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Discovery
Sending Pre-Existing Historical Documents to a Lawyer Does Not Make Them Privileged, But…
It should go without saying that sending pre-existing historical documents to a lawyer does not automatically immunize them from discovery as privileged. If it did, clients could box up all of their files and send them to a lawyer ― thus avoiding the documents’ discovery.
Read MoreLitigation
Courts Disagree About the Key Work Product Doctrine’s Motivation Element
The work product doctrine requires: (1) litigation; (2) anticipation; and (3) motivation. And even though the work product doctrine rests on a single sentence in the Federal Rules, federal courts ironically take more varied approaches to the motivation element than they do toward the usually common law-based privilege protection.
Read MoreData Privacy
Federal Data Privacy Legislation: Will It Help the U.S. Remain Competitive in the Global Marketplace?
Cristin Traylor and Alice O'Donovan, with McGuireWoods, discuss the outlook for national privacy legislation in the U.S.
Read MorePrivilege
Common Interest Doctrine Participants Must Agree on the Doctrine's Applicability
The common interest doctrine can allow separately represented clients to avoid the normal privilege waiver implications of sharing privileged communications. But the doctrine is unpredictable and therefore risky.
Read MorePrivilege
Dartmouth Strikes Out on Privilege Claim for Email Threads
Courts analyzing privilege assertions for email threads often look for some indicia of that protection on the face of those emails. Thomas Spahn, partner with McGuireWoods, offers insight in his latest Privilege Point.
Read MorePrivilege
Some Courts Require Privilege Logs to Include Goofy Data
Although the Federal Rules do not explicitly require privilege logs, every court seems to do so. Most courts require such logs to include predictable data, but some courts require logs to provide data that seem largely irrelevant.
Read MorePrivilege
Court Applies the General Rule Finding a Privilege Waiver When Clients Disclose Privileged Communications to Public Relations Consultants
One of the most dangerous misperceptions among corporate clients is that disclosing privileged communications to such friendly outsiders as public relations consultants does not waive privilege protection as long as there is a confidentiality agreement in place. A steady stream of cases have rejected that approach, yet large corporate clients and sophisticated law firms continue to rely on that mistaken view.
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