Wednesday, May 26, 2010

Opinion Counsel's Participation on Trial Team Results in Broad Waiver of Privilege

The court denied defendants' motion for a protective order for privileged documents concerning opinions of counsel in part because defendants' opinion counsel also served as trial counsel. "[Defendants have] cast doubt on the credibility of the opinion letter by asking the drafter of the opinion to become an active member of the trial team. . . . [Opinion counsel's] active participation on the trial team calls into serious question whether there is a 'fundamental difference between these types of legal advice' in this case. [Plaintiffs are] entitled to discover the extent to which advocacy and litigation strategy influenced [opinion counsel's] opinion. . . . The waived communications include those between [opinion counsel] and the client, [opinion counsel] and the rest of the trial team, and the trial team and the client. [Defendants have] also waived immunity for all work product that references such communications, and for all work product on the same subject that was communicated to the client."

Tyco Healthcare Group LP et al v. E-Z-EM, Inc., 2-07-cv-00262 (TXED May 24, 2010, Memorandum Opinion & Order) (Ward, J.)

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