The work-product privilege (or “work-product doctrine”) protects from discovery by the opposing party "documents and tangible things that are prepared in anticipation of litigation or for trial." Federal Rule of Civil Procedure 26(b)(3)(A). The purpose of the work-product doctrine is to protect an attorney's "mental impressions, conclusions, opinions, or legal theories."&n
Attorney-client privilege protects confidential communications between a lawyer and their client that relate to the client's seeking of legal advice or services. This protection extends to any information exchanged during these privileged communications, encompassing not only verbal discussions but also written correspondence, emails, text messages, and other forms of communication.
Is a communication between a client and their lawyer that involves both legal and non-legal advice protected by attorney-client privilege if obtaining legal advice was a significant purpose of the communication, but not its primary purpose?
This case asks the Supreme Court to clarify whether communications involving both legal and non-legal advice (i.e., dual-purpose communications) are evaluated under the primary purpose test or the significant purpose test when determining whether communications are protected by the attorney-client privilege. The petitioner, a law firm, argues that the significant purpose test should be adopted because it is necessary to avoid deterring the communications the privilege exists to protect. The United States argues for the primary purpose test, contending that the significant purpose test would improperly and unnecessarily expand the privilege. This case has significant implications for protecting client honesty with their lawyers while also not excessively shielding the production of otherwise discoverable materials.
Whether a communication involving both legal and non-legal advice is protected by the attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication.
Pursuant to a criminal investigation, a grand jury issued subpoenas to the target of the investigation, the owner of a company who is also a client of a tax law firm. In re Grand Jury at 1090. These subpoenas requested communications and documents related to the investigation. Id.
Oral argument: Oct. 5, 2009
Appealed from: United States Court of Appeals for the Eleventh Circuit (Aug. 26, 2008)
Can the United States invoke the attorney-client privilege to limit what information it is required to produce during discovery where an Indian tribe sues the government for its alleged mismanagement of Indian property held in trust?
In 2002, the Jicarilla Apache Nation (“Jicarilla,” “Jicarilla Tribe” or “Tribe”) filed a breach of trust action against the United States, alleging mismanagement of funds held in trust for the Tribe. In 2008, Jicarilla moved to compel the production of a few hundred documents exchanged between the government and its attorneys, but the government refused to disclose nearly 160 documents on the ground of attorney-client privilege. The Court of Federal Claims subsequently granted Jicarilla’s motion to compel production of the documents, and the Federal Circuit affirmed. Now, the United States argues that disclosure of the documents was unwarranted because no statute or regulation specifically requires the disclosure. The Jicarilla Tribe, however, contends that the government must be treated like an ordinary private trustee and forced to disclose information exchanged with its attorneys.
Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.
The Jicarilla Apache Nation’s reservation covers a 900,000-acre area in New Mexico. See Brief for Petitioner, United States at 2. By statute, the Department of the Interior oversees the development of the reservation’s timber, gravel, oil and gas resources. See
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
· Second Circuit Blog: The Attorney Client Privilege Extends to Communications Between Government Officials and Their Government Lawyers (Feb. 24, 2005)
· Stephen M. Forte: What the Attorney-Client Privilege Really Means (Oct. 1, 2003)
Does a trial court’s order that prevents a defendant and their attorney from discussing the defendant’s ongoing testimony during an overnight recess violate the defendant’s Sixth Amendment right to counsel?
This case asks the Supreme Court to decide whether a trial court may bar defense counsel from discussing a defendant’s ongoing testimony during an overnight recess. Villarreal argues that this restriction violates the Sixth Amendment right to counsel and the attorney-client privilege. Texas counters that the restriction is a qualified order that does not infringe on constitutionally protected communications. The outcome of this case has profound implications for the fairness of trials and defendants’ testimony.
Does a trial court’s order that prevents a defendant and their attorney from discussing the defendant’s ongoing testimony during an overnight recess violate the defendant’s Sixth Amendment right to counsel?
David Asa Villarreal was on trial for allegedly murdering his live-in boyfriend, Aaron Estrada. Brief for Petitioner, David Asa Villarreal at 3;
