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Privilege Waivers Attorney-Client Privilege

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

McGuireWoods LLP

Courts Assess Waiver Implications of Lawyers Testifying: Part II

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Last week’s Privilege Point described a Nevada federal court ruling that a lawyer’s testimony about non-privileged matters did not waive that fragile protection. Snow Covered Capital, LLC v. v. Fonfa, Case No....more

McGuireWoods LLP

Courts Assess Waiver Implications of Lawyers Testifying: Part I

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For obvious reasons, lawyers rarely testify at trial. The ethics rules normally prevent a lawyer from trying a case if she is “likely to be a necessary witness.” ABA Model Rule 3.7. And any lawyer’s testimony presents...more

Seyfarth Shaw LLP

Key Developments In Equal Pay Litigation: Maintaining Privilege Over Pay Equity Audits And Investigations

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Seyfarth Synopsis: In its seminal decision, Bostock v. Clayton County, Georgia, the Supreme Court held that discrimination on the basis of sexual orientation or gender identity is tantamount to discrimination on the basis of...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

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

Did S.D.N.Y. Mean to Apply Expansive Common Interest Doctrine?

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Under the widely recognized common interest doctrine, separately represented clients may sometimes contractually avoid the otherwise inevitable privilege waiver when sharing privileged communications. As explained previously...more

Skadden, Arps, Slate, Meagher & Flom LLP

Balancing Act: Sharing Information From an Internal Investigation Without Waiving Privilege

A whistleblower has triggered a race against time: An internal inquiry, directed by the audit committee and overseen by external counsel, has been launched in response to allegations that revenue was recorded without proper...more

McGuireWoods LLP

State Court Takes a Narrow View of the Common Interest Doctrine

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Under the common interest doctrine, separately represented clients may sometimes contractually avoid the normal waiver impact of disclosing privileged communications to each other. But federal and state courts take widely...more

Carlton Fields

Joint-Defense and Common-Interest Agreements in Government Investigations: Best Practices for In-House Counsel to Retain Privilege...

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Introduction - Your company is under investigation by the government. As part of the investigation, the government subpoenaed an employee for testimony. The employee retained a lawyer (separate from your company’s outside...more

Cranfill Sumner LLP

Unveiling Privilege Challenges in Joint Corporate Defense Agreements

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Four co-defendants meet with their joint defense counsel to discuss a pending lawsuit. The meeting ends and all participants are confident that the discussions will remain private. There is just one problem. One of the...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

McGuireWoods LLP

Are All Government Agencies Part of One “Client” for Privilege Purposes?

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Courts take differing positions on the "client's" identity in the government setting. Among other things, such differing positions might affect the waiver implications of one government agency disclosing its privileged...more

McGuireWoods LLP

Delaware Federal and State Courts Disagree About a Key Privilege Waiver Issue

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Under some arrangements, major shareholders appoint directors to companies those shareholders partially own. Does such a company waive its privilege by disclosing its privileged documents to a designating shareholder's...more

McGuireWoods LLP

How Does the Common Interest Doctrine Work in the Intellectual Property Context?

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The common interest doctrine sometimes prevents what would be a waiver when separately represented clients disclose privileged communications to each other. But the doctrine normally requires an identical legal interest, not...more

Butler Snow LLP

Company Cooperation Leads to Criminal Discovery

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When a company discovers that a crime may have been committed by individuals within the company, or is alerted by the government of that possibility, the company will often hire an outside law firm to conduct an internal...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

Jenner & Block

Privilege Newsletter: Investigations - Cooperating With The Government Without Waiving Privilege

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In response to a government investigation, the company has conducted a comprehensive internal investigation, taking steps necessary to establish and maintain applicable privileges and protections. The company now wants to...more

McGuireWoods LLP

Why Is a D.C. Federal Court Analyzing a State "Control Group" Privilege Standard, but the Federal Work Product Rule?: Part I

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All but a handful of states apply what is called the Upjohn privilege standard – under which the attorney-client privilege can protect a corporation's lawyer's communication with any corporate employee who has information the...more

K&L Gates LLP

Federal Court Ruling Creates Possible Harbinger for Information Shared from Internal Investigations with the Government

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Introduction - Privilege assertions and waivers are a hot area for internal investigations and government proffers. One burning question centers around whether a party may claim privilege over materials that it furnished to...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

Vinson & Elkins LLP

Inside Baseball on Privilege Waiver: the Los Angeles Angels’ Recent Win Over Federal Prosecutors Serves a Welcome Reminder to...

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In a high-profile dispute between federal prosecutors and the Los Angeles Angels relating to criminal charges filed in the aftermath of a tragic overdose and death of an Angels pitcher, the government went on the offensive...more

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