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News Upcoming Events Publications SEARCH NEWS & EVENTS Advanced News Search MEDIA CONTACT Kevin Blasko Public Relations Manager kblasko@jenner.com 312 923-2635 Jenner & Block Attorney-Client Privilege Update Resource Center As a service to Jenner & Block's clients and the greater legal community, the Firm's Complex Commercial Litigation practice maintains this online resource center that offers the latest case law and other developments in attorney-client privilege. Jenner & Block will update this web page with new developments and items of interest as they become available.  For further information, please contact Partner David M. Greenwald. 2010 July Update Disclosure Of Work Product To Auditors Does Not Waive Work Product Protection. Party Asserting Privilege Has Absolute Right To Be Heard On Crime-Fraud Exception. Opinion Work Product Discoverable Where Attorney Complicit In Unlawful Activity. 9th Circuit Adopts Two Important Standards Affecting Privilege In Corporate Context. Taped Interview With Witness Discoverable Where Witness Later Had Poor Memory. Two Courts Find No Privilege Over Communications With Financial Advisors. Privilege Did Not Apply To In-House Counsel Who Was Not Admitted To Practice Law. Communications With Ex-Employee During Deposition Recess Were Privileged. June Update Delaware Privilege Law Applied To Non-Delaware Communications. 9th Circuit Grants Mandamus Against Court’s Finding Of Blanket Waiver. Court Applies State Privilege Law Despite Federal Question Jurisdiction. Reasonable Investigation Affirmative Defense Waives Privilege. Administrative Hearing With “Significant Adversarial Aspect” Is “Litigation.” Including Patent Opinion Counsel On Trial Team Waives Privilege With Trial Counsel. Waiver Found Despite Efforts To Prevent Inadvertent Production. May Update U.S. Supreme Court Denies Cert In Textron Work Product/Tax Work Papers Case. Leaving Privileged Information On Third Party Computer Waived Privilege. Documents Prepared Without Involvement Of Counsel Are Work Product. Privilege Waived For Failure To Comply With Order’s Timing Requirements. Claims Adjusters’ Files Pre-Contact With Claimant’s Attorney Not Protected. April Update New Jersey Rules Personal Emails On Company Computer Are Privileged. Fiduciary Exception Applied Through Plan’s Final Administrative Denial. Advice Of Counsel Defense Leads To Subject Matter Waiver. Communications Shared By Insurer, Insured & Cumis Counsel Not Privileged. Disclosure To SEC Per Confidentiality Agreement Did Not Waive Privilege. Disclosure Of Privileged Documents To Business Acquirer Waived Privilege. March Update Privileged Documents Inadvertently Disclosed To Expert Must Be Produced. Relator’s Confidential Disclosure Statement Protected Work Product. Privileged Information Known By Expert Independent Of Case Not Discoverable. No Privilege Waiver For Consultants Who Were Functional Equivalents Of Employees. Selective Waiver Doctrine Protects Investigative Documents Under Arizona Law. Counsel’s Investigation Materials Privileged. Internal Audit Materials Deemed Not Work Product. February Update ABA Files Amicus Brief In Support Of Petition For Cert In Textron Case. Immediate Appeal Of Civil Contempt Order Unavailable. No Privilege For Communications With Third Party Advertising Agency. No Privilege Can Be Asserted By Former Attorney Of Non-Functioning Entity. Disclosure To U.S. To Avoid Indictment May Waive Privilege As To Subject Matter. Insurer Must Produce Other Insureds’ Claims Files In Bad Faith Case. Arbitration Materials Not Discoverable By Third Party Opponent. Special Litigation Report Unsealed After Derivative Action Dismissed. Disclosing Work Product To Auditor Hired By Counsel Waives Privilege. Investigative Fact Work Product Waived By Assertion Of Defense January Update Cert Petition Filed Regarding Scope Of Work Product Protection. FOIA Inter-Agency Exemption 5 May Apply To Communications With Third Parties. Fiduciary Exception Applies To Government As Trustee For Indian Trust. Subject-Matter Waiver For Intentional Disclosure Of Privileged Document 2009 December Update U.S. Supreme Court Rejects Collateral Order Review Of Privilege Rulings. Rule 502(b) Requires Showing Of Reasonable Steps To Prevent Disclosure. Assistant U.S. Attorney’s Emails To Private