We know that federal common law recognizes an evidentiary privilege protecting from discovery confidential communications between spouses. The privilege’s purpose, of course, is to promote and foster marital harmony. But when spouses are also business partners, may they use the
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Privilege Precludes Trial Testimony of In-House Lawyer Who Drafted Company Response to Discrimination Charge
Discussing the corporate attorney–client privilege, the Supreme Court in Upjohn Co. v. U.S., 449 U.S. 383, 395–96 (1981), stressed that “[a] fact is one thing and a communication concerning that fact is an entirely different thing.” A Florida appellate court…
Court Imposes “Significant Waiver” for Disclosure of Privileged Investigation to DOJ and SEC
It is often a tough dilemma. A corporate entity conducts an internal investigation into alleged wrongdoing by corporate executives and must decide whether to disclose the investigation results to a governmental agency. On the one hand, disclosing the investigation could…
My 400th Post: Court Applies Different Waiver Rules for Work-Product Doctrine and Attorney–Client Privilege
For my 400th post, let’s discuss a decision from my home state addressing a sometimes forgotten distinction in the area of waiver. Courts generally find waiver of, for example, a contract provision, a claim, or a constitutional guarantee, when there…
Sharpen Your Privilege Axe for Board Minutes and Reports
One of the greatest frontier lawyers, Abraham Lincoln, once made the thought-provoking statement that, if asked to chop down a tree within six hours, he would spend the first four hours sharpening his axe. The future president’s message, of course,…
Hobson’s Choice? Batson Challenge, Jury-Selection Notes, and Work-Product Waiver
A lawyer defending a Batson challenge to her peremptory juror strikes must present a neutral, non-discriminatory reason for the strike. Often the striking lawyer’s jury-selection notes supply evidence—one way or the other—of her reasons for excusing the challenged juror. And…
An Examination of the Bank-Examination Privilege (III): Putting it All Together
Abstract This post is the third of a three-part series. In An Examination of the Bank-Examination Privilege (I): Overview of an Enigma, I provided an overview of the bank-examination privilege and explained its origin and scope. In An Examination of…
An Examination of the Bank-Examination Privilege (II): Burden-Shifting and Good Cause
Abstract This post is the second in a three-part series. In An Examination of the Bank-Examination Privilege (I): Overview of an Enigma, I provided an overview of the privilege and discussed its origin and scope. In this second installment, I…
An Examination of the Bank-Examination Privilege (I): Overview of an Enigma
The evidentiary privilege known as the “bank-examination privilege” is a bit of an enigma. Its name may lead you to believe the privilege belongs to banks but that’s not true. The privilege covers a bank-examination report, but not all of…
Only in the Movies? Court Suspends Lawyer for Breaching Attorney–Client Privilege
Ever hear of a story and think, “that only happens in the movies!” Well, this story may invoke that thought, but unfortunately it transpired in real life. Although the rule is clear that lawyers cannot reveal privileged communications without client…