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
Companies facing ongoing or threatened litigation must sometimes estimate their likely or possible financial exposure — for internal purposes, reporting to auditors or other reasons. Depending on the circumstances, one would...more
Outside and in-house lawyers may of course normally claim privilege protection for their investigation-related communications, as long as they were primarily motivated by the need for legal advice. Depending on the...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
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
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
Last week’s Privilege Point described two cases finding that successful plaintiffs had waived work product protection covering their invoices and other attorney’s fees billing documents because they sought attorney’s fees as...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
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
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
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
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
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