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Texas Courts' Contradictory Approach to the Common Interest Doctrine

The common interest doctrine sometimes allows separately represented clients to avoid the normal privilege waiver implications when sharing their privileged communications. Unfortunately for lawyers hoping for certainty,...more

Court Addresses Privilege Protection for Litigation Holds

Companies in or anticipating litigation normally impose litigation holds. If litigation ensues, does the attorney-client privilege or the work product doctrine protect the content of such a hold or the fact of its imposition?...more

Courts Assess Protection for Lawyers’ Billing Entries: Part II

Last week's Privilege Point described courts' varied approaches to losing litigants' efforts to discover the winning lawyers' billing entries when the winners seek recovery of their attorney's fees....more

Courts Assess Protection for Lawyers’ Billing Entries: Part I

Winning litigation parties sometimes seek recovery of the money they spent on their lawyers — either as a damage element or under a fee-shifting legal doctrine or contract provision. Not surprisingly, the losers usually seek...more

Musk-Twitter Feud Privilege Fallout: Part I

Not surprisingly, the Musk-Twitter fast-track Delaware case generated privilege issues. One predictably recognized Musk's unique role in his varied revolutionary enterprises. In Twitter, Inc. v. Musk, Civ. A. No....more

How Does the Common Interest Doctrine Work in the Intellectual Property Context?

The common interest doctrine sometimes prevents what would be a waiver when separately represented clients disclose privileged communications to each other. But the doctrine normally requires an identical legal interest, not...more

Defendant’s Sloppy Language and Log Doom Work Product Claim

Fed. R. Civ. 26(b)(3)(A) protects from discovery documents and tangible things that are prepared in anticipation of litigation or for trial. Litigants asserting work product protection must (if called upon to do so) identify...more

Courts Address Work Product Protection for Non-Testifying Consulting Experts: Part II

Last week's Privilege Point summarized a case confirming non-testifying experts' general immunity from discovery — absent "exceptional circumstances" such as destructive testing. Ten days later, another court addressed...more

Courts Address Work Product Protection for Non-Testifying Consulting Experts: Part I

Many courts address the discovery available from a litigant's testifying experts. Fewer courts assess discovery of a litigant's consultant retained to provide background expertise rather than testifying. ...more

Do Regular Attorney-Client Principles Apply in the Governmental Setting?

Courts' application of the attorney-client privilege to government lawyers' communications reflects the tension between the public interest in government transparency and the societal benefit of public officials and employees...more

Courts Apply the "Intensely Practical" Work Product Doctrine: Part II

Last week's Privilege Point described a court’s rejection of work product protection for a preprinted post-accident form with seemingly helpful boilerplate language about its purpose and a lawyer's involvement — but without...more

Courts Apply The "Intensely Practical" Work Product Doctrine: Part I

The work product doctrine has been described by many courts as "intensely practical." Several decisions highlight this understandable adjective, and explicitly provide useful guidance for lawyers representing litigants and...more

Northern District of Illinois Helpfully Explains The Work Product Doctrine Protection’s Contextual Basis

As these Privilege Points have repeatedly emphasized, privilege protection depends on communications' content — which must be primarily motivated by a client's request for legal advice, or the lawyer's responsive provision of...more

May Litigants Advance Their Case Using Purloined Privileged Documents?

Given the vulnerability of electronic communications to intrusion, lawyers sometimes obtain and may be tempted to use documents that their clients have inappropriately obtained from an adversary – even privileged documents....more

Can the Loser Immediately Appeal an Order Requiring Production of Privileged Communications?

One might think that a litigant should be able to file an interlocutory appeal of an order to produce arguably privileged documents. In such an obvious "cat out of the bag" situation, waiting until a final order does not do...more

Source and Choice of Privilege Law in Federal Courts: Part II

Last week's Privilege Point summarized a California federal court decision confirming that California recognizes its privilege in a statute, but then inexplicitly acknowledging that courts can themselves create exceptions....more

Source and Choice of Privilege Law in Federal Courts: Part I

Lawyers dealing with attorney-client privilege questions obviously must assess what privilege law applies. Federal courts understandably apply federal privilege common law (essentially garden-variety principles) in federal...more

If a Court Finds Attorney-Client Privilege Waiver, Must It Also Consider Work Product Waiver?

The attorney-client privilege provides absolute protection, but is very fragile. Work product doctrine protection does not provide absolute protection (fact work product protection can be overcome), but is robust. Of course,...more

Delaware Court Addresses the Privilege Implications of an Evenly Split Corporate Board’s Feud

Not surprisingly, Delaware state courts frequently address privilege issues triggered by corporate board disputes. Those often guide other states' courts' analyses of similar scenarios....more

The Oddly Named "Fiduciary Exception" and Its "Exceptions"

Under old English trust law, courts gave trust beneficiaries access to otherwise privileged communications between the trust fiduciary and its lawyer advising him or her on trust administration matters. The main case bringing...more

Hickman Work Product Protection Extends Beyond the Work Product Rule

Just about the time that extensive pre-trial discovery started, the Supreme Court recognized a new evidentiary protection – extending beyond the attorney-client privilege, and motivated by the understandable requirement that...more

What Is the Standard for Courts’ In Camera Review of Withheld Documents?

Litigants and even some lawyers occasionally forget how courts address attorney-client privilege (and sometimes work product protection) assertions. Privilege protection focuses primarily on a communication's content — ...more

Northern District of California Court Repeats Commonly Articulated Incorrect but Harmless Statement About Common Interest Doctrine

The common interest doctrine can sometimes protect communications between separately represented clients that would otherwise trigger a waiver – if those clients share an identical (or nearly identical, in some courts) legal...more

New Jersey Federal Court Articulates Attorney-Client Privilege’s Societal Purpose Justifying Its Absolute Protection

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

Adversaries Normally Can Explore Background Facts About Communications Withheld as Privileged

Attorney-client privilege protection focuses on communications' content, but those communications' context can shed light on their primary purpose, possible inapplicability because of third parties' presence, etc. So...more

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