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Privilege Waivers

Reading Inadvertently Disclosed Privileged Documents Risks Disqualification

by McGuireWoods LLP on

Nearly every case focusing on inadvertently disclosed privileged communications (during document productions or at other times) focuses on the privilege waiver implications. However, the stakes can be much higher....more

One Year After Ambac: Sharing Information Among Deal Parties

by WilmerHale on

On June 9, 2016, the New York Court of Appeals issued its decision in Ambac Assurance Corp. v. Countrywide Home Loans Inc. and held that the common interest doctrine protects only communications among deal parties that are...more

First Department Finds Work-Product Protection Not Waived by Storage of Documents on Company Laptop

On June 6, 2017, the First Department had an opportunity to apply—and reaffirm—last month’s decision in Peerenboom v. Marvel Entm’t, LLC, where the Court held that use of a company email system for personal purposes “does...more

Privilege Implications of an Explicit or Implicit "Advice of Counsel" Defense: Part II

by McGuireWoods LLP on

Last week's Privilege Point described the normal broad subject matter waiver triggered by litigants' explicit defensive reliance on legal advice. Litigants' implicit reliance can have the same effect. In Maar v. Beall's,...more

WilmerHale, Waivers and When to Stop Investigating

by WilmerHale on

Boyd Johnson is the New York-based co-chair of WilmerHale’s investigations practice, while Stephen Pollard leads the firm’s UK team. Both partners joined WilmerHale in late 2011 – Johnson from the US Attorney’s Office for the...more

Privilege Implications of an Explicit or Implicit "Advice of Counsel" Defense: Part I

by McGuireWoods LLP on

All lawyers know that pleading an "advice of counsel" affirmative defense waives privilege protection. But lawyers must remember such waivers' breadth. In United States v. Trotter, defendant Trotter announced his intent...more

"Preserving Attorney-Client Privilege, Work-Product Protection During Internal Investigations"

When companies conduct investigations that remain strictly internal, maintaining confidentiality is straightforward. But many investigations are conducted in cooperation with U.S. government regulators, who expect companies...more

"DOJ and SEC Cooperation Policies"

Whereas the privilege and work-product doctrine generally require confidentiality, cooperation with the government often necessitates disclosure. The Department of Justice (DOJ) and Securities and Exchange Commission (SEC)...more

The Advice of Counsel Defense - Just How Far Does that Attorney-Client Privilege Waiver Go?

by Bryan Cave on

Following a recent federal court ruling, parties contemplating an advice of counsel defense must consider carefully the scope of the accompanying attorney-client privilege waiver. In United States ex rel. Lutz v. Berkeley...more

Illogical and Frightening "Need to Know" Doctrine

by McGuireWoods LLP on

Corporations face two possible impediments when claiming privilege protection for purely internal communications. First, some courts see widespread intra-corporate circulation as tending to show that the communications...more

2016 Guidance from the North Carolina Court of Appeals on Attorney-Client Privilege Issues

by Ward and Smith, P.A. on

In civil litigation, parties frequently communicate with consultants, tax advisors, friends, family, and others concerning the subject matter of the litigation, and such communications raise issues regarding the possible...more

Putting Information on File Share Site without Protection Waives Privilege, Court Rules: eDiscovery Case Law

by CloudNine on

In Harleysville Insurance Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Feb. 9, 2017), Virginia Magistrate Judge Pamela Meade Sargent ruled that the plaintiff’s placement of privileged information on a file...more

Privilege Waiver: Is Your File-Sharing Site a Public Park Bench?

While courts and the Federal Rules of Evidence take an increasingly pragmatic approach to the question of when inadvertent disclosure of privileged information results in waiver, a recent federal magistrate’s ruling serves as...more

Ex-General Counsel Dodged Privilege Claims Before $14.5 Million Verdict

by Zuckerman Spaeder LLP on

In our last post, we detailed how Sanford Wadler, the former general counsel of Bio-Rad Laboratories, won a $14.5 million verdict against Bio-Rad. Before Wadler could get to a jury, however, he had to surmount a...more

Evidence Law Litigation Update - February 2017

New York Court of Appeals Holds That the Common Interest Doctrine Applies Only to Litigation Matters. This year, in Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. 80, 2016 N.Y. Lexis 1649 (N.Y. June 9, 2016), New...more

Involvement of Opinion Counsel in Trial Strategy Results in a Broad Subject-Matter Waiver that Extends to Trial Counsel

In a December 13, 2016, order (made publicly available in redacted form on January 5, 2017), the District Court for the Eastern District of North Carolina enunciated a broad waiver of the attorney-client privilege for a party...more

District Court Orders Production of Attorney-Client Communications Between Opinion Counsel and Trial Counsel Based on Advice of...

Plaintiff Krausz Industries Ltd. ("Krausz") filed a motion for an order compelling Defendants Smith-Blair, Inc. and Sensus USA, Inc. (collectively "Smith-Blair") to allow discovery into various attorney-client communications...more

California Supreme Court Concludes Attorney Invoices Privileged During Ongoing Litigation

Attorney invoices may be protected in their entirety by the attorney-client privilege during ongoing litigation. After litigation has concluded, however, those same invoices may be discoverable. So concludes the California...more

Supreme Court of Missouri Holds No Waiver of Work Product Privilege When Party Rescinds Designation of Expert Witness Without...

by Williams Venker & Sanders on

State ex rel. Jason H. Malashock v. The Honorable Michael T. Jamison, SC 95606 (November 1, 2016) The Supreme Court of Missouri reversed a trial court’s order permitting the deposition of a plaintiff expert witness on...more

Despite Privilege, GC May Pursue Whistleblower Retaliation Suit under SOX and Dodd–Frank

California’s USDC–ND ruled that Bio-Rad Laboratories’ former General Counsel may use privileged communications to prove his retaliatory-discharge case prosecuted under Sarbanes–Oxley and Dodd–Frank’s whistleblower...more

Corporate Individual Creating a Privileged Communication May Not Control Waiving it

by Burns & Levinson LLP on

While companies, like people, are entitled to protect privileged communications with their counsel, companies only can act through individuals. So what happens when the former CEO wants to disclose a privileged communication...more

Does Releasing an Internal Investigation Report Always Trigger a Subject Matter Privilege Waiver?

by McGuireWoods LLP on

One might think that a corporation or government entity would always trigger a subject matter privilege waiver by disclosing an internal investigation report. But subject matter waiver risks have been receding. In Hawa...more

The Attorney Client Privilege in Community Associations

by Ward and Smith, P.A. on

Few legal concepts rival the complexities surrounding the attorney-client privilege in community association matters. The confusion about these complexities, and the resulting misunderstandings, do not discriminate, roping...more

Production of Insurance Company Claim Files In Bad Faith Litigation: Three Years After Cedell, Where Are We?

by Cozen O'Connor on

Bad faith litigation is complex and costly. In these types of cases, the discovery process often sets the initial tone of the lawsuit and the request for production of the insurer’s claim file is automatic. Typically, the...more

Tenth Circuit Applies the Bevill Standard

by McGuireWoods LLP on

Although corporations' in-house and outside lawyers should scrupulously avoid accidentally creating an attorney-client relationship with employees, they can also rely on what amounts to a favorable default rule — articulated...more

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