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
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
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
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
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
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
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
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
Last week's Privilege Point described the Supreme Court's failure to decide between a "primary purpose" and a "one significant purpose" privilege standard. Everyone wonders why the Supreme Court dropped the case. The best...more
In 1985, the Third Circuit protected as opinion work product a lawyer's "selection and compilation of [intrinsically unprotected] documents . . . in preparation for pretrial discovery." Sporck v. Peil, 759 F.2d 312, 316 (3d...more
In federal court and in state courts following the same approach, Fed R. Evid. 502(b) sometimes allows claw backs if a privileged document's production was "inadvertent." That term could have several meanings — ranging from a...more
Attorney-client privilege protection depends on content, and some work product claims also depend in part on content. Because a litigant's privilege log obviously does not disclose withheld documents' content, the adversary...more
Companies in or anticipating litigation normally impose litigation holds. If litigation ensues, does the attorney-client privilege or the work product doctrine protect the content of such a hold or the fact of its imposition?...more
The Supreme Court recently granted certiorari in In re Grand Jury to resolve a circuit split regarding what standard governs the application of the attorney-client privilege to dual-purpose communications, that is...more
Former President Donald J. Trump filed a motion to appoint a Special Master to review the material seized by the FBI from Mar-A-Lago. The stated purpose of the review by the Special Master is to remove nonrelevant and...more
The attorney-client privilege provides absolute protection, but is very fragile. Work product doctrine protection does not provide absolute protection (fact work product protection can be overcome), but is robust. Of course,...more
Nearly every court requires that litigants analyze possible privilege and work product protection for each attachment included in a withheld email or other document. This understandable approach raises an obvious question...more
Drachman v. BioDelivery Sciences International, Inc., C.A. No. 2019-0728-LWW (Del. Ch. Aug. 25, 2021) - Drachman addresses the attorney-client privilege, certain exceptions thereto, including the Garner doctrine, and...more
Federal litigators aren’t taking sufficient advantage of 2008 amendments to Federal Rule of Evidence 502, which gives them the authority to obtain protective orders that can stem the damage from inadvertent disclosure of...more
Lawyers preparing their clients and others for deposition or trial testimony frequently show them documents. Courts disagree about whether such lawyers can withhold from the adversary those documents' identity. The majority...more
Have you ever tried to personally review 15,000,000 pages of electronic documents for privilege and relevance? There comes a time in the discovery process when manual, human review of documents is not only inefficient, but a...more
Identifying attorney-client privilege is one of the most costly and time-consuming processes in ediscovery. Since the dawn of the workplace email, responding to discovery requests has had legal teams spending countless hours...more