Lawyers representing corporations or other entities during investigations routinely interview former employees. Those intangible interviews and any resulting documentation presumably deserve work product protection if the...more
All or most courts assessing deposition objections distinguish between questions focusing on: (1) the occurrence of a privileged communication; and (2) its content. Not surprisingly, that line can sometimes be hard to draw....more
Because what is called "opinion work product" deserves higher protection than fact work product (and in many courts enjoys "absolute or nearly absolute" protection), litigants understandably seek to withhold documents on that...more
The ancient attorney-client privilege protection provides absolute but fragile immunity from discovery. The relatively new litigation-related work product doctrine provides limited but robust immunity from discovery. Lawyers...more
All or most courts recognize what they call the "crime-fraud exception" to attorney-client privilege protection. Although courts take differing positions on numbering this crime-fraud exception's factors, most agree on the...more
One glaring disagreement among state courts involves former corporate directors' right to access documents they possessed when they served as directors. Common sense might lead one to think that directors enjoyed access when...more
Some lawyers erroneously assume that the fragile attorney-client privilege protection normally survives disclosure (by them or by their clients) to the client’s consultant/agent. That can be true in very limited...more
The last several Privilege Points have emphasized the different waiver implications of disclosing privileged communications and protected work product. For the most part, the distinctions rest on the very different societal...more
Last week's Privilege Point described a court's refreshingly correct acknowledgment that disclosing work product to friendly third parties does not waive that robust protection — in contrast to the more fragile privilege...more
Unlike the very fragile attorney-client privilege (which can be waived even by disclosure to family members), the more robust work product doctrine protection survives disclosure to friendly third parties....more
Courts take differing positions on the "client's" identity in the government setting. Among other things, such differing positions might affect the waiver implications of one government agency disclosing its privileged...more
Under some arrangements, major shareholders appoint directors to companies those shareholders partially own. Does such a company waive its privilege by disclosing its privileged documents to a designating shareholder's...more
The last two Privilege Points (Part I and Part II) addressed the Supreme Court's abandoned attempt to address the abstract "primary purpose" versus "one significant purpose" privilege standard in the absence of specific facts...more
Last week's Privilege Point described the Supreme Court's failure to decide between a "primary purpose" and a "one significant purpose" privilege standard. Everyone wonders why the Supreme Court dropped the case. The best...more
On January 23, 2023, the U.S. Supreme Court took the unusual step of dropping a case after oral argument. In re Grand Jury, 23 F.4th 1088 (9th Cir.), cert. granted, 143 S. Ct. 80 (2022), cert. dismissed as improvidently...more
Last week's Privilege Point described two courts taking the opposite position on whether the common interest doctrine could protect from waiver otherwise privileged communications among common interest agreement participants...more
The common interest doctrine can sometimes protect from the otherwise harsh privilege waiver impact normally triggered by the sharing of privileged communications among separately represented clients. Courts take widely...more
In 1985, the Third Circuit protected as opinion work product a lawyer's "selection and compilation of [intrinsically unprotected] documents . . . in preparation for pretrial discovery." Sporck v. Peil, 759 F.2d 312, 316 (3d...more
In federal court and in state courts following the same approach, Fed R. Evid. 502(b) sometimes allows claw backs if a privileged document's production was "inadvertent." That term could have several meanings — ranging from a...more
Litigants accused of willful patent infringement sometimes rely on an "advice of counsel" defense. Interestingly, courts have recognized a distinction between such a defense in the privilege and the work product contexts....more
Last week's Privilege Point described courts' various standards for their in camera review of withheld documents. The vast majority recognizes the trial court's discretion, but some courts always conduct an in camera review...more
Attorney-client privilege protection depends on content, and some work product claims also depend in part on content. Because a litigant's privilege log obviously does not disclose withheld documents' content, the adversary...more
Last week's Privilege Point described a case predictably holding that an FLSA defendant could not present defensive evidence at trial of the advice it received from its lawyer about plaintiff employee's classifications after...more
Fair Labor Standards Act cases frequently involve privilege issues, in part because employers' treatment of employees' status and their treatment of compensation frequently (if not normally) implicate legal advice that those...more
In earlier times, litigants essentially trusted each other to withhold (without identifying) responsive documents protected by the attorney-client privilege or the work product doctrine. Now every court seems to require a...more