Attorney-Client Privilege Work Product Privilege

News & Analysis as of

Communications With Your Broker May Be Privileged

Are communications among a client, a third party, such as an insurance broker, and the client’s attorney privileged? The answer is yes, if the communications are confidential and reasonably necessary to accomplish the purpose...more

Court Uses an "In Camera" Review for Purposes Other than Privilege or Work Product Assessment

Adversaries challenging litigants' privilege or work product assertions necessarily "shadow box" with the litigants -- because the adversaries cannot see the withheld documents. Courts often review such withheld documents in...more

Communications between Counsel and PR Firm Hired by Counsel Held Discoverable

Counsel handling cases involving newsworthy facts and litigation often hire public relations (“PR”) consultants. In Nicholas Behunin v. The Superior Court of Los Angeles County, 2017 DJDAR 2405 (No. B272225 March 14, 2017)...more

Courts Address Privilege and Work Product Implications of Defendants' and Plaintiffs' Large "Town Hall" Meetings

The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work...more

"The E-Discovery Digest - March 2017"

The sixth 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

For Our Eyes Only: Understanding the Attorney-Client Privilege and Its Application to Banks

The attorney-client privilege is a rule of evidence that prevents the adverse party in a lawsuit from obtaining access to certain communications. If properly understood and wellmanaged, this privilege offers a useful tool for...more

2016 eDiscovery Case Law Year in Review, Part 2

As we noted yesterday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to admissibility and...more

Finding Categorical Privilege Log to Be Inadequate, Court Orders Plaintiff to Provide a Metadata Log: eDiscovery Case Law

In Companion Property and Casualty Insurance Company v. U.S. Bank N.A., No. 15-01300 (D. S.C., Nov. 3, 2016), South Carolina District Judge J. Michelle Childs determined that the plaintiff’s categorical Privilege Log was...more

Plaintiff's Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part II

Last week's Privilege Point described a court's acknowledgment that a mentally ill plaintiff's live-in boyfriend had provided "meaningful assistance" to the plaintiff in dealing with her lawyer, but was not "necessary or...more

Plaintiff's Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part I

Nearly every court finds that the only client agents/consultants inside privilege protection are those necessary for the communications between the client and her lawyer. But the work product doctrine casts a wider protective...more

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

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