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
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
Martz v. Polaris Sales Inc., Case. No. 4:22-CV-01390, 2024 WL 199550 (M.D. Pa. Jan. 18, 2024) - In this product liability case, the plaintiff’s wife lost control of the ATV she was operating and died in a fatal accident. A...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
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
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
Attorney-client privilege protection lasts forever, but determining work product doctrine protection’s duration presents a more subtle analysis. Most courts protect work product if it is sought in later litigation related in...more
Recently, in a criminal case involving a physician who hired an accountant to prepare and submit certain tax forms to the IRS on her behalf, the court denied attorney-client and work-product privilege claims and ordered the...more
Because work product protection only applies at certain times, clients must be able to identify the exact moment that they first anticipated litigation. And not surprisingly, they must also explain why they first anticipated...more
Most lawyers know that fact work product protection can be overcome in certain circumstances, opinion work product is “absolutely or nearly absolutely” protected, and that the attorney-client privilege is absolute. But as...more
Internal corporate or other entity investigations frequently generate discovery motions that focus on privilege and work product creation and waiver issues. Two recent decisions offer some good news for defendants resisting...more
Facts and events normally do not deserve work product protection. But a lawyer's careful selection of such facts or important events sometimes may reflect his or her strategic assessment or litigation planning. For example,...more
On numerous occasions, this Blog has examined the attorney-client privilege and the attorney work product doctrine.1 Today, we take another opportunity to explore the contours of these privileges....more
The Consumer Financial Protection Bureau (CFPB) brought an action against 18 defendants under the Consumer Financial Protection Act (CFPA) and the Fair Debt Collection Practices Act (FDCPA) for engaging in or substantially...more
Because what is called "opinion work product" deserves higher protection than fact work product (and in many courts enjoys "absolute or nearly absolute" protection), litigants understandably seek to withhold documents on that...more
The ancient attorney-client privilege protection provides absolute but fragile immunity from discovery. The relatively new litigation-related work product doctrine provides limited but robust immunity from discovery. Lawyers...more