging Privilege Assertions: The Use and Abuse of Privilege in Class Action and Complex Litigation

Complex class action litigation involving major corporations can involve class periods going back years, with the potential for hundreds of thousands, or even millions of documents. Commonly included in such a document...more

Court Says Cyber Forensics Covered by Legal Privilege

The Middle District of Tennessee recently issued a key decision in the ongoing Genesco, Inc. v. Visa U.S.A., Inc. data breach litigation. The court denied discovery requests by Visa for analyses, reports, and communications...more

Internal Investigations: Do No Harm

Internal investigations are an ever-present challenge for companies. They can involve virtually any topic and arise in myriad ways.  Embezzlement, accounting improprieties, bribery, and financial statement adjustments can all...more

Court Condemns Law Firm's Privilege Claim as "Subterfuge": Part II

Last week's Privilege Point described an outside regulatory compliance consultant's work for a company which worried about its non-compliant billing practices and about possible litigation, that consultant's later agreement...more

Washington Insurance Law - 2014 Year in Review

Introduction: During the final six months of 2014, Washington judges issued several notable insurance-related decisions. As was the case during the first six months of 2014, many of those decisions were favorable to...more

Insurer Not Required To Produce Coverage Memoranda Or Reinsurance Information In Discovery

A federal district court in New York has held that the attorney-client and work-product privileges apply to coverage memoranda sought by an insured from AIG Specialty Insurance in an ongoing coverage and bad faith litigation...more

From ‘Akzo’ to ‘Loi Macron’: There is still no Legal Privilege for In-House Lawyers in France

A significant difference between the French and U.S. and UK legal systems is in the understanding of legal privilege: it does not exist for in-house counsel in France....more

Letter From America: Internal investigations – a stark reminder of the dangers of failing to implement strict protocols from the...

A recent ruling in long-running civil litigation against the Bank of China (“BOC”) in the United States District Court for the Southern District of New York provides a stark reminder of the dangers of failing to develop and...more

District court limits application of privilege in internal investigations

The Southern District of New York offered a strong rebuke to defendant Bank of China (BOC) in a discovery dispute, finding that documents created as part of an internal investigation into potential terrorist activities of a...more

Game Changer? The S.D.N.Y. Endorses a Company-Friendly Privilege Standard

In In re General Motors LLC Ignition Switch Litigation, No. 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199, at *220 (S.D.N.Y. Jan. 15, 2015), Judge Furman upheld General Motors' claim of privilege and work product protection...more

2014 E-Discovery Year in Review - "Courts continued in 2014 to endorse the use of technology to improve the efficiency and...

2014 demonstrated that management and discovery of electronic information continues to be a challenging issue in litigation. A review of 2014 court decisions also underscores the importance of litigation hold notices,...more

Court Orders Production of Work Product Documents under Crime-Fraud Exception to Attorney-Client Privilege Where Defendants Had...

In an earlier filed decision, the district court had previously found that Escort and its defense counsel had knowingly misled the plaintiff, Fleming, which warranted a sanction of attorney fees. As explained by the district...more

Nevada Lawyers Beware: Don’t Use Privileged Documents To Prep Your Client To Testify

Twice this year, the Nevada Supreme Court ruled that a party may be required to produce for inspection an otherwise privileged document used to refresh a witness’s recollection prior to or during the witness’s testimony at a...more

Safeguard Your Litigation Privileges When Working With Insurance Brokers On Complex Insurance Claims

Businesses facing catastrophic losses, whether as a result of an accident or a natural disaster, or due to mass tort claims, frequently will engage both their insurance broker and legal counsel to identify and pursue...more

District Court Precludes Deposition of In-House Counsel Who Acted as Part of Trial Team Even Though Counsel Had Relevant,...

After plaintiff, McAirlaids, requested the deposition of one of Kimberly-Clark's ("K-C") in-house litigation counsel, K-C filed a motion for a protective order pursuant to Fed. R. Civ. P. 26(c) to preclude the deposition of...more

Is It Still Privileged? An Insurer’s Disclosure Of Information To Its Reinsurers And Brokers Waives Privilege … Sometimes.

A federal district court recently held that an insurer waived any claim of attorney-client or work product privilege when it disclosed otherwise potentially privileged information to its reinsurers and to its broker. In doing...more

Legal Briefs: A Periodic Summary of Judicial Decisions Affecting Accounting and Financial Services Professionals - October 2014

The New Jersey District Court recently ruled that an economic damages expert retained by plaintiffs’ counsel in a class action was not entitled to any further compensation for his work. The facts in Rothstein v. Harstad...more

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