Work-Product Doctrine

News & Analysis as of

Maximizing Work Product Protection After an Ordinary Course Internal Investigation Uncovers Serious Problems that Could Trigger...

The work product doctrine only protects internal corporate investigations initiated by the corporation's anticipation of litigation. Thus, the protection normally does not extend to investigations required by some external or...more

Whistleblower’s Attorney’s Communications with Regulators Found to be Protected by Work Product Doctrine

A California Magistrate Judge in BofI Federal Bank v. Erhart ruled that a whistleblower’s attorney’s communications sent to federal regulators were protected by the attorney work product doctrine. No. 15-cv-2353 (S.D. Cal....more

Court Points to Several Factors in Denying Work Product Protection: Part II

Last week's Privilege Point described a court's rejection of a work product claim based, in part, on an in-house lawyer's lack of involvement in creating the withheld documents. Phoenix Technologies Ltd. v. VMware, Inc., Case...more

Court Points to Several Factors in Denying Work Product Protection: Part I

Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the...more

What Is "Litigation" for Work Product Protection Purposes?

Fed. R. Civ. P. 26(b)(3) and its state counterparts protect from discovery "documents and tangible things that are prepared in anticipation of litigation." This obviously includes civil litigation. But what about other forms...more

Protect the Privilege: Considerations in Employment Investigations

Employers can take many steps to help maximize the likelihood that attorney-client privileged information and work product will be protected in the context of employment-related investigations. In the recent case of City...more

Privilege Considerations in Cyber Incident Response

As with other types of crisis situations, a cyber security incident can generate not only operational issues, but also significant legal exposure. Affected companies should think through the associated privilege issues,...more

District Court Denies Request for Production of Documents Provided to Prospective Litigation Funding Organizations

In this patent infringement action, the defendant sought the production of documents that the plaintif, IOENGINGE, had provided to potential companies that could fund litigation. IOENGINGED claimed that the documents were...more

Insurers Beware: Defending Bad Faith Claim May Lead to Waiver of Privileged Communications

On July 27, 2016, the United States District Court for South Carolina ordered an insurer to turn over its privileged communications. The Court explained that the insurer waived the protections afforded under the...more

E Pluribus Unum Is for eDiscovery Too

The proliferation of data to the point of excess is a common refrain and problem for many organizations today. The scale to which data has grown recently has a direct correlation to eDiscovery – as organizations struggle to...more

CA Appellate Court Rules That Outside Counsel’s Fact Investigation is Privileged

On June 8, 2016, the First Appellate District of the California Court of Appeal, reversed a Sonoma County Superior Court, holding that an outside counsel’s investigative report was protected from discovery by the...more

I Spy the Relevant Data: Using Analytics to Accelerate eDiscovery for Second Requests

Pikachu, Wartortle, Ivysaur, Rattata—can you catch ‘em all? With Pokémon Go, the current augmented reality app craze, your goal is to search for and capture these virtual monsters that pop up in various places using your...more

The First Appellate District Confirms that the Attorney-Client Privilege and the Attorney Work Product Doctrine Apply to...

In City of Petaluma, the former employee filed a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) alleging sexual harassment and retaliation during her employment with the City of Petaluma (“City”). The...more

Personnel Investigation By Outside Attorney Protected From Disclosure In Discovery

Seyfarth Synopsis: California Court of Appeal holds that (1) an outside attorney’s investigation can be privileged even though the attorney simply investigated facts, and (2) the employer does not waive the privilege simply...more

California Court of Appeal Finds Fact Investigation by Outside Counsel is Privileged

In City of Petaluma v. Superior Court (Andrea Waters), the California Court of Appeal recently held that outside counsel's fact investigation of an employee's harassment and discrimination claims conducted prior to litigation...more

Can the Privilege Protect Emails that Lawyers Do Not Send or Receive?

Because privilege logs generally require withholding litigants to identify emails' senders and recipients, the absence of a lawyer's name often triggers discovery skirmishes. Not surprisingly, the withholding litigants'...more

Court Finds Bracewell & Guiliani Report Unprotected by the Privilege or the Work Product Doctrine

Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other...more

Does the Opinion Work Product Doctrine Protect the Identity of Documents a Litigant Obtains from a Third Party?

Many courts extend opinion work product protection to a lawyer's selection of intrinsically unprotected documents used to prepare a deponent, the identity of witnesses important enough to interview, etc. This approach is...more

How Does a Company Satisfy the Work Product Motivation Element for Post-Accident Investigations? (Part II)

Last week's Privilege Point discussed a court's rejection of a work product claim for a routine post-accident incident report. That defendant did not establish that the report was different from reports following accidents...more

How Does a Company Satisfy the Work Product Motivation Element for Post-Accident Investigations? (Part I)

Companies frequently investigate accidents and other unfortunate incidents. If they do so in the ordinary course of their business, the work product doctrine normally does not apply. How do companies establish that a...more

AbbVie Documents Not Protected by Privilege in FTC Sham Litigation Suit - Federal Trade Commission v. AbbVie, Inc., (E.D. Penn....

The U.S. District Court for the Eastern District of Pennsylvania ordered AbbVie, Inc. and Besins Healthcare to produce unredacted documents to the Federal Trade Commission (FTC), because the documents were relevant to the...more

Court Provides Refresher On Discovery In Bad-Faith Litigation Where Reinsurers Are Involved

A Nevada federal district court provides a primer on discovery rules relating to bad faith claims and reinsurers. The case involved a bad-faith claim between OOIDA Risk Retention Group, Inc. and an individual insured. When...more

The Privilege of PR: Application of the Attorney-Client Privilege to Crisis Communications and Public Relations in Breach Response...

Cyber-attacks have become a matter of everyday reality for all businesses: regardless of industry or size, it is no longer if a data breach will happen, but when. And waiting for a breach to occur before designing and...more

Second Circuit Offers Bad News, Good News and No News

In Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), the Second Circuit reversed a district court's holding that (1) a taxpayer waived his privilege protection by disclosing protected legal advice to his lenders, and...more

Privilege not Waived for Inadequate Privilege Log

Catalina Yacht Club, et al. v. The Superior Court of Orange County, et al. - Court of Appeal, Fourth Appellate District, Division Three (December 4, 2015) - Courts have broad discretion to impose sanctions of...more

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