Law Commons^™

"Show And Tell": An Analysis Of The Scope Of The Attorney-Client Waiver Standards, Roberta M. Harding

Law Faculty Scholarly Articles

As today's society becomes increasingly litigious, document productions, a major discovery tool, are growing larger. One inevitable consequence of this phenomenon is the increased risk that communications protected by the attorney-client privilege may be inadvertently disclosed. Privileged communications may also be disclosed to an adversary under more questionable circumstances: specifically, the intentional, strategic disclosure of privileged information favorable to the disclosing party's position.

In any case involving the disclosure of privileged information, the court must initially decide whether the privilege is waived. To resolve this threshold issue courts apply one of the three waiver tests. If a court decides that …

Curbing Litigation Abuses: Judicial Control Of Adversary Ethics—The Model Rules Of Professional Conduct And Proposed Amendments To The Rules Of Civil Procedure, Richard H. Underwood

Law Faculty Scholarly Articles

This Article addresses the effectiveness of recent developments and proposals related to abusive litigation, and discusses them in the context of recent opinions illustrating the power of the trial judge to control the excesses of the adversary system. It rejects the countersuit as a time-consuming and costly means of controlling litigation abuses, and concludes that “tinkering changes” in the rules of procedure cannot bring about true reform. It is urged here that the burden resulting from abuse of litigation can only be relieved by changes which foster stronger judicial control of adversarial ethics, and greater judicial involvement in the pretrial …