Presnell on Privileges

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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Company Policy, Personal Emails, and Privilege Protection

Tpresnell — Tue, 19 Dec 2023 16:00:00 +0000

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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