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Privilege
Courts Deal With "Dual-Hat" Experts: Part I
Fed. R. Civ. P. 26(a)(2)(B)(ii) governs testifying experts' duty to produce "the facts or data considered by the witness in forming" his or her opinion. Fed. R. Civ. P. 26(b)(4)(D) governs dramatically different non-testifying consulting experts. Not surprisingly, witnesses might switch from one role to the other, and also might possess arguably pertinent facts from direct or tangential participation in the pertinent underlying events.
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All Aboard? The LIBOR Train Is Leaving the Station
With the benchmark London Interbank Offering Rate scheduled for replacement at the end of 2021, banks and other market participants in the U.S. and UK are preparing for the transition. McGuireWoods partners Donald Ensing, Jennifer Kafcas, Susan Rodriguez, James Gelman, and Barlow Mann are part of the firm’s LIBOR Transition team helping financial institutions with their transition efforts. They assess where the transition stands and key issues facing market participants in the months ahead.
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"At Issue" Waivers Implicate Subtle Distinctions
The frighteningly unpredictable "at issue" waiver doctrine can strip away attorney-client privilege protection when the client seeks some legal advantage by putting "at issue" its knowledge, ignorance, conduct, etc. This type of waiver does not involve any actual disclosure of privilege communications or any explicit reliance on lawyers or their advice.
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How Do Courts Assess the "Need to Know" Standard?
Most if not all courts recite the tenet that corporations can lose their privilege protection for privileged documents circulated within the corporation to employees beyond those with a "need to know."
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Correctly Applying Work Product Protection Continues to Elude Some Courts
As Privilege Points have periodically mentioned, some courts inexplicably limit work product protection to documents lawyers prepare or order to be prepared. This type of mistake is not the only one that some courts make.
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The Stealthy Rule 612 Risk to Privilege Protection
Lawyers preparing their clients and others for deposition or trial testimony frequently show them documents. Courts disagree about whether such lawyers can withhold from the adversary those documents' identity.
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Contention Interrogatories: Not If, But When
It should come as no surprise that litigants normally seek discovery about their adversaries' legal contentions and factual support. On the other hand, litigants' lawyers understandably consider their trial strategy and their selection of factual support to be protected work product until they have made final decisions about both. How does the law reconcile these two competing interests?
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