Most lawyers know that state statutes or common law doctrines often protect communications between spouses – although there is wide variation in such approaches. But there is a lurking danger that all of us should keep in...more
Not surprisingly, the Musk-Twitter fast-track Delaware case generated privilege issues. One predictably recognized Musk's unique role in his varied revolutionary enterprises.
In Twitter, Inc. v. Musk, Civ. A. No....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
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
Many of us (especially the older generation) like to deal with hard-copy printouts of electronic communications. But inattention to the printout process can have disastrous results....more
In December 2020, a New York court noted that A-list actor Justin Theroux and his downstairs neighbors "do not get along, to put it mildly." Theroux v. Resnicow, 2020 N.Y. Slip Op. 51489(U), at *2 (N.Y. Sup. Ct. Dec. 16,...more
Lawyers should remind their clients that copying a lawyer on an email does not automatically render the email privileged. But the story doesn't end there.
In Dejewski v. National Beverage Corp., the court recited the...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
Several previous Privilege Points have summarized often-complicated judicial holdings on who owns privilege protection after corporate stock or asset transactions. It should come as no surprise that the privilege ownership...more
Last week’s Privilege Point described a husband’s probable loss of attorney-client privilege protection when using his employer’s email system for communications with his personal lawyer. Because he had only raised the...more
The attorney-client privilege and the work product doctrine differ dramatically in their age, source, scope, strength and fragility. Lawyers must always consider both. But because clients, lawyers, and even courts usually use...more
Nearly every court protects as privileged only those communications or documents whose “primary purpose” was for the clients to request legal advice or the lawyers to provide the requested legal advice. A few courts have...more
Last week's Privilege Point described a court's recognition that the work product doctrine can protect lawyers' communications with third party witnesses. Five days later, another court dealt with lawyers' reports to their...more
Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection?
In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063...more
Corporations claiming attorney-client privilege protection for their emails must prove that the emails were primarily motivated by their need for legal advice. Simply adding lawyers' names as direct or copy recipients does...more
Starting 10-15 years ago, many courts addressed corporate employees' privilege claims for communications with their personal lawyers (usually employment lawyers) using their employers' email infrastructure. Most states (other...more
Under the traditional so-called "bright-line" test: (1) selling or otherwise transferring a corporation's stock transferred its privilege ownership; while (2) selling or otherwise transferring its assets did not. But most...more
The privilege can protect clients' requests for legal advice, and lawyers' responses. But employees simply cc'ing a lawyer on an email to another employee cannot guarantee privilege protection – because the email might be...more
Numerous courts have held that corporate employees have no expectation of confidentiality (and thus no privilege protection) when using their employer's server and other communication equipment – if the corporate personnel...more