News & Analysis as of

Confidential Communications

European Court Restricts Employer Access to Employee’s Private Communications

by Orrick - Trust Anchor on

With its recent ruling in Barbulescu v. Romania (application no. 61496/08), the Grand Chamber of the European Court of Human Rights (ECHR) made a decision of enormous impact for employers in Europe. The decision makes clear...more

Circuit Denies Protection to Hallway Conversation Between Co-Defendants, Highlighting Limits of JDAs

A Joint-Defense Agreement (JDA) can be an extremely valuable tool in coordinating defenses against pending or impending prosecution, as it formalizes the creation of a zone of privilege in which co-defendants and their...more

No Privilege Extended To Communications With PR Consultant, But Court Provides Roadmap To Possible Application

by Weintraub Tobin on

It is not uncommon in this day of social media influence for an attorney to seek out the assistance of a public relations consultant to play a role in connection with a high profile lawsuit. Such media experts can help assess...more

Avoiding Legal Malpractice Claims Arising From Mediation

by Reminger Co., LPA on

In today’s legal landscape, the settlement of litigation is often reached outside of the courtroom, as parties resort to mediation either by their own volition or due to court mandate. To encourage the use of mediation,...more

The Common Interest Doctrine: Maintaining Confidentiality

While confidentiality is usually destroyed when communications between an attorney and client take place in the presence of a third party or when work product is shared with others, those communications can remain protected...more

Purpose, privilege and duty – surviving the break down

by Dentons on

The recent decision of Sharpe v Grobbel [2017] NSWSC 1065 acts as a reminder for lawyers about their duty to claim privilege for clients even if they are no longer acting. It highlights the point in time in which common...more

2 Essentials For Dealing With Employees Attempting To Game the System

by Fisher Phillips on

Today’s workplace is fraught with legal traps for well-intentioned but unwary managers. But one issue stands out far above the rest as perhaps the single biggest employee challenge in today’s workplace: malingering employees...more

Fundamentals of Document and ESI Discovery

by Knobbe Martens on

Preserving Evidence: •“The duty to preserve evidence begins when litigation is ‘pending or reasonably foreseeable.’” Micron Tech., Inc. v. Rambus, Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) •“It is, of course, not...more

Protecting Communications From PR Privilege Issues

by Pepper Hamilton LLP on

Two recent cases in state appellate court show the risks of sharing privileged communications with public relations consultants. But they also provide practical guidance on how to protect the confidentiality of...more

Ensuring appropriate confidentiality in arbitration: guidance for arbitrators and parties alike

by Dentons on

A recent case, Symbion Power LLC v. Venco Imtiaz Construction Co [2017] EWHC 348 (TCC), highlighted two issues which touch on confidentiality in arbitrations: (1) the confidentiality of communications from an arbitrator to a...more

Want to Peek at Your Employee’s Email? Be Careful!

Can you look at an employee’s personal email account if you access it on company equipment? A recent opinion from the federal District Court of Maryland should at least make you think twice before doing that. In Levin, et al....more

Be Careful What and Who You Tell: Limitations on Defense Counsel Reporting

by Dickinson Wright on

Almost 40 years ago the Arizona Supreme Court issued an opinion which has had a far-reaching impact on how insurance defense counsel report to the defending carrier....more

What Communications Between a Lawyer and Client are Protected by Solicitor-Client Privilege?

by Bennett Jones LLP on

Solicitor-client privilege applies broadly to the continuum of communications concerning matters within the solicitor-client relationship, the BC Court of Appeal recently held in British Columbia (Attorney General) v. Lee,...more

Employers May Wish to Update Electronic Access Policies to Assure Access to Employee's Emails with Counsel - New York Appellate...

by Holland & Knight LLP on

In most states, it is fairly clear that attorney-client privilege does not apply to communications between an employee and the employee's personal lawyer if the communications are made using the employer's email system and if...more

One Year After Ambac: Sharing Information Among Deal Parties

by WilmerHale on

On June 9, 2016, the New York Court of Appeals issued its decision in Ambac Assurance Corp. v. Countrywide Home Loans Inc. and held that the common interest doctrine protects only communications among deal parties that are...more

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

Attorney-Client Privilege and Corporate E-Mail: Navigating the Morass of Personal Communications in Investigations

by King & Spalding on

Experienced practitioners know that the purpose of the attorney-client privilege is to protect the confidentiality of client communications. Thus, as company policies that allow monitoring of emails or provide third party...more

Encrypting Emails: ABA Issues New Guidance Addressing Security Concerns over Attorney-Client Communications

In May, the American Bar Association (“ABA”) released a Formal Opinion 477, providing guidance on attorney use of emails in communication with clients. In doing so, the ABA has promulgated a new standard when considering the...more

California Court of Appeal Clarifies the Limits of the Attorney-Client Privilege for Communications with an Attorney and a Third...

by Payne & Fears on

A recent decision by the California Court of Appeal in Behunin v. Superior Court, 9 Cal. App. 5th 833 (2017), is a reminder that a party’s communications with an attorney and a third party consultant must be reasonably...more

[Webinar] Confidentiality and Privilege: Not One and the Same - June 14th, 12:00 pm CT

by Thompson Coburn LLP on

The lawyer’s duty of confidentiality and the attorney client privilege share a common basis, and both address information a lawyer must protect. However, they are not a single concept, and lawyers often confuse the two. ...more

English Court Questions the Application of Litigation Privilege in Criminal Investigations

On 8 May 2017, the English High Court of Justice handed down judgment in The Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Ltd,1 which could significantly limit the application of litigation...more

ABA Issues New Guidance on Safeguarding Electronic Communications

by Holland & Knight LLP on

In a significant opinion published on May 11, 2017, the American Bar Association's (ABA) Standing Committee on Ethics and Professional Responsibility provided additional guidance on a lawyer's obligations to protect client...more

Attorney Risks Disqualification If After Receiving Presumptively Privileged Communication Fails to Notify Privilege Holder and...

In McDermott Will & Emery LLP v. Superior Court (4/18/2017 – No. G053623), the Fourth Appellate District, in a 2-1 decision, considered two distinct issues: 1. Whether the attorney-client privilege for a confidential e-mail...more

Can the Attorney-Client Privilege Protect Corporate Executives' Notes of Their Conversations with a Lawyer?

by McGuireWoods LLP on

The attorney-client privilege protects communications between lawyers and their clients, primarily motivated by the latter's need for legal advice. Some corporations' adversaries challenge privilege protection for withheld...more

Sharing Legal Communications With PR Firm Raises Privilege Issues for Hospital

by Pepper Hamilton LLP on

A recent case in Pennsylvania reminds companies to think carefully about sharing their attorney-client communications with third parties, such as public relations firms. On March 13, a unanimous three-judge panel of the...more

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