Chapter 59 Courts’ Role

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

Chapter 59

Courts' Role

59.1 INTRODUCTION

Courts sometimes face procedural issues when assessing privilege and work product claims.

• Examples include determining whether to bifurcate proceedings to avoid any privilege issues; determining who should decide privilege/work product issues; analyzing whether the court should review withheld communications or documents in camera.

59.2 BIFURCATION OF PATENT AND OTHER CASES

Some courts consider whether they should bifurcate proceedings, thus delaying privilege/work product issues until later and perhaps avoiding the issues altogether. [59.201]

Patent cases can be good candidates for such bifurcation. [59.202]

• Litigants can sometimes avoid reliance on advice of counsel defenses if the first phase of such litigation resolves the case.

Only a few courts have dealt with the bifurcation issue in non-patent cases. [59.203]

59.3 WHO SHOULD DECIDE PRIVILEGE/WORK PRODUCT ISSUES

Some courts have discussed who can or should assess privilege/work product claims. [59.301]

This issue can involve constitutional and common sense considerations. [59.302]

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Some courts indicate that Article II judges do not possess the authority to order withheld communications or documents produced. ¹

Surprisingly few courts recognize what seems like a common-sense concept—that the judge hearing a case (especially in a non-jury setting) should arrange for another judge to review arguably protected communications or documents.

• Such a process prevents any adverse effects of the trial judge reviewing what should never have been disclosed, and discourages adversaries' attempts to

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