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Privilege Waivers

Arizona Court of Appeals Confirms Attorney-Client Privilege Holder Must Affirmatively Inject Attorney-Client Communications Into...

by Jaburg Wilk on

The Holding - In Robert W. Baird & Co. Inc., v. The Honorable Christopher Whitten, 2017 WL 4296583 (Ariz. App. Sep. 28, 2017) (774 Ariz. Adv. Rep.4), the Arizona Court of Appeals just held that a legal malpractice...more

Does a Client Risk Privilege Protection by Bringing Her Mother to a Lawyer Meeting?

by McGuireWoods LLP on

Because it is absolute and can hide important facts from easy discovery, the attorney-client privilege is hard to create, narrow, and fragile. Among other things, even friendly third parties' presence can abort privilege...more

Arizona District Court: Insurer Expert's Deposition Testimony Impliedly Waived Attorney-Client Privilege in Bad Faith Case

by Jaburg Wilk on

The Takeaways - Bad faith defense counsel should caution their bad faith experts not to speculate that an insurer’s claim decisions were based on advice of counsel. - The Hunton case continues the trend of Arizona...more

Despite Clawback, Defendant’s Reckless Abandon of Rule 502 Bites Back

by Zapproved LLC on

Irth Sols., LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017). The court denied the defendant’s request to return privileged documents that it claimed it had mistakenly produced on...more

Rule 502(d) Orders for Non-Waiver of Privilege: eDiscovery Best Practices

by CloudNine on

Tomorrow, Tom O’Connor and I will discuss the various issues to consider and decisions to be made to help you meet your discovery obligations in an efficient and proportional manner when preparing for the Rule 26(f)...more

Protecting Privileged Information From Former Senior Managers Can Be Tricky

by Burns & Levinson LLP on

As most attorneys know, a privileged communication only can be waived by the client, and when the client is an individual, it is obvious who controls that ability to waive. Things become murkier, however, when the client is a...more

Pre-Merger Intentional Waiver of Privilege Can Extend to Post-Merger Communications

by McDermott Will & Emery on

The US Court of Appeals for the Federal Circuit ruled that a predecessor company’s intentional waiver of attorney-client privilege can survive the company’s merger. In re OptumInsight, Inc., Misc. Docket No. 2017-116 (Fed....more

Drawing the Line Between Waiver and Non-Waiver: Part II

by McGuireWoods LLP on

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v....more

Federal Circuit Says PTO Submissions can Waive Privilege to Future Communications

On July 20, 2017, the United States Court of Appeals for the Federal Circuit in In re OptumInsight denied OptumInsight’s petition for writ of mandamus on privilege waiver. The court held that the District Court for the...more

Drawing the Line Between Waiver and Non-Waiver: Part I

by McGuireWoods LLP on

Clients describing their past or intended future actions obviously do not waive their privilege protection – even if the clients are following their lawyers' advice. But clients voluntarily disclosing privileged...more

Does Disclosure Of Results Of Internal Investigation Constitute Subject Matter Waiver?

by Allen Matkins on

Last Friday, I wrote about one of the docketed appeals in Wynn Resorts, Limited v. Eight Jud. Dist. Ct., 41 Nev. Adv. Op. 52 (2017). Today’s post concerns the other docketed appeal in that case. This appeal addressed...more

The E-Discovery Digest - June 2017

The seventh edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney-client privilege and work-product doctrine, spoliation, and discovery responses....more

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

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