Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that...more
Litigants obviously must identify all witnesses with potentially relevant knowledge about litigated issues. But can litigants claim work product protection for the identity of the subset of those witnesses that their lawyers...more
Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether...more
Under Fed. R. Civ. P. 30(b)(6), corporations must designate and educate one or more witnesses to answer deposition questions based on the corporation's collective knowledge. Such depositions raise obvious privilege issues,...more
Last week's Privilege Point explained that on its face the federal work product rule (and most states' parallel rules) provide heightened opinion work product protection to any client representative's opinions -- not just...more
Unlike the common law-dominated attorney-client privilege which developed organically in each state, work product protection comes from court rules. One might think that this would simplify courts' application of that...more
Because it is absolute and can hide important facts from easy discovery, the attorney-client privilege is hard to create, narrow, and fragile. Among other things, even friendly third parties' presence can abort privilege...more
Content is king in the privilege world, in contrast to the work product protection – which largely depends on context. For this reason, the privilege rarely if ever protects the facts and circumstances of (1) the...more
Acquiring companies predictably seek information from their acquisition targets, such as descriptions of the targets' ongoing litigation. During their due diligence, the acquirer may demand the target's documents or...more
Last week's Privilege Point explained that Cadwalader Wickersham & Taft's client Washington Metropolitan Transit Authority (WMATA) lost a work product claim for 51 witness interviews the firm prepared during its internal...more
Cadwalader Wickersham & Taft lawyers conducted an internal corporate investigation into allegations of self-dealing at Washington Metropolitan Area Transit Authority (WMATA). When a private plaintiff sued WMATA and several...more
Disclosing privileged communications to third parties generally waives that fragile protection, even if the third parties are friendly. In contrast, disclosing work product to third parties waives that more robust protection...more
Adversaries challenging litigants' privilege or work product assertions necessarily "shadow box" with the litigants -- because the adversaries cannot see the withheld documents. Courts often review such withheld documents in...more
The attorney-client privilege protects communications made and preserved in confidence. Work product protection does not rest on confidentiality, but evaporates if adversaries are present or later obtain protected work...more
The work product doctrine involves many more varied and practical aspects than the attorney-client privilege. Among other things, heightened opinion work product protection can sometimes protect lawyers' selection of...more
The last two Privilege Points described the Washington Supreme Court's 5-4 rejection of privilege protection for communications with former corporate employees (Newman v. Highland School Dist., 186 Wash. 2d 769, 381 P.3d 1188...more
Last week's Privilege Point described a court's acknowledgment that a mentally ill plaintiff's live-in boyfriend had provided "meaningful assistance" to the plaintiff in dealing with her lawyer, but was not "necessary or...more
Nearly every court finds that the only client agents/consultants inside privilege protection are those necessary for the communications between the client and her lawyer. But the work product doctrine casts a wider protective...more
The crime-fraud exception can strip away privilege protection from communications in which lawyers further their clients' future wrongful conduct. Under the majority approach, the adversary must (1) first meet a fairly low...more
The work product doctrine only protects internal corporate investigations initiated by the corporation's anticipation of litigation. Thus, the protection normally does not extend to investigations required by some external or...more
Last week's Privilege Point described a court's rejection of a work product claim based, in part, on an in-house lawyer's lack of involvement in creating the withheld documents. Phoenix Technologies Ltd. v. VMware, Inc., Case...more
Although some courts seem to misunderstand this, Fed. R. Civ. P. 26(b)(3) on its face allows nonlawyers to create protected work product. But lawyers' involvement can buttress work product claims even in courts applying the...more
Fed. R. Civ. P. 26(b)(3) and its state counterparts protect from discovery "documents and tangible things that are prepared in anticipation of litigation." This obviously includes civil litigation. But what about other forms...more
Apart from the crime-fraud exception, lawyer and client misconduct might affect privilege and work product claims in more subtle ways.
In Scranton Products, Inc. v. Bobrick Washroom Equipment, Inc., No. 3:14-CV-00853,...more
Courts take widely varying and sometimes seemingly illogical approaches to work product protection for litigation-motivated witness interview-related documents, such as transcripts, notes, reports, statements, and affidavits....more