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Tactical decision ends up waiving privilege

The US District Court for the Eastern District of PA has ruled that where a litigant intentionally disclosures an attorney-client privileged document that helps its case, this disclosure constitutes a waiver of the privilege as to all confidential communications regarding the same subject matter. The court held that outside counsel waived the attorney-client privilege by turning over e-mails to and from its in-house counsel because the disclosure of the e-mails was “deliberate” and “not inadvertent.” The court reasoned that, “where one party attempts to utilize the privilege as an offensive weapon, selectively disclosing communications in order to help its case, that party should be deemed to have waived the protection otherwise afforded it by the privilege it misused.” Murray v. Gemplus International, No. 02-CV-9023 (Sept. 15).

Work product privilege extends to trial consultants

The Third Circuit has ruled that the work product of a trial consultant is protected by the attorney work-product privilege. The court overturned a district court ruling that the privilege did not cover the pre-deposition preparation of a witness by a non-testifying trial consultant. The appeals court reasoned that compelling the disclosure of the substance of conversations between a defense witness, his counsel and the trial consultant “would require disclosure of communications protected by the work product doctrine.” In re Cendant Corporation Securities Litigation, No. 02-4386 (Sept. 16 ).

“Subsequent Good Act” by employer is admissible

The Third Circuit has ruled that an employer in an age discrimination case may present evidence that it hired another older worker more than a year after the plaintiff was fired because such evidence is relevant to the issue of the employer's alleged discriminatory intent. Finding that trial judges have the discretion under Federal Rule of Evidence 404(b) to allow such evidence of a “subsequent good act,” the court reasoned that because plaintiffs are free to present evidence of an employer's conduct toward other workers to show pretext, the defense must also be allowed to point to its treatment of other workers both to rebut the plaintiff's arguments and to bolster the explanations offered by the defense. Ansell v. Green Acres Contracting Co. Inc., No. 02-3251 (Oct. 28).

Tactical decision ends up waiving privilege

The US District Court for the Eastern District of PA has ruled that where a litigant intentionally disclosures an attorney-client privileged document that helps its case, this disclosure constitutes a waiver of the privilege as to all confidential communications regarding the same subject matter. The court held that outside counsel waived the attorney-client privilege by turning over e-mails to and from its in-house counsel because the disclosure of the e-mails was “deliberate” and “not inadvertent.” The court reasoned that, “where one party attempts to utilize the privilege as an offensive weapon, selectively disclosing communications in order to help its case, that party should be deemed to have waived the protection otherwise afforded it by the privilege it misused.” Murray v. Gemplus International, No. 02-CV-9023 (Sept. 15).

Work product privilege extends to trial consultants

The Third Circuit has ruled that the work product of a trial consultant is protected by the attorney work-product privilege. The court overturned a district court ruling that the privilege did not cover the pre-deposition preparation of a witness by a non-testifying trial consultant. The appeals court reasoned that compelling the disclosure of the substance of conversations between a defense witness, his counsel and the trial consultant “would require disclosure of communications protected by the work product doctrine.” In re Cendant Corporation Securities Litigation, No. 02-4386 (Sept. 16 ).

“Subsequent Good Act” by employer is admissible

The Third Circuit has ruled that an employer in an age discrimination case may present evidence that it hired another older worker more than a year after the plaintiff was fired because such evidence is relevant to the issue of the employer's alleged discriminatory intent. Finding that trial judges have the discretion under Federal Rule of Evidence 404(b) to allow such evidence of a “subsequent good act,” the court reasoned that because plaintiffs are free to present evidence of an employer's conduct toward other workers to show pretext, the defense must also be allowed to point to its treatment of other workers both to rebut the plaintiff's arguments and to bolster the explanations offered by the defense. Ansell v. Green Acres Contracting Co. Inc., No. 02-3251 (Oct. 28).