Podcast: Are Legal Holds Protected by Privilege? Insights from the FTC's Battle with Amazon
False Claims Act Insights - Is DOJ Allowed to Share Privileged Documents with Whistleblowers in FCA Disputes?
eDiscovery case law disputes are in full bloom! In our April 2025 monthly webinar of cases covered by the eDiscovery Today blog we will discuss disputes related to proportionality of discovery requests, lack of cooperation...more
The common interest doctrine can sometimes protect as privileged communications between separately represented clients who share an identical legal interest in litigation, or in anticipation of litigation. But satisfying this...more
Because litigants frequently take an aggressive approach when withholding documents on privilege grounds, courts’ in camera reviews often result in a loss for them. But sometimes courts agree with a litigant’s privilege...more
By definition, a litigation hold notice is a communication from an attorney to a client regarding the duty to preserve potentially responsive information. In Homeland Ins. Co. of Del. v. Independent Health Ass’n., Inc., 2025...more
Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of January 19-25. Here’s what’s...more
Unlike the absolute attorney-client privilege (and the absolute or nearly absolute opinion work product doctrine protection), a litigant can overcome the adversary’s fact work product protection if it “shows that it has...more
Host Jonathan Porter welcomes Husch Blackwell partner Kip Randall back to the program to dig deeper into Omni Healthcare, Inc. et al v. MD Spine Solutions LLC et al., a False Claims Act litigation in which the defendant...more
Several courts have adopted a nonsensical principle that, as one court put it, “[w]hen documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity.”...more
Given the bare bones nature of many privilege logs, courts sometimes may be called upon, or themselves decide, to review withheld documents in camera to assess the grounds for the documents’ withholding. A handful of courts...more
Seyfarth Synopsis: In its seminal decision, Bostock v. Clayton County, Georgia, the Supreme Court held that discrimination on the basis of sexual orientation or gender identity is tantamount to discrimination on the basis of...more
Every court seems to require litigants to log documents they withhold based on privilege or work product claims. Perhaps not surprisingly, hardly any log goes unchallenged by the adversary. Most of these disputes eventually...more
In federal courts, it is nearly impossible to successfully file an interlocutory appeal of a trial court’s order requiring production of privileged documents — despite the obvious “cat out of the bag” nature of such rulings....more
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
Aggressive plaintiffs sometimes try to generate a “side show” by challenging corporate defendants’ discovery responses (usually their document productions). Although federal courts have thankfully moved in the direction of...more
Last week’s Privilege Point described one court’s incredible requirement that litigants identify everyone who learned of a withheld document’s content — even if they were not shown as a recipient....more
[Editor’s Note: This article has been republished with permission. It was originally published December 20, 2023 on the eDiscovery Assistant Blog] In Episode 127, on the ACEDS and eDiscovery Assistant #CaseoftheWeek, Kelly...more
Just as death and taxes are certainties in life, so too is litigation for many automotive companies. And while each case varies widely in terms of facts, law, parties, and forum, there are common points to consider in most...more
The attorney-client privilege originated in Roman law, and flourished under what John Adams labeled "that most excellent monument of human art, the common of law of England." But in America, some states articulate their key...more
In Florida, the legislature deemed open dialogue between an accountant and a client so important that, in 1978, it adopted a privilege nonexistent in the common or law: the accountant-client privilege....more
Providers negotiating with doctors and other medical professionals who are bound by enforceable restrictive covenants is tricky business. By virtue of his/her/their position, these physicians may owe fiduciary duties to the...more
The difficulty of handling privilege disputes can be especially pronounced in cases involving a prolonged discovery period and large corporate defendants with different document custodians. When a party chooses to withhold...more
Legislation must show a clear, explicit and unequivocal intention to abrogate privilege before a party is required to disclose privileged information, the Ontario Court of Appeal reiterated in its recent decision of Ontario...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
When corporate management requests or obtains legal advice from corporate counsel, management expects those communications to be protected from disclosure by the attorney-client privilege, and usually they are. But there are...more
Courts take differing positions on the "client's" identity in the government setting. Among other things, such differing positions might affect the waiver implications of one government agency disclosing its privileged...more