Print 🖨 PDF 📄Each of the fifty states recognize some variation of medical peer-review privilege that protects from compelled disclosure certain defined information arising from a healthcare provider’s peer-review activities. Virmani v. Novant Health, Inc., 259 F.3d 284 (CA4 2001). The privilege encourages medical providers to hold candid discussions following an adverse medical
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SAR Privilege Restricts Banking Expert’s Testimony, Requires Explanatory Jury Instruction
Print 🖨 PDF 📄Federal banking regulations, such as this FDIC regulation, mandate the confidentiality and non-discoverability of suspicious-activity reports (SAR) without mentioning the word “privilege.” As you can read more about in 1-6 Privileges & Protections: TN & Sixth Circuit Law § 6.05 (2024), many courts have nevertheless ruled that these…
Nvidia Partially Reveals Investigation to German Court—Waives Work Product and Privilege in U.S. Action
Print 🖨 PDF 📄It’s a conundrum, for sure. A company receives notice of potential wrongdoing, directs its in-house counsel to investigate the issue, and then must decide how, if at all, to affirmatively use the investigation to defend its conduct. A significant consideration in determining whether to use investigation results is waiver of privilege…
In-House Counsel’s PowerPoint Presentation Not Privileged, Court Rules
Investigations of Employee Harassment Complaints—Are They Privileged?
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Employers routinely investigate employee harassment or hostile-work-environment complaints yet inconsistently achieve privilege protection for those investigations. For instance, a Florida employer failed to achieve privilege protection for notes of its investigator—who doubled as an attorney and HR Director—regarding an employee’s FMLA claim. And a North Carolina law firm lost privilege protection…
Advice-of-Counsel Privilege Waiver—How Far Does It Extend?
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The broad concept of at-issue privilege waiver is best illustrated by the advice-of-counsel waiver doctrine which, as its moniker signals, arises when a party claims that he relied on his lawyer’s advice before engaging in certain conduct. The doctrine invokes the sword-and-shield imagery by precluding a party from using privileged legal…
A Tie Goes to Business: Court Rejects Privilege for Emails between In-House and Outside Counsel
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Sandlot baseball stars like me know that “a tie goes to the runner.” It’s an unwritten rule, for sure, and some say a myth. In baseball, this rule provides that, in a close play, most often at first base, if the runner and the baseball reach the base simultaneously, then…
Major Announcement: LexisNexis Publishes Presnell and Arth’s Evidentiary Privileges Treatise
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I am thrilled to announce the publication of Privileges and Protections: Tennessee and Sixth Circuit Law. My former law partner turned law professor Kristi W. Arth and I completed this years-long journey and are delighted that LexisNexis/Matthew Bender added this treatise to its comprehensive collection of legal publications.
Todd Presnell…
Personal Privileged Email on Employer’s System—A Different View
Print 🖨 PDF 📄In an earlier post, Company Policy, Personal Emails, and Privilege Protection, I discussed take-aways from a federal-court decision that an employee had no reasonable expectation of privacy—and therefore no privilege protection—for emails sent to her personal attorney on her employer’s email system. But just a few days later, the Oregon…
Company Policy, Personal Emails, and Privilege Protection
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It happens more than we know—employees use their company email to send personal messages, such as scheduling a medical appointment, checking-in with a child’s teacher, or sending a resume to an employer located on greener pastures. The messages winding their way through the company’s email system contain various levels of private…