| Publication Date: | 2017 |
| Available Formats: | Print (385 pages, softcover, 1 volume) |
| Electronic (searchable PDF via flash drive, CD, or immediate download) | |
| Both Print and Electronic formats | |
| Online Publications Library: Access our full library of books online with universal search and links to primary law. |
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| Product #: | 966 |
“A Virginia-Specific Summary Guide: The Attorney-Client Privilege and the Work Product Doctrine provides Virginia practitioners a quick and easy-to-use guide to unique and important Virginia-specific attorney-client privilege and work product principles. The book generally summarizes the consensus approach to most privilege and work product topics, but it also contains specific Virginia citations for those issues where Virginia deviates from the majority rule, or has selected from a number of positions that states recognize, such as the degree of “anticipation” required to support a work product claim.” —Thomas E. Spahn, author
This Virginia-specific book is a condensed version of the 1,500+ pages book also published by Virginia CLE®, entitled The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide (3d Edition 2013). The Summary Guide is designed to help Virginia practitioners understand general attorney-client and work product concepts, with a specific focus on Virginia law addressing those evidentiary protections. While the larger Practitioner’s Guide covers privilege and work product law at length and on a national scale, the Summary Guide cites cases from outside Virginia only if they are especially noteworthy.
Tom Spahn continues to monitor attorney-client and work product cases throughout the country, and has made summaries of those cases available at an online database at http://attorneyclientprivilege.mcguirewoods.com. Though available to everyone, the database will be most beneficial to those owning either the Summary Guide or Practitioner’s Guide, as the database is keyed to the chapter and section headings common to both books. By using the database in concert with the book, you’ll have the most up-to-date information on these very important, and often misunderstood and misapplied, legal doctrines.
1.1 INTRODUCTION
1.2 ATTORNEY-CLIENT PRIVILEGE
1.3 CLIENTS
1.4 LAWYERS
1.5 CONTENT OF COMMUNICATIONS
1.6 CONTEXT OF COMMUNICATION
1.7 PRIVILEGE PROTECTION FOR INTERNAL CORPORATE INVESTIGATION
1.8 WAIVER OF THE PRIVILEGE
1.9 WORK PRODUCT PROTECTION
1.10 PROTECTED CONTENT
1.11 PROTECTION FOR INTERNAL CORPORATE INVESTIGATIONS
1.12 OVERCOMING WORK PRODUCT PROTECTION
1.13 WAIVER OF THE WORK PRODUCT PROTECTION
1.14 LITIGATION OVERVIEW
1.15 SOURCE AND CHOICE OF LAW
1.16 ASSERTING THE PROTECTIONS
1.17 LITIGATING THE PROTECTIONS
2.1 INTRODUCTION
2.2 ETHICS DUTY OF CONFIDENTIALITY CONTRASTED
2.3 SOCIETAL BENEFITS AND COSTS OF THE PRIVILEGE
2.4 THE PRIVILEGE’S ABSOLUTE PROTECTION
2.5 CLIENTS’ AND LAWYERS’ INABILITY TO CREATE OR DISCLAIM PRIVILEGE PROTECTION
2.6 CONSENSUS FORMULATION
2.7 KEY ELEMENTS OF THE PRIVILEGE
2.8 TYPES OF PRIVILEGED COMMUNICATIONS
2.9 CURRENT TRENDS AND THE FUTURE
3.1 INTRODUCTION
3.2 EXISTENCE OF AN ATTORNEY-CLIENT RELATIONSHIP
3.3 CLIENT’S ACTIONS AND UNCOMMUNICATED STATEMENTS
3.4 CLIENT’S OWNERSHIP OF THE PRIVILEGE
4.1 INTRODUCTION
4.2 PROSPECTIVE CLIENTS
4.3 INDIVIDUAL CLIENTS
4.4 GOVERNMENT ENTITIES AS CLIENTS
4.5 NON-CORPORATE INSTITUTIONAL CLIENTS
5.1 INTRODUCTION
5.2 NUMBER OF JOINTLY REPRESENTED CLIENTS
