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Privilege
Northern District of Texas Protects Communications With Former Employees
Lawyers representing corporations or other entities during investigations routinely interview former employees. Those intangible interviews and any resulting documentation presumably deserve work product protection if the entity reasonably anticipates litigation at the time. But what about the absolute attorney-client privilege?
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Another Court Finds Public Relations Consultants Outside Privilege Protection
One of the greatest risks to corporate clients' privilege protection is their executives' and even their lawyers' misunderstanding about the availability of privilege protection for communications with public relations consultants. A remarkable number of cases address this scenario, and almost without exception courts reject privilege protection for communications with, or shared with, such consultants.
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Drawing the Line Between a Privileged Communication’s Occurrence and Its Content
All or most courts assessing deposition objections distinguish between questions focusing on: (1) the occurrence of a privileged communication; and (2) its content. Not surprisingly, that line can sometimes be hard to draw.
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State Supreme Court Seems to Ignore Its Own Work Product Rule
Because what is called "opinion work product" deserves higher protection than fact work product (and in many courts enjoys "absolute or nearly absolute" protection), litigants understandably seek to withhold documents on that basis. Fed. R. Civ. P 26(b)(3) explains that such highly protected opinion work product can be created by "a party's attorney or other representative." (Emphasis added.)
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Another Difference Between the Attorney-Client Privilege and the Work Product Doctrine
The ancient attorney-client privilege protection provides absolute but fragile immunity from discovery. The relatively new litigation-related work product doctrine provides limited but robust immunity from discovery. Lawyers should always be on the lookout for both types of protection.
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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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