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Privilege
Three Subject Matter Waiver Decisions Send Mixed Signals: Part II
In his previous Privilege Point, McGuireWoods partner Thomas Spahn described a decision applying the subject matter waiver doctrine, which relies on fairness notions to prevent litigants from relying on privileged communications as a "sword" while simultaneously using the privilege as a "shield." Here, he picks up where he left off.
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Three Subject Matter Waiver Decisions Send Mixed Signals: Part I
Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a "sword" while simultaneously asserting the privilege as a "shield" to prevent discovery of related communications. As with many privilege concepts, applying the subject matter waiver doctrine can involve subtle analyses.
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Slip and Fall Case Provides Useful Guidance for More Serious Scenarios: Part II
Last week's Privilege Point described a Louisville, Kentucky, restaurant's loss of privilege protection because it could not prove that the managers providing information after a slip and fall knew the "investigation notes'" purpose. Bobalik v. BJ's Restaurants, Inc., Case No. 3:19-CV-0661-RGJ-LLK, 2020 U.S. Dist. LEXIS 231289 (W.D. Ky. Dec. 9, 2020). The court then turned to the restaurant’s work product assertion.
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Slip and Fall Case Provides Useful Guidance for More Serious Scenarios: Part I
Under the commonly (but not universally) recognized Upjohn standard, a corporation's lawyer may engage in privileged communications with any level of corporate employee who has information the lawyer needs. But that favorable Upjohn standard is not self-executing – there is another condition lawyers must satisfy.
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CDC Publishes New COVID-19 Vaccination Guidance for the Workplace
The Centers for Disease Control and Prevention (CDC) recently updated its “COVID-19 Vaccine Communication Toolkit for Essential Workers” to include information to educate all employers and employees about COVID-19 vaccines, raise awareness of the benefits of vaccination, and address common questions.
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Second Circuit Applies the "Touch Base" Test
Most other countries do not permit the type of intrusive discovery U.S. companies face. But occasionally discovery in U.S. litigation seeks communications to or from the U.S., or even purely overseas communications -- requiring U.S. courts to assess which country's privilege protection applies.
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Several Courts Allow Categorical Privilege Logs
One widespread misperception about attorney-client privilege and work product doctrine assertions is that the Federal Rules require a privilege log. As one court bluntly put it, "no where in Fed. R. Civ. Pro. 26(b)(5) is it mandated that a document-by-document privilege log is required, if a party seeks to withhold documents based on privilege or work product."
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