Courts Address Claimed Protection For Communications Or Documents The Client Plans To Use At Trial

Not surprisingly, most courts recognize that privilege and work product protections essentially "evaporate" when the client forms the intent to disclose the communication or document to a third party. A related rules-based principle requires litigants to disclose before trial any communications or documents they intend to use at trial.

The effect of these related principles depends on when the court addresses them. In Phillips v. C.R. Bard, Inc., the court explained that if defendant "determines that it wants to retain the right to offer these [protected] documents as evidence in support of its defenses, it must abandon the attorney-client privilege or work product doctrine and produce the documents to Plaintiff." No. 3:12-cv-00344-RCJ-WGC, 2013 U.S. Dist. LEXIS 45647, at *65 (D. Nev. Mar. 29, 2013). If the issue comes up during or on the eve of trial, the court might apply a more drastic approach. In In re Residential Capital, LLC, the court held that debtors'