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Sometimes we need reminding that the work-product doctrine’s protection is not absolute. A Florida federal court obliged. In a high-dollar lawsuit involving a Sea Ray yacht, the court found that the work-product doctrine covered Sea Ray’s investigation report but forced production because the plaintiff proved a substantial need. A lingering The post Capsized! Sea Ray Wins—Then Loses—Work Product Protection Over Investigator’s Report appeared first on Presnell on Privileges.…
That great philosopher, Yogi Berra, once quipped that “it ain’t over till it’s over.” Justice Amy Coney Barrett could have used that phrase to summarize her first signed majority opinion since joining the Supreme Court. Writing for a 7–2 majority, the newest justice ruled that the deliberative process privilege protects The post First Opinion: Justice Barrett Upholds Deliberative Process Privilege for Agency’s Draft–But Effectively Final–Decision appeared first on Presnell on Privileges.…
NFL Commissioner Roger Goodell once quipped that his job is “protecting the shield,” a phrase referencing the League’s iconic shield-shaped logo and conveying that he protects the game’s integrity. Perhaps it also means protecting the NFL’s attorney–client privilege. In a coverage dispute with several insurers over costs related to the The post Protecting the Shield: NFL Wins Privilege Dispute with Insurers over Defense of CTE Litigation appeared first on Presnell on Privileges.…
Shareholders have a statutory prerogative to access their corporation’s books and records in most, if not all, states. But does that right extend to the company’s privileged communications? The answer is yes, but only in narrowly tailored circumstances. And in a shareholder’s lawsuit to obtain Facebook’s privileged Board communications, the The post Facebook “Likes” Delaware Chancery’s Rejection of Shareholder’s Request for Privileged Board Minutes appeared first on Presnell on Privileges.…
Does anyone recall the origins of the “cc” option in our emails? Before the advent of copying machines, initially known ubiquitously as Xerox machines, when typing a letter lawyers would insert carbon paper between two sheets of paper. When the typewriter keys struck the top sheet, the carbon paper imprinted The post To CC, or Not to CC, That is the In-House Privilege Question appeared first on Presnell on Privileges.…
During an investigation interview by the State Medical Board of Ohio, a physician—thinking he must answer fully or lose his license—admitted sexual misconduct with three patients. At his later criminal trial, the physician asserted his self-incrimination privilege to exclude his admission. The Ohio Supreme Court, with a lone dissent, rejected The post No Self-Incrimination Privilege for Physician’s Admissions to Medical Board–Sex Crimes Conviction Upheld appeared first on Presnell on Privileges.…
In a lawsuit where the plaintiff seeks emotional-distress damages, the discovery of the plaintiff’s personal psychotherapist records is one thing. But is discovery of her pre-claim marriage-counseling records—that involve a third-party spouse—another? Not according to one court, which held that a wife’s intentional infliction of emotional distress claim—which requires proof The post Spouse Asserts Emotional-Distress Claim, Waives Privilege over Marriage Counseling Records appeared first on Presnell on Privileges.…
In the privilege world, in-house lawyers often encounter court presumptions that their internal communications automatically pertain to business, rather than legal, advice. And when so, courts apply a heightened standard when assessing an in-house counsel’s privilege claim. A federal court, applying Oklahoma privilege law, addressed this issue but ultimately decided The post Heightened Scrutiny? Court Rejects Marathon Oil’s Privilege Claim for Spreadsheet Created at In-House Lawyer’s Request appeared first on Presnell on Privileges.…
On January 13, 1981—40 years ago today—the U.S. Supreme Court issued its landmark decision in Upjohn Co. v. United States and forever redefined the corporate attorney–client privilege. This case, which has now been cited in close to 5,000 federal and state opinions, had it all.  An American-made story of corporate The post Happy 40th Anniversary, <em>Upjohn</em>! appeared first on Presnell on Privileges.…
What’s the PCAOB, you ask? It is the Public Company Accounting Oversight Board, and it has some power.  A non-profit organization established by Congress in 2002, the PCAOB oversees the audits of public companies and SEC-registered brokers and dealers. It has the authority to investigate companies—such as Ernst & Young—that audit The post A “Strange Appeal”: Fifth Circuit Decides First-Impression Privilege Issue Involving Ernst & Young and the PCAOB appeared first on Presnell on Privileges.…