Privilege Waivers Attorney-Client Privilege

News & Analysis as of

Claiming Privilege or Work Product Protection During Discovery Can Risk Trial Disaster

Last week's Privilege Point addressed the decreasing subject matter waiver risk of corporations' pretrial disclosure of arguably privileged communications, or even their passing reference to legal advice in pretrial filings....more

The E-Discovery Digest - October 2015

In This Issue: - Attorney-Client Privilege/Work Product Decisions: ..Decisions Protecting Against Disclosure ..Decisions Ordering Disclosure Other - Spoliation Decisions: ..Spoliation Sanctions...more

More Courts take a Narrow View of Subject Matter Waivers

Thanks to common law developments and Federal Rule of Evidence 502, the frightening specter of subject matter waivers now usually only arises when litigants affirmatively rely on privileged communications to gain some...more

Attorney-Client Privilege Not Waived in Mistaken Records Release, California Appellate Court Finds

*As published in PublicCEO A Bay Area school district that inadvertently released attorney-client privilege documents following the resignation of its superintendent did not waive its disclosure exemption right granted...more

Business Litigation Report - September 2015

Alleging Fraud in a Financial Crisis: The Second Circuit Articulates a Less Stringent Pleading Standard for Loss Causation: Loss causation has emerged as a central obstacle to post-financial-crisis fraud cases. The loss...more

KBR And Maintaining Privilege Throughout Investigations

Last month, for the second time, the D.C. Circuit in In re Kellogg Brown & Root Inc., No. 14-5319, slip op. (D.C. Cir. Aug. 11, 2015), granted a writ of mandamus sought by KBR and vacated a series of district court orders...more

D.C. Circuit Reinforces Attorney-Client Privilege Applicable to Internal Investigations

On August 11, 2015, the United States Court of Appeals for the District Court of Columbia issued a decision of importance to all companies that seek to maintain privilege with respect to internal investigations. The D.C....more

Court Of Chancery Clarifies Privilege Waiver And Redaction Rules

This an excellent review of the scope of a waiver of the attorney client privilege and it harmonizes conflicting prior decisions. It also is a good outline of what must be in a redaction log....more

Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part II

Other courts take a different view. In Bacchi v. Massachusetts Mutual Life Insurance Co., defendant resisting a policyholder class action filed affirmative defenses "that it acted in good faith . . . and that its actions were...more

Does Asserting a "Good Faith" Affirmative Defense Waive the Attorney-Client Privilege?: Part I

As the most extreme example of an implied waiver, the "at issue" doctrine can waive privilege protection if a litigant affirmatively raises an issue that implicates privileged communications. Some courts hold that...more

D.C. Circuit Declines to Eviscerate Attorney-Client Privilege in Internal Investigations

On Tuesday, August 11, 2015, in United States ex rel. Barko v. Haliburton et al., the U.S. Court of Appeals for the D.C. Circuit issued an opinion vacating a series of rulings by the United States District Court for the...more

Court Grants Restraining Order in Light of Inadvertent Disclosure (California)

Newark Unified Sch. Dist. v. Superior Court , 2015 WL 4594095 (Cal. Ct. App. July 31, 2015). In this inadvertent document release case, the plaintiff sought injunctive relief against the defendant, requiring the return...more

Appeals Court Clarifies Attorney-Client, Work Product Privileges in Internal Investigation Context: 3 Takeaways

In its latest review of the attorney-client and work product privileges in In re: Kellogg Brown & Root, Inc. (“In re KBR”), the US Court of Appeals for the DC Circuit again rejected the district court’s restrictive...more

Appeals Court Decision Protects Attorney-Client Privilege in Internal Investigation

In In re Kellogg Brown & Root, Inc., et al., No. 14-5319 (D.C. Cir. August 11, 2015), the Court reversed a district court’s ruling that KBR waived these protections by using materials created in the course of a privileged...more

D.C. Circuit Weighs In Once Again in KBR Privilege Fight

In the ongoing saga which has been the subject of a previous post on this blog, a three-judge panel of the D.C. Circuit Court of Appeals has once again found that the district court erred in ordering the production of the...more

FRE 502(d) – An Underutilized “Safety Net” in Document Intensive Litigation

The inadvertent disclosure of privileged material may haunt a company for years, particularly in today’s era of pattern litigation and increased collaboration within the plaintiffs’ bar. Fortunately, in matters pending in...more

Attorney-Privileged Documents Mistakenly Released Under PRA Still Exempt

California Appellate Court Rules in Case Likely to be Decided by State Supreme Court - A public agency that inadvertently released attorney-client privileged documents to the public did not waive its right for those...more

Court Confirms that Corporations do not Waive Their Privilege by Communicating with Their Affiliates

The attorney-client privilege provides such a fragile protection that disclosure to nearly any third party waives the protection. Does that general rule apply to communications among corporate affiliates? Surprisingly few...more

Does Sharing Work Product with the Government Always Waive that Protection?

For decades, companies trying to cooperate with the government have hoped for a change in the general rule that disclosing privileged communications and/or work product to the government waives those protections. In nearly...more

European M+A News, Summer 2015

IP Pitfalls in Tech M&A Transactions - Technology and IP-driven deals accounted for over 30 percent of M&A deal volume in Europe in 2014. This trend is bound to continue, with many deals involving strategic or financial...more

Massachusetts Court Sheds Light On Deposition Privilege Waiver Issues

Chief Judge Patti Saris of the District of Massachusetts has issued a significant opinion on privilege waivers in the Trustees of Boston University v. Everlight Electronics case. The opinion concerned a deposition in the case...more

The Consequences of Waiving the Attorney-Client Privilege

The United States Court of Federal Claims recently issued an Order in Starr International Company, Inc. v. United States, No. 11-779C, regarding the consequences of an intentional waiver of the attorney-client privilege by...more

Claw Back of Privileged Documents Fails Where Defendants Had Used the Documents in Depositions, Expert Reports and in Briefs...

Defendants filed a motion to compel Adaptix to re-produce documents that Adaptix had clawed back on the grounds of privilege. Adaptix had early produced the documents in several productions. The Defendants argued in the...more

Internal Investigations: The Three C’s – Confidence. Credibility. Cost.


The E-Discovery Digest - June 2015

In This Issue: - - Attorney-Client Privilege/Work Product Decisions: ..Decisions Protecting Against Disclosure ..Decisions Ordering Disclosure - Spoliation and Preservation Decisions: ..Sanctions...more

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