Work Product Privilege

News & Analysis as of

Finding Categorical Privilege Log to Be Inadequate, Court Orders Plaintiff to Provide a Metadata Log: eDiscovery Case Law

In Companion Property and Casualty Insurance Company v. U.S. Bank N.A., No. 15-01300 (D. S.C., Nov. 3, 2016), South Carolina District Judge J. Michelle Childs determined that the plaintiff’s categorical Privilege Log was...more

Plaintiff's Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part II

Last week's Privilege Point described a court's acknowledgment that a mentally ill plaintiff's live-in boyfriend had provided "meaningful assistance" to the plaintiff in dealing with her lawyer, but was not "necessary or...more

Plaintiff's Live-In Boyfriend was Outside Privilege Protection, but Inside Work Product Protection: Part I

Nearly every court finds that the only client agents/consultants inside privilege protection are those necessary for the communications between the client and her lawyer. But the work product doctrine casts a wider protective...more

The Crime-Fraud Exception Can Apply to Innocent Lawyers' Communications

The crime-fraud exception can strip away privilege protection from communications in which lawyers further their clients' future wrongful conduct. Under the majority approach, the adversary must (1) first meet a fairly low...more

E-Discovery Nightmares: 5 Experts Share Tales of Redactions, Huge Data Sets, and Things That Go Bump in the Night

Now that the days are growing short, and the summer sun gone, leaving us with overcast skies and wind driven mists clinging to the rain-soaked hills, the mood is set for telling stories of ghouls, goblins, and other specters...more

4 Ways to Maximize the Value of Your IP Counsel

1.Considering Your IP Counsel as a Partner - Companies maximize the value of their IP counsel when both the company and IP counsel view their relationship as a partnership. More specifically, look for IP counsel that...more

"The E-Discovery Digest - October 2016"

The fifth 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. Please see...more

Recurring Issues in Accounting for Litigation Contingencies

Certain questions seem to recur when it comes to outside counsel’s communications with a company’s auditors about potential exposures as a result of litigation or regulatory/enforcement matters and the underlying accounting...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

Missed Opportunity by The Supreme Court to Address the Erosion of Hospital Self-Review Privileges

In Tibbs v. Bunnell, the U.S. Supreme Court recently denied a hospital’s petition for certiorari to review the scope of the patient safety work product privilege. The hospital appealed from a Kentucky Supreme Court decision...more

Accidental Disclosure Of Public Records Does Not Waive The Attorney-Client And Attorney Work Product Privileges

On March 17, 2016, the California Supreme Court resolved an important case regarding the California Public Records Act, ruling unanimously that the inadvertent release of confidential documents does not waive the...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

Courts Explore Wrongful Conduct's Effect on Privilege and Work Product Protection

Apart from the crime-fraud exception, lawyer and client misconduct might affect privilege and work product claims in more subtle ways. In Scranton Products, Inc. v. Bobrick Washroom Equipment, Inc., No. 3:14-CV-00853,...more

Courts Wrestle with Work Product Protection for Interview-Related Documents: Part IV

Courts take widely varying and sometimes seemingly illogical approaches to work product protection for litigation-motivated witness interview-related documents, such as transcripts, notes, reports, statements, and affidavits....more

After Defendant Seeks to Claw Back Attorney-Client Privileged Documents, District Court Determines Privileged Waived (Including...

The defendants produced documents in response to plaintiffs' first set of requests for production and included in the production were five documents that the defendants were later claim were subject to attorney-client...more

Courts Wrestle with Work Product Protection for Interview-Related Documents: Part III

The last two Privilege Points (Part I and Part II) discussed federal court decisions reflecting confusing and sometimes arguably illogical approaches to interview-related materials. In SFEG Corp. v. Blendtec, Inc., No....more

Courts Wrestle with Work Product Protection for Interview-Related Documents: Part II

Last week's Privilege Point described a common but illogical judicial approach to witness interview notes, summaries, and reports — finding that witnesses' verbatim statements in such documents at most can deserve only fact...more

ANDA Update - Volume 2, Number 2

180-Day Notice Period for Biosimilar Approval Is Always Mandatory and Enforceable by Injunction - Amgen Inc., v. Apotex Inc., (Fed. Cir. July 5, 2016) - A year after analyzing the patent dance and notice...more

Courts Wrestle with Work Product Protection for Interview-Related Documents: Part I

Companies' lawyers frequently interview third-party witnesses. Companies' adversaries often seek the resulting interview transcripts, notes, summaries, reports, statements or affidavits — which can generate disputes over fact...more

New York Federal Court Holds That Audit Firm’s Review Of TPA Is Attorney Work Product

In a case upon which we have reported on January 6, 2016, and November 24, 2015, a New York federal district court held that the work of an audit firm hired to review the billing practices of a third-party administrator...more

E-Discovery Update: Producing Search-Term Hit Reports: Another Form of Discovery on Discovery

You may have learned everything you need to know in kindergarten, but perhaps sharing is overrated when it comes to a search-term hit report. A search-term hit report is generated when search terms are applied to a larger set...more

Orrick's Financial Industry Week in Review

SEC Approves IEX Proposal to Launch National Exchange, Issues Interpretation on Automated Securities Prices - On June 17, 2016, the Securities and Exchange Commission ("SEC") approved the application of Investors'...more

Are Public Relations Consultants Inside or Outside Privilege Protection?

Companies frequently turn to outside public relations consultants to assist both in normal media relations and when confronting crises. For obvious reasons, these companies must consider the privilege implications of...more

Choice of Law Principles in Cross-Border Privilege Disputes: Whose Law Applies?

The Attorney-Client Privilege and Work Product Doctrine in the United States and Abroad - The attorney-client privilege and work product doctrine are important and well-known concepts to nearly every lawyer in the...more

"The E-Discovery Digest - June 2016"

The fourth 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, cost shifting and other e-discovery...more

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