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How Do Courts Decide If Employees CC'ing a Lawyer are Implicitly Seeking Legal Advice?

Electronic communications exacerbate judges' already difficult task of determining if employees copying lawyers on their communications with fellow employees are implicitly seeking legal advice – and thus deserve privilege...more

S.D.N.Y. Magistrate Judge Francis Analyzes the Work Product Doctrine's "Motivational" Element

Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether...more

Choice of Laws Analyses Can Be Dispositive

Although most jurisdictions agree on many basic privilege issues, some important variations remain. The most important involves a few states' rejection of the majority Upjohn v. United States, 449 U.S. 383 (1981) rule...more

Rule 30(b)(6) Involves Subtle Issues

Under Fed. R. Civ. P. 30(b)(6), corporations must designate and educate one or more witnesses to answer deposition questions based on the corporation's collective knowledge. Such depositions raise obvious privilege issues,...more

How Can Law Firms Help Maximize Privilege Protection for Consultants They Hire?

Last week's Privilege Point highlighted the difficulty of establishing that client agents/consultants are inside privilege protection. In contrast, lawyer’s agents/consultants can deserve privilege protection – but only if...more

Courts Continue to Catalogue Client Consultants Outside Privilege Protection

Clients' agents/consultants are nearly always outside privilege protection. This generally means that their documents do not deserve privilege protection; their presence during otherwise privileged communications aborts that...more

Courts Use Rule Language and Common Sense to Expand Work Product Protection: Part II

Last week's Privilege Point explained that on its face the federal work product rule (and most states' parallel rules) provide heightened opinion work product protection to any client representative's opinions -- not just...more

Courts Use Rule Language and Common Sense to Expand Work Product Protection: Part I

Unlike the common law-dominated attorney-client privilege which developed organically in each state, work product protection comes from court rules. One might think that this would simplify courts' application of that...more

Courts Look for Lawyers' Responses to Clients' Requests for Legal Advice

The privilege can protect clients' requests for legal advice, and lawyers' responses. But employees simply cc'ing a lawyer on an email to another employee cannot guarantee privilege protection – because the email might be...more

Does a Client Risk Privilege Protection by Bringing Her Mother to a Lawyer Meeting?

Because it is absolute and can hide important facts from easy discovery, the attorney-client privilege is hard to create, narrow, and fragile. Among other things, even friendly third parties' presence can abort privilege...more

Does the Attorney-Client Privilege Protect a Lawyer's Retention Date?

Content is king in the privilege world, in contrast to the work product protection – which largely depends on context. For this reason, the privilege rarely if ever protects the facts and circumstances of (1) the...more

The Trouble with Drafts: Part II

Last week's Privilege Point discussed a decision holding that the privilege did not protect in-progress drafts of documents whose final version will be disclosed to third parties. In re Sygenta AG MIR 162 Corn Litig., MDL...more

The Trouble with Drafts: Part I

Because attorney-client privilege protection depends on confidentiality, the privilege evaporates once clients determine to disclose privileged communications – even before the disclosure occurs. For example, the final...more

Drawing the Line Between Waiver and Non-Waiver: Part II

Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v....more

Drawing the Line Between Waiver and Non-Waiver: Part I

Clients describing their past or intended future actions obviously do not waive their privilege protection – even if the clients are following their lawyers' advice. But clients voluntarily disclosing privileged...more

Court Addresses Waiver Implications of a Target's Due Diligence Disclosures to its Ultimate Acquirer

Acquiring companies predictably seek information from their acquisition targets, such as descriptions of the targets' ongoing litigation. During their due diligence, the acquirer may demand the target's documents or...more

Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part II

Last week's Privilege Point explained that Cadwalader Wickersham & Taft's client Washington Metropolitan Transit Authority (WMATA) lost a work product claim for 51 witness interviews the firm prepared during its internal...more

Cadwalader Loses Work Product and Privilege Claims for 51 Internal Investigation Witness Interview Memoranda: Part I

Cadwalader Wickersham & Taft lawyers conducted an internal corporate investigation into allegations of self-dealing at Washington Metropolitan Area Transit Authority (WMATA). When a private plaintiff sued WMATA and several...more

Can a Litigant Ever Use at Trial Privileged Documents Withheld from Discovery?

In nearly every situation, courts understandably refuse to allow litigants to use any privileged communications at trial that they withheld from discovery. Is there any situation in which litigants can avoid such a...more

Can the Privilege Protect Communications in a Public Place?

If clients and their lawyers engage in otherwise privileged communications in the presence of third parties, the privilege rarely if ever protects the communications. But what if the communications occur in a public place...more

In-House Lawyers Should Avoid Being Employment Decision-Makers

In-house lawyers obviously can play an important role when their corporate clients decide whether to terminate employees. But they should avoid being the ultimate decision-makers, or playing a business role in any termination...more

Reading Inadvertently Disclosed Privileged Documents Risks Disqualification

Nearly every case focusing on inadvertently disclosed privileged communications (during document productions or at other times) focuses on the privilege waiver implications. However, the stakes can be much higher....more

What Type of "Common Interest" Satisfies the Common Interest Doctrine?

Some lawyers incorrectly assume they can contractually assure that disclosing privileged communications to third parties does not waive the privilege – by entering into a "common interest" agreement. But nearly every month...more

Court Offers Rare Good News and a Helpful Hint about Effective Privilege Logs

Plaintiffs suing document-laden corporate defendants often try to make privilege log mistakes into a destructive side show. In Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D....more

Who Can Waive Corporations' Privilege Protection?

In Upjohn states, corporations' privilege can protect (1) communications in which corporate employees at any hierarchical level give the company's lawyer facts she needs, and (2) such lawyer's advice given to any employees...more

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