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Because work product protection applies only when the creator is in or reasonably anticipates litigation, a litigant asserting that protection must know exactly when that occurred. In...
Most states have adopted some variation of what is called the "spousal privilege" or "marital privilege." Those usually appear in statutes or rules, and dramatically vary from state to...
Last week's Privilege Point addressed courts' differing interpretations of the work product rule's "anticipation" element. Fed. R. Civ. P. (26)(b)(3)'s and parallel state rules'...
To embed, copy and paste the code into your website or blog: As in other areas, a privilege analysis should always start with a choice of law assessment. In federal courts, federal common law governs federal question cases' privilege issues. In diversity cases, many federal courts reflexively apply their host jurisdiction's privilege law. This is wrong. In Parimal v. Manitex International, Inc., the court refreshingly recognized that in "resolving [whether Connecticut or Illinois privilege law applied] the Court must apply Connecticut choice of law principles." Civ. No. 3:19CV01910 (MPS), 20...
To embed, copy and paste the code into your website or blog: Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a "sword" while simultaneously asserting the privilege as a "shield" to prevent discovery of related communications. As with many privilege concepts, applying the subject matter waiver doctrine can involve subtle analyses. In Strand v. USANA Health Sciences, Inc., Case No. 2:17-cv-00925-HCN-JCB, 2020 U.S. Dist. LEXIS 232348, at *4 (D. Utah Dec. 9, 2020), plaintiff intentiona...