Last week’s Privilege Point addressed a lawsuit involving an asset purchase agreement (APA) under which Jim Daws sold his company, Jim Daws Trucking, to Rick Fernandez. ...more
In 2022, Jim Daws agreed to sell his company, Daws Trucking, to Rick Fernandez under an asset purchase agreement (APA). The same law firm represented both parties in the transaction but “fail[ed] to obtain consent to the...more
Otherwise privileged communications between lawyers and their clients that further ongoing or even contemplated criminal conduct can lose their protection under the so-called “crime-fraud exception.” Courts disagree about...more
On Oct. 3, 2025, the U.S. Court of Appeals for the Sixth Circuit granted a writ of mandamus, vacating a district court order compelling FirstEnergy Corp. to produce internal investigation documents protected by...more
Last week’s Privilege Point described a decision that allowed plaintiff to rely on a market survey without disclosing “communications relating to the survey’s design, administration, or results.” Austin’s National Frozen...more
False advertising plaintiffs must prove consumer confusion and often rely on market surveys to support their contentions. But like any litigants relying on such surveys, they obviously will want to claim privilege and/or work...more
Upjohn v. United States, 449 U.S. 383 (1981), articulated the widely accepted standard for privilege protection in the corporate setting. But some litigants who rely on that famous case’s statement that the privilege extends...more
Many lawyers don’t appreciate — and some don’t even recognize — the attorney-client privilege’s astounding fragility. Once they understand it, they should warn their clients not to share privileged communications with any...more
The witness-advocate ethics rule sometimes prevents lawyers from trying a case if they are necessary fact witnesses. Such an admittedly unusual scenario can also implicate privilege and work product issues during pretrial...more
Because the attorney-client privilege deprives courts and juries of potentially important evidence, it is narrowly construed. Among other things, the only client agents/consultants inside the privilege are those necessary for...more
The common interest doctrine can sometimes protect as privileged communications among separately represented clients who share a sufficiently common legal interest. Courts take varying approaches to this important doctrine....more
A corporate client’s bankruptcy can put its decision-making power over privilege assertion and waiver into the hands of a trustee, receiver or other legal successor. But what if a corporate client goes totally defunct?...more
Careful lawyers always consider both evidentiary protections: attorney-client privilege, which is absolute but fragile; and work product doctrine protection, which should be preceded by a litigation hold and can sometimes be...more
Most privilege and work product waivers involve the intentional or accidental disclosure of protected communications to third parties. But under an “at issue” waiver, a litigant can forfeit both protections without disclosing...more
Last week’s Privilege Point described a Southern District of New York magistrate judge’s application of the “touch base” privilege test to a German company’s application to conduct discovery of a U.S. private equity company’s...more
Litigants in overseas proceedings can apply for a U.S. court’s permission to seek discovery in the United States under 28 U.S.C. § 1782. In In re B&C KB Holding GmbH, No. 22-mc-00180 (LAK) (VF), 2025 U.S. Dist. LEXIS 124466...more
The attorney-client privilege protects (1) clients’ communications of facts to lawyers, (2) clients’ requests for legal advice from lawyers, (3) lawyers’ request for facts from clients and (4) lawyers’ legal advice to...more
Courts sometimes appoint guardians ad litem to assist minors or others. In DeSpain v. DeSpain, Consol. Case No. WD87182, 2025 Mo. App. LEXIS 398 (Mo. Ct. App. June 17, 2025), the court dealt with a lower court’s holding that...more
Since lawyers draft their own ethics rules, they unsurprisingly include provisions allowing them to disclose client confidences to defend themselves from clients’ (and even third parties’) attacks. A paradigmatic example...more
Last week’s Privilege Point described the Missouri Supreme Court’s understandable conclusion that a railroad employee did not have a personal attorney-client relationship with railroad lawyers who interviewed her about an...more
In all but a handful of states, corporations can claim privilege protection for their lawyers’ communications with their employees of any level — as long as the lawyers (1) are gathering facts they need to advise the client...more
A recent Privilege Point described a New York federal court’s rejection of the “functional equivalent” doctrine — under which a nonemployee can be treated as an employee for privilege purposes. More recently, a New York State...more
The common-interest doctrine sometimes protects as privileged communications between separately represented clients sharing an identical legal interest in ongoing or anticipated litigation. It differs dramatically from a...more
Under the aptly named “testamentary exception,” a beneficiary taking under a will can sometimes access communications between the testator and the testator’s lawyer. This exception rests on the understandable concept that the...more
Unlike the fragile attorney-client privilege that can be waived even upon disclosure to family members, the work product doctrine is much more robust. A recurring corporate scenario confirms this important distinction....more