GC Forwards Outside Counsel’s Email to PR Consultant—Waives Privilege

In-House lawyers often assemble a team of specialists to handle knotty disputes that have the potential to spiral out of control.  The team almost certainly includes outside counsel, but also forensic investigators, accountants, other consulting experts, or public-relations professionals.

As the dispute evolves, email communications among this team increase.  And even where the emails involve in-house and outside counsel, the potential for privilege waiver also increases. In a long-running dispute involving the business of healthcare, a recent court decision illustrates the corporate attorney–client privilege’s fragility when a team’s lawyers share legal advice with the team’s non-lawyers. More…

No Work-Product Waiver for Party’s Disclosures to Litigation Financing Firm

The third-party litigation financing industry continues to grow, with Burford Capital’s December 2016 merger with Gerchen Keller Capital serving as the most recent indication.  Read Above the Law’s story on the merger here.

Of course, litigation-financing firms must evaluate a company’s legal claims before agreeing to finance potential litigation.  And this evaluation may include reviewing the company’s privileged communications and its lawyers’ work-product.  The question arises: does disclosure of work-product or privileged information to a third-party litigation financing firm waive these protections?  The court’s decision in Viamedia, Inc. v. Comcast Corp., 2017 WL 2834535 (June 30, 2017), available here, provides guidance. More…

Court Rejects Work-Product Doctrine for Uber’s Due Diligence Investigation 1

In the ongoing trade-secrets litigation between Waymo and Uber over the alleged theft of self-driving car technology, a federal court rejected Uber’s claim that the attorney–client privilege and/or common–interest doctrine protected an investigator’s due diligence report.  I discussed the Uber–Ottomotto acquisition backstory and the court’s privilege ruling in a prior post: Uber Loses Crucial Privilege Battle in Driverless Car Trade-Secrets Case.

In this piece, I discuss common–interest doctrine in more detail and explain court’s additional ruling that the work-product doctrine did not protect the due diligence report from disclosure to Waymo.  Waymo LLC v. Uber Techs., Inc., 2017 WL 2694191 (N.D. Cal. June 21, 2017). You may read the magistrate judge’s opinion here, and the district court’s affirming order here.

Disclosure to Adversary Equals Waiver

Recall that Uber and Otto entered into a Term Sheet that described a process through which Uber may acquire Otto, and that the Term Sheet required Uber and Otto to jointly retain an investigation firm (Stroz Friedberg) to conduct due diligence into potential trade-secrets misappropriation.  You may read Stroz’s engagement letter here. More…