Archives: Privilege Issues

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Judge Rakoff on Limits To Subpoena Discovery and Law Firm Privilege

In complex commercial actions, parties often litigate in multiple venues.  Judge Rakoff’s decision in Krys v. Sugrue, one of the many cases arising from the failure of Refco, a commodities and futures broker, rejects the tactic of seeking discovery in one venue to support claims in another.  The Refco cases are consolidated in the S.D.N.Y. under rules applicable to multi-district … Continue Reading

Judge Scheindlin Rejects Claim that Corporations Must “Due Diligence” the Credentials of In-House Counsel to Assert Privilege

Judge Scheindlin in Gucci America, Inc. v. Guess?, Inc., et al. issued a welcome clarification of the federal common law in the S.D.N.Y. regarding the scope of the attorney-client privilege.  Judge Scheindlin set aside a finding of a Magistrate Judge which found that Plaintiff Gucci could not protect its communications with its in-house counsel from discovery … Continue Reading

Judge Fox and Expert Discovery Pre and Post December 1

Magistrate Judge Fox’s opinion in M.A.R. ex rel. Reisz v. U.S., 2010 WL 5094311 (S.D.N.Y.) confronts the dicey issue of whether counsel’s communications with his expert are discoverable where the expert serves as both a confidential consulting expert and a trial expert.  Judge Fox rendered his opinion before the December 1 amendments to Rule 26 of the … Continue Reading

Judge Ellis and the Risks of Incomplete Privilege Logs

Compiling a privilege log is a laborious task, especially in cases with massive e-discovery.  But, as Magistrate Judge Ellis’ decision in Dey, L.P. v. Sepracor, Inc., 07 Civ. 2353 (S.D.N.Y., December 8, 2010) points out, the risks of not paying proper attention are substantial. Plaintiff Dey was found to have waived its attorney-client privilege as … Continue Reading