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Privilege
Source and Choice of Privilege Law in Federal Courts: Part I
Lawyers dealing with attorney-client privilege questions obviously must assess what privilege law applies. Federal courts understandably apply federal privilege common law (essentially garden-variety principles) in federal question cases.
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Privilege
Hickman Work Product Protection Extends Beyond the Work Product Rule
Just about the time that extensive pre-trial discovery started, the Supreme Court recognized a new evidentiary protection – extending beyond the attorney-client privilege, and motivated by the understandable requirement that each litigant should do its own discovery work.
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If a Court Finds Attorney-Client Privilege Waiver, Must It Also Consider Work Product Waiver?
The attorney-client privilege provides absolute protection, but is very fragile. Work product doctrine protection does not provide absolute protection (fact work product protection can be overcome), but is robust.
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Delaware Court Addresses the Privilege Implications of an Evenly Split Corporate Board’s Feud
Not surprisingly, Delaware state courts frequently address privilege issues triggered by corporate board disputes. Those often guide other states' courts' analyses of similar scenarios.
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The Oddly Named "Fiduciary Exception" and Its "Exceptions"
Under old English trust law, courts gave trust beneficiaries access to otherwise privileged communications between the trust fiduciary and its lawyer advising him or her on trust administration matters.
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What Is the Standard for Courts’ In Camera Review of Withheld Documents?
Work product protection focuses mostly on context, but withheld documents' content might also be pertinent. So in many if not most cases, a judge or her designee must read the withheld documents' content. What is the standard for such an in camera review?
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Adversaries Normally Can Explore Background Facts About Communications Withheld as Privileged
Attorney-client privilege protection focuses on communications' content, but those communications' context can shed light on their primary purpose, possible inapplicability because of third parties' presence, etc. So adversaries ordinarily can ask such context questions.
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