News & Analysis as of

Work Product Privilege

Rule 30(b)(6) Involves Subtle Issues

by McGuireWoods LLP on

Under Fed. R. Civ. P. 30(b)(6), corporations must designate and educate one or more witnesses to answer deposition questions based on the corporation's collective knowledge. Such depositions raise obvious privilege issues,...more

Peer Review Not Protected: U.S. Supreme Court Will Not Disturb Florida Decision Limiting the Patient Safety and Quality...

by Baker Ober Health Law on

A multi-year discovery dispute regarding the adverse medical incident reports of a Jacksonville, Florida hospital concluded on October 2, 2017 when the United States Supreme Court denied a petition for a writ of certiorari in...more

A Question of Privilege: Court Wrestles With Attorney-Client and Work Product Issues in Data Breach Case

In a significant ruling addressing the scope of the attorney-client privilege and work product doctrine in a data breach case, a Federal judge in Oregon ordered Premera Blue Cross, the Washington-based healthcare services...more

After Objection, No Waiver of Privilege for Putting Information on File Share Site without Protection: eDiscovery Case Law

by CloudNine on

In Harleysville Insurance Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Oct. 2, 2017), Virginia District Judge James P. Jones sustained the plaintiff’s objections to the Magistrate Court ruling that the...more

Florida Supreme Court: Physicians' Peer Reviews Not Protected from Public Disclosure

by Holland & Knight LLP on

• The Florida Supreme Court has reversed a decision of the Florida Second District Court of Appeal and held that an analysis of a medical malpractice claim sent by an attorney to an external medical review company in...more

Florida Supreme Court Says External Peer Review Reports are Discoverable Under Amendment 7

by Carlton Fields on

On October 26, in Edwards v. Thomas, et al. (SC15-1893) the Florida Supreme Court held that external peer review reports are discoverable under Amendment 7. ...more

Courts Use Rule Language and Common Sense to Expand Work Product Protection: Part II

by McGuireWoods LLP on

Last week's Privilege Point explained that on its face the federal work product rule (and most states' parallel rules) provide heightened opinion work product protection to any client representative's opinions -- not just...more

The E-Discovery Digest - October 2017

The eighth edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney-client privilege and work-product doctrine, spoliation, and discovery responses....more

Courts Use Rule Language and Common Sense to Expand Work Product Protection: Part I

by McGuireWoods LLP on

Unlike the common law-dominated attorney-client privilege which developed organically in each state, work product protection comes from court rules. One might think that this would simplify courts' application of that...more

Arizona Court of Appeals Confirms Attorney-Client Privilege Holder Must Affirmatively Inject Attorney-Client Communications Into...

by Jaburg Wilk on

The Holding - In Robert W. Baird & Co. Inc., v. The Honorable Christopher Whitten, 2017 WL 4296583 (Ariz. App. Sep. 28, 2017) (774 Ariz. Adv. Rep.4), the Arizona Court of Appeals just held that a legal malpractice...more

“Smoking Gun” Still Not Necessary To Prove Insurer Violated Pennsylvania’s Bad-Faith Statute

by Reed Smith on

In Rancosky v. Washington National Insurance Company, No. 28 WAP 2016, the Pennsylvania Supreme Court confirmed that, to prevail on a claim pursuant to Pennsylvania’s bad-faith statute, a policyholder does not have to prove...more

Does a Client Risk Privilege Protection by Bringing Her Mother to a Lawyer Meeting?

by McGuireWoods LLP on

Because it is absolute and can hide important facts from easy discovery, the attorney-client privilege is hard to create, narrow, and fragile. Among other things, even friendly third parties' presence can abort privilege...more

Does the Attorney-Client Privilege Protect a Lawyer's Retention Date?

by McGuireWoods LLP on

Content is king in the privilege world, in contrast to the work product protection – which largely depends on context. For this reason, the privilege rarely if ever protects the facts and circumstances of (1) the...more

Despite Clawback, Defendant’s Reckless Abandon of Rule 502 Bites Back

by Zapproved LLC on

Irth Sols., LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017). The court denied the defendant’s request to return privileged documents that it claimed it had mistakenly produced on...more

Beware: Claims Investigations May Not Be Protected From Disclosure In Maryland

by Pessin Katz Law, P.A. on

Insurance companies and lawyers defending insurance companies oftentimes try to shield claims investigations from disclosure during discovery. Oftentimes, the claimed basis for non-disclosure is the work-product privilege. In...more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

In Allied v. OSMI, the Circuit affirms dismissal of a declaratory judgment action even though Allied’s Mexican distributors had been sued in Mexico on a corresponding Mexican patent. In a first Waymo v. Uber case, the panel...more

The Hub: Transportation News & Insights - September 2017

by Wilson Elser on

Distracted Driving: Not the End of the Road - As a claims professional or attorney, never jump to conclusions when you learn about a distracted driver claim. As the facts surrounding the accident begin to develop,...more

Decision of the German Constitutional Court on attorney-client privilege in internal investigations to be expected

by DLA Piper on

The current legislation and jurisprudence regarding information and documents derived from internal investigations is ambiguous. The German Constitutional Court now has to decide on the seizure of documents from an internal...more

Commercial Division Reprimands Lawyer for Misconduct in Deposition

On August 25, 2017, Justice Shirley Werner Kornreich of the New York Commercial Division entered an order reprimanding a high-profile lawyer, Mark Geragos, for misconduct during a deposition, including refusing to answer...more

Are Communications With an Expediter or “Land-Use Consultant” Privileged?

by Farrell Fritz, P.C. on

In an action brought against a title company for losses in connection with a property sale, Justice Elizabeth H. Emerson, in JBGR LLC v. Chicago Title Ins. Co., denied the title insurer’s motion to amend its answer to add...more

Got Privilege? When It Comes to Internal Investigations, Think Again …

by Seyfarth Shaw LLP on

Seyfarth Synopsis: A recent decision out of the U.S. District Court for the District of Columbia serves as a helpful reminder on the difficulties of maintaining privilege during internal company investigations. But with a...more

5 Tips to Avoid the In-House Expert Trap in the Federal Rules of Civil Procedure

by Latham & Watkins LLP on

You are defending your client, a company engaged in complex scientific or technical work. As you head to trial, you have a tough decision to make. The client has employees and consultants with the knowledge and expertise to...more

The Privilege Maintains Its Power: Texas Supreme Court Blocks Discovery of Insurer Attorney’s Billing Information

by Carlton Fields on

When (if ever) are an insurer’s attorney’s fees and billing information discoverable in a coverage dispute? Though the question is straightforward, the answer can vary from case to case and jurisdiction to jurisdiction. The...more

SCOTX Ends the “My Fees Are Smaller Than Your Fees” Squabble

by Strasburger & Price, LLP on

How many times have you said, upon receiving your opponent’s demand for attorneys’ fees, “That’s outrageous! Our fees are a fraction of that amount!”? Until recently, Texas law was unsettled as to whether you could defend the...more

Recent Privilege Decision Raises Questions for Internal Investigations

by McGuireWoods LLP on

A recent federal district court case raises significant issues regarding privilege that should be on the radar of any in-house or outside counsel conducting an internal investigation with the goal of producing a public...more

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