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Privilege
The Strange Fiction of Rule 30(b)(6)
Under Fed. R. Civ. P. 30(b)(6), a litigant seeking a corporate adversary's deposition may insist that the corporation designate an individual to testify on the corporation's behalf about designated topics. The concept makes sense, because otherwise the litigant may have to depose numerous employees (who may or may not have the pertinent knowledge). But in practice, Rule 30(b)(6) depositions essentially rely on a fiction.
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Corporations May Risk Waiving Privilege Protection When Communicating With Their Own Board Members
It seems obvious that corporations do not waive privilege protection by disclosing privileged communications to their own board members. But what about outside board members receiving such communications where they work or live?
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Texas Federal Court Applies the “At Issue” Waiver Doctrine
Clients can waive their privilege protection by intentionally or accidentally disclosing privileged communications, or by explicitly relying on privileged communications (such as pleading “advice of counsel” as a defense). They can also waive their privilege protection without disclosure and without such explicit references.
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Privilege Implications of Spousal Communications
Most courts hold that the incredibly fragile attorney-client privilege can be waived by disclosure even to family members (such as Martha Stewart’s disclosure to her own daughter). The separate "spousal privilege" recognized in many states complicates the analysis with those family members.
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Southern District of Ohio Acknowledges the "Fiduciary Exception's" Applicability to ERISA Communications — With a Twist
Under what is called the "fiduciary exception," the law essentially deems a fiduciary's beneficiary to be the fiduciary’s lawyer’s actual "client." This normally enables the beneficiary to access communications between the fiduciary and her lawyer about fiduciary functions. Most "fiduciary exception" cases involve ERISA fiduciaries.
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Northern District of Texas Protects Communications With Former Employees
Lawyers representing corporations or other entities during investigations routinely interview former employees. Those intangible interviews and any resulting documentation presumably deserve work product protection if the entity reasonably anticipates litigation at the time. But what about the absolute attorney-client privilege?
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Another Court Finds Public Relations Consultants Outside Privilege Protection
One of the greatest risks to corporate clients' privilege protection is their executives' and even their lawyers' misunderstanding about the availability of privilege protection for communications with public relations consultants. A remarkable number of cases address this scenario, and almost without exception courts reject privilege protection for communications with, or shared with, such consultants.
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