News & Analysis as of

Unforced Errors Under Upjohn

Over thirty years ago, the Supreme Court clarified how the attorney-client privilege applies to records of internal investigations in Upjohn v. United States, 449 U.S. 383 (1981). Yet putting the principles of Upjohn into...more

D.C. Circuit Court Clarifies Scope of Attorney-Client Privilege in Internal Investigations

On June 27, 2014, the United States Court of Appeals for the District of Columbia Circuit issued an opinion clarifying the application of the attorney-client privilege in internal investigations. ...more

Privilege Issues Are Important in Homeowner Association Construction Defect Litigation

Attorneys in Homeowners Association (“HOA”) construction defect cases must meet with the homeowners to provide litigation updates and it can sometimes be difficult to preserve the attorney-client privilege for the...more

Abolish the Attorney Client Privilege - It serves little use in practice, while the work-product privilege offers a safer harbor.

One of the great myths of the legal profession is that the attorney- client privilege promises absolute confidentiality, to ensure clients’ full disclosure to their counsel. However, as most lawyers know too well, clients...more

Bad Faith Sentinel - June 2014

In This Issue: - Court of Appeals of the State of Washington: Bad Faith Damages May Exceed the Amount of a Reasonable Covenant - Southern District of Mississippi: Insurer Providing Coverage Opinion to Insured...more

D.C. Circuit Considers Whether Complying With Federal Regulations Obviates the Attorney-Client Privilege & Work Product Doctrine...

The internal investigation is a critical tool for companies operating in the current environment of stringent regulatory oversight and government scrutiny. The attorney-client privilege and work product doctrine are sacred...more

Nevada Supreme Court Reaffirms and Clarifies Sands Corp. Decision on Waiving Attorney-Client Privilege and the Work-Product...

Recently, we released a legal alert discussing the Nevada Supreme Court’s decision in Las Vegas Sands Corp. v. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 13 (February 27, 2014), which addressed the intersection of NRS 50.125...more

Prohibiting Discovery of Attorney-Expert Communications

Are communications between attorneys and their retained experts discoverable? For now, the answer appears to be no, as a divided Pennsylvania Supreme Court recently affirmed a Superior Court decision “creat[ing] a...more

Recent Decision Reminds Companies to Use Best Practices to Protect Their Internal Investigations

The DC Circuit recently heard oral argument regarding a mandamus petition filed by defendants in a qui tam action. The case sheds light on the best practices that companies should utilize to increase the odds that the...more

Maintaining The Attorney-Client And Work-Product Privileges In An Internal Investigation

Internal investigations conducted without outside counsel risk not being protected by the attorney-client or work-product privileges. On March 6, 2014, the District Court for the District of Columbia ordered production of...more

When Is An Internal Investigation Not Privileged?

Compliance programs have grown in importance along with the demands of new laws and regulations. These programs are increasingly seen as vital to preventing corporate misconduct or, at least, mitigating sanctions if...more

Privileged Status Of Internal Investigations At Risk - Court Finds Reports From Company's Internal Investigation Are Not...

A recent ruling by the U.S. District Court for the District of Columbia puts the privileged status of internal investigations conducted by internal resources at risk.In U.S. ex rel. Harry Barko v. Halliburton Company, the...more

Court Allows Third Party Discovery Of Broker Materials Claimed To Be Privileged

Defendant liability insurers sought discovery from Third Party Aon relating to a dispute between defendants and plaintiff regarding an umbrella coverage program. Aon provided some, but not all responsive documents, citing...more

D.C. federal court reconsiders decision on FOIA requests to CFPB

Last September, a federal district court in Washington, D.C. issued an opinion on Freedom of Information Act (FOIA) requests made by Judicial Watch to the CFPB for documents relating to Richard Cordray’s recess appointment as...more

Privileged Communications With Outside Consultants

Penn State University recently decided to waive attorney-client privilege and cooperate in the criminal prosecutions of certain former employees. Obviously, the former employees have attempted to assert privilege to exclude...more

Federal District Court: Documents Created During an In-House Corporate Compliance Investigation Are Not Privileged

In a noteworthy decision in Barko v. Hallilburton Co., a federal court has ruled that a company's internal investigations are not privileged and must be produced to a whistleblower. In light of the ruling in Barko, government...more

Proceed with Caution: D.C. District Court Says Attorney-Client Privilege and Work Product Doctrine Do Not Survive Internal Fraud...

On March 6, 2014, the District Court for the District of Columbia issued an opinion in United States ex rel. Barko v. Halliburton Company et al. that should serve as a wake-up call for all companies conducting internal...more

Federal Court Ruling Raises Questions About Privileged Nature Of Certain Internal Investigations

On March 6, 2013, the United States District Court for the District of Columbia ruled that Kellogg Brown & Root Services, Inc. (“KBR”) must produce to a qui tam relator 89 documents relating to internal investigations...more

Bad Faith Sentinel - March 2014

CONTENTS - United States Court of Appeals for the Fourth Circuit: An Absence of Ascertainable Damages Does Not Preclude an Award of Punitive Damages for Bad Faith pages 1 - 2 - Northern District of Alabama: Insurer...more

Proof of Claim Could Cost You Your Privilege - Bankruptcy Court Holds Attorney's Signature on Proof of Claim Form Renders Attorney...

A properly filed proof of claim serves as prima facie evidence as to a claim's validity. But when this written statement is signed by a creditor's attorney, the court may find that the attorney has become a fact witness and...more

Washington Insurance Law - 2013 Year in Review

2013 was a particularly eventful year in Washington insurance law. This paper summarizes the holdings of several notable Washington insurance decisions that were filed in 2013. Bad Faith - Attorney-Client...more

Apple v. Samsung: Samsung's Request for Stay of Discovery Orders Denied Where Magistrate Judge Made No Ruling on Privilege Issues...

As a result of Samsung's alleged violation of the protective order, Magistrate Judge Grewal previously ordered Samsung to produce to Apple emails and communications by Samsung employees that would shed light on the scope of...more

Three Common Questions Asked by Advisors of Non-Filing Taxpayers

Lawyers in every area run into clients who admit that they have not filed their tax returns. Among the many questions raised by this information are the following three, which come up nearly every time. This outline gives...more

Law Firm Internal Privilege: Update

If you attended our law firm risk managers' lunch forum in April, you will recall that two closely-watched cases - one in Georgia the other in Massachusetts - were then pending, involving the scope of the attorney - privilege...more

Who Do You Represent? Pitfalls and Perils of Representing an Organization

Introduction - In almost every long term care case, as well as other types of medical negligence cases, one or more of the defendants is some form of legal entity, usually a corporation. ...more

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