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Privilege
Courts Differ on the Meaning of the Work Product Rule’s "Anticipation" and "Litigation" Elements: Part I
Fed. R. Civ. P. 26(b)(3)'s and parallel state work product rules apply to documents and tangible things prepared "in anticipation of litigation or for trial." But the Rule does not specify the degree of required "anticipation."
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What Is the Garner Doctrine, and Why Is It Dangerous?
Under what is called the "fiduciary exception," a fiduciary's beneficiary sometimes may access otherwise privileged communications between the fiduciary and its lawyer – based on the law's artificial identification of the beneficiary as the fiduciary's lawyer's true "client."
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The Privilege Always Protects Communications Among Jointly Represented Corporate Affiliates, Right?
Corporate parents' in-house lawyers' joint representations of the parent and its wholly-owned subsidiaries should cinch their communications' attorney-client privilege protection. Additional grounds for such privilege protection (in a litigation setting) could also come from the obvious "common interest" between a corporate parent and its wholly-owned subsidiaries – which by definition must comply with their parent's direction.
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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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