Practical Tips For "Anticipation of Litigation" Discovery

In-house lawyers and clients who anticipate litigation discovery should understand how common missteps can destroy or waive privilege protections, particularly in today’s digital age. As experienced lawyers know, cases can be won or lost depending on whether documents are withheld as privileged. However, many lawyers wrongly believe that the work-product doctrine, which may be invoked by both lawyers and clients, can be used as a catch-all protection to prevent discovery of documents. In reality, the doctrine has a more limited scope and only protects those documents prepared for or by an adverse party in ‘‘anticipation of litigation.’’

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