Last week's Privilege Point described the Supreme Court's failure to decide between a "primary purpose" and a "one significant purpose" privilege standard. Everyone wonders why the Supreme Court dropped the case. The best...more
In federal court and in state courts following the same approach, Fed R. Evid. 502(b) sometimes allows claw backs if a privileged document's production was "inadvertent." That term could have several meanings — ranging from a...more
Last week's Privilege Point described courts' various standards for their in camera review of withheld documents. The vast majority recognizes the trial court's discretion, but some courts always conduct an in camera review...more
Attorney-client privilege protection depends on content, and some work product claims also depend in part on content. Because a litigant's privilege log obviously does not disclose withheld documents' content, the adversary...more
Fed. R. Civ. 26(b)(3)(A) protects from discovery documents and tangible things that are prepared in anticipation of litigation or for trial. Litigants asserting work product protection must (if called upon to do so) identify...more
Last week's Privilege Point summarized a case confirming non-testifying experts' general immunity from discovery — absent "exceptional circumstances" such as destructive testing. Ten days later, another court addressed...more
Courts' application of the attorney-client privilege to government lawyers' communications reflects the tension between the public interest in government transparency and the societal benefit of public officials and employees...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
The work product doctrine has been described by many courts as "intensely practical." Several decisions highlight this understandable adjective, and explicitly provide useful guidance for lawyers representing litigants and...more
Given the vulnerability of electronic communications to intrusion, lawyers sometimes obtain and may be tempted to use documents that their clients have inappropriately obtained from an adversary – even privileged documents....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
Litigants and even some lawyers occasionally forget how courts address attorney-client privilege (and sometimes work product protection) assertions. Privilege protection focuses primarily on a communication's content — ...more
Last week's Privilege Point described a New York state court's unsurprising articulation of the nearly universally-applied "primary purpose" standard, and listing of the usual type of documents that fail to satisfy that...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
Last week's Privilege Point addressed courts' differing interpretations of the work product rule's "anticipation" element. Fed. R. Civ. P. (26)(b)(3)'s and parallel state rules' "litigation" element also requires courts'...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
Fed. R. Civ. P. 26(a)(2)(B)(ii) governs testifying experts' duty to produce "the facts or data considered by the witness in forming" his or her opinion. Fed. R. Civ. P. 26(b)(4)(D) governs dramatically different...more
As Privilege Points have periodically mentioned, some courts inexplicably limit work product protection to documents lawyers prepare or order to be prepared – in the face of Fed. R Civ. P 26(b)(3)(A)'s requirement only that...more
Lawyers preparing their clients and others for deposition or trial testimony frequently show them documents. Courts disagree about whether such lawyers can withhold from the adversary those documents' identity. The majority...more
Wise employment lawyers know that they should never be the decision makers when a client terminates an employee. Instead, those lawyers should be one of many inputs into the business person's decision to terminate....more
An acquiring corporation normally conducts due diligence before acquiring an acquisition target. Not surprisingly, the acquiring corporation might seek privileged or work product protected documents or communications during...more
The ancient attorney-client privilege: (1) protects communications primarily motivated by clients' request for legal advice, regardless of any litigation on the horizon; and (2) protects such communications absolutely. The...more
The attorney-client privilege protects communications between clients and their lawyers. But in certain admittedly limited circumstances, the protection can apply to documents created by someone who has not yet hired a...more
Not surprisingly, attorney-client privilege protection evaporates once a client and her lawyer agree that a document can be disclosed to outsiders -- even before it is disclosed. But some courts have inexplicably applied this...more
It should go without saying that sending pre-existing historical documents to a lawyer does not automatically immunize them from discovery as privileged. If it did, clients could box up all of their files and send them to a...more