Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Save to My Library
Look up keyword or section
Like this
1Activity

Table Of Contents

I. THE ATTORNEY-CLIENT PRIVILEGE
A. COMMUNICATIONS COVERED BY THE PRIVILEGE
1. Documents And Recorded Communications
4. Knowledge Of Underlying Facts Not Protected
5. Real Evidence And Chain Of Custody Not Protected
6. Communications From An Attorney To A Client Are Protected
1. Defining The Client
a. In general
b. Organizational Clients
(1) Defining The Organizational Client - Upjohn
(3) Former Employees Of Organizational Clients
(4) State Court Definitions Of The Organizational Client
(5) Privilege Within The Corporation
c. Government Agencies As Clients
2. Defining The Lawyer
a. In-House vs. Outside Counsel
b. Specially Appointed Counsel
c. Accountants As Privileged Parties
3. Defining Privileged Agents
a. Privileged Agents In General
b. Accountants As Privileged Agents
c. Public Relations Consultants
C. COMMUNICATIONS MUST BE INTENDED TO BE CONFIDENTIAL
1. Confidentiality In General
2. Confidentiality Within Organizations
3. Email And Confidentiality
1. Legal Purpose
2. Cases Of Mixed Purpose
E. ASSERTING THE PRIVILEGE
1. Procedure For Asserting The Privilege
a. Privilege Logs
b. Electronic Mail and Other Electronic Data: Cost Shifting
c. In Camera Review
(1) Appeal From Contempt Citation
(2) Mandamus
(3) Permissive Interlocutory Appeal
(4) Standard Of Review
4. Inferences Drawn From Assertion of Privilege
F. DURATION OF THE PRIVILEGE
G. WAIVING THE ATTORNEY-CLIENT PRIVILEGE
1. Burden of Proof
2. The Terminology Of Waiver
3. Consent, Disclaimer And Defective Assertion
4. Disclosure To Third Parties
a. Intentional Disregard Of Confidentiality
b. Disclosure Within A Corporation
(1) FRE 502(a): Limited Subject Matter Waiver
(2) FRE 502(b): Inadvertent Waiver
(3) FRE 502(c): Disclosures Made in a State Proceeding
b. “Disclosure” vs. “Use”
c. Pre-Litigation Disclosures
d. Partial Disclosure
7. Disclosure To The Government
8. Inadvertent Disclosure
9. Involuntary Disclosure
10. “At Issue” Claims And Defenses
a. Reliance On Advice Of Counsel
b. Lack Of Understanding
c. Diligence And Fraudulent Concealment
d. Extent Of “At Issue” Waiver
11. Witness Use Of Documents
a. Refreshing Recollection Of Ordinary Witnesses
b. Use Of Documents By Experts
H. DISCLOSURE TO THE GOVERNMENT
1. The “Culture of Waiver” & the Legal Community’s Response
a. Legal Community Response
5. Selective Waiver
b. Recent Decisions in Support of Selective Waiver
c. The Current Trend – Rejecting Selective Waiver
d. Statutory Exception
6. FRE 502 – Limitation on Scope of Waiver
7. FRE 502 Protections In Other Proceedings: Practical Limitations
I. EXCEPTIONS TO THE ATTORNEY-CLIENT PRIVILEGE
1. The Crime-Fraud Exception
2. Exception For Suits Against Former Attorney
3. Fiduciary Exception
a. The Garner Doctrine
b. Extension Of Garner Beyond Derivative Suits
c. Disclosure Of Special Litigation Committee Reports
4. Internal Communications with Law Firm In-House Counsel
A. JOINT-DEFENSE PRIVILEGE
1. Waiver By Consent
2. Waiver By Subsequent Litigation
3. In re Teleglobe
B. COMMON INTEREST DOCTRINE
3. Extent Of Waiver
1. Protection Of Insurer/Insured Communications From Third Parties
2. The Insurer’s Access To The Insured’s Privileged Communications
3. Privilege Issues Arising Between Insurers And Reinsurers
A. LEGAL COMMUNICATIONS
B. WITNESS INTERVIEWS
C. EXPERTS
D. CORPORATE EMPLOYEES
E. DOCUMENT DISCOVERY
F. DISCLOSURE TO GOVERNMENT AGENCIES
G. ELECTRONIC COMMUNICATIONS
IV. THE WORK PRODUCT DOCTRINE
A. DEFINING WORK PRODUCT
1. The Intangible Work Product Doctrine
a. Required Imminence Of Litigation
