In Landmark E-Discovery Decision For North Carolina, Judge Rules Attorney-Client Privilege Waived

In a classic understatement, Judge Gale said in a North Carolina Business Court opinion last Thursday that " North Carolina case law addressing problems inherent in electronic discovery. . .is not yet well developed ." Op. ¶50. But in Blythe v. Bell , 2012 NCBC 42 [ enhanced version available...

Duane Morris LLP: California Supreme Court Issues Key Ruling On Protection Of Witness Statements

The California Supreme Court addressed vital issues related to attorney work-product protection for statements and interviews of independent witnesses in Coito v. Superior Court , Case No. S181712 (June 25, 2012) [ enhanced version available to lexis.com subscribers ]. The court conducted a comprehensive...

Troutman Sanders LLP: 'Waive'-ing Goodbye To Privilege Protection

The attorney-client and work product privileges are some of the oldest and most important evidentiary privileges in our legal system. The attorney-client privilege, in particular, is regarded by some as almost "sacred." Given their importance, you would think that these privileges would be...

Troutman Sanders LLP: 'Waive'-ing Goodbye to Privilege Protection

The attorney-client and work product privileges are some of the oldest and most important evidentiary privileges in our legal system. The attorney-client privilege, in particular, is regarded by some as almost "sacred." Given their importance, you would think that these privileges would be...

What is More Sacred in Unraveling a Ponzi Scheme: The Attorney-Client Privilege or the Government’s Right to Know?

The consequences of Bernie Madoff's massive Ponzi scheme will linger for years and will test the boundaries of what we thought were established limits. The latest struggle is between the bank that handled most of Madoff's banking, JP Morgan, and the Office of the Comptroller of the Currency...

Internal Investigations: Mistrial Declared After Investigation Notes Produced DURING TRIAL

Often, when faced with the need to investigate an employee's complaint of harassment or discrimination, employers will ask their regular company counsel to investigate the allegation and defend the company if litigation ensues. The recent mistrial declared by Judge Adams in the United States...

Absent 'Reasonable Precautions,' Inadvertently Produced E-mails Lose Attorney-Client Protection

In a tough "horse is out of the barn" ruling, a federal court in Ohio held that the unintentional release of 347 e-mails that had been exchanged among members of a corporate litigant's in-house legal team constitutes a waiver of attorney-client privilege over those emails. Ruling in...

To Define “Data Privacy,” You Will Need a Map, a Calendar and a Clock

What is "data privacy"? It is a lot like asking what "food" is. The answer depends on where you are, who you are, what time it is and how hungry you are. Breakfast in Japan often comprises miso soup, grilled fish and white rice. In America it might be eggs, bacon, toast or Rice Krispies...

Chancery Addresses “At Issue” Exception to Attorney/Client Privilege

In re Comverge, Inc., Shareholders Litigation , C.A. No. 7368-VCP (Del. Ch. April 10, 2013) [ an enhanced version of this opinion is available to lexis.com subscribers ]. Issue Presented : Whether the attorney-client privilege was a defense to a motion to compel documents. Short Answer : ...

Attorney/Client Privilege and Work Product Doctrine Again Addressed by Delaware Court of Chancery

AM General Holdings LLC v. The Renco Group, Inc ., C.A. No. 7639-VCN (Del. Ch. April 18, 2013). A prior Chancery decision in this case was highlighted on these pages at this link. Issue Addressed : Whether the attorney/client privilege and the work product doctrine are defenses to a motion...

Do Law Firms Have an In-House Privilege?

There is often a discussion about the retention of outside counsel to lead an investigation of alleged violations of the US Foreign Corrupt Practices Act (FCPA) so that the company may maintain the attorney-client privilege. But is there some other privilege which might be lurking in this relationship...

There's No Attorney-Client Privilege for the Communication of Facts

It's been nearly ten years since the North Carolina Supreme Court decided a case involving the attorney-client privilege. That case was In re Miller , 357 N.C. 316, 584 S.E.2d 772 (2003) [ an enhanced version of this opinion is available to lexis.com subscribers ], which raised the question whether...

Workplace Investigations: $300,000 in Sanctions Highlights Risks of Using Employer’s Regular Counsel

Most employers and their regular counsel and HR managers are by now well aware of an employer's legal duty to promptly, thoroughly and impartially investigate any complaint of perceived discrimination, harassment, or retaliation. They also generally understand that an employer may avoid liability...

