![]() This is because a person can waive the privilege. Just because the conditions exist for the privilege applying doesn’t mean it always applies. In that case, the witness’s lawyer may object to the question and instruct the witness not to answer it. For example, a questioner may ask “Did anyone tell you to sign this document?” The answer may be that the witness’s lawyer told the witness to sign it. Redactions are a big task in document review and document production.Īlso, at depositions, an attorney may ask a question and the answer may involve privileged information. The attorney discloses details about the privileged portion on the privilege log. For those documents, an attorney redacts out the privileged portion, and produces a redacted version of the document that reveals the non-privileged portion. Some documents contain both privileged and non-privileged information. This information is useful if the parties have to litigate whether the privilege really applies. These logs often state the sender, recipient, and other basic information about the withheld document. But they generally have to provide notice of the objection and produce a log of the documents that are withheld pursuant to the privilege. Instead of providing a privileged document in connection with that request, the responding party can object on the grounds of the privilege and decline to produce the responsive document. When a party issues a document request, that request may describe privileged documents. The privilege arises often in response to a request by another party for documents and communications. Still, it may be prudent to add these words so a recipient knows to keep the documents or communications confidential and to alert a distracted document reviewer to make sure to treat the document as privileged. But merely adding these words doesn’t make a document privileged, and the absence of those words does not affect whether the privilege applies. Many people write “Attorney-Client Privileged” on documents and communications. And if a co-counsel or a client that is part of the same defense or an agent of the client or someone whose role is to help communications between the lawyer and client (such as a translator or an expert) is present, that may not break the privilege either. ![]() If I represent a company, the presence of any company employee may not break the privilege. But not all privileged conversations are one-on-one. Or if a client asks me for advice, but copies a friend on the email, the communication is not privileged. ![]() So if me and my client and the client’s friend are in a room, our discussions in the room are not privileged. ![]() The privilege also does not apply when a non-lawyer is in the presence of the conversation. The privilege also doesn’t protect documents that a client sends a lawyer that weren't privileged before the client sent them to the lawyer. So, if a client asks me what I am having for dinner, and I tell her about a sushi restaurant I enjoy, that conversation is not protected by the privilege. Conversations between a client and an attorney that are not requests for or provisions of legal advice aren’t privileged. They could be words spoken aloud, emails, a Word document, a spreadsheet, or an audio file.īut there are many situations in which the privilege does not apply. Privileged documents and communications can take many forms. They may also include documents that a client prepares at the express direction of a lawyer. These are not communications between a client and attorney, but instead the notes and documents that an attorney prepares for a client. The privilege also extends to attorney work product. ![]() So for example, if a client asks me a legal question in my office when we are alone, and I answer the question, both the question and the answer are privileged. The privilege applies only in a narrow situation: when a client seeks or receives legal advice from a lawyer outside of the presence of other people. ![]()
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