Fifty states recognize a medical peer-review privilege that safeguards certain healthcare discussions, promoting candid evaluations post-adverse events. In federal courts, the application of this privilege is complex, often depending on jurisdiction. While some federal courts have explored privileges, most reject
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SAR Privilege Restricts Banking Expert’s Testimony, Requires Explanatory Jury Instruction
Federal banking regulations establish confidentiality for suspicious-activity reports (SARs), which courts have interpreted as creating an evidentiary privilege. The Camenisch v. Umpqua Bank case illustrates how this privilege impacts discovery and trial, especially regarding class-action lawsuits, with a notable increase…
Nvidia Partially Reveals Investigation to German Court—Waives Work Product and Privilege in U.S. Action
It’s a conundrum, for sure. A company receives notice of potential wrongdoing, directs its in-house counsel to investigate the issue, and then must decide how, if at all, to affirmatively use the investigation to defend its conduct. A significant consideration…
In-House Counsel’s PowerPoint Presentation Not Privileged, Court Rules
The court ruled that the attorney-client privilege does not protect a PowerPoint presentation created by in-house counsel for antitrust training, deeming it a general instructional guide on business policies rather than legal advice. The decision emphasized the lack of particularized…
Investigations of Employee Harassment Complaints—Are They Privileged?
Learn how to succeed, and fail, when addressing whether investigations are privileged.
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Advice-of-Counsel Privilege Waiver—How Far Does It Extend?
The broad concept of at-issue privilege waiver is best illustrated by the advice-of-counsel waiver doctrine which, as its moniker signals, arises when a party claims that he relied on his lawyer’s advice before engaging in certain conduct. The doctrine invokes…
A Tie Goes to Business: Court Rejects Privilege for Emails between In-House and Outside Counsel
Sandlot baseball stars like me know that “a tie goes to the runner.” It’s an unwritten rule, for sure, and some say a myth. In baseball, this rule provides that, in a close play, most often at first base, if…
Major Announcement: LexisNexis Publishes Presnell and Arth’s Evidentiary Privileges Treatise
LexisNexis published Presnell and Arth’s evidentiary privileges treatise.
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Personal Privileged Email on Employer’s System—A Different View
In an earlier post, Company Policy, Personal Emails, and Privilege Protection, I discussed take-aways from a federal-court decision that an employee had no reasonable expectation of privacy—and therefore no privilege protection—for emails sent to her personal attorney on her employer’s…
Company Policy, Personal Emails, and Privilege Protection
It happens more than we know—employees use their company email to send personal messages, such as scheduling a medical appointment, checking-in with a child’s teacher, or sending a resume to an employer located on greener pastures. The messages winding their…