Thomas E. Spahn
Partner
McGuireWoods LLP
Thomas Spahn is a partner with McGuireWoods and practices as a commercial litigator. He regularly advises Fortune 500 companies on high-stake issues. Spahn also advises in-house counsel on ethics issues including conflicts of interest and confidentiality.
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Recently by Thomas E. Spahn
Privilege
Courts Differ on the Meaning of the Work Product Rule’s "Anticipation" and "Litigation" Elements: Part I
Fed. R. Civ. P. 26(b)(3)'s and parallel state work product rules apply to documents and tangible things prepared "in anticipation of litigation or for trial." But the Rule does not specify the degree of required "anticipation."
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What Is the Garner Doctrine, and Why Is It Dangerous?
Under what is called the "fiduciary exception," a fiduciary's beneficiary sometimes may access otherwise privileged communications between the fiduciary and its lawyer – based on the law's artificial identification of the beneficiary as the fiduciary's lawyer's true "client."
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The Privilege Always Protects Communications Among Jointly Represented Corporate Affiliates, Right?
Corporate parents' in-house lawyers' joint representations of the parent and its wholly-owned subsidiaries should cinch their communications' attorney-client privilege protection. Additional grounds for such privilege protection (in a litigation setting) could also come from the obvious "common interest" between a corporate parent and its wholly-owned subsidiaries – which by definition must comply with their parent's direction.
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Adversaries on Some Litigation Issues Might Share a "Common Interest" on Other Issues
The unpredictable and frequently rejected common interest doctrine can sometimes avoid what would otherwise be a waiver when separately represented litigants share privileged communications or documents. Many clients and even lawyers erroneously believe they automatically can assure such a non-waiver benefit simply by entering into a common interest agreement.
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Court Issues Strange Intangible Work Product Decision
Although the federal work product rule and parallel state work product rules extend only to "documents and tangible things," most courts also protect intangible work product such as oral communications – at least to the extent that they reflect a lawyer's thought process. But it can be difficult to distinguish between such intangible work product and historical facts, which of course do not deserve any protection.
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