The common interest doctrine can sometimes protect as privileged communications between separately represented clients who share an identical legal interest in litigation, or in anticipation of litigation. But satisfying this...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
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
Last week’s Privilege Point described a court’s initial rejection but later acceptance of a county’s claim of privilege and work product protection for internal employee training. Hipschman v. Cnty. of San Diego, Case No....more
In the aftermath of the soap opera-like ethical scandal over an undisclosed romantic relationship between a Jackson Walker partner and a Texas bankruptcy judge, an Oregon federal court dealt with discovery of a renowned...more
Companies facing ongoing or threatened litigation must sometimes estimate their likely or possible financial exposure — for internal purposes, reporting to auditors or other reasons. Depending on the circumstances, one would...more
Litigants relying on testifying experts can look to federal or state court rules in determining what they must disclose or may withhold. In contrast, courts take widely varying views of those issues in addressing litigants'...more
Nearly every court protects a litigant's lawyer from depositions or other discovery under what is called the Shelton standard ( Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)) or under similarly restrictive...more
Last week's Privilege Point used two cases to address federal courts' surprising variations in the work product doctrine's "litigation" and "anticipation" elements. Courts also disagree about the doctrine's "motivation"...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
The attorney-client privilege normally does not protect pre-existing historical documents, even if clients convey those to their lawyers. In the work product context, lawyers' selection of certain intrinsically unprotected...more
Last week's Privilege Point discussed a court's consideration of privilege protection for communications with client and lawyer agents. Two weeks later, another court analyzed Debevoise & Plimpton's argument that the...more
The common interest doctrine can avoid the normal waiver implications of separately represented clients sharing privileged communications. But the doctrine applies only in specific situations, and requires careful nurturing...more