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Privilege
Supreme Court Fumbles Attempt to Define Privilege Standard: Part II
Last week's Privilege Point described the Supreme Court's failure to decide between a "primary purpose" and a "one significant purpose" privilege standard. Everyone wonders why the Supreme Court dropped the case. The best explanation may be that the court realized that it should have waited for an internal corporate investigation case like KBR. In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).
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The Common Interest Doctrine — Courts' Disagreements and a Warning
The common interest doctrine can sometimes protect from the otherwise harsh privilege waiver impact normally triggered by the sharing of privileged communications among separately represented clients.
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Southern District of California Applies the Sporck Doctrine
In 1985, the Third Circuit protected as opinion work product a lawyer's "selection and compilation of [intrinsically unprotected] documents . . . in preparation for pretrial discovery."
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Analyzing an Inadvertent Production’s Waiver Impact: What Does the “Inadvertent” Element Mean?
In federal court and in state courts following the same approach, Fed R. Evid. 502(b) sometimes allows claw backs if a privileged document's production was "inadvertent." That term could have several meanings — ranging from a mistaken legal analysis to accidental inclusion of the document in a production.
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What Is the Scope of a Work Product Waiver in a Willful Patent Infringement Context?
Litigants accused of willful patent infringement sometimes rely on an "advice of counsel" defense. Interestingly, courts have recognized a distinction between such a defense in the privilege and the work product contexts.
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In Camera Reviews’ Process and Downside
Attorney-client privilege protection depends on content, and some work product claims also depend in part on content. Because a litigant's privilege log obviously does not disclose withheld documents' content, the adversary often seeks the court's in camera review of those withheld documents.
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FLSA Cases Raise Interesting Privilege Issues
In earlier times, litigants essentially trusted each other to withhold (without identifying) responsive documents protected by the attorney-client privilege or the work product doctrine. Now every court seems to require a privilege "log" listing the withheld documents (although the Federal Rules do not require such a "log").
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