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
This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues: 1. an order from the U.S. District Court for the Eastern District of California granting a motion to compel...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
The last two Privilege Points (Part I and Part II) addressed the Supreme Court's abandoned attempt to address the abstract "primary purpose" versus "one significant purpose" privilege standard in the absence of specific facts...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 earlier times, litigants essentially trusted each other to withhold (without identifying) responsive documents protected by the attorney-client privilege or the work product doctrine. Now every court seems to require a...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 work product doctrine has been described by many courts as "intensely practical." Several decisions highlight this understandable adjective, and explicitly provide useful guidance for lawyers representing litigants and...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
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
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
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
Last week's Privilege Point addressed courts' differing interpretations of the work product rule's "anticipation" element. Fed. R. Civ. P. (26)(b)(3)'s and parallel state rules' "litigation" element also requires courts'...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
Requests for the inspection of books and records pursuant to Section 220 of the Delaware General Corporation Law is an important part of corporate litigation in Delaware. One important issue for these types of proceedings is...more
In 2019, the Missouri legislature passed Senate Bill 224 (SB 224), effectively revising Missouri’s discovery rules to align them with the Federal Rules of Civil Procedure. (See our 2019 post for analysis of SB 224’s changes...more
“But in-house counsel was copied on the email, isn’t that enough?” When a business faces the prospect of producing documents in litigation, determining which documents are protected by the attorney-client privilege and...more
- In ongoing multidistrict litigation concerning Capital One’s 2019 data breach, Capital One succeeded in defeating a motion to compel disclosure of a privileged root cause analysis conducted by PwC. - In contrast to an...more
When former employees turn on their former employer, they sometimes seek access (through discovery) of privileged communications that were in their possession when they worked at the company. At first blush, that might seem...more
Hard to believe, but it took until August 29, 2019 for the North Carolina Court of Appeals to tackle the issue of eDiscovery for the very first time. But tackle it the court did....more
Fed R. Evid. 502 adopts the earlier majority common law view, finding that the inadvertent production of documents does not waive privilege or work product protection if: (1) it was inadvertent; (2) the protection holder...more
Last week's Privilege Point described a Colorado state court case holding that absent contrary direction in a decedent's will, the decedent's personal representative owns all the files generated by the decedent's lawyer. Ten...more
Attorneys who appear in both state and federal courts must be familiar with the differences between the two systems. While some rules have harmonized over time,[1] other procedures are entirely distinct. As a matter of...more
When a privilege owner shares protected documents with third parties without waiving the protections, who must or can protect those documents from adversaries' discovery? Can the third parties who possess the protected...more
In Harleysville Insurance Company v. Holding Funeral Home, Inc., et al., 2017 WL 4368617 (W.D. Va. 2017), an investigator for Nationwide, which owns Harleysville Insurance, uploaded a surveillance video of a fire scene to an...more