Attorney Remain Privileged. Errant Email To 3rd Party Forwarding Privileged Email Did Not Waive Privilege. Clarity Required For Duplicate ESI Materials On Privilege Logs. Opinion Letter That Included Factual Investigation Remained Privileged. November Update Using Company Email Waives Employee’s Privilege But Not Co-Clients’ Privilege. Subject Matter Waiver Applied To Ordinary Work Product Under FRE 502. EEOC Questionnaires To Potential Class Members Not Privileged. No Privilege For Communications With Third Party Advertising Agency. Court Sanctions Party For Discovery Abuse; Finds Waiver Of All Privileges. Opinion Work Product Disclosed To Testifying Expert Not Waived. Court Rejects Use Of “Quick Peek” Under FRE 502. Privilege Does Not Survive The Death Of A Corporate Client. October Update Court Approves Rule 502 Non-Waiver Protective Order In Bank Of America Matter. Evidence That Party Consulted With Counsel Does Not Waive Privilege. Only An Article III Court May Determine Whether Privilege Applies. Advice Of Counsel Defense Leads To Limited Waiver In Termination Case. Communications With In-House Patent Agent Not Privileged. Documents Inadvertently Produced Must Be Returned Per Protective Order. Legal Conclusions From Routine Investigation Are Opinion Work Product. September Update Insurer’s Coverage Analysis Not Protected Work Product. Corporate Officer’s Statements To Corporate Counsel Not Privileged. FRE 502 Provides For Subject Matter Waiver Of Ordinary Work Product. Documents Relating To Investigation By Outside Counsel Are Privileged. August Update First Circuit Holds Tax Accrual Work Papers Are Not Protected Work Product. FRE 502 Does Not Require Post-Production Review. Work Product Precludes Opposing Party From Attending Physical Inspection. Fiduciary Exception To Privilege Applied To Tribal Trust Fund Litigation. Upon Showing Of Spoliation, Litigation Hold Letters Are Discoverable. Text Messages During Deposition Are Discoverable. July Update Law Firm’s In-House Counsel Privilege Inapplicable If Firm Knows Of Conflict. Work Product From Underlying Action Waived In Indemnification Action. Court Rejects “Settlement Privilege.” Court Admonishes Counsel For Filing Inadvertently Produced Documents. Tax Shelter Promotion Exception To Tax Preparer Privilege Narrowly Applied. Party Representative’s Notes At Deposition Are Protected Work Product. Disclosure Of Work Product To Auditor Does Not Waive Work Product Protection. Emails Sent On Company Computer Through Personal Account Remain Privileged. June Update Seventh Circuit Rules On Scope Of Tax Practitioner-Client Privilege. Communications With Tax Counsel Regarding Tax Shelter Privileged. No “De Facto” Attorney-Client Privilege For Communications With NLRB. Work Product Used To Refresh Deponent’s Recollection Discoverable. Consultant Turned Testifying Expert Must Produce Consulting Materials. Two Courts Address The Shelton Rule Re Deposing Attorneys Of Record. Options Backdating Investigation Materials Discoverable By Former Officers. May Update Litigation Trustee May Assert Privileges Of Debtors & Creditors’ Committee. Defendant Must Log Documents Created After Commencement Of Litigation. Counsel’s Investigation Protected By Attorney-Client Privilege. Draft Interview Memos Protected Despite Disclosure Of Final Memos To SEC. Defendant’s Communications With Third Party Are Protected Work Product. Privilege Waived By Relying On Privileged Communications As Defense. Executed Affidavits Not Protected Work Product. Identity Of Confidential Witnesses Not Protected By Work Product Doctrine. If Crime-Fraud Applies, Only Innocent Attorney May Assert Privilege. April Update Disclosure Inadvertent Where Party Acted Promptly To Rectify The Error. Privilege Waived By Asserting “Bona Fide Error” Affirmative Defense. Failure To State Memo Was Confidential Legal Advice Waived Privilege. Disclosure Of “Gist” Of Study Resulted In Subject Matter Waiver. Court Will Not Rule On Privilege Log Prepared In Related But Separate Action. No In Camera Review As No Showing Made In Support Of Privilege. Illinois’ “Control Group” Test Limits The Scope Of Privilege. Court Applies Burden-Shifting Approach To Express Waivers Of Privilege. Selection Of Documents Not Opinion Work Product Without Specific Showing. Client’s Communications Threatening Injury To Judge Were