Privilege

Privilege

Thomas E. Spahn | McGuireWoods LLP

Many courts have dealt with corporate and other organizational entities’ constituents’ ability to waive those entities’ privilege protection. In the corporate context, most courts hold that any constituent (even middle management, etc.) trusted to handle privileged communications can waive the corporation’s privilege -- if she acted in the corporation’s interest rather than adverse to its interest.

Privilege

Thomas E. Spahn | McGuireWoods LLP

McguireWoods' previous Privilege Point described a favorable Delaware state court decision finding that a post-reorganization trust and its largest stakeholder could rely on the common interest doctrine to protect their communications – because they shared a common legal rather than just a common financial interest. Highlighting the unpredictability of the common interest doctrine, another Delaware state court took a much narrower view just a few months later.

Privilege

Thomas E. Spahn | McGuireWoods LLP

The common interest doctrine occasionally allows separately represented clients to share privileged communications without waiving that fragile protection. Nearly all courts require that the common interest doctrine participants share a common legal interest, rather than merely a common financial interest. McGuireWoods partner, Thomas Spahn, offers insight in his latest privilege point.