Originally published by Law360, New York (June 9, 2016, 11:40 AM ET) — The ever-expanding scope of what constitutes the “press” creates new issues for companies and their counsel dealing with disputes that either are in or will develop into litigation. Routine corporate disputes that received no media interest are now the subject of nontraditional media outlets such as blogs, internet news sites, social media posts, and homegrown, community websites. And the traditional media, whether newspapers, radio or local television stations, mine these sites for content and contact companies seeking comments, interviews and information about otherwise insipid disputes.
As a result, companies are increasingly turning to their in-house and outside corporate counsel to craft a media strategy as part of the litigation strategy. They ask lawyers to draft press releases, prepare employees for media interviews, and work with internal or external public relations professionals. Communications associated with these tasks often contain information the company wishes to protect from disclosure, and the question arises whether the attorney-client privilege or work-product doctrine serve that protective role. More…
In a ruling that may puzzle in-house legal departments, the Arizona USDC ruled that the attorney–client privilege did not cover in-house attorneys’ handwritten notations on non-privileged documents. The court’s primary reason was that the notations “were [n]ever communicated to anyone.” Greyhound Lines, Inc. v. Viad Corp., 2016 WL 4703340 (D. Ariz. Sept. 8, 2016). You may read the decision here.
In this federal-question case, Greyhound claims that Viad is responsible for environmental clean-up costs on properties that Viad sold to Greyhound. During discovery, Viad produced a set of non-privileged documents, but redacted notations on these documents made by one or more of its in-house lawyers. More…
We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news. Here is a roundup of interesting privilege issues for August 2016.
→In the upcoming movie “Cravath,” which follows a young Paul Cravath’s representation of George Westinghouse in his lightbulb patent litigation against Thomas Edison, the screenplay author, Graham Moore, ran into privilege issues while researching the Cravath—Westinghouse history. When Moore asked the Cravath firm to view Cravath—Westinghouse letters that were over 100 years old, the firm declined because the letters remain subject to the attorney-client privilege. Above the Law has the story here.
→Harvard law professor Laurence Tribe tweeted that Donald Trump asked for his legal advice on a matter, but wondered aloud whether disclosing that conversation would violate the attorney-client privilege. Tribe, who decided not to disclose the conversation content, nevertheless received rounds of criticism, as this article relays.
→Movie producer Mark Boal interviewed U.S. Army Sgt. Bowe Bergdahl, and now military prosecutors want access to the audio tapes for Bergdahl’s upcoming court-martial trial. Boal refuses, citing the journalist’s First Amendment privilege, and several major news organizations have joined the fray. Read the details here.