On May 4, 2022, New Jersey federal district judge Kevin McNulty unsealed a decision ordering Cognizant Technology Solutions Corp. to produce two of its former executives unredacted versions of memoranda and notes from its...more
Earlier this year, a federal judge in the Northern District of California ordered Elizabeth Holmes (“Holmes”), the founder and former CEO of now-defunct Theranos, Inc. (“Theranos”), to disclose communications between herself...more
Elizabeth Holmes—founder of the now-defunct startup Theranos—is on trial for a host of fraud-related allegations. According to the charges brought by the federal government, Holmes and the co-accused Sunny Balwani knowingly...more
When an attorney works with a company, either in-house or as outside counsel, that attorney often wears many hats. They’ll attend meetings, be copied on all sorts of emails, and give both legal and business-related advice....more
A recent court decision serves as an important reminder that attorney-client privilege may not apply to communications between an executive and a company’s counsel during the course of an investigation unless individual...more
More than thirty years ago, the Washington Supreme Court ruled defense counsel may not engage in ex parte communications with a plaintiff’s treating physician. Loudon v. Mhyre, 110 Wn.2d 675, 676 (1988). The Loudon rule, as...more
On November 12, 2020, the Washington Supreme Court extended corporate attorney-client privilege protection to appropriate ex parte communications between defendant hospitals and their non-employee agents. The court’s decision...more
The Washington Supreme Court decided that a corporation's attorney-client privilege may protect communications with independent contractors and other non-employee agents in a recent decision styled Hermanson v. MultiCare...more
A recent decision from Division II of the Washington Court of Appeals will significantly impact clients who contract with independent contractors and other non-employee agents. ...more
Suppose you are in-house counsel for a construction company. Your Guaranteed Maximum Price (“GMP”) is blown and the Owner has refused to execute any change orders during the Project. You know you are heading towards a claim....more
Starting in 1994, most courts have recognized an enormously important privilege doctrine – treating as if they were full-time corporate employees independent contractors who are the "functional equivalent" of such employees. ...more
In order to preserve the attorney-client privilege, counsel who conduct internal investigations begin employee interviews with an “Upjohn Warning”—a disclosure indicating that counsel represents the employer, not the...more
The Tennessee Business Court has provided additional guidance to commercial litigators concerning internecine legal battles between members of limited liability companies. The Court has determined the fiduciary duties of...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
In a recent opinion issued in the matter of Certain Underwriters at Lloyd's London v. Nat'l R.R. Passenger Corp., No. 14-CV-04717 FB CLP (E.D.N.Y. Feb. 19, 2016), the Eastern District of New York held that communications from...more
In nearly every court, the attorney-client privilege protects intra-corporate communications only if their "primary purpose" was the corporation's need for legal advice. How do courts apply this standard? One might think that...more
In This Issue: - Attorney-Client Privilege/Work Product Decisions: ..Decisions Protecting Against Disclosure ..Decisions Ordering Disclosure Other - Spoliation Decisions: ..Spoliation Sanctions...more