Privileges

Here's the process for withholding privileged documents if you're a reasonably principled lawyer.  You put together the entire universe of documents that appear to be responsive to the document request.  Then you examine every single document to determine whether it falls within an established privilege, usually "work product" or "attorney-client."  The first cut of "work product" documents would include anything that could possibly be said to quote or reflect advice that the client received from counsel.  For the "attorney-client" category, the first cut would include anything from the attorney to the client or vice versa, including anything cc'ed to the law firm.

If only you got to stop there, document production would be a breeze.  The next step is harder.  In the case of work product, for instance, often the main document is OK, but a line or two might say, "As you know, counsel advised us that ______," and the blank would need to be redacted.  In the case of attorney-client privilege, you're not going to get away with withholding everything that was circulated past the lawyers.  If the cc list included anyone who wasn't a client, for instance, it goes back in the pile to be produced, because the privilege requires a showing that the advice was given and held in confidence.  Even if the cc list is made up exclusively of lawyers and clients, it still has to involve the quest for or rendition of legal advice.  You can't shield ordinary business documents from production by slapping a "lawyer cc" on them, though that gambit is often tried.

Even when you finish this more rigorous secondary process, you don't simply get to keep the documents you think are privileged and tell the other side to pound sand.  You have to produce a privilege log, a little chart that identifies each document, including its date, its recipients, and enough about its general nature to explain why you claim a privilege attaches to it.  This is a critical stage, because the judge and any competent lawyers in the case can take one look at your privilege log and see whether you're serious.  The absence of a privilege log, or the absence of detail, is a big red flag that screams "My idea of screening for privileged documents to sort everything into two piles:  the documents that will embarrass me and the documents that won't."  It's a more common approach than you might think.

Sen. Chuck Grassley (R-Iowa) is making a very reasonable demand today for a privilege log of the "Fast and Furious" documents withheld by the White House on the ground of executive privilege.  He's also on solid ground with the following observations:

“Just last week, when the attorney general was in front of this committee, I asked him twice if the president could claim executive privilege to protect a certain internal Justice Department email that has been withheld,” Grassley said.  “Given the explicit opportunity, the attorney general did not indicate he would be asking the president to assert executive privilege over such documents.” 

“The attorney general repeatedly claimed that the Justice Department was making an ‘extraordinary offer’ Tuesday night,” Grassley continued.  “The only thing extraordinary is that the attorney general offered a promise to produce documents one day and then asked the president to claim executive privilege over them the next.” 

Grassley also attacked Obama for waiting until the eleventh hour to assert the privilege.  “If this were a serious claim, it should have been raised much earlier,” Grassley said.

It's very difficult to understand how an executive privilege could attach to documents about a program the President claims not to have had any knowledge of.   Nor is it easy to understand how the Attorney General can assert with a straight face that the program in question dates from the Bush administration, and that he terminated it many months before he now asserts he even became aware of it.   In a trial, this kind of thing would prompt the filing of what we used to call a "motion to get real."

Discovery disputes are boring.  Judges hate to get involved in them, so they tend to blow them off by taking a "plague on both your houses" approach, which gives crummy lawyers an incentive to abuse privileges and hide evidence.  The media is doing the same thing right now, painting the picture of yet another partisan attack based on an arcane legal theory, which voters should tune out in frustration.  I hope they don't.