Privilege Waivers

News & Analysis as of

Insurers Beware: Defending Bad Faith Claim May Lead to Waiver of Privileged Communications

On July 27, 2016, the United States District Court for South Carolina ordered an insurer to turn over its privileged communications. The Court explained that the insurer waived the protections afforded under the...more

After Defendant Seeks to Claw Back Attorney-Client Privileged Documents, District Court Determines Privileged Waived (Including...

The defendants produced documents in response to plaintiffs' first set of requests for production and included in the production were five documents that the defendants were later claim were subject to attorney-client...more

An Investigative Piece on Clawback Agreements

Who: Clawback agreement; alias: Rule 502 Agreement. What: A mechanism to take back inadvertently disclosed privileged and/or confidential information and protect against an argument that you waived privilege....more

Everest Indemnity Insurance Company v. Rea Rejects Implied Waiver Of The Attorney-Client Privilege

As it stands now, the majority decision in Everest is clear: No implied waiver of the attorney-client privilege occurs where adjusters themselves make the claims decisions and do not rely on the advice of counsel to form...more

‘Sorry, But You Have Nothing in Common’: The New York Court of Appeals’ Recent Rejection of the ‘Common Interest Doctrine’...

The New York Court of Appeals, the state’s highest court, recently rejected an attempt to apply the “common interest doctrine,” an exception to the general rule that communicating privileged information to a third party...more

Court Takes a Liberal View of Privilege for Communications Between a Plaintiff and a Litigation Funder

With litigants' increasing reliance on litigation funders, courts have had to wrestle with privilege and work product issues, including whether litigants and their litigation funders share a "common interest" allowing the...more

New York’s Highest Court Refuses to Expand the Common Interest Doctrine to Merging Parties

On June 9, 2016, the New York Court of Appeals issued a stark reminder to transactional lawyers: no matter how much “common interest” two parties may have with respect to a transaction, the common interest doctrine may not...more

Court Analyzes a Subject Matter Waiver's Scope

Once a feared effect of disclosing privileged communications (sometimes even inadvertently), subject matter waivers now occur in most courts only when a litigant attempts to gain some advantage in litigation by affirmatively...more

[Webinar] Ethics - Confidentiality Issues Re: Attorney Client Privilege and Information - June 8th, 12:00pm CT

Confusion surrounds the attorney-client privilege. Many think they have it when they do not and even if they do, they fail to appreciate how easy it is to lose. In either case, not enough attention is paid to the possibility...more

Beware of Unguarded Talk: A Cautionary Tale of Privilege Waiver in Wisconsin

Loose lips sink ships. And, at least according to the Wisconsin Court of Appeals, they can sink the protections afforded to privileged communications. A decision last week in a criminal case could have considerable...more

Inadvertent Disclosure Does Not Waive Exemptions/Privileges Under the PRA

California Supreme Court Gives Public Agencies Safety Net - A public agency’s inadvertent disclosure of privileged documents under the Public Records Act does not waive the privilege, the California Supreme Court has...more

Preserving the Attorney-Client Privilege when Conducting an Internal Investigation

You may recall that, back in July 2014, we advised that the D.C. Circuit Court of Appeals had overturned a D.C. District Court decision in a False Claims Act case that required the results of an internal investigation, which...more

Intellectual Property Alert: Patent Agent Privilege Confirmed by Federal Circuit

Yesterday, in a 2-1 mandamus decision in the case In re Queens University, the Federal Circuit ordered the district court to withdraw its order compelling discovery of communications with non-attorney patent agents. The...more

Corporations Can Risk Privilege Protection by Relying Too Heavily on Legal Advice when Firing Employees

Corporations firing employees normally must explain why. All corporate lawyers recognize that affirmatively pleading "advice of counsel" as an employment case defense normally waives privilege protection, but the risks can...more

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

Privileged Documents and Regulatory Investigations: When Does Waiver Come Into Play?

When a regulator comes knocking at your door, with an order compelling the production of documents, how should you treat communications between you and your lawyers? Are you required to produce privileged documents to the...more

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