Privileged. March Update Production In Federal Proceeding Will Not Waive Privilege In State Proceeding. E-Mails Sent To Co-Workers Not Protected By Common Interest Doctrine. Post-Recall Internal “Root Cause” Analysis Is Protected Work Product. Crime-Fraud Exception Applies To Misconduct Relating To A Court Order. Intention To Use Parol Evidence Puts Privileged Material “At Issue.” Work Product Status Of Tax Workpapers To Be Reconsidered. February Update SEC’s Organization Of Electronic Documents Discoverable. Consultant Intended As Rule 30(b)(6) Witness Not Protected By Privilege. January Update Supreme Court To Review Collateral Order Doctrine As Applied to Privilege Rulings. Tax Workpapers Are Work Product. Disclosure Of Materials Prior To Non-Waiver Agreement Waived Privilege. Draft Form 10K Sent To Counsel For Review Is Privileged. Draft Form 10K Sent To Counsel For Review Is Privileged. Court’s Prior Redacted Privilege Opinions And Transcripts Unsealed. 2008 December Update Courts Apply New Rule 502 To Inadvertently Produced Documents. Court Offers Guidance For Logging E-Mails On Privilege Logs. Communications With Company’s Auditor Protected As Work Product. Common Interest Privilege Could Not Be Waived By Only One Participant. Canada Upholds Privilege Against Administrative Officer’s Challenge. November Update Collateral Order Doctrine Inapplicable To Inadvertent Waiver Ruling. Privilege May Transfer To Successor-In-Interest That Continues Business. Attorney’s Draft Third Party Affidavits Are Protected Opinion Work Product. Voluntary Production Of Draft Patents Resulted In Subject Matter Waiver. Insurer’s Claim File Privileged As To Third Party Claimants. October Update SEC Enforcement Manual States SEC Will Not Seek Privilege Waivers. No “At Issue” Waiver Unless Party Relies On Advice To Make Claim/Defense. Communications Between Special Committee Counsel And Board Not Privileged. Filing Documents Under Seal With Qui Tam Complaint Waived Privilege. In-House Counsel’s Instructions For Responding To Agency Not Privileged. Documents Sent To Attorneys To Keep Them Apprised Not Privileged. Presence Of Non-Employee Medical Director Did Not Waive Privilege. September Update New Federal Rule Of Evidence 502 Dramatically Changes Waiver Landscape. Disclosure Per Thompson Guidelines Is “Involuntary;” No Waiver. Financial Advisor Cannot Later Be Cloaked As “Litigation Consultant.” No Work Product For Non-Party That Failed To Seek Protective Order. Common Interest Protects Communications Between Parties To Transaction. 11th Circuit Rejects Collateral Order Doctrine As Basis To Review Privilege Rulings. July/August Update FASB Proposes Significant Changes In Financial Reporting. Defendant’s Former Attorney Could Act As Government Informant. Disclosure Waived Privilege Despite Government Confidentiality Agreement. Disclosure To Government Waived Work Product Protection. Work Product Doctrine Applies To “Administrative Litigation.” June Update Participation In IRS Program Waived Privilege Over Draft Opinion. Reliance On Legal Department Oversight Waived Privilege. Deposition Questioning Did Not Waive Privileges. Sharing Patent Opinion Letters With Buyer Did Not Waive Privilege. Bankruptcy To Minimize Losses Not Grounds For Crime-Fraud Exception. Report On Investigation Of Spoliation Waived Privileges. New York Court Adopts Broad Common Interest Test. May Update Joint Privilege For Subsidiary And Parent Is Not Automatic. Former D&O Acting As Class Representative Cannot Access Privileged Documents. Confidentiality Agreement Key If Work Product Provided To Auditor. Sharing A Consultant Risks Waiver If Consultant Later Designated To Testify. Failure To Retract Unauthorized Disclosure Waives Privilege. Overuse Of Privilege Stamp Did Not Result In Subject Matter Waiver. Privilege Waived For Insurance Coverage Counsel Opinion. Disclosure Of Patent Counsel Opinion Effects Broad Subject Matter Waiver. SEC Subpoena Enforceable Despite Third Party’s Violation Of Privilege. Attorneys’ Notes Of FBI Interviews Are Not Opinion Work Product. April Update Identity Of Witnesses Supporting Allegations Of Complaint Protected. New York Common Interest Doctrine Requires Common Litigation Threat. Information Gathered At Counsel’s Direction Is Privileged. Failure To Act Promptly To Government Seizure Waived Privilege. Counsel’s