Chapter 36 “litigation” Element

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 36

"LITIGATION" ELEMENT

36.1 INTRODUCTION

Work product doctrine protection depends on ongoing or anticipated "litigation."

• In the absence of ongoing litigation, work product protection also depends on reasonable "anticipation" of such litigation. ¹

• Work product protection also depends on litigants creating such documents being motivated by that litigation rather than by something else. ²

36.2 RELATIONSHIP OF LITIGATION, ANTICIPATION, AND MOTIVATION

Work product doctrine protection rests on litigation, anticipation, and motivation. ³

36.3 JUDICIAL PROCEEDINGS

Civil and criminal judicial proceedings satisfy the work product doctrine's litigation element.

36.4 BANKRUPTCY PROCEEDINGS

Most courts find that bankruptcy proceedings count as litigation for work product purposes.

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• However, some courts inexplicably find that such proceedings do not satisfy the litigation element.

36.5 NON-JUDICIAL PROCEEDINGS

Determining whether non-judicial proceedings satisfy the litigation element generally focuses on...