"The Document Request Tightrope: Balancing Your Company’s Interests and Your Duty to Respond"
Kevan Dorsey, along with Georgia Municipal Association assistant general counsel Caroline Dorsey, authored an article for the December 2019 issue of ACC Docket, the flagship publication for the Association of Corporate Counsel. The two addressed the challenge for attorneys to balance their organization’s interest and the duty to respond when they receive a document request in litigation. On one hand, producing otherwise privileged information could waive those privileges, and sharing protected employee information could subject the company to liability and reveal trade secrets that compromise competitive standing. On the other hand, failure to comply could result in the court sanctioning the company.
The process for responding to a document request depend on both jurisdiction and the type of request, which are most commonly subpoenas or nonparty requests in litigation that does not even involve the attorney’s organization. In addition to understanding the appropriate channels for responding with documents or objecting to a request, attorneys should (1) evaluate the scope of the request, (2) identify all documents that should not be disclosed due to protections and (3) produce documents that are within the scope but not protected.
Some of the key protections to consider when determining what may be withheld from production include:
- Attorney-client privilege;
- Specific employee information;
- Sensitive business information;
- Nuanced or statutorily provided protections; and,
- Work product.