Presnell on Privileges

Court Rejects Privilege for Employee Review Group Despite In-House Lawyer’s Presence

Tpresnell — Tue, 19 May 2026 15:00:00 +0000

Companies commonly maintain standing committees or groups to review information and decide on employee discipline and terminations. This raises the question of whether the attorney–client privilege protects from compelled disclosure the information presented to those groups when a lawyer is a member. One court has said no—because the employee information

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Peer Review Privilege in Federal Courts: Key Insights and Case Study

Tpresnell — Tue, 04 Feb 2025 16:00:00 +0000

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

Tpresnell — Tue, 28 Jan 2025 16:30:00 +0000

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

Tpresnell — Tue, 21 Jan 2025 16:00:00 +0000

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

Tpresnell — Tue, 14 Jan 2025 16:00:00 +0000

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?

Tpresnell — Thu, 15 Feb 2024 16:00:00 +0000

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?

Tpresnell — Tue, 06 Feb 2024 16:00:00 +0000

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

Tpresnell — Thu, 25 Jan 2024 16:00:00 +0000

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

Tpresnell — Wed, 17 Jan 2024 16:00:00 +0000

LexisNexis published Presnell and Arth's evidentiary privileges treatise.

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Personal Privileged Email on Employer’s System—A Different View

Tpresnell — Tue, 09 Jan 2024 16:00:00 +0000

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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