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How Privileged Are Your Privileged Communications?
The applicability of the attorney-client privilege within the corporate setting has been firmly established for decades. However, corporate counsel may be surprised to learn that, under certain circumstances, plaintiffs in shareholder litigation have gained access to privileged materials upon a showing of “good cause” under the fiduciary exception. This article discusses the basis for the fiduciary exception, the factors involved in the good-cause analysis, and the circumstances under which courts have turned over privileged materials to plaintiffs.
Garner and the Applicability of the Fiduciary Exception
The fiduciary exception to the attorney-client privilege was first recognized in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). Garner involved a shareholder derivative action alleging fraud by corporate management and a direct action alleging fraud and violations of securities laws. Shareholders sought discovery of communications between corporate management and corporate counsel, and the corporation asserted the attorney-client privilege. Although these communications were privileged, the court allowed plaintiffs access to them, holding that in the context of a derivative action, shareholders and corporate managers have a mutual interest in relevant communications because of the fiduciary duty owed by the corporation to its shareholders. While the court noted that allowing plaintiffs access to privileged documents could leave management open to second-guessing and harassment, it emphasized that “management does not manage for itself and that the beneficiaries of its action are the stockholders.” Id. at 1101.
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.