May 01, 2010

In this edition of The Spotlight, we highlight several recent developments that we think you will find both interesting and helpful to your practice.   We discuss the continuing trend of significant sanctions for discovery abuses, including the Sixth Circuit's decision granting summary judgment for defendants on plaintiffs’ lost profits claim when plaintiffs produced only information related to their lost gross revenues and refused to produce information related to their underlying costs (Bessemer & Lake Erie Rail Road Co.), and a district court’s sanction of plaintiff’s counsel for refusing to narrow propounded electronic discovery requests in response to a court order (Edelen).  We also discuss in Professional Responsibility the New York County Lawyers’ Association Committee on Professional Ethics opinion stating that a lawyer who learns after the fact that a client has given false deposition testimony must take remedial measures and that simply withdrawing from representation will not cure the problem. In Attorney-Client Privilege, we discuss district court holdings requiring a party to produce privileged information that had been inadvertently produced to a testifying expert witness (MVB Mortgage Corp.) and holding that, under Arizona state law, disclosing internal investigation materials to a health services regulator did not waive privilege (Bickler).  In addition, we discuss the Seventh Circuit decision that, pursuant to Upjohn Co. v. United States, an investigation conducted by counsel for the purpose of obtaining factual information which will form the basis for counsel’s legal advice is protected by the attorney-client privilege (South Berwyn School Dist.).  However, in White Collar, we also note that a district court found that internal audits regarding the classification of employees as exempt were not work product because they would have been created in substantially similar form even if no litigation was anticipated (Lewis). Among the matters we discuss, in Antitrust, is a petition for certiorari to clarify the pleading standards outlined by the Supreme Court in Bell Atlantic Corp. v. Twombly. (In re: Travel Agent Commission Antitrust Litigation). Finally, we would like to announce that the revised and expanded edition of Jenner & Block’s privilege outline “Protecting Confidential Legal Information: A Handbook for Analyzing Issues Under the Attorney-Client Privilege and the Work Product Doctrine,” is now available. 

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