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What to Know About Attorney Client Privilege During Discovery

what you need to know about attorney client privilege during the trial discovery process by davis law group pc in chesapeake, virginia

What to Know About Attorney Client Privilege During Discovery

February 29, 2024 Davis Law Group

If you are heading to trial, you may have found yourself involved in a process called “discovery.”

During discovery, you must draft written responses to questions posed by the opposing party and send them documents that they’ve requested. In all likelihood, you send the answers and documents to your attorney first who then reviews them before sending them to the opposing party.

When answering the questions and compiling the documents, you may be tempted to keep some information from your attorney because you think it should be protected from discovery. Perhaps you have heard about the attorney-client privilege or the work product doctrine and how these exceptions allow you to keep information from the other party. These exceptions, when asserted correctly, can protect information that you would rather not reveal. But what exactly are these exceptions, and how can they be used to protect your information?

Attorney-Client Privilege

The attorney-client privilege protects confidential communications made between a client and attorney for the purpose of securing legal advice. Any communications subject to the attorney-client privilege are protected from disclosure during discovery. The purpose of this privilege is to promote honest communication between attorney and client without the client fearing that his secrets will be shared. However, because this privilege bars discovery, courts view it as an obstacle to the truth and therefore strictly construe it.

The party seeking to invoke the attorney-client privilege has the burden to show that the attorney-client relationship existed, the communication was confidential, and the privilege was not waived. This showing can be nuanced. For example, the attorney-client privilege does not attach to a document or item merely because a client gave it to the attorney. Rather, the privilege only applies to communications. The communication must be confidential, and the information must then remain confidential. Otherwise, the privilege could be waived.

Work Product Doctrine

The work product doctrine protects materials prepared in anticipation of litigation from discovery. This could include materials such as interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs. The doctrine also protects an attorney or the party’s representative from disclosing the identities of people that the attorney or representative has interviewed. But the doctrine does not necessarily protect the facts that the attorney or representative has learned about the case.

The materials do not necessarily have to be prepared by the party’s attorney; even materials that are prepared by people such as employees or party representatives may be protected by the work product doctrine.

However, materials protected by the work product doctrine may still be discoverable if the opposing party can demonstrate a substantial need for the materials and that he or she cannot procure them by other means. This might arise in a situation where one attorney has test results related to evidence that subsequently was lost or destroyed before the opposing attorney had a chance to run similar tests. Even if such a need is shown, an attorney’s mental impressions, conclusions, opinions, and legal theories are absolutely protected from disclosure.

The determination of whether the work product doctrine protects certain materials from discovery can also be somewhat complicated and involve additional hearings before the court.

Protecting Information from Discovery

Determining whether these exceptions apply can be a complicated and detailed process. Ultimately, it is up to your attorney to make that determination and to convince the court that the information is protected from discovery. To do so effectively, your attorney must know the information. Therefore, you should notify your attorney that you believe such information is protected from discovery, but you should still supply the information so that your attorney can craft the best arguments for why it should not be discoverable. No competent attorney will automatically turn over any information or documents you supply without first reviewing them to see whether an exception applies.

Beyond being able to decide whether an exception applies and how to craft the best argument to convince a court to agree, your attorney will need the information and documents so that he or she can develop a privilege log and be prepared for any possible in camera review. Courts require a privilege log so that the opposing party can assess any claim of privilege. An attorney claiming that something is protected from discovery must describe the document, communication, or thing with enough detail for the opposing party to evaluate the accuracy of the claim. Generally, this means that the attorney must describe the author, recipient, the date of the communication or creation of the document, and what exception is being invoked. Courts occasionally order disclosure of an otherwise undiscoverable document or communication because the attorney has not adequately described the item on the privilege log. Therefore, it is of utmost importance to give your attorney all potentially relevant documents so that he or she can preserve all claims of privilege.

A court will sometimes order an in camera review of a disputed document or communication. An in camera review occurs when a judge privately reviews a document or communication. The review is not open to the public, so it either occurs in the judge’s chambers or in an empty courtroom without the jury and any media. The judge will examine the document or communication to determine whether it should be protected from discovery. For this to be effective, your attorney must have a copy of the document or communication to supply to the judge.

Davis Law Group Can Help

Discovery can be a daunting process, but you don’t have to go through it alone. If you are facing potential litigation, make an appointment with one of our experienced litigators today so we can provide you with peace of mind.