All Things Investigations: Episode 37 – Privileges in Document Production with Mike Huneke
Sitting with the C-Suite: eDiscovery Observations – Historical Lookback to 1990s and 2000s
So you are ready to divorce...what is the process?
Sitting with the C-Suite: In-House Counsel - Leveraging Text Classification to Problem Solve
Video | Tips for Managing the Preservation of Mobile Device Data
PODCAST: Williams Mullen's Benefits Companion - Government Investigative Demands
BYOD (Bring Your Own Device)... *Liability and Data Breach Sold Separately
Normally a third party does not have standing to challenge a document subpoena. But what if the subpoena seeks discovery of the third party’s privileged or work product-protected documents in the subpoena target’s possession?...more
Last week’s Privilege Point described an S.D.N.Y. opinion rejecting privilege and work product claims for a document that on its face did not contain legal advice or any allusion to or analysis of anticipated litigation....more
Martz v. Polaris Sales Inc., Case. No. 4:22-CV-01390, 2024 WL 199550 (M.D. Pa. Jan. 18, 2024) - In this product liability case, the plaintiff’s wife lost control of the ATV she was operating and died in a fatal accident. A...more
3: Preparing Your Inside Team - Preservation, Privilege, Potential Pitfalls -This is the third in a series of articles that explores considerations and suggested actions for in-house counsel who are inexperienced in patent...more
All or nearly all courts require litigants to log documents withheld on privilege or work product grounds (with an exception discussed next week). But they disagree about what the log should include — with some courts taking...more
The last two Privilege Points (Part I and Part II) explained that the 1947 U.S. Supreme Court decision in Hickman v. Taylor, 329 U.S. 495 (1947), created a common law protection for litigation-related tangible and intangible...more
A recent privilege dispute in E.D.N.Y. case La Liberte v. Reid provides a prime opportunity to review the law and practical aspects surrounding attorney-client privilege, work product protection, and the crime-fraud exception...more
The “work product” doctrine provides an entirely separate protection from the attorney-client privilege. Unlike the privilege, the work product doctrine is not ancient, normally not absolute, and not fragile. The many...more
This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues: 1. an order from the U.S. District Court for the Eastern District of California granting a motion to compel...more
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
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
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
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
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
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
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
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
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
Last week's Privilege Point summarized a case confirming non-testifying experts' general immunity from discovery — absent "exceptional circumstances" such as destructive testing. Ten days later, another court addressed...more
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
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
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
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
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
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