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Corporate Privileges and Confidential Information

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Jerome G. Snider, Howard A. Ellins, Michael S. Flynn


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“The single best source for attorneys to consult concerning issues dealing with the attorney-client privilege. It's a must have for any lawyer.”

—Michael Ross (practitioner and law school professor)

Corporate Privileges and Confidential Information is designed to assist inside and outside counsel in negotiating obstacles to maintaining corporate secrecy. All rights to privacy and confidentiality that a corporation may assert are gathered in this useful volume, which also includes advice on how to protect information otherwise required to be disclosed to a government agency.

This definitive treatment covers: attorney-client, work product and joint defense privileges; trade secrets; confidential submissions to federal and state authorities; financial privacy; and access to personnel files. It presents guidance on complex issues such as: the unique position of corporations in claiming privilege; application of the work product privilege to internal communications; the causes and scope of a waiver of the work product privilege; differentiating between inside counsel's business and legal functions to determine attorney-client privilege; insuring confidentiality of information supplied to a government agency; the dangers of intra-corporate discussions of confidential matters; inadvertent disclosures; and keeping results of a corporate internal investigation immune from discovery.

Book #00650; looseleaf, one volume, 800 pages; published in 1999, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-087-6



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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 800
  • ISBN: 978-1-58852-087-6
  • Pub#/SKU#: 650
  • Volume(s): 1

Author Image
  • Jerome G. Snider

Jerome Snider is General Counsel to the law firm of Davis Polk & Wardwell, having previously served as a litigation partner since 1983 and Litigation Department co-practice group coordinator. He has litigated complex matters in federal and state courts throughout the country for almost 30 years. Co-author of Professional Liability in Business and Commercial Litigation in Federal Courts (R.L. Haig ed.) (West Group & ABA, 1998), Mr. Snider has taught and lectured widely on privilege and other litigation-related subjects.



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  • Howard A. Ellins
Howard A. Ellins is a retired partner and Senior Counsel to Davis Polk & Wardwell. He has represented many leading domestic and international corporations in a broad range of complex commercial litigation and investigations. He is a member of the Board of Trustees of Colgate University.


Author Image
  • Michael S. Flynn

Michael S. Flynn is a litigation partner at Davis Polk & Wardwell where he represents accounting firms, industrial corporations, and financial institutions in complex civil litigation in federal and state courts. He received his undergraduate degree with honors from Princeton University and his law degree magna cum laude from New York University, where he was a member of the Law Review and Order of the Coif.


CHAPTER 1
Introduction

§ 1.01 Introduction
§ 1.02 Finding the Law of Privilege for Corporations
[1] Privilege in the Federal Courts
[2] Privilege in the States
[3] Constitutional Protections Applied to Corporations
§ 1.03 Asserting and Supporting a Claim of Privilege
[1] Asserting Privilege under the Federal Rules of Civil Procedure
[2] State Practice
[3] Supporting a Claim of Privilege

