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In complex litigation, understanding when a document is protected by attorney-client privilege can be challenging, especially when privilege issues arise in multidistrict litigation (MDL) like the In re Uber Technologies,...more
Most lawyers know that state statutes or common law doctrines often protect communications between spouses – although there is wide variation in such approaches. But there is a lurking danger that all of us should keep in...more
[Editor’s Note: This article was first published May 15, 2024 and EDRM is grateful to Tom Paskowitz and Robert Keeling of our Trusted Partner, Sidley, for permission to republish. The opinions and positions are those of the...more
Email communications can be a trap for unwary independent directors. The December 2020 In re WeWork Litigation decision illustrates the point, as discussed in this earlier blog. Specifically, directors who often use corporate...more
Because privilege logs necessarily contain logistical but not content-based information about withheld documents, adversaries sometimes challenge privilege protection because no lawyer sent or received a withheld document....more
Takeaways From Unprecedented Public Records Ruling in Getz v. County of El Dorado - The Third District Court of Appeal recently ruled in favor of a requester who was seeking public records from the County of El Dorado,...more
Most states have adopted some variation of what is called the "spousal privilege" or "marital privilege." Those usually appear in statutes or rules, and dramatically vary from state to state. For obvious reasons, spouses'...more
Lawyers should remind their clients that copying a lawyer on an email does not automatically render the email privileged. But the story doesn't end there. In Dejewski v. National Beverage Corp., the court recited the...more
In re WeWork Litigation, Consol. C.A. No. 2020-0258-AGB (Del. Ch. Dec. 22, 2020) - This Court of Chancery discovery ruling illustrates the risks associated with directors and officers using non-company email accounts to...more
Introduction - A recent decision by a Texas Court of Appeals reaffirms several important principles regarding the medical peer review privilege: (1) communications arguably covered by the peer review privilege need not be...more
Ruling on a motion seeking the return of inadvertently produced privilege materials, Judge Kaplan elaborated on the meaning of “inadvertent” in the context of Massachusetts Rule of Civil Procedure 26(b)(5) and so-called...more
When we hear about discovery abuses in litigation, we often think of overzealous lawyers using obstructionist tactics. Such behavior, however, rarely involves litigants “improperly accessing” the email communications of an...more
In re City of Dickinson1 is an important case for businesses with an employee who will testify as an expert. The question for the court was which competing rule prevails: the rule protecting attorney-client communications or...more
Clients often make good testifying experts because they have specialized knowledge and experience in their industry. While normally emails between an attorney and a testifying expert are discoverable, what if the testifying...more
Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection? In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063...more
The In re Asia Global Crossing Ltd., 322 B.R. 247 (Bankr., S.D.N.Y. 2005) decision sets forth the standard four-factor test for determining whether an employee’s communication via work computer or email network can be...more
The ninth edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney-client privilege and work-product doctrine, spoliation, and discovery responses....more
Eight years ago the Second District Court of Appeal issued a decision establishing an attorney’s ethical duties upon receipt in discovery from opposing counsel of an inadvertently produced, privileged communication. State...more