Many if not most clients and even some ill-informed lawyers think they can “make” something privileged through some logistical step — such as marking it as “privileged,” copying a lawyer, inviting a lawyer to a meeting, etc....more
As anyone faced with discovery requests knows, one of the most important parts of producing documents is determining what documents are subject to attorney-client privilege or work product doctrine and must therefore be...more
Unlike an intentional or unintentional express waiver involving actual disclosure of a privileged communication, a litigant can trigger an implied waiver by relying on the fact of such a privileged communication rather than...more
The attorney-client privilege is the oldest of the common law privileges for withholding confidential communications recognized in American jurisprudence. It allows a person to seek legal advice and representation without...more
The last two Privilege Points have addressed some federal courts’ inexplicable application in diversity cases of their host states’ substantive privilege law rather than their host states’ choice of law rules. Some states...more
Last week’s Privilege Point described the illogical but scary Vioxx doctrine, which some courts apply to deny privilege protection ab initio to intra-corporate communications simultaneously seeking advice both from lawyers...more
In all but a few states, the attorney-client privilege can protect a company’s lawyer’s communications with former company employees — as long as the communications focus on the former employees’ tenure at the company. But in...more
Not surprisingly, both a lawyer’s confidentiality duty and the attorney-client privilege protection last beyond the client’s death. But most courts recognize what they call the “testamentary exception” — allowing disclosure...more
Clients relying on an investigation’s result to gain some advantage understandably trigger a subject matter waiver. But some courts recognize that those clients may still claim privilege for some related communications....more
The attorney-client privilege is an old and well-known evidentiary privilege. It fosters candor between attorney and client, protects confidential information from being revealed to others, and ensures that the attorney can...more
On numerous occasions, this Blog has examined the attorney-client privilege and the attorney work product doctrine.1 Today, we take another opportunity to explore the contours of these privileges....more
Under Fed. R. Civ. P. 30(b)(6), a litigant seeking a corporate adversary's deposition may insist that the corporation designate an individual to testify on the corporation's behalf about designated topics. The concept makes...more
The U.S. Supreme Court dismissed a petition for writ of certiorari to review a decision of the U.S. Court of Appeals for the Ninth Circuit addressing the scope of the attorney-client privilege....more
It is commonplace knowledge that the attorney-client privilege protects confidential communications relating to legal advice between a client and an attorney from disclosure. However, a recent decision from Justice Robert...more
Parties to a lawsuit often find themselves on the "same side of the courtroom" as other entities or individuals. In these instances, where a party is one of multiple (or many) co-plaintiffs or co-defendants, it is often...more
Not surprisingly, Delaware state courts frequently address privilege issues triggered by corporate board disputes. Those often guide other states' courts' analyses of similar scenarios....more
Email communications can be a trap for unwary independent directors. The December 2020 In re WeWork Litigation decision illustrates the point, as discussed in this earlier blog. Specifically, directors who often use corporate...more
The multitude of new digital communications and social media platforms available in today’s technologically advanced world is a double-edged sword. As helpful as they are in speeding communications, opening new avenues of...more
Attorney-client privilege protection focuses on communications' content, but those communications' context can shed light on their primary purpose, possible inapplicability because of third parties' presence, etc. So...more
Adversaries often challenge each other’s privilege calls in the thick of litigation, and sometimes those challenges are elevated to a court’s in camera review. In Governo Law Firm LLC v. CMBG3 Law LLC, et al., Judge Salinger,...more
Last week's Privilege Point described a court's careful delineation between the logistics (time, place, etc.) of a privileged communication and such communications' explicit or implicit privileged content. The stakes...more
Recent changes to the attorney-client privilege mean Minnesota businesses should consider using additional caution and taking affirmative steps in order keep documents prepared by their lawyers safe from disclosure. The...more
Most states have adopted some variation of what is called the "spousal privilege" or "marital privilege." Those usually appear in statutes or rules, and dramatically vary from state to state. For obvious reasons, spouses'...more
To foster open and honest communications with counsel, it is critically important that those communications are protected from disclosure by the attorney-client privilege. But, not every communication with counsel is...more
A data security incident will always require a technical response, and usually that technical response will come from outside experts. Those experts are hired to investigate and remediate an incident. Since data incidents...more