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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.…
The year 2020.  How can you describe it without uttering the now-ubiquitous phrase “these uncertain times”?  What is not uncertain is that, despite the pandemic’s litigation-slowing effect, many privilege issues continued to surprise and challenge us. We saw major decisions in the insurance and healthcare fields, procedural mistakes, ethical meltdowns, The post Privileges in 2020–Year in Review appeared first on Presnell on Privileges.…
It’s true; or it can be. The attorney–client privilege—in limited circumstances—protects communications between a company’s non-lawyer employees. But those circumstances remain the subject of debate among courts. A Texas federal court, breaking with a sister court, rejected as “outlandish” a privilege argument for communications between two employees—even though they discussed The post Outlandish! Court Rejects Privilege for Emails between Non-Lawyer Employees appeared first on Presnell on Privileges.…
Civil proceedings that follow criminal actions can produce fiddly privilege situations. When a failed candidate in West Virginia’s 2018 Republic primary obtained a Venue Opinion Study to help transfer a criminal action to a different locale, Fox News—in a later civil action—sought “any and all” communications underlying the study–and more. The post Fox News, Decisionquest, and Privilege Protection in West Virginia Politics appeared first on Presnell on Privileges.…
A federal court held that an EEOC trial lawyer violated her obligations under FRCP 26(b)(5)(B)—the inadvertent-disclosure rule—when she reviewed putatively privileged emails involving an in-house lawyer at George Washington University. The ruling came even though the lawyer did not receive the privileged information through an inadvertent document production by GW. The post EEOC Lawyer Reads GW’s Privileged Emails–Violates FRCP 26(b)(5)(B). What about Ethics Rules and Sanctions? appeared first on Presnell on Privileges.…
In a much-anticipated decision that attracted the attention of several amici, the Washington Supreme Court reversed a lower court’s ruling and held that the attorney–client privilege protects communications between a corporate healthcare provider’s attorney and its non-employee physician–agents. In doing so, the court adopted the functional-equivalent doctrine and, in a The post Major Decision: Washington Sup. Ct. Upholds Privilege for Corporate Healthcare Providers and Their Physician–Agents appeared first on Presnell on Privileges.…
In a 7–2 decision that will raise eyebrows in the insurance and in-house communities, the Mississippi Supreme Court rejected an insurer’s privilege claim over legal advice its in-house lawyer provided its claims adjuster regarding a coverage decision. The privilege rejection came even though the insurer never disclosed the communication’s substance The post Major Decision: Miss. Sup. Ct. Rejects Privilege for Insurer’s In-House Lawyer’s Emails with Claims Adjuster appeared first on Presnell on Privileges.…
Conducting internal privileged investigations is a complex, nuanced, and rarely mastered art. Many investigation-related questions arise when a company becomes aware that internal conduct could give rise to civil or criminal liability. Should the company investigate? Who should oversee the investigation and conduct it? What additional issues must counsel consider The post ACTL Publishes Excellent Practice Manual for Conducting Privileged Internal Investigations appeared first on Presnell on Privileges.…