Conducting ediscovery in Outlook may be tempting – but although it’s a free and familiar tool, it carries risks and limitations for document review. Email continues to be the primary source of electronic evidence in...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
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
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
Delaware Rule of Evidence 502(b) codifies the attorney-client privilege and insulates from discovery “confidential communications made for the purpose of facilitating the rendition of professional legal services to the...more
A new ethics opinion from New Jersey turns the concept of “implied consent” under ABA Model Rule 4.2 on its head. The March 10, 2021 Ethics Opinion from New Jersey - A recent opinion from the New Jersey Advisory Committee...more
Lawyers should remind their clients that copying a lawyer on an email does not automatically render the email privileged. But the story doesn't end there. In Dejewski v. National Beverage Corp., the court recited the...more
A recent decision by the Delaware Court of Chancery highlights risks for outside directors in using third-party email systems when communicating about confidential company matters. In that case, the court ruled that...more
On December 22, 2020, in litigation between WeWork and the Softbank Group, the Delaware Court of Chancery determined that the Softbank Group must hand over several dozen otherwise privileged emails because two SoftBank...more
Several previous Privilege Points have summarized often-complicated judicial holdings on who owns privilege protection after corporate stock or asset transactions. It should come as no surprise that the privilege ownership...more
In a January 14, 2020, order, the Northern District of Illinois granted in part and denied in part, a plaintiff’s motion to compel the production of documents withheld as privileged. The court found that an email between the...more
This newsletter summarises four significant judicial decisions over recent months. 1. The purpose of a probation period is for the employee’s skills to be assessed. Therefore an employee’s absence would extend the...more
Closing out 2019, the National Labor Relations Board (NLRB or the Board) issued two final opinions that will reverse employee-friendly decisions. The two opinions - Apogee Retail LLC d/b/a Unique Thrift Store (Apogee) and...more
In Shareholder Representative Services LLC v. RSI Holdco, LLC, the Delaware Court of Chancery held that the sellers of a target corporation retained the right to assert attorney-client privilege over pre-merger communications...more
In the latest round of legal issues relating to West Ham United FC's move to the London Stadium, the Court of Appeal found that confidential internal emails between board members and other stakeholders, for the purposes of...more
Copying clients on emails sent to opposing counsel, whether through “cc” or “bcc” commands, may have serious consequences affecting attorney client privileges. While communicating with parties is necessary for driving...more
The American Bar Association formally opines lawyers should provide competent representation for clients with the appropriate legal knowledge, skill, thoroughness, and preparation. ABA Rule 1.1 outlines these duties, and...more
Starting 10-15 years ago, many courts addressed corporate employees' privilege claims for communications with their personal lawyers (usually employment lawyers) using their employers' email infrastructure. Most states (other...more
The privilege can protect clients' requests for legal advice, and lawyers' responses. But employees simply cc'ing a lawyer on an email to another employee cannot guarantee privilege protection – because the email might be...more
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
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
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
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
Jacqui Merrill, an Associate at The Volkov Law Group, joins us with a posting on the SEC’s request for increased access to emails. In a Senate Judiciary Committee meeting held on September 16, 2015, Securities and...more
Our team at Brownstein Hyatt Farber Schreck recently alerted you to the risk of corporate executives using business email accounts for personal purposes. Click here to read the first alert. In light of developing case law in...more