Learn how to succeed, and fail, when addressing whether investigations are privileged. The post Investigations of Employee Harassment Complaints—Are They Privileged? appeared first on Presnell on Privileges ..read more

The broad concept of at-issue privilege waiver is best illustrated by the advice-of-counsel waiver doctrine which, as its moniker signals, arises when a party claims that he relied on his lawyer’s advice before engaging in certain conduct.  The doctrine invokes the sword-and-shield imagery by precluding a party from using privileged The post Advice-of-Counsel Privilege Waiver—How Far Does It Extend? appeared first on Presnell on Privileges ..read more

Sandlot baseball stars like me know that “a tie goes to the runner.”  It’s an unwritten rule, for sure, and some say a myth. In baseball, this rule provides that, in a close play, most often at first base, if the runner and the baseball reach the base simultaneously, then The post A Tie Goes to Business: Court Rejects Privilege for Emails between In-House and Outside Counsel appeared first on Presnell on Privileges ..read more

LexisNexis published Presnell and Arth's evidentiary privileges treatise. The post Major Announcement: LexisNexis Publishes Presnell and Arth’s Evidentiary Privileges Treatise appeared first on Presnell on Privileges ..read more

In an earlier post, Company Policy, Personal Emails, and Privilege Protection, I discussed take-aways from a federal-court decision that an employee had no reasonable expectation of privacy—and therefore no privilege protection—for emails sent to her personal attorney on her employer’s email system.  But just a few days later, the Oregon The post Personal Privileged Email on Employer’s System—A Different View appeared first on Presnell on Privileges ..read more

It happens more than we know—employees use their company email to send personal messages, such as scheduling a medical appointment, checking-in with a child’s teacher, or sending a resume to an employer located on greener pastures.  The messages winding their way through the company’s email system contain various levels of The post Company Policy, Personal Emails, and Privilege Protection appeared first on Presnell on Privileges ..read more

In a divided ruling, the Texas Supreme Court granted privilege protection for the University of Texas’s internal investigation conducted by a non-lawyer third party. The privilege covered communications and memos even though the university–third party engagement letter mentioned nothing about a legal-advice purpose or the privilege, drawing criticism from two The post Major Decision: Texas Supreme Court Declares Expansive Privilege for Internal Investigations appeared first on Presnell on Privileges ..read more

Potential benefits arise when multiple clients retain one lawyer or one law firm to represent their common legal interests. But disadvantages exist, too, including the potential for privilege waiver—or privilege non-application—when joint clients later become adverse.  Throw in a joint representation that includes a corporate entity and its individual owners The post Court Rejects “Corporate Privilege” for LLC and its Members—Waiver Ensues appeared first on Presnell on Privileges ..read more

For the first time in some time, the United States Supreme Court agreed to hear a case involving the corporate attorney–client privilege.  The issue is the proper standard courts should use to determine whether the attorney–client privilege protects dual-purpose communications—those created for legal and non-legal purposes.  In re Grand Jury, The post U.S. Supreme Court to Address Corporate Attorney-Client Privilege: The Petition Stage appeared first on Presnell on Privileges ..read more

The year 2022 brought us more privilege-related issues and court rulings—some baffling, some concerning, and all educational.  Others published timely articles on a few unsettled privilege questions, which I identify and link in Ideas, Opinions, and Advocacy: Privilege Publications in 2022.  As for judicial decisions, the year 2022 saw the The post Privileges in 2022–Year in Review appeared first on Presnell on Privileges ..read more