The work product doctrine requires: (1) litigation; (2) anticipation; and (3) motivation. And even though the work product doctrine rests on a single sentence in the Federal Rules, federal courts ironically take more varied...more
Courts analyzing privilege assertions for email threads often look for some indicia of that protection on the face of those emails.
In Anderson v. Trustees of Dartmouth College, Case No. 19-cv-109-SM, 2020 U.S. LEXIS...more
Although the Federal Rules do not explicitly require privilege logs, every court seems to do so. Most courts require such logs to include predictable data, but some courts require logs to provide data that seem largely...more
Courts assessing the waiver implications of a litigant accidentally producing privileged documents normally look at several factors: (1) Did the producing party adopt a reasonable protocol for identifying and withholding...more
As if waiving privilege protection (either intentionally or inadvertently) was not frightening enough, the sinister subject matter waiver doctrine might force disclosure of additional privileged documents on the same topic....more
On its face, Fed. R. Civ. P. 26(b)(3)(A)’s work product doctrine only protects “documents and tangible things.” But do courts apply the work product doctrine in that limited fashion?
In Kleiman v. Wright, No....more
Last week’s Privilege Point described two favorable analyses from a Southern District of New York decision (Judge Gorenstein) assessing defendant Barnes & Noble’s privilege assertions covering its investigation and later...more
Last week's Privilege Point described a court's understandable decision not to address an attorney-client privilege claim when a defendant had successfully claimed work product protection that the plaintiff could not...more
The attorney-client privilege protects clients' communication of facts to their lawyers and requests for legal advice about those facts. Not surprisingly, busy courts dealing with the mounting volume of withheld documents...more
The work product doctrine sometimes involves clients' primarily business motivation "morphing" into litigation-related motivation – thus entitling the clients to work product protection....more
Because attorney-client privilege protection generally depends on content, most courts read withheld documents in camera to assess that content. But states disagree about whether courts must always conduct such in camera...more
Although the federal and most if not all state rules do not explicitly require privilege logs, all or nearly all courts demand that parties withholding protected documents describe them with specificity in a log. And all...more
In Washington Coalition for Open Government v. Pierce County, No. 50718-8-II, 2019 Wash. App. LEXIS 392 (Wash. Ct. App. Feb. 20, 2019), the court properly rejected plaintiffs' attempt to apply the common interest doctrine to...more
The attorney-client privilege's and the work product doctrine's holders must assert those protections as early as possible in the discovery process. But they also must remember the ramifications of such assertions....more
Fed R. Evid. 502 adopts the earlier majority common law view, finding that the inadvertent production of documents does not waive privilege or work product protection if: (1) it was inadvertent; (2) the protection holder...more
The work product doctrine can protect documents primarily motivated by litigation or anticipated litigation, rather than prepared in the ordinary course of business or motivated by some other non-litigation purpose. But...more
Last week's Privilege Point described a Colorado state court case holding that absent contrary direction in a decedent's will, the decedent's personal representative owns all the files generated by the decedent's lawyer. Ten...more
Last week's Privilege Point discussed a New York federal court's and a New York state court's opposite positions on a key work product issue.
Courts also disagree about whether the work product doctrine can extend to...more
Most courts recognize a doctrine first articulated in Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), which protects as opinion work product lawyers' selection of intrinsically unprotected documents, witnesses, etc. – if that...more
Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and...more
Corporations creating documents in the "ordinary course of business" normally cannot claim work product protection, because they were not motivated by anticipated litigation. But the work product doctrine actually requires a...more
Some courts seem to ignore the plain language of the federal work product rule or state parallels by requiring lawyers' involvement.
In Rafferty v. KeyPoint Government Solutions, Inc., the court correctly quoted the...more
Lawyers familiar with abstract and even case-specific substantive privilege and work product-related principles must keep something else in mind. Many if not most courts have also adopted local rules that might affect the...more
The judge handling the criminal case against President Trump's former lawyer Michael Cohen appointed a special master to review for privilege or work product protection documents the government seized from Cohen's office. The...more
When negotiating their respective privilege claims, litigants sometimes face the temptation to agree among themselves that producing some arguably protected withheld documents will not trigger a subject matter waiver...more