CHAPTER 2
Attorney-Client Privilege

§ 2.01 Introduction
§ 2.02 Application and Elements
[1] The Attorney-Client Privilege in Federal Courts
[2] The Attorney-Client Privilege in State Courts
[3] Application of Foreign Privilege Law in American Courts
[4] Implications of Foreign Privilege Law for American Corporate and In-House Counsel
[5] Attorney-Client Privilege in Congressional Proceedings
§ 2.03 Who Controls the Attorney-Corporate Client Privilege
[1] Corporate Officers and Directors
[2] Lower Level Employees
[3] Trustees in Bankruptcy
[4] Assignees
[5] Successor Corporations
[6] The Attorney-Client Privilege in the Parent-Subsidiary Corporate Context
[7] Receivers and Liquidators
[8] Corporate Dissolution
§ 2.04 Extent of the Privilege
[1] The Upjohn Decision
[2] The Attorney-Corporate Client Privilege in the Federal Courts After Upjohn
[3] States  Treatment of the Attorney-Corporate Client Privilege After Upjohn
§ 2.05 Application of the Attorney-Corporate Client Privilege
[1] Status of the Employee
[2] Provision of Legal Services
[3] Confidentiality of the Communication
[4] Nature of the Advice
[5] Communication of Facts and Communication from Attorney to Client
[6] The Attorney-Client Privilege and Special Board Committees
[7] Professional Responsibility and Contacts with Current and Former Employees
§ 2.06 Waiver of the Privilege
[1] Scope of the Waiver
[2] Waiver by Inadequate Compliance with Civil Discovery Rules
[3] Voluntary Disclosure to Third Parties
[4] Waiver by Placing the Attorney-Client Relationship “At Issue”
[5] Lack of Due Care to Preserve the Confidentiality of the Communication
§ 2.07 Exceptions to Privilege
[1] Fiduciary Exception
[2] Crime-Fraud Exception
[3] The Self-Defense Exception
§ 2.08 Information Technology
[1] Communications Made in Confidence
[2] Specific Technologies and the Attorney-Client Privilege
[3] The Fourth Amendment and Federal Statutes
§ 2.09 Practical Issues
[1] Negative Inference Based on Assertion of Privilege
[2] Depositions of In-House Counsel as Corporate Representative
§ 2.10 Sarbanes-Oxley Considerations
[1] Introduction
[2] Part 205 Reporting Requirements
[3] Permissive Disclosure of Client Confidences to the SEC
[4] Responsibilities of Supervisory and Subordinate Attorneys
[5] Proposed Noisy Withdrawal and Alternative Provisions
[6] The Qualified Legal Compliance Committee (“QLCC”)

CHAPTER 3
Work Product Privilege

§ 3.01 Introduction
§ 3.02  Application and Elements
[1] General Background
[2] Qualified Privilege
[3] Proceedings in Which the Privilege May Be Asserted
[4] Three Factor Test
[5] Who Can Assert the Privilege
[6] Materials Covered by the Privilege
[7] Federal and State Practice
§ 3.03 In Anticipation of Litigation
[1] Causation
[2] Defining “In Anticipation”Temporally
[3] Applicability in Separate Lawsuit
§ 3.04 Fact and Opinion Work Product
[1] Fact Work Product
[2] Opinion Work Product
§ 3.05 Common Law Compared with the Federal Rules of Civil Procedure
[1] Common Law
[2] Federal Rules of Civil Procedure
§ 3.06 Application to Non-Lawyers
§ 3.07 Waiver of Work Product Protection
[1] Overview of Waiver
[2] Causes of Waiver
[3] Scope of Waiver
§ 3.08 Practical Issues
[1] Standard and Computerized Databases
[2] Experts and Consultants
[3] Internal Investigations
[4] Notes of Meetings with Potential Witnesses
[5] Auditors  Inquiries About Pending Litigation and Other Accounting Documents

CHAPTER 4
Joint Defense Privilege

§ 4.01 Introduction
§ 4.02 Application and Elements
[1] Relationship to Underlying Privilege
[2] Common Interest vs. Common Strategy
[3] Elements of a Common Legal Interest
[4] Waiver of Joint Defense Privilege
§ 4.03 The Joint Defense Agreement
[1] Importance of a Written Agreement
[2] Typical Provisions
[3] Form: Joint Defense Agreement
§ 4.04 Application in the Context of Corporate Transactions
§ 4.05 Ethical Issues and Disqualification of Counsel
[1] Disqualification of Counsel
[2] Imputation of Disqualification
[3] Advance Waiver of Conflict by Joint Defense Partner
§ 4.06 Multiple Clients Represented by a Single Attorney: The Joint Client Doctrine
§ 4.07 Practical Issues
[1] Disclosure of the Agreement Itself
[2] Successors to the Joint Defense Privilege
[3] Enforcing Privilege When a Party Settles

CHAPTER 5
Privilege Against Self-Incrimination

§ 5.01 Introduction
§ 5.02 Application and Elements
[1] Collective Entity Doctrine
[2] Personal Documents
§ 5.03 State Practice
§ 5.04 Waiver of the Fifth Amendment Privilege
[1] Affirmative or Explicit Waiver
[2] Testimonial Waiver
[3] Temporal Waiver

