If you read my post on the University of Iowa’s lost privilege for an internal investigation, you know that the court’s primary ruling was that the college did not prove that it retained the law firm for legal-advice reasons. And
Presnell on Privileges
Presnell on Privileges, published by Legal Chronicles, LLC, focuses on evidentiary privileges relevant to corporate and outside counsel. The blog covers topics such as attorney-client privilege, work product protection, peer review privilege in healthcare, banking regulations related to suspicious activity reports (SARs), and privilege issues in internal investigations including harassment complaints. It also addresses privilege waivers, privilege in federal courts, and the boundaries of privilege in various legal contexts. The blog provides analysis of court rulings and regulatory developments affecting the application and scope of privileges in litigation and compliance.
Latest from Presnell on Privileges - Page 4
No Privilege for University of Iowa’s Internal Investigation, Court Rules
It’s becoming a familiar refrain: student–athletes claim mistreatment while on campus and their educational institution retains a law firm to conduct a privileged internal investigation, only to lose privilege protection by publishing the investigation report. We most prominently saw this…
Loose Corporate Officer Lips Sink Corporate Privilege Ships
Maintaining the attorney–client privilege and avoiding waiver is often a precarious and hazardous endeavor. Even the seemingly innocuous slip of the tongue can result in privilege waiver, as one corporate executive has learned. After the executive stated in an email…
Fox in the Privilege Henhouse: Court Scraps USAO’s Filter Team Protocol and Unilateral Privilege Decisions
Search warrants come fast and unannounced and, in today’s world of voluminous ESI, increasingly capture privileged materials. It is common practice for prosecutors to establish a team of attorneys and law-enforcement agents uninvolved with the prosecution to filter the privilege…
First Impression: Connecticut Court Adopts Subject Matter Waiver Doctrine
The subject matter waiver doctrine generally provides that a privilege-holder’s voluntary disclosure of a privileged document waives the privilege to the disclosed document and undisclosed documents that relate to the same subject matter of the disclosed document. In cases where federal…
Red Card! Court Terminates Case for Lawyer’s Use of Cristiano Ronaldo’s Purloined Privileged Documents
You’ve heard of inadvertently disclosed privileged documents, and we know what can happen when receiving lawyers use them without notice or producing lawyers allow adversaries to use them. But what happens when a lawyer obtains privileged documents purloined by a…
Double Trouble for In-House Counsel
In-house lawyers often wish to shoulder more corporate responsibility, including doubling their legal-counsel role with business-related jobs and titles. And with time an increasingly precious resource, many wish for efficiency and double-up their communications with business advice and legal advice.…
Honey, I Shrunk the Profits! Court Adopts “Business Communications” Exception to the Marital Communications Privilege
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…
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…