News & Analysis as of

Privilege Waivers Discovery

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

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

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

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

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

by Reed Smith on

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

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

Preserving the Attorney-Client Privilege when Conducting an Internal Investigation

by PilieroMazza PLLC on

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

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

by McGuireWoods LLP on

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

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

by Best Best & Krieger LLP on

*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

KBR And Maintaining Privilege Throughout Investigations

by Morrison & Foerster LLP on

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

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

by Wilson Elser on

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

European M+A News, Summer 2015

by Morrison & Foerster LLP on

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

Corporate Lawyers vs Federal Judges: Two Perspectives on Litigation Spending and E-Discovery Trends

by Exterro, Inc. on

When we released our Federal Judges Survey on E-Discovery Best Practices & Trends in February we weren’t quite sure what kind of response to expect. We knew the data was insightful (especially the judges’ view on the general...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

Words can come back to haunt you: Boilerplate pleading could lead to inadvertent waiver of attorney-client privilege

by Saul Ewing LLP on

Recently, a federal district court in Georgia ruled that a defendant waived the attorney-client privilege in communications with counsel about the lawfulness of its conduct under the False Claims Act simply by pleading good...more

Communication That Was Business Communication Could Not Be Protected by Attorney-Client Privilege But Could be Protected by...

Flatworld Interactives ("Flatworld") filed a patent infringement action against Apple Inc. ("Apple"). During the litigation, Apple sought the production of several documents that Flatworld claimed were protected by the...more

High Court makes a common sense decision when it comes to privilege

by DLA Piper on

In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 the High Court has overturned a decision by the NSW Court of Appeal and ordered the return of privileged...more

Washington Court Weighs in on Privilege Waiver & What Is Opposition Activity

by Littler on

In Lodis v. Corbis Holdings, Inc., No. 67215-1-I (Wash. Ct. App. Jan. 14, 2013), the Washington State Court of Appeals has helped clarify what has become a contentious issue in employment litigation, ruling that "when a...more

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