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Privilege
Courts Describe the Crime-Fraud Exception to Privilege Protection
One glaring disagreement among state courts involves former corporate directors' right to access documents they possessed when they served as directors. Common sense might lead one to think that directors enjoyed access when they were loyally serving a corporation, but should be denied access if they become adverse to that corporation.
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Can Now-Adverse Former Corporate Directors Access Their Old Corporate Files?
One glaring disagreement among state courts involves former corporate directors' right to access documents they possessed when they served as directors. Common sense might lead one to think that directors enjoyed access when they were loyally serving a corporation, but should be denied access if they become adverse to that corporation.
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Client Consultants' Role Can Change Over Time, With Differing Waiver Implications
Some lawyers erroneously assume that the fragile attorney-client privilege protection normally survives disclosure (by them or by their clients) to the client’s consultant/agent. That can be true in very limited circumstances, depending on that consultant/agent’s role — which can change over time.
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Pennsylvania Federal Court Helpfully Distinguishes Between Privilege and Work Product Protection
The last several Privilege Points have emphasized the different waiver implications of disclosing privileged communications and protected work product. For the most part, the distinctions rest on the very different societal benefits and costs of the ancient attorney-client privilege and the relatively new work product doctrine.
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Waiver Implications of Disclosing Work Product to the Government
Last week's Privilege Point described a court's refreshingly correct acknowledgment that disclosing work product to friendly third parties does not waive that robust protection — in contrast to the more fragile privilege protection.
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Some Courts Understand Work Product Waiver, and Some Don’t
Unlike the very fragile attorney-client privilege (which can be waived even by disclosure to family members), the more robust work product doctrine protection survives disclosure to friendly third parties.
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Are All Government Agencies Part of One “Client” for Privilege Purposes?
Courts take differing positions on the "client's" identity in the government setting. Among other things, such differing positions might affect the waiver implications of one government agency disclosing its privileged communications to another government agency.
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