Privilege
More Privilege Articles
Privilege
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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Courts Differ on the Meaning of the Work Product Rule’s "Anticipation" and "Litigation" Elements: Part I
Fed. R. Civ. P. 26(b)(3)'s and parallel state work product rules apply to documents and tangible things prepared "in anticipation of litigation or for trial." But the Rule does not specify the degree of required "anticipation."
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What Is the Garner Doctrine, and Why Is It Dangerous?
Under what is called the "fiduciary exception," a fiduciary's beneficiary sometimes may access otherwise privileged communications between the fiduciary and its lawyer – based on the law's artificial identification of the beneficiary as the fiduciary's lawyer's true "client."
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