In this blog I have asked that lawyers write in if there was a topic they would like me to address. I have received many requests over the years and the next couple of blogs will be responding to some of these requests. Here is the first one.
“I noticed a few things regarding privilege logs. 1) litigators are not sending them. 2) my opposing counsel tends to argue that there is no obligation to prepare a privilege log unless it is demanded by the requesting party and I don’t think that’s right – I think it’s an affirmative duty arising when someone withholds documents under an objection – is that right?”
A party’s ability to request documents from the other side is one of most important tools in any discovery plan. Depositions are useful but memories can fade, and witnesses’ recollections can be wrong. Interrogatories and requests for admission are responded by the attorney and are usually answered to support a claim or defense. However, as it has been said over the years, “The document speaks for itself.” The majority of cases turn on whether or not there are documents, photos or other tangible items, prepared contemporaneously, that support a given position. This makes not only the document production important, but the response is just as important, as you will want to nail down whether any documents actually exist that relate to a particular topic of inquiry.