Discovery is a process where litigants in a civil lawsuit investigate the particulars of a case. Part of discovery is the sharing of information from both sides of the lawsuit. However, in Virginia and other states, disclosing of attorney work product for purposes of discovery is guided by American legal precedents as well as laws first developed in Great Britain before America was a nation.

What is Discovery in Virginia Civil Litigation

The shared information often comes from both sides of the lawsuit and is provided by the litigants. Other means of discovery include:

• Answers to questions found in interrogatories;
• Showing and giving opposing sides documents and other things;
• Depositions; and
• Admissions

How Discovery Works

The Federal Rules of Civil Procedure give the parties in a civil lawsuit broad powers of discovery as do most of the states in the US, discovery is a far-reaching tool that is broadly interpreted so litigants in a civil procedure such as in a state like Virginia, can ask for almost anything which a reasonable person believes will lead to the discovery of evidence that can be used in a courtroom. Virginia state courts also have their own rules of evidence.

Even so, discovery has its limits. Information that is usually protected from discovery includes:

• Attorney-client communications and attorney work product
• Trade secrets
• Communication between spouses

But even these exceptions, have exceptions. Subject to the order of a Virginia judge, protected items from discovery may be admissible if a litigant in the lawsuit shows she or he has a substantial need for the protected material so he or she can prepare their case and is unable, without undue hardship, get the information from other means.

Virginia Discovery Process

Virginia more clearly enumerates when waivers may be given for the discovery of information normally covered by attorney-client privilege. The following reasons all support the suspension of the attorney-client privilege in Virginia. See Virginia Code Sec. 8.01-420.7.

1. The waiver is intentional;
2. Communications between attorney and client concern the same subject matter; and
3. The information already disclosed and the information that has not been disclosed should be considered together in the interest of fairness.

Information not subject to disclosure include:

1. The disclosure of privileged information was accidental
2. The holder of privilege made reasonable efforts to prevent its disclosure
3. Once discovered that privilege was broken steps are taken to immediately resolve the issue.

Discovery is a powerful tool and protecting privileged information is a hard task for lawyers. For example, if a litigant in Virginia does not speak English, his or her lawyer can hire an interpreter. While the interpreter is privy to protected client-attorney communications, the information is protected from discovery as it is the product of the lawyer’s work. But, if a person who performed translation services to make communications between attorney and litigant smooth and then accidentally or deliberately reveals any protected information to a third party, that incident may be considered a waiver of the attorney-client privilege.

Unfortunately, though the  privileged information is protected, once deemed waived, it remains that way forever. And, as described in the situation regarding the interpreter shows, while the privilege is strong, waiving it takes a single, careless moment.