January 07, 2019 Top Story

Failure to List Document on Privilege Log Results in Waiver of Privilege

Protective order inapplicable to responsive discovery intentionally withheld

By Amy Mattson

Defendants who unwittingly disclosed an email chain to opposing counsel must produce the draft agreement the chain referenced, ruled the U.S. District Court for the Northern District of Illinois. Any privilege that might have attached to the agreement had been effectively waived by a failure to timely claim privilege or provide a privilege log.

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Defendants’ Credibility Called into Question in Action to Recover Legal Fees

The dispute in Monco v. Zoltek Corporation stemmed from the plaintiffs’ termination as counsel in a more than 20-year patent infringement lawsuit just months before the case settled. Former counsel brought action against their former clients, alleging tortious interference with their prospective economic advantage in recovering the legal fees they claimed were owed under their retainer agreement.

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