A lawyer is representing a client in a civil personal injury case. During the discovery phase, the opposing counsel sends a document request that asks for all communications between the client and anyone regarding the accident, including privileged attorney-client communications. What is the lawyer's appropriate response?
- AProduce non-privileged communications and log all privileged communications, asserting the privilege.
- BRefuse to produce any documents until the request is narrowed by the opposing counsel.
- CSeek a protective order from the court for all communications without asserting privilege.
- DProduce all communications as requested to avoid accusations of obstruction.
Show answer & explanationAnswer & explanation
Correct answer: A. Produce non-privileged communications and log all privileged communications, asserting the privilege.
Model Rule 3.4(a) prohibits a lawyer from unlawfully obstructing another party's access to evidence or unlawfully altering, destroying or concealing a document or other material having potential evidentiary value. However, Rule 3.4 also implies that a lawyer may not disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but a lawyer is not required to yield to a discovery request that seeks privileged information. The appropriate response is to produce non-privileged documents while asserting privilege for protected communications, typically through a privilege log.
Why the other options are wrong
- B. Refusing all production is improper and could lead to sanctions; the lawyer must respond to the non-privileged parts of the request.
- C. Seeking a protective order without first asserting privilege for specific documents is generally not the initial or most appropriate step unless the request is overwhelmingly burdensome or harassing.
- D. Producing privileged communications would waive the privilege and breach the lawyer's duty to the client.
Fairness to Opposing Party (Discovery)
A lawyer must not unlawfully obstruct another party's access to evidence or illegally alter, destroy, or conceal evidence. Lawyers must respond to discovery requests appropriately, asserting privilege when applicable.
- Must comply with valid discovery requests.
- Must assert privilege for protected information.
- May not obstruct access to non-privileged evidence.
Memory trick: Protect client secrets, but don't obstruct justice.