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Privileged Communication Discovery

McGuireWoods LLP

Courts Thankfully Back Away From a Broad “At Issue” Waiver Approach

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Starting about 50 years ago in the case of Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), some courts recognized a broad “at issue” waiver that could strip away privilege without the holder’s disclosure of or even reference...more

EDRM - Electronic Discovery Reference Model

eDiscovery Review in Transition: Manual Review, TAR, and the Role of AI

ComplexDiscovery’s Editor’s Note: This article is essential for cybersecurity, information governance, and eDiscovery professionals navigating the complexities of legal document review. With the rapid advancements in AI...more

EDRM - Electronic Discovery Reference Model

“Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But….

In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court held that “attachments to attorney client communications may be withheld as privileged without an independent basis for...more

McGuireWoods LLP

Two S.D.N.Y. Cases Decided the Same Day Provide the Same Key Privilege Guidance: Part I

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Many if not most clients and even some ill-informed lawyers think they can “make” something privileged through some logistical step — such as marking it as “privileged,” copying a lawyer, inviting a lawyer to a meeting, etc....more

EDRM - Electronic Discovery Reference Model

Discovery About Discovery – When Was Duty to Preserve Triggered?

In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court “allowed [defendants] Hillrom to take limited discovery about when [plaintiff] Linet’s duty to preserve may have...more

Association of Certified E-Discovery...

[Webinar] How to Enhance Corporate Investigations on Apple Devices - August 22nd, 10:00 am PDT

Despite the dominance of Windows computers in corporate environments, an increasing number of companies are now integrating Apple Mac computers into their networks. Alongside this shift, the rise of BYOD (Bring Your Own...more

Kilpatrick

The Attorney-Client Privilege: The Corporate Communication Conundrum – Part II

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As anyone faced with discovery requests knows, one of the most important parts of producing documents is determining what documents are subject to attorney-client privilege or work product doctrine and must therefore be...more

EDRM - Electronic Discovery Reference Model

When is Failure to Provide a Timely Privilege Log Excusable?

In Melton Properties, LLC v. Ill. Central R. Co., 2024 WL 3015749 at *5 (N.D. Miss. June 14, 2024), the court listed the factors to consider in deciding when the failure to provide a timely privilege log is – or is not – a...more

EDRM - Electronic Discovery Reference Model

Enhancing Security in Law Firms: The Imperative of Multi-Factor Authentication

In today’s digital age landscape, where 27% of law firms experience security breaches, protecting sensitive client information is paramount for legal professionals. With cyber threats becoming more sophisticated, relying...more

EDRM - Electronic Discovery Reference Model

Generative AI for Smart Discovery Professionals: An Introduction to Large Language Models – Second Edition

In November of 2022, ChatGPT upended our thinking about artificial intelligence with a new form of machine learning called Generative AI (GenAI). Since then, discussions about GenAI models like GPT have taken center stage in...more

McGuireWoods LLP

Court Takes Expansive View of an Implied Waiver: Part II

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Last week’s Privilege Point described an opinion requiring a corporate party’s witness to disclose communications with his Latham & Watkins lawyers, because he confirmed with that firm his own “commercial understanding” about...more

McGuireWoods LLP

Court Takes Expansive View of an Implied Waiver: Part I

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Unlike an intentional or unintentional express waiver involving actual disclosure of a privileged communication, a litigant can trigger an implied waiver by relying on the fact of such a privileged communication rather than...more

DRI

The Attorney-Client Privilege: Beware of Pitfalls with Use of In-House Counsel

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The attorney-client privilege is the oldest of the common law privileges for withholding confidential communications recognized in American jurisprudence. It allows a person to seek legal advice and representation without...more

McGuireWoods LLP

Do Not Forget the Consequences of Judges’ Role in Assessing Privilege Protection

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In both the federal and state judicial systems, judges assess privilege and work product protection claims — sometimes coordinating with judges at other levels. But there is a lurking unspoken risk that some lawyers may...more

EDRM - Electronic Discovery Reference Model

May’s Notable Cases and Events in E-Discovery

[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

Wolf, Greenfield & Sacks, P.C.

Sued: What In-house Counsel Without Litigation Experience Need to Know - Preparing Your Inside Team

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

EDRM - Electronic Discovery Reference Model

There’s No Right or Wrong Answer – But There Are Mistakes

In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but...more

McGuireWoods LLP

What’s the Deal With “Intangible” Work Product? Part II

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Last week’s Privilege Point explained that nearly every court extends work product protection beyond the “documents and tangible things” specified in Fed. R. Civ. P. 26(b)(3) and understandably mentioned in a recent Southern...more

EDRM - Electronic Discovery Reference Model

What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith?

In Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024), the court wrote that it “would prefer this case not go to the dark place where attorneys on one side demand that the attorneys on the other side provide...more

Hinshaw & Culbertson - Lawyers for the...

Illinois Appellate Court Rejects the Crime-Fraud Exception in a Defamation Claim

James MacDonald vs. Sally Wagenmaker, et.al., 2024 IL App (1st) 230089 (March 1, 2024) - Brief Summary - An Illinois appellate court reversed a discovery order compelling the defendant law firm to produce privileged...more

McGuireWoods LLP

Two Federal Court Decisions in Three Days Misapply the General Choice of Laws Rules in Diversity Cases: Part III

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The last two Privilege Points have addressed some federal courts’ inexplicable application in diversity cases of their host states’ substantive privilege law rather than their host states’ choice of law rules. Some states...more

McGuireWoods LLP

Two Federal Court Decisions in Three Days Misapply the General Choice of Laws Rules in Diversity Cases: Part I

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Not surprisingly, federal courts handling federal question cases apply federal common law privilege principles (essentially textbook-type generic rules). Federal courts sitting in diversity cases must comply with Federal Rule...more

McGuireWoods LLP

Two Courts Address the Two Greatest Risks to Internal Corporate Communications’ Privilege Protection: Part II

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Last week’s Privilege Point described the illogical but scary Vioxx doctrine, which some courts apply to deny privilege protection ab initio to intra-corporate communications simultaneously seeking advice both from lawyers...more

Husch Blackwell LLP

A Non-Expert with Expertise: Navigating the Risks and Rewards of Testimony from Highly Sophisticated Professional Employees in...

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Corporate defendants are frequently faced with a quandary—is the company’s highly sophisticated professional employee simply a fact witness or does their anticipated testimony propel them into the world of expert discovery?...more

EDRM - Electronic Discovery Reference Model

Rusty Texts: Sending Privileged Information to Clients

In ‘Rust’ Armorer’s Phone Snafu Shows Risks Of Texting Clients – Law360 (Feb. 13, 2024), Phillip Bantz wrote: “A legal dust-up over compromised text messages between a movie prop weapons expert and her lawyer in the ‘Rust’...more

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