Canât get enough commentary on evidentiary privileges?  I am here for you. As you can surmise, I suppose, I read a fair number of judicial decisions applying various evidentiary privilegesâbut also commentary of professors and other lawyers discussing privilege-related issues. I maintain a resources page identifying other go-to privilege treatises, articles, and databases, but for those curious for a deeper dive into some privilege issues, outlined below is my list of the top privilege articles published in 2021. Enjoy.
- Todd W. Smithâs article, âAre You My Lawyer?â: (More) Lessons from Theranos: AttorneyâClient Privilege Considerations in the Corporate Context, identifies an all-too-common problem: whether the corporate lawyer represents the entity or the executive. The article is full of good practice tips, and you may access it here. 63 Orange County Lawyer 50 (Oct. 2021).
- Nathan M. Crystal authored two short but thought-provoking articles for the South Carolina Lawyer magazine. In Client Threats and the AttorneyâClient Privilege, accessible here, Crystal provides recommendations for handling privilege and ethical issues when your client threatens physical harm to judges and others. 32 South Carolina Lawyer 15 (May 2021). And in Inadvertent Production and Waiver of Privilege/Work Product Protection, available here, Crystal discusses a California case on inadvertent production of privileged material and offers lessons for us all. 33 South Carolina Lawyer 16 (July 2021).
- This is scary. Are your communications using Alexa, Siri, or any similar âassistantsâ protected? Lauren Chlouber Howell explores the privacy and privilege issues related to communicating with or through these devices. Alexa Hears with her Little EarsâBut Does She Have the Privilege?, 52 St. Maryâs Law Journal 837 (2021). Â You may access it here.
- Ever wonder what happens to a companyâs privileged communications after it sells its assets to another entity? Robert S. Reider and Jacob R. Haskins explain the situation in Chancery Court Finds Merger Agreement Preserved Sellersâ Privilege Over Pre-Merger AttorneyâClient Communications, 73 Vand. L. Rev. En Banc 11 (2020), available here.
- It is an issue I have discussed before: does the attorneyâclient privilege apply to communications between a companyâs lawyer and its former employees? Douglas R. Richmond expands on the topic in The AttorneyâClient Privilege and Former Employees, 70 Cath. U. L. Rev. 39 (2021), and you should read it here.
- In Recent Case Law Developments Involving the CrimeâFraud Exception: The AttorneyâClient Privilege, Filter Team Protocols, and Other Privileges, Gretchen C.F. Shappert and Christopher J. Costantini provide five hypothetical situations and discuss how the crimeâfraud exception applies in theory and in practice. They also discuss DOJ filter teams and the use of a court-appointed special master to make those privilege determinations. 69 Depât of Justice Journal of Federal Law and Practice 289 (May 2021). Read it here.
- A few years ago, I wrote about the Federal Circuitâs recognition of a patentâagent privilege. Â In Letâs All Get on the Same Page: Equating PatentâAgent Privilege to AttorneyâClient Privilege, available here, Alexandra K. Kim identifies this federal decision, laments that the majority of state courts have not addressed the issue, and argues that the patentâagent privilege should be equivalent to the attorneyâclient privilege âin all venues.â 27 Richmond Journal of Law & Technology 1 (2020).
- While I hoped that articles with the phrase âin age of Covid-19â in the title would be moot by now, they arenât. Melanie L. Cyganowski, Erik B Weinick, and Aisha Khan published a helpful article discussing the increase in virtual communications, the concomitant increase in cyberspace intrusions, and the need for privilege protections when hiring data-breach consultants. Â Protecting Privilege in Cyberspace: The Age of Covid-19 and Beyond, 93 N.Y. State Bar Journal 44 (Mar/Apr 2021). Read it here.
- You may recall that Judge Iian Johnston of the Northern District of Illinois issued a well-written and thorough opinion regarding whether plaintiffs waive the psychotherapistâpatient privilege by asserting a âgarden-varietyâ emotional-distress claim. You may read my blog post about it here. Now, Armen H. Merjian explores the topic further in Emotional Distress and the PsychotherapistâPatient Privilege: Establishing a Certain and Principled Implied-Waiver Rule for Civil Rights Litigants, 12 UIC Irvine L. Rev. 221 (2021), which you may read here.
- The self-critical analysis privilege, which courts recognize sporadically at best, was the subject of two separate but equally good articles. In Careful Consideration for Applying the Self-Critical Analysis Privilege in the Review of Internal Process Improvement, available here, Jessica Brennan, Mike Zogby, and Tiffany Riffer trace the privilegeâs evolution, provide practice tips, and provide a list of each stateâs peer-review privileges. 16 In-House Defense Quarterly 15 (Summer 2021). And in Let Them Learn: Recognizing and Codifying A Design-Build Self-Critical Analysis Privilege in Texas, available here, Christian Martinez proposes a statute enacting a self-critical analysis privilege for Texasâs design-build industry. 7 Tex. A&M J. Prop. L. 230 (2021).
- What happens to the privilege when your client dies? Well, lawyers John M. Palmeri and Greg S. Hearing discuss a Colorado case answering this question from a privilege and ethical standpoint. âTil Death Do Us Part: The AttorneyâClient Privilege and the Duty of Confidentiality after a Clientâs Death, 50 Colorado Lawyer 15 (Mar. 2021).  Read it here.
- Evidentiary privileges related to communications with a guardian ad litem receive too little attention. Jacqueline M. Valdespino and Laura W. Morgan change that in Guardians Ad Litem: Confidentiality and Privilege, where they focus on confidentiality and privilege issues that may arise between a guardian ad litem and the parties in a custody dispute. 33 J. Am. Acad. Matrim. Law. 517 (2021). Read it here.
- A privilege issue that receives scant attention but could have tremendous ramifications in matters like sexual-abuse cases is the clergy-penitent privilege. James Grant Semonin explores this privilege as it relates to statesâ mandatory reporting statutes, and urges a national and international uniform solution that protects the privilege while accounting for the free exercise of religion. âFor the Forgiveness of Sinsâ: A Comparative Constitutional Analysis and Defense of the ClergyâPenitent Privilege in the United States and Australia, 47 J. Legis. 156 (2021), available here.
- Did you know that New Mexico abolished its spousal communications privilege? Well, it did because the privilegeâs purposeâto protect marital harmonyâapparently no longer applies in a so-called modern society. Emily Crawford Sheffield provides a nice history of the privilege and argues that courts should maintain the privilege even in light of the âcurrent views of marriage.â Rationalizing a Spousal Confidential Communications Privilege Fit for the Twenty-First Century, 74 Vand. L. Rev. En Banc 187 (2021), available here.
- The Sixth Amendmentâs Confrontation Clause provides criminal defendants the right to cross-examine an adverse witness. But what yields when that witness refuses to answer a question on attorneyâclient privilege grounds? Jackson Teague explores this conflict and offers a solution in Two Rights Collide: Determining When AttorneyâClient Privilege Should Yield to a Defendantâs Right to Compulsory Process or Confrontation, 58 Am. Crim. L. Rev. 487 (2021). Available here.
- Some states recognize a nurseâpatient privilege. But should they? Or should other states join? Michael D. Moberly explores this privilege in Can a Nightingale Sing? Assessing the Need for a NurseâPatient Privilege, 17 J. Health & Biomedical L. 1 (2020). Read it here.
And there you have itâa few interesting privilege-related articles published in 2021. What scholarship will 2022 bring us?
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