Last week’s Privilege Point noted that some federal courts erroneously apply their host state’s substantive privilege law rather than properly applying their host state’s choice of law rules — which might result in another...more
Last week's Privilege Point summarized a California federal court decision confirming that California recognizes its privilege in a statute, but then inexplicitly acknowledging that courts can themselves create exceptions....more
Lawyers dealing with attorney-client privilege questions obviously must assess what privilege law applies. Federal courts understandably apply federal privilege common law (essentially garden-variety principles) in federal...more
The unpredictable "at issue" waiver doctrine can strip away privilege protection without any disclosure of, or explicit reliance on, privileged communications. But state courts and even federal courts take widely varying...more
As in other areas, a privilege analysis should always start with a choice of law assessment. In federal courts, federal common law governs federal question cases' privilege issues. In diversity cases, many federal courts...more
Federal common law governs federal question case privilege issues. Federal courts sitting in diversity should look to their host jurisdiction’s choice of law rules when deciding which state’s privilege law applies. But what...more
The last two Privilege Points (Part I and Part II) addressed federal courts' identification of and choice of the appropriate state's privilege law in diversity cases. The latter process should start with federal courts'...more
Last week's Privilege Point explained that federal courts handling diversity cases must find the source or sources of the appropriate state's privilege law – sometimes a mixture of statute, common law and court rules. In...more
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
Last week's Privilege Point described a Maine case applying the narrow pre-Upjohn "control group" standard for corporate communications. Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, ---A.3d---. Illinois is by far the largest...more
Last week's Privilege Point described diversity cases in which litigants did not address the choice of laws issue, and in which the issue was irrelevant because there appeared to be no material difference between the...more
Federal privilege common law governs federal question cases, but federal courts hearing diversity cases must choose the applicable attorney-client privilege law.
Many litigants do not even focus on the choice of law...more
Although most jurisdictions agree on the basic elements of the attorney-client privilege, some differences among the jurisdictions' standards could be important. For instance, some states take a narrower view than others...more