12.4 Asserting and Litigating the Attorney-client Privilege and Work Product Protection

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

12.4 ASSERTING AND LITIGATING THE ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT PROTECTION

Society's ambivalent attitude toward the attorney-client privilege is apparent in some of the basic rules governing assertion of the privilege. Perhaps because the privilege serves some societal good, courts generally disallow any adverse inferences to be drawn from a party's assertion of the privilege.³⁹³ on the other hand, because the privilege restricts the search for truth, courts universally construe the privilege very narrowly.³⁹⁴

For the same reason, the party claiming the privilege has the burden of proof.³⁹⁵ The Eastern District of Virginia,³⁹⁶ the Western District of Virginia,³⁹⁷ the Virginia Supreme Court³⁹⁸ and Virginia circuit courts³⁹⁹ held that the privilege's proponent bears the burden of showing lack of waiver. With both the attorney-client privilege and work product doctrine, the existence of an attorney-client relationship does not by itself create a presumption of protection.⁴⁰⁰ Instead, the party asserting the protection must prove it—starting with a timely and proper assertion of the protection. Simply labeling a document as "privileged" does not assure protection.⁴⁰¹

Some courts have found that a party who does not invoke the attorney-client privilege or work product protection at the required time⁴⁰² and in the proper manner⁴⁰³ waives the protection. One Virginia opinion took a more forgiving approach—finding that a party's failure to properly assert the privilege did not amount to a waiver.⁴⁰⁴

The party seeking to resist discovery must specifically describe the protected information or document and the grounds for the protection.⁴⁰⁵ Federal Rule 26(b)(5) essentially requires the parties to prepare a privilege log. The privileged document log should include information about the document (its type, date, author, and recipients), the protection (attorney-client privilege or work product), and the grounds for the protection's applicability.⁴⁰⁶

Virginia Rule 4:1(b)(6) requires a party asserting the trial preparation protection to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection."⁴⁰⁷ This rule is analogous to the federal rule.

The Eastern District of Virginia⁴⁰⁸ held that a litigant need not produce a privilege log in some circumstances. A Virginia circuit court⁴⁰⁹ held that a litigant need not log documents if the identity of those documents would disclose the "fruits of an attorney's labor."

With the increased volume of documents that litigants frequently must log, many courts have a fairly forgiving approach to minor errors. in 2012, the Eastern District of Virginia took such a tolerant attitude in analyzing a federal agency's privilege log.⁴¹⁰

Courts disagree about the appropriate remedy for litigants' tardy or inadequate privilege logs. The Eastern District of Virginia⁴¹¹ and the Western District of Virginia⁴¹² held that a litigant who failed to deliver a privilege log on time did not waive its attorney client privilege. The Eastern District of Vir-ginia⁴¹³ held that a litigant's preparation of an inadequate log did not waive its privilege, but that the litigant would instead be given a chance to submit an amended log. The Western District of Virginia⁴¹⁴ held that a litigant's preparation of an inadequate log did not waive its privilege, but that the litigant would be subject to monetary sanctions. The Eastern District of Virginia⁴¹⁵ held that a litigant who did not prepare an adequate log had waived its privilege and had to produce the documents.

In a procedure that is unusual in our adversarial process, courts often conduct an in camera review of allegedly privileged documents—meaning that one side to the controversy does not know what the court is reviewing.⁴¹⁶ Of course, any other rule would destroy the protection without due process.

Courts do not conduct in camera reviews automatically.⁴¹⁷ The Eastern District of Virginia⁴¹⁸ held that courts have discretion in determining whether to conduct an in camera review. otherwise, a litigant would be tempted to challenge every privilege or work product assertion to assure that the presiding judge would see even clearly privileged communications. it seems that only one court has acknowledged what logically should be a universal rule—that the judge presiding over the case as a fact-finder should not be the judge who conducts an in camera review.⁴¹⁹

In reviewing withheld documents in camera, some courts focus mostly, or sometimes even exclusively, on the four corners of the withheld document.⁴²⁰ Other courts take what seems like a more logical approach, also examining the context of the withheld document.⁴²¹ litigants frequently support their privilege or work product claims with an affidavit, but those do not always carry the day.⁴²²

Perhaps because of the constitutional dimensions of the crime-fraud exception, courts have created a separate series of rules that govern in camera reviews of documents in those settings. courts generally order such in camera reviews on a showing less than that required to actually overcome the privilege.⁴²³

Litigating the privilege can involve as an initial matter a choice of laws decision. Fortunately, most states agree on the basic formulation of the attorney-client privilege and work product doctrine, although there are some variations among states that have codified their privilege and other states, like Virginia, that continue to develop the privilege through the common law. The Eastern District of Virginia,⁴²⁴ the Western District of Virginia,⁴²⁵ and a Virginia circuit court⁴²⁶ held that Virginia recognized its privilege protection in the common law. Virginia circuit courts⁴²⁷ indicated that Virginia courts may look to federal law in analyzing privilege issues.

Virginia state courts addressing a privilege issue must apply their own choice of law principles in determining which state's privilege law to apply. Not surprisingly, in nearly every case a Virginia court will apply Virginia privilege law.

In federal courts, the issue is more complicated. Federal courts apply the federal common law of privilege in federal question cases. In diversity cases, a federal court should apply Virginia's choice of law rules to determine which state's privilege law applies. However, most federal courts handling diversity cases seem to apply Virginia law without conducting the required choice of law analysis.⁴²⁸ The Western District of Virginia⁴²⁹ held that federal privilege law governed ancillary state claims in a federal question case. The Western District of Virginia⁴³⁰ apparently short-circuited the choice of law analysis in diversity cases, applying Virginia privilege law seemingly without applying Virginia's choice of laws rules.

Because it normally involves a careful analysis of privilege issues,⁴³¹ deposing lawyers has generated its own jurisprudence. Most courts find that a lawyer wishing to depose an adversary must show there is a clear need for such a deposition and that the information sought is not available elsewhere.⁴³² In addition, some courts require that a party seek discovery from a lawyer through written depositions rather than oral depositions (in which tempers can flare and privilege issues arise without being easily resolved).⁴³³ The Eastern District of Virginia⁴³⁴ and a Virginia circuit court⁴³⁵ applied the Shelton standard.⁴³⁶

Litigating the attorney-client privilege or work product doctrine raises complicated appellate issues as well. Waiting until the end of a case to appeal an order requiring disclosure of allegedly privileged information eliminates any meaningful relief because the information has already been disclosed. In the federal system, courts recognize the availability of mandamus⁴³⁷ or occasionally allow an interlocutory appeal⁴³⁸ to permit review of such an order, although the latter is more likely to be available if a court orders a third party to produce privileged information.⁴³⁹

In Virginia courts, section 8.01-670.1 creates a method for interlocutory appeals of pretrial issues to be heard by agreement of the court and the parties. The mandamus procedure also theoretically provides a route to the Virginia Supreme Court, but it offers only a slim chance of obtaining relief from an order requiring the production of privileged information.

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^[393] Parker v. Prudential Ins. Co., 900 F.2d 772, 775...