Privileges

Question 1

What is required for documents and tangible items to be protected by the work product protection?

Answer 1

Ordinarily, a party may not discovery documents or tangilbe things prepared in anticipation of litigation or trial. But subject to Rule 26(b)(4) these materials may be discovered if:

1) they are otherwise discoverable according to rule 26(b)(1); and
2) Party has a substantial needs for the materials to prepare and cannot, without undue hardship, obtain the information elsewhere.

Question 2

What is the work product protection designed to do?

Answer 2

This rule is designed to protect the lawyers thoughts, impressions, and strategies.

Question 3

What does Upjohn v. U.S. stand for?

Answer 3

Stands for the proposition that if a prospective client comes to you, they are covered under the attorney-client privilege.

Question 4

Who does the lawyer represent when representing a corporation under:

1) Federal Rule of Civil Procedure;
2) Control Group test:

Answer 4

1) the privilege only applies to the upper-level managers and above + anyone who know specific information regarding the case;
2) It includes all members of the corporation who are “decision makers” to be protected but no one else.

Question 5

What is the attorney-client privilege?

Answer 5

This applies to attorney-client communication when there is no one present to break the protection. Must examine whether it was intended to and could reasonably be considered to be confidential.