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Privilege

Court Addresses “Client” Identity in a Closely Held Corporation

Identifying the "client" in closely held corporations can be difficult, but critical. That determination can affect both privilege protection for communications, and the right to access privileged communications between the corporation’s management and its lawyer.

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Privilege

S.D.N.Y. Takes a Demanding View of the “Functional Equivalent” Doctrine

Under the common law "functional equivalent" doctrine, corporations sometimes may claim privilege protection for communications to or from a non-employee who is the "functional equivalent" of an employee. This common sense privilege expansion can be extremely helpful for corporations reducing employee head count and outsourcing some important functions.

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Privilege

Where Should Lawyers Look for the Applicable Attorney-Client Privilege?

The attorney-client privilege originated in Roman law, and flourished under what John Adams labeled "that most excellent monument of human art, the common of law of England." But in America, some states articulate their key privilege in statutes, some in rules, some in pure common law and some with a mixture of those.

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Privilege

State Court Takes a Narrow View of the Common Interest Doctrine

Under the common interest doctrine, separately represented clients may sometimes contractually avoid the normal waiver impact of disclosing privileged communications to each other. But federal and state courts take widely varying approaches to this helpful (but dangerously imprecise) waiver-avoidance arrangement.

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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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Privilege

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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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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