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Most lawyers know that state statutes or common law doctrines often protect communications between spouses – although there is wide variation in such approaches. But there is a lurking danger that all of us should keep in...more
Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of August 5-11. Here’s what’s...more
[Editor’s Note: This article was first published May 15, 2024 and EDRM is grateful to Tom Paskowitz and Robert Keeling of our Trusted Partner, Sidley, for permission to republish. The opinions and positions are those of the...more
Traduction en cours. Can the buyer in a M&A transaction who takes possession of the seller’s or target company’s privileged communications on closing use those communications in a post-closing dispute against the seller?...more
In Beckes v. North East School District, AP 2022-2826, the OOR determined that the attachments to two emails from the District Solicitor to the District were protected from disclosure under the attorney-client privilege and...more
The volumes of evidence available for litigation are such that privileged documents – a small but important subset of any evidence collection – can easily be overlooked, commingled, misplaced, or simply lost. In addition, the...more
Email communications can be a trap for unwary independent directors. The December 2020 In re WeWork Litigation decision illustrates the point, as discussed in this earlier blog. Specifically, directors who often use corporate...more
Because privilege logs necessarily contain logistical but not content-based information about withheld documents, adversaries sometimes challenge privilege protection because no lawyer sent or received a withheld document....more
Most states have adopted some variation of what is called the "spousal privilege" or "marital privilege." Those usually appear in statutes or rules, and dramatically vary from state to state. For obvious reasons, spouses'...more
In Re Dell Technologies Inc Class V Stockholders Litigation, Consol. C.A. No. 2018-0816-JTL (Del. Ch. Sept. 17, 2021) (TRANSCRIPT) - A director utilizing an email account associated with a different company for board...more
Delaware Rule of Evidence 502(b) codifies the attorney-client privilege and insulates from discovery “confidential communications made for the purpose of facilitating the rendition of professional legal services to the...more
In December 2020, a New York court noted that A-list actor Justin Theroux and his downstairs neighbors "do not get along, to put it mildly." Theroux v. Resnicow, 2020 N.Y. Slip Op. 51489(U), at *2 (N.Y. Sup. Ct. Dec. 16,...more
Lawyers should remind their clients that copying a lawyer on an email does not automatically render the email privileged. But the story doesn't end there. In Dejewski v. National Beverage Corp., the court recited the...more
Courts analyzing privilege assertions for email threads often look for some indicia of that protection on the face of those emails. In Anderson v. Trustees of Dartmouth College, Case No. 19-cv-109-SM, 2020 U.S. LEXIS...more
Several previous Privilege Points have summarized often-complicated judicial holdings on who owns privilege protection after corporate stock or asset transactions. It should come as no surprise that the privilege ownership...more
Last week’s Privilege Point described a husband’s probable loss of attorney-client privilege protection when using his employer’s email system for communications with his personal lawyer. Because he had only raised the...more
Nearly every court protects as privileged only those communications or documents whose “primary purpose” was for the clients to request legal advice or the lawyers to provide the requested legal advice. A few courts have...more
Over a decade ago, the Texas Supreme Court held that any document provided to a testifying expert in anticipation of her testimony must be disclosed to the other side, regardless of whether the expert relied on the document....more
Ruling on a motion seeking the return of inadvertently produced privilege materials, Judge Kaplan elaborated on the meaning of “inadvertent” in the context of Massachusetts Rule of Civil Procedure 26(b)(5) and so-called...more
In Shareholder Representative Services LLC v. RSI Holdco, LLC, the Delaware Court of Chancery held that the sellers of a target corporation retained the right to assert attorney-client privilege over pre-merger communications...more
In In re City of Dickinson, 568 S.W.3d 642 (Tex. 2019), the Supreme Court of Texas recently assessed whether a client’s emails with its counsel were subject to disclosure after the client was designated as a testifying expert...more
When we hear about discovery abuses in litigation, we often think of overzealous lawyers using obstructionist tactics. Such behavior, however, rarely involves litigants “improperly accessing” the email communications of an...more
In re City of Dickinson1 is an important case for businesses with an employee who will testify as an expert. The question for the court was which competing rule prevails: the rule protecting attorney-client communications or...more
Clients often make good testifying experts because they have specialized knowledge and experience in their industry. While normally emails between an attorney and a testifying expert are discoverable, what if the testifying...more
Last week's Privilege Point described a court's recognition that the work product doctrine can protect lawyers' communications with third party witnesses. Five days later, another court dealt with lawyers' reports to their...more