Work Product Privilege

News & Analysis as of

Second Circuit Reaffirms That Attorney-Client Privilege Is Not Waived By Sharing Documents With Parties Pursuant to a Common Legal...

On November 10, 2015, the US Court of Appeals for the Second Circuit issued an opinion reaffirming that the attorney-client privilege and work product protections were not waived by a businessman and his company when they...more

Courts Reject Protection for Corporate Investigations, but Offer Helpful Guidance: Part I

Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both...more

California Appellate Court Addresses Release of City Attorney’s Private E-mails

An appellate court ordered a trial court judge to reconsider his order that e-mails to and from the San Diego city attorney’s personal account be released publicly. The League of California Cities argued that e-mails between...more

Second Circuit Clarifies Common Legal Interest and Work Product Doctrines for Material Shared Among Transacting Parties

The U.S. Court of Appeals for the Second Circuit recently ruled that the “common interest” doctrine protects legal and tax liability analysis prepared for a client and subsequently shared with a consortium of banks providing...more

Second Circuit Determines That Tax Memo Shared Between Taxpayers and Banks Is Protected Under the Common Interest Doctrine and...

On November 10, 2015, the US Court of Appeals for the Second Circuit unanimously held in a published opinion that (i) the attorney-client privilege was not waived by appellants-taxpayers who shared a group of documents,...more

Court Rules Target Data Breach Internal Investigation Documents Largely Protected by Attorney-Client Privilege/Work Product...

The Minnesota magistrate judge presiding over discovery in the litigation seeking to hold Target Corp. liable for the retailer’s 2013 data breach issued an order denying the motion by a plaintiff class of about 9,000 banks to...more

Federal Preemption and Peer Review - A New Frontier

It’s not often that we get to blog about a new area of federal preemption, but we do so today. This isn’t a big area, otherwise we would have known about it before, but it is pertinent to drug and medical device product...more

Cross-Border Investigations Update - November 2015

This issue of Skadden’s semiannual Cross-Border Investigations Update takes a close look at recent cases and enforcement trends, including developments in U.S. Foreign Corrupt Practices Act enforcement; the introduction of...more

Claiming Privilege or Work Product Protection During Discovery Can Risk Trial Disaster

Last week's Privilege Point addressed the decreasing subject matter waiver risk of corporations' pretrial disclosure of arguably privileged communications, or even their passing reference to legal advice in pretrial filings....more

The E-Discovery Digest - October 2015

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

Business Lit Ledger - Fall 2015

In this Fall issue of our newsletter, you will find a review of several significant legal developments. For example, our antitrust group reviews actions taken by the Federal Trade Commission and the Department of Justice...more

Court Analyzes Possible Privilege Protection for Communications with Public Relations Consultants

Corporations and their lawyers frequently work with public relations consultants when facing ongoing or anticipated litigation. In the work product context, courts agree that disclosing preexisting work product to such...more

What Level of Litigation "Anticipation" Triggers Work Product Protection?

One of the great ironies of work product protection involves federal courts' widely varying interpretation of the single sentence codifying the Federal Rules' work product protection. Fed. R. Civ. P. 26(b)(3)(A). Among many...more

Rhode Island Supreme Court Addresses Deposition Conduct And Instructions Not To Answer

Rhode Island has long honored the late Professor Robert B. Kent’s teachings on civil procedure, including his opinions concerning depositions. In keeping with Professor Kent’s teachings, Rhode Island courts take the position...more

Business Litigation Report - September 2015

Alleging Fraud in a Financial Crisis: The Second Circuit Articulates a Less Stringent Pleading Standard for Loss Causation: Loss causation has emerged as a central obstacle to post-financial-crisis fraud cases. The loss...more

Project In(Site): Legal Developments Impacting Construction & Government Contract Industries

Welcome to the inaugural issue of Project In(Site), Seyfarth’s Construction and Government Contracts practice groups’ publication focusing on decisions or other items of interest for construction and government contract...more

3rd District Issues Favorable Decision for Defendants Regarding Plaintiff's Discovery of Defendant's Work Product

In Seaboard Marine Ltd. v. Clark, 40 Fla. Law Weekly D2164 (Fla. 3d DCA Sept. 16, 2015) (copy attached), the Third held that the trial court erred in compelling the defendant to produce 91 relevant post-accident photographs....more

“That’s [Not] Privileged”: A Corporation’s Duty to Prepare a 30(b)(6) Witness Includes Sharing Knowledge of Legal Counsel

When a company is noticed for a deposition, it has a duty to prepare its witnesses to fully and unevasively answer questions about the designated subject matters. Companies may not realize, though, that the preparation must...more

KBR And Maintaining Privilege Throughout Investigations

Last month, for the second time, the D.C. Circuit in In re Kellogg Brown & Root Inc., No. 14-5319, slip op. (D.C. Cir. Aug. 11, 2015), granted a writ of mandamus sought by KBR and vacated a series of district court orders...more

D.C. Circuit Reinforces Attorney-Client Privilege Applicable to Internal Investigations

On August 11, 2015, the United States Court of Appeals for the District Court of Columbia issued a decision of importance to all companies that seek to maintain privilege with respect to internal investigations. The D.C....more

Assistant Attorney General Caldwell Clarifies Application of Yates Memo on Individual Accountability

On September 22, 2015, the U.S. Department of Justice’s Assistant Attorney General in charge of the Criminal Division, Leslie R. Caldwell, spoke at the Global Investigations Review Conference in New York, addressing the...more

Can a Public Agency Inadvertently Waive Attorney-Client & Work Product Privileges? First and Second Appellate District Split on...

In January, I wrote about the Second Appellate District case of Ardon v. City of Los Angeles. In Ardon, the court found that a public entity can waive statutory privileges that it otherwise would have if it produces...more

Three Key Takeaways from DOJ’s New Yates Memo on Individual Accountability for Corporate Wrongdoing

During a September 10, 2015 conference at New York University, Deputy Attorney General (DAG) Sally Quillian Yates announced new Department of Justice (DOJ or the Department) policy that could significantly affect the way that...more

Corporate Investigations & White Collar Defense - September 2015

No Dog Days of August for the SEC—A Recap of a Busy Month - Why it matters: Who says there is a government slowdown in August? Not for the SEC. August 2015 turned out to be very busy indeed for the agency, which...more

Preserving the Corporate Privilege in Internal Investigations: DC Circuit Clarifies Scope of the Privilege in Important Series of...

For the second time in just over a year, the DC Circuit granted the extraordinary remedy of a writ of mandamus to protect a company’s assertion of privilege over materials relating to an internal investigation. In a...more

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