Attorney-client Privilege in Civil Litigation: Protecting and Defending Confidentiality

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American Bar Association, 2004 - Law - 458 pages
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This edition has been substantially updated, revised and expanded wih new chapters, including Sarbanes-Oxley Act of 2002, confidentiality/communications and ethical problems. This guide addresses the problems faced when representing corporate and other clients in civil litigation.
 

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Contents

An Overview of the AttorneyClient Privilege When the Client Is a Corporation
1
First Principles
2
Establishing the Privilege
3
Control Group v Subject Matter
4
Conflict of LawsApplication of the Proper Test
7
InHouse Attorney as Executive
8
InHouse Counsel as a Witness
11
The Joint Defense Scenario
13
The Application of the WorkProduct Doctrine
236
Materials Obtained or Prepared In Anticipation of Litigation
237
Applying the AttorneyClient Privilege to Investigations Involving Attorneys What Is Fair Game in Discovery?
245
The AttorneyClient Privilege Defined
246
Is the Attorney Investigator Acting as an Attorney?
247
Attorney Investigator Not Acting in Capacity of Attorney
249
Summary
252
Special Problems Facing Corporations That Retain Counsel to Investigate
253

SelfCritical Analysis Privilege
14
From Brinksmanship to Outright Disaster
16
Waiver
17
Offensive Use of the Privilege
19
Distinguishing the Attorney WorkProduct Doctrine from the AttorneyClient Privilege
20
Limits of the WorkProduct Doctrine
21
Asserting the WorkProduct Privilege in Successive Litigation
22
Conclusion
23
Confidentiality and Its Relationship to the AttorneyClient Privilege
31
Information versus Communication
32
Public Information
33
Paragraph a Impliedly Authorized Disclosures
34
Authorized Disclosures
35
CrimeFraud Exception
36
Ethics Advice
37
Claim or Defense
38
Other Law or Court Order
39
Court Orders
40
The AttorneyClient Privilege and the SarbanesOxley Act of 2002
43
The Adopted Attorney Conduct Rules
44
Enforcement
45
AttorneyClient Privilege Issues Raised by the Adopted Rules
46
The Proposed Reporting Out Rules
48
The Second Proposed Rule
49
The AttorneyClient Privilege and Corporate Communications Whats Still Confidential?
57
The AttorneyClient Privilege Generally
58
The Asserted Holder of the Privilege isor Sought to Become a Client
59
The AttorneyClient Privilege Protects Communications Not Facts
60
Legal Advice
61
SR Intl Business Ins Co Ltd v World Trade Center Properties LLC
62
Electronic Data Systems Corporation v Steingraber
64
Contract Negotiations by InHouse Counsel
65
The Impact of New Reporting Requirements upon the AttorneyClient Privilege
66
The American Bar Associations Model Rules
68
Conclusion
69
Communications Between Related Corporations and the AttorneyClient Privilege
75
The Common Ownership Test
76
The Joint Defense Test
79
Privilege Denied
81
Conclusion
86
Privilege of Manufacturer Product Safety Quality Assurance Reviews
91
AttorneyClient Privilege
92
Client
93
Lawyer Consulted as Lawyer
94
Legal Advice
95
Confidentiality
96
Development
97
Safety Evaluations
98
Establishing the SelfEvaluative Privilege
100
Application of the Privilege on Documents Prepared for the Government
101
Communications Between Attorneys and Putative Class Members
105
Communications with NonClients Generally
106
NoComment Local Rules
107
Case Management
109
Communications with Putative Class Members
110
Jackson v Motel 6 Multipurpose Inc and Abdollah v CocaCola Company
111
The OptOut Period
114
Georgine v Amchem Products Inc
116
PostCertification PostOptOut Period
118
OptIn Class Actions
119
Conclusion
122
The Application of the AttorneyClient Privilege and the WorkProduct Doctrine to Communications Between Insureds and Insurance Carriers