5.3 EXISTENCE OF A JOINT REPRESENTATION
5.4 EFFECT OF A JOINT REPRESENTATION: ETHICS RULES
5.5 EFFECT OF A JOINT REPRESENTATION: PRIVILEGE PRINCIPLES
5.6 WAIVER IN JOINT REPRESENTATIONS
5.7 ADVERSITY AMONG JOINTLY REPRESENTED CLIENTS
5.8 COMPARISON TO COMMON INTEREST AGREEMENTS
6.1 INTRODUCTION
6.2 DEFINING THE “CLIENT” WITHIN A CORPORATE ENTITY
6.3 COMMUNICATIONS WITHIN A CORPORATE FAMILY
6.4 EFFECT OF CORPORATE STOCK TRANSACTIONS
6.5 EFFECT OF CORPORATE ASSET TRANSACTIONS
6.6 REPRESENTATION OF CORPORATE AFFILIATES IN THE TRANSACTION
6.7 AGREEMENTS ALTERING THE PRIVILEGE’S OWNERSHIP
6.8 BANKRUPT AND DEFUNCT CORPORATIONS
6.9 SEPARATE AND JOINT REPRESENTATIONS OF EMPLOYEES
6.10 UPJOHN STANDARD FOR COMMUNICATIONS
6.11 “NEED TO KNOW” STANDARD FOR COMMUNICATIONS
6.12 COMMUNICATIONS WITH FORMER EMPLOYEES
6.13 COMMUNICATIONS WITH INDEPENDENT CONTRACTORS
6.14 COMMUNICATIONS WITH AGENTS/CONSULTANTS
6.15 RIGHT TO PRIVILEGED COMMUNICATIONS
7.1 INTRODUCTION
7.2 HISTORIC TRUST PRINCIPLE
7.3 SHAREHOLDERS’ RIGHT TO PRIVILEGED COMMUNICATIONS
7.4 NAMING THE EXPANDED DOCTRINE
7.5 COURTS’ CONTINUING DEBATE ABOUT APPLICABILITY
7.6 ABSENCE OF “GOOD CAUSE” REQUIREMENT
7.7 EXAMPLES TO WHICH EXCEPTION APPLIES
7.8 EXAMPLES TO WHICH EXCEPTION DOES NOT APPLY
7.9 LIMITATION TO FIDUCIARY FUNCTIONS
7.10 “SETTLOR EXCEPTION”
7.11 “LIABILITY EXCEPTION”
7.12 OTHER FIDUCIARY EXCEPTION ISSUES
7.13 APPLICATION TO LAW FIRMS
8.1 INTRODUCTION
8.2 CHARACTERIZATION OF CLIENT AGENTS
8.3 CLIENT AGENTS NECESSARY TO TRANSMIT COMMUNICATIONS
8.4 DEFINING THE LEVEL OF NECESSITY
8.5 CLIENT AGENTS WITHIN PRIVILEGE PROTECTION
8.6 CLIENT AGENTS OUTSIDE PRIVILEGE PROTECTION
8.7 IMPORTANCE OF A CHOICE OF LAW ANALYSIS
8.8 “FUNCTIONAL EQUIVALENT” DOCTRINE
8.9 CHANGE IN AGENTS’ ROLES
8.10 CLIENT AGENTS VERSUS LAWYER AGENTS
8.11 APPLICATION OF THE WORK PRODUCT DOCTRINE
8.12 IMPORTANCE OF EDUCATING CLIENTS
9.1 INTRODUCTION
9.2 NONLAWYERS
9.3 PATENT AGENTS
9.4 NONLAWYERS THOUGHT BY CLIENTS TO BE LAWYERS
9.5 LAWYERS NOT ABLE TO PRACTICE LAW
9.6 MULTIJURISDICTIONAL PRACTICE ISSUES
9.7 IN HOUSE LAWYERS
9.8 FOREIGN NONLAWYERS
9.9 FOREIGN LAWYERS
9.10 WORK PRODUCT DOCTRINE CONTRASTED
10.1 INTRODUCTION
10.2 PRIVILEGE PROTECTION FOR LAWYER AGENTS
10.3 COMPARISON TO CLIENT AGENTS
10.4 LAWYER AGENTS TRANSMITTING PRIVILEGED COMMUNICATIONS
10.5 OTHER LAWYER AGENTS
10.6 SCOPE OF AVAILABLE PROTECTION
10.7 PROTECTED LAWYER AGENTS VERSUS UNPROTECTED CLIENT AGENTS
10.8 NONDISPOSITIVE FACTORS
10.9 “NEED” FOR THE AGENT’S ASSISTANCE
10.10 BEST PRACTICES
10.11 LAWYER AGENTS INSIDE THE PRIVILEGE
10.12 LAWYER AGENTS OUTSIDE THE PRIVILEGE
10.13 “MORPHING” OF A LAWYER AGENT ROLE
10.14 LAWYER AGENTS PLAYING DUAL ROLES
10.15 NON-TESTIFYING EXPERTS
10.16 LAWYER AGENT’S ROLE IN WORK PRODUCT DOCTRINE PROTECTION
11.1 INTRODUCTION
11.2 COMMUNICATIONS ABOUT BACKGROUND INFORMATION
11.3 FACT OF THE REPRESENTATION
11.4 GENERAL SUBJECT MATTER OF THE REPRESENTATION
11.5 UNPROTECTED FEE INFORMATION
11.6 PROTECTED FEE INFORMATION
11.7 LAWYERS’ BILLS
11.8 BACKGROUND FACTS ABOUT ATTORNEY-CLIENT COMMUNICATIONS
11.9 SUBJECT MATTER OF ATTORNEY-CLIENT COMMUNICATIONS
12.1 INTRODUCTION
12.2 APPROACH OF THIS OUTLINE
12.3 FORMS OF TRANSMISSION AND SUBSTANCE
12.4 CLIENTS’ ACTS
12.5 LAWYERS’ ACTS
13.1 INTRODUCTION
13.2 COMMON MISPERCEPTIONS ABOUT THE PRIVILEGE
13.3 COMMUNICATIONS DESERVING PRIVILEGE PROTECTION
13.4 BASIC PRINCIPLES
13.5 ANALYZING EACH COMMUNICATION
13.6 ANALYZING EACH COMMUNICATION
14.1 INTRODUCTION
14.2 LAWYER’S ROLE IS NOT DISPOSITIVE
