News & Analysis as of

Privilege Waivers

Federal Court of Appeal Affirms Common Interest Privilege in Deal Context

On March 6, 2018, the Federal Court of Appeal (Court) released its reasons in Iggillis Holdings Inc. v. Canada (National Revenue) confirming common interest privilege as a valid exception to waiver in non-litigious...more

State Appellate Courts Assess Implied and "At Issue" Waivers: Part I

by McGuireWoods LLP on

Disclosing privileged communications to third parties normally waives that fragile protection. But even without disclosure, clients relying on privileged communications or placing such communications "at issue" can also...more

2017 eDiscovery Case Law Review

by Epiq on

Electronic discovery cases that made headlines in 2017 featured well-known names such as Taylor Swift and Lynyrd Skynyrd, and reached all the way to the U.S. Supreme Court. As the year draws to a close, it’s a good time to...more

This Day in White Collar History: The Supreme Court Decides Upjohn

On January 13, 1981, the Supreme Court decided Upjohn Co. v. United States. Thirty-seven years later, it’s hard to think of a judicial decision that has had a more significant effect on internal investigations. The Court’s...more

2017 eDiscovery Case Law Year in Review, Part 3

by CloudNine on

...Just because you don’t physically have your hands on the data doesn’t mean you’re not responsible for it. Here are three cases related to rulings regarding possession, custody and control of ESI, including one that relates...more

Learning from 2017 and Looking Forward to 2018

by Dentons on

The end of the year is an ideal time for attorneys to look back on the recent developments in legal malpractice law that may impact their practices for years to come. It is also a good time for attorneys to look forward to...more

[Webinar] Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 - January 11th, 12:00pm CT

by CloudNine on

2017 was a very interesting year for eDiscovery case law and the impact of FRCP rules changes in 2015 became even more apparent. How can the key case law decisions affect discovery within your organization? This CLE-approved*...more

Trump-Related Circuit Court Decision Includes Troubling Waiver Analysis

by McGuireWoods LLP on

Because historical facts do not deserve privilege protection, disclosing those facts does not trigger a privilege waiver. Thus, disclosing historical facts to the government should not waive the disclosing client's privilege...more

Why Aren’t You Using FRE 502(d)

by BakerHostetler on

In 2008, Federal Rule of Evidence 502(d) was signed and enacted into law by Congress to minimize the cost of civil litigation, particularly in matters with large volumes of ESI. The intent of the rule is to allow parties to...more

Illinois Appellate Court Recognizes Common Interest Exception to Waiver of Privilege Rule

by Foley & Lardner LLP on

On December 7, 2017, an Illinois appellate court held that co-defendants in a case who agree to share information pursuant to their common interest in defeating their litigation opponent do not waive either the...more

Clawback Agreement Doesn’t Save Documents Inadvertently Produced Twice from Privilege Waiver: eDiscovery Case Law

by CloudNine on

...In Irth Solutions, LLC v. Windstream Communications LLC, No. 2:16-CV-219 (S.D. Ohio Aug. 2, 2017), Ohio Magistrate Judge Kimberly A. Jolson, rejecting the idea that a clawback agreement always protects against waiver of...more

Proposed Amendment to Commercial Division Rule 11-g Seeks to Add Clawback Language to Standard Confidentiality Order

by Farrell Fritz, P.C. on

Disclosure of Electronically Stored Information (“ESI”) has become a staple in commercial cases. Of course, with the vast number of documents and ESI being reviewed and the increased complexity in the review process, the...more

SEC Cooperation Leads to Waiver of Privilege

On December 5, 2017, a Florida federal magistrate judge ordered a law firm to turn over interview notes and memoranda from an internal investigation, finding that any applicable privilege had been waived when attorneys gave...more

2017 An Illuminating Year in E-Discovery Case Law

by Exterro, Inc. on

In a half-hour conversation with Exterro Director of Marketing Mike Hamilton, Bree Kelly, Attorney and Editor of EDiscoveryLaw.com, summarized the past year in e-discovery case law as illuminating. Perhaps thankfully, there...more

An Inside Job: Highlights From November’s ACC Presentation

by Miles & Stockbridge P.C. on

On November 8, 2017, Suzzanne W. Decker, a Principal in the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group, and Sandra McLelland, Managing Counsel at Under Armour, presented a webinar to members...more

Protecting the Privacy of Privileged Internal Investigations

by Pepper Hamilton LLP on

Internal investigations by outside counsel are an essential tool for corporations to ensure they are compliant with governing regulations and statutes, particularly when they are faced with allegations of potential...more

Defence + Indemnity - October 2017: IV. PRACTICE ISSUES

by Field Law on

IV. PRACTICE ISSUES - A. Notes prepared for a witness to rely upon to refresh his/her memory prior to a Questioning may not be privileged and, if they are, relying on those notes to testify waives any privilege over the...more

Courts Continue to Catalogue Client Consultants Outside Privilege Protection

by McGuireWoods LLP on

Clients' agents/consultants are nearly always outside privilege protection. This generally means that their documents do not deserve privilege protection; their presence during otherwise privileged communications aborts that...more

After Objection, No Waiver of Privilege for Putting Information on File Share Site without Protection: eDiscovery Case Law

by CloudNine on

In Harleysville Insurance Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Oct. 2, 2017), Virginia District Judge James P. Jones sustained the plaintiff’s objections to the Magistrate Court ruling that the...more

The E-Discovery Digest - October 2017

The eighth 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

Arizona Court of Appeals Confirms Attorney-Client Privilege Holder Must Affirmatively Inject Attorney-Client Communications Into...

by Jaburg Wilk on

The Holding - In Robert W. Baird & Co. Inc., v. The Honorable Christopher Whitten, 2017 WL 4296583 (Ariz. App. Sep. 28, 2017) (774 Ariz. Adv. Rep.4), the Arizona Court of Appeals just held that a legal malpractice...more

Does a Client Risk Privilege Protection by Bringing Her Mother to a Lawyer Meeting?

by McGuireWoods LLP on

Because it is absolute and can hide important facts from easy discovery, the attorney-client privilege is hard to create, narrow, and fragile. Among other things, even friendly third parties' presence can abort privilege...more

Arizona District Court: Insurer Expert's Deposition Testimony Impliedly Waived Attorney-Client Privilege in Bad Faith Case

by Jaburg Wilk on

The Takeaways - Bad faith defense counsel should caution their bad faith experts not to speculate that an insurer’s claim decisions were based on advice of counsel. - The Hunton case continues the trend of Arizona...more

Despite Clawback, Defendant’s Reckless Abandon of Rule 502 Bites Back

by Zapproved LLC on

Irth Sols., LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017). The court denied the defendant’s request to return privileged documents that it claimed it had mistakenly produced on...more

Rule 502(d) Orders for Non-Waiver of Privilege: eDiscovery Best Practices

by CloudNine on

Tomorrow, Tom O’Connor and I will discuss the various issues to consider and decisions to be made to help you meet your discovery obligations in an efficient and proportional manner when preparing for the Rule 26(f)...more

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