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Privilege
Drawing the Line Between a Privileged Communication’s Occurrence and Its Content
All or most courts assessing deposition objections distinguish between questions focusing on: (1) the occurrence of a privileged communication; and (2) its content. Not surprisingly, that line can sometimes be hard to draw.
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State Supreme Court Seems to Ignore Its Own Work Product Rule
Because what is called "opinion work product" deserves higher protection than fact work product (and in many courts enjoys "absolute or nearly absolute" protection), litigants understandably seek to withhold documents on that basis. Fed. R. Civ. P 26(b)(3) explains that such highly protected opinion work product can be created by "a party's attorney or other representative." (Emphasis added.)
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Another Difference Between the Attorney-Client Privilege and the Work Product Doctrine
The ancient attorney-client privilege protection provides absolute but fragile immunity from discovery. The relatively new litigation-related work product doctrine provides limited but robust immunity from discovery. Lawyers should always be on the lookout for both types of protection.
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Courts Describe the Crime-Fraud Exception to Privilege Protection
One glaring disagreement among state courts involves former corporate directors' right to access documents they possessed when they served as directors. Common sense might lead one to think that directors enjoyed access when they were loyally serving a corporation, but should be denied access if they become adverse to that corporation.
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Can Now-Adverse Former Corporate Directors Access Their Old Corporate Files?
One glaring disagreement among state courts involves former corporate directors' right to access documents they possessed when they served as directors. Common sense might lead one to think that directors enjoyed access when they were loyally serving a corporation, but should be denied access if they become adverse to that corporation.
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Client Consultants' Role Can Change Over Time, With Differing Waiver Implications
Some lawyers erroneously assume that the fragile attorney-client privilege protection normally survives disclosure (by them or by their clients) to the client’s consultant/agent. That can be true in very limited circumstances, depending on that consultant/agent’s role — which can change over time.
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Pennsylvania Federal Court Helpfully Distinguishes Between Privilege and Work Product Protection
The last several Privilege Points have emphasized the different waiver implications of disclosing privileged communications and protected work product. For the most part, the distinctions rest on the very different societal benefits and costs of the ancient attorney-client privilege and the relatively new work product doctrine.
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