Many courts address the discovery available from a litigant's testifying experts. Fewer courts assess discovery of a litigant's consultant retained to provide background expertise rather than testifying. ...more
Last week's Privilege Point described a court’s rejection of work product protection for a preprinted post-accident form with seemingly helpful boilerplate language about its purpose and a lawyer's involvement — but without...more
One might think that a litigant should be able to file an interlocutory appeal of an order to produce arguably privileged documents. In such an obvious "cat out of the bag" situation, waiting until a final order does not do...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 attorney-client privilege provides absolute protection, but is very fragile. Work product doctrine protection does not provide absolute protection (fact work product protection can be overcome), but is robust. Of course,...more
Not surprisingly, Delaware state courts frequently address privilege issues triggered by corporate board disputes. Those often guide other states' courts' analyses of similar scenarios....more
Just about the time that extensive pre-trial discovery started, the Supreme Court recognized a new evidentiary protection – extending beyond the attorney-client privilege, and motivated by the understandable requirement that...more
Lawyers should always consider every possible evidentiary protection their clients might legitimately assert. To put it in basic terms, the ancient attorney-client privilege has the advantage of providing absolute protection...more
Attorney-client privilege protection focuses on communications' content, but those communications' context can shed light on their primary purpose, possible inapplicability because of third parties' presence, etc. So...more
Most courts hold that a litigant does not automatically waive privilege protection by listing a former lawyer as a witness – because that lawyer might testify about non-privileged facts. But not surprisingly, such a step can...more
Actor Robert De Niro's feud with a former production company manager has generated several opinions by Southern District of New York Magistrate Judge Katharine Parker.
In Robinson v. De Niro, No. 19-CV-9156 (LJL) (KHP),...more
Last week's Privilege Point addressed a D.C. federal court's application of the Illinois "control group" privilege standard in a transferred case. In South Capitol Bridgebuilders v. Lexington Insurance Co., Case No....more
Last week's Privilege Point described a court's careful delineation between the logistics (time, place, etc.) of a privileged communication and such communications' explicit or implicit privileged content. The stakes...more
Every lawyer knows that attorney-client privilege protection depends on a communication’s "primary" or "predominant" purpose. A handful of courts have been inching toward a more expansive view (which will be the subject of a...more
Because privilege logs necessarily contain logistical but not content-based information about withheld documents, adversaries sometimes challenge privilege protection because no lawyer sent or received a withheld document....more
Last week's Privilege Point addressed litigants' need to identify the exact moment when they first anticipated litigation. Another work product issue involves the degree of protection afforded opinion work product....more
Because work product protection applies only when the creator is in or reasonably anticipates litigation, a litigant asserting that protection must know exactly when that occurred. In other words, as of one moment the...more
Nearly every court requires that litigants analyze possible privilege and work product protection for each attachment included in a withheld email or other document. This understandable approach raises an obvious question...more
Most states have adopted some variation of what is called the "spousal privilege" or "marital privilege." Those usually appear in statutes or rules, and dramatically vary from state to state. For obvious reasons, spouses'...more
While lawyers should familiarize themselves with the sometimes counter-intuitive and nuanced privilege law, they should never lose sight of the nitty-gritty of courts' application of that law. The attorney-client privilege...more
Fed. R. Civ. P. 26(b)(3)'s and parallel state work product rules apply to documents and tangible things prepared "in anticipation of litigation or for trial." But the Rule does not specify the degree of required...more
Under what is called the "fiduciary exception," a fiduciary's beneficiary sometimes may access otherwise privileged communications between the fiduciary and its lawyer – based on the law's artificial identification of the...more
Although the federal work product rule and parallel state work product rules extend only to "documents and tangible things," most courts also protect intangible work product such as oral communications – at least to the...more
Last week's Privilege Point described a court's curt rejection of attorney-client privilege protection for a plaintiff's communications with her mom – and noted the court's surprising failure to address an obvious work...more
Somewhat counter-intuitively, attorney client privilege protection is so fragile that even a family member often falls outside privilege protection (unless that family member was necessary to facilitate communications between...more