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The Consequences of a Bad or Tardy Privilege Log

Every court seems to require litigants to log documents they withhold based on privilege or work product claims. Perhaps not surprisingly, hardly any log goes unchallenged by the adversary. Most of these disputes eventually...more

Courts Deal With a Review of Privilege Rulings

In federal courts, it is nearly impossible to successfully file an interlocutory appeal of a trial court’s order requiring production of privileged documents — despite the obvious “cat out of the bag” nature of such rulings....more

Court Takes Expansive View of an Implied Waiver: Part II

Last week’s Privilege Point described an opinion requiring a corporate party’s witness to disclose communications with his Latham & Watkins lawyers, because he confirmed with that firm his own “commercial understanding” about...more

The Worrisome Nature of “Discovery About Discovery”

Aggressive plaintiffs sometimes try to generate a “side show” by challenging corporate defendants’ discovery responses (usually their document productions). Although federal courts have thankfully moved in the direction of...more

Courts Disagree About Privilege Log Requirements: Part II

Last week’s Privilege Point described one court’s incredible requirement that litigants identify everyone who learned of a withheld document’s content — even if they were not shown as a recipient....more

Where Should Lawyers Look for the Applicable Attorney-Client Privilege?

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

Pennsylvania Federal Court Helpfully Distinguishes Between Privilege and Work Product Protection

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

Are All Government Agencies Part of One “Client” for Privilege Purposes?

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

Delaware Federal and State Courts Disagree About a Key Privilege Waiver Issue

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

Supreme Court Fumbles Attempt to Define Privilege Standard: Part III

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

Supreme Court Fumbles Attempt to Define Privilege Standard: Part II

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

Southern District of California Applies the Sporck Doctrine

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

Analyzing an Inadvertent Production’s Waiver Impact: What Does the “Inadvertent” Element Mean?

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

In Camera Reviews’ Process and Downside: Part II

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

In Camera Reviews’ Process and Downside: Part I

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

Court Provides Useful Guidance for Preparing a Defensible Privilege Log

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

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

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 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

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

New York State Court Recognizes a General Privilege Rule, But The S.D.N.Y. Carries It To An Astoundingly Impractical Extreme: Part...

Last week's Privilege Point described a New York state court's unsurprising articulation of the nearly universally-applied "primary purpose" standard, and listing of the usual type of documents that fail to satisfy that...more

Does Disclosing Work Product Trigger a Subject Matter Waiver?

Disclosing attorney-client privileged communications can trigger a subject matter waiver if made in a judicial setting to gain some advantage. This subject matter waiver danger reflects the classic "sword-shield" analogy with...more

Delaware Federal Court Cleverly Finesses Frequently Arising Privilege Issue

Nearly every court requires that litigants analyze possible privilege and work product protection for each attachment included in a withheld email or other document. This understandable approach raises an obvious question...more

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