Work Product Privilege

News & Analysis as of

Start Spreading the News: With National Union v. TransCanada, New York Prepares to Broadcast Communications with Coverage...

The final opinion of a New York appellate court in National Union Fire Ins. Co. of Pittsburgh v. TransCanada Energy USA, Inc., 119 A.D.3d 492 (2014), is only three paragraphs long, but it raises a host of questions about how,...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

Unforced Errors Under Upjohn

Over thirty years ago, the Supreme Court clarified how the attorney-client privilege applies to records of internal investigations in Upjohn v. United States, 449 U.S. 383 (1981). Yet putting the principles of Upjohn into...more

D.C. Circuit Court Clarifies Scope of Attorney-Client Privilege in Internal Investigations

On June 27, 2014, the United States Court of Appeals for the District of Columbia Circuit issued an opinion clarifying the application of the attorney-client privilege in internal investigations. ...more

Privilege Issues Are Important in Homeowner Association Construction Defect Litigation

Attorneys in Homeowners Association (“HOA”) construction defect cases must meet with the homeowners to provide litigation updates and it can sometimes be difficult to preserve the attorney-client privilege for the...more

Abolish the Attorney Client Privilege - It serves little use in practice, while the work-product privilege offers a safer harbor.

One of the great myths of the legal profession is that the attorney- client privilege promises absolute confidentiality, to ensure clients’ full disclosure to their counsel. However, as most lawyers know too well, clients...more

Bad Faith Sentinel - June 2014

In This Issue: - Court of Appeals of the State of Washington: Bad Faith Damages May Exceed the Amount of a Reasonable Covenant - Southern District of Mississippi: Insurer Providing Coverage Opinion to Insured...more

D.C. Circuit Considers Whether Complying With Federal Regulations Obviates the Attorney-Client Privilege & Work Product Doctrine...

The internal investigation is a critical tool for companies operating in the current environment of stringent regulatory oversight and government scrutiny. The attorney-client privilege and work product doctrine are sacred...more

Nevada Supreme Court Reaffirms and Clarifies Sands Corp. Decision on Waiving Attorney-Client Privilege and the Work-Product...

Recently, we released a legal alert discussing the Nevada Supreme Court’s decision in Las Vegas Sands Corp. v. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 13 (February 27, 2014), which addressed the intersection of NRS 50.125...more

Prohibiting Discovery of Attorney-Expert Communications

Are communications between attorneys and their retained experts discoverable? For now, the answer appears to be no, as a divided Pennsylvania Supreme Court recently affirmed a Superior Court decision “creat[ing] a...more

Recent Decision Reminds Companies to Use Best Practices to Protect Their Internal Investigations

The DC Circuit recently heard oral argument regarding a mandamus petition filed by defendants in a qui tam action. The case sheds light on the best practices that companies should utilize to increase the odds that the...more

Pennsylvania Supreme Court Affirms Superior Court Decision Protecting Attorney-Expert Communications From Discovery

On April 29, an evenly divided Pennsylvania Supreme Court resolved an issue of paramount importance to Pennsylvania litigants: whether communications between an attorney and a testifying expert are protected from discovery by...more

Adopting A Vision: Putting The Pieces Together (Part II of IV)

People need a vision to inspire them. I know this sounds corny but I always used this motto as a motivational tool. If you can see the goal, then you can figure out a way (or ways) to achieve the goal. If you conduct a set...more

Those Hiring Private Investigators Must Be Aware of Privilege and Privacy Legislation

When a fraud is suspected, the litigator often turns to a private investigator to gather evidence about, and to use against, the fraudster. Retaining and instructing an investigator must be undertaken with extreme caution to...more

Maintaining The Attorney-Client And Work-Product Privileges In An Internal Investigation

Internal investigations conducted without outside counsel risk not being protected by the attorney-client or work-product privileges. On March 6, 2014, the District Court for the District of Columbia ordered production of...more

Attorney Means “Attorney” – Lessons for Subrogation Professions From Recent Federal Court Decisions Clarifying the Disclosure...

The Amendments to Rule 26 - In 2010, Federal Rule of Civil Procedure 26 was amended to provide new limitations on the discovery allowed for testifying experts in federal court cases. The most significant changes with...more

When Is An Internal Investigation Not Privileged?

Compliance programs have grown in importance along with the demands of new laws and regulations. These programs are increasingly seen as vital to preventing corporate misconduct or, at least, mitigating sanctions if...more

Privileged Status Of Internal Investigations At Risk - Court Finds Reports From Company's Internal Investigation Are Not...

A recent ruling by the U.S. District Court for the District of Columbia puts the privileged status of internal investigations conducted by internal resources at risk.In U.S. ex rel. Harry Barko v. Halliburton Company, the...more

Court Allows Third Party Discovery Of Broker Materials Claimed To Be Privileged

Defendant liability insurers sought discovery from Third Party Aon relating to a dispute between defendants and plaintiff regarding an umbrella coverage program. Aon provided some, but not all responsive documents, citing...more

D.C. federal court reconsiders decision on FOIA requests to CFPB

Last September, a federal district court in Washington, D.C. issued an opinion on Freedom of Information Act (FOIA) requests made by Judicial Watch to the CFPB for documents relating to Richard Cordray’s recess appointment as...more

Privileged Communications With Outside Consultants

Penn State University recently decided to waive attorney-client privilege and cooperate in the criminal prosecutions of certain former employees. Obviously, the former employees have attempted to assert privilege to exclude...more

Federal District Court: Documents Created During an In-House Corporate Compliance Investigation Are Not Privileged

In a noteworthy decision in Barko v. Hallilburton Co., a federal court has ruled that a company's internal investigations are not privileged and must be produced to a whistleblower. In light of the ruling in Barko, government...more

Proceed with Caution: D.C. District Court Says Attorney-Client Privilege and Work Product Doctrine Do Not Survive Internal Fraud...

On March 6, 2014, the District Court for the District of Columbia issued an opinion in United States ex rel. Barko v. Halliburton Company et al. that should serve as a wake-up call for all companies conducting internal...more

Federal Court Ruling Raises Questions About Privileged Nature Of Certain Internal Investigations

On March 6, 2013, the United States District Court for the District of Columbia ruled that Kellogg Brown & Root Services, Inc. (“KBR”) must produce to a qui tam relator 89 documents relating to internal investigations...more

Bad Faith Sentinel - March 2014

CONTENTS - United States Court of Appeals for the Fourth Circuit: An Absence of Ascertainable Damages Does Not Preclude an Award of Punitive Damages for Bad Faith pages 1 - 2 - Northern District of Alabama: Insurer...more

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