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Must Read IADC Article–Subject Matter Waiver and the Attorney-Client Privilege
The subject matter waiver doctrine associated with evidentiary privileges, most notably the attorney-client privilege, is relatively underdeveloped yet has frightening consequences. And while some...
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Selling Computers to 3rd Party Equals Waiver of Attorney-Client Privilege
In a decision that makes you think “well, of course,” the U.S. District Court for the Eastern District of Tennessee held that selling business computers to a third party constitutes a waiver of any...
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Major Decision on Subject Matter Waiver Doctrine
In a major decision concerning privilege waiver, the Illinois Supreme Court, in Center Partners, LTD v. Growth Head GP, LLC, ruled that the subject matter waiver doctrine does not apply to privileged...
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Evidentiary Privileges Protect DoJ Legal Memo Allegedly Supporting U.S....
In an opinion issued on January 2, 2013, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York ruled that the Justice Department may withhold from disclosure a legal...
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Privileges Protect OLC Memos Supporting Obama’s Recess Appointment of CFPB...
Citing the deliberative process privilege, SDNY Judge Rakoff thwarted the New York Times’ attempt to obtain a copy of Department of Justice Office of Legal Counsel’s legal memoranda allegedly...
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Privileges, Clawbacks, and Inadvertent Disclosures–Is Technology the Solution?
E-discovery requirements raise at least two significant concerns for in-house counsel: (1) controlling costs associated with collection and production; and (2) inadvertently producing privileged...
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Implied Waiver Expanded to Communications with Third-Party Attorneys
In an attorney malpractice case, a Georgia federal court, predicting Georgia law, expanded the implied waiver doctrine to the client’s communications with third-party attorneys regarding the same...
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Caution! Inadequate Privilege Log Could Result in Waiver
The Federal Rules of Civil Procedure and many corresponding state civil procedure rules require parties withholding privileged documents to prepare a privilege log identifying the withheld documents...
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Privilege Covers Google Consultant as “Functional Equivalent of Employee”
For jurisdictions following the Upjohn subject-matter test, the corporate attorney–client privilege protects an employee’s communications with corporate counsel so long as the communications are...
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Important Ruling: Attorney-Client Privilege Exists for Companies in...
Does the corporate attorney-client privilege continue to exist when a company falls into liquidation proceedings? Although the U.S. Supreme Court provided some guidance on this issue in CFTC v....
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Excellent DRI Article on Duty of Confidentialty and FRE 502 Waiver Preventions
Federal Rule of Evidence 502 authorizes parties to enter nonwaiver orders and nonwaiver agreements in an attempt to remedy inadvertent disclosures and avoid waiver of the attorney-client privilege or...
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Article Challenges Basis for Business Negotiations Exception to...
Courts are increasingly addressing whether the subject-matter waiver doctrine applies to disclosure of privileged communications in a non-litigation setting, such as disclosures made during business...
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Privilege Protection and the CFPB–Part I
The Dodd–Frank Act established the Bureau of Consumer Financial Protection (CFPB) to regulate certain financial institutions and related entities subject to various consumer financial-protection laws....
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Privilege Protection and the CFPB–Part II
Introduction The Dodd–Frank Act established the Bureau of Consumer Financial Protection (CFPB) to regulate certain financial institutions and related entities subject to various consumer...
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Privilege Protection and the CFPB—Part III
Introduction The Dodd–Frank Act established the Bureau of Consumer Financial Protection (CFPB) to regulate certain financial institutions and related entities subject to various consumer...
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Lack of Privilege Log Waives Accountant–Client Privilege
A Tennessee federal court ruled that a defendant’s failure to provide a privilege log waived its state-law accountant–client privilege. In this diversity case, the court ruled that the procedural...
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Clawback Agreement Does Not Prevent Waiver of (Inadvertent) Disclosure of...
A federal district court ruled that a lawyer’s purportedly inadvertent disclosure of privileged documents to testifying expert results in privilege waiver. The waiver occurred even though the parties...
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Court Imposes Strict Privilege-Log Standards for Deliberative Process Privilege
As discussed in an earlier post, courts are increasingly finding privilege waiver when a party either fails to submit a privilege log or submits an insufficient one. And a Delaware court has now...
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Bob Marley and Privilege Waiver
In a case involving licensing rights for early musical recordings of Bob Marley and the Wailers, the 9th Circuit ruled that an antitrust defendant’s assertion of the Noerr–Pennington defense does not...
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Good Article on Subject Matter Waiver
In November 2012, the Illinois Supreme Court adopted new Illinois Rule of Evidence 502 regarding subject matter waiver and issued its signficant subject matter waiver decision in Center Partners, Ltd....
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