Fed. R. Civ. 26(b)(3)(A) protects from discovery documents and tangible things that are prepared in anticipation of litigation or for trial. Litigants asserting work product protection must (if called upon to do so) identify...more
Last week's Privilege Point summarized a case confirming non-testifying experts' general immunity from discovery — absent "exceptional circumstances" such as destructive testing. Ten days later, another court addressed...more
Many courts address the discovery available from a litigant's testifying experts. Fewer courts assess discovery of a litigant's consultant retained to provide background expertise rather than testifying. ...more
Last week's Privilege Point described a court’s rejection of work product protection for a preprinted post-accident form with seemingly helpful boilerplate language about its purpose and a lawyer's involvement — but without...more
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
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
One might think that a litigant should be able to file an interlocutory appeal of an order to produce arguably privileged documents. In such an obvious "cat out of the bag" situation, waiting until a final order does not do...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
Just about the time that extensive pre-trial discovery started, the Supreme Court recognized a new evidentiary protection – extending beyond the attorney-client privilege, and motivated by the understandable requirement that...more
Litigants and even some lawyers occasionally forget how courts address attorney-client privilege (and sometimes work product protection) assertions. Privilege protection focuses primarily on a communication's content — ...more
Lawyers should always consider every possible evidentiary protection their clients might legitimately assert. To put it in basic terms, the ancient attorney-client privilege has the advantage of providing absolute protection...more
Actor Robert De Niro's feud with a former production company manager has generated several opinions by Southern District of New York Magistrate Judge Katharine Parker.
In Robinson v. De Niro, No. 19-CV-9156 (LJL) (KHP),...more
Last week's Privilege Point addressed a D.C. federal court's application of the Illinois "control group" privilege standard in a transferred case. In South Capitol Bridgebuilders v. Lexington Insurance Co., Case No....more
All but a handful of states apply what is called the Upjohn privilege standard – under which the attorney-client privilege can protect a corporation's lawyer's communication with any corporate employee who has information the...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
Based on two United States Supreme Court decisions, defendants sometimes may assert what is known as a "Faragher-Ellerth" affirmative defense to discrimination and harassment claims. To successfully assert that affirmative...more
Last week's Privilege Point addressed litigants' need to identify the exact moment when they first anticipated litigation. Another work product issue involves the degree of protection afforded opinion work product....more
Because work product protection applies only when the creator is in or reasonably anticipates litigation, a litigant asserting that protection must know exactly when that occurred. In other words, as of one moment the...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
Most states have adopted some variation of what is called the "spousal privilege" or "marital privilege." Those usually appear in statutes or rules, and dramatically vary from state to state. For obvious reasons, spouses'...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
Fed. R. Civ. P. 26(b)(3)'s and parallel state work product rules apply to documents and tangible things prepared "in anticipation of litigation or for trial." But the Rule does not specify the degree of required...more
Although the federal work product rule and parallel state work product rules extend only to "documents and tangible things," most courts also protect intangible work product such as oral communications – at least to the...more
Just as some clients think that copying a lawyer cinches privilege protection, even sophisticated clients relying on well-known law firms might erroneously believe that having those law firms hire a public relations...more
In December 2020, a New York court noted that A-list actor Justin Theroux and his downstairs neighbors "do not get along, to put it mildly." Theroux v. Resnicow, 2020 N.Y. Slip Op. 51489(U), at *2 (N.Y. Sup. Ct. Dec. 16,...more