Courts analyzing the attorney-client privilege's ownership rights necessarily determine the privileged documents' physical possession, as well as authority to assert and waive the privilege. Not surprisingly, such dispositive...more
When a privilege owner shares protected documents with third parties without waiving the protections, who must or can protect those documents from adversaries' discovery? Can the third parties who possess the protected...more
Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and...more
Understandably, clients can rarely if ever claim privilege protection for preexisting documents they send to their lawyers. But clients also send their lawyers in-progress documents about which they want lawyers' advice, and...more
The government occasionally seizes privileged documents from suspected criminals and occasionally even from their law firms. Although the attorney-client privilege does not rest on constitutional grounds, case law generally...more
The ethics rules and attorney-client privilege principles both allow lawyers to disclose privileged communications when defending themselves from clients' and even third parties' attacks. But do such disclosures waive the...more
Attorney-client privilege protection normally evaporates when the client abandons its confidentiality expectation. Under this basic principle, does placing privileged communications in an employee's personnel file forfeit...more
Some courts erroneously fail to extend privilege protection to draft documents prepared by or revised by a lawyer before their final disclosure beyond the attorney-client relationship. Even courts that properly acknowledge...more
When negotiating their respective privilege claims, litigants sometimes face the temptation to agree among themselves that producing some arguably protected withheld documents will not trigger a subject matter waiver...more
Every court agrees that litigants must support their privilege claims with something other than naked assertions. But they disagree about the type of support required to justify withholding documents or testimony. ...more
Some clients who have not been adequately advised by their lawyers think that writing "privileged" on a document makes it so, or that copying a lawyer will assure privilege protection. These and other similar...more
In nearly every situation, courts understandably refuse to allow litigants to use any privileged communications at trial that they withheld from discovery. Is there any situation in which litigants can avoid such a...more
Adversaries challenging litigants' privilege or work product assertions necessarily "shadow box" with the litigants -- because the adversaries cannot see the withheld documents. Courts often review such withheld documents in...more