127
Application of the AttorneyClient Privilege
129
The Minority View
132
Witness Interviews by Carriers or Their Counsel
133
The Impact of a Carriers Reservation of Rights or Declination on the Applicability of the AttorneyClient Privilege
134
Application of the WorkProduct Doctrine
135
Information in an Insurance Carriers Claim Files Is Collected in the Ordinary Course of Business
136
Information in an Insurance Carriers Claim File Is Collected in Anticipation of Litigation
137
The California View
138
The Broad Protection View
139
Waiver Under California Law
140
Safeguards an Insured May Employ to Protect the AttorneyClient Privilege and the WorkProduct Doctrine
141
Conclusion
142
A Second Look at Privilege and Confidentiality in the Reinsurance Arena
149
Follow the Fortunes Clauses in General
150
Recent Developments in Reinsurance and Follow the Fortunes Case Law
152
Recent Example Involving Reinsurance Scenario and Duty of Good Faith
153
How Discovery Privilege and Confidentiality Relate to Reinsurance
155
Discovery of Reinsurance Information by Policyholder in Action Against the Insurance Company
157
Broader Discovery of Other Reinsurance Information
158
Responding to a ThirdParty Subpoena for Reinsurance Documents under Rule 45 of the Federal Rules of Civil Procedure
159
AttorneyClient Privilege and the Common Interest Rule as Applies to Subpoenas
160
Privilege and Confidentiality in Disputes Between the Ceding Company and the Reinsurer
163
Common Interest Rule as Arises in Litigation Between Reinsurer and Ceding Company
165
Other Major Issues Involving Privilege and Confidentiality That Arise in Reinsurance Scenarios
167
The Impact of Rule 408 of the Federal Rules of Evidence
169
Communication with Person Represented by Counsel
170
Fairness to Opposing Party and Counsel
177
Dealing with an Unrepresented Person
179
Respect for Rights of Third Persons
180
Listing of Related Topics and Supplemental Authority
181
In Continental Casualty Co v United States Fidelity Guaranty Co204 US
183
Statutory and CommonLaw Privileges and Confidentialities
185
AttorneyClient and WorkProduct Doctrines in Environmental Coverage Litigation
217
Common Interest Exception to AttorneyClient Privilege and WorkProduct Doctrine
220
Cooperation Clause
221
Preserving the Confidentiality of Investigations by InHouse and Outside Counsel
223
Application of the Privilege to the Corporate Client
224
The Supreme Court Rejects the Control Group Test
225
The Subject Matter Test
226
InHouse and Outside Counsel and the Distinction between Legal and Business Advice
227
Dual Representation of the Corporation and the Employee
229
Communications with Former Employees During the Course of the Investigation
230
AttorneyClient Privilege in the ParentSubsidiary Relationship
231
Communications with NonLawyers Acting at the Direction of Lawyers
232
The AtIssue Exception
233
The WorkProduct Doctrine in the Corporate Client Context
235
The Control Group Theory Remains Viable
254
Arizona Adopts a Third Approach
255
Summary
256
Is It Protected?
257
Are Former Employees Clients or Third Parties?
259
What Must Be Disclosed?
260
When Is the Client a Client?
261
Has the Privilege Been Waived?
262
WorkProduct Issues
263
In Anticipation of Litigation
264
Substantial Need
266
Conclusion
267
Conflict Between the Permissive Scope of Fact Witness Investigation and Protection of AttorneyClient Communication
283
Current Employees
285
Former Employees
286
The AttorneyClient Privilege Affords the Most Effective Protection Against Exploitation of a Turncoat Former Employee
290
Creation of AttorneyClient Relationships
291
Confidentiality Agreements
292
Quashing ThirdParty Subpoenas
294
Sizing Up the Hostile ExEmployee Witness
295
The Former Witness at Trial
296
