More Privilege Articles

Privilege

How Can Companies Successfully Assert the "Functional Equivalent" Doctrine?

Starting in 1994, most courts have recognized an enormously important privilege doctrine – treating as if they were full-time corporate employees independent contractors who are the "functional equivalent" of such employees. As companies' outsourcing has dramatically increased since then, this "functional equivalent" doctrine has become a key weapon in corporations' privilege arsenal.

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Privilege

Does Sharing Work Product With the Government Always Waive That Protection?

Apart from an aberrational case now and then, most courts find that companies disclosing privileged communications to the government waive that fragile protection. But companies do not always waive the more robust work product protection if they disclose work product to the government – if the government acts as an ally rather than as an adversary.

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Privilege

Fast Take: Application of Privilege to Consultants to Corporations Raises Questions (Part II)

In a previous article on p. 17 of the May/June 2018 issue, I summarized two recent cases in which courts held that communications between corporations and their consultants were not subject to attorney-client privilege. However, some cases take a more favorable view.

For example, in...

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