Where Do Courts Look When Determining Whether a Litigant has Proven Attorney Client Privilege or Work Product Protection?: Part I

January 9, 2013

Every court agrees that a litigant withholding documents must carry the burden of proving some protection. But where do courts look when deciding whether the litigant has justified withholding responsive documents? Three federal court cases decided in a two-week period shed some light.

In Galvan v. Mississippi Power Co., Civ. A. No. 1:10CV159-KS-MTP, 2012 U.S. Dist. LEXIS 165558 (S.D. Miss. Nov. 20, 2012), the court rejected a company’s work product claim. The court “decline[d] the parties’ invitation to review all of the withheld documents in camera.” Id. at *9. Instead, the court bluntly noted that “[t]here is no factual information submitted to support the work‑product claims, such as an affidavit, deposition testimony, or other document.” Id. at *7 n.3.

Some courts decline to review withheld documents, and instead look for some extrinsic evidence supporting any protection claims. This normally includes an affidavit explaining the documents’ evidence context, and justifying the withholding. The next two Privilege Points will discuss the other two cases that dealt with this issue.