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Privilege
Do Not Forget the Consequences of Judges’ Role in Assessing Privilege Protection
In both the federal and state judicial systems, judges assess privilege and work product protection claims — sometimes coordinating with judges at other levels. But there is a lurking unspoken risk that some lawyers may overlook.
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Educate Your Clients About Two Basic Privilege Misperceptions
Attorney-client privilege protection depends on a communication’s content — which must be primarily motivated by the client’s request for legal advice.
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Courts Disagree About Privilege Log Requirements: Part II
Last week’s Privilege Point described one court’s incredible requirement that litigants identify everyone who learned of a withheld document’s content — even if they were not shown as a recipient.
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Courts Disagree About Privilege Log Requirements: Part I
All or nearly all courts require litigants to log documents withheld on privilege or work product grounds (with an exception discussed next week). But they disagree about what the log should include — with some courts taking an unrealistically expansive view.
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What’s the Deal With “Intangible” Work Product? Part III
The last two Privilege Points (Part I and Part II) explained that the 1947 U.S. Supreme Court decision in Hickman v. Taylor, 329 U.S. 495 (1947), created a common law protection for litigation-related tangible and intangible things.
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Does Disclosure During Settlement Negotiations Waive Work Product Protection?
For obvious reasons, the law encourages settlements. During settlement negotiations, participants may be tempted to disclose work product-protected documents or intangible communications.
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What’s the Deal With “Intangible” Work Product? Part II
Last week’s Privilege Point explained that nearly every court extends work product protection beyond the “documents and tangible things” specified in Fed. R. Civ. P. 26(b)(3) and understandably mentioned in a recent Southern District of New York decision.
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