14.3 LAWYERS INVOLVED IN INVESTIGATIONS
14.4 LAWYERS INVOLVED IN OTHER MATTERS
14.5 IN HOUSE LAWYERS
14.6 LAWYERS AS CONDUITS TO OR FROM CLIENTS
14.7 WORK PRODUCT
15.1 INTRODUCTION
15.2 DISTINGUISHING BETWEEN LEGAL AND BUSINESS ADVICE
15.3 APPLYING THE “PRIMARY PURPOSE” TEST
15.4 WIDESPREAD INTRACORPORATE CIRCULATION
15.5 OTHER TYPES OF NONLEGAL ADVICE
16.1 INTRODUCTION
16.2 UNCOMMUNICATED CLIENT DOCUMENTS
16.3 CLIENT-TO-CLIENT COMMUNICATIONS
16.4 CLIENT’S EXPLICIT OR IMPLICIT REQUEST FOR LEGAL ADVICE: INTRODUCTION
16.5 UNPROTECTED HISTORICAL FACTS
16.6 PRE-EXISTING DOCUMENTS RECEIVED FROM CLIENT
16.7 CLIENT’S NON-SUBSTANTIVE COMMUNICATIONS
16.8 CLIENT COMMUNICATIONS RELAYING HISTORICAL FACTS
16.9 REVIEW OF DRAFT DOCUMENTS
16.10 DRAFTS CLIENTS INTEND TO DISCLOSE
16.11 CLIENTS’ ACTS AFTER ADVICE IS RECEIVED
17.1 INTRODUCTION
17.2 UNCOMMUNICATED LAWYER DOCUMENTS
17.3 LAWYER-TO-LAWYER COMMUNICATIONS
17.4 RULES GOVERNING LAWYER-TO-CLIENT COMMUNICATIONS
17.5 LAWYERS’ REQUESTS FOR FACTS FROM CLIENTS
17.6 HISTORICAL FACTS
17.7 HISTORICAL FACTS WITHIN THE LAWYER’S KNOWLEDGE
17.8 PRE-EXISTING DOCUMENTS THAT LAWYERS GIVE TO THEIR CLIENTS
17.9 LAWYER’S DOCUMENTS RELAYING FACTS TO CLIENTS
17.10 DRAFTS
17.11 PROTECTION FOR LAWYER-CREATED DRAFTS
17.12 LEGAL ADVICE: GENERAL RULES
17.13 PROTECTED AND UNPROTECTED LAWYER ADVICE
17.14 LAWYER’S ACTIONS
17.15 EXPECTATION OF DISCLOSURE
17.16 DISCOVERY ABOUT DISCOVERY
17.17 WORK PRODUCT PROTECTION
18.1 INTRODUCTION
18.2 APPLICABILITY TO FUTURE WRONGDOING
18.3 WRONGDOING COVERED BY THE EXCEPTION
18.4 CONNECTION BETWEEN THE WRONGDOING AND THE COMMUNICATION
18.5 KNOWLEDGE OF THE WRONGDOING
18.6 APPLYING THE EXCEPTION
18.7 PROCESS FOR APPLYING THE EXCEPTION
18.8 LATER ATTEMPTS TO ESTABLISH THE EXCEPTION
18.9 FIRST STEP: IN CAMERA REVIEW
18.10 SECOND STEP: EVIDENCE AND HEARING
18.11 STANDARD FOR OVERCOMING THE PRIVILEGE
18.12 EXPANSION OF THE EXCEPTION
19.1 INTRODUCTION
19.2 “EXPECTATION OF CONFIDENTIALITY” ELEMENT
19.3 CHARACTERIZING THIRD PARTIES’ INVOLVEMENT
19.4 EXPECTATION OF CONFIDENTIALITY VERSUS WAIVER
19.5 SLOPPY HANDLING OF PRIVILEGED COMMUNICATIONS
19.6 UNINVITED THIRD PARTIES
19.7 INVITED THIRD PARTIES
19.8 INTRACORPORATE COMMUNICATIONS WITH CORPORATE EMPLOYEES
19.9 INVITED CLIENT AGENTS
19.10 FAMILY MEMBERS
19.11 INVITED LAWYER AGENTS
19.12 ELECTRONIC COMMUNICATIONS
19.13 PERSONAL COMMUNICATIONS ON WORK COMPUTERS
19.14 SLOPPY DESTRUCTION OF PRIVILEGED COMMUNICATIONS
19.15 WORK PRODUCT DOCTRINE
20.1 INTRODUCTION
20.2 COMMON INTEREST DOCTRINE VERSUS JOINT REPRESENTATIONS
20.3 HISTORY OF THE COMMON INTEREST DOCTRINE
20.4 NATURE OF THE PROTECTION
20.5 LITIGATION ELEMENT
20.6 CREATION OF THE PROTECTION
20.7 TYPES OF COMMON INTEREST SUPPORTING AGREEMENT
20.8 DEGREE OF COMMONALITY REQUIRED
20.9 LAWYERS’ INVOLVEMENT
20.10 COURTS’ APPLICATION OF THE DOCTRINE
20.11 EXAMPLES OF ASSERTIONS OF THE DOCTRINE
20.12 DANGER OF A SUBJECT MATTER WAIVER
20.13 APPLICABILITY IN THE INSURANCE CONTEXT
20.14 LATER ADVERSITY AMONG PARTICIPANTS
20.15 DISCOVERY ABOUT DISCOVERY
20.16 WORK PRODUCT
21.1 INTRODUCTION
21.2 INTENT TO DISCLOSE VERSUS WAIVER
21.3 DOCUMENTS
21.4 INFORMATION
21.5 COMMUNICATIONS
21.6 RELATED COMMUNICATIONS
21.7 PRELIMINARY DRAFTS OF DOCUMENTS
21.8 PRIVILEGED DOCUMENTS THAT WILL BE USED AT TRIAL
21.9 WORK PRODUCT
22.1 INTRODUCTION
22.2 EARLY DECISION IN THE INVESTIGATION CONTEXT
22.3 COMMUNICATIONS ABOUT THE INVESTIGATION
22.4 FACTS AND LOGISTICS OF THE INVESTIGATION
22.5 INTERNAL CORPORATE INVESTIGATIONS: INTRODUCTION
