USA Law and Practice Contributed by: Courtney Scobie and Jack Edwards, Ajamie LLP
5.5 Legal Privilege American federal courts recognise both the attorney– client privilege and the work product doctrine. The attorney–client privilege protects confidential commu- nications between an attorney and their client made for the purpose of obtaining legal advice or represen- tation. To invoke the privilege, the communication must have been intended to be confidential, intended to seek legal advice, and not waived. In most cases, the client holds the privilege, and only the client can waive the privilege. Communications with in-house counsel are generally protected by the attorney–client privilege, as long as they meet the criteria for invoking the privilege. The work product doctrine protects from disclosure documents and materials prepared by an attorney or their agents in anticipation of litigation or in prepara- tion for trial. This protection is designed to safeguard an attorney’s mental impressions, legal strategies, and trial preparation materials. Work product protection has two tiers. The “ordinary work product” (routine documents) is afforded qualified protection, whereas the “opinion work product” or “core work product” (materials reflecting an attorney’s mental impressions) is given greater protection. In-house counsel’s work product, like that of external counsel, is entitled to protection if created in anticipation of litigation. 5.6 Rules Disallowing Disclosure of a Document There are other rules and legal doctrines that may allow a party to withhold or limit dissemination of information in a federal lawsuit. These include trade secrets, national security and state secrets, confiden- tial settlement agreements, grand jury documents, and statutory protections concerning medical, finan- cial, and educational records. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Injunctive relief may be awarded when a court deter- mines that it is necessary to prevent irreparable harm, maintain the status quo, or enforce legal rights, as follows.
• Temporary restraining order – a TRO is an emer- gency measure issued when immediate action is necessary to prevent irreparable harm. TROs are granted at the beginning of a case (often before the defendant is even served) and typically last for a short duration (often no more than 14 days). • Preliminary injunction – a preliminary injunction is a temporary measure issued before a case goes to trial. It is often sought to maintain the status quo during the lawsuit and prevent immediate harm. • Permanent injunction – a permanent injunction is issued after a trial on the merits. It is intended to provide a permanent remedy to the prevailing party and to prevent future harm. TROs and preliminary injunctions are often issued to prevent a party from disposing of or transferring assets during the course of litigation. They are often used when there is a concern that a party might attempt to dispose of assets to avoid a judgment. Injunctions may also be used to prevent parallel pro- ceedings from moving forward in other jurisdictions. By way of example, an anti-suit injunction prevents a party from filing or continuing to prosecute a parallel lawsuit outside the USA. If an anti-suit injunction has already been issued against a party by a court outside the USA, that party may seek an anti-suit injunction – a rare sub-species of anti-suit injunction – in the USA. Although a US court has no jurisdiction over the other court, it does have jurisdiction over the parties before it and can order a party to not continue proceedings in another court. Parties seeking injunctive relief may need to post a bond to cover any damages that may result from the injunction. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Injunctive relief can be obtained quickly, especially when circumstances are urgent. The process for obtaining injunctive relief, including TROs and prelimi- nary injunctions, is designed to address emergency situations promptly. To obtain urgent injunctive relief, a party can file a motion with the court explaining the circumstances
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