Unethical Conduct Waives Work Product Protection. Common Interest For Communications Between Government And 3rd Party. Insured May Discover Insurer’s Claim File In Bad Faith Action. E-mail Communications With Counsel On Company Computer Privileged. Communications Through Art Broker Not Privileged. Garner Fiduciary Exception Applies To ERISA Fiduciaries. March Update Inadvertent Posting Of Privileged Material On Website Waived Privileges. Privilege Regarding Sale By Parent Waived As To Former Subsidiary. Suit Alleging Bad Financial Advice Impliedly Waived Privilege. Attorneys May Pierce Privilege When There Is Client “Accusatory Adversity.” February Update Proposed Rule 502 One Step Closer To Enactment. Privilege Remains With Seller Regarding Assets Excluded From Sale. Former Executives May Review Company’s Privileged Communications. Insured Waived Privilege By Filing Breach Of Contract Action Against Insurer. Use of Documents to Refresh Recollection Waives Work Product Protection. IRS Collaterally Estopped From Relitigating Privilege Under FOIA. Communications With Public Relations Firm Not Protected Work Product. Affidavits Not Work Product; Sanctions For Failure To Provide Privilege Log. January Update Court Denies Interlocutory Review Of Ruling On Special Committee’s Report. Absent Class Member’s Access To Additional Counsel’s Files Denied. Communications With In-House Counsel Given Heightened Scrutiny. No Appeal Of Arbitral Award Where Arbitrator Excluded Evidence on Privilege Grounds. Alabama Would Adopt Balancing Approach To Inadvertent Waiver. Joint Reorganization Clients May Not Assert Privilege Against Each Other. 2007 December Update Inadvertent Disclosure To Testifying Expert Waived Protection. Third Party May Assert Work Product Doctrine In Unrelated Litigation. Surreptitiously Recorded Conversations Are Work Product But Discoverable. Crime/Fraud Exception Applied To Communications Re Opinion Letters. Outside Investigator’s Draft Reports Privileged. Communications Between Special Committee And Its Counsel Discoverable. November Update Privilege Review Must Be Reasonable To Prevent Inadvertent Waiver. Witness Interviews Are Protected Work Product. Clients’ Responses To Joint Settlement Questionnaire Not Privileged. Common Interest Doctrine Does Not Protect Settlement Discussions. October Update Employee Communications With Counsel On Company Laptop Are Privileged. Insurer’s “Anticipation Of Litigation” Assessed On Case-By-Case Basis. Malpractice Action Does Not Waive Privilege With Subsequent Attorneys. Communications Between Non-Lawyers With Need To Know Are Privileged. Court Upholds Joint Privilege Despite Disclosure By Former Co-Plaintiff. Differing Opinions On Protection Of Witness Identities. September Update Work Product Applies To Attorney’s Agent, Not Client’s Agent. No Waiver By Witness Review Of Notes Prior To Testifying. No Discovery From “Testifying” Expert Who Did Not Testify. Fiduciary Exception Applied To ERISA Insurers. Attorney Opinions Regarding Tax Liabilities Are Privileged. August Update Federal Circuit Refuses To Extend Advice Of Counsel Waiver To Trial Counsel in Patent Cases. Affirmative Use Of Common Interest Doctrine Rejected As To Reinsurers. Illinois Court Applies Controversial Waste Management Rule. Massachusetts Adopts Restatement’s Common Interest Doctrine. Crime Fraud Exception Not Applied To Innocent Attorney’s Opinion Work Product. Garner Doctrine Applied To Mutual Life Insurance Company. Unredacted Attorney’s Letter Not Discoverable By Reinsurer. Privilege Belongs To Government Agency, Not Individual Employee. House Bill On Privilege Waivers Clears Judiciary Committee. July Update Privilege Analyzed Re Inside Counsel Representing Parent And Subsidiary. Facilitator Of Attorney-Client Communications Does Not Destroy Privilege. Common Interest Exists For Legal Advice Although Litigation Not Anticipated. No Privilege Waiver By Action For Indemnity For Legal Costs In Prior Suit. Illinois Court Applies Controversial Waste Management Rule. June Update Privileged Documents Used To Refresh Recollection May Retain Privilege. Court Denies Broad Subject Matter Waiver In Patent Dispute. Law Firm Could Not Assert Privilege Against Trust Beneficiary. May Update Lawyer Must Risk Contempt To Protect Privilege. Accidental Recording On 3rd Party Voicemail Did Not Destroy Privilege. Communications Between Illegal Alien’s Attorney/Employer Not Privileged. Fraudulent Transfer Sufficient To Invoke Crime-Fraud Exception. In-House Lawyer May Disclose Confidential Info In Retaliatory Discharge Case. Federal Circuit Will Review Advice Of Counsel Waiver En Banc. Texas “Snapback” Provision Trumped By Expert Discovery Rule. March/April Update Crime-Fraud Exception Applies To Back-Dated Board Minutes. No Waiver By Disclosing Internal Investigation To Government. 