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Privilege
Plaintiff Relying on a Former Lawyer’s Testimony Can’t Avoid a Privilege Waiver
Most courts hold that a litigant does not automatically waive privilege protection by listing a former lawyer as a witness – because that lawyer might testify about non-privileged facts. But not surprisingly, such a step can have disastrous results if the litigant and her current lawyer do not think ahead.
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You Textin' to Me? Robert De Niro Loses a Work Product Claim
Actor Robert De Niro's feud with a former production company manager has generated several opinions by Southern District of New York Magistrate Judge Katharine Parker.
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Plaintiffs Suing Jones Day for Retaliation Must Identify Lawyers With Whom They Consulted Before Filing Their Lawsuit
Last week's Privilege Point addressed a case in which defendant Holland & Knight could withhold the names of clients to whom it provided advice allegedly similar to advice plaintiffs claimed was fraudulent. A few weeks later, another court assessed whether plaintiffs suing Jones Day for alleged retaliation against them for seeking parental leave had to identify lawyers with whom they consulted before suing that law firm.
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Can a Plaintiff Suing Holland & Knight for Fraud Discover Which Other Clients Received Similar Advice?
In most situations, a law firm's clients' identities do not deserve privilege protection. But as with so many other general privilege rules, there are exceptions.
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Why Is a D.C. Federal Court Analyzing a State "Control Group" Privilege Standard, but the Federal Work Product Rule?: Parts I & II
All but a handful of states apply what is called the Upjohn privilege standard – under which the attorney-client privilege can protect a corporation's lawyer's communication with any corporate employee who has information the lawyer needs to provide the corporate client legal advice.
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Ninth Circuit Mildly Praises Judge Kavanaugh’s Expansive Privilege Approach to Corporate Investigation Materials
Essentially all courts apply a "primary purpose" test when assessing privilege protection. But while on the D.C. Circuit Court, Judge Kavannaugh articulated a far more corporate-friendly standard in analyzing an internal corporate investigation's materials...
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Courts Wrestle With the "Facts" vs. "Communications" Dilemma: Part I & II
In all or nearly all circumstances, historical facts do not deserve privilege protection – something either happened or it didn't happen. The privilege can protect communications about those historical facts.
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