Court Reaffirms Requirement to Assert the Privilege for Each Withheld Document

September 4, 2002

Courts universally recognize that a party asserting the attorney-client privilege (or the work product doctrine) must carry the burden of proving the protections’ applicability. One court recently reaffirmed that in nearly every case, the withholding party must carry this burden of proof for each withheld document.

In Sphere Drake Insurance Ltd. v. American Life Insurance Co., No. 99 C 4573, 2002 U.S. Dist. LEXIS 1910, at *29-30 (N.D. Ill. Feb. 6, 2002) (citations omitted), the court explained that “[t]he invocation of the privilege must be supported by specific facts as to each document at issue. This will often necessitate the submission of an affidavit or declaration with specific facts and/or the submission of the documents in camera; conclusory or blanket assertions about the documents will not suffice.”

Lawyers should keep this requirement in mind at the very beginning of the discovery process, when they are collecting documents that might be withheld as privileged or work product. Among other things, lawyers should start to formulate the basis for any privilege or work product claim, and identify company employees who can supply the required affidavits if called upon to do so.