Last week's Privilege Point described a Colorado state court case holding that absent contrary direction in a decedent's will, the decedent's personal representative owns all the files generated by the decedent's lawyer. Ten...more
Most lawyers and clients entering into joint representation arrangements focus on conflicts of interest issues – in case adversity develops between the clients. The "default" conflicts principle normally requires lawyers to...more
Last week's Privilege Point discussed a New York federal court's and a New York state court's opposite positions on a key work product issue.
Courts also disagree about whether the work product doctrine can extend to...more
Ironically, federal and state courts applying their succinct work product rules exhibit more diversity than when construing the more complex and mostly common law attorney-client privilege. One difference focuses on whether...more
Last week's Privilege Point discussed a somewhat surprising Colorado Supreme Court decision holding that a stroke victim's parents' presence during a meeting with her lawyer aborted privilege protection. Fox v. Alfini, Case...more
Last week's Privilege Point described a court's recognition that the work product doctrine can protect lawyers' communications with third party witnesses. Five days later, another court dealt with lawyers' reports to their...more
Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection?
In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063...more
Most courts recognize a doctrine first articulated in Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), which protects as opinion work product lawyers' selection of intrinsically unprotected documents, witnesses, etc. – if that...more
When a privilege owner shares protected documents with third parties without waiving the protections, who must or can protect those documents from adversaries' discovery? Can the third parties who possess the protected...more
In In re National Prescription Opiate Litigation, the court explained that the work product doctrine is "broader than the attorney-client privilege." Case No. 17-MD-2804, 2018 U.S. Dist. LEXIS 142270, at *61 (N.D. Ohio Aug....more
Corporations creating documents in the "ordinary course of business" normally cannot claim work product protection, because they were not motivated by anticipated litigation. But the work product doctrine actually requires a...more
Defendants' accident scene photographs usually deserve work product protection if the defendants reasonably anticipated litigation. But plaintiffs frequently can overcome that protection for photographs defendants took...more
Some courts seem to ignore the plain language of the federal work product rule or state parallels by requiring lawyers' involvement.
In Rafferty v. KeyPoint Government Solutions, Inc., the court correctly quoted the...more
Lawyers familiar with abstract and even case-specific substantive privilege and work product-related principles must keep something else in mind. Many if not most courts have also adopted local rules that might affect the...more
The judge handling the criminal case against President Trump's former lawyer Michael Cohen appointed a special master to review for privilege or work product protection documents the government seized from Cohen's office. The...more
Most privilege and work product cases focus on those two protections' applicability to documents or communications, or on the waiver effect of disclosing preexisting protected documents to third parties. But some cases focus...more
Nearly every court protects as work product personal injury defense lawyers' secret surveillance videotapes of plaintiffs engaging in activities that belie their injury claims. Not surprisingly, those courts normally require...more
Last week's Privilege Point described two of three possible "trigger" events that can create an objectively and subjectively reasonable "anticipation" of litigation: (1) an outside event certain to generate litigation; and...more
Establishing work product protection requires: (1) litigation (normally civil or criminal litigation, but sometimes adversarial administrative or ADR settings); (2) anticipation (ranging from "imminent" in some courts to...more
The last two Privilege Points have addressed courts' troubling disagreements about the meaning of two federal rule sentences articulating the important work product doctrine protection. Surprisingly, courts cannot even agree...more
Last week's Privilege Point addressed courts' varying views on whether work product protection can extend to a non-party's documents. Courts also disagree about the heightened opinion work product protection, under which a...more
Under Federal Rule of Evidence 612, courts concluding that "justice requires" it may order disclosure of privileged or work product protected documents that refreshed a witness's recollection before testifying. How does that...more
Wise lawyers always consider both attorney-client privilege and work product protection when withholding a document or testimony. Privilege protection is absolute but fragile. Work product protection is qualified but...more
Corporations’ investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by...more
Corporations' investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by...more