Because of the broad scope of discovery, it is vitally important to understand–and properly utilize and protect–the attorney-client communication privilege and the work product immunity doctrine.
Discovery is an important pre-trial component of litigation, during which parties to a lawsuit are able to obtain from one another evidence pertaining to the case. Many first-time litigants are surprised to learn just how broad ranging this discovery process can be, regarding both the type of information and the amount of information that a party to a lawsuit can be required to disclose to their opponent. Because of the liberal discovery procedures provided for in our legal system, a party can request any document from an opponent, or request that the other party answer any written question, so long as the evidence sought is relevant to the litigation, and not protected by any legal privilege.
There are two important types of privilege that all businesses should be mindful.
→ The Attorney-Client Communication Privilege, which protects communications between lawyer and client; and
→ The Work Product Immunity Doctrine, which protects documents which are prepared in anticipation of litigation by a party or their attorney.
Together, these privileges can be very useful in protecting sensitive communications that a party may not want to disclose to an opposing party in litigation.
But making sure that legal privilege attaches to potentially privileged materials–and making sure that privilege is not accidentally forfeited–can be a tricky business. Each of these privileges may be forfeited if the holder of the right to the privilege does not act in a way to preserve and maintain the privilege.
PRACTICAL COUNSEL: The work product immunity doctrine and attorney-client communication privilege are vital components of any successful litigation matter, and in fact are often critically important for pre-lawsuit communications. These privileges, however, are at risk of being inadvertently waived when a company does not take appropriate precautions both before and after commencement of litigation. In order to ensure your company will be able to take full advantage of these privileges if and when litigation arises in the future, consult with General Counsel, P.C. today to find out what you can do to protect crucial documents and communications from disclosure during the mandatory discovery process.