Chapter 56 Evidentiary Support

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

Chapter 56

EVIDENTIARY SUPPORT

56.1 INTRODUCTION

Litigants may be called upon to present evidence justifying their withholding of protected communications or documents.

56.2 TIMING OF REQUIREMENT FOR EVIDENTIARY SUPPORT

Courts disagree about such an evidentiary requirement's scope and timing. [56.201]

Most courts take what seems like the most logical approach, requiring litigants to provide evidentiary support only if and when adversaries challenge particular log entries. [56.202]

A few courts apparently require full evidentiary support for each withheld communication or document when litigants prepare their logs. [56.203]

56.3 FOCUS ON THE FOUR CORNERS OF WITHHELD DOCUMENTS

Some courts seem to erroneously focus exclusively on withheld documents' four corners, without also considering the withholding litigants' explanation of such documents' context or motivation. ¹

VA The Western District of Virginia ² focused on the four corners of documents in analyzing privilege protection.

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56.4 GENERAL RULE REQUIRING EVIDENTIARY SUPPORT

Some courts explicitly allow litigants to justify their withholding based only on the documents, without requiring any evidentiary support.

• Many courts implicitly take that

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