The last two Privilege Points have addressed the implied waiver implications of litigants (defendant in the Crypto King’s trial and plaintiff in the case described last week) relying on legal advice to defend against or...more
Last week’s Privilege Point described an “advice of counsel” issue that arose in Bankman-Fried’s recent criminal trial. The day after S.D.N.Y. Judge Kaplan’s ruling in that case, another court dealt with this issue....more
Defendants seeking to avoid liability by relying on a lawyer’s advice trigger a classic “implied waiver.” Although asserting that defense does not itself disclose any privileged communications (as with an intentional or...more
Not surprisingly, both a lawyer’s confidentiality duty and the attorney-client privilege protection last beyond the client’s death. But most courts recognize what they call the “testamentary exception” — allowing disclosure...more
Under the widely recognized common interest doctrine, separately represented clients may sometimes contractually avoid the otherwise inevitable privilege waiver when sharing privileged communications. As explained previously...more
Clients relying on an investigation’s result to gain some advantage understandably trigger a subject matter waiver. But some courts recognize that those clients may still claim privilege for some related communications....more
Overworked judges assessing possible privilege protection for the increasing volume of often-cryptic emails withheld from production understandably look for a client’s explicit request for legal advice from a lawyer....more
As noted in several previous Privilege Points, courts have great difficulty assessing privilege protection for communications relating to a Rule 30(b)(6) deposition — in which a corporation or other institution designates a...more
Because work product protection only applies at certain times, clients must be able to identify the exact moment that they first anticipated litigation. And not surprisingly, they must also explain why they first anticipated...more
Communications between a lawyer and a prospective client can involve ethics (confidentiality and conflicts) issues, as well as privilege protection issues. Not surprisingly, the availability of privilege protection depends on...more
Most lawyers know that fact work product protection can be overcome in certain circumstances, opinion work product is “absolutely or nearly absolutely” protected, and that the attorney-client privilege is absolute. But as...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
Identifying the "client" in closely held corporations can be difficult, but critical. That determination can affect both privilege protection for communications, and the right to access privileged communications between the...more
Under the common law "functional equivalent" doctrine, corporations sometimes may claim privilege protection for communications to or from a non-employee who is the "functional equivalent" of an employee. This common sense...more
The attorney-client privilege originated in Roman law, and flourished under what John Adams labeled "that most excellent monument of human art, the common of law of England." But in America, some states articulate their key...more
Under the common interest doctrine, separately represented clients may sometimes contractually avoid the normal waiver impact of disclosing privileged communications to each other. But federal and state courts take widely...more
Last week’s Privilege Point described a federal court case holding that explicit reliance on a consultant's investigation waived fact work product protection related to the investigation — but not opinion work product...more
Internal corporate or other entity investigations frequently generate discovery motions that focus on privilege and work product creation and waiver issues. Two recent decisions offer some good news for defendants resisting...more
Facts and events normally do not deserve work product protection. But a lawyer's careful selection of such facts or important events sometimes may reflect his or her strategic assessment or litigation planning. For example,...more
Federal courts have eliminated nearly any chance for unsuccessful trial court litigants to immediately appeal adverse privilege or work product rulings – inexplicably rejecting the obvious "cat out of the bag" nature of such...more
Fed. R. Civ. P. 26(b)(3) extends protection to documents prepared "in anticipation of litigation or for trial." An obvious question presents itself — what counts as "litigation"?...more
Under Fed. R. Civ. P. 30(b)(6), a litigant seeking a corporate adversary's deposition may insist that the corporation designate an individual to testify on the corporation's behalf about designated topics. The concept makes...more
It seems obvious that corporations do not waive privilege protection by disclosing privileged communications to their own board members. But what about outside board members receiving such communications where they work or...more
Most courts hold that the incredibly fragile attorney-client privilege can be waived by disclosure even to family members (such as Martha Stewart’s disclosure to her own daughter). The separate "spousal privilege" recognized...more
Under what is called the "fiduciary exception," the law essentially deems a fiduciary's beneficiary to be the fiduciary’s lawyer’s actual "client." This normally enables the beneficiary to access communications between the...more