August 01, 2018 SUBSTANTIVE LAW

A Modest Proposal to Address the Costs of the Attorney-Client Privilege

By Edna Selan Epstein

Reprinted with permission from Litigation, Spring 2018 (44:3) at 16-19. ©2018 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

I doubt that there are cows more sacred than the attorney-client privilege. I also doubt that many other litigated matters clamor as repeatedly and as insistently for adjudication. I even doubt that any other adjudicated matter regularly devours more attorney time and judicial resources. And I doubt that all the resources spent on adjudicating and allegedly protecting that sacred cow are well spent. Hence a modest proposal: Make all privilege-protected documents discoverable. Adjudicate only whether any privilege-protected document will be admissible into evidence.

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