The last two Privilege Points (Part I and Part II) discussed federal court decisions reflecting confusing and sometimes arguably illogical approaches to interview-related materials.
In SFEG Corp. v. Blendtec, Inc., No....more
Last week's Privilege Point described a common but illogical judicial approach to witness interview notes, summaries, and reports — finding that witnesses' verbatim statements in such documents at most can deserve only fact...more
Companies' lawyers frequently interview third-party witnesses. Companies' adversaries often seek the resulting interview transcripts, notes, summaries, reports, statements or affidavits — which can generate disputes over fact...more
Companies frequently turn to outside public relations consultants to assist both in normal media relations and when confronting crises. For obvious reasons, these companies must consider the privilege implications of...more
With litigants' increasing reliance on litigation funders, courts have had to wrestle with privilege and work product issues, including whether litigants and their litigation funders share a "common interest" allowing the...more
Because privilege logs generally require withholding litigants to identify emails' senders and recipients, the absence of a lawyer's name often triggers discovery skirmishes. Not surprisingly, the withholding litigants'...more
Many clients assume that the attorney-client privilege will almost always automatically protect any law firm's report to them, and that the work product doctrine will also apply whenever they anticipate litigation. Like other...more
Many courts extend opinion work product protection to a lawyer's selection of intrinsically unprotected documents used to prepare a deponent, the identity of witnesses important enough to interview, etc. This approach is...more
The common interest doctrine can allow separately represented clients to share attorney-client privileged communications without waiving that very fragile protection. In contrast to privilege-protected documents, work product...more
Last week's Privilege Point discussed a court's rejection of a work product claim for a routine post-accident incident report. That defendant did not establish that the report was different from reports following accidents...more
Companies frequently investigate accidents and other unfortunate incidents. If they do so in the ordinary course of their business, the work product doctrine normally does not apply. How do companies establish that a...more
Many previous Privilege Points have addressed the corporate-friendly "functional equivalent" doctrine, under which non-employees who essentially act as employees are inside privilege protection. An equal number of Privilege...more
Although the attorney-client privilege does not protect historical facts, any facts "created" during or in anticipation of litigation can present a difficult analysis.
In Gilead Sciences, Inc. v. Merck & Co., Case No....more
In one of the greatest mysteries involving the work product doctrine, some federal courts only protect documents created by or at the direction of lawyers — although Fed. R. Civ. P. 23(b)(3) cannot possibly be read to include...more
In Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015), the Second Circuit reversed a district court's holding that (1) a taxpayer waived his privilege protection by disclosing protected legal advice to his lenders, and...more
Last week's Privilege Point used two cases to address federal courts' surprising variations in the work product doctrine's "litigation" and "anticipation" elements. Courts also disagree about the doctrine's "motivation"...more
Although the Federal Rules of Civil Procedure describe the work product doctrine in a single sentence, federal courts interpret that sentence in wildly varied ways. Four federal court decisions issued in just a nine-day...more
Under Fed. R. Civ. P. 30(b)(6), an entity must prepare a designated witness to testify about specified topics. This type of deposition implicates several competing principles, because (1) such witnesses must provide...more
Many courts recognize that a corporation's constituent (such as an audit committee or a group of independent directors) can own the privilege and work product protection covering the constituent's internal corporate...more
The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege. This distinction affects the impact of...more
Last week's Privilege Point described two cases rejecting defendant's protection claims for internal investigations. In each case, the court held that the defendant undertook its investigation in the ordinary course of its...more
Companies' internal investigations can deserve (1) privilege protection, if primarily motivated by the need for legal advice; and (2) work product protection, if primarily motivated by anticipated litigation. In both...more
Last week's Privilege Point addressed the decreasing subject matter waiver risk of corporations' pretrial disclosure of arguably privileged communications, or even their passing reference to legal advice in pretrial filings....more
Corporations and their lawyers frequently work with public relations consultants when facing ongoing or anticipated litigation. In the work product context, courts agree that disclosing preexisting work product to such...more
One of the great ironies of work product protection involves federal courts' widely varying interpretation of the single sentence codifying the Federal Rules' work product protection. Fed. R. Civ. P. 26(b)(3)(A). Among many...more