Discovery of the InHouse Expert Assigned to Litigation
303
Protecting the NonTestifying InHouse Experts Work from Discovery
304
No Protection
305
Some Protection
306
CaveatsLimits on Protection
307
Suggestions to Minimize Risk of Discovery
308
Conclusion
309
Loss of AttorneyClient Privilege Through Inadvertent Disclosure of Privileged Documents
313
AttorneyClient Privilege and Waiver
315
Privilege Automatically Lost by Disclosure
316
Clients Subjective Intent to Waive
318
Evaluation of the Circumstances Test
319
How to Protect the PrivilegeAvoiding Production and Retrieving Privileged Materials
321
Putting Attorneys on the Witness Stand and Their Advice at Issue The Perils of Selective Waiver of Privilege
329
The Attorney as Witness
330
Handgards
331
The Attorney as an Expert Witness
332
Pretrial Procedure
333
Northbrook v Procter Gamble
334
Putting the Advice of Counsel at Issue
336
Hearn and Progenythe State of Mind Exception
337
The Good Faith Defense
338
Equitable Estoppel
339
Fraud
340
Contractual Intent
341
Further Extensions of the Implied Waiver Doctrine
342
Pleading by Opponent
343
Conclusion
345
Preserving Candor The Hidden Danger from Exceptions to the AttorneyClient Privilege
353
The Unspoken Understanding Between Lawyers and Clients
354
Substantive Law
355
How Restricting the Scope of the Privilege Expands Exceptions to the Privilege
357
Bad FaithAt Issue Exception
359
The CrimeFraud Exception
361
Why the Courts Are Not the Answer
363
Why LitigationBased Rules Should Not Define the Privilege
364
Conclusion
365
The SelfDefense Exception to the Attorneys Ethical Obligation to Maintain Client Confidences
371
The SelfDefense Exception
374
Illustrative Cases
375
Perspectives on the AttorneyClient Privilege and the WorkProduct Doctrine
383
The AttorneyClient Privilege
384
The WorkProduct Doctrine
385
The Evolving Role of Corporate Counsel
387
The Use of Outside Counsel in Internal Investigations
389
Changing Conceptions of Secrecy
390
The CrimeFraud Exception
392
Evidentiary Standards
393
Building a CrimeFraud Exception Argument in Mass Disaster Cases
395
Communications with Former Employees
397
Conclusion
400
The Joint Defense Privilege An Illusion or a Magic Wand?
405
Basic Overview of the AttorneyClient and WorkProduct Privileges
406
The Applicability of the AttorneyClient Privilege and the WorkProduct Privilege in the Context of a Joint Defense Arrangement
407
WorkProduct Privilege
409
AttorneyClient Privilege
410
WorkProduct Privilege
411
The Use of a Confidential Clause as a Precautionary Measure
413
Issues Concerning Insurance Coverage Groups
414
Privileges Afforded Plaintiffs in Joint Prosecution Against Insurer
417
Duties of Emergency Disclosure to the Government Under CERCLA EPCRAand the Clean Air Act
421
Notifying Government Agencies
422
What Is a Reportable Release?
423
Exemptions from Notification
424
Normal Application of Fertilizers and Pesticides
425
EPA Inspection and Requests to Produce Information
426
Reporting Requirements Under EPCRA
427
Toxic Chemical Release Reports
428
Reporting Requirements Under the Clean Air Act
429
Protection from Disclosure as a Result of Voluntary Audit Privilege
430
EPA Disclosure of Information to the Public
431
Public Access to Information Under FOIA
432
Information Exempted by Statute
433
Trade Secrets
434
Trade Secret Protection Under EPCRA
435
Enforcement and Citizens Suits
436
Beyond the Labor and Employment Lawyers Looking Glass Who Is My Client?
441
Background of the AttorneyClient Privilege
442
The AttorneyClient Privilege in Federal Courts
443
The AttorneyClient Privilege in State Courts
445
California
446
Texas
447
Waiver
448
Procedures to Maximize Protection of the Confidentiality of Communications
450
Conclusion
451
Index
453
Copyright

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