9th Circuit Clairies Burden Of Proof Re Crime-Fraud Exception. Client Identity Not Privileged. Attorney Communications To Testifying Experts Not Protected Work Product. No Deposition Of Expert Witness Redesignated As Non-Testifying. Designation Of Employee As Testtifying Expert Waives Privilege. Trial Counsel May Be Deposed As Fact Witness. Common Interest Protects Privilege Where Patents Sold. Substance And Timing Of Defendant’s Communications With Counsel Privileged. Withdrawing Assertion Of Privilege Did Not Avoid Subject Matter Waiver. Fiduciary Exception To Privilege Not Applicable To ERISA Insurance Providers. IRS Audit Documents May Be Protected Work Product. Privilege Does Not Excuse Burden To Plead With Particularity. Disclosure To Social Worker Waived Privilege. February Update Outside Counsel And Accounting Firm Reports Are Work Product. Joint Defense Documents Do Not Waive Advice Of Counsel Defense. Debtor’s Privilege Not Transferred To Trusts. Court Applies “Lenient” Standard To Inadvertent Waiver. Malpractice Claim Does Not Waive Privilege For Later Communications. Union Does Not Control Member Privileges. Crime/Fraud Exception Permits Testimony Of FBI Agent Posing As Attorney. January Update CEO Acting As Individual Cannot Assert Corporation’s Privilege. Partnership May Waive Privilege As To Communications With Its Partners. Assertion of “Good Faith” Compliance With ADEA Did Not Waive Privilege. Privilege Applied To Documents That Were Not Transmitted To Counsel. Reliance On Understanding Of Agency Ruling Does Not Waive Privilege. At Issue Defense Did Not Waive Privilege Re Counsel’s Damages Assessment. No Privilege For Swiss Patent Agents. Government Attorney’s Policy Advice Privileged. Accident Investigation Protected As Work Product. 2006 December Update Privilege Objections Must Be Made Within 14 Days Of Service Of Subpoena. Extrajudicial Disclosure Waived Attorney-Client Privilege. Emails Subject To Employer Monitoring Not Confidential Communications. Sanctions For Improper Privilege Assertions and Privilege Log Revisions. Ohio Supreme Court Rejects Broad "At Issue" Waiver. Attorney-Client Privilege Waived By New Zealand "Lay Advisor" Participation. November Update Disclosure Of Unredacted Minutes To Auditor Did Not Waive Work Product. Attorney-Client Privilege Not Viable After Corporation Ceases To Function. Minority Shareholders Need Good Cause To Discover Privileged Communications. Opposing Counsel Given Access To Witness’s “Script.” Privileged Emails On Work Computer Through Private Account Are Privileged. Testifying Waives Privilege As To Materials Documenting Communications. October Update Attorney-Client Privilege Protects Spreadsheets Prepared At Direction Of Counsel. No Subject Matter Waiver As To Work Product Disclosed To U.S. “Logistics” And “Category” Managers Are Members Of Control Group. Discovery From Withdrawn Expert Denied. Directors’ Communications With Counsel Paid For By Corporation Are Privileged. Routine Internal Investigation Not Protected As Work Product. Rule 30(b)(6) Cannot Be Used To Circumvent Privileges Re Internal Investigation. September Update Broad “Because Of Litigation” Test Adopted For Work Product. Audit Letters Prepared By Counsel Are Protected Work Product. Attorney Drafts Of Term Sheet Are Not Privileged. Rule 26(a)(2) Requires Disclosure Of All Information Provided To Testifying Experts. Opinion Work Product Disclosed To Testifying Expert Not Discoverable. Arbitration Among Joint Defense Participants Did Not Waive Privileges. 3rd Party May Screen Documents For Privilege Pre-Production To U.S. Sixth Amendment May Overcome Third Party’s Privilege. Ex Parte Contact With Adverse Party’s Former Managers Permitted. Disqualification Arising From Interview Of Opponent’s x-COO Reversed. “Errant Mouse Click” Waived Attorney-Client Privilege.   Legal Notices