Privilege Waivers Attorney-Client Privilege

News & Analysis as of

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

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.

In this issue: - THE THREE C’S — CONFIDENCE, CREDIBILITY AND COST - WHO CONDUCTS THE INVESTIGATION? - SCOPE OF THE INVESTIGATION - MINDSET AT THE OUTSET OF AN INVESTIGATION - THE NEED FOR...more

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

Insurance Recovery Law - May 2015 #2

Recent Lawsuit Underscores Critical Lessons for Purchasers of Cyber Insurance - Why it matters: Columbia Casualty Company v. Cottage Health Systems was filed on May 7, 2015, in the Central District of California. Cottage...more

The Implied Waiver of the Attorney-Client Privilege Under State Farm v. Lee: A Refresher Course

Whether a party has impliedly waived the attorney-client privilege poses a mixed question of law and fact. Twin City Fire Insurance Co. v. Burke, 204 Ariz. 251, 254, 63 P.3d 282, 285 (2003). In State Farm v. Lee, the Arizona...more

Insurance Companies and the Attorney-Client Privilege in Arizona  [Video]

Phoenix business law firm Jaburg Wilk Insurance attorney Nathan D. Meyer discusses whether an insurance company can waive the attorney-client privilege in Arizona without asserting the advice of counsel defense. For more...more

Everest Indemnity Insurance Company v. Rea - Court Addresses Whether Insurance Company’s Consult With Counsel Constitutes Waiver...

Rudolfo Brothers Plastering, Inc. claimed that Everest Indemnity Insurance Company acted in bad faith by entering into a settlement agreement that exhausted the liability coverage of an Owner Controlled Insurance Program...more

[Webinar] Power-up Your Privilege Review: Protecting Privileged Materials in Ediscovery - April 29, 12-1pm CST

With the growth of information subject to privilege reviews and the increased role of technology, protecting privileged documents is one of the most critical issues for lawyers and legal teams working on an ediscovery...more

California Supreme Court to Hear PRA Case on Inadvertent or Accidental Disclosure of Privileged Records

The California Supreme Court has granted review of a controversial Public Records Act ruling and will decide whether the well-recognized protection for attorney-client privileged documents inadvertently disclosed during the...more

Implied Waiver of Privilege in Internal Investigations: Barko Court Compels Production of Internal Investigation Documents, Again

On November 20, 2014, the District Court for the District of Columbia once again ordered Kellogg, Brown and Root (“KBR”) to produce all documents prepared as part of an internal investigation.  The District Court’s decision...more

Public Entities Can Inadvertently Waive Privilege in Response to a Public Records Act Request

California’s Public Records Act (PRA) law requires public entities to make their public records open for inspection and copying. Environmental practitioners often use PRA requests as a tool to obtain information regarding a...more

Accidental Disclosure Waives Privilege Under Public Records Act

Court of Appeal Says Privilege Removed Under PRA By Inadvertent Disclosure of Privileged Documents - If a privileged document is accidentally released to the public during compliance with a Public Records Act request,...more

Nevada Lawyers Beware: Don’t Use Privileged Documents To Prep Your Client To Testify

Twice this year, the Nevada Supreme Court ruled that a party may be required to produce for inspection an otherwise privileged document used to refresh a witness’s recollection prior to or during the witness’s testimony at a...more

Uncertain Privilege: Implied Waiver of the Attorney-Client Privilege in False Claims Act Litigation

In a pending False Claims Act (“FCA”) case stemming from alleged violations of the physician self-referral law (the “Stark Law”), 42 U.S.C. § 1395nn, and the federal Anti-Kickback Statute (“AKS”), 42 U.S.C. §1320a-7b, the...more

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