Involving any outside consultant in the attorney-client relationship gives rise to risks to the attorney-client privilege. Yet when a PR crisis erupts, good communications advice is essential, and a company’s media strategy can determine whether it is the subject of thoughtful, balanced articles or a maelstrom of misleading headlines – and whether unfair publicity infects … Continue Reading
In our modern economy, businesses regularly use all manner of third-party consultants for many different reasons, including cost, efficiency, and expertise. Less regularly, communications between businesses and consultants are the subject of discovery motion practice in litigation. Two recent decisions out of the Southern District of New York demonstrate why businesses that use third-party consultants … Continue Reading
Applying the legal concept of attorney-client privilege can be tricky when the communications in question are between a client and an outside media consultancy hired to advise on issues related to forthcoming litigation. This issue is made particularly complicated by the scarcity of existing legal precedent.… Continue Reading
We want to alert life sciences and health care entities to a recent decision out of the U.S. District Court for the District of Columbia. On March 6, 2014, the U.S. District Court for the District of Columbia granted a qui tam relator's motion to compel the production of documents relating to the defendant Kellogg Brown & Root Services, Inc.'s (KBR's) "Code of Business Conduct (COBC) investigations," holding such documents were not protected from disclosure under either the attorney-client privilege (ACP) or the attorney work product doctrine (AWP). The court concluded that the company's investigations were conducted pursuant to "regulatory law and corporate policy," rather than for the purpose of obtaining legal advice. Accordingly, KBR was ordered to produce some 89 documents that it previously claimed as privileged under the ACP and/or AWP. U.S. ex rel Barko v. Halliburton Company, No. 1:05-CV-1276 (D.D.C., March 6, 2014). The court's broader statements could have significant implications for companies in regulated industries where corporate compliance programs are commonplace, or even required.… Continue Reading
Over on the Reed Smith Global Regulatory Enforcement Law Blog, there is an interesting post about a recent Third Circuit opinion concluding that there is no immediate avenue to challenge a court order invading the protections of the attorney-client privilege unless the subject first suffers a judicial contempt citation and risks fines and imprisonment. In … Continue Reading
This post was written by Matthew R. Sheldon and Alexander Y. Thomas. The Second Circuit Court of Appeals is reviewing a lower court decision disqualifying a former in-house attorney from acting as a False Claims Act qui tam relator against his former employer. The relator was formerly general counsel to Unilab, a subsidiary of Quest … Continue Reading
This post was written by Matthew R. Sheldon and Alexander “Sandy” Y. Thomas. On September 19, 2008, President Bush signed into law the long-awaited Federal Rule of Evidence Rule 502; “Attorney-Client Privilege and Work Product; Limitations on Waiver” (“Rule 502”). Rule 502 addresses waiver of the attorney-client privilege and work product doctrine in the context of … Continue Reading
We previously wrote about how the Department of Justice (DOJ) revised its Principles of Federal Prosecution of Business Organizations, which govern how federal prosecutors investigate, charge, and prosecute corporate crimes, including health care fraud. Reed Smith’s Matthew R. Sheldon, Alexander “Sandy” Y. Thomas, and Richard D. Kelley have written more on the subject.… Continue Reading
The Department of Justice (DOJ) has revised its Principles of Federal Prosecution of Business Organizations, which govern how federal prosecutors investigate, charge, and prosecute corporate crimes, including health care fraud. A number of the revisions address the area of cooperation credit, including providing that credit for cooperation will not depend on a corporation’s waiver of attorney-client … Continue Reading
In-house lawyers in many industries–including life sciences and health care–repeatedly confront hard questions about the attorney-client privilege. As Reed Smith lawyers Matthew Sheldon and Sandy Thomas explain in the PrivilEdge Newsletter, a number of recent developments warrant attention. These include “The Attorney-Client Privilege Protection Act of 2007”–pending legislation that would curb demands for waiver of … Continue Reading
This post was also written by Steven B. Roosa. On May 29, 2008, the U.S. District Court for the District of Maryland issued a lengthy and noteworthy ruling regarding the discovery of “electronically stored information” or “ESI.” The court held that the defendants waived the attorney-client privilege and work-product doctrine with respect to 165 separate … Continue Reading
