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Sharon M. Porcellio

Since our last update, U.S. Magistrate Judge Marian W. Payson examined the topical issue of attorney-client privilege. In doing so, Judge Payson provided a detailed analysis of theories and exceptions necessary to determine whether certain communications constitute attorney-client communications protected from disclosure, including the agency exception and functional equivalent doctrine. Most notably for practitioners, both in-house and outside counsel, Judge Payson tackled a seemingly routine situation that results in a complex question: What happens to attorney-client privilege when there is a third-party consultant involved in the communications?

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