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The Common Interest Doctrine and the Investigation of First-Party Claims
It is essential for parties to be able to determine with a high degree of certainty whether or not communication will be protected from disclosure by the attorney-client privilege or the work-product doctrine. As the Supreme Court observed, “an uncertain privilege ' is little better than no privilege at all.” Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).
As we noted in an article earlier this year, a recent case in New York state court, National Union Fire Insurance Co. v. TransCanada Energy, USA, Nos. 650515/2010, 400759/2011, 2013 WL 4446917 (N.Y. Sup. Ct. Aug. 15, 2013), aff'd 981 N.Y.S.2d 68, 69'70 (N.Y. App. Div. 2014), determined that the documents under review were not privileged, and went on to observe in dicta that the common interest doctrine would be inapplicable in a circumstance where there was no pending or reasonably anticipated litigation. That comment in TransCanada has the potential to raise uncertainty regarding the scope of protection in the context of the investigation and adjustment of insurance claims, while blurring the lines between attorney-client privilege, on the one hand, and work-product protection on the other. This article reviews the basic principles underlying each form of protection, addresses application of the common interest doctrine to those underlying protections, and discusses concepts key to the application of these protections and the common interest doctrine during the investigation of first-party insurance claims.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
CLE Shouldn't Be the Only Mandatory Training for Attorneys
Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.
Discovery of Claim Construction and Infringement Analysis May be Compelled Prior to a Markman Hearing
A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.