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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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