News & Analysis as of

Work Product Privilege

Think Your “Private” Posts are Private? In New York, “Private” Facebook Posts are No Longer Protected from Discovery

by Dorsey & Whitney LLP on

In a recent unanimous decision, Forman v. Henkin, the New York Court of Appeals, New York’s highest court, removed the heightened requirement set by the lower courts for a party requesting the production of social media posts...more

The E-Discovery Digest - March 2018

The ninth 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

Court Analyzes the Complex Interplay Between Federal Rule of Evidence 612 and Federal Rule of Civil Procedure 30(b)(6)

by McGuireWoods LLP on

Under Federal Rule of Evidence 612, courts concluding that "justice requires" it may order disclosure of privileged or work product protected documents that refreshed a witness's recollection before testifying. How does that...more

Delaware District Court Finds No Work-Product or Common Legal Interest Protection for Certain Pre-Suit and Pre-Agreement Documents...

by Mintz Levin on

Recently, the District of Delaware held that a there was no work-product protection, and no common legal interest protection covering communications and documents shared between a patent owner and a third-party litigation...more

If a Court Decides That a Document Deserves Work Product Protection, Should the Court Also Deal With a Privilege Claim?

by McGuireWoods LLP on

Wise lawyers always consider both attorney-client privilege and work product protection when withholding a document or testimony. Privilege protection is absolute but fragile. Work product protection is qualified but...more

Putting Lawyers in Charge of Investigations Does Not Assure Privilege Protection

by McGuireWoods LLP on

Corporations’ investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by...more

2017 eDiscovery Case Law Review

by Epiq on

Electronic discovery cases that made headlines in 2017 featured well-known names such as Taylor Swift and Lynyrd Skynyrd, and reached all the way to the U.S. Supreme Court. As the year draws to a close, it’s a good time to...more

Environmental Consultant Documents: Federal District Court Addresses Potential Application of Attorney-Client Privilege/Work...

The United States District Court (Western District of Oklahoma) addressed in a January 11th Order the potential application of the attorney-client privilege and work product doctrine to certain documents generated by...more

Putting Lawyers in Charge of Investigations Does Not Assure Privilege Protection

by McGuireWoods LLP on

Corporations' investigations generally deserve (1) privilege protection only if the corporations are primarily motivated by their need for legal advice; and (2) work product protection only if they are motivated by...more

2017 eDiscovery Case Law Year in Review, Part 3

by CloudNine on

...Just because you don’t physically have your hands on the data doesn’t mean you’re not responsible for it. Here are three cases related to rulings regarding possession, custody and control of ESI, including one that relates...more

Federal Court Finds “Oral Downloads” to SEC Waived Attorney Work Product Protection

by Dechert LLP on

U.S. Magistrate Judge Jonathan Goodman, in the Southern District of Florida, ruled last month that outside counsel’s “oral downloads” of internal investigation findings to the Staff of the Securities and Exchange Commission...more

Incident Response – Privilege and Work Product Issues After In re Premera

by Locke Lord LLP on

Despite considerable incident response work after numerous alleged data breaches, very few opinions have addressed the application of attorney-client privilege and the work-product doctrine to the materials created by such...more

Courts Address Requests That They Review Withheld Documents In Camera

by McGuireWoods LLP on

Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that...more

Clawback Agreement Doesn’t Save Documents Inadvertently Produced Twice from Privilege Waiver: eDiscovery Case Law

by CloudNine on

...In Irth Solutions, LLC v. Windstream Communications LLC, No. 2:16-CV-219 (S.D. Ohio Aug. 2, 2017), Ohio Magistrate Judge Kimberly A. Jolson, rejecting the idea that a clawback agreement always protects against waiver of...more

Does the Work Product Doctrine Protect the Identity of Witnesses a Lawyer Chooses to Interview?

by McGuireWoods LLP on

Litigants obviously must identify all witnesses with potentially relevant knowledge about litigated issues. But can litigants claim work product protection for the identity of the subset of those witnesses that their lawyers...more

Court Disagrees with Plaintiff’s Contentions that Defendant’s TAR Process is Defective: eDiscovery Case Law

by CloudNine on

In Winfield, et al. v. City of New York, No. 15-CV-05236 (LTS) (KHP) (S.D.N.Y. Nov. 27, 2017), New York Magistrate Judge Katharine H. Parker, after conducting an in camera review of the defendant’s TAR process and a sample...more

4 Things the Top E-Discovery Cases of 2017 Can Teach You

by Exterro, Inc. on

Two years on from the last round of FRCP amendments, the courts are still clarifying how these e-discovery rules will be interpreted. One lens through which we can better understand how the court is interpreting the...more

SEC Cooperation Leads to Waiver of Privilege

On December 5, 2017, a Florida federal magistrate judge ordered a law firm to turn over interview notes and memoranda from an internal investigation, finding that any applicable privilege had been waived when attorneys gave...more

S.D.N.Y. Magistrate Judge Francis Analyzes the Work Product Doctrine's "Motivational" Element

by McGuireWoods LLP on

Many lawyers mistakenly focus only on the first two of three work product elements: (1) whether their clients faced "litigation," which can also include adversarial arbitrations, government proceedings, etc.; and (2) whether...more

How Employers Can Become Experts at Data Breaches: Conducting a “privileged” investigation

by Bryan Cave on

A large portion of the data breaches that occur each year involve human resource related information. Bryan Cave has put together a multi-part series to help human resource managers understand, prepare for, and react to, a...more

Commercial Division Considers Default Clawback Provisions for Confidentiality Stipulations

The advent of large electronic productions has propelled a proposal to adopt new language in the standard confidentiality order used in the Commercial Division. This proposal is designed to protect parties against...more

An Inside Job: Highlights From November’s ACC Presentation

by Miles & Stockbridge P.C. on

On November 8, 2017, Suzzanne W. Decker, a Principal in the Miles & Stockbridge Labor, Employment, Benefits & Immigration practice group, and Sandra McLelland, Managing Counsel at Under Armour, presented a webinar to members...more

Protecting the Privacy of Privileged Internal Investigations

by Pepper Hamilton LLP on

Internal investigations by outside counsel are an essential tool for corporations to ensure they are compliant with governing regulations and statutes, particularly when they are faced with allegations of potential...more

Florida Supreme Court Broadly Construes Constitutional Amendment and Facilitates Discovery of Peer Review Records

On October 26, 2017, in Edwards v. Thomas, et al. (SC15-1893), the Supreme Court of Florida reversed a decision of the Florida Second District Court of Appeal, holding that an external peer review report prepared in...more

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

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