Work-Product Doctrine

News & Analysis as of

Focus on Tax Controversy and Litigation - Second Circuit Determines that Tax Memo Shared Between Taxpayers and Banks Is Protected...

In addition to the discussion of the Second Circuit’s decision in Schaeffler, this month’s issue features articles regarding the “new” IRS Notices covering “Basket Options” and “Basket Contracts”, the Tax Court’s recent...more

Second Circuit Upholds Common-Interest Privilege for Borrower’s Sharing of Legal Advice with Consortium of Lenders

The Second Circuit held last week that a borrower did not waive the attorney-client privilege by providing documents to a consortium of lender banks that shared a common legal interest with the borrower in the tax treatment...more

When Conducting Investigations, Consider "Privileges"

Whether voluntarily or as required by the International Safety Management Code, the American Waterways Operators’ (“AWO”) Responsible Carrier Program, or some other rule or regulation, investigations of accidents and...more

Attorney-Client Privilege and Work-Product Doctrine Shield Forensic Data Breach Consultant’s Communications and Documents from...

October 23, 2015, Magistrate Judge Jeffrey J. Keyes of the United States District Court for the District of Minnesota determined that the attorney-client privilege and the work-product doctrine shielded from disclosure...more

D.C. Circuit Once Again Upholds Privilege Over Internal Investigation Documents

In United States ex rel. Barko v. Halliburton Co. et al., a qui tam suit we previously covered, the District of Columbia Circuit Court of Appeals once again ruled that defense contractor KBR Inc.’s internal investigation...more

Whew! That Was Close – D.C. Circuit Reaffirms Application of Attorney-Client Privilege and Attorney Work Product Doctrine in...

On August 11, 2015, the U.S. Court of Appeals for the D.C. Circuit issued a writ of mandamus supporting the robust applicability of the attorney-client privilege and attorney work product doctrines in the context of False...more

“Individual Accountability for Corporate Wrongdoing”: The Yates Memo and the DOJ’s Focus on Individuals

On September 9, 2015, the Department of Justice issued a memo (“Individual Accountability for Corporate Wrongdoing”) to federal prosecutors nationwide implementing new policies that—for the first time—prioritize the...more

Appeals Court Clarifies Attorney-Client, Work Product Privileges in Internal Investigation Context: 3 Takeaways

In its latest review of the attorney-client and work product privileges in In re: Kellogg Brown & Root, Inc. (“In re KBR”), the US Court of Appeals for the DC Circuit again rejected the district court’s restrictive...more

DC Circuit reaffirms confidentiality of internal investigation communications

For the second time in 14 months, the US Court of Appeals for the DC Circuit has taken the extraordinary step of issuing a writ of mandamus to stop a federal district court from requiring a federal government contractor to...more

Public Records in Massachusetts: Legislature looks to Improve Access and Top Court Clarifies Attorney-Client and Work-Product...

The combined efforts of Massachusetts’ highest court, its legislature, and the Governor’s office are clarifying and modernizing Massachusetts public records law, which is considered by some to be one of the weakest in the...more

NLRB Limits Confidentiality in Workplace Investigations

In two decisions issued on June 26, the National Labor Relations Board overruled its longstanding precedent holding that employers may withhold witness statements from requesting unions and further held that general policies...more

Courts Disagree About Basic Work Product Doctrine Elements: Part II

Last week's Privilege Point discussed an important variation in courts' interpretation of the same sentence in their work product rule. Two other cases highlight additional disagreements: (1) the standard for overcoming...more

Focus on Tax Controversy and Litigation - Supreme Court Decides Maryland v. Wynne and Rules that Maryland Tax Scheme Is...

In This Issue: - Maryland’s Tax Scheme Ruled Unconstitutional - “FTC Generator” Case Update - FSA Rules that Equitable Disgorgement May be Deductible Expense - District Court Upholds Attorney Client...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

The Ethics of Internal Investigations, Domestic and Abroad: Protecting the Attorney Client Privilege during Internal...

The attorney-client privilege and the work product doctrine are two of the oldest and most sacrosanct privileges in the law. The attorney-client privilege protects the functioning of the attorney and client...more

Tax Court Holds that Inadequate Privilege Log Subjects Putatively Privileged Documents to Disclosure

On May 26, 2015, the Tax Court issued its opinion in Pacific Management Group v. Commissioner, T.C. Memo. 2015-97, holding that a privilege log provided to the Internal Revenue Service (IRS) was inadequate to sustain claims...more

Privileges Can Help Manufacturers in Product Liability Litigation, but Beware

This blog’s earlier post, “Protect Your Safety Investigations and Deliberations From Prying Eyes,” highlighted the three privileges that are useful for Safety Teams – self-critical analysis privilege (or self-evaluation...more

Do Witness Interview Memoranda Deserve Opinion or Merely Fact Work Product Protection?: Part I

Unlike the absolute attorney-client privilege, the work product doctrine offers two possible levels of protection. Lawyers' (and other client representatives') opinions deserve absolute or nearly absolute protection in most...more

Courts Focus on the Work Product Doctrine's "Motivation" Element

The work product doctrine protection rests on three elements: (1) litigation; (2) anticipation; (3) motivation. In normal civil or criminal litigation, the first element presents an easy analysis....more

Circuit Courts Explain Privilege Issue Appellate Review Standards

Attorney-client privilege issues frequently involve a complicated mixture of fact and law. Three circuit court decisions issued in a three-week period explain the basic approach that most courts take. ...more

The Northern District of Indiana Holds That Loss Reserve Information Qualifies as Protected Work Product.

In G&S Metal Consultants, Inc. v. Cont’l Cas. Co., 2014 U.S. Dist. LEXIS 151431 (N.D. Ind. Oct. 24, 2014), the district court held that loss reserves generated in anticipated of litigation were protected under the work...more

Commercial Restructuring & Bankruptcy Alert - October 2014

In this issue: - Judge Says That Stockton, California Can Cut Pension Obligations - Third-Party Releases – Better Make Sure They Are Adequately Disclosed - Lawyers Who Sign Proofs of Claims for Clients...more

Accountant and Attorney Liability Newsbrief - Fall 2014

In This Issue: - Attorneys’ E-mails to Client’s Independent Contractor May Be Protected by Attorney-Client Privilege - New York Appeals Court Decision Allows Predecessor Counsel to Place Equal Blame on Successor...more

Court Broadens Confidentiality of Investigations - D.C. Circuit extends privilege in internal corporate probes, but inconsistent...

You are counsel to a government contractor that is conducting an internal investigation into possible fraud. Federal mandatory disclosure obligations require an investigation, as does the need to gather facts to seek legal...more

How Far Does the In-House Zone of Silence Extend?

In a recent case, a Massachusetts appellate court raised important questions about the scope of the work product doctrine for in-house lawyers. In Cahaly v. Benistar Property Exchange Trust Co., the plaintiffs sought...more

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