Last week's Privilege Point described a court's curt rejection of attorney-client privilege protection for a plaintiff's communications with her mom – and noted the court's surprising failure to address an obvious work...more
Somewhat counter-intuitively, attorney client privilege protection is so fragile that even a family member often falls outside privilege protection (unless that family member was necessary to facilitate communications between...more
An employer's post-accident investigation deserves work product protection only if it was primarily motivated by anticipated litigation. Thus, such investigations normally do not deserve work product protection if: (1) they...more
As Privilege Points have periodically mentioned, some courts inexplicably limit work product protection to documents lawyers prepare or order to be prepared – in the face of Fed. R Civ. P 26(b)(3)(A)'s requirement only that...more
It should come as no surprise that litigants normally seek discovery about their adversaries' legal contentions and factual support. On the other hand, litigants' lawyers understandably consider their trial strategy and their...more
An acquiring corporation normally conducts due diligence before acquiring an acquisition target. Not surprisingly, the acquiring corporation might seek privileged or work product protected documents or communications during...more
In first-party insurance scenarios, an insured seeks coverage directly from its insurance company for its losses (in contrast to third-party insurance, in which an insured seeks its insurance company’s help defending and...more
The ancient attorney-client privilege: (1) protects communications primarily motivated by clients' request for legal advice, regardless of any litigation on the horizon; and (2) protects such communications absolutely. The...more
Lawyers representing insurance companies and others sometimes seek evidence that plaintiffs claiming injuries, disability, etc., are faking it. And of course nothing could be as dramatic as a surveillance video of a plaintiff...more
Last week's Privilege Point described a Louisville, Kentucky, restaurant's loss of privilege protection because it could not prove that the managers providing information after a slip and fall knew the "investigation notes'"...more
Under the commonly (but not universally) recognized Upjohn standard, a corporation's lawyer may engage in privileged communications with any level of corporate employee who has information the lawyer needs. But that favorable...more
One widespread misperception about attorney-client privilege and work product doctrine assertions is that the Federal Rules require a privilege log. As one court bluntly put it, "no where in Fed. R. Civ. Pro. 26(b)(5) is it...more
Attorney-client privilege protection started in Roman times, evolved in the common law, developed organically in each jurisdiction, and differs somewhat from state to state. But ironically, there is a greater variation in...more
The work product doctrine requires: (1) litigation; (2) anticipation; and (3) motivation. And even though the work product doctrine rests on a single sentence in the Federal Rules, federal courts ironically take more varied...more
Although the Federal Rules do not explicitly require privilege logs, every court seems to do so. Most courts require such logs to include predictable data, but some courts require logs to provide data that seem largely...more
Last week’s Privilege Point described a husband’s probable loss of attorney-client privilege protection when using his employer’s email system for communications with his personal lawyer. Because he had only raised the...more
The attorney-client privilege and the work product doctrine differ dramatically in their age, source, scope, strength and fragility. Lawyers must always consider both. But because clients, lawyers, and even courts usually use...more
On its face, Fed. R. Civ. P. 26(b)(3)(A)’s work product doctrine only protects “documents and tangible things.” But do courts apply the work product doctrine in that limited fashion?
In Kleiman v. Wright, No....more
Companies dealing with the pandemic (and finding themselves in pandemic-triggered future litigation) may seek public relations consultants’ assistance. Companies and their lawyers should remember that most courts reject...more
With pandemic-triggered litigation predicted to increase, corporations’ lawyers undoubtedly will address the possible duty to impose “litigation holds,” which direct corporate employees to preserve pertinent documents....more
Last week’s Privilege Point described a case applying the generally-accepted view that accountants assisting clients rather than the clients’ lawyers are outside privilege protection -- so copying them on privileged emails...more
Accountants can help clients and clients’ lawyers – in ordinary business transactions, in explaining complex issues to lawyers who are giving legal advice, and in litigation. These differing roles at different times can...more
Ironically, federal courts interpreting a single sentence from a federal rule take dramatically differing approaches to the work product doctrine. And a handful of states have not adopted that federal work product rule....more
Last week's Privilege Point described a court's finding that the work product doctrine protected a corporation's investigation of a gender and age discrimination claim -- because the investigation was neither "routine nor...more
The work product doctrine can protect documents primarily motivated by a corporation's involvement in or reasonable anticipation of litigation. Documents created in the corporation's ordinary course of business normally will...more