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Privilege
Federal and State Courts Issue Helpful Investigation-Related Decisions
Internal corporate or other entity investigations frequently generate discovery motions that focus on privilege and work product creation and waiver issues. Two recent decisions offer some good news for defendants resisting discovery of investigation-related documents.
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Can an Interviewee Witness List Ever Deserve Work Product Protection?
Facts and events normally do not deserve work product protection. But a lawyer's careful selection of such facts or important events sometimes may reflect his or her strategic assessment or litigation planning. For example, litigants obviously must identify witnesses with pertinent knowledge. But can an adversary ask which of such witnesses a litigant's lawyer thought important enough to interview?
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State Courts Offer Some Hope for Adverse Privilege Rulings' Interlocutory Appeals
Federal courts have eliminated nearly any chance for unsuccessful trial court litigants to immediately appeal adverse privilege or work product rulings – inexplicably rejecting the obvious "cat out of the bag" nature of such rulings. In federal court, the difficult "mandamus" route normally provides the only remedy.
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Do Arbitrations Count as "Litigation" for Work Product Purposes?
Fed. R. Civ. P. 26(b)(3) extends protection to documents prepared "in anticipation of litigation or for trial." An obvious question presents itself — what counts as "litigation"?
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The Strange Fiction of Rule 30(b)(6)
Under Fed. R. Civ. P. 30(b)(6), a litigant seeking a corporate adversary's deposition may insist that the corporation designate an individual to testify on the corporation's behalf about designated topics. The concept makes sense, because otherwise the litigant may have to depose numerous employees (who may or may not have the pertinent knowledge). But in practice, Rule 30(b)(6) depositions essentially rely on a fiction.
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Corporations May Risk Waiving Privilege Protection When Communicating With Their Own Board Members
It seems obvious that corporations do not waive privilege protection by disclosing privileged communications to their own board members. But what about outside board members receiving such communications where they work or live?
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Texas Federal Court Applies the “At Issue” Waiver Doctrine
Clients can waive their privilege protection by intentionally or accidentally disclosing privileged communications, or by explicitly relying on privileged communications (such as pleading “advice of counsel” as a defense). They can also waive their privilege protection without disclosure and without such explicit references.
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