These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A plaintiff's lawyer reviewing a defendant's document production who finds an obviously protected memorandum prepared by defendant's lawyer (summarizing his witness interviews) must comply with Supreme Court Rule 4:1(b)(6)(ii) and, to the extent that rule does not trump it, Virginia LEO 1702 (11/24/97). That Supreme Court rule allows a producing party to make a post-production privilege or work product claim, which requires the receiving party to sequester or destroy the protected document, and take "reasonable steps" to retrieve any information that has already been disseminated to others. Virginia LEO 1702 "concludes that when a lawyer inadvertently receives confidential information, he is ethically obliged to return that information to the lawyer from whom the information was received, or to otherwise follow the sending lawyer's instructions, even if those instructions are to destroy the document." Here, the plaintiff's lawyer "should have promptly notified defendant's lawyer of his possession of the memo, in accord with LEO 1702, and then either sequestered or destroyed his copy of the memo pending a judicial determination of whether he could use the document." In contrast, the "requirements of LEO 1702 fully apply. . . . [o]utside of the discovery process, [and thus presumably do not permit sequestration rather than return or destruction]." [Virginia LEO 1702 (11/24/97) involved an errant fax, which "was immediately recognized by a member of [the receiving lawyer's staff]" as a protected document. The LEO indicated that "boilerplate" notices on fax cover pages did not put the receiving lawyer on notice of the protected status of the fax, and that "[i]n some cases it may not be apparent without reading the document received that it is confidential or was transmitted inadvertently." The LEO explained that the receiving lawyer's duty to notify the sending lawyer of the error and to follow the sending lawyer's instruction is triggered "once the receiving lawyer discovers that he has a confidential document inadvertently transmitted by opposing counsel or opposing counsel's client."]

Copyright 2000, Thomas E. Spahn