All Articles
Privilege
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.
Read MorePrivilege
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.
Read MorePrivilege
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.
Read MorePrivilege
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?
Read MorePrivilege
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.
Read MorePrivilege
Plaintiff Relying on a Former Lawyer’s Testimony Can’t Avoid a Privilege Waiver
Most courts hold that a litigant does not automatically waive privilege protection by listing a former lawyer as a witness – because that lawyer might testify about non-privileged facts. But not surprisingly, such a step can have disastrous results if the litigant and her current lawyer do not think ahead.
Read MorePrivilege
You Textin' to Me? Robert De Niro Loses a Work Product Claim
Actor Robert De Niro's feud with a former production company manager has generated several opinions by Southern District of New York Magistrate Judge Katharine Parker.
Read More