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Privilege
Court Applies the General Rule Finding a Privilege Waiver When Clients Disclose Privileged Communications to Public Relations Consultants
One of the most dangerous misperceptions among corporate clients is that disclosing privileged communications to such friendly outsiders as public relations consultants does not waive privilege protection as long as there is a confidentiality agreement in place. A steady stream of cases have rejected that approach, yet large corporate clients and sophisticated law firms continue to rely on that mistaken view.
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Insurance Coverage & Recovery
Before the Deluge: Courts Weigh COVID-19 Insurance Coverage Disputes
Matthew D. Fender, a litigator who focuses his practice on representing policyholders in insurance recovery disputes, discusses an array of COVID-19 issues and claims, including a recent federal case in which the court concluded that the coverage trigger “physical loss or damage” is satisfied by the presence of novel coronavirus on surfaces.
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Delaware Court Provides Transactional and Practical Guidance: Part II
In his previous Privilege Point, McGuireWoods partner, Thomas Spahn, described a Delaware Chancery Court’s analysis of pre-closing privileged transactional documents in: (1) a stock sale (in which the statutory “default” position is that the buyer acquires those documents, unless the seller explicitly negotiates their exclusion); and (2) an asset sale (in which the seller retains ownership of those, unless the buyer explicitly negotiates for their transfer). Here, he picks up where he left off.
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Delaware Court Provides Transactional and Practical Guidance: Part I
Corporate stock and asset sale transactions necessarily implicate ownership of: (1) ordinary day-to-day privileged communications about environmental matters, labor matters, etc., and (2) privileged communications about the transactions themselves. Buyers and sellers normally agree that the buyer should receive the first type, but disputes frequently arise about the second type.
Read MoreWhat Investment Advisers and Broker-Dealers Should Expect After the First Wave of COVID-19
With the confluence of our current global health and economic crises, these are unprecedented times. As we witnessed in the post-2008 financial crisis world, frauds, Ponzi schemes, and misconduct, undertaken by those who wanted to take advantage of the crisis, come to light.
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Opinion Highlights the Risk of Rogue Constituents’ Privilege Waiver
Many courts have dealt with corporate and other organizational entities’ constituents’ ability to waive those entities’ privilege protection. In the corporate context, most courts hold that any constituent (even middle management, etc.) trusted to handle privileged communications can waive the corporation’s privilege -- if she acted in the corporation’s interest rather than adverse to its interest.
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Delaware Courts Address Common Interest Doctrine Issue: Part II
McguireWoods' previous Privilege Point described a favorable Delaware state court decision finding that a post-reorganization trust and its largest stakeholder could rely on the common interest doctrine to protect their communications – because they shared a common legal rather than just a common financial interest. Highlighting the unpredictability of the common interest doctrine, another Delaware state court took a much narrower view just a few months later.
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