2015 Hon. Michael Williamson, M.D. Fla. Maria Ellena Chavez-Ruark, Saul Ewing LLP Prof. Laurie L. Levenson, Loyola Law School, Los Angeles Joint Defense, Common Interest, Attorney-Client and Co-Client Privileges Fontainebleau Miami Beach

–ABC Corp. dissolved –ABC Holdings is sole shareholder –Voluntary Chapter 7 filed for ABC Corp.; Trustee appointed –ABC’s only liability is from breach of warranty claims –ABC Holdings is co-defendant in warranty litigation –Defense counsel communicated regularly with ABC Holdings –ABC did not have communications with Debtor counsel –Trustee seeks litigation files and communications HYPOTHETICAL 2

Question #1 Is ABC able to assert the attorney-client privilege after its dissolution? 1.Yes 2.No 3

Requirements: 1. “Communication” 2. “Privileged persons” 3. “In confidence” 4. “For the purpose of seeking, obtaining, or providing legal assistance to the client.” ATTORNEY-CLIENT PRIVILEGE 4

Which of the following types of documents is the Trustee entitled to see? 1. Correspondence between ABC Holdings and defense counsel created prior to ABC’s dissolution 2. Correspondence created after ABC’s dissolution but before bankruptcy filing 3. Correspondence created after ABC’s bankruptcy filing 4. Memoranda to ABC Holdings’ board analyzing bankruptcy filing 5. Memoranda to ABC Holdings’ board analyzing merits of breach of warranty claims 6. Correspondence from a board member to an attorney friend asking for advice 7. s with only “See attached” listed 8. All of the above 9. None of the above Question #2 5

If the Trustee requests all attorney notes, research memoranda and draft documents, which of the following must be disclosed? 1. Documents created prior to ABC’s dissolution regarding the breach of warranty claims 2. Documents created after ABC’s dissolution but before bankruptcy filing 3. Documents created after ABC’s bankruptcy filing 4. s by defense counsel to self regarding phone conversations 5. Drafts of pleadings 6. File memoranda regarding settlement ranges and strategies 7. All of the above 8. None of the above Question #3 6

Fed. R. Civ. P. 26(b)(3): 1. Documents and tangible things otherwise discoverable 2. Prepared in anticipation of litigation or for trial 3. By or for another party or by or for that other party’s representative Not absolute privilege ATTORNEY WORK-PRODUCT DOCTRINE 7

If ABC Holdings engages a financial advisor to assist in the wind-down of ABC, is the Trustee entitled to see the correspondence with and advice from the financial advisor? 1.Yes 2.No Question #4A 8

Is the Trustee entitled to participate in future discussions between ABC Holdings and the financial advisor? 1.Yes 2.No Question #4B 9

If the Trustee sues ABC Holdings and ABC’s former CEO for breach of fiduciary duty and recovery of fraudulent transfers, and each retains separate counsel, can the Trustee get copies of correspondence between ABC Holdings’ counsel and the former CEO’s counsel? 1. Yes 2. No Question #5A 10

If there is a joint defense agreement between ABC Holdings and ABC’s former CEO, is the Trustee entitled to see a copy of the joint defense agreement? 1. Yes 2. No Question #5B 11

The Trustee has alluded to potential criminal activity by ABC’s former CEO. If the Trustee requests a copy of all documents in the possession of the former CEO, can the former CEO assert the Fifth Amendment and refuse to produce any of the documents? 1. Yes 2. No Question #6 12

Threat of criminal prosecution Covers act of production Can be overcome by immunity orders Negative inference in civil cases FIFTH AMENDMENT PRIVILEGE 13