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JM Smucker Avoids a Discovery Jam

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

Two S.D.N.Y. Cases Decided the Same Day Provide the Same Key Privilege Guidance: Part II

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

Seeking Attorney’s Fees Triggers Work Product Waiver Issues: Part II

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

Seeking Attorneys’ Fees Triggers Work Product Waiver Issues: Part I

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

Do Not Forget the Consequences of Judges’ Role in Assessing Privilege Protection

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

Courts Disagree About Privilege Log Requirements: Part I

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

Does Disclosure During Settlement Negotiations Waive Work Product Protection?

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

What’s the Deal With “Intangible” Work Product? Part III

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

What’s the Deal With “Intangible” Work Product? Part II

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

What’s the Deal With “Intangible” Work Product? Part I

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

What Can Corporations Safely Share With Their Auditors?

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

Can Any Data Breach Investigation Report Deserve Protection? Part III

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

Can Any Data Breach Investigation Report Deserve Protection? Part II

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

Can Any Data Breach Investigation Report Deserve Protection? Part I

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

Sending an Adversary a Draft Complaint Does Not Waive Privilege or Work Product Protection

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 Lasts Forever —  What About Work Product Protection?

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

Rare Opinion Extends Privilege Protection to Implicit Request for Legal Advice

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

Texas Court Applies Several Basic Work Product Principles

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

Two Federal Courts Assess a Prospective Client’s Privilege Protection on the Same Day

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

Work Product Protection Can Be Overcome in Some Circumstances, but the Privilege Is Absolute — Right?

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

Federal and State Courts Issue Helpful Investigation-Related Decisions: Part II

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

Federal and State Courts Issue Helpful Investigation-Related Decisions: Part I

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

Can an Interviewee Witness List Ever Deserve Work Product Protection?

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

State Courts Offer Some Hope for Adverse Privilege Rulings' Interlocutory Appeals

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

Do Arbitrations Count as "Litigation" for Work Product Purposes?

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

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