Many if not most clients and even some ill-informed lawyers think they can “make” something privileged through some logistical step — such as marking it as “privileged,” copying a lawyer, inviting a lawyer to a meeting, etc....more
In some cases involving voluminous or complicated privilege issues, courts rely on special masters to make the privilege calls. Courts often call on well-respected private lawyers, or sometimes academics (which not...more
Unlike an intentional or unintentional express waiver involving actual disclosure of a privileged communication, a litigant can trigger an implied waiver by relying on the fact of such a privileged communication rather than...more
Attorney-client privilege protection depends on a communication’s content — which must be primarily motivated by the client’s request for legal advice....more
The last two Privilege Points have addressed some federal courts’ inexplicable application in diversity cases of their host states’ substantive privilege law rather than their host states’ choice of law rules. Some states...more
Last week’s Privilege Point described the illogical but scary Vioxx doctrine, which some courts apply to deny privilege protection ab initio to intra-corporate communications simultaneously seeking advice both from lawyers...more
Lawyers representing corporations all recognize the privilege waiver risk of disclosure to outsiders. But there are two huge risks to privilege protection even for internal corporate communications. Pointing to the “primary...more
Corporations risk waiving their fragile privilege protection by sharing protected communications with even the friendliest outsiders — such as their retained public relations consultants, etc. They must disclose some...more
In all but a few states, the attorney-client privilege can protect a company’s lawyer’s communications with former company employees — as long as the communications focus on the former employees’ tenure at the company. But in...more
Would-be litigants sometimes send a draft complaint to the would-be adversary — either to deter their bothersome conduct or to spur settlement talks. That scenario frequently raises defamation issues — with states taking...more
The last two Privilege Points have addressed the implied waiver implications of litigants (defendant in the Crypto King’s trial and plaintiff in the case described last week) relying on legal advice to defend against or...more
Defendants seeking to avoid liability by relying on a lawyer’s advice trigger a classic “implied waiver.” Although asserting that defense does not itself disclose any privileged communications (as with an intentional or...more
Not surprisingly, both a lawyer’s confidentiality duty and the attorney-client privilege protection last beyond the client’s death. But most courts recognize what they call the “testamentary exception” — allowing disclosure...more
Clients relying on an investigation’s result to gain some advantage understandably trigger a subject matter waiver. But some courts recognize that those clients may still claim privilege for some related communications....more
Overworked judges assessing possible privilege protection for the increasing volume of often-cryptic emails withheld from production understandably look for a client’s explicit request for legal advice from a lawyer....more
Communications between a lawyer and a prospective client can involve ethics (confidentiality and conflicts) issues, as well as privilege protection issues. Not surprisingly, the availability of privilege protection depends on...more
Identifying the "client" in closely held corporations can be difficult, but critical. That determination can affect both privilege protection for communications, and the right to access privileged communications between the...more
Under the common law "functional equivalent" doctrine, corporations sometimes may claim privilege protection for communications to or from a non-employee who is the "functional equivalent" of an employee. This common sense...more
Last week’s Privilege Point described a federal court case holding that explicit reliance on a consultant's investigation waived fact work product protection related to the investigation — but not opinion work product...more
Federal courts have eliminated nearly any chance for unsuccessful trial court litigants to immediately appeal adverse privilege or work product rulings – inexplicably rejecting the obvious "cat out of the bag" nature of such...more
Under Fed. R. Civ. P. 30(b)(6), a litigant seeking a corporate adversary's deposition may insist that the corporation designate an individual to testify on the corporation's behalf about designated topics. The concept makes...more
It seems obvious that corporations do not waive privilege protection by disclosing privileged communications to their own board members. But what about outside board members receiving such communications where they work or...more
Most courts hold that the incredibly fragile attorney-client privilege can be waived by disclosure even to family members (such as Martha Stewart’s disclosure to her own daughter). The separate "spousal privilege" recognized...more
All or most courts assessing deposition objections distinguish between questions focusing on: (1) the occurrence of a privileged communication; and (2) its content. Not surprisingly, that line can sometimes be hard to draw....more
Some lawyers erroneously assume that the fragile attorney-client privilege protection normally survives disclosure (by them or by their clients) to the client’s consultant/agent. That can be true in very limited...more