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Two Federal Court Decisions in Three Days Misapply the General Choice of Laws Rules in Diversity Cases: Part II

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

Source and Choice of Privilege Law in Federal Courts: Part II

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

Source and Choice of Privilege Law in Federal Courts: Part I

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

Be Sure to Check the Choice of Law Before Analyzing "At Issue" Waivers

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

Court Gets the Diversity Case Choice of Law Analysis Right: Part I

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

Does Federal or State Privilege Law Govern Pendent State Law Claims in Federal Question Cases?

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

Source And Choice Of Privilege Law In Diversity Cases — Part III

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

Source And Choice Of Privilege Law In Diversity Cases — Part II

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

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

Two Decisions Issued the Same Day Highlight Choice of Laws Issues: Part II

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

Can Contracting Transactional Parties Select Favorable Privilege Law?: Part II

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

Can Contracting Transactional Parties Select Favorable Privilege Law?: Part I

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

Courts Wrestle with Privilege Choice of Law Issues

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

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