News & Analysis as of

Confidential Communications

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

[Webinar] Current Issues in Multijurisdictional Practice; Protecting Confidential and Privileged Information with International...

by Thompson Coburn LLP on

When legal issues with footprints in many jurisdictions need to be resolved, attorneys need a roadmap and a checklist to plan their strategy. This webinar will cover current rules and issues/mishaps, and the consequences for...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

2016 Guidance from the North Carolina Court of Appeals on Attorney-Client Privilege Issues

by Ward and Smith, P.A. on

In civil litigation, parties frequently communicate with consultants, tax advisors, friends, family, and others concerning the subject matter of the litigation, and such communications raise issues regarding the possible...more

A Common Interest Agreement May Not Be Worth the Paper It’s Written On

by Wilson Elser on

It is a very common practice for counsel to co-defendants or co-plaintiffs to enter into agreements that shield their communications. The agreements are expressions of intent that the communications will be protected by the...more

Confidential Communications With In-House Counsel Are Not Always Privileged

by Burns & Levinson LLP on

Next to a person’s Fifth Amendment right to remain silent, the attorney-client privilege is probably the most well recognized legal doctrine out there. Nevertheless, there are many nuances surrounding the privilege about...more

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

by McGuireWoods LLP on

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

Protecting privilege during Australian internal investigations: is lawyer work product at risk?

by DLA Piper on

In the long running RBS Rights Issue litigation, the English High Court has recently ruled that notes of interviews of bank employees, prepared by the bank's in-house lawyers who conducted the interviews as part of an...more

Department of Justice Fraud Section Provides Guidance on Evaluating Corporate Compliance Programs

by Jones Day on

On February 8, 2017, the United States Department of Justice ("DOJ") Fraud Section published a blueprint for assessing corporate compliance efforts, titled "Evaluation of Corporate Compliance Programs" ("Guidance"). It...more

Evidence Law Litigation Update - February 2017

New York Court of Appeals Holds That the Common Interest Doctrine Applies Only to Litigation Matters. This year, in Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. 80, 2016 N.Y. Lexis 1649 (N.Y. June 9, 2016), New...more

New Guidance from the DOJ on Your Compliance Program

by NAVEX Global on

The U.S. Department of Justice (DOJ), Criminal Division, Fraud Section, recently released new guidance associated with its Guide to the U.S. Foreign Corrupt Practices Act. The guidance, entitled Evaluation of Corporate...more

Does the Shelton Standard Apply to In-House Lawyers?

by McGuireWoods LLP on

Nearly every court protects a litigant's lawyer from depositions or other discovery under what is called the Shelton standard ( Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)) or under similarly restrictive...more

Privilege Claims Validated in Counterfeit Detection Dispute

In a recent decision, Magistrate Judge Kelley addressed the legitimacy of withholding third party communications under the common interest doctrine. The case involved plaintiff Crane Security Technologies, Inc. (“Crane”) –...more

Courts Continue to Insist that Common Interest Participants Anticipate Litigation

by McGuireWoods LLP on

The common interest doctrine can allow separately represented clients to safely share privileged communications in certain circumstances. Although many lawyers hope that courts will begin extending this helpful protection to...more

An In-House Counsel Learns the Hard Way About a Key Difference Between Common Interest Agreements and Joint Representations: Part...

by McGuireWoods LLP on

Common interest agreements and joint representations share many characteristics. Both types of arrangements involve lawyers engaging in protected communications with multiple clients. But they are structurally distinct. In...more

California Supreme Court Concludes Attorney Invoices Privileged During Ongoing Litigation

Attorney invoices may be protected in their entirety by the attorney-client privilege during ongoing litigation. After litigation has concluded, however, those same invoices may be discoverable. So concludes the California...more

High Court Rules That Witness Interview Notes Are Not Covered by Legal Advice Privilege

by Shearman & Sterling LLP on

In December 2016, the English High Court ruled that transcripts, notes and other records of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by either...more

Legal Invoices to Public Agencies in California May Be Exempt from Disclosure

by Best Best & Krieger LLP on

In a case that pitted government transparency against a public agency’s interest in confidential communications with its attorney, the California Supreme Court came down on the side of protecting attorney-client privileged...more

New York Court Adds a Worrisome Twist to Employees' Communications with Their Personal Lawyers on Company Servers

by McGuireWoods LLP on

Numerous courts have held that corporate employees have no expectation of confidentiality (and thus no privilege protection) when using their employer's server and other communication equipment – if the corporate personnel...more

No legal advice privilege over lawyers' notes of interviews with employees

by Allen & Overy LLP on

Astex Therapeutics Limited v Astrazeneca AB [2016] EWHC 2759 (Ch), 8 November 2016 - In-house and external lawyers' attendance notes of conversations with employees of a client company who are not directly involved in...more

Investigatory Powers Act 2016 becomes law

by White & Case LLP on

The UK Investigatory Powers Bill has received royal assent and passed into law as the Investigatory Powers Act 2016. The Act will have a significant and far reaching impact on data, technology and communications businesses,...more

Court Nixes Privilege Protection for Former Employee Interviews – Is This a Big Deal?: Part I

by McGuireWoods LLP on

In a 4-3 vote, the Washington Supreme Court held that an institution's lawyers' communications with former employees did not deserve privilege protection. Newman v. Highland Sch. Dist., No. 90194-5, 2016 Wash. LEXIS 1135...more

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