Insurance Companies and the Attorney-Client Privilege in Arizona
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
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
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
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
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
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
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
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
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
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
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
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
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
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
The unpredictable "at issue" waiver doctrine can strip away privilege protection without any disclosure of, or explicit reliance on, privileged communications. But state courts and even federal courts take widely varying...more
The frighteningly unpredictable "at issue" waiver doctrine can strip away attorney-client privilege protection when the client seeks some legal advantage by putting "at issue" its knowledge, ignorance, conduct, etc. This type...more
Under general common law doctrine and Federal Rule of Evidence 502, courts normally hold that disclosing privileged communications only triggers a subject matter waiver if the disclosure seeks some advantage in court. But...more
Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a "sword" while simultaneously asserting the privilege as a...more
A party may waive privilege not just by making positive assertions about its privileged communications but also negative assertions (ie what was not said in privileged communications). For there to be a waiver, the party has...more
An attorney-client privilege protection owner may waive that protection: (1) expressly, by disclosing privileged communications, or (2) impliedly, by relying on the existence of such privileged communications to gain some...more
The common interest doctrine can allow separately represented clients to avoid the normal privilege waiver implications of sharing privileged communications. But the doctrine is unpredictable and therefore risky....more
One of the most dangerous misperceptions among corporate clients is that disclosing privileged communications to such friendly outsiders as public relations consultants does not waive privilege protection as long as there is...more
As though commercial transactions were not already fraught with enough potential pitfalls, a recent decision from the Southern District of New York highlighted yet another risk that could carry significant consequences to...more
As if waiving privilege protection (either intentionally or inadvertently) was not frightening enough, the sinister subject matter waiver doctrine might force disclosure of additional privileged documents on the same topic....more
A federal district court in Washington recently held that a claims handling mishap resulted in a waiver of the attorney-client privilege otherwise protecting a coverage opinion provided by the insurer’s internal legal...more