Thomas E. Spahn

Privilege

Thomas E. Spahn | McGuireWoods LLP

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.

Privilege

Thomas E. Spahn | McGuireWoods LLP

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"?

Privilege

Thomas E. Spahn | McGuireWoods LLP

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.

Privilege

Thomas E. Spahn | McGuireWoods LLP

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?

Privilege

Thomas E. Spahn | McGuireWoods LLP

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.