Fifty states recognize a medical peer-review privilege that safeguards certain healthcare discussions, promoting candid evaluations post-adverse events. In federal courts, the application of this privilege is complex, often depending on jurisdiction. While some federal courts have explored privileges, most reject a federal common-law peer-review privilege, leaving limited protections under existing statutes.
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SAR Privilege Restricts Banking Expert’s Testimony, Requires Explanatory Jury Instruction
By Tpresnell
Federal banking regulations establish confidentiality for suspicious-activity reports (SARs), which courts have interpreted as creating an evidentiary privilege. The Camenisch v. Umpqua Bank case illustrates how this privilege impacts discovery and trial, especially regarding class-action lawsuits, with a notable increase in SAR filings potentially leading to further litigation complexities.
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Nvidia Partially Reveals Investigation to German Court—Waives Work Product and Privilege in U.S. Action
By Tpresnell
It’s a conundrum, for sure. A company receives notice of potential wrongdoing, directs its in-house counsel to investigate the issue, and then must decide how, if at all, to affirmatively use the investigation to defend its conduct. A significant consideration in determining whether to use investigation results is waiver of
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In-House Counsel’s PowerPoint Presentation Not Privileged, Court Rules
By Tpresnell
The court ruled that the attorney-client privilege does not protect a PowerPoint presentation created by in-house counsel for antitrust training, deeming it a general instructional guide on business policies rather than legal advice. The decision emphasized the lack of particularized legal inquiries, leading to the order for production of the presentation.
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Investigations of Employee Harassment Complaints—Are They Privileged?
Learn how to succeed, and fail, when addressing whether investigations are privileged.
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Advice-of-Counsel Privilege Waiver—How Far Does It Extend?
The broad concept of at-issue privilege waiver is best illustrated by the advice-of-counsel waiver doctrine which, as its moniker signals, arises when a party claims that he relied on his lawyer’s advice before engaging in certain conduct. The doctrine invokes the sword-and-shield imagery by precluding a party from using privileged
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A Tie Goes to Business: Court Rejects Privilege for Emails between In-House and Outside Counsel
Sandlot baseball stars like me know that “a tie goes to the runner.” It’s an unwritten rule, for sure, and some say a myth. In baseball, this rule provides that, in a close play, most often at first base, if the runner and the baseball reach the base simultaneously, then
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Major Announcement: LexisNexis Publishes Presnell and Arth’s Evidentiary Privileges Treatise
LexisNexis published Presnell and Arth’s evidentiary privileges treatise.
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Personal Privileged Email on Employer’s System—A Different View
In an earlier post, Company Policy, Personal Emails, and Privilege Protection, I discussed take-aways from a federal-court decision that an employee had no reasonable expectation of privacy—and therefore no privilege protection—for emails sent to her personal attorney on her employer’s email system. But just a few days later, the Oregon
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Company Policy, Personal Emails, and Privilege Protection
It happens more than we know—employees use their company email to send personal messages, such as scheduling a medical appointment, checking-in with a child’s teacher, or sending a resume to an employer located on greener pastures. The messages winding their way through the company’s email system contain various levels of
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