Privilege

Protecting privileges.

August 30, 2021

Expanding Privilege Protection to Fill the Gaps Left by Fed.R.Evid. 502

Federal Rule of Evidence 502 was passed in 2008 by a unanimous vote in the Senate, overwhelmingly in the House, and signed by President George W. Bush.  Anything with that degree of support has to be good and Rule 502 provides substantial and necessary benefits. An excellent publication describes the rule in […]
August 27, 2021

Waiver of Work Product Protection in Deposition Preparation Sessions

In Johnson v. Baltimore Police Dept., 2021 WL 1985014 (D. Md. May 18, 2021) (Boardman, J.), the Court addressed waiver of work product protection by showing documents to a third-party witness in deposition preparation. Twice before the deposition, plaintiff’s counsel showed three documents, several photographs, and one audio file to the deponent.  […]
March 25, 2021

Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun

It is axiomatic that privilege logging is one of the most time-consuming and risky aspects of e-discovery. I wrote about itemized and categorical privilege logs in M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), Chap. 5.  In an itemized log, every email and every attachment […]
March 16, 2021

Electronic Communications to a Class Action Advertising Web Site Deemed Not Privileged

Top Class Actions (“TCA”) ran a website “that provides information, among other things, about class actions, class action settlements, and class action investigations.”  The site contained attorney advertising and articles concerning class actions and mass torts.  Defendants served a subpoena on TCA seeking, among other things, communications from claimants and with law […]
March 12, 2021

Can a Lawyer Ethically “Reply All” to an Opposing Client?

New Jersey Ethics Opinion 739 (Mar. 10, 2021), again points to the dangers of copying one’s client on communications to opposing counsel. I discussed the ethical dangers of attorneys using “reply all” in a prior post.  If an attorney “cc’s” the attorney’s client on a communication to opposing counsel, what happens when […]
February 14, 2021

Marc Hirschfeld’s Legal Week Presentation

Marc Hirschfeld’s presentation at Legal Week, “Navigating the Pitfalls of E-Discovery for Boutique Litigators,” is well worth watching on Vimeo and Legal Week. Marc is the owner and president of Precision Legal Services.  Marc and I have collaborated on many projects. Marc discusses a number of topics in the one-hour video.  Among […]
January 16, 2021

Courts Cannot Order a “Quick Peek” Without Consent

In U.S. Equal Employment Opp. Comm’n. v. The George Washington University, 2020 WL 3489478 (D.D.C. June 26, 2020), the court held that a party cannot be ordered to provide a “quick peek” without its consent.  In doing so, it carefully analyzed and rejected contrary precedent. In Fairholme Funds, Inc. v. U.S., 134 […]
December 27, 2020

Searching for Privileged Information

As if searching for privileged information prior to production was not already difficult enough, Jessica A. Huse, Esq., has blogged about a potential complication.  See J. Huse, “Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys” (Gibbons Law Alert Dec. 22, 2020). […]
December 1, 2020

When is a Litigation Hold Notice Discoverable?

A recent ABA practice point described Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 2020 NY Slip Op 20133, ¶ 2, 69 Misc. 3d 209, 126 N.Y.S.3d 873, 875 (Sup. Ct.) (decided June 9, 2020) (Masler, J.). In Radiation Oncology, the court addressed when a litigation hold […]