Transcription of A PRACTITIONER'S SUMMARY GUIDE TO THE ... - …
1 A PRACTITIONER'S SUMMARY GUIDE to the McGuireWoods LLP Attorney-Client Privilege and the T. Spahn (12/5/13) Work Product Doctrine 46499708-2 A PRACTITIONER'S SUMMARY GUIDE TO THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE Thomas E. Spahn McGuireWoods LLP Copyright 2013 A PRACTITIONER'S SUMMARY GUIDE to the McGuireWoods LLP Attorney-Client Privilege and the T. Spahn (12/5/13) Work Product Doctrine TABLE OF CONTENTS Page i 46499708-2 CHAPTER 1 ORGANIZATION OF THE OUTLINE .. 1 CHAPTER 2 ATTORNEY-CLIENT PRIVILEGE: INTRODUCTION AND BASIC PRINCIPLES .. 6 CHAPTER 3 CLIENTS: INTRODUCTION AND BASIC PRINCIPLES .. 10 CHAPTER 4 CLIENT RELATIONSHIPS .. 11 CHAPTER 5 JOINT 13 CHAPTER 6 CORPORATE CLIENTS .. 17 CHAPTER 7 THE "FIDUCIARY EXCEPTION" .. 29 CHAPTER 8 CLIENT AGENTS/CONSULTANTS.
2 33 CHAPTER 9 LAWYERS .. 37 CHAPTER 10 LAWYER AGENTS/CONSULTANTS .. 40 CHAPTER 11 UNPROTECTED BACKGROUND INFORMATION .. 46 CHAPTER 12 CONTENT AND "COMMUNICATION" ELEMENT .. 52 CHAPTER 13 CONTENT: LEGAL ADVICE REQUIREMENT .. 55 CHAPTER 14 ANALYZING THE LAWYER'S ROLE .. 59 CHAPTER 15 BUSINESS AND OTHER NONLEGAL ADVICE .. 63 CHAPTER 16 CLIENT-TO-LAWYER COMMUNICATIONS .. 67 CHAPTER 17 LAWYER-TO-CLIENT COMMUNICATIONS .. 73 CHAPTER 18 THE CRIME-FRAUD EXCEPTION .. 81 CHAPTER 19 PRESENCE OF THIRD PARTIES .. 86 CHAPTER 20 THE JOINT DEFENSE/COMMON INTEREST DOCTRINE .. 93 CHAPTER 21 INTENT TO DISCLOSE CONTENT .. 104 CHAPTER 22 INTERNAL CORPORATE INVESTIGATIONS AND INSURANCE .. 108 CHAPTER 23 WAIVER OF THE PRIVILEGE .. 113 CHAPTER 24 POWER TO WAIVE THE PRIVILEGE .. 115 CHAPTER 25 EXPRESS WAIVER .. 121 CHAPTER 26 INTENTIONAL EXPRESS WAIVER.
3 128 CHAPTER 27 INADVERTENT EXPRESS WAIVER .. 140 A PRACTITIONER'S SUMMARY GUIDE to the McGuireWoods LLP Attorney-Client Privilege and the T. Spahn (12/5/13) Work Product Doctrine TABLE OF CONTENTS (continued) Page ii 46499708-2 CHAPTER 28 IMPLIED WAIVER .. 150 CHAPTER 29 THE "AT ISSUE" DOCTRINE .. 158 CHAPTER 30 SUBJECT MATTER WAIVER .. 165 CHAPTER 31 SCOPE OF A SUBJECT MATTER WAIVER .. 171 CHAPTER 32 WAIVER: NEW RULES AND PUBLIC POLICY DEBATES .. 174 CHAPTER 33 WORK PRODUCT DOCTRINE: HISTORIC PERPECTIVE .. 176 CHAPTER 34 CREATING AND ASSERTING WORK PRODUCT PROTECTION .. 180 CHAPTER 35 CONTEXT AND TIMING OF WORK PRODUCT .. 186 CHAPTER 36 "LITIGATION" ELEMENT .. 189 CHAPTER 37 "ANTICIPATION OF LITIGATION" ELEMENT .. 191 CHAPTER 38 "MOTIVATION" ELEMENT .. 197 CHAPTER 39 WORK PRODUCT CONTENT .. 203 CHAPTER 40 FACT WORK PRODUCT.
4 207 CHAPTER 41 OPINION WORK PRODUCT .. 215 CHAPTER 42 FACTS REFLECTING THE LAWYER'S OPINION .. 219 CHAPTER 43 PROTECTION FOR INTERNAL CORPORATE INVESTIGATIONS .. 225 CHAPTER 44 OVERCOMING WORK PRODUCT PROTECTION .. 231 CHAPTER 45 OVERCOMING FACT WORK PRODUCT PROTECTION .. 236 CHAPTER 46 OVERCOMING OPINION WORK PRODUCT PROTECTION .. 241 CHAPTER 47 POWER TO WAIVE WORK PRODUCT PROTECTION .. 243 CHAPTER 48 INTENTIONAL, INADVERTENT, OR IMPLIED WAIVER .. 247 CHAPTER 49 DISCLOSURE OF WORK PRODUCT TO AND BY EXPERTS .. 255 CHAPTER 50 SUBJECT MATTER WAIVER: APPLICABILITY AND SCOPE .. 258 CHAPTER 51 ASSERTING AND LITIGATING THE PROTECTIONS .. 263 CHAPTER 52 SOURCE AND CHOICE OF ATTORNEY-CLIENT PRIVILEGE LAW .. 265 CHAPTER 53 SOURCE AND CHOICE OF WORK PRODUCT LAW .. 271 CHAPTER 54 ASSERTING THE PROTECTIONS .. 275 A PRACTITIONER'S SUMMARY GUIDE to the McGuireWoods LLP Attorney-Client Privilege and the T.
