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Privilege

Copying a Lawyer on an Email Does Not Assure Privilege Protection, but That Lawyer Can Increase the Odds

Lawyers should remind their clients that copying a lawyer on an email does not automatically render the email privileged. But the story doesn't end there.

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Privilege

Can the Privilege Protect Documents Prepared by Someone Who Has Never Hired a Lawyer?

The attorney-client privilege protects communications between clients and their lawyers. But in certain admittedly limited circumstances, the protection can apply to documents created by someone who has not yet hired a lawyer.

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Privilege

Three Subject Matter Waiver Decisions Send Mixed Signals: Part III

Under general common law doctrine and Federal Rule of Evidence 502, courts normally hold that disclosing privileged communications only triggers a subject matter waiver if the disclosure seeks some advantage in court. But some courts find a subject matter waiver in broader circumstances.

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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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Privilege

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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Privilege

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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Privilege

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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