What are the 4 elements of attorney-client privilege?
Communication
confidential
between attorney-client
for the purpose of obtaining legal advice
What two things are special about AC Privilege in civil context?
Don't have to disclose evidence if other side doesn't ask for it
Don't have to turn over records suggesting criminal activity
What is the upjohn test?
any constituent who within scope of their employment would have relevant info that the attorney was seeking
2 exceptions to AC privilege?
Lawyer self-protection
Crime-fraud
What is the Zolin test?
Court can use in camera review of material to see if privilege exists if other side presents a "reasonable person" threshold showing possible crime-fraud
What are the three types of waiver?
selective waiver- waiver as to a particular individual
limited waiver- only waived as to actually disclosed communications
subject-matter waiver- waived privilege to every communication on same subject-matter
Factors for inadvertent disclosure
precautions taken to prevent ID
time taken to rectify error
scope of discovery
extent of disclosure
extent of disclosure
"fairness"
What are the 4 subparts of FRE 502?
(a)- disclosures inside federal proceeding- subject-matter waiver
(e)- make an agreeement with DOJ to keep confidential- only applies to parties unless court order
(d)- court can order that the privilege is not waived
(b)-inadvertent disclosure- traditionally waived, but courts modernizing
What are the 3 subparts of FRE 502(b)
(1) the disclosure is inadvertent
(2) the holder of the privilege took reasonable steps to prevent disclosure
(3) holder promptly took reasonable steps to rectify the error