22.6 INITIATION OF THE INVESTIGATION
22.7 COURSE OF THE INVESTIGATION
22.8 USE OF THE INVESTIGATION
22.9 “MORPHED” INVESTIGATIONS WITH CHANGING MOTIVATIONS
22.10 PARALLEL OR SUCCESSIVE INVESTIGATIONS
22.11 EXAMPLES OF INTERNAL CORPORATE INVESTIGATIONS
22.12 WAIVER IN THE INVESTIGATION CONTEXT
22.13 WORK PRODUCT IN THE INVESTIGATION CONTEXT
22.14 PRIVILEGE PROTECTION IN THE INSURANCE CONTEXT
23.1 INTRODUCTION
23.2 PRIVILEGE CAN BE UNAVAILABLE OR LOST
23.3 NO NEED FOR CLIENT INTENT TO WAIVE
23.4 WAIVER CHAPTERS OF THIS OUTLINE
24.1 INTRODUCTION
24.2 INDIVIDUALS AND THEIR SUCCESSORS
24.3 JOINTLY REPRESENTED CLIENTS
24.4 JOINT DEFENSE/COMMON INTEREST PARTICIPANTS
24.5 GOVERNMENT CLIENTS
24.6 CORPORATE CLIENTS
24.7 OTHER CLIENTS
24.8 LAWYERS
24.9 OTHERS
24.10 WORK PRODUCT
25.1 INTRODUCTION
25.2 DIFFERENT TYPES OF EXPRESS WAIVERS
25.3 DISCLOSURE DOES NOT AUTOMATICALLY WAIVE THE PRIVILEGE
25.4 HOW WAIVER CAN OCCUR
25.5 DISCLOSURE VERSUS MERE ACCESS TO A COMMUNICATION
25.6 DISCLOSURE OF NON-PRIVILEGED COMMUNICATIONS OR FACTS
25.7 DISCLOSURE OF THE “GIST” OF A PRIVILEGED COMMUNICATION
25.8 VOLUNTARY VERSUS COMPELLED DISCLOSURE
25.9 DISCLOSING PARTY’S DISCLAIMER OF A WAIVER
25.10 EFFECT OF A CONFIDENTIALITY WARNING
25.11 EFFECT OF A CONFIDENTIALITY AGREEMENT
25.12 COURT ORDERS PURPORTING TO ALLOW SELECTIVE WAIVERS
25.13 NORMAL EFFECT OF AN EXPRESS WAIVER
26.1 INTRODUCTION
26.2 ANALYSIS OF THE EFFECT OF DISCLOSURE
26.3 DISCLOSURE IN THE LITIGATION CONTEXT
26.4 DISCLOSURE TO THE GOVERNMENT: STATUTES
26.5 DISCLOSURE TO THE GOVERNMENT: COMMON LAW
26.6 FEDERAL RULE OF EVIDENCE 502: SELECTIVE WAIVERS
26.7 FACTS DISCLOSED TO THE GOVERNMENT
26.8 CORPORATE NEGOTIATIONS OR TRANSACTIONS
26.9 INTRACORPORATE DISCLOSURE
26.10 CORPORATE AND OTHER CLIENT AGENTS
26.11 DISCLOSURE TO LAWYER AGENTS
26.12 OTHER RELATIONSHIPS
26.13 DISCLOSURE IN OTHER CONTEXTS
26.14 SELECTIVE WAIVERS PRE- AND POST-RULE 502
26.15 SUBJECT MATTER WAIVER
26.16 WORK PRODUCT
27.1 INTRODUCTION
27.2 PRESENCE OF THIRD PARTIES ELEMENT
27.3 “INTENT TO DISCLOSE” ELEMENT
27.4 ETHICS ISSUES
27.5 UNAUTHORIZED DISCLOSURE
27.6 POST-PRODUCTION PRIVILEGE ASSERTIONS
27.7 MEANING OF “INADVERTENT”
27.8 DOCUMENT PRODUCTIONS PRE-RULE 502
27.9 FEDERAL RULE OF EVIDENCE 502
27.10 APPLICATION OF RULE 502
27.11 INADVERTENCE FACTOR
27.12 REASONABLE STEPS TO PREVENT DISCLOSURE
27.13 NUMBER OF DISCLOSURES
27.14 PROMPTNESS OF REMEDIAL MEASURES
27.15 OTHER FACTORS
27.16 NON-WAIVER: CLAWBACK AGREEMENTS AND COURT ORDERS
27.17 THE CLAWBACK DILEMMA
27.18 OTHER INADVERTENT DISCLOSURE
27.19 EFFECT OF AN INADVERTENT DISCLOSURE
27.20 SUBJECT MATTER WAIVER
27.21 WORK PRODUCT
28.1 INTRODUCTION
28.2 IMPLIED VERSUS EXPRESS WAIVER
28.3 OTHER UNINTENTIONAL DISCLOSURES
28.4 DIFFERENCE BETWEEN IMPLIED WAIVER AND A LITIGANT’S FAILURE OF PROOF IN SUPPORTING A PRIVILEGE CLAIM
28.5 RULE 502
28.6 THE “AT ISSUE” DOCTRINE
28.7 CLIENTS’ ATTACKS ON LAWYERS AND LEGAL ADVICE
28.8 THIRD PARTIES’ ATTACKS ON LAWYERS
28.9 LAWYERS’ ATTACKS ON CLIENTS
28.10 CLIENT CLAIMS FOR ATTORNEY FEES
28.11 RELIANCE ON LEGAL ADVICE AS AN AFFIRMATIVE DEFENSE
28.12 RELIANCE ON LEGAL ADVICE IN OTHER CONTEXTS
28.13 DEPOSITION REFERENCES TO PRIVILEGED COMMUNICATIONS
28.14 CLIENTS’ DENIAL OF COMMUNICATIONS WITH A LAWYER
28.15 CLIENTS’ DESIGNATION OF A LAWYER AS A WITNESS
28.16 RELIANCE ON LEGAL ADVICE OUTSIDE COURT PROCEEDINGS
28.17 PRIVILEGED COMMUNICATIONS USED AT TRIAL
28.18 “AT ISSUE” WAIVER
28.19 FEDERAL RULE OF EVIDENCE 612
28.20 EFFECT OF IMPLIED WAIVER
28.21 SCOPE OF IMPLIED WAIVER
