Chapter 51 Asserting and Litigating the Protections

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

Chapter 51

ASSERTING AND LITIGATING THE PROTECTIONS

Although the attorney-client privilege and the work product doctrine differ dramatically from one another, claiming and litigating the separate protections often generate identical procedural issues.

Courts must first select the applicable law.

• Courts choosing the applicable attorney-client privilege law normally undertake a choice of law analysis. ¹

• Courts apply their own work product rule. This sounds simple, but can actually create varied results—because courts disagree on several basic work product issues. ²

Litigants must collect responsive documents, withhold privileged or work product-protected documents, file appropriate and timely objections, and sometimes redact protected parts of otherwise unprotected documents. ³

Litigants withholding privileged or work product-protected documents must then generally list the withheld documents on a privilege log, ⁴ and at some point may have to present evidence...