Normally a third party does not have standing to challenge a document subpoena. But what if the subpoena seeks discovery of the third party’s privileged or work product-protected documents in the subpoena target’s possession?...more
Last week’s Privilege Point described an S.D.N.Y. opinion rejecting privilege and work product claims for a document that on its face did not contain legal advice or any allusion to or analysis of anticipated litigation....more
Last week’s Privilege Point described two cases finding that successful plaintiffs had waived work product protection covering their invoices and other attorney’s fees billing documents because they sought attorney’s fees as...more
Under what is called the American Rule, winning litigants normally pay their own attorneys’ fees. But in some situations, they can seek recovery of those fees from the losing adversary. Not surprisingly, such efforts...more
In both the federal and state judicial systems, judges assess privilege and work product protection claims — sometimes coordinating with judges at other levels. But there is a lurking unspoken risk that some lawyers may...more
All or nearly all courts require litigants to log documents withheld on privilege or work product grounds (with an exception discussed next week). But they disagree about what the log should include — with some courts taking...more
For obvious reasons, the law encourages settlements. During settlement negotiations, participants may be tempted to disclose work product-protected documents or intangible communications. Can participants or even third...more
The last two Privilege Points (Part I and Part II) explained that the 1947 U.S. Supreme Court decision in Hickman v. Taylor, 329 U.S. 495 (1947), created a common law protection for litigation-related tangible and intangible...more
Last week’s Privilege Point explained that nearly every court extends work product protection beyond the “documents and tangible things” specified in Fed. R. Civ. P. 26(b)(3) and understandably mentioned in a recent Southern...more
The “work product” doctrine provides an entirely separate protection from the attorney-client privilege. Unlike the privilege, the work product doctrine is not ancient, normally not absolute, and not fragile. The many...more
Corporations risk waiving their fragile privilege protection by sharing protected communications with even the friendliest outsiders — such as their retained public relations consultants, etc. They must disclose some...more
The last two Privilege Points have described yet another losing effort to protect a data breach investigation and related communications. In Leonard v. McMenamins Inc., Case No. C22-0094-KKE, 2023 U.S. Dist. LEXIS 217502...more
Last week’s Privilege Point described a data breach victim’s latest losing effort to claim privilege protection for its consultant’s investigation report. Leonard v. McMenamins Inc., Case No. C22-0094-KKE, 2023 U.S. Dist....more
Companies and even law firms suffer data breaches, and usually claim privilege and work product protection for the inevitable resulting investigation. Unfortunately, courts seem to have rejected such protection claims in all...more
Would-be litigants sometimes send a draft complaint to the would-be adversary — either to deter their bothersome conduct or to spur settlement talks. That scenario frequently raises defamation issues — with states taking...more
Attorney-client privilege protection lasts forever, but determining work product doctrine protection’s duration presents a more subtle analysis. Most courts protect work product if it is sought in later litigation related in...more
Overworked judges assessing possible privilege protection for the increasing volume of often-cryptic emails withheld from production understandably look for a client’s explicit request for legal advice from a lawyer....more
Because work product protection only applies at certain times, clients must be able to identify the exact moment that they first anticipated litigation. And not surprisingly, they must also explain why they first anticipated...more
Communications between a lawyer and a prospective client can involve ethics (confidentiality and conflicts) issues, as well as privilege protection issues. Not surprisingly, the availability of privilege protection depends on...more
Most lawyers know that fact work product protection can be overcome in certain circumstances, opinion work product is “absolutely or nearly absolutely” protected, and that the attorney-client privilege is absolute. But as...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