If information in government documents is exempt from disclosure to the general public under FOIA, it does not automatically follow the information is privileged within the meaning of rule 26(b)(1) and thus not discoverable in civil litigation. The FOIA acts as a “floor” when discovery of government documents is sought in the course of civil litigation. Though information available under the FOIA is likely to be available through discovery, information unavailable under the FOIA is not necessarily unavailable through discovery.
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
[T]he level of need and hardship required for discovery depends on whether the work product is factual, or the result of mental processes such as plans, strategies, tactics, and impressions, whether memorialized in writing or not. Whereas factual work product can be discovered solely upon a showing of substantial need and undue hardship, mental process work product is afforded even greater, nearly absolute, protection.
The widely applied standard for determining the scope of a waiver of attorney-client privilege is that the waiver applies to all other communications relating to the same subject matter. The waiver extends beyond the document initially produced out of concern for fairness, so that a party is prevented from disclosing communications that support its position while simultaneously concealing communications that do not.
[Plaintiff] undertook this global effort pursuant to an expedited discovery schedule, completing the production ... barely three weeks after the requests were received. Wedged into this three-week period was an unavoidably rapid review by plaintiff's counsel of the entire production for responsiveness and privilege. In the rush to organize and produce the documents, and despite plaintiff's careful and deliberate precautions, the four privileged documents described above slipped through the review undetected.
In [Cities Service Helex, Inc.,] the disclosing attorney testified by way of affidavit that he had reviewed the documents to be produced on three separate occasions and then, on a fourth occasion, once again checked the documents against a privilege log prepared by another attorney. Likewise, in National Helium, the disclosing attorney detailed his screening process, explaining that he delegated initial screening responsibilities to an employee, that he instructed the employee to inspect only those files that normally would be expected to contain privileged documents, and that none of the documents disclosed to the opposing party had been shown to him by the employee.
(1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense.
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