Last week’s Privilege Point noted that some federal courts erroneously apply their host state’s substantive privilege law rather than properly applying their host state’s choice of law rules — which might result in another...more
Not surprisingly, federal courts handling federal question cases apply federal common law privilege principles (essentially textbook-type generic rules). Federal courts sitting in diversity cases must comply with Federal Rule...more
Last week’s Privilege Point described the illogical but scary Vioxx doctrine, which some courts apply to deny privilege protection ab initio to intra-corporate communications simultaneously seeking advice both from lawyers...more
Lawyers representing corporations all recognize the privilege waiver risk of disclosure to outsiders. But there are two huge risks to privilege protection even for internal corporate communications. Pointing to the “primary...more
Corporations risk waiving their fragile privilege protection by sharing protected communications with even the friendliest outsiders — such as their retained public relations consultants, etc. They must disclose some...more
The last two Privilege Points have described yet another losing effort to protect a data breach investigation and related communications. In Leonard v. McMenamins Inc., Case No. C22-0094-KKE, 2023 U.S. Dist. LEXIS 217502...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
Companies and even law firms suffer data breaches, and usually claim privilege and work product protection for the inevitable resulting investigation. Unfortunately, courts seem to have rejected such protection claims in all...more
In all but a few states, the attorney-client privilege can protect a company’s lawyer’s communications with former company employees — as long as the communications focus on the former employees’ tenure at the company. But in...more
Would-be litigants sometimes send a draft complaint to the would-be adversary — either to deter their bothersome conduct or to spur settlement talks. That scenario frequently raises defamation issues — with states taking...more
Separately represented clients sometimes may avoid the normal waiver implications of sharing privileged communications by entering into a common interest agreement — but such contractual arrangements frequently do not work....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
The last two Privilege Points have addressed the implied waiver implications of litigants (defendant in the Crypto King’s trial and plaintiff in the case described last week) relying on legal advice to defend against or...more
Last week’s Privilege Point described an “advice of counsel” issue that arose in Bankman-Fried’s recent criminal trial. The day after S.D.N.Y. Judge Kaplan’s ruling in that case, another court dealt with this issue....more
Defendants seeking to avoid liability by relying on a lawyer’s advice trigger a classic “implied waiver.” Although asserting that defense does not itself disclose any privileged communications (as with an intentional or...more
Not surprisingly, both a lawyer’s confidentiality duty and the attorney-client privilege protection last beyond the client’s death. But most courts recognize what they call the “testamentary exception” — allowing disclosure...more
Under the widely recognized common interest doctrine, separately represented clients may sometimes contractually avoid the otherwise inevitable privilege waiver when sharing privileged communications. As explained previously...more
Clients relying on an investigation’s result to gain some advantage understandably trigger a subject matter waiver. But some courts recognize that those clients may still claim privilege for some related communications....more
Overworked judges assessing possible privilege protection for the increasing volume of often-cryptic emails withheld from production understandably look for a client’s explicit request for legal advice from a lawyer....more
As noted in several previous Privilege Points, courts have great difficulty assessing privilege protection for communications relating to a Rule 30(b)(6) deposition — in which a corporation or other institution designates a...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
Communications between a lawyer and a prospective client can involve ethics (confidentiality and conflicts) issues, as well as privilege protection issues. Not surprisingly, the availability of privilege protection depends on...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
Litigants relying on testifying experts can look to federal or state court rules in determining what they must disclose or may withhold. In contrast, courts take widely varying views of those issues in addressing litigants'...more
Identifying the "client" in closely held corporations can be difficult, but critical. That determination can affect both privilege protection for communications, and the right to access privileged communications between the...more