How Mohawk Will Affect Litigation

Law360, New York (February 04, 2010) — Here are two sentences lawyers would be happy never to read in an order directed to their clients: “The attorney-client privilege has been vitiated. Produce previously protected communications.”

Harsh consequences can radiate out from such words like ripples in a pond: litigation strategy may be revealed; embarrassing, damaging — and often irrelevant — discussions will be viewed and probably used by the opposing party; and lawyers will become deponents.

The initial reaction of any lawyer and client is likely, “Can we appeal and stay the order of production?” For a number of years, the answer to this question was, “It depends on the circuit.” Now, the answer is more simply “No.”

Last month, the U.S. Supreme Court, in Mohawk Industries Inc. v. Carpenter, resolved a circuit split by holding that orders ruling against claims of attorney-client privilege are not immediately appealable under the collateral order doctrine.

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Striking Back Against Peremptory Strikes

The ability to challenge potential jurors for reasons other than possible bias has been an accepted part of jury selection since juries themselves became a part of the English legal system, some 800 years ago.1 Peremptory challenges have been part of U.S. law since the 1790 Act.2 All states allow peremptory challenges in some form.3

Yet, notwithstanding long history and wide use, could peremptory challenges be abolished? The U.S. Supreme Court has noted — in a series of opinions stretching back almost 100 years — that “[s]tates may withhold peremptory challenges ‘altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.’”4 Justice Marshall, in his concurrence in Batson, advocated “eliminating peremptory challenges entirely.”5 Justice Breyer cited Marshall’s language in a recent concurrence: “I believe it is necessary to reconsider Batson’s test and the peremptory challenge system as a whole.”6 Even Great Britain, which gave us the peremptory challenge system, has now abolished such strikes.7

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Lawsuits Based On The Loss of Personal Information

For more than a century, both statutory and common law have recognized that a cause of action may arise when a person’s private information is wrongfully revealed or misused.1 Historically, these “privacy torts,” such as breach of confidence, public disclosure of private facts or falselight publicity, have arisen when a single plaintiff claims her privacy was violated because of the disclosure of her personal information.2 While general principles of negligence may apply to such actions, more frequently, the
privacy torts do not consider the reasonableness of the person’s actions in disclosing the information, but instead focus on the impact of the disclosure on the affected person. These torts, moreover, were rarely encountered by most practitioners due to their unique application.

The electronic collection of personal information, however, is transforming these obscure torts and reinvigorating them in a way that all practitioners may encounter them in the future. Government agencies and businesses now maintain confidential information, including financial and medical data, concerning millions of people. Because that information may be maintained on a single storage device that could be lost, stolen or hacked into, private information about millions of citizens may find its way into the hands of a third party – instantaneously. Not only is the loss of personal information offensive to the
person who entrusted it to another, the information can be used in a variety of unsavory ways to harm that individual, the most publicized being identity theft.3

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