Given the importance of the attorney-client privilege, most courts allow the litigants to fully air their positions when one of the litigants seeks to withhold documents based on the attorney-client privilege.
In one recent California case, an appellate court sharply criticized a trial judge for declining to hold a full hearing with oral argument to assess a litigant’s privilege claim. In Titmas v. Superior Court, 104 Cal. Rptr. 2d 803, 805 (Cal. Ct. App. 2001), the appellate court noted that “[t]he judge in this case (filling in for a vacationing colleague) erred in denying basic due process in this highly sensitive area.”
Lawyers should take full advantage of all due process rights afforded litigants seeking to assert or to overcome the attorney-client privilege. In many courts, these rights include a full hearing with oral argument.