Privilege Waivers

News & Analysis as of

Massachusetts Court Sheds Light On Deposition Privilege Waiver Issues

Chief Judge Patti Saris of the District of Massachusetts has issued a significant opinion on privilege waivers in the Trustees of Boston University v. Everlight Electronics case. The opinion concerned a deposition in the case...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

Internal Investigations: The Three C’s – Confidence. Credibility. Cost.

In this issue: - THE THREE C’S — CONFIDENCE, CREDIBILITY AND COST - WHO CONDUCTS THE INVESTIGATION? - SCOPE OF THE INVESTIGATION - MINDSET AT THE OUTSET OF AN INVESTIGATION - THE NEED FOR...more

The E-Discovery Digest - June 2015

In This Issue: - - Attorney-Client Privilege/Work Product Decisions: ..Decisions Protecting Against Disclosure ..Decisions Ordering Disclosure - Spoliation and Preservation Decisions: ..Sanctions...more

Submitting Your Defense Bills to Insurers Could Mean Waiving Privilege

Recently, the California Court of Appeal decided County of Los Angeles Board of Supervisors v. Superior Court, 235 Cal. App. 4th 1154 (2015), a case considering whether the Los Angeles County Sheriff's Department could be...more

Insurance Recovery Law - May 2015 #2

Recent Lawsuit Underscores Critical Lessons for Purchasers of Cyber Insurance - Why it matters: Columbia Casualty Company v. Cottage Health Systems was filed on May 7, 2015, in the Central District of California. Cottage...more

The Implied Waiver of the Attorney-Client Privilege Under State Farm v. Lee: A Refresher Course

Whether a party has impliedly waived the attorney-client privilege poses a mixed question of law and fact. Twin City Fire Insurance Co. v. Burke, 204 Ariz. 251, 254, 63 P.3d 282, 285 (2003). In State Farm v. Lee, the Arizona...more

Insurance Companies and the Attorney-Client Privilege in Arizona  [Video]

Phoenix business law firm Jaburg Wilk Insurance attorney Nathan D. Meyer discusses whether an insurance company can waive the attorney-client privilege in Arizona without asserting the advice of counsel defense. For more...more

Everest Indemnity Insurance Company v. Rea - Court Addresses Whether Insurance Company’s Consult With Counsel Constitutes Waiver...

Rudolfo Brothers Plastering, Inc. claimed that Everest Indemnity Insurance Company acted in bad faith by entering into a settlement agreement that exhausted the liability coverage of an Owner Controlled Insurance Program...more

[Webinar] Power-up Your Privilege Review: Protecting Privileged Materials in Ediscovery - April 29, 12-1pm CST

With the growth of information subject to privilege reviews and the increased role of technology, protecting privileged documents is one of the most critical issues for lawyers and legal teams working on an ediscovery...more

Illinois Supreme Court Holds Accountant is Holder of Privilege, No Testamentary Exception

Late in the March term, the Illinois Supreme Court handed down its opinion in Brunton v. Kruger, an opinion with potentially significant implications for Illinois accountants. Brunton posed three related questions about the...more

California Supreme Court to Hear PRA Case on Inadvertent or Accidental Disclosure of Privileged Records

The California Supreme Court has granted review of a controversial Public Records Act ruling and will decide whether the well-recognized protection for attorney-client privileged documents inadvertently disclosed during the...more

The News Today Should Be a Wake Up Call for Litigation Attorneys

The words above come directly from some of the most respected and influential Federal Judges on the bench today, and in my mind, are simply staggering. It's been 10 years since Zubulake v. UBS Warburg and yet 32% of the...more

Illinois Supreme Court Debates Scope of Accountant-Client Privilege in Will Contests

Last week, the Illinois Supreme Court heard oral argument in Brunton v. Kruger.  Brunton involves the scope of the accountant-client privilege – specifically, what happens to that privilege after the client dies, and how the...more

Implied Waiver of Privilege in Internal Investigations: Barko Court Compels Production of Internal Investigation Documents, Again

On November 20, 2014, the District Court for the District of Columbia once again ordered Kellogg, Brown and Root (“KBR”) to produce all documents prepared as part of an internal investigation.  The District Court’s decision...more

Public Entities Can Inadvertently Waive Privilege in Response to a Public Records Act Request

California’s Public Records Act (PRA) law requires public entities to make their public records open for inspection and copying. Environmental practitioners often use PRA requests as a tool to obtain information regarding a...more

Accidental Disclosure Waives Privilege Under Public Records Act

Court of Appeal Says Privilege Removed Under PRA By Inadvertent Disclosure of Privileged Documents - If a privileged document is accidentally released to the public during compliance with a Public Records Act request,...more

Nevada Lawyers Beware: Don’t Use Privileged Documents To Prep Your Client To Testify

Twice this year, the Nevada Supreme Court ruled that a party may be required to produce for inspection an otherwise privileged document used to refresh a witness’s recollection prior to or during the witness’s testimony at a...more

Court Denies Exclusive Use of TAR Privilege Review, Leaves Option on Table for Later Use (West Virginia)

Good v. American Water Works, 2014 WL 5486827 (S.D. W. Vir. Oct. 29, 2014). In this class action litigation involving the Freedom Industries chemical spill, the parties met, conferred, and agreed on all but one...more

Uncertain Privilege: Implied Waiver of the Attorney-Client Privilege in False Claims Act Litigation

In a pending False Claims Act (“FCA”) case stemming from alleged violations of the physician self-referral law (the “Stark Law”), 42 U.S.C. § 1395nn, and the federal Anti-Kickback Statute (“AKS”), 42 U.S.C. §1320a-7b, the...more

White Collar Watch - October 2014

In This Issue: - Government demonstrates willingness to enforce Affordable Care Act provision that could cost providers millions of dollars - Words can come back to haunt you: Boilerplate pleading could lead...more

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

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

Illinois Supreme Court Agrees to Decide If Accountant-Client Privilege Applies to Will Contests

In the closing days of its September term, the Illinois Supreme Court allowed a petition for leave to appeal in Brunton v. Kruger. Brunton involves the scope of the accountant-client privilege – more specifically, what...more

House Passes Bill to Fix Privilege Waiver Problem for Nonbanks

A bill (H.R. 5062) recently passed by the House of Representatives would amend the Consumer Financial Protection Act (the CFPA), which is Title X of the Dodd-Frank legislation, to provide protection against waiver of state...more

Does the Attorney-Client Privilege Protect Communications With A Company’s Outside Consultants?

A recent decision by the Massachusetts Land Court provides helpful guidance to clients who frequently rely on independent contractors such as brokers, project managers and public relations consultants to interface with their...more

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