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
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
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
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
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
Courts frequently face a common scenario: an in-house lawyer investigates alleged employee misconduct, and prepares a report that the company relies on in firing the employee. Do such reports deserve privilege protection, and...more
Last week's Privilege Point addressed courts' differing interpretations of the work product rule's "anticipation" element. Fed. R. Civ. P. (26)(b)(3)'s and parallel state rules' "litigation" element also requires courts'...more
Lawyers preparing their clients and others for deposition or trial testimony frequently show them documents. Courts disagree about whether such lawyers can withhold from the adversary those documents' identity. The majority...more
The attorney-client privilege protects communications between clients and their lawyers. But in certain admittedly limited circumstances, the protection can apply to documents created by someone who has not yet hired a...more
Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a "sword" while simultaneously asserting the privilege as a...more
Not surprisingly, attorney-client privilege protection evaporates once a client and her lawyer agree that a document can be disclosed to outsiders -- even before it is disclosed. But some courts have inexplicably applied this...more
It should go without saying that sending pre-existing historical documents to a lawyer does not automatically immunize them from discovery as privileged. If it did, clients could box up all of their files and send them to a...more
Courts assessing the waiver implications of a litigant accidentally producing privileged documents normally look at several factors: (1) Did the producing party adopt a reasonable protocol for identifying and withholding...more
As if waiving privilege protection (either intentionally or inadvertently) was not frightening enough, the sinister subject matter waiver doctrine might force disclosure of additional privileged documents on the same topic....more
Last week’s Privilege Point described a Delaware Chancery Court’s analysis of pre-closing privileged transactional documents in: (1) a stock sale (in which the statutory “default” position is that the buyer acquires those...more
The attorney-client privilege protects communications between clients and their lawyers, not historical facts. Some courts misunderstand the real-world application of this basic principle, but other courts get it right....more
When former employees turn on their former employer, they sometimes seek access (through discovery) of privileged communications that were in their possession when they worked at the company. At first blush, that might seem...more
Last week’s Privilege Point described two favorable analyses from a Southern District of New York decision (Judge Gorenstein) assessing defendant Barnes & Noble’s privilege assertions covering its investigation and later...more
The attorney-client privilege protects clients' communication of facts to their lawyers and requests for legal advice about those facts. Not surprisingly, busy courts dealing with the mounting volume of withheld documents...more
Because attorney-client privilege protection generally depends on content, most courts read withheld documents in camera to assess that content. But states disagree about whether courts must always conduct such in camera...more
Although the federal and most if not all state rules do not explicitly require privilege logs, all or nearly all courts demand that parties withholding protected documents describe them with specificity in a log. And all...more
Because the attorney-client privilege ultimately rests on clients' request for legal advice about facts they give their lawyers, most courts extend privilege protection to those communications and to lawyers' specific legal...more
Fed R. Evid. 502 adopts the earlier majority common law view, finding that the inadvertent production of documents does not waive privilege or work product protection if: (1) it was inadvertent; (2) the protection holder...more
Last week's Privilege Point described a Colorado state court case holding that absent contrary direction in a decedent's will, the decedent's personal representative owns all the files generated by the decedent's lawyer. Ten...more