Privilege

Privilege

Thomas E. Spahn | McGuireWoods LLP

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.

Privilege

Thomas E. Spahn | McGuireWoods LLP

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.

Privilege

Thomas E. Spahn | McGuireWoods LLP

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.