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?
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
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
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
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
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
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
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
Under some arrangements, major shareholders appoint directors to companies those shareholders partially own. Does such a company waive its privilege by disclosing its privileged documents to a designating shareholder's...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
Last week's Privilege Point described courts' various standards for their in camera review of withheld documents. The vast majority recognizes the trial court's discretion, but some courts always conduct an in camera review...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
As Justice Tyndale once stated in a decision rendered by the Quebec Court of Appeal (QCA), "It is common sense that a secret once revealed is a secret no longer." This adage has since been widely used in support of the...more
Courts' application of the attorney-client privilege to government lawyers' communications reflects the tension between the public interest in government transparency and the societal benefit of public officials and employees...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
As these Privilege Points have repeatedly emphasized, privilege protection depends on communications' content — which must be primarily motivated by a client's request for legal advice, or the lawyer's responsive provision of...more
Given the vulnerability of electronic communications to intrusion, lawyers sometimes obtain and may be tempted to use documents that their clients have inappropriately obtained from an adversary – even privileged documents....more
Those with ownership stakes in privately held businesses, partnerships, or family offices need to closely collaborate with and trust others. When disagreements and disputes over rights and responsibilities arise, individual...more
Last week's Privilege Point described a New York state court's unsurprising articulation of the nearly universally-applied "primary purpose" standard, and listing of the usual type of documents that fail to satisfy that...more
Disclosing attorney-client privileged communications can trigger a subject matter waiver if made in a judicial setting to gain some advantage. This subject matter waiver danger reflects the classic "sword-shield" analogy with...more
Courts frequently face a common scenario: an in-house lawyer investigates alleged employee misconduct, and prepares a report that the company relies on in firing the employee. Do such reports deserve privilege protection, and...more