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Privilege
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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Privilege Implications of Spousal Communications
Most courts hold that the incredibly fragile attorney-client privilege can be waived by disclosure even to family members (such as Martha Stewart’s disclosure to her own daughter). The separate "spousal privilege" recognized in many states complicates the analysis with those family members.
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Southern District of Ohio Acknowledges the "Fiduciary Exception's" Applicability to ERISA Communications — With a Twist
Under what is called the "fiduciary exception," the law essentially deems a fiduciary's beneficiary to be the fiduciary’s lawyer’s actual "client." This normally enables the beneficiary to access communications between the fiduciary and her lawyer about fiduciary functions. Most "fiduciary exception" cases involve ERISA fiduciaries.
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