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Privilege
Adversaries on Some Litigation Issues Might Share a "Common Interest" on Other Issues
The unpredictable and frequently rejected common interest doctrine can sometimes avoid what would otherwise be a waiver when separately represented litigants share privileged communications or documents. Many clients and even lawyers erroneously believe they automatically can assure such a non-waiver benefit simply by entering into a common interest agreement.
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Court Issues Strange Intangible Work Product Decision
Although the federal work product rule and parallel state work product rules extend only to "documents and tangible things," most courts also protect intangible work product such as oral communications – at least to the extent that they reflect a lawyer's thought process. But it can be difficult to distinguish between such intangible work product and historical facts, which of course do not deserve any protection.
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Civil Justice | Diversity & Inclusion
Leaders in Color Series with Civil Rights Champions
Recap the details of McGuireWoods’ first anniversary of their Leaders in Color discussion series, where three distinguished champions of civil rights joined McGuireWoods chairman, Jonathan Harmon in conversation in Washington, D.C.
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Having a Big Law Firm Hire a Public Relations Consultant Does Not Assure Privilege or Work Product Protection
Just as some clients think that copying a lawyer cinches privilege protection, even sophisticated clients relying on well-known law firms might erroneously believe that having those law firms hire a public relations consultant will assure privilege and work product protection. It doesn't.
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Be Sure to Check the Choice of Law Before Analyzing "At Issue" Waivers
The unpredictable "at issue" waiver doctrine can strip away privilege protection without any disclosure of, or explicit reliance on, privileged communications. But state courts and even federal courts take widely varying approaches to this most dangerous type of implied waiver.
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Another Company Loses a Data Breach Investigation Work Product Claim
One might think that any company reasonably anticipates litigation after suffering a data breach, so the work product doctrine would almost inevitably protect its data breach investigation. But only a handful of companies have succeeded in claiming such protection.
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Failing to Mention Litigation Weakens Work Product Claim
The work product doctrine protects documents primarily motivated by litigation or anticipated litigation. It does not protect documents created in the ordinary course of a company’s business, or required by an external or internal mandate. If a company is already in litigation, failing to acknowledge that fact can weaken a work product claim.
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