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Document Productions Attorney-Client Privilege Work-Product Doctrine

McGuireWoods LLP

Attorney-Client Privilege Lasts Forever —  What About Work Product Protection?

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Attorney-client privilege protection lasts forever, but determining work product doctrine protection’s duration presents a more subtle analysis. Most courts protect work product if it is sought in later litigation related in...more

McGuireWoods LLP

Do Arbitrations Count as "Litigation" for Work Product Purposes?

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Fed. R. Civ. P. 26(b)(3) extends protection to documents prepared "in anticipation of litigation or for trial." An obvious question presents itself — what counts as "litigation"?...more

McGuireWoods LLP

State Supreme Court Seems to Ignore Its Own Work Product Rule

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Because what is called "opinion work product" deserves higher protection than fact work product (and in many courts enjoys "absolute or nearly absolute" protection), litigants understandably seek to withhold documents on that...more

McGuireWoods LLP

Pennsylvania Federal Court Helpfully Distinguishes Between Privilege and Work Product Protection

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The last several Privilege Points have emphasized the different waiver implications of disclosing privileged communications and protected work product. For the most part, the distinctions rest on the very different societal...more

McGuireWoods LLP

Waiver Implications of Disclosing Work Product to the Government

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Last week's Privilege Point described a court's refreshingly correct acknowledgment that disclosing work product to friendly third parties does not waive that robust protection — in contrast to the more fragile privilege...more

McGuireWoods LLP

Some Courts Understand Work Product Waiver, and Some Don’t

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Unlike the very fragile attorney-client privilege (which can be waived even by disclosure to family members), the more robust work product doctrine protection survives disclosure to friendly third parties....more

McGuireWoods LLP

Supreme Court Fumbles Attempt to Define Privilege Standard: Part III

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The last two Privilege Points (Part I and Part II) addressed the Supreme Court's abandoned attempt to address the abstract "primary purpose" versus "one significant purpose" privilege standard in the absence of specific facts...more

Troutman Pepper

Case Highlights How to Protect Investigative Work Product from Disclosure

Troutman Pepper on

One of the most important topics for a company to consider when conducting an internal investigation is how to protect (or leave open the option to protect) material prepared during the investigation from disclosure in...more

McGuireWoods LLP

Defendant’s Sloppy Language and Log Doom Work Product Claim

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Fed. R. Civ. 26(b)(3)(A) protects from discovery documents and tangible things that are prepared in anticipation of litigation or for trial. Litigants asserting work product protection must (if called upon to do so) identify...more

McGuireWoods LLP

Courts Apply the "Intensely Practical" Work Product Doctrine: Part II

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Last week's Privilege Point described a court’s rejection of work product protection for a preprinted post-accident form with seemingly helpful boilerplate language about its purpose and a lawyer's involvement — but without...more

McGuireWoods LLP

Courts Apply The "Intensely Practical" Work Product Doctrine: Part I

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The work product doctrine has been described by many courts as "intensely practical." Several decisions highlight this understandable adjective, and explicitly provide useful guidance for lawyers representing litigants and...more

McGuireWoods LLP

Hickman Work Product Protection Extends Beyond the Work Product Rule

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Just about the time that extensive pre-trial discovery started, the Supreme Court recognized a new evidentiary protection – extending beyond the attorney-client privilege, and motivated by the understandable requirement that...more

McGuireWoods LLP

What Is the Standard for Courts’ In Camera Review of Withheld Documents?

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Litigants and even some lawyers occasionally forget how courts address attorney-client privilege (and sometimes work product protection) assertions. Privilege protection focuses primarily on a communication's content — ...more

Holland & Knight LLP

Beyond Politics: Attorney-Client Privilege and Work Product Protection

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American Bar Association Model Rule 2.1 and its state law equivalents recognize that in advising a client, a lawyer may take into account and refer to "moral, economic, social and political factors that may be relevant to the...more

Epiq

New Sedona Commentary Tells Us Protecting Privilege Can be Easy with Rule 502(d) Orders

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During the early phases of a case, there are times where disclosure of privileged information may occur. Although lawyers should do everything to protect confidential client information, communications, and work-product...more

McGuireWoods LLP

Courts Address Work Product Issues: Part II

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Last week's Privilege Point addressed litigants' need to identify the exact moment when they first anticipated litigation. Another work product issue involves the degree of protection afforded opinion work product....more

Proskauer - Minding Your Business

NY Court Re-Affirms Privilege Protection for Personal Emails Sent by Law Firm Partner on Firm Email Account

Citing new deposition testimony, actor Justin Theroux in a recent motion asked the New York Supreme Court to reconsider its December 2020 denial of Theroux’s motion to compel production of emails that his neighbor, Norman...more

McGuireWoods LLP

Courts Differ on the Meaning of the Work Product Rule's "Anticipation" and "Litigation" Elements: Part II

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Last week's Privilege Point addressed courts' differing interpretations of the work product rule's "anticipation" element. Fed. R. Civ. P. (26)(b)(3)'s and parallel state rules' "litigation" element also requires courts'...more

McGuireWoods LLP

Court Issues Strange Intangible Work Product Decision

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Although the federal work product rule and parallel state work product rules extend only to "documents and tangible things," most courts also protect intangible work product such as oral communications – at least to the...more

Freeman Law

Corporate Privilege Rights in a “Taint Team” Era

Freeman Law on

A recent opinion from the Court of Appeals for the Fifth Circuit (“Fifth Circuit”) found that the federal prosecutors demonstrated a “callous disregard” for a corporate litigant’s attorney-client and work-product privileged...more

McGuireWoods LLP

Correctly Applying Work Product Protection Continues to Elude Some Courts

McGuireWoods LLP on

As Privilege Points have periodically mentioned, some courts inexplicably limit work product protection to documents lawyers prepare or order to be prepared – in the face of Fed. R Civ. P 26(b)(3)(A)'s requirement only that...more

McGuireWoods LLP

Court Addresses Privilege and Work Product Implications of Due Diligence in Corporate Acquisition – and Probably Gets It Wrong

McGuireWoods LLP on

An acquiring corporation normally conducts due diligence before acquiring an acquisition target. Not surprisingly, the acquiring corporation might seek privileged or work product protected documents or communications during...more

McGuireWoods LLP

Florida Federal Court Mentions Two Ways the Work Product Doctrine Differs From the Attorney-Client Privilege

McGuireWoods LLP on

The ancient attorney-client privilege: (1) protects communications primarily motivated by clients' request for legal advice, regardless of any litigation on the horizon; and (2) protects such communications absolutely. The...more

Kilpatrick

The Attorney Client Privilege: The Corporate Communication Conundrum – PART ONE

Kilpatrick on

“But in-house counsel was copied on the email, isn’t that enough?” When a business faces the prospect of producing documents in litigation, determining which documents are protected by the attorney-client privilege and...more

Brooks Pierce

North Carolina Business Court Ruling Could Impact the Ability of Businesses to Assert Attorney-Client Privilege Over...

Brooks Pierce on

A ruling issued by the North Carolina Business Court last month could have a significant impact on the ability of North Carolina companies and counsel to assert the attorney-client privilege over communications exchanged in...more

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