Presnell on Privileges

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Here is a question for you: If a producing party objects to a document request on, first, relevancy, and second, privilege, do the Federal Rules of Civil Procedure still require the production of a privilege log? On the one hand,
Continue Reading Blanket Privilege Objection with No Privilege Log Constitutes Waiver–and Bad Faith, Court Rules

Experts come in all shapes and sizes but fall only into two categories: consulting experts and testifying experts. The Federal Rules of Civil Procedure provide distinct discovery protections—but not privileges—for these two classifications, but the line between these distinctions blurs
Continue Reading A Blurry Situation: Dual-Hat Experts and Protections for Expert Communications

Many think that the attorney–client privilege protects communications with the client’s third-party agent, and that sharing otherwise privileged documents with the third-party agent does not result in privilege waiver. Except for a highly specific, “narrow exception,” this is not true,
Continue Reading Court Rejects Privilege Protection for Bank’s Communications with Navigant Consulting

Walter Pettus Gewin, a well-known and highly respected Tuscaloosa lawyer (and father to renowned trial lawyer and my law partner, Jimmy Gewin), joined the Fifth Circuit bench in February 1962. He authored the opinion in Dunn v. U.S., 307 F.2d
Continue Reading Skunk in the Jury Box! Court Refuses to Hear Appeal of Adverse Privilege Ruling. Here’s Why

If the government’s search of corporate offices and seizure of company records produce anxiety, then the seizure of emails from the in-house lawyer’s office triggers outright panic. That is what apparently happened when the FBI, while investigating potential money laundering
Continue Reading “Not Even Close”! 11th Circuit Approves DOJ Filter-Team Protocol for Review of In-House Lawyer’s Emails

Oh, the privilege land mines that often accompany an in-house lawyer’s legal advice. When an in-house lawyer’s putatively privileged communications landed in a business document, the question arose whether the company waived the privilege. To win the issue, the in-house
Continue Reading In-House Lawyer Quandary: Business Advice or Implementation of Legal Advice as Part of a Business Decision?

It appears that lawyers are increasingly taking their deposition grievances to the trial judge, including grumbles about defending lawyers’ privilege objections.  And another trial judge has responded with criticism of an attorney’s “improper and overuse” of privilege objections that thwarted
Continue Reading Sanctions Imposed for Lawyer’s “Repeated, Improper” Privilege Objections

While there is no federal common-law peer-review privilege, there is a peer-review privilege under the federal Patient Safety and Quality Improvement Act and two subsections of the Nursing Home Reform Act of 1987. The nursing-home peer-review privilege receives relatively little review,
Continue Reading Nursing Home Peer-Review Privilege Protects Outside Consultant’s Reports, Court Rules