Chapter 57 Litigating the Protections

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

Chapter 57

LITIGATING THE PROTECTIONS

57.1 INTRODUCTION

If adversaries seek to overcome litigants' privilege or work product claims, courts may have to deal with issues such as standing, burdens of proof, and the effect of headers or stamps.

57.2 STANDING

Standing to assert privilege or work product protection usually follows those protections' ownership. ¹

Other standing issues sometimes arise when litigants assert and litigate either protection.

• Protections' owners usually can attend depositions or trials, and assert their protections.

• Protections' owners usually can seek trial or appellate court relief from subpoenas or other discovery.

57.3 ADVERSE INFERENCE

Some courts preclude adversaries from arguing or implying that litigants act inappropriately or are "hiding something" when they assert privilege or work product protection claims.

• Some courts rely on specific rules prohibiting adversaries from arguing such an adverse inference.

• The Eastern District of Virginia ² held that an adversary could not make an adverse inference based on a litigant's privilege claim.

[Page 368]

In contrast, some courts take a less protective approach, allowing trial adversaries to pose questions that will draw litigants' privilege or work product objections.

57.4 NARROWNESS OF THE PROTECTIONS

Most courts narrowly construe attorney-client privilege protection.

• Some courts take the same narrow approach in applying work product protection.

57.5 PRESUMPTIONS

Some courts rely on presumptions when analyzing privilege or work product claims. [57.501]

Some courts presume that communications between clients and their lawyers deserve privilege protection, although most of those courts are in California. [57.502]

Some courts recognize presumptions in the corporate context. [57.503]

• Some courts presume that outside lawyers' communications deserve privilege protection while in-house lawyers' do not; that communications to or from in-house lawyers outside the law department do not deserve protection. ³

Many courts do not recognize any presumptions in favor of or against privilege or work product protection. [57.504]

57.6 RELATIONSHIP TO WAIVER

Courts apply both express and implied waiver principles in analyzing litigants' dealings with arguably protected communications and documents. [57.601]

Clients and lawyers can expressly waive attorney-client privilege and work product protection by failing to assert the protections. [57.602]

[Page 369]

• Such lapses might result in intentional express waivers (as when deponents disclose privileged communications without objection), or inadvertent express waivers (as when litigants produce protected documents without having taken adequate precautions).

Clients and their lawyers can also forfeit privilege or work product protection without disclosing protected communications or documents. [57.603]

This lapse might be characterized as a "waiver," but that seems incorrect.

• Litigants' failure to adequately support the withholding of protected communications or documents should not be considered an express

...