b. Preparation Of Documents Must Be Motivated By Litigation
(1) Primary Motivating Factor Test
(2) “Because Of” Test
(3) “For Use In Litigation” Test
B. ORDINARY AND OPINION WORK PRODUCT
1. Opinion Work Product
a. Selection Of Documents As Opinion Work Product
a. Underlying Facts By Themselves Are Not Protected
3. Mixed Opinion And Ordinary Work Product
C. ASSERTING WORK PRODUCT PROTECTION
D. SCOPE OF WORK PRODUCT PROTECTION
1. Protection Of Ordinary Work Product
a. “Substantial Need”
b. “Undue Hardship”
2. Protection Of Opinion Work Product
3. Protection Of Mixed Opinion And Ordinary Work Product
E. WAIVER OF WORK PRODUCT PROTECTION
1. Consent, Disclaimer And Defective Assertion
2. Selective Disclosure To Third Parties and Adversaries
3. Disclosure To Auditors
4. Partial Waiver: Extent Of Waiver
5. Selective Waiver: Reporting To Government Agencies
6. Inadvertent Disclosure
7. “At Issue” Waiver
8. Testimonial Use
9. Use Of Documents By Witnesses And Experts
a. Refreshing Recollection Of Fact Witnesses
F. EXCEPTIONS TO WORK PRODUCT PROTECTION
a. Ordinary Work Product
b. Opinion Work Product
2. Exception For Attorney Misconduct
3. Fiduciary Exception: The Garner Doctrine
B. WITNESS STATEMENTS
C. LEGAL INVESTIGATIONS
VI. SELF-CRITICAL ANALYSIS PRIVILEGE
VII. GOVERNMENTAL DELIBERATIVE PROCESS PRIVILEGE
A. ELEMENTS OF THE PRIVILEGE
1. Intra- And Inter-Agency Communications
2. Predecisional Communications
3. Deliberative Documents
4. Factual Material May Not Be Privileged
B. LIMITATIONS OF THE PRIVILEGE
1. Balancing Test
2. Exceptions To Balancing Test
a. Governmental Misconduct
b. Decision-Making Process At Issue
C. WAIVER OF THE PRIVILEGE
D. PROCESS OF INVOKING THE PRIVILEGE
1. Delegation Of Authority To Assert The Privilege
2. Burden Of Proof
3. Affidavits And “Vaughn Index”
4. In Camera Review
E. EXTENSIONS OF THE DELIBERATIVE PROCESS PRIVILEGE
1. Local Legislators
2. State Agencies
3. Decisional And Mental Processes
4. Bank Examinations
A. INSTRUCTIONS NOT TO ANSWER
C. DEPOSITION PREPARATION
IX. INTERNAL INVESTIGATIONS
B. THE ATTORNEY-CLIENT PRIVILEGE
1. Only Communications Protected
2. Privilege May Extend To Consultants
3. Intended Beneficiary Of The Privilege
C. WORK PRODUCT DOCTRINE
1. Witness Statements
2. Employment Discrimination Cases: “At Issue” Waiver
X. SPECIAL PROBLEM AREAS
A. CHOICE OF LAW: IDENTIFYING THE APPLICABLE LAW
B. SHAREHOLDER LITIGATION
C. ETHICAL CONSIDERATIONS
1. Dual Representation
2. Former Employees
D. POST-ENRON CONSIDERATIONS
E. LOBBYING
1. Attorney-Client Privilege
2. Attorney Work Product
XI. PATENTS
A. PATENTS AND LEGAL ADVICE
1. Scope Of The Waiver
2. Bifurcating Trial And Staying Discovery
0 of .
Results for:
No results containing your search query
P. 1
Protecting Confidential Information in Lawsuits

Protecting Confidential Information in Lawsuits

Ratings: (0)|Views: 179 |Likes:
Published by sonjascribd
How to assert privilege for documents and other materials when you're involved in the discovery process
How to assert privilege for documents and other materials when you're involved in the discovery process

More info:

Categories:Business/Law
Published by: sonjascribd on Jun 26, 2013
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

02/11/2014

pdf

text

original

You're Reading a Free Preview
Pages 8 to 115 are not shown in this preview.
You're Reading a Free Preview
Pages 123 to 193 are not shown in this preview.
You're Reading a Free Preview
Pages 201 to 271 are not shown in this preview.
You're Reading a Free Preview
Pages 279 to 374 are not shown in this preview.
You're Reading a Free Preview
Pages 382 to 387 are not shown in this preview.

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->