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Clarifying the Kovel Conundrum


Ever since the attorney-client privilege was expanded to sometimes include experts, courts and litigants have struggled with drawing the line between protected communications and discoverable information. The seminal case U.S. v. Kovel attempted to discern a bright-line test, but in the 50-plus years since that decision, courts remain unclear on how best to decide issues of privilege when third parties are involved. This is the Kovel conundrum.

This Article presents a new way of looking at the Kovel doctrine and untangles the conundrum from the ground up. By visualizing the foundational logic of the attorney-client privilege, analyzing courts’ divergent rationales for applying the privilege to expert witnesses, and synthesizing commentators’ proposed solutions, this Article proposes a modern solution to a longstanding issue. Then, armed with a logical framework for analyzing scenarios involving the attorney-client expert privilege, this Article proposes a solution that provides clarification on this evidentiary conundrum.