Chapter 54 Asserting the Protections

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

Chapter 54

ASSERTING THE PROTECTIONS

54.1 INTRODUCTION

Litigants who might withhold protected communications or documents must collect responsive documents, withhold those deserving protection, file appropriate and timely objections, and sometimes redact protected parts of otherwise unprotected documents.

• Most courts apply these rules to documents, but the rules also apply to other communications.

54.2 HORIZONTAL SCOPE OF LITIGANT'S DUTY

Litigants must deal with relevant documents, which initially involve what could be called the "horizontal" scope of their duty. [54.201]

Federal rules require litigants to deal with documents within their "custody or control." [54.202]

Although ethics rules and common law fiduciary duties generally give litigants control over documents in their lawyers' possession, most litigants seem to ignore their arguable obligation to deal with those. [54.203]

Litigants normally take the same approach to documents their former lawyers possess. [54.204]

When governments seize documents that might contain protected material, they usually arrange for their lawyers to review the seized documents. [54.205]

• Most courts approve this process, in which the reviewing "taint team" lawyers play no substantive role in the governments' litigation efforts.

[Page 352]

54.3 TEMPORAL SCOPE OF LITIGANT'S DUTY

Litigants must also address what could be called the "temporal" scope of their duty.

Courts disagree about litigants' possible duty to review...