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Discovery Privilege Waivers

Association of Certified E-Discovery...

Worried About Waiving Privilege via Inadvertent Production? You’ll Want to Read This.

In this week’s Case of the Week, I dive into a critical decision from FTC v. Amazon.com, Inc. (August 1, 2024), which underscores the precarious nature of privilege in document production—particularly in the context of...more

McGuireWoods LLP

Courts Thankfully Back Away From a Broad “At Issue” Waiver Approach

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Starting about 50 years ago in the case of Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), some courts recognized a broad “at issue” waiver that could strip away privilege without the holder’s disclosure of or even reference...more

Association of Certified E-Discovery...

Still Using General Objections? See How One Party’s Use Led to Waiver

This week, we’re delving into the post-2015 landscape of discovery objections and the critical lessons from Bocock v. Innovate Corp., a case that serves as a stark reminder of the perils of general objections and the...more

Array

This Week in eDiscovery: Ruling on Intentional vs. Inadvertent Privilege Disclosures, Royal Family Photo Puts Metadata in the News

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Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the week of March 11-17. Here’s what’s...more

EDRM - Electronic Discovery Reference Model

Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log”

Privilege logs have been getting a lot of attention, with good reason. “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.”  The Sedona...more

EDRM - Electronic Discovery Reference Model

[Webinar] Important eDiscovery Case Law Decisions for March 2024 - March 27th, 1:00 pm - 2:00 pm ET

Time to “spring” – into more eDiscovery case law! Our March 2024 monthly webinar of cases covered by the eDiscovery Today blog discusses disputes over in camera review of privilege logs, waiver of privilege over failing to...more

McGuireWoods LLP

Can Litigants on Opposite Sides of the “v.” Ever Enter Into a Common Interest Agreement?

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Separately represented clients sometimes may avoid the normal waiver implications of sharing privileged communications by entering into a common interest agreement — but such contractual arrangements frequently do not work....more

McGuireWoods LLP

Waiver Implications of Disclosing Work Product to the Government

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Last week's Privilege Point described a court's refreshingly correct acknowledgment that disclosing work product to friendly third parties does not waive that robust protection — in contrast to the more fragile privilege...more

Association of Certified E-Discovery...

[Webinar] Practical Applications of eDiscovery Rules - December 14th, 1:00 pm - 2:00 pm EST

We all know that there are Federal and State rules that govern how eDiscovery is conducted, but legal professionals need examples to illustrate how the rules should be applied, and what NOT to do. This webinar will use actual...more

Proskauer - Minding Your Business

E-cigs & E-discovery: When Marriage Cannot Save Sloppy Document Productions

What began as a trademark infringement dispute concerning electronic cigarettes has evolved into a never-ending series of discovery issues, and lessons about the limits of Federal Rule of Evidence 502 and privilege waivers...more

Ward and Smith, P.A.

Teamwork Can Sometimes Make the Dream Work: How to Properly Maintain the Protections of Common Interest Doctrine in North Carolina

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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

Pullman & Comley, LLC

Voluntary Disclosure of a Communication with Counsel: The CT Appellate Court Recognizes “Subject Matter” Waiver

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Accordingly, we hold that the voluntary disclosure of a privileged attorney-client communication constitutes a waiver of the privilege as to all other communications concerning the same subject matter when the trial court...more

McGuireWoods LLP

Plaintiff Relying on a Former Lawyer’s Testimony Can’t Avoid a Privilege Waiver

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Most courts hold that a litigant does not automatically waive privilege protection by listing a former lawyer as a witness – because that lawyer might testify about non-privileged facts. But not surprisingly, such a step can...more

EDRM - Electronic Discovery Reference Model

[Webinar] Important eDiscovery Case Law Decisions for May 2022 - May 24th, 1:00 pm - 2:15 pm ET

Our May monthly webinar of cases covered by the eDiscovery Today blog discusses disputes including third-party subpoena jurisdictional disputes, disputes over forensic imaging, the use of file “shredder” software and...more

EDRM - Electronic Discovery Reference Model

[Webinar] Important eDiscovery Case Law Decisions for April 2022 - April 21st, 1:00 pm ET

eDiscovery Case Law disputes can be “taxing” for the courts, but they’re fun to discuss! Our April monthly webinar of cases covered by the eDiscovery Today blog discusses disputes including third-party subpoena jurisdictional...more

Epiq

New Sedona Commentary Tells Us Protecting Privilege Can be Easy with Rule 502(d) Orders

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During the early phases of a case, there are times where disclosure of privileged information may occur. Although lawyers should do everything to protect confidential client information, communications, and work-product...more

McGuireWoods LLP

Three Subject Matter Waiver Decisions Send Mixed Signals: Part III

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Under general common law doctrine and Federal Rule of Evidence 502, courts normally hold that disclosing privileged communications only triggers a subject matter waiver if the disclosure seeks some advantage in court. But...more

McGuireWoods LLP

Three Subject Matter Waiver Decisions Send Mixed Signals: Part I

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Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a "sword" while simultaneously asserting the privilege as a...more

A&O Shearman

Asserting what you did not discuss with your solicitor may waive privilege over what you did discuss

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A party may waive privilege not just by making positive assertions about its privileged communications but also negative assertions (ie what was not said in privileged communications). For there to be a waiver, the party has...more

Burr & Forman

Making Adjustments: Insurers, Counsel, and the Attorney-Client Privilege

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Insurers often rely on counsel, external or otherwise, when addressing the validity and/or strength of claims filed by their insureds. However, there is a trend in the courts which makes the extent and nature of such reliance...more

Brooks Pierce

North Carolina Business Court Ruling Could Impact the Ability of Businesses to Assert Attorney-Client Privilege Over...

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A ruling issued by the North Carolina Business Court last month could have a significant impact on the ability of North Carolina companies and counsel to assert the attorney-client privilege over communications exchanged in...more

Association of Certified E-Discovery...

[Webinar] Save Time, Reduce Risk, and Rest Easy with H5 Matter Analytics® Privilege Logging! - October 27th, 1:00 pm - 2:00 pm ET

In this breakthrough product demonstration, you’ll see how H5 Matter Analytics combines its powerful solutions for privilege identification with a new Privilege Log design module to simplify and expedite the privilege logging...more

Butler Snow LLP

When Sharing is Caring: The Federal “Common Interest Privilege”

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The attorney-client privilege protects communications for the purpose of obtaining legal advice between attorney and client. It applies not only to communications with outside counsel but also with in-house attorneys who are...more

Kilpatrick

Risks of Waiving Privilege for Third Party Litigants When Producing Documents to the Government

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Waiver of privilege and particularly inadvertent waiver of privilege is always a concern in e-discovery when producing documents to an outside party. Not only may your current litigation be affected but waiver may also affect...more

Butler Snow LLP

Really? I Shouldn’t Bring My BFF to My Lawyer’s Office?

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The Pagliara divorce has given us much to talk about. In “Sex, Lies, (Drugs) and Videotape … and Malicious Prosecution”, we discussed the dismissal of Husband’s malicious prosecution claims against Wife’s former divorce...more

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