Because litigants frequently take an aggressive approach when withholding documents on privilege grounds, courts’ in camera reviews often result in a loss for them. But sometimes courts agree with a litigant’s privilege...more
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
Last week’s Privilege Point described a court’s review of a lawyer’s conversation with a witness and its conclusion that none of the conversation deserved the heightened opinion work product protection. LaBudde v. Phoenix...more
Criminal defendants accused of white-collar crimes often deal with lawyers before and even while engaged in their alleged criminal misconduct. All or most lawyers have the vague notion that the attorney-client privilege can...more
Lawyers should always consider every possible evidentiary protection their clients might legitimately assert. To put it in basic terms, the ancient attorney-client privilege has the advantage of providing absolute protection...more
The attorney-client privilege benefits society by encouraging clients' frank disclosure to their lawyers, but it undeniably conceals highly relevant communications. Surprisingly, only a few courts have addressed plaintiffs'...more
In some situations, disclosure or reliance on privileged communications or protected work product triggers a "subject matter waiver" — requiring the owner's disclosure of additional related communications or work product....more