Commercial Litigation and Arbitration

Attorney-Client Privilege Does Not Cover Attorney’s Mental Impressions — Must Assert Work Product (Not Just Privilege) Or Lose Protection

 Burke v. Regalado, 2019 U.S. App. LEXIS 24806 (10th Cir. Aug. 20, 2019):

Footnote 47.  The Sheriffs also contend the court erroneously permitted questions about [Attorney] Ms. Wyrick's thinking about the email [as to which privilege was forfeited because it was not kept confidential]. But attorney-client privilege does not cover "an attorney's mental impressions." Hickman v. Taylor, 329 U.S. 495, 508, 511-12, 67 S. Ct. 385, 91 L. Ed. 451 (1947). Further, the Sheriffs do not discuss the work product doctrine in their brief and failed to cite it in district court. Accordingly, they have waived any objection on this ground.

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