28.22 WORK PRODUCT
29.1 INTRODUCTION
29.2 CONFUSION ABOUT THE “AT ISSUE” DOCTRINE
29.3 NATURE OF THE “AT ISSUE” WAIVER DOCTRINE
29.4 SPECTRUM OF JUDICIAL APPROACHES
29.5 HEARN DOCTRINE AND RELEVANT FACTORS
29.6 HEARN DOCTRINE: ASSERTIONS OF KNOWLEDGE
29.7 HEARN DOCTRINE: IGNORANCE
29.8 HEARN DOCTRINE: ACTION OR INACTION
29.9 THE FARAGHER/ELLERTH DEFENSE
29.10 HEARN DOCTRINE: OTHER EXAMPLES
29.11 ABILITY TO ABANDON ASSERTIONS OR DEFENSES
29.12 EFFECT OF AN “AT ISSUE” WAIVER
29.13 SCOPE OF POSSIBLE SUBJECT MATTER WAIVER
29.14 WORK PRODUCT DOCTRINE
30.1 INTRODUCTION
30.2 FAIRNESS OF A SUBJECT MATTER WAIVER
30.3 NECESSITY OF A WAIVER
30.4 INTENTIONAL EXPRESS WAIVER: JUDICIAL SETTING
30.5 AVOIDING A SUBJECT MATTER WAIVER
30.6 INTENTIONAL EXPRESS WAIVER: NON-JUDICIAL SETTING
30.7 INADVERTENT EXPRESS WAIVER UNDER RULE 502
30.8 IMPLIED WAIVERS, “AT ISSUE” WAIVERS, AND RULE 612
30.9 WORK PRODUCT DOCTRINE
31.1 INTRODUCTION
31.2 GENERAL APPROACH
31.3 TYPES OF SCOPE: HORIZONTAL AND TEMPORAL
31.4 SCOPE OF INTENTIONAL EXPRESS WAIVERS
31.5 SCOPE OF INADVERTENT EXPRESS WAIVERS
31.6 SCOPE OF IMPLIED WAIVERS
31.7 SCOPE OF “AT ISSUE” WAIVERS
31.8 WORK PRODUCT DOCTRINE
32.1 INTRODUCTION
32.2 FEDERAL RULES AND POST-PRODUCTION PRIVILEGE CLAIMS
32.3 FEDERAL RULE OF EVIDENCE 502
32.4 FEDERAL RULES GOVERNING TESTIFYING EXPERTS
32.5 GOVERNMENTAL REQUESTS FOR WAIVER OF PROTECTIONS
32.6 PROPOSALS ON SELECTIVE WAIVER BY CORPORATIONS
32.7 CONCLUSION
33.1 INTRODUCTION
33.2 COMMON LAW ANTECEDENTS
33.3 FIRST RECOGNIZED IN HICKMAN V. TAYLOR
33.4 FEDERAL RULES OF CIVIL PROCEDURE
33.5 CONTINUING FEDERAL COMMON LAW PRINCIPLES
33.6 NAMING THE DOCTRINE
33.7 COMPARISON TO THE ATTORNEY-CLIENT PRIVILEGE
33.8 AVAILABILITY OF BOTH PROTECTIONS
33.9 DIFFERING APPLICATIONS OF THE WORK PRODUCT DOCTRINE
34.1 INTRODUCTION
34.2 CREATION OF PROTECTED WORK PRODUCT
34.3 LAWYER NEED NOT BE INVOLVED
34.4 ADVANTAGES OF A LAWYER’S INVOLVEMENT
34.5 CLIENT AND LAWYER REPRESENTATIVES
34.6 FRIENDLY THIRD PARTIES’ ROLE
34.7 NON-TESTIFYING EXPERTS
34.8 TESTIFYING EXPERTS
34.9 PARTIES’ ASSERTION OF WORK PRODUCT PROTECTION
34.10 NON-PARTIES’ ASSERTION OF WORK PRODUCT PROTECTION
34.11 OWNERSHIP OF LAWYERS’ FILES
35.1 INTRODUCTION
35.2 PRIMACY OF CONTEXT OVER CONTENT
35.3 IRRELEVANCE OF AN ATTORNEY-CLIENT RELATIONSHIP
35.4 IRRELEVANCE OF COMMUNICATION
35.5 IRRELEVANCE OF CONFIDENTIALITY
35.6 PRESENCE OF NON-ADVERSE THIRD PARTIES
35.7 JOINT DEFENSE/COMMON INTEREST AGREEMENTS
35.8 CRITICAL ROLE OF TIMING
35.9 WORK PRODUCT INTENDED FOR USE AT DEPOSITIONS
35.10 WORK PRODUCT INTENDED FOR USE AT TRIAL
36.1 INTRODUCTIO
36.2 RELATIONSHIP OF LITIGATION, ANTICIPATION, AND MOTIVATION
36.3 JUDICIAL PROCEEDINGS
36.4 BANKRUPTCY PROCEEDINGS
36.5 NON-JUDICIAL PROCEEDINGS
36.6 GOVERNMENT INVESTIGATIONS
36.7 ATTORNEY-CLIENT PRIVILEGE
37.1 INTRODUCTION
37.2 LITIGATION AND “ANTICIPATION” OF LITIGATION
37.3 SUBJECTIVE AND OBJECTIVE ANTICIPATION
37.4 MOTIVATION TO SETTLE OR AVOID LITIGATION
37.5 REQUIREMENT OF A SPECIFIC IDENTIFIABLE CLAIM
37.6 DEGREE OF ANTICIPATION OF LITIGATION
37.7 DATE AND DURATION OF ANTICIPATION
37.8 TRIGGER EVENTS FOR REQUIRED ANTICIPATION
37.9 RISK OF POSSIBLE SPOLIATION CLAIMS
38.1 INTRODUCTION
38.2 RELATIONSHIP TO ANTICIPATION OF LITIGATION ELEMENT
38.3 NECESSITY OF MEETING THE MOTIVATION STANDARD
38.4 DOCUMENTS CREATED AFTER LITIGATION ENDS
38.5 DUAL MEANING OF THE “PRIMARY PURPOSE” TEST
38.6 LIMITING PROTECTION TO DOCUMENTS THAT AID IN LITIGATION
38.7 DOCUMENTS CREATED TO SATISFY EXTERNAL REQUIREMENTS
