Bar Exam Toolbox Podcast Episode 204: Listen and Learn -- Scope of Discovery and the Work-Product Privilege
Internal Investigations in the Asia-Pacific Region
Cyberside Chats: Preserving Legal Privilege After a Cybersecurity Incident
Jones Day Presents: Strategies for Dealing with the IRS: The IRS Examination
Day 15 of One Month to Better Investigations and Reporting-the Parameters of Privileges
Should California courts permit litigants to conduct discovery into litigation funding, namely whether a third party is funding their adversary’s litigation efforts?...more
The common interest doctrine can sometimes protect as privileged communications between separately represented clients. But litigants seeking the doctrine’s protection face many hurdles and often fail....more
Last week’s Privilege Point described a court’s review of a lawyer’s conversation with a witness and its conclusion that none of the conversation deserved the heightened opinion work product protection. LaBudde v. Phoenix...more
Not everything stamped “privileged” is safe from prying eyes. The Pennsylvania Superior Court recently ruled that interview notes compiled by a sorority’s leadership after a tragic incident were not shielded by...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
Numerous Privilege Points have described cases concluding that advertising agencies are outside privilege protection but inside work product protection (although they normally cannot themselves create protected work product)....more
The differing waiver rules governing the fragile attorney-client privilege and the robust work product doctrine protection predictably create stark differences when family members communicate with each other. This type of...more
Some readers have asked why Privilege Points have only rarely focused on work product issues in the insurance context. In addition to the sometimes dramatic differences between states’ handling of this issue, a recent case...more
With the growth of litigation funding as a mechanism for financing litigation, companies interviewing and ultimately selecting a funder inevitably share work product with them. In such circumstances, courts must assess (1)...more
Courts have been scrambling to catch up with the fast and sometimes unpredictable evolution of lawyers’ use of generative AI. Many if not most courts require lawyers to advise them if they relied on AI in preparing filings...more
In Stuart v. County of Riverside, 2024 WL 3086634, at *3 (C.D. Cal. Jun. 14, 2024), the District Court found a relationship between work product designations and triggering of the common-law duty to preserve....more
Some courts understandably conclude that the anticipation of litigation that can assure work product protection also requires the litigant to impose a litigation hold on pertinent documents. Perhaps that is not a perfect...more
Communication during a data breach is challenging in the best of circumstances, and control of information, especially early in a breach response, is critical. Below are some DOs and DON’Ts for communicating during a data...more
Normally a third party does not have standing to challenge a document subpoena. But what if the subpoena seeks discovery of the third party’s privileged or work product-protected documents in the subpoena target’s possession?...more
Last week’s Privilege Point described an S.D.N.Y. opinion rejecting privilege and work product claims for a document that on its face did not contain legal advice or any allusion to or analysis of anticipated litigation....more
Under what is called the American Rule, winning litigants normally pay their own attorneys’ fees. But in some situations, they can seek recovery of those fees from the losing adversary. Not surprisingly, such efforts...more
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
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
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
All or nearly all courts require litigants to log documents withheld on privilege or work product grounds (with an exception discussed next week). But they disagree about what the log should include — with some courts taking...more
For obvious reasons, the law encourages settlements. During settlement negotiations, participants may be tempted to disclose work product-protected documents or intangible communications. Can participants or even third...more
The last two Privilege Points (Part I and Part II) explained that the 1947 U.S. Supreme Court decision in Hickman v. Taylor, 329 U.S. 495 (1947), created a common law protection for litigation-related tangible and intangible...more
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
The “work product” doctrine provides an entirely separate protection from the attorney-client privilege. Unlike the privilege, the work product doctrine is not ancient, normally not absolute, and not fragile. The many...more
Last week’s Privilege Point described a data breach victim’s latest losing effort to claim privilege protection for its consultant’s investigation report. Leonard v. McMenamins Inc., Case No. C22-0094-KKE, 2023 U.S. Dist....more