§ 6 - Sundry Evidentiary Issues Flashcards
kovel doctrine
takeaway: because Kovel’s application has been messy, consulting with TWO experts may be ideal to keep track of emails/communication.
upjohn factors. what is their significance?
(1) whether employee communicated with attorney in their capacity as corporate counsel?
(2) whether both were acting at the behest of their corporate superiors?
(3) whether the communication was made to enable the corporation to obtain legal advice AND the employee was aware of this?
(4) whether the communication concerned matters within the employee’s duties
(5) whether the communications were confidential
we use these factors to determine whether communications are protected under 501, which primarily defers privilege to the common law: hence Upjohn
crime-fraud exception
an attorney shall be compelled to produce emails if that attorney is suspected of helping their client cover up or commit a future fraud.
“Privilege?” … what governs it in Wisconsin?
prescribed by the FRE and the common law of each state. Wis. Stat. § 905
Who holds the privilege?
the client
“confidences?” when can they be disclosed?
anything known about the client. never w/o informed consent of the client.
Work product doctrine? what is considered a “work product”?
work product is that which is prepared in anticipation of litigation. “ordinary” documents and “opinion” documents included. Meeks added “mental impressions”
Pierringer release
allows a plaintiff to settle with one or more tortfeasors while preserving claims against nonsettling tortfeasors. ie, liability has not been assigned
The Allsop (slop) case
stands for the proposition that bias and prejudice can crack the 408 shield
the Bruton rule
Joint trial w/ 2 ∆s: non-testifying ∆’s stmt can’t be used if it directly incriminates the co-∆ (Bruton, IV amd.)
If ∆ testifies, right to confront = satisfied, stmt comes in. Indirectly inculpating stmts (likely fabricated) often OK w/ jury instruction, but safer to split trials.
original writing rule
when you need to lay a foundation to get in the CONTENT of writing the OG must be produced. 1002. or a dupe! 1003. exceptions include destroyed in a fire.
“voluminous documentation”
a defunct rule about how for big amt of documents a secretary expert or smth can summarize it. this rule is no longer in effect.