5 Spahn (12/5/13) Work Product Doctrine TABLE OF CONTENTS (continued) Page iii 46499708-2 CHAPTER 55 PRIVILEGE LOGS .. 278 CHAPTER 56 EVIDENTIARY SUPPORT .. 284 CHAPTER 57 LITIGATING THE PROTECTIONS .. 287 CHAPTER 58 OTHER DISCOVERY ISSUES .. 292 CHAPTER 59 COURTS' ROLE .. 297 CHAPTER 60 APPELLATE REVIEW .. 300 A PRACTITIONER'S SUMMARY GUIDE to the McGuireWoods LLP Attorney-Client Privilege and the T. Spahn (12/5/13) Work Product Doctrine 1 46499708-2 CHAPTER 1 ORGANIZATION OF THE OUTLINE Introduction This outline contains sixty chapters, focusing on: The attorney-client privilege (Chapters 2-32). The work product doctrine (Chapters 33-50). The process of asserting and litigating both protections (Chapters 51-60). Attorney-Client Privilege Chapter 2 introduces the attorney-client privilege, and provides some basic principles.
6 The attorney-client privilege stands alone as the oldest and most important evidentiary privilege. Clients Chapters 3 through 8 address the "client" component of the attorney-client privilege. Chapter 3 introduces the topic, and Chapter 4 deals with a variety of clients. Chapter 5 discusses joint representations, in which a lawyer represents multiple clients on the same matter. Chapter 6 discusses privilege in the corporate context. Chapter 7 discusses the "fiduciary exception," under which beneficiaries of a fiduciary duty may sometimes access communications between the fiduciary and its lawyer. Chapter 8 discusses communications with clients' agents or consultants, which normally do not deserve privilege protection. Lawyers Chapters 9 and 10 address the "lawyer" component of the attorney-client privilege. Chapter 9 discusses lawyers, and Chapter 10 discusses lawyers' agents and consultants.
7 A PRACTITIONER'S SUMMARY GUIDE to the McGuireWoods LLP Attorney-Client Privilege and the T. Spahn (12/5/13) Work Product Doctrine 2 46499708-2 Content of Communications Chapters 11 through 18 address the attorney-client privilege's key "content" requirement. Chapter 11 discusses generally unprotected background facts about attorney-client relationships and attorney-client communications. Chapter 12 introduces the content requirement, and Chapter 13 discusses the attorney-client privilege protection's limitation to communications that primarily relate to clients' request for legal advice. Chapter 14 discusses lawyers' role as legal advisors, and Chapter 15 discusses particular communications regardless of the communications' client-lawyer direction. Chapter 16 discusses the privilege's application to clients' communications to lawyers, and Chapter 17 discusses communications running the other way.
8 Chapter 18 discusses what is called the "crime-fraud exception," which denies privilege protection for communications that further a client's crime or serious wrongdoing. Context of Communications Chapters 19 through 21 address communications' context, rather than their content. Chapter 19 discusses the effect of third parties' presence during otherwise privileged communications, which generally aborts the privilege. Chapter 20 discusses the "joint defense" or "common interest" doctrine, which stands as an exception to the normally destructive participation of a third party in privileged communications. Chapter 21 discusses the privilege's evaporation when clients intend to disclose communications to those outside the attorney-client relationship. Privilege Protection for Internal Corporate Investigations Chapter 22 discusses privilege protection in two specific contexts: corporate investigations and insurance.
9 Waiver of the Privilege Chapters 23 through 32 address the topic of waiver, in which disclosure of a pre-existing privileged communication usually destroys the privilege protection. A PRACTITIONER'S SUMMARY GUIDE to the McGuireWoods LLP Attorney-Client Privilege and the T. Spahn (12/5/13) Work Product Doctrine 3 46499708-2 Chapter 23 introduces these chapters, and Chapter 24 discusses the power to waive privilege protection. Chapter 25 discusses basic principles governing express waiver, which involves the actual disclosure of privileged communications. Chapter 26 discusses intentional express waiver, and Chapter 27 discusses inadvertent express waiver. Chapter 28 discusses implied waiver, which can result from reliance on the fact of a communication even without its disclosure. Chapter 29 discusses the most extreme form of implied waiver, called the "at issue" doctrine -- under which litigants' affirmative assertion can waive the privilege, even if the litigants do not disclose, rely on or even refer to privileged communications.
10 Chapter 30 discusses the circumstances in which a waiver can trigger the requirement to disclose additional privileged communications (called a "subject matter waiver"), and Chapter 31 discusses the scope of such a subject matter waiver. Chapter 32 discusses various new laws, rules, and other public policy issues involving the privilege. Work Product Protection Chapters 33 through 38 begin the discussion of the work product doctrine. Chapter 33 discusses that doctrine's history, and important differences between that doctrine and the attorney-client privilege. Chapter 34 discusses who can create protected work product, and Chapter 35 discusses basic work product principles. The three basic work product elements are "litigation" (discussed in Chapter 36), "anticipation" (discussed in Chapter 37) and "motivation" (discussed in Chapter 38).
