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
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