Privilege

Privilege

Thomas E. Spahn | McGuireWoods LLP

One widespread misperception about attorney-client privilege and work product doctrine assertions is that the Federal Rules require a privilege log. As one court bluntly put it, "no where in Fed. R. Civ. Pro. 26(b)(5) is it mandated that a document-by-document privilege log is required, if a party seeks to withhold documents based on privilege or work product."

Privilege

Thomas E. Spahn | McGuireWoods LLP

Not surprisingly, attorney-client privilege protection evaporates once a client and her lawyer agree that a document can be disclosed to outsiders -- even before it is disclosed. But some courts have inexplicably applied this principle to preliminary drafts.

Discovery

Thomas E. Spahn | McGuireWoods LLP

It should go without saying that sending pre-existing historical documents to a lawyer does not automatically immunize them from discovery as privileged. If it did, clients could box up all of their files and send them to a lawyer ― thus avoiding the documents’ discovery.