Frankly, My Dear, You Misinterpret “At-Issue” Waiver

Eighty years after Rhett Butler rejected Scarlett O’Hara’s plea for reconciliation, a court has rejected Scarlett Palm’s plea to drastically alter the concept of at-issue waiver.

We know that, for the most part, a party waives the privilege, such as the attorney–client privilege or psychiatrist–patient privilege, by basing a claim or defense on the privileged subject, like legal advice or one’s mental health. But can a party to a civil lawsuit affirmatively put the opposing party’s privileged subject at issue and then pierce the privilege by claiming at-issue waiver?

Scarlett (of Illinois, not Tara) presented this novel argument, but in an issue of first impression, the Illinois Supreme Court ruled that only the privilege holder—not an adversary—controls when the at-issue waiver doctrine applies. Palm v. Holocker, 2018 IL 123152 (Ill. Feb. 28, 2019). You may read the opinion here. Let’s explore this interesting and little-addressed privilege topic. More…

Major Opinion: Texas Upholds Privilege for Lawyer’s Emails with Employee–Expert 1

Many times your best testifying subject-matter expert is right under your nose—your corporate client’s own employee. If properly handled, the attorney–client privilege protects from discovery in-house and outside counsel’s communications with the client’s employees. But if you turn an employee into a testifying expert, does the privilege evaporate?

Federal Rule of Civil Procedure 26(b)(4)(C), at least since 2010 and subject to minor exceptions, expressly protects lawyer–expert communications, whether an employee or third-party. But many state civil-procedure rules do not follow the federal model, and the issue remains subject to a mixture of evidence rules, civil-procedure rules, and common-law interpretations.

Texas has now spoken. The Texas Supreme Court held that the attorney–client privilege covers a lawyer’s communications with an employee–expert, including the lawyer’s revisions to the expert’s affidavit. In re City of Dickinson, 2019 WL 638555 (Tex. Feb. 15, 2019). You may read the opinion here.

Let’s discuss the Court’s reasoning, and how it may affect other states where the issue remains unanswered.

Hurricane Ike

Privilege issues always arise after some event triggers litigation, and here it was Hurricane Ike, More…

Witness Statements and Work-Product: Is It Deceptively Simple? 2

It’s one of the first steps. Upon learning of an event—an accident, a breach—that makes one contemplate litigation, a party’s lawyer or the lawyer’s investigator interviews nonparties with relevant knowledge. These interviews produce facts, of course, but also could contain, directly or indirectly, the lawyer’s mental impressions or legal strategies about important things such as the strength of a potential claim, liability exposure, or damages.

The interview results come in different forms. Some lawyers audio- or video-tape a question-and-answer session with the potential witness; others translate the witness’s comments into a sworn declaration; while still others memorialize the interview in a lawyer-prepared memorandum. And when litigation erupts and the adversary moves to compel the recorded interview, the declaration, or the memorandum, the party’s lawyer chuckles while asserting the work-product doctrine.

The chuckling stops, however, when the lawyer sees how courts have ruled in a seemingly complex maze of fact work-product and opinion work-product. Isn’t a recorded interview simply a recitation of facts devoid of an attorney’s mental impressions? Same goes for a signed witness statement, right? “Facts aren’t privileged” is a familiar if inapposite refrain. “Just redact the lawyer’s comments and produce the facts” is another.

Maybe one court has answered these questions and solved the nationwide inconsistency. Let’s discuss. More…