Discovery rules and court orders normally require litigants to list people with possible claims or potentially responsive information. But as in many other contexts, the “intensely practical” work product doctrine can apply...more
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
Litigators frequently interview fact witnesses in pending or anticipated litigation settings. Their interview notes normally deserve fact work product protection, but that can be overcome if the witnesses disappear or their...more
Unlike the absolute attorney-client privilege (and the absolute or nearly absolute opinion work product doctrine protection), a litigant can overcome the adversary’s fact work product protection if it “shows that it has...more
Fed. R. Civ. P. 26(b)(3) and its state counterparts protect from discovery "documents and tangible things that are prepared in anticipation of litigation." This obviously includes civil litigation. But what about other forms...more
Under Fed. R. Civ. P. 30(b)(6), corporations must designate a witness to testify about the corporation's knowledge. Surprisingly few courts have reconciled this requirement with the common if not universal role that lawyers...more
Although the Federal Rules of Civil Procedure describe the work product doctrine in a single sentence, federal courts interpret that sentence in wildly varied ways. Four federal court decisions issued in just a nine-day...more
One of the great ironies of work product protection involves federal courts' widely varying interpretation of the single sentence codifying the Federal Rules' work product protection. Fed. R. Civ. P. 26(b)(3)(A). Among many...more
Rule 30(b)(6) of the Federal Rules of Civil Procedure allows corporations' adversaries to insist that the corporation select a spokesman to provide binding testimony about designated topics. These depositions almost...more
The Federal Rules of Civil Procedure and most state court rules memorialize their basic work product doctrine in just one sentence. But courts take divergent views on what that sentence means. ...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