Lawyers continue to work during the COVID-19 pandemic. As we discussed in a previous post, for litigators this may involve participating in remote depositions as courts attempt to keep discovery moving. We also provided tips for lawyers taking remote depositions. With thanks to our Faegre Drinker colleagues who have ventured into this new world and shared a great deal of useful advice with the authors, here we discuss some of the practical considerations for lawyers defending remote depositions.
Category: Discovery
“Deposition Distancing”: Practical Considerations for Taking Remote Depositions
The COVID-19 pandemic continues to keep many lawyers, clients and witnesses at home. As we discussed in a previous post, many courts are encouraging or requiring remote depositions, typically by videoconference, to keep discovery moving. Lawyers taking these depositions will have to do all of the things they usually do and more to deal with the challenges of a deposition environment unfamiliar to many of us.
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Deposition Distancing? As Courts Urge Litigants to Continue Discovery with Remote Depositions, Litigants Must Consider Whether, and When, to Fight Them
The COVID-19 pandemic has closed courthouses from coast to coast for all but essential proceedings. Most civil trials and hearings are on hold. Some courts are encouraging, and in some cases ordering, the continuation of discovery — including depositions using video or audio conferencing. Others have extended discovery schedules to await easing of pandemic restrictions. This post examines the different approaches courts are taking and the arguments litigants might make — or respond to — about whether to proceed with remote depositions. In a second post, we’ll discuss practical considerations for lawyers who choose to — or are ordered to — proceed with remote depositions.
Rejection of Improper “Attorneys’ Eyes Only” Disclosure Process Relating to Attorney-Client Privilege Challenges
The attorney-client privilege is one of “the most revered” privileges established to protect certain communications. The Pennsylvania Superior Court recently held that it was improper for a trial court to order the disclosure of information, which a party claimed was privileged work product, on an “attorneys’ eyes only” basis to counsel for the opposing party.
All in the Corporate Family: Attorney-Client Privilege Applies Between Parent and Subsidiaries
The District of New Jersey confirmed that members of a corporate family all are represented by the same in-house counsel, whether that counsel occupies an office within the parent company or within a subsidiary, because corporate family members are considered joint clients. Accordingly, emails sent between in-house counsel employed by a subsidiary and an executive or representative from a parent company are protected by the attorney-client privilege. See Trzaska v. L’Oreal USA, Inc., No. 2:15cv-02713 (D.N.J. January 6, 2020).
Drafting 502(d) Orders to Provide Maximum Non-Waiver Protection
Counsel drafting an order under Federal Rule of Evidence 502(d) or an agreement under Rule 502(e) generally expect to supplant the uncertainty of the privilege waiver analysis under Rule 502(b) and assure near-absolute protection against inadvertent waiver. But two recent decisions frustrate such expectations and offer lessons on how to better assure strong anti-waiver protection. Absolute Activist Value Master Fund Ltd. v. Devine, 262 F. Supp. 3d 1312 (M.D. Fla. 2017); irth Solutions, LLC v. Windstream Communications, LLC, 2018 WL 575911 (S.D. Ohio 2018) (appeal pending).
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