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Category Archives: Privileges

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Latham’s Commentary on UK Developments: “Reserving Privilege for the Few”

Posted in Comparative Law, Litigation Industry, Privileges
Claims for legal advice privilege are becoming more difficult and narrower in the EU, according to a February 10, 2017 article published at JD Supra by Latham & Watkins. The article is: Reserving Privilege for the Few: The High Court Confirms the Narrow Interpretation of “Client” for the Purposes of Legal Advice Privilege. The article… Continue Reading

NY Court of Appeals Limits Claims for Common Interest Privilege in m&A

Posted in Litigation Industry, Privileges
A new (June 9, 2016) opinion from the New York Court of Appeals significantly limits claims to a common interest privilege in connection with pre-merger communications. Therefore, the opinion is drawing significant attention from corporate lawyers and litigators. Some key takeaways are provided in a June 16, 2016 post by lawyers from Cadwalader. Another summary by… Continue Reading

Ponzi Scheme Lawyers Losing Privilege ?

Posted in Privileges
How far does privilege go when lawyers apparently have knowledge of a Ponzi scheme? Perhaps not far enough to block a duty to speak, according to an appellate court in Canada, and a McCarthy Tretualt article.  The fact pattern is unusual because the suit at issue is against a law firm that represented both the… Continue Reading

Selective Waiver of Privilege Rejected Again

Posted in Privileges
The 9th Circuit recently joined the group of federal circuit courts rejecting selective waiver of privilege. The opinion is analyzed in depth by Paul Hastings. Key excerpts are:    "On April 17, 2012, the United States Court of Appeals for the Ninth Circuit issued its decision in In re Pacific Pictures Corp., No. 11-71844, ___… Continue Reading

Illinois Court Rejects Claim of Medical Act Privilege for Statistical Data on Infection Rates

Posted in Privileges
Here’s a summary of an interesting Illinois opinion in Zangara v. Advocate Christ Medical Center . Nos. 1–09–1911, 1–09–1914 (June 10, 2011). The opinion rejects a claim of medical act privilege for statistical data on hospital infection rates. The opinion is to me interesting because data often matters more than opinions (or spin) about the data. … Continue Reading

Public Entity Waiver (or Not) of Privilege After Announcing the Outcome of a Post-Incident Investigation

Posted in Privileges
For better or worse, opinions from lawyers  are now tightly woven into management of government agencies and private businesses.  Indeed, opinions of lawyers are frequently cited to justify dubious behavior. For a recent, famous example, consider the massive AIG bonuses paid on the rational that non-payment might cause breach of contract claims. That pathetic explanation was nicely skewered… Continue Reading

European Court of Justice Rejects Attorney-Client Privilege Claim for Inside Counsel

Posted in Privileges
The Akzo Nobel ruling is out from the European Court of Justice, and rejects the attorney-client privilege claim for activities of inside counsel as related to claims regarding unfair competition.   The opinion is here. Go here for a Law.com article with predictable quotes from corporate counsel upset about losing secrecy. The quotes from corporate groups emphasize that… Continue Reading

State Secrets Privilege – Should The Alleged Victim Be Compensated When the Government Chooses to Exercise the Privilege ?

Posted in Policy Issues, Privileges, Secrecy, Sovereigns
Here is an interesting NLJ article on the state secrets privilege from a law professor and dean with an impressive background in both public interest litigation and academics. The law professor, Alan B. Morrison, currently is the Lerner Family Associate Dean for Public Interest and Public Service Law at the George Washington University School of… Continue Reading

United States to Limit Use of the State Secrets Privilege for Civil Litigation ?

Posted in Privileges, Sovereigns
This September 23 NYT article by Charlie Savage describes Obama administration plans to deploy rules that limit the use of the state secrets privilege to block civil litigation. The article also briefly discusses legislative efforts to limit invocation of the privilege. The existing use of privilege has significantly limited past lawsuits. For an example, see… Continue Reading