Last week's Privilege Point described two of three possible "trigger" events that can create an objectively and subjectively reasonable "anticipation" of litigation: (1) an outside event certain to generate litigation; and...more
Establishing work product protection requires: (1) litigation (normally civil or criminal litigation, but sometimes adversarial administrative or ADR settings); (2) anticipation (ranging from "imminent" in some courts to...more
The last two Privilege Points have addressed courts' troubling disagreements about the meaning of two federal rule sentences articulating the important work product doctrine protection. Surprisingly, courts cannot even agree...more
Wise lawyers always consider both attorney-client privilege and work product protection when withholding a document or testimony. Privilege protection is absolute but fragile. Work product protection is qualified but...more
Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that...more
Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether...more
Last week's Privilege Point explained that on its face the federal work product rule (and most states' parallel rules) provide heightened opinion work product protection to any client representative's opinions -- not just...more
Last week's Privilege Point discussed a decision holding that the privilege did not protect in-progress drafts of documents whose final version will be disclosed to third parties. In re Sygenta AG MIR 162 Corn Litig., MDL...more
Last week's Privilege Point described a New York court's predictable waiver conclusion based on a client's description of his intended future conduct -- explicitly attributed to lawyers' advice. Siras Partners LLC v....more
Plaintiffs suing document-laden corporate defendants often try to make privilege log mistakes into a destructive side show.
In Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D....more
Once a feared effect of disclosing privileged communications (sometimes even inadvertently), subject matter waivers now occur in most courts only when a litigant attempts to gain some advantage in litigation by affirmatively...more
Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other...more
Many courts extend opinion work product protection to a lawyer's selection of intrinsically unprotected documents used to prepare a deponent, the identity of witnesses important enough to interview, etc. This approach is...more
The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log,...more