38.8 DOCUMENTS CREATED TO SATISFY INTERNAL REQUIREMENTS
38.9 DOCUMENTS CREATED IN THE ORDINARY COURSE OF BUSINESS
38.10 COURTS’ REVIEW OF A DOCUMENT’S “FOUR CORNERS”
38.11 EXTRINSIC EVIDENCE SUCH AS AFFIDAVITS
38.12 PROTECTION FOR QUALITATIVELY DIFFERENT DOCUMENTS
38.13 “MORPHED” INVESTIGATIONS WITH CHANGING MOTIVATIONS
38.14 SEPARATE PARALLEL OR SUCCESSIVE INVESTIGATIONS
38.15 THE ADLMAN “BECAUSE OF” TEST
39.1 INTRODUCTION
39.2 INTANGIBLE WORK PRODUCT
39.3 BACKGROUND FACTS ABOUT THE CREATION OF WORK PRODUCT
39.4 WORK PRODUCT PROTECTION FOR NON-SUBSTANTIVE DOCUMENTS
39.5 TYPES OF WORK PRODUCT
39.6 FIDUCIARY AND CRIME-FRAUD EXCEPTIONS
40.1 INTRODUCTION
40.2 INTANGIBLE AND NON-SUBSTANTIVE WORK PRODUCT
40.3 NAMING THE PROTECTION
40.4 HISTORICAL FACTS IN THE WORK PRODUCT CONTEXT
40.5 FACTS OBTAINED FROM OR GIVEN TO CLIENTS
40.6 FACTS OBTAINED FROM OR GIVEN TO THIRD PARTIES
40.7 CONTEMPORANEOUS DOCUMENTS
40.8 LAWYERS’ COMMUNICATIONS WITH THIRD PARTIES
40.9 EXAMPLES OF PROTECTED FACT WORK PRODUCT
40.10 RETAINERS/FEE AGREEMENTS
40.11 LAWYERS’ BILLS
40.12 WITNESS INTERVIEW NOTES AND SUMMARIES
40.13 WITNESS STATEMENTS
40.14 WITNESS AFFIDAVITS
40.15 SURVEILLANCE VIDEOTAPES
40.16 CORPORATIONS’ LOSS RESERVE FIGURES
40.17 OTHER EXAMPLES OF WORK PRODUCT
40.18 DOCUMENTS NOT DESERVING WORK PRODUCT PROTECTION
41.1 INTRODUCTION
41.2 COMPARISON TO OTHER PROTECTIONS
41.3 ERRONEOUS LIMITATION OF PROTECTION
41.4 PARTICIPANTS WHOSE OPINION CAN BE PROTECTED
41.5 DOCUMENTS CONTAINING OPINION
41.6 DOCUMENTS REFLECTING OPINION
41.7 INTANGIBLE OPINION WORK PRODUCT
41.8 LAWYERS’ COMMUNICATIONS WITH THIRD PARTIES
42.1 INTRODUCTION
42.2 INTRINSICALLY UNPROTECTED DOCUMENTS REFLECTING OPINION
42.3 CLIENT REPRESENTATIVES
42.4 HISTORY OF THE SPORCK DOCTRINE
42.5 GENERAL RULES: INTRODUCTION
42.6 EQUAL AVAILABILITY TO THE ADVERSARY
42.7 SELECTION AS REFLECTING PROTECTED OPINION
42.8 TIMING OF DISCLOSURE
42.9 LAWYERS’ SELECTION OF DOCUMENTS
42.10 LAWYERS’ SELECTION OF WITNESSES
42.11 LAWYERS’ SELECTION OF INFORMATION FOR DATABASES
42.12 CONTENTION INTERROGATORIES AND RULE 30(B)(6) DEPOSITIONS
42.13 OTHER EXAMPLES
43.1 INTRODUCTION
43.2 INTERNAL CORPORATE INVESTIGATIONS
43.3 INITIATION OF THE INVESTIGATION
43.4 COURSE OF THE INVESTIGATION
43.5 USE OF THE INVESTIGATION
43.6 “MORPHED” INVESTIGATIONS WITH CHANGING MOTIVATIONS
43.7 SEPARATE OR SUCCESSIVE INTERNAL INVESTIGATIONS
43.8 EXAMPLES OF INTERNAL CORPORATE INVESTIGATIONS
43.9 WAIVER IN THE INVESTIGATION CONTEXT
43.10 INSURANCE CONTEXT: INTRODUCTION
43.11 FIRST- AND THIRD-PARTY INSURANCE CONTEXTS
43.12 FIRST-PARTY INSURANCE CONTEXT
43.13 THIRD-PARTY INSURANCE CONTEXT
44.1 INTRODUCTION
44.2 COMPARISON WITH THE ATTORNEY-CLIENT PRIVILEGE
44.3 DURATION OF THE PROTECTION
44.4 OVERCOMING PROTECTION FOR STATEMENTS
44.5 FEDERAL RULE OF EVIDENCE 612
44.6 EXCULPATORY EVIDENCE IN A CRIMINAL CASE
44.7 APPLICATION OF THE FIDUCIARY EXCEPTION
44.8 APPLICATION OF THE CRIME-FRAUD EXCEPTION
44.9 WRONGFULLY CREATED FACT WORK PRODUCT
44.10 OVERCOMING PROTECTION FOR NON-TESTIFYING EXPERTS
44.11 OVERCOMING PROTECTION APPLICABLE TO TESTIFYING EXPERTS
44.12 PROCEDURAL ISSUES
45.1 INTRODUCTION
45.2 COMPARISON WITH THE ATTORNEY-CLIENT PRIVILEGE AND GENERAL RULES
45.3 “SUBSTANTIAL NEED” FACTOR
45.4 “SUBSTANTIAL EQUIVALENT” FACTOR
45.5 “UNDUE HARDSHIP” FACTOR
45.6 APPLICATION TO DATABASES
45.7 APPLICATION TO SURVEILLANCE VIDEOTAPES
45.8 WITHHOLDING LITIGANT’S BURDEN OF PRODUCING DOCUMENTS
45.9 ROLE OF THE ADVERSARY’S DILIGENCE
46.1 INTRODUCTION
46.2 FEDERAL AND STATE RULES
