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Attorney-Client privilege (not just between client and lawyer: includes all privileged persons)
Restatement (Third) of the Law Governing Lawyers: § 68. Attorney-Client Privilege i. A communication ii. Made between privileged persons iii. In confidence
iv. For the purpose of obtaining or providing legal assistance for the client.
-narrow privilege (esp in civil context)
-can’t refuse to answer interrogatories regarding facts (but you can refuse to answer questions regarding what the client specifically said to you or vice versa)
Example: Your client tells you that he was looking the other way when he drove into the P. Your client receives an interrogatory asking whether he told you that he was looking the other way. This is attorney-client privilege.
But, if the interrogatory asks whether your client was looking the other way when he drove into the P….he HAS to answer.
There is some wiggle room: If the client tells you he was feeling guilty because he had done so about 20 seconds before the accident so that’s why he told you he was looking the other way. He can say “no” to the interrogatory here.
-if you know your client is lying on the stand, you have to inform the court (also true of your own witnesses)
-attorneys don’t always tell the client the scope of the attorney-client privilege
-when your former client is lying on the stand, you may not say anything (in most states)
-attorney-client privilege is an unqualified privilege: you can’t say that you simply need the information and can’t get it any other way (there are exceptions to the scope of the privilege however)
-Should we get rid of corporate A-C privilege? It seems that corps. can get make discussions at least prima facie undiscoverable by simply having a lawyer at every meeting
Work-product privilege
- Hickman v. Taylor (U.S. 1947)- common law rule where the Supreme Court created work product privilege for federal courts
i. Lawyer represented a tugboat company and interviewed witnesses. The lawyer for the other side wanted those witness statements and notes. Not A-C privilege – the witnesses were not the attorney’s clients. ii. Supreme Court concluded that the documents were privileged.
-work-product is a qualified privilege – can be overcome by showing of subst need and the inability to get the subst equivalent w/o undue hardship
-Fact work product: EX- what the witnesses said (you can overcome it sometimes if you really need the material)
-why is this privileged?
-don’t want free-riders (one side taking the other side’s work)
-worried about impeachment evidence, work product would be too esay to use for impeachment, don’t want it to be abused
-subtle differences between what the witness says on the stand and in the work product encourage other side to use it as impeachment of the witness – and then the creator of the work product might have to take the stand to defend his version against his friendly witness
-Rule 26
- Rule 26(b)(3)(A): Work product (documents or tangible thing created in anticipation of litigation) prepared by a client, for a client, by a representative for the client, or for the representative for the client.
-opinion work product: opinion/theory/trial strategy is unqualified
- the existence of work product (not the content) is not privileged (so you have to answer an interrogatory regarding who you (the lawyer) interviewed, what memos were written, etc.)
-the judge can look at communications to see if an exception (such as crime-fraud) applies: in camera review (but you need threshold proof first)
- if they will testify at trial, you have to have a written report & you have to give material over that you gave to the expert so they could make a determination (dangerous to give materials to a testifying expert)
- drafts are not discoverable
Discovery Requests
-they have to be signed
Attorney-Client privilege (not just between client and lawyer: includes all privileged persons)
Restatement (Third) of the Law Governing Lawyers: § 68. Attorney-Client Privilege v. A communication vi. Made between privileged persons vii. In confidence
viii. For the purpose of obtaining or providing legal assistance for the client.
-narrow privilege (civil context)
-can’t refuse to answer interrogatories regarding facts (but you can refuse to answer questions regarding what the client specifically said to you or vice versa)
Example: Your client tells you that he was looking the other way when he drove into the P. Your client receives an interrogatory asking whether he told you that he was looking the other way. This is attorney-client privilege.
But, if the interrogatory asks whether your client was looking the other way when he drove into the P….he HAS to answer.
There is some wiggle room: If the client tells you he was feeling guilty because he had done so about 20 seconds before the accident so that’s why he told you he was looking the other way. He can say “no” to the interrogatory here.
-if you know your client is lying on the stand, you have to inform the court (also true of your own witnesses)
-attorneys don’t always tell the client the scope of the attorney-client privilege
-when your former client is lying on the stand, you may not say anything (in most states)
-attorney-client privilege is an unqualified privilege: you can’t say that you simply need the information (there are exceptions)
-Should we get rid of corporate A-C privilege? It seems that corps. can get around the rules by simply having a lawyer at every meeting
Work-product privilege
- Hickman v. Taylor (U.S. 1947)- common law rule where the Supreme Court created work product privilege
iii. Lawyer represented a tugboat company and interviewed witnesses. The lawyer for the other side wanted those witness statements and notes. Not A-C privilege – the witnesses were not the attorney’s clients. iv. Supreme Court concluded that the documents were privileged.
-work-product is a qualified privilege
-Fact work product: EX- what the witnesses said (you can overcome it sometimes if you really need the material)
-why is this privileged?
-don’t want free-riders (one side taking the other sides work)
-worried about impeachment evidence, don’t want it to be abused
-subtle differences between what the witness says on the stand and in the deposition
-Rule 26
- Rule 26(b)(3)(A): Work product prepared by a client, for a client, by a representative for the client, or for the representative for the client.
-opinion work product: opinion/theory/trial strategy is unqualified
- if they will testify at trial, you have to have a written report & you have to give facts and data over that you gave to the expert so they could make a determination (dangerous to give materials to a testifying expert)
- drafts are not discoverable
how to avoid frivolousness in discovery requests, disclosure, and responses to discovery
- -they have to be signed Rule 26(g): You have to sign all discovery disclosure documents under rule 26(a)(1) or (a)(3) and therefore you are certifying that they are truthful, not frivolous, or unreasonable. a. This is very similar to rule 11. -sanctions if violated
What to do if the opposing side is refusing to comply with discovery requests?
-Rule 37: You make a motion to compel to the court but you first have to show that you made a good faith effort to work it out among yourselves.
- Sanctions if motion to compel is granted and other side ignores: It basically means that the party who does not turn over the materials loses their case.
- Rule 37(c): You can immediately go for sanctions if the party fails to disclose something. a. But how do you know they failed to disclose? It’s tricky but you can find out later in discovery.
Terminating Litigation Before Trial
- Rule 12(b)(6): failure to state a claim
- Rule 12(c): motion for judgment on the pleadings
