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A litigant has the right to examine all of the opponent's non-privileged documents as long as the request is relevant for discovery, i.e. "reasonably calculated to lead to the discovery of admissible evidence." Therefore, a young lawyer tasked with the job of responding to a document request must know what to do with privileged material and also must understand that what is relevant for discovery is often broader than what would be relevant at trial.
Generally, a document containing confidential communications between a lawyer and the client that relates to the representation is protected by the attorney-client privilege. While the party responding to the document request is not required to produce privileged documents, the party still must object to the request and provide a privilege log with the response. The privilege log must provide enough information to allow other parties to assess the applicability of the privilege. This information may include the names and job titles of the parties to the communication, the type of document, and its subject matter, purpose, and date. A general statement that a document is "subject to the attorney-client privilege" or is "work product" does not satisfy Federal Rule of Civil Procedure 26(b)(5)(a) and may not satisfy the applicable state procedural rule.
Aside from providing a privilege log, the responding party should understand that what is relevant for discovery is not always relevant at trial. Understanding what is relevant is important because an objection based on relevancy may prompt opposing counsel to move for an order compelling production of the documents. The responding party must weigh the time and expense of opposing the motion against the likelihood of prevailing in opposition to the motion. Where the relevancy of a document request is questionable, the judge may agree that the documents would not be relevant at trial, but still compel production if the request is "reasonably calculated to lead to the discovery of admissible evidence." On the other hand, rather than arguing relevancy, the objecting party may raise an argument that more specifically pinpoints why the request is objectionable. For example, the objecting party may argue that the request is overbroad or vague. This approach may persuade a judge to require the other party to narrow its discovery request to more clearly relevant documents and, therefore, save the responding party from having to produce irrelevant documents.
About the Author
Adam S. Butkus is an attorney with Trenam Kemker in St. Petersburg, Florida. He practices in the area of commercial litigation.