46.3 DEGREE OF PROTECTION
46.4 APPLICATION OF THE PROTECTION
46.5 FEDERAL RULE OF EVIDENCE 612
47.1 INTRODUCTION
47.2 CLIENTS’ AND LAWYERS’ ABILITY TO WAIVE PROTECTION
47.3 THIRD PARTIES’ POWER TO WAIVE PROTECTION
47.4 SIMILARITIES TO THE ATTORNEY-CLIENT PRIVILEGE
47.5 DIFFERENCES FROM THE ATTORNEY-CLIENT PRIVILEGE
48.1 INTRODUCTION
48.2 INTENTIONAL DISCLOSURE IN THE CORPORATE CONTEXT
48.3 INTENTIONAL DISCLOSURE TO THE GOVERNMENT
48.4 INTENTIONAL DISCLOSURE TO OTHER THIRD PARTIES
48.5 IMPORTANCE OF CONFIDENTIALITY AGREEMENTS
48.6 ROLE OF THE COMMON INTEREST DOCTRINE
48.7 WAIVER OF PRIVILEGE BUT NOT WORK PRODUCT PROTECTION
48.8 EFFECT OF RULE 502 ON INTENTIONAL EXPRESS WAIVER
48.9 INADVERTENT EXPRESS WAIVER
48.10 IMPLIED WAIVER
48.11 “AT ISSUE” DOCTRINE
49.1 INTRODUCTION
49.2 DISCLOSURE TO NON-TESTIFYING EXPERTS
49.3 DISCLOSURE BY NON-TESTIFYING EXPERTS
49.4 NON-TESTIFYING EXPERTS PLAYING MULTIPLE ROLES
49.5 TESTIFYING EXPERTS’ DOCUMENTS AND COMMUNICATIONS
49.6 FACT WORK PRODUCT DISCLOSED TO TESTIFYING EXPERTS
49.7 OPINION WORK PRODUCT DISCLOSED TO TESTIFYING EXPERTS
49.8 TESTIFYING EXPERTS PLAYING MULTIPLE ROLES IN THE SAME CASE
49.9 TESTIFYING EXPERTS WITH MULTIPLE ROLES IN DIFFERENT CASES
49.10 SCOPE OF WAIVER
50.1 INTRODUCTION
50.2 COMPARISON TO THE ATTORNEY-CLIENT PRIVILEGE
50.3 WAIVER OF THE PRIVILEGE BUT NOT WORK PRODUCT DOCTRINE PROTECTION
50.4 SUBJECT MATTER WAIVER IN THE WORK PRODUCT CONTEXT
50.5 EXAMPLES OF SUBJECT MATTER WAIVER
50.6 SCOPE OF WAIVER
50.7 WAIVER OF FACT BUT NOT OPINION PROTECTION
50.8 THE FARAGHER/ELLERTH DOCTRINE
50.9 APPLICATION IN THE PATENT CONTEXT
52.1 INTRODUCTION
52.2 ADDRESSING ONLY ONE TYPE OF PROTECTION
52.3 CHOICE OF PRIVILEGE LAW
52.4 SOURCE OF PRIVILEGE LAW
52.5 CHOICE OF PRIVILEGE LAW IN STATE COURTS
52.6 CHOICE OF PRIVILEGE LAW IN FEDERAL COURTS
52.7 CHOICE OF PRIVILEGE LAW IN FEDERAL DIVERSITY CASES
52.8 FOREIGN COMMUNICATIONS AND PRIVILEGE LAW
52.9 CHOICE OF PRIVILEGE LAW IN ARBITRATIONS
53.1 INTRODUCTION
53.2 ADDRESSING ONLY ONE TYPE OF PROTECTION
53.3 SOURCE OF WORK PRODUCT LAW—STATE COURTS
53.4 SOURCE OF WORK PRODUCT LAW—FEDERAL COURTS
53.5 VARIATIONS IN WORK PRODUCT LAW—FEDERAL COURTS
53.6 CHOICE OF WORK PRODUCT LAW
54.1 INTRODUCTION
54.2 HORIZONTAL SCOPE OF LITIGANT’S DUTY
54.3 TEMPORAL SCOPE OF LITIGANT’S DUTY
54.4 DUTY TO OBJECT: TIMING
54.5 DUTY TO OBJECT: SPECIFICITY
54.6 REDACTION
54.7 EFFECT OF PARTY’S FAILURE TO OBJECT
55.1 INTRODUCTION
55.2 FEDERAL AND STATE RULES
55.3 TIMING OF PRIVILEGE LOGS
55.4 REQUIRED DETAILS ABOUT WITHHELD DOCUMENTS
55.5 LOGGING ATTACHMENTS AND EMAIL
55.6 REQUIRED DETAILS ABOUT WITHHELD ORAL COMMUNICATIONS
55.7 CIRCUMSTANCES JUSTIFYING A LESS SPECIFIC LOG
55.8 COURTS’ TREATMENT OF PARTICULAR LOG PHRASES
55.9 CHALLENGING A WITHHOLDING LITIGANT’S PRIVILEGE LOG
55.10 LITIGANT’S FAILURE TO PROPERLY LOG WITHHELD DOCUMENTS
55.11 CORRECTING PRIVILEGE LOGS
55.12 RISK OF PROVIDING TOO MUCH INFORMATION
55.13 PRACTICAL TIPS AND SUGGESTED LANGUAGE
56.1 INTRODUCTION
56.2 TIMING OF REQUIREMENT FOR EVIDENTIARY SUPPORT
56.3 FOCUS ON THE FOUR CORNERS OF WITHHELD DOCUMENTS
56.4 GENERAL RULE REQUIRING EVIDENTIARY SUPPORT
56.5 SPECIFIC ASSERTIONS REQUIRING EVIDENTIARY SUPPORT
56.6 LAWYER REPRESENTATIONS
56.7 LEGAL MEMORANDA
56.8 AFFIDAVITS AND SIMILAR EVIDENCE
56.9 EFFECT OF FAILURE TO PROVIDE EVIDENTIARY SUPPORT
57.1 INTRODUCTION
57.2 STANDING
57.3 ADVERSE INFERENCE
57.4 NARROWNESS OF THE PROTECTIONS
57.5 PRESUMPTIONS
57.6 RELATIONSHIP TO WAIVER
57.7 BURDEN OF PROOF: PRIVILEGE