CHAPTER 6
Self-Evaluation Privilege

§ 6.01 Introduction
§ 6.02 Elements and Limitations
[1] Elements
[2] Limitations
§ 6.03 Applications
[1] Employment Discrimination
[2] Safety Reviews and Tort Claims
[3] Environmental Audits
§ 6.04 Practical Issues

CHAPTER 7
Accountant-Client Privilege

§ 7.01 Introduction
§ 7.02 Application and Elements
[1] Federal Common Law
[2] Federal Statutory Law
[3] State Statutory Law
§ 7.03 Practical Issues
[1] Common Interest
[2] Shareholder Litigation

CHAPTER 8
Trade Secrets and Business Strategy

§ 8.01 Introduction
§ 8.02 Trade Secret Privilege: Application and Elements
[1] State and Federal Sources of the Privilege
[2] Test for the Application of the Privilege
§ 8.03 The Business Strategy Privilege
§ 8.04 Practical Issues: Protective Orders
[1] In General
[2] Form: Protective Order

CHAPTER 9
Confidential Submissions to Government Agencies Chapter Contents

§ 9.01 Introduction
§ 9.02 The Freedom of Information Act
§ 9.03 FOIA and Agency Procedures
§ 9.04 Reverse-FOIA Suits
§ 9.05 Exemptions under FOIA
[1] Classified by Executive Order
[2] Internal Agency Rules and Practices
[3] Statutorily Protected Information
[4] Commercially Sensitive Information
[5] Internal Memoranda that would Be Protected in Civil Litigation
[6] Personnel and Medical Information
[7] Investigative Files
[8] Bank Examination Information
[9] Geological and Geophysical Data
§ 9.06 Specific Agencies and the Confidential Treatment of Submissions
[1] Federal Trade Commission
[2] Securities and Exchange Commission

CHAPTER 10
Financial Privacy and Bank Records

§ 10.01 Introduction
§ 10.02 Protection for Bank Records Under Federal Law
[1] Constitutional Protections
[2] Right to Financial Privacy Act
[3] No Evidentiary Privilege
§ 10.03 Protection for Bank Records Under State Law
[1] Constitutional Protections
[2] State Right to Financial Privacy Statutes
[3] Protection Under State Common Law
[4] Determining the Governing State Law
§ 10.04 The Fair Credit Reporting Act

CHAPTER 11
Personnel Files

§ 11.01 Introduction
§ 11.02 Protection of Personnel Files under Federal Law
[1] Federal Limitations on Discovery of Personnel Records
[2] Personnel Files under the Federal Freedom of Information Act
§ 11.03 Protection of Personnel Records under State Law
[1] State Constitutional Protections
[2] State Statutory Protections

CHAPTER 12
Confidentiality in Settlement Negotiations and Mediation Proceedings
Chapter Contents

§ 12.01 Introduction
§ 12.02 Federal Rule of Evidence 408
[1] Protection of Settlement Communications under Rule 408
[2] Protection of Information Prepared for Settlement Negotiations
[3] Extending Rule 408: Discovery of Settlement Communications
[4] 2006 Amendment
§ 12.03 State Law Protection of Settlement Communications
§ 12.04 Protection of Communications by Private Settlement Agreement
§ 12.05 Communications in Mediation Proceedings
[1] Protection of Mediation Communications under Federal Law
[2] Protection of Mediation Communications under State Law

CHAPTER 13
Tax Returns and Tax Return Information

§ 13.01 Introduction
§ 13.02 History
§ 13.03 Current State of the Law
[1] Required Nexus with Internal Revenue Service
[2] Relationship Between Internal Revenue Code Section 6103 and Freedom of Information Act
[3] Effect of Prior Disclosure
§ 13.04 Penalties for Improper Disclosure of Confidential Tax Information
§ 13.05 State Law and the Confidentiality of Tax Information
§ 13.06 Third Parties  Duty to Maintain Confidentiality of Tax Information

CHAPTER 14
Deliberative Process Privilege

§ 14.01 Introduction
§ 14.02 Application and Elements
[1] Federal Practice
[2] State Practice

Appendices
Index