Ignorance Is Risk: Impact of NSA Monitoring Technologies On Attorney-Client Communications, Part 1

By Thomas H. Clarke, Jr., and Lael D. Andara Knew or should have known, a standard often applied in a myriad of legal context, could soon be the one applied to attorneys who ignore the risks associated with communicating with clients using modern technologies (i.e., text messaging, emails, telephone...

Ignorance Is Risk: Impact of NSA Monitoring Technologies On Attorney-Client Communications, Part 1

By Thomas H. Clarke, Jr., and Lael D. Andara Knew or should have known, a standard often applied in a myriad of legal context, could soon be the one applied to attorneys who ignore the risks associated with communicating with clients using modern technologies (i.e., text messaging, emails, telephone...

Ignorance Is Risk: Impact of NSA Monitoring Technologies On Attorney-Client Communications, Part 1

By Thomas H. Clarke, Jr., and Lael D. Andara Knew or should have known, a standard often applied in a myriad of legal context, could soon be the one applied to attorneys who ignore the risks associated with communicating with clients using modern technologies (i.e., text messaging, emails, telephone...

Ignorance Is Risk,: Response Options To NSA Monitoring Of Attorney-Client Communications, Part 2

By Thomas H. Clarke, Jr., and Lael D. Andara Click here to read Ignorance Is Risk: Impact of NSA Monitoring Technologies On Attorney-Client Communications, Part 1 . Faced with the very real possibility that every keystroke, mouse click, image, and audio/video file is subject to monitoring, we...

Ignorance Is Risk,: Response Options To NSA Monitoring Of Attorney-Client Communications, Part 2

By Thomas H. Clarke, Jr., and Lael D. Andara Click here to read Ignorance Is Risk: Impact of NSA Monitoring Technologies On Attorney-Client Communications, Part 1 . Faced with the very real possibility that every keystroke, mouse click, image, and audio/video file is subject to monitoring, we now...

Ignorance Is Risk,: Response Options To NSA Monitoring Of Attorney-Client Communications, Part 2

By Thomas H. Clarke, Jr., and Lael D. Andara Read Ignorance Is Risk: Impact of NSA Monitoring Technologies On Attorney-Client Communications, Part 1 . Faced with the very real possibility that every keystroke, mouse click, image, and audio/video file is subject to monitoring, we now address...

Common Interest" Privilege Considered By The NC Business Court

How much of an ownership interest does a parent have to have in a subsidiary for the attorney-client privilege to extend to communications between the susidiary and the lawyer for the parent company? Judge Gale pondered that question in SCR-Tech v. Evonik Energy Services LLC, 2013 NCBC 42 [ an enhanced...

Delaware Chancery Court Finds No Privilege for Email Sent from Work Account

Does an employee who communicates with his lawyer from a company email account waive the attorney-client privilege with respect to those communications? The answer is not terribly well settled—not in Delaware and not in most jurisdictions. But a recent decision by the Delaware Court of Chancery...

Must A Living Person Disclose Their Estate Plan: The Limits of NY CPLR § 4503

By Jennifer F. Hillman, Esq. Most communications between an attorney and client are privileged pursuant to New York Civil Procedure Act (“CPLR”) § 4503. There is, however, a carve-out in proceedings concerning the probate, validity or construction of a will. Pursuant to CPLR §...

William A. Ruskin: Preserving The Attorney-Client Privilege For In-House Counsel

By William A. Ruskin Courts impose on corporate entities the burden of demonstrating that communications and documents shared with in-house counsel are protected by the attorney-client privilege. When companies cannot satisfy this burden, courts have ordered production of emails involving legal counsel...

Workplace Investigations: Tips & Templates for Preserving the Privilege

Although the attorney-client privilege is firmly established as a legal doctrine that protects confidential communications between lawyers and their clients, a recent federal court decision stands as a stark reminder that its application is not absolute. In United States ex rel. Barko v. Halliburton...

When Internal Documents Aren’t Covered by Attorney-Client Privilege

A decision issued on March 6 by the U.S. District Court for the District of Columbia serves as a stark reminder that internal investigations must be carefully structured and executed to garner the protection of the attorney-client privilege and attorney work product doctrine, especially when non-attorneys...