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Challenging Privilege Assertions
The Use and Abuse of Privilege in Class Action and Complex Litigation
Complex class action litigation involving major corporations can involve class periods going back years, with the potential for hundreds of thousands, or even millions of documents. Commonly included in such a document discovery base are materials involving in-house counsel or outside consultants working on business and/or marketing issues. These documents may be material to claims in the case, yet unrelated to any anticipated or active litigation at the time the documents were created. Such communications, memoranda and minutes of meetings may include the participation of counsel or were copied to counsel. Additionally, such documents may have been distributed to or involved the participation of third parties such as industry associations, vendors and potential consultants.
Not all communications involving attorneys or outside consultants are protected by the attorney-client privilege and work-product privileges. The courts take an expansive view of discovery, disfavor the withholding of material evidence based upon privilege, and will narrowly construe the attorney client, work-product and other asserted privileges. The party asserting the privilege and withholding discovery bears the burden of proof regarding the applicability of the privilege.
This article examines issues and problems that commonly arise in connection with the assertion of privilege in the context of modern class action and complex litigation.
For access to the full article with research end notes, click this file.
This article was originally published in the April 2015 Issue of the New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association, and is being made available and reprinted here with permission.