Claiming Privilege Protection Too Late Or Too Early Can Lead To Bad Results

April 24, 2019

The attorney-client privilege’s and the work product doctrine’s holders must assert those protections as early as possible in the discovery process.  But they also must remember the ramifications of such assertions.

In Thomas v. Bannum Place, Inc., Case Nos. 4:17-cv-13492 & 4:18-cv-10222, 2019 U.S. Dist. LEXIS 18972 (E.D. Mich. Feb. 6, 2019), the court took the most extreme approach to a litigant’s failure to assert privilege and work product protection.  Pointing to defendant’s “failure to timely respond and object to either set of Plaintiff’s discovery requests,” the court bluntly held that “[a]ll of Defendant Bannum’s objections to Plaintiff’s first and second sets of discovery requests are WAIVED.”  Id. at *2.  On the same day, the court in Levine v. Levine, No. B284749, 2019 Cal. App. Unpub. LEXIS 924 (Cal. Ct. App. Feb. 6,  2019), dealt with the inverse situation.  The trial court had awarded attorney’s fees to the victorious defendant.  Defendant’s motion for fees included “attached invoices from his attorneys that were heavily redacted.”  Id. at *17.  The trial court “noted that the billing invoices were redacted to avoid waiving attorney-client privilege” – which it found “understandable, permitted, and likely required.” Id. at *20-21.   But the trial court had reduced the fee award based on the redacted entries.  Defendant filed a motion for reconsideration, in which he “waived attorney-client privilege with respect to the billing entries and submitted entries with fewer redactions.”  Id. at *21.  But the trial court declined to reconsider the issue, and the appellate court affirmed.  It held that defendant’s initial evidence “was not sufficient to establish the full amount of the fees” and that “[h]is decision to waive the privilege following the ruling does not constitute new or different evidence.”  Id. at *26.

Litigants and their lawyers must protect privilege and work product-protected documents as if they are the “crown jewels,” but they must also look ahead to such assertion’s implications.