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Privilege
Delaware Federal and State Courts Disagree About a Key Privilege Waiver Issue
Under some arrangements, major shareholders appoint directors to companies those shareholders partially own. Does such a company waive its privilege by disclosing its privileged documents to a designating shareholder's employees (other than its designated board members)?
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Supreme Court Fumbles Attempt to Define Privilege Standard: Part III
The last two Privilege Points (Part I and Part II) addressed the Supreme Court's abandoned attempt to address the abstract "primary purpose" versus "one significant purpose" privilege standard in the absence of specific facts about particular documents. Interestingly, the Ninth Circuit's In Grand Jury decision mentioned what it called the "because of" test in the work product arena — before noting the inherent differences between the attorney-client privilege and work product protection.
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Supreme Court Fumbles Attempt to Define Privilege Standard: Part II
Last week's Privilege Point described the Supreme Court's failure to decide between a "primary purpose" and a "one significant purpose" privilege standard. Everyone wonders why the Supreme Court dropped the case. The best explanation may be that the court realized that it should have waited for an internal corporate investigation case like KBR. In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).
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The Common Interest Doctrine — Courts' Disagreements and a Warning
The common interest doctrine can sometimes protect from the otherwise harsh privilege waiver impact normally triggered by the sharing of privileged communications among separately represented clients.
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Southern District of California Applies the Sporck Doctrine
In 1985, the Third Circuit protected as opinion work product a lawyer's "selection and compilation of [intrinsically unprotected] documents . . . in preparation for pretrial discovery."
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Analyzing an Inadvertent Production’s Waiver Impact: What Does the “Inadvertent” Element Mean?
In federal court and in state courts following the same approach, Fed R. Evid. 502(b) sometimes allows claw backs if a privileged document's production was "inadvertent." That term could have several meanings — ranging from a mistaken legal analysis to accidental inclusion of the document in a production.
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What Is the Scope of a Work Product Waiver in a Willful Patent Infringement Context?
Litigants accused of willful patent infringement sometimes rely on an "advice of counsel" defense. Interestingly, courts have recognized a distinction between such a defense in the privilege and the work product contexts.
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