57.8 BURDEN OF PROOF: WORK PRODUCT DOCTRINE
57.9 EFFECT OF PRIVILEGE HEADERS AND STAMPS
58.1 INTRODUCTION
58.2 CONTENTION INTERROGATORIES
58.3 RULE 30(B)(6) DEPOSITIONS
58.4 DEPOSING LAWYERS
58.5 DISCOVERY ABOUT DISCOVERY
59.1 INTRODUCTION
59.2 BIFURCATION OF PATENT AND OTHER CASES
59.3 WHO SHOULD DECIDE PRIVILEGE/WORK PRODUCT ISSUES
59.4 IN CAMERA REVIEW
59.5 COURTS’ QUESTIONABLE PROCEDURES
59.6 OTHER PROCEDURAL ISSUES
59.7 TRIAL COURTS’ DUTY TO PREPARE FOR APPELLATE REVIEW
60.1 INTRODUCTION
60.2 PREPARING FOR AN APPEAL
60.3 INTERLOCUTORY APPEALS IN FEDERAL COURTS
60.4 INTERLOCUTORY APPEALS IN STATE COURTS
60.5 APPELLATE STANDARD OF REVIEW IN FEDERAL COURTS
60.6 APPELLATE STANDARD OF REVIEW IN STATE COURTS
Thomas E. Spahn
Thomas E. Spahn has practiced law as a commercial litigator with McGuireWoods since graduating magna cum laude from Yale University and receiving his J.D. from Yale Law School in 1977. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege, and corporate investigations.
Mr. Spahn has received the Virginia Law Foundation’s highest award for Continuing Legal Education efforts; a special commendation from the Virginia State Bar “in recognition of his outstanding service to the Bar”; and the Virginia Bar Association’s William B. Spong, Jr. Professionalism Award and Walker Award of Merit. He is a Member of the American Law Institute and a Fellow of both the American Bar Foundation and Virginia Law Foundation. He was also selected as the 2013 metro-Washington DC “Lawyer of the Year” for “Bet the Company Litigation” by The Best Lawyers in America.
In addition to authoring this book on the attorney-client privilege and the work product doctrine and the two-colume, nationally-scoped, The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide, Mr. Spahn has researched and written several editions of The Law of Defamation in Virginia, another Virginia CLE publication, and contributes chapters to several other Virginia CLE handbooks as well. He has also published a book on ethics issues facing Virginia in-house lawyers and written over 75 articles that have appeared in both Virginia and national publications. The ABA’s General Practice Section chose his article on Litigation Ethics in the Modern Age as one of the “Best Articles Published by the ABA” in 2004.
Since 1988, Mr. Spahn has spoken at more than 1,600 CLE programs throughout the United States and in several foreign countries. In March 2009, he was invited to Reykjavik, Iceland, to discuss an ethics issue on Iceland’s leading news and interview show. In July 2012, he was invited to Erbil, Iraq, to participate in a panel assisting the Kurdistan Bar Association in establishing ethics rules.
Mr. Spahn has served on the ABA Standing Committee on Ethics and Professional Responsibility; on the Virginia State Bar Standing Committee on Legal Ethics; as the Reporter for the Committee that drafted Virginia’s ethics Rules; as Chairman of The Virginia Bar Association’s Professionalism Task Force and Commission on Professionalism; on the Committee that revised Virginia’s lawyer discipline rules; on the faculty for the Professionalism Course that all new Virginia lawyers attend; and on the Virginia Judicial Ethics Advisory Committee. After personally reading, summarizing, and categorizing over 1,600 Virginia Bar Legal Ethics Opinions, Mr. Spahn made his work available to the public online through his bio page on the McGuireWoods website.
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