Last week's Privilege Point discussed Illinois federal court and Illinois state court decisions issued just ten days apart -- disagreeing about whether litigants asserting attorney-client privilege or work product protection...more
All courts agree that litigants asserting attorney-client privilege or work product protection must establish the protection's applicability. But courts take different positions on whether any presumptions guide their...more
3/27/2020
/ Adverse Inference Instructions ,
Attorney-Client Privilege ,
Bad Faith ,
Cost-Shifting ,
Discovery ,
Duty to Preserve ,
Electronically Stored Information ,
Motion to Compel ,
Privilege Waivers ,
Sanctions ,
Scope of Discovery Requests ,
State and Local Government ,
Work-Product Doctrine
When former employees turn on their former employer, they sometimes seek access (through discovery) of privileged communications that were in their possession when they worked at the company. At first blush, that might seem...more
Last week's Privilege Point described a court's somewhat surprisingly narrow view of when counterparties reasonably anticipate litigation. Lawson v. Spirit AeroSystems, Inc., Case No. 18-1100-EFM-ADM, 2019 U.S. Dist. LEXIS...more
Work product protection depends on the creator's involvement in or anticipation of litigation. Courts generally look at what might be called "trigger events" – events that satisfy the work product doctrine's "anticipation"...more
The attorney-client privilege started in Roman times, developed in England, and came to America with the English common law. Each state has adopted attorney-client privilege protection – but memorializes it in different...more
Unlike the attorney-client privilege, the work product doctrine comes in two varieties. Fact work product protection can cover purely factual documents, photographs, test results, etc. Opinion work product can protect...more
Last week's Privilege Point described a court's understandable decision not to address an attorney-client privilege claim when a defendant had successfully claimed work product protection that the plaintiff could not...more
Lawyers should always consider both attorney-client privilege and work product doctrine protections for their clients' and their own documents and communications. The former affords absolute protection, but is fragile. The...more
Every court agrees that litigants asserting their attorney-client privilege or work product protection must prove those protections' applicability. But as in so many other areas, courts recognize differences in determining...more
Unlike the absolute attorney-client privilege, adversaries can obtain a litigant's work product if they have "substantial need" for the work product, and cannot obtain its "substantial equivalent" without "undue hardship."...more
Although appellate courts understandably do not like piecemeal reviews before a final judgment, privilege issues seem particularly well-suited for interlocutory appeals. Once a court orders production of protected documents...more
Last week's Privilege Point described a decision holding that a litigant waived its work product protection by disclosing work product to a third party witness who had not agreed to keep it confidential. City of Almaty v....more
All or nearly all courts agree that disclosing work product to a non-adverse third party does not waive that robust protection – in contrast to the fragile attorney-client privilege. But what if that third party discloses the...more
Last week's Privilege Point described a Northern District of Illinois decision which applied the favorable "one of the significant purposes" privilege standard for assessing mixed business-legal communications, instead of the...more
Many lawyers fear that disclosing attorney-client privileged communications might trigger a subject matter waiver – requiring disclosure of additional related privileged communications. Fortunately, that risk has diminished...more
The work product doctrine sometimes involves clients' primarily business motivation "morphing" into litigation-related motivation – thus entitling the clients to work product protection....more
Litigants often seek to assert opinion work product protection for their litigation-related documents – because the opinion work product doctrine gives the documents absolute or nearly absolute protection. This contrasts with...more
Not surprisingly, the federal rules govern all work product issues in all federal courts. But determining the correct attorney-client privilege law is much more complicated. The federal common law of privilege applies in...more
In Washington Coalition for Open Government v. Pierce County, No. 50718-8-II, 2019 Wash. App. LEXIS 392 (Wash. Ct. App. Feb. 20, 2019), the court properly rejected plaintiffs' attempt to apply the common interest doctrine to...more
The attorney-client privilege's and the work product doctrine's holders must assert those protections as early as possible in the discovery process. But they also must remember the ramifications of such assertions....more
Fed R. Evid. 502 adopts the earlier majority common law view, finding that the inadvertent production of documents does not waive privilege or work product protection if: (1) it was inadvertent; (2) the protection holder...more
Apart from an aberrational case now and then, most courts find that companies disclosing privileged communications to the government waive that fragile protection. But companies do not always waive the more robust work...more
The work product doctrine can protect documents primarily motivated by litigation or anticipated litigation, rather than prepared in the ordinary course of business or motivated by some other non-litigation purpose. But...more
Perhaps corporate executives' most common and dangerous privilege misperception is that they may safely disclose privileged communications to their outside consultants without waiving that protection. And perhaps their...more