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Privilege
Court Gets the Diversity Case Choice of Law Analysis Right: Part II
In his last privilege point, McGuireWoods partner Thomas Spahn described a wise Connecticut court's recognition that federal courts sitting in diversity should not automatically apply their host jurisdiction's privilege law — but instead apply their host jurisdiction's choice of law principles when determining applicable privilege law. Here, he picks up where he left off.
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Court Gets the Diversity Case Choice of Law Analysis Right: Part I
As in other areas, a privilege analysis should always start with a choice of law assessment. In federal courts, federal common law governs federal question cases' privilege issues. In diversity cases, many federal courts reflexively apply their host jurisdiction's privilege law. This is wrong.
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Copying a Lawyer on an Email Does Not Assure Privilege Protection, but That Lawyer Can Increase the Odds
Lawyers should remind their clients that copying a lawyer on an email does not automatically render the email privileged. But the story doesn't end there.
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Can the Privilege Protect Documents Prepared by Someone Who Has Never Hired a Lawyer?
The attorney-client privilege protects communications between clients and their lawyers. But in certain admittedly limited circumstances, the protection can apply to documents created by someone who has not yet hired a lawyer.
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Three Subject Matter Waiver Decisions Send Mixed Signals: Part III
Under general common law doctrine and Federal Rule of Evidence 502, courts normally hold that disclosing privileged communications only triggers a subject matter waiver if the disclosure seeks some advantage in court. But some courts find a subject matter waiver in broader circumstances.
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Three Subject Matter Waiver Decisions Send Mixed Signals: Part II
In his previous Privilege Point, McGuireWoods partner Thomas Spahn described a decision applying the subject matter waiver doctrine, which relies on fairness notions to prevent litigants from relying on privileged communications as a "sword" while simultaneously using the privilege as a "shield." Here, he picks up where he left off.
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Three Subject Matter Waiver Decisions Send Mixed Signals: Part I
Understandably based on fairness notions, the subject matter waiver doctrine prevents litigants from explicitly or impliedly using privileged communications as a "sword" while simultaneously asserting the privilege as a "shield" to prevent discovery of related communications. As with many privilege concepts, applying the subject matter waiver doctrine can involve subtle analyses.
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