Aggressive litigation adversaries sometimes try to make a discovery sideshow into the main event. A party’s search for responsive documents occasionally triggers such an effort....more
As noted in several previous Privilege Points, courts have great difficulty assessing privilege protection for communications relating to a Rule 30(b)(6) deposition — in which a corporation or other institution designates a...more
Some court rules explicitly prohibit communications between a deposition witness and her lawyer during a deposition break, except to discuss whether to assert a privilege objection to a pending question. See, e.g., Local Civ....more
An employer's post-accident investigation deserves work product protection only if it was primarily motivated by anticipated litigation. Thus, such investigations normally do not deserve work product protection if: (1) they...more
Although fortunately rare, lawyers' depositions almost always involve complicated privilege issues. One might argue that just about every question posed to a lawyer would justify a privilege assertion — but that would go too...more
Based on the justifiable presumption that depositions in which a lawyer deposes the other side’s lawyer would inevitably cause hard feelings (or worse), many courts require lawyers seeking to take the adversary’s lawyer’s...more
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
Nearly every court protects a litigant's lawyer from depositions or other discovery under what is called the Shelton standard ( Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)) or under similarly restrictive...more
Under Fed. R. Civ. P. 30(b)(6), corporations must designate a witness to testify about the corporation's knowledge. Surprisingly few courts have reconciled this requirement with the common if not universal role that lawyers...more
In 2014, the D.C. Circuit adopted a very favorable privilege standard — protecting communications if "one significant . . . purpose[]" was corporations' need for legal advice, even if that was not the communications' "primary...more
Rule 30(b)(6) of the Federal Rules of Civil Procedure allows corporations' adversaries to insist that the corporation select a spokesman to provide binding testimony about designated topics. These depositions almost...more