Litigation adversaries often trigger privilege and work product disputes when they seek each other’s documents. But what if your client’s adversary subpoenas a third party holding your client’s privileged documents — whose...more
Litigators frequently interview fact witnesses in pending or anticipated litigation settings. Their interview notes normally deserve fact work product protection, but that can be overcome if the witnesses disappear or their...more
Several courts have adopted a nonsensical principle that, as one court put it, “[w]hen documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity.”...more
Some readers have asked why Privilege Points have only rarely focused on work product issues in the insurance context. In addition to the sometimes dramatic differences between states’ handling of this issue, a recent case...more
With the growth of litigation funding as a mechanism for financing litigation, companies interviewing and ultimately selecting a funder inevitably share work product with them. In such circumstances, courts must assess (1)...more
Some courts understandably conclude that the anticipation of litigation that can assure work product protection also requires the litigant to impose a litigation hold on pertinent documents. Perhaps that is not a perfect...more
Given the bare bones nature of many privilege logs, courts sometimes may be called upon, or themselves decide, to review withheld documents in camera to assess the grounds for the documents’ withholding. A handful of courts...more
Normally a third party does not have standing to challenge a document subpoena. But what if the subpoena seeks discovery of the third party’s privileged or work product-protected documents in the subpoena target’s possession?...more
Last week’s Privilege Point described an S.D.N.Y. opinion rejecting privilege and work product claims for a document that on its face did not contain legal advice or any allusion to or analysis of anticipated litigation....more
Every court seems to require litigants to log documents they withhold based on privilege or work product claims. Perhaps not surprisingly, hardly any log goes unchallenged by the adversary. Most of these disputes eventually...more
In federal courts, it is nearly impossible to successfully file an interlocutory appeal of a trial court’s order requiring production of privileged documents — despite the obvious “cat out of the bag” nature of such rulings....more
Aggressive plaintiffs sometimes try to generate a “side show” by challenging corporate defendants’ discovery responses (usually their document productions). Although federal courts have thankfully moved in the direction of...more
Last week’s Privilege Point described one court’s incredible requirement that litigants identify everyone who learned of a withheld document’s content — even if they were not shown as a recipient....more
All or nearly all courts require litigants to log documents withheld on privilege or work product grounds (with an exception discussed next week). But they disagree about what the log should include — with some courts taking...more
The last two Privilege Points (Part I and Part II) explained that the 1947 U.S. Supreme Court decision in Hickman v. Taylor, 329 U.S. 495 (1947), created a common law protection for litigation-related tangible and intangible...more
The “work product” doctrine provides an entirely separate protection from the attorney-client privilege. Unlike the privilege, the work product doctrine is not ancient, normally not absolute, and not fragile. The many...more
Attorney-client privilege protection lasts forever, but determining work product doctrine protection’s duration presents a more subtle analysis. Most courts protect work product if it is sought in later litigation related in...more
Fed. R. Civ. P. 26(b)(3) extends protection to documents prepared "in anticipation of litigation or for trial." An obvious question presents itself — what counts as "litigation"?...more
Because what is called "opinion work product" deserves higher protection than fact work product (and in many courts enjoys "absolute or nearly absolute" protection), litigants understandably seek to withhold documents on that...more
The last several Privilege Points have emphasized the different waiver implications of disclosing privileged communications and protected work product. For the most part, the distinctions rest on the very different societal...more
Last week's Privilege Point described a court's refreshingly correct acknowledgment that disclosing work product to friendly third parties does not waive that robust protection — in contrast to the more fragile privilege...more
Unlike the very fragile attorney-client privilege (which can be waived even by disclosure to family members), the more robust work product doctrine protection survives disclosure to friendly third parties....more
Courts take differing positions on the "client's" identity in the government setting. Among other things, such differing positions might affect the waiver implications of one government agency disclosing its privileged...more
Under some arrangements, major shareholders appoint directors to companies those shareholders partially own. Does such a company waive its privilege by disclosing its privileged documents to a designating shareholder's...more
The last two Privilege Points (Part I and Part II) addressed the Supreme Court's abandoned attempt to address the abstract "primary purpose" versus "one significant purpose" privilege standard in the absence of specific facts...more