More Privilege Articles


Second Circuit Applies the "Touch Base" Test

Most other countries do not permit the type of intrusive discovery U.S. companies face. But occasionally discovery in U.S. litigation seeks communications to or from the U.S., or even purely overseas communications -- requiring U.S. courts to assess which country's privilege protection applies.

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Several Courts Allow Categorical Privilege Logs

One widespread misperception about attorney-client privilege and work product doctrine assertions is that the Federal Rules require a privilege log. As one court bluntly put it, "no where in Fed. R. Civ. Pro. 26(b)(5) is it mandated that a document-by-document privilege log is required, if a party seeks to withhold documents based on privilege or work product."

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SDNY Correctly Protects Preliminary Drafts of Publicly Disseminated Documents

Not surprisingly, attorney-client privilege protection evaporates once a client and her lawyer agree that a document can be disclosed to outsiders -- even before it is disclosed. But some courts have inexplicably applied this principle to preliminary drafts.

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